Testimonial Support for Vulnerable Adults (Bill C-2): Case Law Review (2009-2012)

1. Introduction

Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Actreceived Royal Assent on July 21, 2005. The bill included amendments to facilitate witness testimony, which came into force on January 2, 2006.  These amendments were intended to provide greater clarity and consistency for the use of testimonial aids and other measures for victims and witnesses under the age of eighteen years, and also made testimonial aids and other measures available to vulnerable adult witnesses for the first time. Testimonial aids include allowing a witness to testify behind a screen, outside the courtroom by closed-circuit television, and to be accompanied by a support person during their testimony. 

The 2006 amendments made testimonial aids available for all victims and witnesses under the age of eighteen years and adult witnesses with a mental or physical disability upon application unless they would interfere with the proper administration of justice (“presumptive” orders). 

The 2006 amendments also made these testimonial aids available to other vulnerable adult witnesses on a discretionary basis if the judge believes they are necessary to obtain a full and candid account from the witness.  When deciding whether to order a testimonial aid for an adult witness, the judge will take into account factors such as the nature of the offence, and the nature of the relationship between the witness and the accused. 

The 2006 amendments also expanded the court's ability to appoint a lawyer to conduct the cross-examination of a victim when the accused is self-represented. In cases involving witnesses under the age of eighteen and adult victims of criminal harassment, an order appointing a lawyer to conduct the cross-examination will be granted upon application unless it would interfere with the proper administration of justice.  The judge also has the discretion to appoint a lawyer to cross-examine any adult witness in any proceedings where the judge believes it is necessary to obtain a full and candid account from the witness.

In 2010, the Department of Justice Canada released a report, Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2): Case Law Review and Perceptions of the Judiciary (Bala et al. 2010) referred herein as the 2010 Bill C-2 Case Law Review.  This report included an analysis and summary of the reported Canadian case law decided since the enactment of Bill C-2 (January 2, 2006) up to June 30, 2009 and considered the question: Since Bill C-2 came into effect, what does case law reveal about the new law and how has Canadian legal literature dealt with these legal reforms? It deals most comprehensively with provisions relating to child witnesses, but also considers accommodations for adult vulnerable witnesses.

This review of case law from June 30, 2009 to December 31, 2012, is intended to supplement the 2010 Bill C-2 Case Law Review; it deals only with how these provisions have impacted the experience of vulnerable adult victims and witnesses. In order to give context to this 2013 Bill C-2 Case Law Review, there is some duplication of the discussion of cases considered in the 2010 Bill C-2 Case Law Review, and occasionally limited reference to pre-2006 case law that interpreted the previous provisions. 

There are two tables that can be found in the Appendices. These briefly describe some of the relevant cases that have considered the interpretation of the Criminal Code provisions relating to vulnerable witnesses, and which include a brief description of the basis upon which the application was or was not granted, and describes the evidence led in support of the application.   It is hoped that these Charts permit the reader to quickly isolate the key principles for consideration when application for a Bill C-2 accommodation is made. 

It was noted in the 2010 Bill C-2 Case Law Review, that there is very little case law pertaining to vulnerable adult witness provisions. The review completed for this document also suggests that applications for the use of testimonial aids for adults are still relatively infrequent. Also, that when applications are made for the use of testimonial aids for adults, it continues to be that they are generally successful, but they are less likely to be granted than applications for child witnesses.

Readers are also encouraged to read the companion report entitled, Vulnerable Adult Witnesses: The perceptions and experiences of Crown Prosecutors and Victim Services Providers in the use of testimonial support provisions (2013) by Pamela Hurley. The findings in this report, from in-depth interviews with Crowns and victim services providers, add nuances to the case law.

2. Method

The focus of the legal research was on cases that were decided after June 30th, 2009 to December 31st, 2012.  Some cases were considered from before this time period if they were considered relevant to the topic of the case law review. It was decided that a chart would be the best way to summarize the information and relevant principles from the cases for sections 486.1 - 486.3, with attention to the following factors: the level of court, kind of court proceeding, vulnerability of witness and relationship to accused, what material was used to support the application, whether it was opposed and what, if any, objections were raised, and the key rulings.

