Vulnerable Adult Witnesses: The perceptions and experiences of Crown Prosecutors and Victim Services Providers in the use of testimonial support provisions

Executive Summary

This is an exploratory study examining the perceptions and experiences of Crown prosecutors and victim services providers of the testimonial support provisions for vulnerable adult witnesses found in s.486 of the Criminal Code. The purpose of the research is to gain a clearer understanding of how the provisions on testimonial accommodations are being used in Canada to assist vulnerable adult witnesses in providing their testimony. These provisions were expanded and clarified in January 2006 with Bill C-2, which also included a five year parliamentary review.  Little is known about how testimonial aids are being used to assist vulnerable adult witnesses in providing their testimony.  This research is intended to address this gap.

The study consisted of a series of semi-structured interviews with crown prosecutors and victim services providers from jurisdictions across Canada. Eighteen Crowns were interviewed from eight different jurisdictions, and eleven victim services providers were interviewed from five different jurisdictions.  Their locations included large and mid-sized urban centres and small communities in rural and remote areas.

Readers are encouraged to also review the companion report entitled, Testimonial Support for Vulnerable Adults (Bill C-2): Case Law Review (2009-2012), by Mary Ainslie.

Key Themes Emerging from the Research

Using the information collected from the interviews the following observations are made:

  • In many jurisdictions, the number of vulnerable adult victims and witnesses was not known. Applications for testimonial accommodations for vulnerable adult witnesses are not common, and few adults with disabilities in the witness population are identified in need of a testimonial accommodation. 
  • Crowns indicated that they made more “discretionary” applications than “presumptive” applications for adults with a disability. When made, the majority of “presumptive” applications were granted.
  • There was a strong sense among the participants that collaboration and communication between Crown prosecutors and victim services are key factors in working with vulnerable adult witnesses.
  • Case flagging by police and early meetings with prosecutors and victim services were identified as important factors in ensuring timely applications, availability of the testimonial accommodation(s), scheduling adequate court time and in avoiding adjournments. 
  • Testimonial accommodations are presumptively available for witnesses with a disability.  However, in order for a testimonial aid to be granted, the Crown must establish that the witness will have difficulty communicating the evidence because of the disability. Crowns noted that the process of applications varies considerably within and across jurisdictions. The types of disabilities of witnesses reported by respondents vary considerably and include persons with intellectual disabilities, psychiatric disabilities, brain injury, Fetal Alcohol Spectrum Disorder (FASD), Down syndrome and post traumatic stress disorder.  For other adult witnesses, the Crown must establish that the accommodation is necessary to obtain a full and candid account from the witness.  Applications were made most frequently where there were charges related to sexual assault and domestic violence. Across jurisdictions, evidence from police officers, victim services providers, personal support aids, experts, existing documents and letters from physicians and oral submissions by the Crown, have been used in support of both “presumptive” and “discretionary” applications for vulnerable witnesses.
  • The time involved in making applications was a barrier reported by many Crowns. Evidence must be prepared and presented to support the Crown’s application. Defence counsel do not typically consent to applications for vulnerable witnesses (although there are some notable exceptions).  Cost of assessments is a factor to be considered. There is also the consideration that the application will not be successful.
  • Regarding the use of testimonial aids, witness screens were the most frequently applied for accommodation. Applications for a support person were almost as frequent as for screens and were often applied for in combination with screens or close-circuit television (CCTV). Applications for testimony outside the courtroom via CCTV or video-conferencing were half as frequent as applications for screens.
  • Crowns and victim services providers noted that access to testimonial aids in jurisdictions varies.  In northern communities access to CCTV or videoconferencing equipment is limited. Screens are not available in many circuit courts.  Some large urban courthouses do not have CCTV.
  • Applications for testimonial aids are frequently made on the first day of court. Making an application ahead of time, before the judge or justice who will preside over the matter, was described as problematic by many respondents.
  • For many respondents, understanding the impact of trauma and victimization is an essential component of working with vulnerable witnesses. Greater awareness of the diversity of disabilities of victims and witnesses is seen as essential to good practice.

1. Background

The goal of the court process is truth-seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.
- Madame Justice L”Heureux-Dubé, in R.v. Levogiannis [1993] 4 R.C.S. 475.

