Case information
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33657
Her Majesty the Queen v. D.A.I.
(Ontario) (Criminal) (By Leave)
(Publication ban in case) (Publication ban on party)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2012-02-20 | Appeal closed | |
| 2012-02-13 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2012-02-13 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2012-02-10 |
Judgment on the appeal rendered, CJ Bi LeB De F Abe Cha Ro Cro, The appeal from the judgment of the Court of Appeal for Ontario, Number C48807, 2010 ONCA 133, dated February 19, 2010, heard on May 17, 2011, is allowed, the acquittal is set aside and a new trial is ordered. Binnie, LeBel and Fish JJ. are dissenting. Allowed |
|
| 2011-06-06 | Transcript received, (80 pages) | |
| 2011-05-17 | Judgment reserved OR rendered with reasons to follow | |
| 2011-05-17 | General proceeding, Questionnaire following the hearing concerning the publication ban | D.A.I. |
| 2011-05-17 | General proceeding, Questionnaire following the hearing concerning the publication ban | Her Majesty the Queen |
| 2011-05-17 | Respondent's condensed book, Submitted in Court (14 copies) | D.A.I. |
| 2011-05-17 | Acknowledgement and consent for video taping of proceedings, From all parties | |
| 2011-05-17 |
Hearing of the appeal, 2011-05-17, CJ Bi LeB De F Abe Cha Ro Cro Judgment reserved |
|
| 2011-05-10 | Notice of withdrawal | People First of Canada and Canadian Association for Community Living |
| 2011-05-10 | Correspondence received from, A. Levesque by fax, re.: request for 2 reserved seats at the hearing | Council of Canadians with Disabilities |
| 2011-05-10 | Notice of appearance, David Wright and Helga Van Iderstine will be present at the hearing. | Council of Canadians with Disabilities |
| 2011-05-09 | Notice of appearance, Jamie Klukach and John Semenoff will be present at the hearing. | Her Majesty the Queen |
| 2011-05-06 | Notice of appearance, Joanna Birenbaum will be present at the hearing. | Women's Legal Education and Action Fund and Disabled Women's Network Canada |
| 2011-05-06 | Notice of appearance, Joseph Di Luca and Erin Dann will be present at the hearing. | Criminal Lawyers' Association (Ontario) |
| 2011-05-02 |
Order by, Ro, FURTHER TO THE ORDER dated April 4, 2011, granting leave to intervene to the Women's Legal Education and Action Fund and Disabled Women's Network Canada, the People First of Canada and Canadian Association for Community Living, the Criminal Lawyers' Association (Ontario) and the Council of Canadians with Disabilities; IT IS HEREBY FURTHER ORDERED THAT each of the four groups that have filed factums are granted permission to present oral argument not exceeding ten (10) minutes at the hearing of this appeal Granted |
|
| 2011-04-27 | Intervener's book of authorities, Completed on: 2011-04-27 | Criminal Lawyers' Association (Ontario) |
| 2011-04-27 | Intervener's factum, Completed on: 2011-04-27 | Criminal Lawyers' Association (Ontario) |
| 2011-04-27 | Intervener's book of authorities, Completed on: 2011-04-27 | Women's Legal Education and Action Fund and Disabled Women's Network Canada |
| 2011-04-27 | Intervener's factum, Completed on: 2011-04-27 | Women's Legal Education and Action Fund and Disabled Women's Network Canada |
| 2011-04-27 | Intervener's book of authorities, (2 volumes), Completed on: 2011-04-27 | Council of Canadians with Disabilities |
| 2011-04-27 | Intervener's factum, Completed on: 2011-04-27 | Council of Canadians with Disabilities |
| 2011-04-26 | Intervener's book of authorities, Completed on: 2011-04-26 | People First of Canada and Canadian Association for Community Living |
| 2011-04-26 | Intervener's factum, Completed on: 2011-04-26 | People First of Canada and Canadian Association for Community Living |
| 2011-04-18 | Notice of appearance, Howard L. Krongold and Leonardo Russomanno will appearing | D.A.I. |
| 2011-04-14 | Appeal perfected for hearing | |
| 2011-04-08 | Respondent's book of authorities, (2 volumes), Completed on: 2011-04-08 | D.A.I. |
| 2011-04-08 | Respondent's factum, Completed on: 2011-04-08 | D.A.I. |
| 2011-04-04 | Order on motion for leave to intervene, (BY ROTHSTEIN) | |
| 2011-04-04 |