The student researcher used Westlaw “keycites” for sections 486.1, 486.2 and 486.3 both generally and according to the subsections.  The cases considering these sections were reviewed. There were roughly 100 cases generated by these searches.  It was quickly apparent that many of the decisions dealt with child witnesses, not adult witnesses, and that there was duplication of cases.  The electronic search on Westlaw relating to s. 715.2 was abandoned as adult cases could not be readily isolated from cases decided under s. 715.1. The Quicklaw search followed a similar format, with more of a focus on searches of summaries, and using the legislation citator. Roughly the same number of cases were identified, and again, significant duplication. The search of s. 715.2 cases was conducted in Quicklaw, with the field narrowed using search terms such as “adult” and “vulnerable” proximate to videotape.  It became apparent that there were very few actual rulings relating to the use of testimonial accommodations for vulnerable adults, although some cases referred to the fact that an accommodation had been ordered without explaining why.

The researchers also considered a list of cases and charts generated in 2009 by a B.C. Ministry of Justice lawyer who had tracked the application of Bill C-2 in British Columbia, and this included some unreported decisions.  The researchers also reviewed articles and a text, referred to in the case law review, to confirm that the relevant cases had been captured by the electronic research.

3. Accommodations for Vulnerable Adult Witnesses

3.1 The legislative scheme for support persons and testimony behind a screen or outside of the courtroom

The following is a summary of the Criminal Code provisions that provide for testimonial accommodations for vulnerable witnesses.  The full text of the provisions can be found in the Appendices and should be reviewed for completeness.  It is noteworthy that the provisions for a support person and a screen, CCTV or other device provide for both presumptive and discretionary accommodations. With respect to the discretionary applications, the factors to consider are enumerated, and are the same. Also, that in either instance, the judge retains a discretion to refuse to grant the order if it would “interfere with the proper administration of justice.” Both provisions provide that an order can be made before the court proceedings. 

The new regime established by Bill C-2 provides three different avenues for the Crown or a vulnerable witness to request an order for the use of a testimonial aid in any trial or preliminary hearing. Under subsection (1), the order is mandatory in relation to a child witness or a disabled witness unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. Under subsection (2), the order is discretionary in relation to any adult witness if the judge or justice is of the opinion that the use of a testimonial aid is necessary to obtain a full and candid account of the acts complained of, having regard to the criteria contained in subsection 486.1(3). Finally, under subsection (4), the order is discretionary and may be made at the court's initiative where the charges arise out of organized crime, terrorism or specified offences under the Security of Information Act and the judge or justice is of the opinion that the order is necessary to protect the safety of the witness or to obtain a full and candid account of the acts complained of.

The subsection creates a presumption that a child or “a witness who may have difficulty communicating evidence due to a physical or mental disability” can testify from behind a screen or outside the courtroom. Unless the order would prejudice the accused's right to a fair trial or otherwise interfere with the proper administration of justice, the court “shall” make the order where requested to do so by the Crown or the witness. The Crown may have an evidentiary burden if the existence of a mental or physical disability that may impact on the ability of a witness to testify is disputed. However, once the presumption is engaged, the respondents bear the burden of establishing that the use of a testimonial aid would interfere with the proper administration of justice.

As described in R. v. Alam, 2006 ONCJ 59, section 486.2(2) is new. It is intended to recognize and accommodate adult witnesses who may be vulnerable to intimidation. This section permits a court to make an order for the use of a testimonial aid for any witness, if the judge or justice considers it “necessary to obtain a full and candid account from the witness of the acts complained of.” The test to be applied in the exercise of the court's discretion is typically considered to be the same test used in the old s. 486(2.1), allowing a child or disabled adult to testify behind a screen or outside of the courtroom. The onus is on the Crown to establish an “evidentiary basis” for the making of the order concerning an adult witness, having regard to the age of the witness, the presence or absence of mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances considered relevant (the same criteria in the new s. 486.1(3) that the court must consider when making an order to permit a support person to sit near an adult witness). The requisite evidentiary basis could be established through the testimony of a mental health professional or other expert or through the direct testimony of the witness, using the testimonial aid under consideration, as required by s. 486.2(6). In some cases, the submissions of counsel may suffice.

