Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Judiciary Respondents
3. Findings from Judiciary Respondents
- 3.1 Role of the Victim in the Criminal Justice Process
- 3.2 Judicial Responsibility
- 3.3 Bail Determination
- 3.4 Provisions to Facilitate Testimony
- 3.5 Victim Impact Statements
3. Findings from Judiciary Respondents
This section of the report integrates the findings from the survey self-completed questionnaires and interviews with the judiciary.
3.1 Role of the Victim in the Criminal Justice Process
There is considerable agreement among all respondent groups, including judges, that victims of crime have a legitimate role to play in the criminal justice process.
Judges regard the victim primarily as a witness and a source of information. They generally believe that victims are entitled to be consulted to some extent before bail decisions and sentencing. They cautioned that the criminal justice system must deal with the accused in a manner that serves the public interest and protects society. They emphasized that decision-making ultimately must remain with the court and the Crown Attorney, who are more knowledgeable about the law and can be more objective. Concern was expressed that allowing too large a role for victims would erode the principle of innocent until proven guilty and thereby distort the criminal justice process.
Bail Decisions
A substantial proportion of judges surveyed believes that victims should be consulted in bail decisions. They explained in interviews that victims should make their safety concerns known to the police and to the Crown Attorney, whose responsibility it then becomes to bring these concerns forward to the court.
Sentencing
There is also considerable support for consulting victims at sentencing. In interviews, judges said that consultation at the sentencing stage should occur primarily by way of the victim impact statement. In interviews, judges supported consulting victims for sentences served in the community, and a few judges noted that victims have the opportunity to contribute to crafting a sentence when restorative approaches are used. However, there is also general agreement that victims should not have any say regarding the length or severity of sentences. They believe that it is inappropriate for victims to suggest or determine a sentence, since the court is obligated to consider society's interests in sentencing, which may differ from those of the individual victim. From their perspective, introducing a personal or emotional element into sentencing would result in dissimilar sentences for similar crimes based on individual victims' characteristics. Such a practice would threaten the credibility of the criminal justice system.
3.2 Judicial Responsibility
In both the interviews and self-completed questionnaires judges were asked to describe their responsibility to victims of crime through an open-ended question (i.e., no check list of possible responses was provided). Judges identified responsibilities such as explaining the criminal justice system, keeping victims informed of the status of their case, and providing them an opportunity to be heard and considering their views.
As Table 2 shows, judges believe that their main responsibility to victims of crime is to give victims an opportunity to be heard; 42% of those surveyed mentioned this responsibility. In interviews, judges explained that the judiciary has a responsibility to provide a forum in which victims can be heard, to listen to their views and concerns, and to let them know that the court appreciates their concerns and the harm that has been done to them.
| Responsibility: | Judiciary (N=110) |
|---|---|
| Listen to victims or give them an opportunity to be heard | 42% |
| Provide a fair process or maintain an impartial role | 18% |
| Protect the victim | 17% |
| Treat victims with respect | 14% |
| Explain the disposition | 10% |
| Keep victims informed | 9% |
| Apply the law | 8% |
| Explain the law or the criminal justice process | 3% |
| Other | 6% |
| No response | 12% |
Note: Respondents could provide more than one response; total sums to more than 100%.
Some of the judges surveyed focused on the court's obligations to provide a fair and impartial process that will ensure that justice is done (18%) and to apply the law (8%). In interviews, judges expanded on these ideas, explaining that the judiciary has a responsibility to be fair to everyone who appears before it whether victim, accused, or other member of the public. Some concern was expressed that since the introduction of victims of crime legislation, it is no longer clear how the judiciary is to balance its responsibility to victims with its responsibility to the accused and to society as a whole. Several judges observed, in interviews, that the judiciary must keep the public interest foremost in mind when balancing the rights of the victim with the rights of the accused.
Judges who were surveyed also mentioned their responsibility to protect the victim (17%), to treat victims with respect (14%), to explain the disposition of the case (10%), and to keep victims informed (9%). In interviews, judges at small sites noted that the judiciary has a responsibility to provide court facilities that allow victims to maintain a sense of dignity. In small rural or remote locations, it can be difficult to provide adequate facilities with separate waiting areas for victim and accused, courtrooms in which victim and accused sit apart from each other, and adequate interview rooms, telephones, and washrooms.
3.3 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 judicial practices with respect to victim protection in bail determinations. 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.
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.
3.4 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.
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 assault, 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. About one-quarter of judges 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).
Exclusion of the Public
Judges indicated 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 them 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.
Judges surveyed provided examples of circumstances that warrant a request to exclude the public. 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.
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. After screens, judges are about equally as likely to grant the use of closed-circuit television and videotaped testimony. Please refer to Table 3.
TABLE 3: USE OF SCREENS, CLOSED-CIRCUIT TELEVISION, AND VIDEO-TAPED TESTIMONY IN ELIGIBLE CASES
| 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 Responce | 12% | 4% | 7% |
| 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 responce | 19% | 7% | 11% |
| 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 Responce | 20% | 7% | 11% |
Note: Responses are not inter-related across groups
Screens
83% of judges said that they usually grant requests for the use of screens. 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. 61% of judges surveyed said that they generally grant requests for closed-circuit televisions. 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
60% of judges surveyed said that they generally grant requests for videotaped testimony. 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
There is 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.