Decision on the motion for leave to intervene, Ro, UPON APPLICATIONS by the Women's Legal Education and Action Fund and Disabled Women's Network Canada, the People First of Canada and Canadian Association for Community Living, the Criminal Lawyers' Association (Ontario) and the Council of Canadians with Disabilities for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motions for leave to intervene by the Women's Legal Education and Action Fund and Disabled Women's Network Canada, the People First of Canada and Canadian Association for Community Living, the Criminal Lawyers' Association (Ontario) and the Council of Canadians with Disabilities are granted and the said four interveners shall be entitled to each serve and file a single factum not to exceed 10 pages in length on or before April 27, 2011. The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and respondent any additional disbursements occasioned to the appellant and respondent by their intervention Granted |
|
| 2011-04-04 | Submission of motion for leave to intervene, Ro | |
| 2011-03-15 | Notice of hearing sent to parties | |
| 2011-03-14 | Motion for leave to intervene, (bookform), Completed on: 2011-03-17 | Council of Canadians with Disabilities |
| 2011-03-14 | Motion for leave to intervene, (bookform), Completed on: 2011-03-17 | Criminal Lawyers' Association (Ontario) |
| 2011-03-11 | Intervener's book of authorities, (on Motion only), Completed on: 2011-03-11 | People First of Canada and Canadian Association for Community Living |
| 2011-03-11 | Motion for leave to intervene, (bookform), Completed on: 2011-03-17 | People First of Canada and Canadian Association for Community Living |
| 2011-03-11 | Motion for leave to intervene, (bookform), Completed on: 2011-03-17 | Women's Legal Education and Action Fund and Disabled Women's Network Canada |
| 2011-03-09 | Order on motion to extend time | |
| 2011-03-09 |
Decision on motion to extend time, Reg, to serve and file the appellant's book of authorities to Feb. 24/11 Granted |
|
| 2011-03-09 | Submission of motion to extend time, Reg | |
| 2011-03-09 |
Appeal hearing scheduled, 2011-05-17, (start time 9:30am) Judgment reserved |
|
| 2011-02-24 | Motion to extend time, to serve and file the appellant's book of authorities to Feb. 24/11, Completed on: 2011-02-24 | Her Majesty the Queen |
| 2011-02-24 | Appellant's book of authorities, New CD requested - Rec'd on March 15, 2011 (3 volumes), Completed on: 2011-03-16 | Her Majesty the Queen |
| 2011-02-15 | Correspondence received from, Jamie Klukach dated February 11, 2011. Re: Filing of a supplemental record | Her Majesty the Queen |
| 2011-02-14 | Appellant's factum, Completed on: 2011-02-14 | Her Majesty the Queen |
| 2011-02-14 | Supplemental document, Supplementary record, Completed on: 2011-02-14 | Her Majesty the Queen |
| 2010-12-24 | Appellant's record, (5 volumes), Completed on: 2010-12-24 | Her Majesty the Queen |
| 2010-11-19 | Notice of appeal, CD missing - rec'd Dec. 17/10, Completed on: 2010-12-17 | Her Majesty the Queen |
| 2010-11-09 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2010-10-29 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2010-10-29 | Judgment on leave sent to the parties | |
| 2010-10-28 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C48807, 2010 ONCA 133, dated February 19, 2010, is granted without costs. Granted, without costs |
|
| 2010-08-16 | All materials on application for leave submitted to the Judges, CJ Abe Cro | |
| 2010-05-18 | Respondent's response on the application for leave to appeal, Completed on: 2010-05-18 | D.A.I. |
| 2010-05-10 | Correspondence received from, H. L. Krongold dated May 10/10 re: advising he is still waiting for funding by Legal Aid Ontario and will file response and request an extension of time of 30 days (by fax) | D.A.I. |
| 2010-04-20 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2010-04-20 | Application for leave to appeal, Completed on: 2010-04-20 | Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| D.A.I. | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Women's Legal Education and Action Fund and Disabled Women's Network Canada | Intervener | Active |
| Criminal Lawyers' Association (Ontario) | Intervener | Active |
| Council of Canadians with Disabilities | Intervener | Active |
Counsel
Party: Her Majesty the Queen
Counsel
John Semenoff
720 Bay St
10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 326-4600
FAX: (416) 326-4656
Email: jamie.klukach@ontario.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: D.A.I.