3.1.1 Support person – s. 486.1

[Presumptive] s. 486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness' choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

[Discretionary] s. 486.1 (2) In any proceedings against the accused, the judge or justice may, on application of the a prosecutor or a witness, order that a support person of the witness' choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.

[Factors to Consider] s. 486.1 (3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.

3.1.2 Testimony outside the court room or behind a screen – s. 486.2

[Presumptive] s. 486.2(1) Despite section 650 (accused to be present in the courtroom), in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside of the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

[Discretionary] s. 486.2(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of. Factors the Court takes into account are: the nature of the offence; the relationship of the witness to the accused; whether the witness has a disability; the age of the witness; and any other circumstances the court might deem relevant.

The value of testimonial accommodations has been well documented (see Bala 1993; Bala et al. 2001; 2011) certainly with respect to children, and less frequently with adults.  It is also established that there need not be any impact on trial proceedings by the use of accommodations. The Supreme Court of Canada recently upheld the constitutionality of the presumptive scheme for providing accommodations to children, by upholding B.C. Court of Appeal's decision in R. v. J.Z.S., 2010 SCC 1, 2008 BCCA 401 where that Court said: 

[35] L'Heureux-Dubé J. identified the main objective of the judicial process as the attainment of truth. She acknowledged that, in order for a child to provide a full and candid account of alleged offences, there may be circumstances where testimonial accommodation is required. In that regard, she noted at 487:

One must recall that rules of evidence are not cast in stone, nor are they enacted in a vacuum. They evolve with time. As discussed at length in L.(D.O.), supra, the recent trend in courts has been to remove barriers to the truth-seeking process ( R. v. Khan, [1990] 2 S.C.R. 531; R. v. W.(R.) and R. v. Marquard, [1993] 4 S.C.R. 223). Recent Supreme Court of Canada ( R. v. B.(K.G.), [1993] 1 S.C.R. 740; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khan; and most recently in L.(D.O.)), by relaxing certain rules of evidence, such as the hearsay rules, the use of videotaped evidence and out of court statements, have been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth.

Parliament, on the other hand, is free to enact or amend legislation in order to reflect its policies and priorities, taking into account societal values which it considers important at a given time. ... The only limit placed on Parliament is the obligation to respect the Charter rights of those affected by such legislation.

As mentioned above and as discussed in the companion case [ L.(D.O.)], rules of evidence and procedure have evolved through the years in an effort to accommodate the truth-seeking functions of the courts, while at the same time ensuring the fairness of the trial.

These same features, this balancing of interests, should animate the interpretation of provisions relating to adult witnesses.  These witnesses should be encouraged to participate in the criminal justice system through the use of protective measures, as this assists in getting the best evidence from the witness, while minimizing the trauma to vulnerable witnesses, and ensuring that the rights of accused persons are protected. These are the very features that animate the interpretation and application of the legislation. These were features identified in the Preamble to the former Bill C-2.

4. The purpose of the Bill C-2 amendments

Under the former s. 486(2.1), the court was permitted, in the trial of most sexual or violent offences, to order a witness who was under the age of 18, or who had difficulty communicating evidence by reason of a mental or physical disability, to testify through the use of CCTV or from behind a screen, if the court considered it “necessary to obtain a full and candid account of the acts complained of.” This discretionary accommodation was therefore limited:

  1. by the two discrete categories of witnesses (i.e., children under the age of 18 and adults who may have difficulty communicating evidence by reason of a disability); and
  2. by the type of offence against which the witness was required to testify.

As a result of the amendments in Bill C-2, s. 486.2 now extends the benefit of accommodation to witnesses in any legal proceeding and, in particular, provides two ways by which adult witnesses can obtain testimonial accommodation presumptively.

