Exclusion of the Public and Appointment of Counsel: Tools to Help Victim Witnesses in Canada’s North

Susan McDonald and Lisa Ha

Testimonial aids can help a witness give a full and candid account of the alleged incident. The Criminal Code and the Canada Evidence Act contain numerous provisions on the use of testimonial aids Footnote 1 in the context of criminal justice proceedings, all of which recognize the concerns and the needs of victims who testify. Footnote 2 This study examined two of these provisions: an order for exclusion of the public and the appointment of counsel for self-represented accused for cross-examination of the victim.

Section 486 of the Criminal Code codifies the common law principle that all proceedings shall take place in open court, but it also permits the Crown to request and the judge or justice to order the exclusion of all public members or specific individuals from all or part of the proceedings to ensure the proper administration of justice. Subsection 486(2) was amended so that the “proper administration of justice” includes safeguarding the interests of witnesses under the age of 18 in all proceedings. Before this and other changes came into force and effect in January 2006, the section only referred to proceedings involving sexual offences or personal violence offences.

Other amendments to the testimonial aids provisions also came into force and effect in January 2006. Section 486.3 gives judges the authority to appoint counsel for self-represented accused persons for the purposes of preventing the accused from personally cross-examining children and vulnerable adult witnesses, unless doing so would interfere with the proper administration of justice. Now for example, under s. 486.3(4) there is a presumption that an order preventing in-person cross-examination of the complainant will be made in any case involving a charge of criminal harassment.

In April 2014, Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, introduced a number of amendments to the testimonial aids provisions in the Criminal Code. The amendments enumerate a non-exhaustive list of factors that a court shall take into consideration when determining whether an exclusion order is in the proper administration of justice.

This article summarizes a small study in which Crown prosecutors and victim services providers, primarily in the territories, were interviewed about how these provisions work in practice. Context, method and findings are described in the following sections.

The Northern Context – Demographics, Crime Rates and the Delivery of Victim Services

This study provides some insight to improve our understanding of how these two provisions are working in the territories; it was undertaken in the three territories because they share the characteristics of high levels of violent inter-personal crime, and small, isolated communities, many of which have no road access. To understand why and how these particular Criminal Code provisions are used in the territories, it is important to consider geographic and demographic context.

The Yukon Territory has a population of 36,402 (Census 2011), of which 23% is Aboriginal and 68% live in Whitehorse. The smallest community is Destruction Bay, with a population of 55 (Census 2011). Old Crow is the only fly-in community in the territory as all other communities have road access, although some of those roads are unpaved. The Northwest Territories (NWT) have a population of 43,523 (Census 2011), with 44% living in Yellowknife. Just over half (51%) of the population is Aboriginal. The territory of Nunavut covers 2,000,000 km2, 20 percent of Canada’s total land mass. The population is 33,697 people, 85% of whom are Inuit (Census 2011).There are 25 communities, including the capital, Iqaluit, and the majority of these are accessible by plane only.

In 2013, Nunavut had the highest violent crime rate in the country (8,659 incidents per 100,000 population), followed by the NWT (7,462 incidents) and the Yukon (4,112 incidents); in comparison, the general Canadian violent crime rate is1,092 incidents per 100,000 population. It is important to note that violent crime has decreased in the country overall over the past ten years. The violent crime rate decreased by 11% from 2012 in Nunavut and by 9% in the Northwest Territories; the Yukon is the only jurisdiction where the violent crime rate increased (by 2%) from 2012 (Boyce et al. 2014, Table 2b). According to the 2009 General Social Survey on Victimization, which complements police-reported data with self-reported victimization data, incidents of spousal violence and sexual offences were higher in the territories than in any of the provinces, and women and children made up the majority of victims in these cases (Perreault and Hotton Mahony 2012).

The federal government, through the Public Prosecution Service of Canada (PPSC), is responsible for all prosecutions in the territories and also for providing assistance to victims and witnesses through the Crown Witness Coordinator (CWC) program. Territorial governments also provide victim services, as do some non-governmental organizations. Most criminal justice proceedings are conducted through circuit court. Since few communities have permanent court structures, the community centre or other suitable room is transformed into a courtroom for the duration of the visit when all the circuit party – Crown, CWC, defence, justice, etc. – are flown into the communities.

A decade ago, Professor Jamie Cameron of Osgoode Hall Law School prepared a report for the Department of Justice entitled, Victim Privacy and the Open Court Principle (Cameron 2005).Beginning with the principle of open court, the author reviewed the case law on publication bans and exclusion orders, looking specifically at cases of sexual violence. Empirical research on both these Criminal Code provisions was undertaken in the Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada (Prairie Research Associates 2006). As Statistics Canada does not collect any victim- or witness-related information from the courts, we do not know how these particular provisions are used on a national scale.

