Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Defence Counsel Respondents
Findings from Defence Counsel Respondents
- 1. The Role of the Victim in the Criminal Justice Process
- 2. Bail Determinations
- 3. Provisions to Facilitate Testimony
Findings from Defence Counsel Respondents
1. The Role of the Victim in the Criminal Justice Process
Criminal justice professional were asked, "What role should victims have in the following stages of the criminal justice process, i.e. should victims be informed, consulted, or have no role?"
There was considerable agreement among all respondent groups that victims of crime have a legitimate role to play in the criminal justice process.
Defence counsel regards the victim primarily as a witness and a source of information. Some of them believe that victims are entitled to be consulted to some extent, especially before irrevocable steps are taken (34%).
Defence counsel 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. However, as Table 4 indicates, a sizeable minority (ranging from 34% to 23%) of defence counsel think the victim should be consulted at bail decisions, plea negotiations and sentencing.
Bail Decisions
Among the criminal justice professionals surveyed in this research, a substantial proportion in all categories believes that victims should be consulted in bail decisions. Defence counsel were the least likely among all respondent groups to support a consultative role for victims at bail.
Among defence counsel surveyed, one-third believe that victims should be consulted, while about half believe that they should simply be informed, and one-fifth believe that they should have no role at all. In interviews, defence counsel expressed their conviction that the victim's input should never be determinative, although they acknowledged the Crown Attorney's need to get information from the victim about safety issues and the desirability for some amount of victim input about conditions. A few of those interviewed said that any victim involvement in bail determinations erodes the presumption of innocence and should, therefore, be very limited.
Plea Negotiations
Defence counsel are the least prepared of the respondent groups to accept a prominent role for victims in plea negotiations. One-quarter of those surveyed approve of consulting the victim, whereas almost 40% support keeping the victim informed, and the same proportion believes that the victim should have no role whatsoever. In interviews, defence counsel who favoured no role for the victim pointed out that the decision whether to accept a plea must be based on the evidence, which is a legal issue that the victim cannot evaluate. Similarly, those who approved of consulting the victim during negotiations did so with the proviso that the Crown Attorney's discretion should remain unfettered.
Sentencing
Although there is considerable support among most respondent groups for consulting victims at sentencing, defence counsel were the least likely of all respondent groups surveyed to approve of consulting the victim at this stage.
In interviews, a few defence counsel 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. Defence counsel 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.
2. 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 defence counsel practices with respect to victim protection in bail determinations.
Defence Counsel and Judicial Practices at Bail
In surveys and interviews, defence counsel were asked, "In bail determinations, do you generally agree to conditions that address complainant safety? If no, for what reasons do you object? Almost all defence counsel surveyed (95%) usually agree to such requests.
In interviews, defence counsel observed that they have no reason to object to reasonable conditions. They defined conditions as reasonable if there is a nexus between the conditions requested, the victim, and the crime, and if the conditions are not too restrictive on their client. Examples given of unreasonable conditions included orders not to attend the residence when the accused works out of the home or not to attend the victim's workplace when the accused also works there. Defence counsel also noted that the accused can benefit from properly framed conditions, not only because conditions improve the chance that the accused will be released on bail, but also because conditions can ensure that there is no repeat offence.
In interviews, defence counsel also commented extensively on bail determinations in domestic violence cases. In these cases, counsel said that the determination of reasonable conditions is more difficult. Many noted that the application of blanket no contact orders is often detrimental to both their client and the victim. Often the victim wants the accused home because of financial, emotional, or family reasons. Especially if children are involved, defence counsel find that no contact orders harm the family unit and almost ensure that their client will violate the order. Virtually all defence counsel surveyed in this research (97%) reported that judges typically grant requests for conditions to address the victim's safety in bail determinations.
3. 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. 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 defence counsel gave several examples of instances where publication bans are most likely to be granted.
Defence counsel surveyed are evenly split between those that 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.
| 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% |
Defence counsel surveyed noted that publication bans in non-sexual assault offences are uncommon. About one quarter of the defence counsel surveyed believe that judges usually grant these requests where they are made.
Exclusion of the Public
A large majority of the defence counsel surveyed (70%) do 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).
Defence counsel surveyed agreed that requests to exclude the public are extremely rare. Fifteen percent of defence counsel 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 while videotaped testimony is the least popular among defence counsel. Please refer to Table 6.
TABLE 6: 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 defence counsel surveyed usually agrees to requests for the use of a screen 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.
Three-quarters of defence counsel surveyed believe that judges usually grant the use of screens.
Closed-circuit Television
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.
Forty-five percent of defence counsel surveyed believe that judges usually grant requests for closed-circuit television.
Videotaped Testimony
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.
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.
About half of defence counsel surveyed believe that judges usually grant requests for videotaped 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. 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.
| 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
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.
Just over two-thirds of defence counsel respondents surveyed said that judges usually grant the use of support persons when such requests are made. This compares with more than 80% of judges surveyed who reported usually granting these requests.
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 defence counsel 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)
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 8 shows that defence counsel were least likely among all respondent groups to 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 9 shows respondents' opinions on how section 486 (2.3) should be expanded. Among defence counsel support was most widespread for expanding the section to adult witnesses in the category of offences to which it currently applies (45%). There was also considerable support for expanding the section to any case where the witness is vulnerable or intimidated by the accused or where there is a power imbalance between victim and accused (22%). Some defence counsel support expanding the section to domestic violence cases in particular (10%) and to all crimes of violence (10%). In interviews, many defence counsel 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 them, 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.
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