The first way is under subsection (1). Adult witnesses who can use s. 486.2(1) are those who are “able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability”. Once the Crown has established that the witness may have difficulty testifying due to a disability, the judge or justice is required to make the order unless doing so would interfere with the administration of justice. Similarly, if an adult witness is able to communicate evidence but, because of a disability, may have difficulty doing so (and in this respect, may be considered “like a child”), then they too are presumptively allowed accommodation under the same section.

From this review of case law it appears that applications under the presumptive scheme are often blended with an application for a discretionary order, with the result that even in presumptive situations, the judges consider the factors enumerated in discretionary applications.

However, if an adult witness is vulnerable for some other reason, then the analysis shifts to s. 486.1(2) and s. 486.2(2) to determine whether accommodation is necessary to obtain a full and candid account from that witness. This discretionary procedure therefore imports the “full and candid account” test, and judges appear to consider the case law decided under the pre-Bill C-2 legislation to interpret this provision.

In order to assist with the application of this standard, factors are enumerated for the judge’s consideration (referred to in s. 486.1(3)), namely:

  1. the age of the witness;
  2. whether the witness has a physical or mental disability;
  3. the nature of the offence;
  4. the nature of the relationship between the accused person and the witness seeking accommodation; and
  5. any other circumstances the court considers relevant.

The preamble of Bill C-2 sheds light on the legislative objective of the amended provisions. It reads, in part, that Parliament wished to “encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected” (emphasis added).

In February, 2005, Irwin Cotler, then Minister of Justice and Attorney General of Canada, explained the purpose of Bill C-2 to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. In Cotler’s words,Footnote 1

… [T]here are also a lot of adult victims who are revictimized by the criminal justice system, particularly sexual assault victims and spousal abuse victims. Bill C-2 includes a set of reforms that are intended to benefit them as well, including in particular sexual assault victims, victims of criminal harassment, and domestic violence victims, who are, as I indicated, vulnerable to revictimization as a result of their experience as a witness, the nature of the offence, their relationship with the accused, or their own particular circumstances. …

In other words, in this legislation we aim to extend the testimonial aid to adult victims in some circumstances that recognize how and when this balance must be struck.

It was recognized in the 2010 Bill C-2 Case Law Review that applications are infrequent, and that continues to be the case. The following observations may be made from a consideration of the cases enumerated therein, regarding the circumstances of the witness and the case that influence whether an application for an accommodation is successful. In addition, consideration should be given to the 2010 Bill C-2 Case Law Review.

Age of the Witness

It is apparent that adult witnesses who are closer in age to eighteen (the cutoff for a presumptive order) are more likely to be granted an accommodation under the discretionary scheme.

Type of Disability

It is arguably problematic that both the presumptive and discretionary schemes refer to adults with a “physical or mental disability” (as a precondition to the presumptive order, or as a factor to consider in the discretionary order). Also, this is a not a homogenous group and it is apparent that the criteria with respect to what constitutes a disability are inconsistent (See R. v. Billy, 2006 BCPC 203).

Nature of the Offence

It is apparent that the accommodations are most likely ordered when the victim or witness is testifying in a sexual assault case, although domestic violence and other crimes of violence are considered the kind of cases where an accommodation is “necessary”. This may manifest a reluctance on judges to impose accommodations which impact the “conventional” way of receiving evidence, this being viva voce testimony in the courtroom.

Timing of Application

Applications for testimonial accommodations can be made before the court proceeding or during the court proceeding. This is an important change as applications brought well in advance allow the parties to properly set up the accommodation and otherwise govern the proceedings (such as arranging for a CCTV camera or screen). The problematic feature of the legislation is that the application must be brought before the trial judge. The practical fact is that a judge’s rota changes, and it is sometimes difficult to arrange for the matter to be heard in advance. Similarly, if a witness testified at a preliminary inquiry with or without an accommodation is a factor that a judge will consider: R. v. Buckingham, [2009] O.J. No. 3546 (C.Jus.) at [6], R. v. Clark, [2007] O.J. No. 1553 (C.Jus.) at [5]-[7], R. v. D.(C.), [2010] O.J. No. 4351 (C.Jus.) at [3]-[5], R. v. Land, 2012 ONSC 4080.