Method

Semi-structured, qualitative telephone interviews with Crown Witness Coordinators (CWCs) and Crown prosecutors from the PPSC were conducted across the three territories. The interviews with the nine Crown prosecutors lasted approximately 30-40 minutes each. Eleven CWCs were interviewed in groups and one was interviewed individually. Questions on the use of orders for the exclusion of the public and appointment of counsel were posed by the responsible researcher, while another researcher took notes.

Additional interviews on the topic of appointment of counsel were conducted with seven victim services workers from two western and two eastern provinces. This approach was taken to highlight the differences that occur across the country, both within and between jurisdictions. Crown prosecutors were not interviewed in the provinces as they had recently been contacted to participate in a separate research project. Victim services workers interviewed were those with experience supporting victims through the courts.

A letter of information and consent was sent to participants in advance of the interview. The letter explained the purpose of the research, confidentiality, anonymity, risk and data issues. Participants gave their consent verbally at the beginning of the interview and asked no questions regarding the method or ethics of the research.

As with all qualitative research, the findings reflect the experiences and perceptions of those who were interviewed and should not be generalized to experiences of all Crown prosecutors or victim services in the territories.

Findings

I. Orders for Exclusion of the Public

There were four key findings on orders for exclusion of the public. 

All Crown and CWCs recognize the presumption of the common law principle of open court.

All Crown prosecutors and all CWCs recognized the importance of the common law principle of open court with its twin elements of access and publicity. One Crown noted that orders for publication bans and exclusion of the public may not be challenged to the same extent by media in the north as in the south, where the media continue to play a role in ensuring that the default is open court. Both the Crowns and CWCs recognized that an application for an order for the exclusion of the public needed to demonstrate that there was no other available alternative, such as other testimonial aids like the screen, to ensure the proper administration of justice.

Characteristics of cases and victims are very similar across the three territories.

As noted earlier, spousal and family violence and sexual offences are prevalent in the territories, and women and children make up the majority of victims in these cases. In interviews, Crown prosecutors most often considered an application for an order for exclusion of the public in cases of sexual violence and where there was a relationship between the accused and the victim. Crowns also noted that in small communities, the victim and accused will almost always know each other, even if they have no personal relationship, and that the facts of the alleged incidents are exceedingly personal, with privacy issues at play. There are rarely witnesses to these alleged incidents, so the credibility of the victim is under scrutiny. The CWCs spoke about the power imbalance between the accused and the victim and how intimidation by the accused or by supporters of the accused may make it difficult for the victim to provide a full and candid account of the incident.

There were a couple of examples of children and adult women who were unable to testify in front of the accused and others in the courtroom and ran from the witness stand. These cases all dealt with sexual violence, and testifying in public proved exceedingly difficult for the witnesses. While such instances are rare, they do occur despite the support provided by CWCs and Crown.

Applications for an order for exclusion of the public are rare across the three territories.

As noted earlier, Crown prosecutors were selected because of their experience with such applications, and all those interviewed noted that these applications are quite rare. For example, a Crown with 14 years of experience in the North had only made two applications. Several Crowns noted that they are reluctant to make the application unless they have exhausted all alternatives, such as the use of other testimonial aids like the screen, or where the case would be heard as late as possible in the day and most members of the public would have left. Several Crown prosecutors had also made applications which were denied by the judge; in these cases, judges were not convinced that there were no other alternatives to ordering the exclusion of the public.

The availability of alternatives, especially technology, as well as the remoteness and size of communities appears to be related to the use of exclusion orders.

The availability and use of technology appears to have an impact on the use of exclusion orders in each of the territories – where there are alternatives to orders for exclusion of the public, the courts will employ these first.

One alternative to an order for exclusion of the public is closed-circuit television (CCTV) or videoconferencing, where the victim/witness testifies from another room (sometimes even another building) and does not enter the courtroom. Unfortunately, CCTV is only available in the capital cities and the technology is not without its challenges.

Interviewees noted that, because of the delay of the audio, the quality of testimony by video conference is not ideal. This can have an adverse impact on how testimony is perceived by the judge or jury, so some Crowns indicated that they are reluctant to request it. Another disadvantage of videoconferencing and CCTV is that the Crown is usually in the room with the witness and so is not able to easily assess how the testimony is being received by the judge or jury. So, while technology provides alternatives to orders for exclusion of the public, the technology is often not available or if it is, there may be challenges with the quality of the testimony.

All CWCs across the three territories agreed that an exclusion of the public order does not address the issue of the witness being intimidated by the accused. In these cases, other testimonial aids, such as a screen or a support person, would be helpful.

