Victims of Crime Research Digest, Issue No. 2, 2009

Facilitating Testimony for Child Victims and Witnesses

By Melissa Northcott, Research Assistant, Research and Statistics Division

Background

We know that child and youth witnesses face a number of obstacles when asked to testify in court, including complex questions that are likely beyond the child's cognitive developmental stage (Sas 2002). These barriers increase the anxiety that children face and may cause further trauma. As a result, legislative amendments in Canada over the years have sought to minimize this anxiety and to alleviate some of the difficulty that children face when providing testimony.

On January 1, 2006, a number of amendments to the Criminal Code came into effect as a result of Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. This bill expanded upon already existing legislation that was passed in 1988 (Bill C-15, An Act to amend the Criminal Code of Canada and the Canada Evidence Act), regarding the testimony given by children and vulnerable adults. Prior to these most recent amendments, testimonials aids, which make it easier for vulnerable witnesses to provide their testimony, were ordered on a discretionary basis. The 2006 amendments made the use of the aids mandatory upon application in any criminal proceeding for persons under 18 years of age unless they would interfere with the proper administration of justice. Testimonial aids include closed-circuit television (CCTV), witness screens, a support person who may be present during the delivering of testimony, and the appointment of a lawyer to conduct the cross-examination of a witnesses when the accused is self-represented. Other Criminal Code provisions which assist vulnerable witnesses allow the judge to exclude the public from the courtroom, impose a ban on publication of identifying information, and allow the use of video recorded evidence.

In addition, changes were made to Section 16.1 of the Canada Evidence Act to create a presumption that children under the age of 14 have the capacity to testify and to allow children's evidence to be given on a promise to tell the truth. Previously, child witnesses under the age of fourteen were subjected to a mandatory two-part inquiry into their competency and their understanding of an oath before being permitted to testify. The court may now only conduct an inquiry into a child witness's ability to testify when it has been established that there is an issue regarding the child's ability to understand and respond to questions.

In Canada, and indeed internationally, there is a body of literature that examines children as witnesses in the criminal justice system (see Bala et al. 2008; Burton et al. 2006 and 2007; Sas 2002; Verdun-Jones 2008). As well, the impact of Bill C-15 on the facilitation of children's testimony has been assessed (Bala et al. 2001). In 2001, Boost Child Abuse Prevention and Intervention (formerly the Toronto Child Abuse Centre) conducted a court observation study to determine the influences of Bill C-15 on the testimony of children in cases heard in Toronto's Old City Hall's “J-Court,” a child friendly courtroom.[1] The study found that although testifying in court remained a difficult task for the children in the study, the children fared well with the aids provided by Bill C-15 (see Boost 2001).

In order to better understand how the 2006 amendments are working, research that replicates the 2001 Boost study was initiated in 2006 by the Department of Justice Canada. In first issue of the Victims of Crime Research Digest, Pearl Rimer and Barb McIntyre describe the unanticipated benefits of the collaborative methodology used to collect data on children's experiences testifying in court (2008, 28-32). Data collection for the project in Toronto and a similar project in Edmonton has now been completed. This article will provide the preliminary results for both sites.

Methodology

Building on the methodology used for the 2001 Boost study, the original coding manual was adapted to reflect the changes brought about in 2006. For example, in 2006, witness screens and CCTV became available to any witness under the age of 18, regardless of the type of offence involved. Previously these testimonial aids were available to young witnesses in proceedings involving certain violent and sexual offences. The 2006 amendments also made support persons available to any witness under the age of 18, in any proceeding. Previously, support persons were available to witnesses under the age of 14 in proceedings involving certain violent and sexual offences. Toronto and Edmonton were chosen as the sites because both have extensive support programs for children who are testifying, Boost and the Zebra Centre respectively. For Toronto, it will also mean that data will be available from before the 2006 amendments and after.