Evidentiary basis for testimonial accommodation – Presumptive – In R. v. Alam, 2006 ONCJ 593 the Court stated:

[20] The subsection creates a presumption that a child or “a witness who may have difficulty communicating evidence due to a physical or mental disability” can testify from behind a screen or outside the courtroom. Unless the order would prejudice the accused's right to a fair trial or otherwise interfere with the proper administration of justice, the court "shall" make the order where requested to do so by the Crown or the witness. The Crown may have an evidentiary burden if the existence of a mental or physical disability that may impact on the ability of a witness to testify is disputed, as it was in this case. However, once the presumption is engaged, the Respondents bear the burden of establishing that the use of a testimonial aid would interfere with the proper administration of justice.

Evidentiary basis for testimonial accommodation – Discretionary - A “full and candid account”

Before allowing an application under s. 486.2(2), the judge or justice must be “of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.” The Crown bears the onus of establishing the necessity of the order. This necessity requirement is often considered to be the same threshold test that existed under the former s. 486(2.1), therefore the previous case law dealing with testimonial accommodation is instructive in this respect. The chart on case law in the Appendices assists in determining what is meant by a “full and candid account”, and sheds light on the circumstances in which the court has allowed the accommodation.

In Buckingham, the judge noted that there must be an evidentiary basis that the accommodation is necessary: at [24]. There must be “something more” than a simple desire not to see the accused, as there must be an impact on the ability to testify fully and candidly: at [27], [29]. An application was refused in R. v. D.(C.) on the basis that it was based on fear of reprisal, not testimonial “necessity:”

[17] A judicial decision to depart from the normal trial procedure must have a rational basis. There must be some evidence upon which the court could be satisfied that there is a legitimate foundation for the concern – one that would warrant intervention by the court. . . This “common and subjective concern” is not intended to be sufficient to provide a proper foundation for an order under s. 486.2. . . if that form of concern was sufficient, it would be a slippery slope.

The judge in R. v. D.(C.) noted that the witnesses did not need to testify in support of the application (had they needed to, accommodations would have had to have been made available:

s. 486.2(6)). With respect to allowing the detectives to testify instead of the witnesses, the judge indicated that if he needed to hear from witnesses he would have them called – but that would cause delays to get witnesses and in order to set up CCTV for the application and “the other reason is that given the concerns expressed by these witnesses, I thought that it was preferable not to subject them to yet another appearance in this proceeding if that could be avoided.” at [3]. And see R. v. Esford, 2011 BCSC 1718 at [6], [7], R. v. Khreis, [2009] O.J. No. 5687 (Sup.Ct.) at [6]. This reasoning is consistent with a reluctance to embrace the positive features of accommodation, and resist change that could facilitate the participation of these witnesses, see for example, R. v. Forster, 2006 BCPC 237 at [6], [7].

Interference with the proper administration of justice

This residual discretion can be exercised to deny the use of an accommodation in the presumptive scheme. This discretion should be exercised only if the accommodation would interfere with the fair trial rights of an accused, R. v. J.Z.S., 2010 SCC1, 2008 BCCA 401 and in a manner that is consistent with the purpose behind the provisions. It is established in the case law that there is no true impact from the use of a screen or CCTV (the witness is virtually present) and these are not unconstitutional (see also R. v. C.N.H, 2006 BCPC 119). As noted in Alam, “society’s interest in accommodating a disabled witness to promote the truth-seeking objectives of a trial must be carefully balanced with the right to fair trial.” at [34]. Despite this, there are cases where judges have denied applications because of residual concerns, or reluctance to use the technology because it may impact credibility: R. v. D.(C.) at [19], or because it may prejudice a jury: R. v. Kerr, 2011 ONSC 1231 at [16], R. v. Salehi, 2011 ONCJ 39 at [26].