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)

4.6 Provisions to Facilitate Testimony

Recognizing that testifying in court can be especially traumatizing for young victims or those with disabilities or victims of sexual or violent offences, the 1999 amendments to the Criminal Code included several provisions to facilitate testimony on the part of such witnesses. Publication bans on the identity of sexual assault victims have been clarified to protect their identity as victims of sexual assault offences as well other offences committed against them by the accused. The new provisions also permit judges to impose publication bans on the identity of a wider range of witnesses, where the witness has established a need and where the judge considers it necessary for the proper administration of justice. Other amendments restrict cross-examination by a self-represented accused of child victims of sexual or violent crime; and permit victims or witnesses with a mental or physical disability to have a support person present while testifying. The following sections describe the use of these provisions and other testimonial aids such as screens, closed-circuit television, and videotape.

4.6.1 Publication Bans

The 1999 amendments clarified that publication bans on the identity of sexual assault victims protect their identity as victims of other offences committed against them by the accused. For example, if the victim is robbed and sexually assaulted, her identity as a victim of robbery could not be disclosed. In addition, the amendments provided for a discretionary publication ban for any victim or witness where necessary for the proper administration of justice.

Both Crown Attorneys and defence counsel explained in interviews that while publication bans are essentially automatic at the preliminary hearing, requests for a ban in later stages in non-sexual offences are extremely rare and are only made when there is an extremely compelling reason to do so. In interviews, Crown Attorneys and defence counsel gave several examples of instances where publication bans are most likely to be granted. Crown Attorneys mentioned child abuse cases, robberies, certain homicides, and extortion cases where the facts are sensitive, as well as cases where there are several accused having separate trials, and serious cases being tried before a jury. Defence counsel cited cases involving minors, high profile cases where the ban helps ensure a fair trial (more likely a defence counsel request), or when the requests meet the conditions and requirements of the Criminal Code, i.e. to protect the identity of a victim or witness in sexual offence proceedings or in accordance with other provisions of the Code requiring publication bans, such as bail, preliminary inquiries, or voir dires.

Among Crown Attorneys surveyed, one-third reported generally requesting publication bans in appropriate cases other than sexual offences. Of the remaining two-thirds who do not, 42% said that such bans are normally not necessary, while another 17% do not often request bans because they believe that court proceedings are, and should remain, open to public scrutiny.

Defence counsel surveyed are evenly split between those who usually agree to requests for publication bans in non-sexual offences and those who object (47% and 48%, respectively). Two-thirds of those who object argued that publication bans violate the principle of an open court system. In interviews, those who generally agree to the requests most often explained that publication bans benefit the accused. A few defence counsel indicated in interviews that they would agree to publication bans in non-sexual offences involving children or in cases with police informants as witnesses.

TABLE 59: USE OF PUBLICATION BANS ON NON-SEXUAL OFFENCES
  Crown Attorneys (N=188) Defence Counsel (N=185)
Do you generally request publication bans in non-sexual offences? Do you generally agree to publication bans in non-sexual offences?
Yes 32% 47%
No 67% 48%
No response 1% 5%

Despite agreeing that publication bans in non-sexual assault offences are uncommon, Crown Attorneys and defence counsel nevertheless had different perceptions of the judiciary's likelihood of granting these requests. Forty-five percent of Crown Attorneys surveyed said that such requests are usually granted in the cases where they are made, while about one quarter of the defence counsel surveyed believe they are usually granted. As for judges themselves, about one-quarter of those surveyed reported having granted an application for a publication ban in non-sexual offences. Those who had granted such bans had done so primarily in cases involving child abuse or child welfare, or had granted only partial bans (i.e., on the name of the witness).

Victim services providers and advocacy organizations, for their part, had little to say on the subject of publication bans. Very small proportions of those surveyed (11% and 15%, respectively) said that there are obstacles to their use, including the principle of an open court, Crown Attorney reluctance to make the requests, and judicial reluctance to grant them.