Volunteers were recruited through several routes, including community and college programs, a flyer distributed to Pro Bono Law, postings on the Charity Village website, and Boost and Zebra agency and personal contacts. The volunteers were trained by program leaders at Boost and Zebra to observe and record information on children's experiences testifying in court (see Rimer and McIntyre 2008).

For the purposes of this study, preliminary hearings and trials were counted as separate units. This was because a child could have two different experiences testifying – at the preliminary hearing and at the trial. For example, preliminary hearings and trials could occur months apart; there may be different court personnel present at the two proceedings; and the child's capability to cope with the events may differ from day to day. Further, in order to account for instances where a case included a preliminary hearing and a trial, as well as cases with multiple witnesses, a distinct, case-based dataset was created to examine factors specific to each individual case. A distinct, testimony-based dataset was also created to examine factors specific to each child's experience testifying. The sample size will vary depending upon the variables being examined.

In Edmonton, a total of 66 observations of a child or youth under 18 testifying, which included both preliminary hearings and trials, were completed for a total of 57 unique cases before the court. The cases were observed between June 2006 and April 2008 in the child-friendly courtrooms. In Toronto, there were 96 observations, which included preliminary hearings and trials, during which a child or youth under 18 testified, for a total of 67 unique cases before the court.[2] Cases were heard in the seven Toronto court houses, three of which include child friendly courtrooms, between June 2006 and April 2008.

Edmonton Results

Accused and Child Characteristics

The age range of children who testified was between 5 to 18 years, with a median age of 12. The majority of the children were female (85%). All of the accused were male and 9% of the accused were youth (between 12 and 17 years).

As shown in Table 1, in cases of alleged crimes against the person,[3] 83% of the charges were against a biological family member of the child, while the remaining 17% were against a non-biological family member. In cases involving alleged sexual offences,[4] 31% of the charges were against a family member, while 27% of the charges were against a non-biological family member.

Table 1: Accused's Relationship to Child in Cases of Crimes against the Person and Sexual Offences, Edmonton, 2006-2008
Accused's relationship to child Crimes against the person Sexual offences Total
N % N % N %
Family (biological) 5 83 18 31 23 35
Family (non-biological) 1 17 16 27 17 27
Professionals 0 0 0 0 0 0
Stranger 0 0 2 3 2 3
Other* 0 0 23 39 23 35
Total 6 100 59 100 65 100

N Missing = 1

Source: Original data collected by Zebra Centre, 2006-2008

*“Other” includes a babysitter, a friend of the family, a peer, and all cases selected as “other” by the coder

Court Characteristics

Three quarters of all preliminary hearings and trials were heard in Provincial Court (75%), while the remaining cases were heard in the Court of the Queen's Bench. More than 90% of the trials were heard in a child-friendly court at the Provincial or Queen's Bench Court level. The remaining trials were heard in Youth, Family or another court.

Testimonial Aids

The most common testimonial aid involved the use of a support person escorting the child to the witness stand (91%) and remaining with the child at the stand (85% of cases). A support person was requested for 88% of the children and ordered by the judge 86% of the time. Other common testimonial aids included the use of a witness screen (85%), the ordering of a publication ban (78%), and the use of a voice amplifier (77%). The use of CCTV was implemented in 25% of the cases.

Characteristics of Child Witness Experience

The average amount of time children in Edmonton spent testifying was 127 minutes,[5] with the majority of children spending between 61 to 90 minutes testifying. With regard to specific examinations, children spent the most amount of time testifying during the examination-in-chief (73 minutes), followed by 49 minutes in the cross-examination.

There was no difference between the age groups with regard to likelihood of being re-examined, nor was there a difference in duration of the re-examination between the age groups. Of note is that inquiries of the child's ability to testify for children under the age of 14 were conducted in 48% of the cases, and the defence counsel raised issue with the child's ability to testify in only 7 of these cases (22%). As noted earlier, the 2006 changes to the Canada Evidence Act limit inquiries into a child witness's capacity to testify to those cases where an issue regarding the child's ability to understand and respond to questions is established. As such, the high number of inquiries which continue to occur warrants further investigation.

