Stereotypes Harm Us All

December 20, 2020

By Brian Babcock

We seldom post articles about criminal law, but we wish to reproduce and bring to your attention the November 6, 2020 decision of the Supreme Curt of Canada in R. v. Slatter, which reads in full:

We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree.

We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence. Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.

Accordingly, we would allow the appeal and restore the conviction.

[emphasis added]

Perpetuating stereotypes hurts us all, not just in law but in life. We should be tearing down barriers, not erecting them.

This case involved the sexual assault (rape) of a young woman with developmental disabilities.  There was evidence from an expert about the general tendency of persons of her intelligence to be suggestible, but an absence of any actual evidence of suggestibility in her own evidence, or that of the people to whom she complained. In fact, she volunteered details that could not have been suggested by others.

The trial judge accepted the evidence and convicted. On appeal to the Ontario Court of Appeal, two senior judges with criminal law backgrounds overturned the conviction. The third judge disagreed, creating an automatic right of crown appeal to the Supreme Court. It is her reasoning, based upon accepting the young woman’s evidence, that the Supreme Court adopted.