Proceedings in the smaller communities may attract a great deal of attention, and it is common for large numbers of community members to attend a trial or other proceeding. Applications for orders for exclusion of the public were most frequently made in Nunavut where CCTV was not available (outside of the capital), where screens were not available (although makeshift screens such as bedding or flags are used), and where communities were quite small and remote. These applications, however, remain the exception and are only made where the circumstances and the lack of alternatives demand them.

II. Appointment of Counsel for Cross-Examination when the Accused Is Self-Represented

 Interviews with Territorial Crown and CWCs

Applications for appointment of counsel are not uncommon and are relatively straightforward.

In the NWT and Yukon, applications for appointment of counsel are not uncommon; in fact, a few interviewees reported dealing with them on a weekly or monthly basis. In contrast, the practice is rare in Nunavut, where an interviewee reported that all accused persons are presumed to be represented by legal services. Footnote 3

Most interviewees noted the applications they see are typically for domestic violence cases, assault cases or child victimizations. A few noted that the most serious cases usually do not involve self-represented accused, suggesting the accused is more likely to have counsel due to the complexity of cases (e.g. homicide) and the seriousness of potential sentences. A few interviewees discussed their perceptions as to why an accused might be self-represented, suggesting that many do so by choice or that mental health issues could be at play, or the accused may consider himself or herself “court savvy,” while others either did not qualify, or did not apply for legal aid.

Crown prosecutors typically initiate the application, which is generally put in place in advance. One Crown and a few CWCs noted they would flag the file early on if they saw that an application might need to be made. Interviewees indicated that for the most part the process goes fairly smoothly. A few interviewees noted that they have seen an accused fire counsel at the last minute, so in those situations there would have to be an adjournment to make the application and get counsel in place.

Applications are strongly supported by the courts.

All of the Crowns and CWCs who had experience with applications for appointment of counsel indicated that applications are always granted by the courts. None of those interviewed had ever seen an application denied. Interviewees noted the imbalance of power that results when an accused person cross-examines the person they are accused of victimizing. Interviewees highlighted how seriously this power imbalance is taken by judges, suggesting there is little deliberation involved in granting appointment of counsel applications. A few interviewees also noted that judges view appointment of counsel as an important tool to keep the courtroom running smoothly and to curtail the “vexatious behaviour” of self-represented litigants.

Challenges

While most Crowns and CWCs felt that applications were straightforward and rarely if ever denied, some interviewees highlighted challenges they have encountered or witnessed in the courts. The most common challenge mentioned concerned delays that result from applications for appointment of counsel – specifically, the time it takes to get appointed counsel in place. In some locations, getting counsel appointed is handled by legal aid, and elsewhere it is handled by the courts. Some interviewees identified challenges around appointing counsel who are not familiar with the case. This can create delays and interruptions in court when counsel and the accused need to have frequent discussions. A few interviewees also noted that there have been cases where an accused has fired several lawyers, which causes delays due to the need to obtain new counsel. One interviewee pointed out that, in the North, it could be particularly difficult to find additional counsel when the accused has previously fired several of them.

One interviewee also commented on inconsistencies around the role of appointed counsel, indicating that some are just in and out for cross-examination while others spend time in court to get up-to-speed and prepared.

Impact of appointment of counsel on the victim/witness

When asked to discuss the perceived impact that appointment of counsel has on a victim/witness, all interviewees said that it was positive; many used language such as “it is essential.” Two main aspects were discussed: first, the psychological impact on the victim/witness; and second, the impact on the testimony or on the ability of the victim/witness to provide a full and candid account on the stand.

A few interviewees discussed the palpable relief they see in victims/witnesses when informing them the application has been granted. It was also noted that judges consider allowing the accused to cross-examine the victim/witness to be a continuation of the abuse or a form of re-victimization. A few interviewees pointed out that while appointment of counsel does have a positive impact on victims/witnesses, the reality is that they still have to testify in court. The interviewees noted that just having to attend court is a difficult process and seeing the self-represented accused “in charge of the case” in all other aspects can also be challenging and stressful.

With regard to the impact on testimony, many interviewees suggested the witness would refuse to testify knowing that the accused would be permitted to cross-examine them. Others pointed out that having the accused cross-examine a witness would very likely influence the testimony provided.

Interviews with Provincial Victim Services Providers

The findings that emerged from interviews with victim services workers in several provinces were slightly different, due at least in part to the different social and geographical contexts, as well as the different role and perspectives of victim services workers.

Victim services experiences with applications for appointment of counsel

Victim services workers interviewed did not have significant experience with cases where applications were made to have counsel appointed. Those who had some experience noted that the applications are typically sorted out well in advance. Similar to the findings from the interviews in the North, no one had ever seen an application denied. One victim services worker recalled a case of a teenage victim of sexual abuse who would have had to wait for a new trial date if an application for appointment of counsel had been made. In this instance, after much discussion, the witness decided to move forward with the self-represented accused, rather than wait. One interviewee recounted experiences working in the courts prior to being a victim services worker and noted that court-appointed counsel were very common, particularly for domestic violence cases, sexual assaults, and child/youth victim/witnesses.