Victim services providers suggested that more frequent use of publication bans may encourage some victims, particularly victims of spousal abuse, to come forward and report offences. In interviews, several victim services providers stated that victims are generally not informed of publication bans or else they are not informed sufficiently in advance to make a request, and a few suggested that publication bans do not adequately protect victims. According to the latter group, publication bans are usually applied to the name of the victim, although many other details of the crime continue to be published and can easily lead to identifying the victim. It was also suggested that more frequent use of publication bans may encourage some victims, particularly victims of spousal abuse, to come forward and report offences.

4.6.2 Exclusion of the Public

Sixty percent of Crown Attorneys surveyed said that they had requested the exclusion of the public from a trial, and 39% of judges surveyed reported having granted such an application. Both Crown Attorneys and judges agreed that exclusion of the public is warranted in only the most exceptional circumstances, since an open court is essential to maintaining public confidence in the criminal justice system. In interviews, they explained that the public should be excluded only if permitting it to be present would interfere with the proper administration of justice and if other testimonial aids and protections would be insufficient to guarantee it; otherwise, the exclusion may give the defence counsel a ground to appeal.

Circumstances that from Crown Attorney and judicial perspectives warrant a request to exclude the public are quite similar. They include cases where the witness is vulnerable, fragile, or sensitive, such as child witnesses testifying in matters such as sexual abuse, as well as mentally challenged witnesses, or witnesses in sexual assault or domestic assault cases. Other circumstances include cases where the testimony of the witness would not otherwise be obtained due to extreme stress, embarrassment, or anxiety; and cases where the evidence, if it were public, would pose a risk to the safety or security of the witness (e.g., cases involving police informers or witnesses in witness protection programs). From the perspective of judges, appropriate circumstances are any where exclusion of the public is necessary to ensure the proper administration of justice.

A large majority of the defence counsel surveyed (70%) does not generally agree to requests to exclude the public from a trial, primarily on the grounds that these requests, like publication bans, violate the principle of open court proceedings. Less than one-quarter of defence counsel generally agree to requests to exclude the public. They noted in interviews that the requests are usually made in cases where the need is clear: serious sexual assaults, especially those involving young children, and young witnesses who are incapable of providing their testimony in open court. Other situations where defence counsel said they would agree are those where the exclusion of the public benefits their client or where it is necessary for the proper administration of justice (e.g., the public is interrupting the proceedings).

Both Crown Attorneys and defence counsel surveyed agreed that requests to exclude the public are extremely rare. However, they differ somewhat in their assessment of the judiciary's willingness to grant such requests. Just over one-quarter of Crown Attorneys, compared to 15% of defence counsel, said that judges generally grant requests to exclude the public.

Just less than one-quarter of victim services providers and advocacy organizations surveyed said that there are obstacles to excluding the public from a trial. Close to half of, victim services providers who perceive obstacles simply explained that judges are very hesitant about granting these requests. Both victim services providers and advocacy groups cited the principle of an open court (25% and 55%, respectively, of those who perceive obstacles). In interviews, several victim services providers suggested that exclusion of the public from trial should occur more often because family members of the accused are often present to intimidate the victim while testifying.

4.6.3 Screens, Closed-circuit Television, and Videotaped Testimony

There are three testimonial aids designed to assist young witnesses or those with a mental or physical disability, namely the use of screens, closed circuit television, or videotape. Of these three aids, screens appear to be the most popular among Crown Attorneys (although only by a slight margin over videotaped testimony), defence counsel, and judges. Crown Attorneys are least likely to favour closed-circuit television, while defence counsel are least likely to agree to videotaped testimony. After screens, judges are about equally as likely to grant the use of closed-circuit television and videotaped testimony. Please refer to Table 60.