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. 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
More than 80% of judges surveyed reported usually granting requests for support persons. 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.
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.
Use of Section 486 (2.3)
Close to one-fifth of judges surveyed reported having had a case where section 486 (2.3) applied. Among these judges a 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.
3.5 Victim Impact Statements
Victim impact statements (VIS) are written statements in which victims can describe the effect of the crime on them and any harm or loss suffered as a result of the crime. The 1999 amendments to the Criminal Code allow victims to read their statements aloud during sentencing, require the judge to ask before sentencing whether the victim has been informed of the opportunity to complete a VIS and permit the judge to adjourn the sentencing, to give the victim time to prepare the statement.
Victims of crime can submit victim impact statements at sentencing and at parole. At parole, the victim can rely on the victim impact statement from sentencing and/or provide another statement to the parole board. The following discussion considers victim impact statements at sentencing only.
At Sentencing
Frequency of Submission
Judges were asked whether, based on their experience, victims generally submit victim impact statements to the court. About half of judges surveyed believe that victims generally submit victim impact statements only in serious cases, such as sexual assault, other violent offences, and certain property crimes. About one-third think that victim impact statements are submitted in most cases, and sixteen percent reported that in their experience, victims usually do not submit victim impact statements, regardless of the severity of the offence.
The results for frequency of submission of victim impact statements are provided in Table 5. These results include only those respondents who provided an answer to this question.
TABLE 5: DO VICTIMS USUALLY SUBMIT VICTIM IMPACT STATEMENTS AT SENTENCING?
Method of Submission
Of the respondent judges with sufficient experience to respond to questions regarding the method of submission of victim impact statements, over 80% agreed that victim impact statements are usually submitted in writing only.
| Victim Services (n=194) | Crown Attorneys (n=184) | Defence Counsel (n=180) | Judiciary (n=108) | |
|---|---|---|---|---|
| Written statement only | 82% | 90% | 79% | 87% |
| Victim reads statement | 18% | 5% | 2% | 7% |
| Crown Attorney reads statement | 16% | 21% | 18% | 16% |
| Other | 2% | 3% | 4% | -- |
Note: Respondents could provide more than one response; totals sum to more than 100%.
Cross-examination of Victim
The survey results in Table 7 show that about one-tenth of judges have been involved in a case where the victim was cross-examined on his or her impact statement at trial or at sentencing.
TABLE 7: HAVE YOU EVER HAD A CASE WHERE THE DEFENCE COUNSEL OR THE ACCUSED CROSS-EXAMINED THE VICTIM ON THEIR VICTIM IMPACT STATEMENT?
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Yes | 24% | 20% | 12% |
| No | 71% | 71% | 80% |
| Don't know | 3% | 4% | 3% |
| No response | 3% | 5% | 6% |
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Yes | 26% | 23% | 10% |
| No | 65% | 70% | 80% |
| Don't know | 6% | 3% | 5% |
| No response | 3% | 5% | 6% |
Note: Respondents could provide only one response. Some totals sum to more than 100% due to rounding.
Judges cited the inclusion of contradictory facts or facts not in evidence as some of the few instances where they would allow cross-examination on a victim impact statement.
Judicial Use of Victim Impact Statements
As mentioned above, under the 1999 amendments to the Criminal Code, judges must inquire before sentencing whether the victim has been advised of the opportunity to prepare a victim impact statement and can adjourn the sentencing hearing to allow a victim to be informed and prepare an impact statement. Among the judges surveyed, in cases where no victim impact statement is submitted, one-third (32%) always make this inquiry, and one-fifth (19%) usually do. However, the remaining half said that they sometimes (17%), rarely (16%), or never (14%) ask whether the victim has been informed. Over one-third (36%) of judges reported that they have adjourned a sentencing hearing to permit the victim to be informed. [2]
When victim impact statements are submitted, judges have discretion to disallow parts of the statements. When asked if they have had to disallow parts of victim impact statements, close to half (44%) of judges surveyed said that they have. The most common reasons given for disallowing part of an impact statement included: the statement contained irrelevant or inappropriate content; the statement contained the victim's views on sentencing; and the statement gave a different version of the offence. In interviews, judges said that rather than disallow portions of the impact statement, they usually just disregard the inappropriate sections.
Under the Criminal Code, judges must consider victim impact statements at the time of sentencing. 82% of judges reported that they use victim impact statements in determining the sentence. About two-thirds of surveyed judges provided further comments about their use of victim impact statements. The most common reflections were that victim impact statements are considered like all other relevant information and that judges use them to help determine the length of sentence and the severity of the offence. However, judges also noted in interviews that the use of victim impact statements is carefully circumscribed; while victim impact statements can provide relevant information, they do not and cannot influence sentencing to the extent that they express a desire for outcomes that differ from those defined by the Criminal Code.
[2] In interviews, one or two judges said that rather than adjourning, they will sometimes ask victims who are in court at the sentencing hearing if they wish to say anything about the impact of the crime at that time. If the victim is prepared to speak to the court, these judges prefer to solicit the victim's input in this way, rather than delaying the process by adjourning.
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