Since 1988, the Parliament of Canada has made a series of amendments to the Criminal Code and the Canada Evidence Act, which recognized the unique needs of child witnesses. On July 21, 2005, Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act received royal assent. The provisions relating to testimonial aids came into force on January 2, 2006. The Bill included amendments to facilitate witness testimony and was intended to provide greater clarity and consistency for the use of testimonial aids and other measures for victims and witnesses. The legislation, addressing the needs of children and recognizing the special needs of vulnerable adult witnesses, moved from a case-by-case test to a presumption that all children under age eighteen and adults with a mental or physical disability can qualify for testimonial accommodations. Other witnesses may be permitted to use a testimonial aid if the judge or justice is of the opinion that such an order is necessary to obtain a full and candid account from the witness. In making that determination for these other witnesses, the judge or justice will take into account the nature of the offence, the nature of any relationship between the witness and the accused, whether the witness has a mental or physical disability, and any other circumstance that is deemed relevant.

The following sections will provide a brief overview of the Criminal Code provisions on a support person and screen and closed-circuit television, victims and witnesses in the criminal justice system and some current writing on this issue.

1.1 A Brief Overview of Testimonial Aids

1.1.1 Testimonial Aid Provisions in the Criminal Code - Support Person

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.

s. 486.1 (2) In any proceedings against the accused, the judge or justice may, on application of the 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.

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.

1.1.2 Testimonial Aid Provisions in the Criminal Code - Testimony Outside the Court Room or Behind a Screen

s. 486.2(1) Despite section 650 (Accused to be present in Court), 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.

s. 486.2(2) This section addresses the testimony of vulnerable adult witnesses who require a testimonial accommodation in order to provide a full and candid account of their evidence to the Court. In granting an application, the presiding judge or justice must be satisfied that the order is necessary.

s.486.2(3) Factors the Court takes into account are: the nature of the offence; the relationship of the witness to the accused; the age of the witness; and any other circumstances the court might deem relevant.

1.1.3 Presumptive and Discretionary Applications

For the purposes of this report, applications for witnesses who have a mental or physical disability, and who are able to communicate evidence, but may have difficulty doing so by reason of a mental or physical disability, are described as “presumptive.” Applications for other adult witnesses who require a testimonial aid in order to provide a full and candid account of their evidence to the Court are described as “discretionary.”

1.1.4 Victims and Witnesses with Disabilities in the Criminal Justice System

Two United Nations Documents, the Convention on the Rights of Persons with Disabilities (herein referred to as UNCRPD) and the Declaration on the Basic Principles for Victims of Crime (herein referred to as DBPVC) have contributed significantly to the rights of individuals with disabilities who are involved in the criminal justice system.

The United Nations adopted the UNCRPD in 2006, making it the most recent international agreement on disability rights (Stienstra 2012). One year later, Canada signed the UNCRPD and later ratified the agreement in 2010 (UN Enable 2006). The UNCRPD’s purpose is: “...to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (UN Enable 2006).

The DBPVC also states that victims of crime should be provided “proper assistance” throughout the legal process (Belak 2012, 4). As this assistance is delivered to victims, it is required that those with special needs due to disability are given attention. The safety of victims must also be ensured and their privacy protected (Belak 2012, 4).

The Canadian Charter of Rights and Freedoms reflects the ideals articulated in the UNCRPD and the DBPVC.  Article 15 ensures equal recognition before the law, and equal benefit of the law without discrimination based on mental or physical disability (Constitution 1982). According to UNCRPD, the implementation of Article 15 requires that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (UN Enable 2006). It also states that persons with disabilities must be “safeguarded” to prevent abuse (UN Enable 2006). 

Secondly, the Canadian Human Rights Act (1977) mandates a “duty to accommodate”, which requires that service providers “take steps to eliminate different and negative treatment of individuals, or groups of individuals based on prohibited grounds of discrimination” (Duty 2013). Lastly, the Canadian Human Rights Act stipulates that State Parties must “promote appropriate training” for administrators of justice. This is to ensure that persons with disabilities experience effective access to justice, equal to their non-disabled counterparts.

1.2 Current Literature

There is a growing body of literature addressing vulnerable adult victim and witness participants in the justice system process.

In a 2009 Canadian study, the authors interviewed victim services providers to gain further understanding of how Fetal Alcohol Spectrum Disorder (FASD) impacts the full participation of victims and witnesses in the criminal justice system. The most frequent suggestion was that training on FASD be provided to all justice professionals. It was repeatedly noted that there is a lack of awareness of FASD within the criminal justice system (Fraser and McDonald 2009).