TABLE 60: USE OF SCREENS, CLOSED-CIRCUIT TELEVISION, AND VIDEO-TAPED TESTIMONY IN ELIGIBLE CASES

Screens
  Judges (N=110) Do you generally grant the use of… Defence Counsel (N=185) Do you generally agree to the use of… Crown Attorneys (N=188) Do you generally request the use of…
Yes 83% 57% 61%
No 6% 39% 32%
No response 12% 4% 7%
Closed-circuit television
  Judges (N=110) Do you generally grant the use of… Defence Counsel (N=185) Do you generally agree to the use of… Crown Attorneys (N=188) Do you generally request the use of…
Yes 61% 44% 38%
No 20% 50% 51%
No response 19% 7% 11%
Videotaped testimony
  Judges (N=110) Do you generally grant the use of… Defence Counsel (N=185) Do you generally agree to the use of… Crown Attorneys (N=188) Do you generally request the use of…
Yes 60% 24% 56%
No 20% 69% 33%
No response 20% 7% 11%

Note: Responses are not inter-related across groups

Screens

About 60% of Crown Attorneys surveyed generally request the use of a screen, and a similar proportion of defence counsel surveyed usually agree to their use in appropriate cases. In interviews, defence counsel said that they are prepared to accept the use of screens however, several reported no observable differences in the ability of witnesses to testify with or without the screen, which they attributed in part to defence counsel's care when cross-examining young witnesses. Furthermore, the fact that the witness is physically present in the courtroom and visible to defence counsel when screens are used makes screens less objectionable than the other aids for some defence counsel. Nevertheless, about 40% of defence counsel surveyed do object to screens on the grounds that their use undermines the right of the accused to face the victim; presupposes guilt by giving the impression that the witness needs to be protected from the accused; interferes with cross-examination; and makes it difficult to assess the credibility of the witness.

Although many of the Crown Attorneys, victim services providers, and advocacy organizations surveyed did not know whether there are any obstacles to the use of screens, approximately 30% of Crown Attorneys, 20% of victim services providers, and 10% of advocacy groups believe that such obstacles exist. Among this minority of respondents who perceive obstacles, the most frequently mentioned was judicial reluctance to grant the use of screens. In interviews, Crown Attorneys explained that there is a perception within the judiciary that the screen acts as a filter and makes it easier for testimony to be less than truthful. They also noted that judges regard the screen as contrived or unnecessary and find testimony less compelling when a screen is used.

A second perceived obstacle is the requirement that Crown Attorney applications for the use of a screen meet a stringent legal test in order to be granted. In interviews, Crown Attorneys explained that because they are obliged to show evidence or call expert witnesses to demonstrate that the screen is necessary, they only request the screen when it is absolutely necessary. In interviews, several victim services providers expressed the opinion that Crown Attorneys are reluctant to request the use of screens and to inform eligible victims that this option is available.

Logistical obstacles to the use of screens, including a lack of necessary equipment at small sites, were also identified. In interviews, several Crown Attorneys at small sites reported that there is only one screen for the entire area they cover or that they have to transport a makeshift screen with them when they travel on circuit. Furthermore, courtrooms at small sites are often antiquated and not set up for the use of screens. Crown Attorneys and victim services providers also observed that screens are impractical and cumbersome, and often in poor condition. Furthermore, if courtroom lighting is inadequate, witnesses can see the accused through one-way screens.

Finally, there is a perception among some Crown Attorneys that screens simply are not effective at facilitating testimony and can actually be counter-productive because they cause the witness to have more rather than less concern with what the accused is doing. In interviews, Crown Attorneys explained that witnesses can feel isolated or uneasy when screens are used because they cannot see what is going on in the courtroom. Others reported that the screen can be distracting for child witnesses, whose curiosity often compels them to peek around or underneath the barrier. In fact, among Crown Attorneys surveyed who do not routinely request the use of screens, a common reason is that screens are ineffective at facilitating testimony. Yet other Crown Attorneys had either never or only rarely had a case where the screen might be needed or argued that screens are unnecessary in most instances.

Sixty-two percent of Crown Attorneys and three-quarters of defence counsel surveyed believe that judges usually grant the use of screens, compared to 83% of judges themselves who said that they usually grant these requests. Judges explained in interviews that they have no difficulty granting requests for a screen provided that the necessary legal criteria are met. Others said that screens are seldom used or seldom requested; at some large sites, judges explained that screens are not used because of the existence of "child friendly" courtrooms.