Counsel
116 Lisgar Street, Suite 200
Ottawa, Ontario
K2P 0C2
Telephone: (613) 235-9779
FAX: (613) 235-8317
Email: krongold@wsgalaw.com
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: Women's Legal Education and Action Fund and Disabled Women's Network Canada
Counsel
703 - 60 St. Clair Ave. E
Toronto, Ontario
M4T 1N5
Telephone: (416) 595-7170 Ext: 223
FAX: (416) 595-7191
Email: j.birenbaum@leaf.ca
Agent
World Exchange Plaza
100 Queen Street, suite 1100
Ottawa, Ontario
K1P 1J9
Telephone: (613) 237-5160
FAX: (613) 230-8842
Email: neffendi@blg.com
Party: Criminal Lawyers' Association (Ontario)
Counsel
Erin Dann
100 -116 Simcoe St.
Toronto, Ontario
M5H 4E2
Telephone: (416) 868-1203 Ext: 223
FAX: (416) 868-0269
Email: jdiluca@dilucabarristers.ca
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: Council of Canadians with Disabilities
Counsel
Helga D. Van Iderstine
360 Main Street
30th Floor
Winnipeg, Manitoba
R3C 4G1
Telephone: (204) 957-4618
FAX: (204) 957-4276
Agent
43 Florence Street
Ottawa, Ontario
K2P 0W6
Telephone: (613) 237-4740
FAX: (613) 232-2680
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(PUBLICATION BAN ON PARTY)
Criminal law - Evidence - Witnesses - Competence - Testimony of developmentally disabled witness - Does a mentally challenged witness need to demonstrate an understanding of the obligation to testify truthfully before being permitted to testify under s. 16(3) of the Canada Evidence Act? - If s. 16(3) imposes this requirement, what is the standard for determining whether a witness understands the duty to speak the truth and how should it be applied? - Did the Court of Appeal err by failing to identify errors in the trial judge’s hearsay admissibility analysis, which resulted in the exclusion of the complainant’s out of court statement?
The accused was charged with sexually assaulting a 19 year old developmentally disabled woman with the cognitive capabilities of a three to six year old child. He had been cohabiting with the complainant’s mother, the complainant and her sister from 2000 to 2004. The complainant told her teacher about a “hugging” game that she played with the accused which resulted in the police being contacted. During her recorded interview with a police officer in 2005, she demonstrated that the game involved the touching of her breasts, genital area and buttocks underneath her pyjamas and stated that this happened “all the time”. At a preliminary inquiry in 2006, the complainant was found to be a competent witness under s. 16 of the Canada Evidence Act. The issue of her competence arose again at trial.
Lower court rulings
Ontario Superior Court of Justice
Complainant disqualified as a witness; Charges of sexual assault and sexual interference dismissed
Court of Appeal for Ontario
C48807, 2010 ONCA 133
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available