R v Slatter: Victory or Missed Opportunity for Rights of Women with Intellectual Disabilities?
[Content warning: this article contains discussion of sexual violence against women with disabilities].
When hearing the appeal in R v Slatter, 2019 ONCA 807 [Slatter (ONCA)], the Supreme Court of Canada (“SCC”) was presented with an opportunity to further the substantive equality rights of women with intellectual disabilities in the criminal justice system, and to condemn the reliance on generalizations and stereotypes about their capacity when assessing the reliability of their testimony. In releasing their decision orally from the bench, however, the SCC provided only brief commentary, and missed the opportunity to more strongly condemn discrimination against women with intellectual disabilities in the criminal justice system and in the legal system more broadly (R v Slatter, 2020 SCC 36 [Slatter (SCC)]).
Background: R v Slatter
Thomas Slatter was accused of sexually assaulting J.M., a woman with an intellectual disability who lived with his neighbours, over a period of four years (Slatter (ONCA), paras 2–4). At trial, the defence argued that J.M. was influenced by others in disclosing her allegations against Mr. Slatter, and that as she spoke to people in authority, she began to allege increasingly serious forms of sexual assault (Slatter (ONCA), para 31). To support this claim, the defence brought expert evidence from Dr. Jessica Jones, a forensic clinical psychologist. Dr. Jones testified that people with intellectual disabilities are more suggestible than people without intellectual disabilities, and that J.M. was in the 75th percentile for suggestibility compared to the general population (Slatter (ONCA), paras 11–15). Dr. Jones referenced a particular police interview in which she indicated that the police officer’s leading questions had caused J.M. to change or distort previous statements she had made to others about the alleged sexual assaults (Slatter (ONCA), para 15). In response, J.M. acknowledged that she had “told different things to different people,” but said that this was because she remembered more about the sexual assaults over time (Slatter (ONCA), para 41).
At trial, Mr. Slatter was found guilty of sexual assault (Slatter (ONCA), para 105). Mr. Slatter appealed his conviction, arguing that the trial judge did not properly assess the reliability of J.M.’s testimony in light of Dr. Jones’s evidence (Slatter (ONCA), para 56). He also contended that the trial judge engaged in illogical reasoning, and failed to provide reasons for rejecting elements of the defence’s evidence (Slatter (ONCA), para 56). However, this article will focus solely on the first ground of appeal.
The Ontario Court of Appeal (“ONCA”) majority allowed Mr. Slatter’s appeal, finding the trial judge’s reasons to be insufficient. They held that trial judge failed to address J.M.’s reliability as a witness, instead focusing solely on her credibility and sincerity (Slatter (ONCA), para 64). Similarly, they found that the trial judge failed to mention concerns with J.M.’s suggestibility, and made no effort to reconcile these concerns with his acceptance of much of J.M.’s testimony, which left it unclear whether he “was alive to the issue of reliability” in his decision-making (Slatter (ONCA), paras 66–67). While the majority noted that the Crown had advanced plausible arguments about the reliability of J.M.’s testimony and her lack of suggestibility when questioned, they found that the trial judge failed to consider these arguments explicitly in his reasons, and so did not provide any basis for accepting J.M.’s reliability in face of legitimate concerns (Slatter (ONCA), para 68–70). The majority concluded that “it was critical that the trial judge at least consider the evidence concerning J.M.’s heightened suggestibility,” but that “[h]is reasons give no indication that he did” (Slatter (ONCA), para 71). As such, they allowed Mr. Slatter’s appeal on this ground (Slatter (ONCA), para 72).
Justice Pepall’s dissenting reasons focused largely on the adequacy of the trial judge’s reasons (Slatter (ONCA), paras 91–92). After reviewing the jurisprudence on the sufficiency of reasons, Justice Pepall concluded that the trial judge’s decision did not fail to consider the reliability of J.M.’s evidence. She held that “the trial judge was unquestionably alive to the issue of reliability, and its subset of suggestibility,” noting that his decision was clearly based on J.M. having “never wavered on the core issue of whether the appellant had committed sexual assault,” even if some details were inconsistent (Slatter (ONCA), para 124). Justice Pepall also pointed to verbal exchanges between defence counsel and the trial judge during the closing arguments which showed that the trial judge was alive to the issue of J.M.’s reliability when assessing the case (Slatter (ONCA), paras 125–130).
