Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada
4. Findings From Criminal Justice Professionals (continued)
4. Findings From Criminal Justice Professionals (continued)
4.5 Bail Determinations
The 1999 amendments to the Criminal Code include several provisions to protect the safety of victims of crime in bail determinations. The provisions direct police officers, judges, and justices of the peace to consider the safety and security of the victim in decisions to release the accused pending the first court appearance; require judges to consider no-contact conditions and any other conditions necessary to ensure the safety and security of the victim; and ensure that the particular concerns of the victim are considered and highlighted in decisions on the imposition of special bail conditions. This section describes police, Crown Attorney, defence counsel, and judicial practices with respect to victim protection in bail determinations, and discusses the extent to which victim services providers and advocacy groups believe that victim safety is considered at bail.
4.5.1 Police, Crown Attorney, Defence Counsel, and Judicial Practices at Bail
Police who were interviewed were unanimous in stating that considering victim safety is an essential responsibility for police immediately following an arrest and at the point of any release proceedings. The larger group of police surveyed in this research reported using a variety of methods to ensure that victims' safety concerns are considered at bail hearings. Over one-third reported preparing a written submission with recommendations for specific bail conditions following a thorough investigation and/or an objective assessment of risk (35%); others simply said that they consult with and pass information on to the Crown Attorney for consideration (21%). Some police attend bail hearings to speak on behalf of the victim or even encourage the victim to attend (15%), while still others said that they consult with the victim and obtain their statement (13%). A small proportion indicated opposing release outright when the victim's safety is at risk.
In interviews, several police cautioned that while it is important to listen to victims' concerns, police must remain objective in their determination of the level of risk to the victim. They pointed out that emotion could lead victims to make exaggerated claims and overestimate the risk posed by the accused. Police must therefore exercise judgment when reporting or making recommendations to the Crown Attorney. Several police also pointed out that in some cases (particularly domestic violence), victims underestimate the risk posed by the accused and will disagree with police requests for conditions such as no-contact orders. These interviewees noted that these are cases in which they will not necessarily promote the wishes of the victim.
Although Crown Attorneys who completed a self-administered survey were not asked the question, those who were interviewed said that they become aware of victims' safety concerns in bail determinations primarily through the police report. They noted that the police report usually comes to them with the victims' safety concerns identified as well as recommendations for conditions; in some jurisdictions, police complete a standardized bail report for certain types of cases (e.g., domestic violence) in which they must include information about safety concerns and conditions. A few of the Crown Attorneys interviewed mentioned that they speak directly with victims about safety if they believe that the issue is not adequately addressed in the police report.
A large majority of the Crown Attorneys surveyed (89%) reported generally not calling the victim as a witness in bail hearings. Of those Crown Attorneys who do not call the victim as a witness, 43% said that it is usually unnecessary for the witness to testify at this point in the proceedings, and that police and Crown Attorney submissions are usually sufficient to relay the relevant safety issues to the court. More than one-fifth (22%) observed that calling the victim to testify at bail gives defence counsel the opportunity to intimidate the victim at an early stage in the proceedings and to ask questions with a view to later cross-examination. Other reasons for not calling the victim as a witness included high caseloads and insufficient time; the possibility of further trauma to the victim; the potential for inconsistent statements; and unwillingness or lack of availability of the victim. The full list of reasons given by Crown Attorneys for not calling the victim as a witness in bail hearings is shown in Table 57.
| Reason: | Crown Attorneys (n=167) |
|---|---|
| Usually unnecessary or police reports are sufficient | 43% |
| Creates opportunity for defence cross-examination | 22% |
| High caseload or insufficient time | 16% |
| Creates possibility of further trauma to the victim | 15% |
| Creates potential for inconsistent statements | 9% |
| Victim unavailable or unwilling | 7% |
| Other | 2% |
| No response | 19% |
Note: Respondents could provide more than one response; total sums to more than 100%.
Virtually all Crown Attorneys surveyed (97%) reported that they generally request specific conditions to address the victim's safety in bail determinations, and almost as many of the defence counsel surveyed (95%) usually agree to such requests. In interviews, defence counsel observed that they have no reason to object to reasonable conditions. They defined conditions as reasonable if there is a nexus between the conditions requested, the victim, and the crime, and if the conditions are not too restrictive on their client. Examples given of unreasonable conditions included orders not to attend the residence when the accused works out of the home or not to attend the victim's workplace when the accused also works there. Defence counsel also noted that the accused can benefit from properly framed conditions, not only because conditions improve the chance that the accused will be released on bail, but also because conditions can ensure that there is no repeat offence.
In interviews, defence counsel commented extensively on bail determinations in domestic violence cases. In these cases, counsel said that the determination of reasonable conditions is more difficult. Many noted that the application of blanket no contact orders are often detrimental to both their client and the victim. Often the victim wants the accused home because of financial, emotional, or family reasons. Especially if children are involved, defence counsel find that no contact orders harm the family unit and almost ensure that their client will violate the order.
Virtually all Crown Attorneys and defence counsel surveyed in this research (98% and 97%, respectively) reported that judges typically grant requests for conditions to address the victim's safety in bail determinations. In interviews, Crown Attorneys and defence counsel said that judges are almost invariably amenable to requests for bail conditions, provided they are reasonable and designed to address specific concerns. Quantitative results from the survey of judges bore this out: 95% of judges surveyed said that they generally place conditions on the accused for the safety of the victim in bail determinations. In interviews, judges observed that certain conditions, such as no contact, are applied almost as a matter of course.
