Multi-Site Survey of Victims of Crime and Criminal Justice Professionals Across Canada

3. Experience of Victims in the Criminal Justice System (continued)

3. Experience of Victims in the Criminal Justice System (continued)

3.4 Consideration of Victim Safety at Bail

The l02 victims who were involved in a case where charges were laid were asked several questions about their experiences at bail. Two-thirds reported that the accused was released on bail in their case, and of these, almost 60% reported that the accused was detained for a period of time before being released.

Just over one-third of victims involved in cases where charges were laid said that they were aware that victim safety must be considered in release decisions, while almost half of these victims were unaware. The remaining victims did not feel that they could answer the question. Victims were much more likely to know that conditions of release could be placed on the accused. Three-quarters reported being aware of the possibility of certain conditions being imposed, whereas less than one-fifth was unaware.

Victims in cases where charges were laid were evenly divided between those who found the information they received about release decisions to be clear and complete, and those who did not. Almost all of those who found the information unclear or incomplete explained that the problem was a lack of any information on the subject whatsoever.

Of the 68 victims who reported that the accused was released in their case, more than two-thirds reported that conditions were placed on the accused, although over one-quarter of these victims either did not know or gave no response. The most common condition, imposed in two-thirds of cases where the accused was released, was no contact with the victim. A condition to refrain from alcohol was imposed in almost one-quarter of cases, and a condition to keep the peace and be of good behaviour was imposed in about one-fifth of cases. Restrictions on movement were imposed in just less than one-fifth of cases. Twenty-nine (59%) of the victims involved in cases where conditions of release were imposed said that the conditions addressed their safety concerns. Table 26 gives further details on bail conditions.

TABLE 26: BAIL CONDITIONS - BASE: VICTIMS WHO REPORTED ACCUSED RELEASED ON BAIL (n=68)

Were conditions placed on accused?
Bail Conditions Victims who reported accused released on bail (n=68)
Number Percent
Yes 47 69%
Accused had existing conditions for other offences 2 3%
No 1 2%
Don't know or No response 18 26%
What types of conditions?
Bail Conditions Victims who reported accused released on bail (n=68)
Number Percent
No contact with the victim 45 66%
No alcohol 16 24%
Keep peace and be of good behaviour 14 21%
Curfew 6 9%
No contact with other named individuals 6 9%
No weapons 5 7%
Undergo therapy or treatment 5 7%
Restrictions on movement 5 7%
Other 12 18%
Other 22 32%

Note: Victims could provide more than one response for the conditions that were placed on the accused; total sums to more than 100%.

As shown in Table 27, of the total number of victims involved in cases where the accused was charged (n=102), about 40% believe that their safety was considered in the decision about the possible release of the accused. Just over one-quarter believe that their safety was not considered, while the remainder either had no safety concerns, did not know, or did not respond. Victims who believe that their safety was not considered (n=27) were asked what caused them to feel that way. Most commonly, they explained that the conditions placed on the accused were either insufficient or were not respected (n=16). Of these victims, five reported having accidental contact with the accused after release, and four said that they were harassed or threatened by the accused after release. Two pointed out that the conditions imposed were at odds with pre-existing family law orders (e.g., no contact orders conflicted with access orders).

TABLE 27: WAS THE VICTIM'S SAFETY CONSIDERED IN THE DECISION ABOUT THE POSSIBLE RELEASE OF THE ACCUSED? - BASE: VICTIMS WHO ACCUSED WAS CHARGED (n=102)
Victim's Safety Considered in Decision About Possible Release of the Accused: Victims in cases where accused was charged (n=102)
Number Percent
Yes 43 42%
No 27 27%
N/A (victim had no safety concerns) 15 15%
Don't know or No response 17 17%

Note: Total does not sum to 100% due to rounding.

In addition to insufficient conditions, four victims each said that they were not asked about their safety concerns; that the police and/or the court did not appreciate the true extent of the danger posed to them by the accused; that the fact that the accused was released was evidence that their safety was not considered; and that they were not advised of the accused's release.

Among victims who had safety concerns (n=87), almost three-quarters said that they made their concerns known. Table 28 provides complete results.

TABLE 28: DID VICTIMS MAKE THEIR CONCERNS WITH SAFETY KNOWN? - BASE: VICTIMS WITH SAFETY CONCERNS (n=87)
Victim Concerns With Safety Shared: Victims with safety concerns (n=87)
Number Percent
Yes 62 71%
No 16 18%
Don't know or No response 9 10%

Note: Total does not sum to 100% due to rounding.

A majority of the victims who made their safety concerns known provided this information to police (n=41); relatively few discussed safety issues with the Crown Attorney (n=13) or with victim services providers (n=3). One or two victims each mentioned their safety concerns in a victim impact statement, wrote a letter to the judge outlining their concerns, or told the judge about their concerns during the bail hearing. Those who did not make their safety concerns known (n=16) most often explained that no one asked them about their concerns.

3.5 Experience with Testifying

Out of 36 victims whose cases went to trial, 24 reported that they or a family member testified at the trial; eight did not testify; and four did not answer the question. Of the 24 who testified, 20 received help in preparation, most often from victim services (n=17), but also from the Crown Attorney handling their case (n=9). [9] The various types of assistance included an explanation of courtroom procedures; an explanation of the respective roles of the Crown Attorney and defence counsel; an introduction to the courtroom; and practice in testifying. A small number of victims said that they received other types of assistance, such as a review of basic behaviour in the courtroom and what to expect. Table 29 provides complete details.

