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 (continued)
4.6.4 Support Persons
The 1999 amendments to the Criminal Code permit victims or witnesses with a mental or physical disability to have a support person present while testifying. Of the various provisions to facilitate testimony, the use of support persons to accompany a young witness or witnesses with a physical or mental disability appears to be the least controversial and the most widely used. More than three-quarters of Crown Attorneys surveyed generally request that a support person accompany such witnesses, and two-thirds of defence counsel surveyed usually agree to such requests. In interviews, a few defence counsel commented that the use of a support person can be positive for the defence. They noted that when the witness is at ease and not crying, cross-examination goes better because the witness requires fewer breaks. Among judges, 82% of those surveyed reported that they usually grant requests for a support person.
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Do you generally request the use of a support person? | Do you generally agree to the use of a support person? | Do you generally grant the use of a support person? | |
| Yes | 76% | 66% | 82% |
| No | 16% | 30% | 6% |
| No response | 8% | 4% | 13% |
Note: Totals may not sum to 100% due to rounding. Responses are not inter-related across groups
Crown Attorneys surveyed who do not usually request support persons said that support persons are not typically necessary or that they have never or rarely had a case where a support person might be needed. Defence counsel surveyed who usually do not agree to support persons based their objection primarily on the risk that the testimony might be influenced. In interviews, defence counsel explained that they have no problem with a support person as long as the individual remains neutral and does not attempt to influence the witness's testimony, although they disagreed over who are suitable support persons. A few found relatives of the witness acceptable, while others expressed concern about support persons with a close relationship to the witness; the latter group prefers support persons with some awareness of legal issues, such as victim services workers.
Crown Attorneys likewise noted in interviews that great care must be taken in the selection of a support person. In order to maintain the credibility of the witness and avoid raising defence counsel objections, the support person must be a neutral individual who is not too close to the victim and who does not have a vested interest in the outcome of the case. Furthermore, as per the Criminal Code, the support person cannot also be a witness in the case.
Very few of the Crown Attorneys, victim services providers, and advocacy organizations surveyed believe that there are obstacles to the use of support persons. Victim services providers and advocacy organizations mentioned judicial reluctance to grant the use of a support person, defence counsel objections, and difficulties finding a suitable person to act in this capacity. Crown Attorneys, for their part, cited the need to locate a neutral individual to act as a support person, judicial reluctance to grant the requests, and the need to demonstrate that the support person is necessary. A few also said that the use of a support person can be damaging to the prosecutor's case. The presence of a support person can, for example, signal a vulnerable witness to the defence. Furthermore, if the witness looks at the support person before responding to questions, the impression can be created that the witness is unsure about his or her answers, thus damaging the credibility of the testimony.
There is considerable agreement among Crown Attorneys and defence counsel regarding judges' propensity to grant the use of support persons; just over two-thirds of respondents surveyed in both groups said that such requests are generally granted. This compares with more than 80% of judges surveyed who reported usually granting these requests. Judges are evidently quite prepared to grant the use of support persons in eligible cases, provided they do not interfere with testimony by attempting to influence or coach the witness, and provided they are not also witnesses in the case. However, several judges said in interviews that it can occasionally be difficult to locate a neutral party to act as a support person in small communities. Furthermore, small sites do not always have facilities (such as separate waiting areas and entrances) to accommodate young witnesses and support persons.
4.6.5 Section 486 (2.3)
The 1999 amendments to the Criminal Code include the provisions in section 486 (2.3), which restrict cross-examination by a self-represented accused of child victims of sexual or violent crime. This section reports on the use of this provision by criminal justice professionals and the extent to which they support expanding the section to other types of witnesses or other types of offences.
Use of Section 486 (2.3)
Just over one-quarter of Crown Attorneys and close to one-fifth of judges surveyed reported having had a case where section 486 (2.3) applied. Of these Crown Attorneys, a large majority (86%) had requested that counsel be appointed to cross-examine the victim. Among judges who had been involved in cases where the section applied, a similarly large proportion (84%) said that they would generally appoint counsel for the purpose of cross-examination in those cases. Seven judges in total reported having presided over any cases where they allowed the accused to cross-examine a young victim since section 486 (2.3) was adopted. Among defence counsel surveyed, 6% reported having been appointed to act for the accused pursuant to the section.
Expansion of Section 486 (2.3)
As Table 62 shows, support for expanding section 486 (2.3) was highest among advocacy groups and victim services providers. About three-quarters of respondents in those categories, compared to half of Crown Attorneys and one-quarter of defence counsel, favour expansion of section 486 (2.3) to other offences and/or other victims or witnesses.
| Victim Services (N=318) | Crown Attorneys (N=188) | Defence Counsel (N=185) | Advocacy Groups (N=47) | |
|---|---|---|---|---|
| Yes | 73% | 52% | 27% | 77% |
| No | 14% | 15% | 70% | 19% |
| Don't know | -- | 25% | -- | -- |
| No response | 13% | 9% | 3% | 4% |
Note: Totals may not sum to 100% due to rounding.