Child Conduct on Stand

During the examination-in-chief, 88% of the children were observed to be calm and composed, 39% asked for an explanation of the questions asked by the judge, defence, and prosecution, and 21% were asked to speak louder. Children were observed crying in 15% of the cases, and 3% were subjected to language beyond their development.[6]

During the presentation of video evidence, 79% of the children were observed to be paying attention to the video, 76% appeared to be calm and composed, and 12% were observed crying.

Finally, during the cross-examination, 80% of the children were observed to be calm and composed and almost half asked for an explanation of a question. More than one quarter of the children were subjected to language beyond their development, 20% of the children were asked to speak louder, and 17% were observed crying.

Characteristics of Charges

In the cases involving children testifying, the most serious charges were sexual offences (n=50), followed by crimes against the person (n=6) and other offences[7] (n=1). The child was female in 84% of the cases where sexual offence charges were laid and in 50% of the cases where crimes against the person charges were laid. In instances of sexual offences, the count of charges laid against the accused ranged from 1 to 12, with the median number of charges laid at 2. In instances of charges against the person, the count of charges laid against the accused ranged from 1 to 9, with the median number of charges laid being 1.

As Table 2 indicates, 30% of the cases where the outcome was known resulted in a conviction and an additional 12% resulted in guilty pleas, while 24% of the cases resulted in an acquittal.[8] It is also of interest to note that 17% of the trials resulted in an absolute discharge.

Table 2: Case Outcomes, Edmonton, 2006-2008
Outcomes Preliminary Hearing % Trial % Total %
Conviction* 0 0 12 42 12 30
Guilty plea 4 33 1 3 5 12
Charges withdrawn 1 8 1 3 2 5
Acquittal 2 17 8 28 10 24
Stay of charges 5 42 0 0 5 12
Absolute discharge 0 0 7 24 7 17
Total 12 100 29 100 41 100

N Missing = 16

Source: Original data collected by Zebra Centre, 2006-2008

* A peace bond was entered at trial for one conviction.

Toronto Results

Accused and Child Characteristics

In Toronto, the age range of children who testified was 6-18 years, with a median age of 13. The majority of the children who testified were female (61%). Among the accused, 96% were male and 1% were youth (between 12 and 17 years).

As shown in Table 3, in cases of crimes against the person, 30% of the charges were against a biological family member and 7% were against a non-biological family member. In cases involving alleged sexual offences, 21% of the charges were against a biological family member, while 16% of the charges were against a non-biological family member.

Table 3: Accused's Relationship to Child in Cases of Crimes against the Person and Sexual Offences, Toronto, 2006-2008
Accused's relationship to child Crimes against the person Sexual offences Total
N % N % N %
Family (biological) 8 30 13 21 21 23
Family (non-biological) 2 7 10 16 12 13
Professionals 14 52 4 6 18 20
Stranger 3 11 6 10 9 10
Other* 0 0 31 48 31 34
Total 27 100 64 100 91 100

N Missing = 5

Source: Original data collected by Boost Centre, 2006-2008

* “Other” includes a babysitter, a friend of the family, a peer, and all cases selected as “other” by the coder.

Court Characteristics

Of the preliminary hearings and trials observed in the 67 cases involving children testifying, 87% were heard in Ontario Courts of Justice, 11% in Superior Courts, and 2% in Youth Courts. In Toronto, there are three child-friendly courtrooms: at the Etobicoke, Scarborough, and Old City Hall (J-Court) court houses; 30% of the trials were heard in these child-friendly courtrooms.

Testimonial Aids

The most common testimonial aid used involved the exclusion of witnesses (91%). Other common testimonial aids implemented included the ordering of a publication ban (70%), the use of a voice amplifier (65%), and the use of a witness screen (40%). The use of CCTV was implemented for 24% of the children. A support person was requested for 64% of the children and ordered by the judge 54% of the time.