Closed-circuit Television

Of the three testimonial aids, closed-circuit television is the least likely to be requested. Less than 40% of Crown Attorneys surveyed reported generally requesting its use in appropriate cases. Among those who do not usually make the request, the most common reason, cited by almost one-third of these respondents, is a lack of necessary technology and properly equipped courtroom facilities; another 10% said that the appropriate equipment had only recently been installed in their local courtroom. Absent technology and proper facilities are particularly acute problems at small sites. In many instances, the use of closed-circuit television requires either that the trial be moved to a larger centre, that the necessary equipment be brought into the community, or that the equipment be transported with the court when it travels on circuit to remote areas. However, availability of the necessary technology also affects some medium and large sites.

Some Crown Attorneys gave other reasons for not usually requesting closed-circuit television. About one-quarter of those surveyed said that they have never or rarely had a case where closed-circuit television might be needed, while just less than one-fifth held the view that this aid is not normally necessary.

Over 40% of defence counsel surveyed reported that they generally agree to the use of closed-circuit television. In interviews, defence counsel commented that this testimonial aid has proven useful for very young witnesses (those under 10 years of age); it was even suggested that closed-circuit television is an advantage to the defence counsel because it enables them to gain the young person's trust, making the testimony easier for all involved. Defence counsel surveyed who object to closed-circuit television argued that it interferes with full defence; conflicts with the right of the accused to face the victim; makes it more difficult to assess the credibility of the witness; and erodes the presumption of innocence by creating the impression that the accused is guilty.

About one-third of Crown Attorneys, one-fifth of victim services providers, and one-sixth of advocacy groups surveyed believe that there are obstacles to the use of closed-circuit television, although as was also the case with screens, significant proportions did not know whether any obstacles exist. Of the Crown Attorneys who believe that there are obstacles to the use of this aid, more than half mentioned the lack of necessary technology. Others noted the need to satisfy the court that the aid is necessary, judicial reluctance to grant its use, and difficulties with cross-examination. Victim services providers were less likely to mention availability of closed-circuit television as an obstacle, citing instead Crown Attorney reluctance to request its use and, simply, the fact that it is not often used and is difficult to obtain. Like Crown Attorneys, victim services providers also identified judicial reluctance to grant the use of closed-circuit television and defence counsel objections due to cross-examination difficulties as obstacles.

Forty-five percent of defence counsel surveyed, compared to 38% of Crown Attorneys, believe that judges usually grant requests for closed-circuit television. This compares with 61% of judges surveyed who said that they generally grant these requests. As was also the case with screens, judges said that they grant the use of closed-circuit television as long as the legal criteria for its use are met. However, several explained that the necessary technology is not available or seldom used, or that they have never had an application for its use.

Videotaped Testimony

Fifty-six percent of Crown Attorneys surveyed generally request the use of video taped testimony in appropriate cases. In interviews, some reported having had considerable success with its use. Among those who do not generally request the use of videotaped testimony, one-quarter said that they have never or only rarely had a case where videotape might be needed, while the same proportion said that videotape is normally not necessary. Several said that they prefer it if the witness can testify without the tape and therefore only request it if absolutely necessary.

Videotaped testimony received the least support from defence counsel; less than one-quarter of defence counsel surveyed generally agree to its use. The most common objection, mentioned by almost half of defence counsel who usually object, concerns the difficulties that videotape presents for cross-examination. Defence counsel believe that the effectiveness of cross-examination is reduced because it does not occur contemporaneously with the direct examination of the witness. Another reason for defence counsel objections is the difficulty that videotaped testimony poses in assessing the credibility of the witness and the evidence, since it is impossible to assess the method used to elicit the videotaped testimony. Defence counsel see this as particularly problematic because this testimonial aid is used for vulnerable witnesses who are more impressionable and can more easily be led, even if that is not the interviewer's intention. Other objections include the inability of the accused to confront his or her accuser when videotape is used and the impression it leaves that the accused is guilty.