Perhaps most importantly, Justice Pepall noted that J.M.’s conduct during the trial demonstrated that she was not overly suggestible or unduly influenced by people in positions of authority. She pointed to several instances from J.M.’s testimony in which she corrected the trial judge—“most certainly a person of authority”—and the defence counsel, and was “unwilling to agree with anything put to her” (Slatter (ONCA), paras 136–138). From these instances, Justice Pepall concluded that there was no air of reality to argument that J.M. was overly suggestible, and thus there was not the necessary “factual foundation to anchor the expert’s generalized opinion” (Slatter (ONCA), para 141). Accordingly, there was no need for the trial judge to explicitly address the matter in his reasons, and so his failure to do so, according to Justice Pepall, should not be a reason to grant Mr. Slatter’s appeal (Slatter (ONCA), para 142). Ultimately, in summarizing her position on the trial judge’s consideration of the reliability of J.M.’s evidence, Justice Pepall wrote that “it is clear from the reasons that the trial judge considered the complainant’s reliability and credibility concerns, commented where necessary, and was satisfied beyond a reasonable doubt of the appellant’s guilt” (Slatter (ONCA), para 150).
SCC Decision: Victory or Missed Opportunity?
The Crown appealed the ONCA decision to the SCC. In brief oral reasons, the SCC unanimously allowed the appeal, endorsing Justice Pepall’s reasons, and restored Mr. Slatter’s conviction (Slatter (SCC), n.p.).
Several interveners before the Court made submissions highlighting the important role of disability and gender in this case. The SCC briefly addressed the concerns raised about disability, stating:
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 (Slatter (SCC), n.p.).
A coalition of three of interveners—the Women’s Legal Education and Action Fund (LEAF), the Disabled Women’s Network of Canada (DAWN), and ARCH Disability Law Centre—praised the SCC decision for “adopt[ing] the key points” they advanced in their written submissions by highlighting the problems with relying on stereotypes and generalizations about people with disabilities, rather than on the “actual abilities and individual circumstances” of the person (LEAF Announcement). Despite the SCC’s endorsement of this important argument, however, their brevity leaves something to be desired. In simply stating that courts should be wary of generalizations about the capacities of people with disabilities, the SCC did not provide any substantive analysis of how this principle was not followed in the case at hand. They deferred to Justice Pepall’s reasons, which implicitly critiqued the trial judge’s finding on this point—particularly by highlighting J.M.’s actual suggestibility as demonstrated through her testimony in court—but did not explicitly name the operation of stereotypes and generalizations about people with disabilities that led the ONCA majority to find that expert evidence of J.M.’s reliability cast significant enough doubt on her testimony to overturn the trial judge’s verdict. As the LEAF-DAWN-ARCH coalition noted, these stereotypes include “assumptions that women labelled with intellectual disabilities are more suggestible, prone to people-pleasing, and child-like, and that their testimony is to be treated with suspicion.” Without a substantive analysis of how the ONCA majority’s reasoning deferred to stereotyping and overreliance on generalizations when assessing J.M.’s reliability, the SCC’s decision may not provide the guidance needed to ensure that lower courts do not fall into similar patterns of discriminatory reasoning when assessing the testimony of people with intellectual disabilities.
The LEAF-DAWN-ARCH coalition also criticized the SCC ruling for failing to engage with the “gendered impact of sexual violence against women and girls with disabilities” (LEAF Announcement). Their submissions had highlighted that women with disabilities are “overrepresented among sexual assault survivors,” and that women with intellectual disabilities face multiple intersecting barriers in reporting sexual assault (Factum of the Interveners (LEAF-DAWN-ARCH), paras 5, 22). The stereotyping of women with intellectual disabilities results in “silenc[ing] their voices by minimizing the reliability of their testimony in sexual assault cases,” as occurred with J.M (LEAF Announcement). As such, the coalition expressed their disappointment that the SCC “did not explicitly recognize the gendered impact of sexual violence against women and girls with disabilities,” again failing to more concretely assess and protect the substantive equality rights of women with intellectual disabilities (LEAF Announcement).
Ultimately, while the SCC’s endorsement of Justice Pepall’s dissenting reasons ensured that the stereotyping and generalizations drawn by the ONCA majority about J.M. would not stand, their decision may have done little to protect other women with intellectual disabilities engaging with the justice system from experiencing similar discrimination. By thoroughly addressing the ONCA majority’s assessment of J.M.’s reliability, the SCC could have taken the opportunity to instruct lower courts on how to properly assess the reliability of testimony of people with intellectual disabilities without resorting to stereotyping or overreliance on generalized expert opinions. Further, the SCC could have incorporated an analysis of the gendered dimensions of J.M.’s treatment by engaging with the arguments brought by the LEAF-DAWN-ARCH coalition, recognizing the multiple barriers women with intellectual disabilities face in the criminal justice system. Consequently, although Slatter was a victory in that it recognized and rectified the discrimination against J.M., the SCC missed the opportunity to more concretely secure the substantive equality rights of all women with intellectual disabilities engaging with the court system moving forward.
[Image is from here].