Characteristics of Child Witness Experience

The average amount of time children in Toronto spent testifying was 146 minutes,[9] with the majority of children spending between 90 to 120 minutes testifying. With regard to specific examinations, children spent the most amount of time testifying during the cross-examination (83 minutes), followed by the examination-in-chief (40 minutes).

There was no difference between the age groups with regard to likelihood of being re-examined, nor was there a difference in duration of the re-examination between the age groups. Inquiries of the child's ability to testify for children under the age of 14 were conducted in 17% of the cases. The defence counsel raised issue with the child's ability to testify in only 1 of these cases (2%).

Child Conduct on Stand

During the examination-in-chief, 75% of the children were observed to be calm and composed, 41% were asked to speak louder, and more than 29% asked for an explanation of the questions. Children were subjected to language beyond their development in 13% of the cases, and 9% were observed crying.

During the presentation of video evidence, 60% of the children were observed to be paying attention to the video and the same number appeared to be calm and composed. Children appeared to be restless in 38% of the cases, and 7% were observed crying.

Finally, during the cross-examination, 82% of the children were observed to be calm and composed, 55% asked for an explanation of the questions, and 44% were asked to speak louder. Children were subjected to language beyond their development in 28% of the cases, and 18% were observed crying.

Characteristics of Charges

Among children who testified, the most serious charges were sexual offences (n=48), followed by crimes against the person (n=18) and administration of justice offences[10] (n=1). The child was female in 83% of the cases where sexual offence charges were laid, while the child was male in 67% of the cases where crimes against the person charges were laid. In instances of sexual offences, the count of charges laid against the accused ranged from 1 to 30, with the median number of charges laid at 3. In instances of crimes against the person offences, the number of charges laid against the accused ranged from 1 to 18, with the median number of charges laid at 2.

As Table 4 indicates, 41% of the cases where the outcome is known resulted in a conviction and 9% resulted in guilty pleas, while 18% of cases resulted in an acquittal.[11] It is interesting to note that 18% of the trials resulted in an absolute discharge.

Table 4: Case outcomes when children testified
Outcomes Preliminary Hearing % Trial % Total %
Conviction 0 0 21 54 21 41
Guilty plea 4 33 1 3 5 9
Charges withdrawn 5 42 2 5 7 14
Acquittal 2 17 7 18 9 18
Dismissed/Absolute discharge 1 8 8 20 9 18
Total 12 100 39 100 51 100

N Missing = 16

Source: Original data collected by Boost Centre, 2006-2008

Conclusion

Given the number of missing values in some cases, the preceding analyses must be interpreted with some caution and the results cannot be generalized to all children and youth under 18 who testify in a Canadian criminal proceeding. Despite these limitations, these data offer some valuable insight into the experiences of child witnesses providing testimony.

Interestingly, the use of the 2006 provisions appears to be more widely used in Edmonton than in Toronto for certain aids, such as the use of screens and support persons. There were a number of factors that were beyond the control of the study, such as different programs, number of courts, personnel, access to testimonial aids, higher case loads and delays, different processing times. The differences may therefore be attributed to the larger number of courthouses in Toronto, not all of which are child-friendly, and to the greater number of different criminal justice professionals involved in the cases.

Children in both cities appeared to have similar experiences when on the witness stand, with the majority having been observed to be calm and composed during their testimonies. Nevertheless, there were many children who were observed to be restless and who were asked questions that were beyond their language acquisition, particularly by the defence. This is likely a consequence of the adversarial nature of the defence's role and of the fewer opportunities defence counsel may have had for training and awareness on working with child and youth victim/witnesses.

These findings suggest that although many children and youth are coping well with the experience of testifying, there were some children and youth who displayed behaviour indicating some unease (e.g., crying). This is understandable given the difficult nature of the testimony the child or youth is asked to provide. Further analyses will be conducted in order to determine how the amendments to the testimonial aids provisions are impacting the experiences of child and youth witnesses.

References