The challenges posed by cross-examination for witnesses with cognitive, developmental, or intellectual disabilities were examined in Taking the Stand: Access to Justice for Witnesses with Mental Disabilities in Sexual Assault Cases (Benedet and Grant 2012). The authors describe cross-examination as a systemic barrier and argue that existing Criminal Code accommodations are inadequate to ensure a full and candid account. The authors propose the use of intermediaries as one solution for witnesses with mental disabilities which would allow witnesses to have assistance in understanding questions and in communicating their evidence to the court as fully as possible.

The Missing Women Commission of Inquiry examined the policies and practices in the treatment of vulnerable and intimidated witnesses. Vulnerable witnesses are defined as those who, because of their personal characteristics, may have difficulty testifying in a regular adversarial trial process.  Intimidated witnesses are described as those who are unwilling to participate because they fear retaliation for their role in identifying or testifying against offenders (Belak 2012).

Rupert Ross (2009) explores the impact of trauma, the role of residential schools on the lives of First Nations people, the impact of emotional suppression and disconnection in Aboriginal Canada within the context of the justice system. Understanding the emotional and psychological responses to victimization is very important for Crown prosecutors to articulate to the judge when making an application for a discretionary testimonial aid.

In a study undertaken by Bala et al. (2011) after the former Bill C-2 came into force and effect, judicial experiences with, and opinions about, the amendments to the Criminal Code and the Canada Evidence Act for children and vulnerable adult witnesses were explored. Thirty judges were surveyed about their experiences and opinions of testimonial support provisions for children and vulnerable adults. The Criminal Code lists the factors (s.486.1(3)) that the judge may take into consideration on deciding whether or not to grant a discretionary application. The most common situations were “mental handicap/deficiency, the nature of the charge itself, sexual assault victim, and age.” (Bala et al. 2011).

For a summary of the literature reviewed and additional international resources, please see Appendix A.

2. Methodology

2.1 Participant Recruitment

Working through the Federal Provincial Territorial Working Group on Victims of Crime, a letter of information, which introduced the consultant and provided details on the research, was sent to chief prosecutors in the jurisdictions. The letter requested that they identify Crown prosecutors in their office/jurisdiction, with specific experience in making applications for testimonial aids for vulnerable adults. Crowns in eight jurisdictions participated.  This process also introduced the consultant to directors of victim services in several jurisdictions. A list of identified victim services providers in five jurisdictions was provided to the consultant. Potential participants were contacted by email or telephone to determine their interest in being interviewed and the questionnaire and a consent form were sent to participants. The interviews were semi-structured and lasted between sixty to ninety minutes.

The research was conducted in accordance with the Tri-Council Policy Statement on Ethical Conduct and Research involving Humans Footnote 1. The consent form stipulated that no individual, nor specific jurisdiction would be identified by name in the resulting report. The consent form and questionnaire can be found in the Appendices.

2.2 The Participants

Eighteen Crown prosecutors and eleven victim services providers were interviewed.

2.2.1 Crown Prosecutors

The Crown prosecutors interviewed represented a wide variety of jurisdictions, working in large urban courthouses, as well as satellite and circuit courts.  Some work in offices where there were only a few Crowns and others in offices where there were 50 – 100 Crowns. Several travel or have travelled on circuit court and to satellite courts within their region. The majority of Crowns who participated have over ten years of prosecution experience, with some having more than twenty years experience. Some provide mentoring and resources for others in their offices.

2.2.2 Victim Services Providers

The victim services participants represent a wide variety of jurisdictions, working in large and mid-size urban areas and rural and remote communities. The majority of respondents are court based.  Approximately half of those interviewed have experience working in satellite courts and some in remote “fly-in” courts. Several are managers. Most have undergraduate or graduate degrees in social work or other related disciplines and all have several years of experience working with vulnerable adult witnesses. Half of the participants have given evidence in court to support an application for a testimonial aid for a vulnerable adult witness.

2.2.3 Collective Information

One Crown prosecutor, as well as one victim services provider, provided the collective information of ten of each of their colleagues. This additional information is included in this report.

2.3 Limitations of the Study

All of the Crowns participating in this study were recommended because of their experience in making applications for testimonial aids for vulnerable adult witness. Their experiences ranged from making a single application to making over ten applications in either “presumptive,” “discretionary” or both categories. All of the victim services providers were identified because of their experience in working with vulnerable adult witnesses. Thus, those interviewed were not randomly sampled and may overestimate the experience of those working with vulnerable adult witnesses.

The findings of the study only represent the experiences and perspectives of those who were interviewed and should not be generalized to all Crowns and victim services providers in their jurisdictions, nor should the jurisdictions be generalized to all of Canada.

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