Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada : Summary of Victim Services Providers and Victim Advocacy Group Respondents

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3.5 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 discusses the extent to which victim services providers and advocacy groups believe that victim safety is considered at bail.

Consideration of Victim Safety at Bail: Obstacles

Despite the results from the surveys and interviews with criminal justice professionals, which suggest that these professionals are concerned about protection of the victim at bail, about 30% of victim services providers and one-quarter of advocacy groups surveyed believe that the victim's safety is generally considered in decisions about bail and conditions of release. Although several victim services providers acknowledged in interviews that there has been substantial evolution in this regard and that police and Crown Attorneys are very sensitive to safety issues, the larger group of those surveyed identified numerous obstacles to the consideration of victim safety, as shown in Table 9.

TABLE 9: WHAT ARE THE OBSTACLES TO THE CONSIDERATION OF VICTIM SAFETY AT BAIL? BASE: RESPONDENTS WHO BELIEVE THAT VICTIM SAFETY IS NOT GENERALLY CONSIDERED AT BAIL DETERMINATIONS.
Obstacles: Victim Services (n=163) Advocacy Groups (n=31)
Victim's concerns not taken seriously by Crown Attorneys or court 24% --
Rights of accused take precedence over victim's rights 16% 13%
Lack of knowledge or understanding of domestic violence and abuse 15% 23%
Inadequate assessment of risk by court 12% 19%
Breaches of conditions not taken seriously 13% --
Failure to notify victims about release or conditions on release 9% --
Victim not adequately consulted or unwilling to participate 8% 16%
Victim has inadequate resources (financial, shelter) 3% --
Other 12% 16%
No response 14% 19%

Note: Respondents could provide more than one response; totals sum to more than 100%. This question was open-ended.

Although about one-quarter of victim services providers surveyed simply observed that the Crown Attorney and the court do not take the victim's concerns seriously, others identified more specific impediments to the consideration of victim safety. For example, 16% observed that the rights of the accused take precedence over victims' safety concerns at bail determinations. In interviews, they expanded on this idea, explaining that in their view, the presumption of innocence discourages judges from locking up accused persons. A few victim services providers also said in interviews that overcrowding in jails and a lack of resources for keeping people in jail leads judges to release the accused rather than remanding them into custody.

Another frequently mentioned obstacle is an ongoing lack of understanding of domestic violence and the dynamics of partner abuse on the part of the Crown Attorneys and the judiciary (this obstacle was mentioned by 15% of victim services providers). In interviews, several victim services providers said that domestic violence and spousal abuse continue to be perceived as less serious offences. This problem is exacerbated by the fact that in these cases, the victim is often reluctant to come forward with safety concerns due to intimidation from the accused or the family of the accused. Consequently, the court underestimates the actual risk to the victim that could result from the release of the accused. Furthermore, 12% of victim services providers surveyed consider the inadequate assessment of risk to be a more general problem affecting other types of cases.

Finally, a small proportion of victim services providers surveyed (9%) commented on the conditions imposed on the accused and their enforcement. They argued that in many cases, bail conditions are not respected and there are no repercussions for the accused. According to these victim services providers, there is little or no police protection against breaches of conditions. Please see Table 9 above for other perceived obstacles.

Victim Notification of Bail Decisions

Victim services providers who participated in interviews were asked to comment on difficulties in notifying victims of bail decisions. Common issues include identifying and contacting victims in time for bail hearings, which take place very shortly after the arrest of the accused, and reaching victims who are transient (i.e., those who move frequently and whose addresses and phone numbers change). Other issues include lack of consistency and persistence on the part of the police and the Crown Attorneys in locating victims and informing them about bail decisions, and difficulties that they, as victim services providers, experience in obtaining information about bail from Crown Attorneys and police. According to a few victim services providers, other difficulties include a lack of human and financial resources, and federal privacy legislation that restricts the information that can be shared with victim services. [3]

Victim services providers who believe that there are no difficulties in notifying victims of bail decisions indicated that there is a protocol in place in their communities regarding victim notification of bail decisions, or explained that they always ensure that victims receive information on bail decisions and conditions.

3.6 Provisions to Facilitate Testimony

Recognizing that testifying in court can be especially traumatizing for young victims, 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 as 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 and the perceptions of victim services providers and advocacy groups on how they are being implemented.

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.