According to judges interviewed, possible ways of ensuring that the judiciary is better informed about safety issues include increased prosecutorial resources to enable Crown Attorneys to devote more time to victims prior to bail hearings; increased number of victim support workers to obtain information from victims about their safety concerns; and the presence of a victim advocate at bail hearings to state the victim's position and safety concerns.
More than three-quarters of all judges surveyed consider themselves informed of safety issues in most bail hearings. However, in interviews, several judges said they are not as well informed as they could be, particularly in cases of domestic violence (although others said that safety issues were especially well covered in domestic violence cases).
According to judges interviewed, possible ways of ensuring that the judiciary is better informed about safety issues include increased prosecutorial resources to enable Crown Attorneys to devote more time to victims prior to bail hearings; increased number of victim support workers to obtain information from victims about their safety concerns; and the presence of a victim advocate at bail hearings to state the victim's position and safety concerns. More than three-quarters of judges surveyed ask about safety issues if the Crown Attorney has not mentioned them. However, judges observed in interviews that this is rarely necessary because the Crown Attorney is very diligent about bringing these issues to the attention of the court.
4.5.2 Consideration of Victim Safety at Bail
Despite the results from the surveys and interviews with criminal justice professionals, which suggest that these professionals are concerned about protection of the victim at bail, about 30% of victim services providers and one-quarter of advocacy groups surveyed believe that the victim's safety is generally considered in decisions about bail and conditions of release. Although several victim services providers acknowledged in interviews that there has been substantial evolution in this regard and that police and Crown Attorneys are very sensitive to safety issues, the larger group of those surveyed identified numerous obstacles to the consideration of victim safety, as shown in Table 58.
| Obstacles: | Victim Services (n=163) | Advocacy Groups (n=31) |
|---|---|---|
| Victim's concerns not taken seriously by Crown Attorneys or court | 24% | -- |
| Rights of accused take precedence over victim's rights | 16% | 13% |
| Lack of knowledge or understanding of domestic violence and abuse | 15% | 23% |
| Inadequate assessment of risk by court | 12% | 19% |
| Breaches of conditions not taken seriously | 13% | -- |
| Failure to notify victims about release or conditions on release | 9% | -- |
| Victim not adequately consulted or unwilling to participate | 8% | 16% |
| Victim has inadequate resources (financial, shelter) | 3% | -- |
| Other | 12% | 16% |
| No response | 14% | 19% |
Note: Respondents could provide more than one response; totals sum to more than 100%. This question was open-ended.
Although about one-quarter of victim services providers surveyed simply observed that the Crown Attorney and the court do not take the victim's concerns seriously, others identified more specific impediments to the consideration of victim safety. For example, 16% observed that the rights of the accused take precedence over victims' safety concerns at bail determinations. In interviews, they expanded on this idea, explaining that in their view, the presumption of innocence discourages judges from locking up accused persons. A few victim services providers also said in interviews that overcrowding in jails and a lack of resources for keeping people in jail leads judges to release the accused rather than remanding them into custody.
Another frequently mentioned obstacle is an ongoing lack of understanding of domestic violence and the dynamics of partner abuse on the part of the Crown Attorneys and the judiciary (this obstacle was mentioned by 15% of victim services providers). In interviews, several victim services providers said that domestic violence and spousal abuse continue to be perceived as less serious offences. This problem is exacerbated by the fact that in these cases, the victim is often reluctant to come forward with safety concerns due to intimidation from the accused or the family of the accused. Consequently, the court underestimates the actual risk to the victim that could result from the release of the accused. Furthermore, 12% of victim services providers surveyed consider the inadequate assessment of risk to be a more general problem affecting other types of cases.
Finally, a small proportion of victim services providers surveyed (9%) commented on the conditions imposed on the accused and their enforcement. They argued that in many cases, bail conditions are not respected and there are no repercussions for the accused. According to these victim services providers, there is little or no police protection against breaches of conditions. Please see Table 58 above for other perceived obstacles.
4.5.3 Victim Notification of Bail Decisions
Victim services providers who participated in interviews were asked to comment on difficulties in notifying victims of bail decisions. Common issues include identifying and contacting victims in time for bail hearings, which take place very shortly after the arrest of the accused, and reaching victims who are transient (i.e., those who move frequently and whose addresses and phone numbers change). Other issues include lack of consistency and persistence on the part of the police and the Crown Attorneys in locating victims and informing them about bail decisions, and difficulties that they, as victim services providers, experience in obtaining information about bail from Crown Attorneys and police.[25] According to a few victim services providers, other difficulties include a lack of human and financial resources, and federal privacy legislation that restricts the information that can be shared with victim services.[26]Victim services providers who believe that there are no difficulties in notifying victims of bail decisions indicated that there is a protocol in place in their communities regarding victim notification of bail decisions, or explained that they always ensure that victims receive information on bail decisions and conditions.
- [25] As previously reported, approximately two-thirds of police surveyed said that they generally inform victims about outcomes of bail decisions. Moreover, most Crown Attorneys and police assessed the information provided to victims about outcomes of bail decisions and conditions of release as "adequate." However, victim services providers and advocacy groups tended to disagree. Please refer to Table 50 for the details.
- [26] As discussed in a previous footnote, federal privacy legislation is applicable only to the RCMP, not to other police forces
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