Of the 24 who testified, 20 received help in preparation, most often from victim services (n=17), but also from the Crown Attorney handling their case (n=9).

TABLE 29: DID YOU RECEIVE HELP IN PREPARING TO TESTIFY? - BASE: VICTIMS WHO RECEIVED ASSISTANCE WITH TESTIFYING (n=20)
  Victims Who Received Help inPreparing to Testify (n=20)
Number Percent
Explanation of court procedures 15 75%
Explanation of roles of Crown Attorney and defence counsel 14 70%
Courtroom introduction 12 60%
Preparation for testifying or practice testifying 10 50%
Review of basic courtroom behaviour or what to expect in courtroom 7 35%
Other 5 25%

Note: Victims could provide more than one response; total sums to more than 100%.

Just over half of the 24 victims who testified at trial reported that they felt prepared for it. Almost all of them attributed their preparedness to the support they received prior to and during their testimony. Those who felt unprepared for testifying either said that they felt frightened, threatened, or re-victimized or said that they had inadequate time to prepare. Several victims (both those who felt prepared and those who did not) said that they were nervous about testifying but that, in the end, they were able to handle the experience reasonably well.

Eight of the 36 victims whose cases went to trial reported that they did not testify at the trial. The most common reasons for not testifying were that the Crown Attorney had sufficient physical evidence (therefore, their testimony was unnecessary) and that they were not witnesses to the crime. In one case the victim did not testify because the accused pleaded guilty at trial; and in one case, the victim reported being too fearful for her safety to testify.

All 36 victims whose cases went to trial were asked to suggest ways to help victims with testifying. The most common suggestions were better explanations of the court process and of what to expect in the courtroom (e.g., preparation for defence tactics) and improved protections or wider availability of existing protections. Other suggestions included preparing for testimony through role-playing and permitting victims of crime to have their own lawyer.

The most common suggestions were better explanations of the court process and of what to expect in the courtroom and improved protections or wider availability of existing protections.

3.5.1 Legal Provisions to Facilitate Testimony

While criminal proceedings are generally held in open court, the Criminal Code sets out a number of exceptions in order to protect the privacy of victims and to help them in testifying in court.[10] These provisions are described below.
Publication Bans:

Judges must issue an order prohibiting publication of the identity, or any information that could disclose the identity, of sexual offence victims on application. Where deemed necessary for the proper administration of justice, a judge may order a publication ban, upon application, on the identity of a victim or witness of any offence.

Facilitating Testimony:

In sexual offence proceedings, a support person may accompany a witness under the age of 14 years or who has a mental or physical disability. Additionally, a witness of specified offences, including sexual offences, who is under the age of 18 or who has difficulty communicating can provide testimony from behind a screen or by closed circuit television. A judge may prohibit personal cross-examination by a self-represented accused, of a witness under the age of 18 years in sexual or personal violence offences. The court may appoint counsel for cross-examination. In proceedings related to specified sexual offences, a victim/witness under the age of 18 years at the time of the alleged offence, or a victim/witness who has difficulty communicating, may provide testimony on videotape.

Victims in this study whose case characteristics fell within these parameters were asked about their experiences with these provisions. A total of nine victims received information about provisions to facilitate testimony. Of the victims who received this information, five were under the age of 18 at the time of their involvement in the criminal justice system; three were victims of sexual assaults but were over 18 years of age (they were only informed of publication bans); and one was a victim of a high-profile stalking case who was offered several types of protections even though she was over 18 years of age and did not have a mental or physical disability.These victims received information about different types of protections. More specifically:

Six of the victims were given information about more than one of the protections. One of these victims was told about publication bans and screens; one was told about publication bans and support persons; two were told about publication bans, screens, and support persons; one was told about publication bans, screens, closed-circuit television, support persons, and s. 486 (2.3); and one was told about screens, closed-circuit television, videotape, support persons, and s. 486 (2.3). Information was provided by either victim services, the police, or the Crown Attorney. Four victims received information from two sources.

These nine victims were asked if they received information about provisions to facilitate testimony with enough time to decide whether to use them. Seven of the nine said that they were given the information in a timely manner; while two disagreed. When asked what kind of information they received about the protections, victims reported being told that the protection(s) was available (n=6) and the pros and cons of using the protection(s) (n=4). Two reported that they were simply informed that a certain protection(s) would be implemented in their case, but that they were not part of the decision of whether to use the protection. All nine victims were asked if anything about the information they received was unclear or incomplete. Six said that nothing was unclear or incomplete. The three victims who believed that the information they received was unclear or incomplete reported that they were given only general information about the protections.

Four of the nine victims who received information about protections to facilitate testimony actually received one or more of the protections (the remaining five did not testify, have not yet testified, or declined the aids). Of the four who received protections, three received publication bans, and one was accompanied by a support person and granted a ban on cross-examination by the self-represented accused under section 486 (2.3). The three victims who received publication bans reported different experiences with the effectiveness of the bans in helping them to testify: one reported being more comfortable because the ban was in place; and two said that the ban did not really help and that they were still afraid to testify. The victim who was accompanied by a support person reported being more comfortable because the support person was present, even though they could not communicate during court. This victim was also protected by s. 486 (2.3) and said that she was less nervous and upset than she would have been if the accused had been permitted to cross-examine her.

In addition to the four victims who received information and subsequently received protection(s), one reported not receiving any information but nevertheless receiving a publication ban. This victim said that the ban did not make testifying any easier.