More than one-quarter of Crown Attorneys surveyed believe that there are obstacles to the use of video taped testimony. Poor quality interviews were among the identified obstacles; Crown Attorneys explained that police interviewers often ask leading questions or fail to elicit sufficiently detailed responses from witnesses. Furthermore, videotaped testimony does not relieve witnesses of the need to adopt their testimony on the stand and be cross-examined by defence counsel. Several Crown Attorneys said in interviews that videotaped testimony leaves witnesses unprepared for their encounter with defence counsel. They said that they tend to avoid videotaped testimony because they prefer to be the first to address witnesses, as a means of helping them become accustomed to the court process. Other obstacles, from the Crown Attorney perspective, include the requirement to meet a strict legal test in order for videotaped testimony to be allowed and judicial reluctance to grant its use.

Few victim services providers and advocacy organizations commented on the subject of obstacles to the use of video taped testimony; as with the other testimonial aids, large proportions of those surveyed did not know whether any obstacles exist. From their perspective, obstacles include judicial reluctance to grant the use of this aid; the need for victims to adopt their testimony on the stand; the fact that this aid is not often used; Crown Attorney reluctance to request its use; and defence counsel objections.

About half of Crown Attorneys and defence counsel surveyed believe that judges usually grant requests for videotaped testimony. This compares with 60% of judges surveyed who said that they generally grant these requests. Judges are willing to grant the use of videotaped testimony where the Crown Attorney has presented a compelling case that its use is necessary, although several judges said that videotape is seldom used or that they personally have never had a request for its use.

Overall Perceptions

Crown Attorney requests for testimonial aids are quite common in eligible cases, provided that the necessary technology is available. However, in interviews, Crown Attorneys explained that they request these aids only when there is a compelling reason to do so, and several reported having had as much success without using testimonial aids as with them. In their view, the best way to ensure that testifying in court does not traumatize witnesses is to meet with them ahead of time to establish a rapport, prepare them for testifying, and increase their confidence and self-esteem. A few Crown Attorneys were of the opinion that testimonial aids are being improperly used as a substitute for the time investment that is required to properly prepare victims for testimony.

There is also considerable willingness among judges to grant the use of testimonial aids in eligible cases. Nevertheless, judges were careful to emphasize the need for the Crown Attorneys to present compelling evidence that the aids are necessary and the need to ensure that the Criminal Code criteria for their use are met. Furthermore in interviews, a few judges wondered how effective the testimonial aids really are. Several said that they initially deny the use of aids in order to determine whether witnesses can testify successfully without them. At some of the large sites equipped with child friendly courtrooms, requests for testimonial aids are rarely brought before a judge.

A majority of judges surveyed (60%) believes that testimonial aids are sufficiently available to meet current needs. Those who disagreed pointed primarily to a lack of necessary equipment (especially closed-circuit television) and funding limitations. There was little support among judges who were interviewed for extending the provisions to other types of witnesses, on the grounds that the aids interfere with the right of the accused to confront the complainant; make it more difficult for defence counsel to cross-examine the witness; and make it more difficult for the judge to assess the credibility of the witness and establish truth.

For similar reasons, many defence counsel expressed serious reservations about the use of testimonial aids. The major concern involved the perception that these aids violate principles of the criminal justice system intended to protect the accused, such as the presumption of innocence and the right of the accused to face his or her accuser. Defence counsel also believe that these aids can make mounting a defence more difficult by undermining counsel's ability to effectively cross-examine the witness, making it more difficult to assess the witness's credibility and lessening the pressure on the witness to be truthful because he or she is not on the witness stand facing the accused.

Most victim services providers and advocacy organizations did not comment extensively on survey questions pertaining to testimonial aids. Nevertheless, it is apparent from those who did offer a response that they believe that victims are not sufficiently aware and informed of these protections, and that they should be used more often and afforded to more victims. It was suggested that the burden should not be on the victim to prove the necessity of these protections, but rather, the criminal justice system should be more accommodating in making witnesses comfortable during their testimony. Several victim services providers were of the view that the aids should be automatic for eligible witnesses.