Table 63 shows respondents' opinions on how section 486 (2.3) should be expanded. Across all respondent groups, support was most widespread for expanding the section to adult witnesses in the category of offences to which it currently applies. There was also considerable support for expanding the section to domestic violence cases in particular, to all crimes of violence, and to any case where the witness is vulnerable or intimidated by the accused or where there is a power imbalance between victim and accused. In interviews, many defence counsel, as well as some Crown Attorneys and victim services providers, argued simply that the protection should be available any time the proper administration of justice requires it and that this determination should be left to judicial discretion.
| Victim Services (n=233) | Crown Attorneys (n=97) | Defence Counsel (n=49) | Advocacy Groups (n=36) | |
|---|---|---|---|---|
| Expand to adults | 28% | 40% | 45% | 31% |
| Domestic violence | 21% | 33% | 10% | 17% |
| All crimes of violence | 19% | 33% | 10% | 28% |
| Vulnerable or intimidated witnesses | 12% | 23% | 22% | 17% |
| Criminal harassment | 6% | 14% | 8% | -- |
| All child witnesses regardless of offence | 8% | 11% | -- | -- |
| Whenever accused is self-represented | 25% | 9% | -- | 19% |
| Certain property crimes | 2% | 5% | -- | -- |
| Other | 6% | 10% | 6% | 17% |
| No response | 11% | 7% | 12% | 8% |
Note: Respondents could provide more than one response; totals sum to more than 100%.
Among defence counsel surveyed, those who advised against expansion of the section were primarily concerned about protecting the right of the accused to self-represent and the right of the accused to face the complainant (mentioned by 47% and 9%, respectively). According to these respondents, the current section already represents a significant deviation from the accused's right of confrontation, which is a basic tenet of criminal law. Several others argued that judges can and do intervene to protect the victim and prevent the accused from engaging in abusive or excessive cross-examination. A few simply said that a change in law is not needed, and a few pointed to the growing number of self-represented accused as a reason for not expanding the section. In interviews, several defence counsel (both those who support expansion and those who do not) noted that any expansion would put resource strains on the system. They believe that many accused have no choice but to self-represent, because they fail to qualify for legal aid. Providing these accused with counsel would require significant additional funding to expand legal aid. A few defence counsel were of the view that self-representation in general should be eliminated entirely or at least reduced.
4.7 Preparation for Court
Victim services providers who participated in interviews were asked to describe victims' experiences of testifying. They reported that the experience varies greatly and depends on several factors such as the type of offence, the individual victim, and the approach taken by Crown Attorneys and defence counsel. Overall, respondents said that testifying in court is a difficult, anxiety-producing, and often terrifying experience for victims. Cross-examination is particularly difficult, especially for child and other vulnerable witnesses; according to victim services providers, some victims feel as though they are the ones on trial. Furthermore, simply seeing the accused again can be extremely stressful for some victims, and many victims are reluctant to discuss their personal experiences in public for fear of being judged. A few victim services providers said that victims do not generally feel supported by the Crown Attorneys and police, which makes their experience testifying all the more difficult.
Nevertheless, several victim services providers said that while giving testimony in court is certainly an unpleasant experience for victims, overcoming the challenge of testifying can be empowering and can help victims to feel more secure. For some witnesses, recounting their story is a therapeutic exercise and makes them feel as though they have contributed to the system.
Adequate preparation prior to testifying is regarded as essential by victim services providers, since it helps to minimize victims' fears by demystifying the criminal justice system. Almost three-quarters of victim services providers surveyed reported their organization helps victims prepare to testify in court.[27]
From the interviews, it was evident that the most common types of assistance included giving courtroom tours or showing victims drawings of the courtroom set-up; explaining the roles of the various actors in the system (judge, Crown Attorney, defence counsel, clerk); and explaining the court process and rules.
Other types of assistance include provision of informational videos and written materials; role-playing; and use of age-appropriate materials such as games, books, and videos to prepare child witnesses. A few respondents indicated that they give victims guidelines on appropriate courtroom behaviour and tips to facilitate their time on the witness stand and make them feel more at ease. Although they acknowledged that it is not always possible, a few reported that they also attempt to introduce witnesses to Crown Attorneys beforehand; this helps make witnesses feel more comfortable.
Finally, a few victim services providers specifically noted that they do not discuss any facts or evidence related to the case, since some criminal justice professionals may perceive this as a form of coaching. In any case, they believe that the focus of court preparation should be on providing victims with information about the court system and helping witnesses prepare emotionally for testifying.
In interviews, victim services providers offered various suggestions for additional ways to help victims with testifying. One common suggestion was meetings with Crown Attorneys prior to testifying and follow-up or debriefing sessions with Crown Attorney after testimony is completed. A few suggested that it would be helpful if just one Crown Attorney followed the whole case through; this would establish a rapport between the victim and the Crown Attorney and would contribute to making the victim feel more at ease while testifying, and a few suggested modifying the courthouse and courtroom environment to further facilitate victims' participation in the court process. Separate waiting rooms for victims and witnesses, separate entrances to the courtroom, child-friendly courtrooms, and seating the accused out of view of the witness were among the ideas proposed.
A few victim services providers advocated increased use of testimonial aids; they believe that these protections are not used frequently enough, particularly in cases of domestic violence and cases involving children. Finally, a few victim services providers indicated that providing increased financial support to victims and witnesses who are required to testify would greatly facilitate their participation in the criminal justice system. According to these respondents, many victims absorb with great difficulty the costs associated with transportation, childcare, and unpaid work days.
[27] Some victim services providers at large sites reported providing group sessions on court preparation.
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