Minimal Victim Services involvement

Victim services workers interviewed indicated that applications for appointment of counsel were typically handled exclusively by the Crown prosecutor. While a few interviewees noted they had made contact with the Crown in cases where it was evident that the accused would be self-represented, for the most part the victim services workers have no involvement in identifying cases where an application would be appropriate. It was evident in these discussions that in some provinces victim services have little contact with the Crown, so it would be difficult for them to have access to the information that would allow them to flag cases. A few of the interviewees noted that they did have full access to Crown files, and would flag cases if necessary, but indicated that the Crown is typically good about doing so. Others noted that the Crown are “on it” when the need for an application arises, and that it would be rare for a matter to get to trial without representation. One interviewee stated, “We might have to advocate on some of the other testimonial aids, but never on the applications for counsel.”

Importance of Crown and victim services communication

There are varying levels of interaction and information-sharing between Crown and victim services workers across jurisdictions. While a few interviewees noted that they would not typically have a role in identifying cases for appointment of counsel, one victim service worker in particular highlighted the challenges that emerge from lack of communication. This interviewee mentioned being involved in several cases where an accused had cross-examined a vulnerable adult victim and the Crown – for an unknown reason – had made no application for appointment of counsel. The lack of access to information meant that the victim services worker would not know about representation until arriving in court that day. This interviewee felt that better communication and more contact between victim services and Crown across this particular province would be beneficial in order to better support victim needs.

Impact of appointment of counsel on the victim/witness

Similar to the Crown and CWCs interviewed in the North, victim services workers in the provinces echoed the importance of appointment of counsel when the accused is self-represented. Interviewees talked about re-victimization, which can happen if the accused cross-examines the victim, as questions asked may be unfair and inappropriate. Interviewees also noted that victims show relief when they are informed that an application has been granted. One victim services worker recounted a case where an accused was permitted to cross-examine his spouse (why no application for appointment of counsel was made is not known), and the accused brought up details during cross-examination that were irrelevant to the case. The interviewee noted that the stress and anxiety for the victim was extremely high. Another interviewee recounted examples of domestic violence cases where the accused and witness ended up yelling at each other during self-represented cross-examination, noting how difficult it was to watch, as though the cross-examination was a continuation of the abuse. With regard to the impact on testimony in these cases, interviewees agreed that a full and candid account is difficult to achieve. An interviewee noted that testimony often ends up being “well, you know what you did.” Another interviewee noted that witnesses may recant testimony or leave full details out if subjected to cross-examination by an accused.

Conclusion

In the mid-1990s, in the case of R. v. Bernardo, LeSage, Associate Chief Justice of the Ontario Court, observed that “[d]uring recent years, there has been a gradual shift, or evolution ... to a recognition of the concerns, interests and involvement of the individual who has suffered as a result of crime.” Footnote 4 The provisions in the Criminal Code that allow for orders for the exclusion of the public and for the appointment of counsel for self-represented accused during cross-examination of the victim/witness are evidence of that shift or evolution. The court has a truth-seeking function, and it is critical to obtain the best evidence possible from all witnesses. Testimonial aids are valuable tools for victims who testify in criminal proceedings, and the Criminal Code provides different options depending upon the specific needs of the victim/witness and the specific context for the proceedings.

All those interviewed were fully aware of the importance of obtaining a “full and candid account” from the victim/witness and the many challenges that may impede this goal. The research described in this article provides a small picture of how these provisions work, in conjunction with other testimonial aids, in the communities of the territories.

In each of the territories, there are plans to improve the technology in the courts and to increase access to testimonial aids such as screens. Footnote 5 Ideally, there would be screens permanently in all communities with a permanent court facility and portable screens for other communities.

Challenges remain for prosecutions in the North, but the Crown prosecutors, CWCs and provincial victim services interviewed show a very high level of awareness of the importance of both the open court principle and the needs of victim/witnesses.

Acknowledgements

The authors would like to thank Naomi-Giff MacKinnon of the Department of Justice Canada and Joanne Power and Richard Meredith of the Public Prosecution Service of Canada for their assistance with this project. Additionally, the authors would like to thank those Crown prosecutors and Crown witness coordinators in the Yukon, Northwest Territories and Nunavut who were interviewed for this study.

References

Susan McDonald, LLB, PhD, is Principal Researcher with the Research and Statistics Division, Department of Justice Canada, in Ottawa. She is responsible for victims of crime research in the Department and has extensive research experience on a range of victim issues.

Lisa Ha is a senior researcher with the Research and Statistics Division, Department of Justice Canada, in Ottawa.