Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Crown Attorney Respondents
Findings from Crown Attorney Respondents (continued)
Findings from Crown Attorney Respondents (continued)
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 Crown Attorney practices with respect to victim protection in bail determinations.
Crown Attorney Practices at Bail
Although Crown Attorneys who completed a self-administered survey were not questionned about victim safety at bail, 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 are shown in Table 6.
| 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. Virtually all Crown Attorneys surveyed in this research (98%) reported that judges typically grant requests for conditions to address the victim's safety in bail determinations. In interviews, Crown Attorneys said that judges are almost invariably amenable to requests for bail conditions, provided they are reasonable and designed to address specific concerns.
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.
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.
Crown Attorneys 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 gave several examples of instances where publication bans are most likely to be granted. They 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.
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.
| 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% |
Forty-five percent of Crown Attorneys surveyed said that such requests are usually granted in the cases where they are made.
Exclusion of the Public
Sixty percent of Crown Attorneys surveyed said that they had requested the exclusion of the public from a trial. They stated 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 perspectives warrant a request to exclude the public 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).
Crown Attorneys surveyed stated that requests to exclude the public are extremely rare. Just over one-quarter of Crown Attorneys said that judges generally grant requests to exclude the public.
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. Crown Attorneys are least likely among criminal justice professionals surveyed to favour closed-circuit television. Please refer to Table 8.
TABLE 8: 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 response | 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 response | 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 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. While many of the Crown Attorneys surveyed did not know whether there are any obstacles to the use of screens, approximately 30% of Crown Attorneys 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. 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 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, and 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. Others 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 surveyed believe that judges usually grant the use of screens.
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.
About one-third of Crown Attorneys 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. Thirty-eight percent of Crown Attorneys believe that judges usually grant requests for closed-circuit television.
Videotaped Testimony
Fifty-six percent of Crown Attorneys surveyed generally request the use of videotaped 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.
More than one-quarter of Crown Attorneys surveyed believe that there are obstacles to the use of videotaped testimony. Poor quality interviews was 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. About half of Crown Attorneys surveyed believe that judges usually grant requests for videotaped testimony.
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.
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.
| 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. 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 surveyed believe that there are obstacles to the use of support persons. They 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. Just over two-thirds of Crown Attorneys surveyed said that requests for support persons are generally granted.
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 Crown Attorneys 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 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.
Expansion of section 486 (2.3)
As Table 10 shows, half of Crown Attorneys 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 11 shows Crown Attorneys' opinions on how section 486 (2.3) should be expanded. Expanding the section to adult witnesses in the category of offences to which it currently applies received the most support. 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 some Crown Attorneys 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%.
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