Victim services providers and victim advocacy organizations, for their part, had little to say on the subject of publication bans. Very small proportions of those surveyed (11% and 15%, respectively) said that there are obstacles to their use, including the principle of an open court, Crown Attorney reluctance to make the requests, ad judicial reluctance to grant them. In interviews, several victim services providers stated that victims are generally not informed of publication bans or else they are not informed sufficiently in advance to make a request, and a few suggested that publication bans do not adequately protect victims. According to the latter group, publication bans are usually applied to the name of the victim, although many other details of the crime continue to be published and can easily lead to identifying the victim. It was also suggested that more frequent use of publication bans may encourage some victims, particularly victims of spousal abuse, to come forward and report offences.

Exclusion of the Public

Just less than one-quarter of victim services providers and victim advocacy organizations surveyed said that there are obstacles to excluding the public from a trial. Close to half of victim services providers who perceive obstacles simply explained that judges are very hesitant about granting these requests. In addition, both victim services providers and advocacy groups cited the principle of an open court as an obstacle (25% and 55%, respectively, of those who perceive obstacles). In interviews, several victim services providers suggested that exclusion of the public from trial should occur more often because family members of the accused are often present to intimidate the victim while testifying.

3.7 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.

Screens

Although many of the victim services providers and victim advocacy organizations surveyed did not know whether there are any obstacles to the use of screens, approximately 20% of victim services providers and 10% of advocacy groups 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, several victim services providers expressed the opinion that Crown Attorneys are reluctant to request the use of screens and to inform eligible victims that this option is available. Logistical obstacles to the use of screens, including a lack of necessary equipment at small sites, were also identified. Victim services providers 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.

Closed-Circuit Televisions

About one-fifth of victim services providers and one-sixth of victim advocacy groups surveyed 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. Victim services providers cited Crown Attorney reluctance to request its use, the fact that it is not often used, and that it is difficult to obtain as obstacles. Victim services providers also identified judicial reluctance to grant the use of closed-circuit television and defence counsel objections, due to cross-examination difficulties, as obstacles.

Videotaped Testimony

Few victim services providers and victim advocacy organizations commented on the subject of obstacles to the use of videotaped testimony; as with the other testimonial aids, large proportions of those surveyed did not know whether any obstacles exist. From their perspective, obstacles include judicial reluctance to grant the use of this aid, the need for victims to adopt their testimony on the stand, the fact that this aid is not often used, Crown Attorney reluctance to request its use, and defence counsel objections.

Overall Perceptions

Most victim services providers and advocacy organizations did not comment extensively on survey questions pertaining to testimonial aids. Nevertheless, it is apparent from those who did offer a response that they believe that victims are not sufficiently aware and informed of these protections, and that they should be used more often and afforded to more victims. It was suggested that the burden should not be on the victim to prove the necessity of these protections, but rather, the criminal justice system should be more accommodating in making witnesses comfortable during their testimony. Several victim services providers were of the view that the aids should be automatic for eligible witnesses.

3.8 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.

Very few of the victim services providers and victim advocacy organizations surveyed believe that there are obstacles to the use of support persons. Victim services providers and advocacy organizations mentioned judicial reluctance to grant the use of a support person, defence counsel objections, and difficulties finding a suitable person to act in this capacity.

3.9 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 extent to which victim services providers and victim advocacy groups support expanding the section to other types of witnesses or other types of offences.

Expansion of Section 486 (2.3)

As Table 10 shows, support for expanding section 486 (2.3) was highest among victim advocacy groups and victim services providers. About three-quarters of respondents in those categories, compared to half of Crown Attorneys and one-quarter of defence counsel, favour expansion of section 486 (2.3) to other offences and/or other victims or witnesses.

TABLE 10: SHOULD S. 486 (2.3) OF THE Criminal Code BE EXPANDED TO OTHER VICTIMS OR WITNESSES OR OTHER OFFENCES? (NOTE: S. 486 [2.3] PLACES RESTRICTIONS ON CROSS-EXAMINATION BY A SELF-REPRESENTED ACCUSED OF CHILD VICTIMS OF SEXUAL OR VIOLENT CRIME.)
  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 respondents' opinions on how section 486 (2.3) should be expanded. Across all respondent groups, support was most widespread for expanding the section to adult witnesses in the category of offences to which it currently applies. 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 victim services providers 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.

TABLE 11: HOW SHOULD S. 486 (2.3) BE EXPANDED? BASE: RESPONDENTS WHO BELIEVE S. 486 (2.3) SHOULD BE EXPANDED.
  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%.


[3] As discussed in a previous footnote, federal privacy legislation is applicable only to the RCMP, not to other police forces.

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