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

3. Interviews and Findings

3.1 Frequency of Applications

Crowns were asked how many application(s) for testimonial aids for vulnerable adults they had made since 2006. A few participants reported that their total experience was in making a single application, while a small number indicated that they had made more than ten applications in the “discretionary” category and between 4 – 10 applications in the “presumptive” category. These experiences reflect the findings of Bala et al., who reported that in cases with vulnerable adult witnesses, 66.7% of the thirty judges surveyed stated that applications for screens or CCTV are never made, 16.7% of judges said that they are occasionally made and 11.1% said that they are always made (Bala et al. 2011, 53).

Participants were also asked about their experiences and perceptions of making applications under s. 715.2 to introduce video-recorded evidence of an adult witness who has a disability, applications under s. 486 (1), for an exclusion of the public and s. 486.3(2), for appointment of counsel for cross-examination. The results are discussed below.

3.2 How and When is the Need for a Testimonial Aid Identified for a Vulnerable Adult Witness?

3.2.1 Crown Prosecutors

The majority of Crown prosecutors indicated that a combination of their own meeting with the witness, input/recommendation from victim services and police information were the primary sources that contributed to the decision to make an application. In addition, the witness sometimes requested an aid. Also there were cases when family members and others such as group home supervisors contacted the Crown and identified the need. And finally, in a few instances, the witness’ unanticipated reaction on the day of the trial triggered the need for a testimonial aid.

3.2.2 Victim Services Providers  

Victim services participants noted that they are careful when telling vulnerable adult witnesses about the option to use testimonial aids for their testimony. They do not want to raise any expectations for the witness and, there is awareness that the Crown makes the decision about an application Footnote 2. Many emphasized the importance of meeting(s) with witnesses, when they establish rapport and identify any vulnerabilities, concerns and needs which they subsequently convey to the Crown. In some jurisdictions, victim services providers have a special form to provide their input and recommendations which are then sent to the Crown. In other jurisdictions, recommendations are communicated to the Crown via email, by telephone, or in person. Many participants noted that the information and recommendations arising from any assessment is very important and that concerns, vulnerabilities and accommodation needs of the witness must be clearly communicated to the Crown.

3.3 Materials Used to Support the Application

Responses indicated that it was fairly rare to call expert evidence for either “presumptive” or “discretionary” applications. In many cases, existing documents or a letter from a physician were used to support applications. Some Crowns voiced their reluctance in calling a mental health practitioner (therapist, counsellor, psychologist, or psychiatrist) to give evidence in support of an application. This stemmed out of a concern that the medical records of the witness would be open to the court, potentially re-victimizing the victim. Countering this perspective was the experience of two Crowns who had called expert evidence in “discretionary” applications, both indicated that in each case the focus of the supporting evidence was on the impact that testifying in court would have on the witness’ ability to provide a full and frank account of the evidence.

In many cases, in both “presumptive” and “discretionary” applications, the investigating police officer is called to give evidence and/or provide an affidavit. Victim services providers are also called to give evidence about their observations of the witness.  Where a witness had a disability, a caregiver, parent, or a mental health community support person provided information to the court. In cases of FASD, the caregiver would be asked to describe where the witness is on the spectrum, if known.

A small number of Crowns reported that no materials or supporting evidence were required and that the oral application was enough.

3.4 Examples of Evidence Used to Support “Presumptive” Applications

A letter from the psychiatrist was used in support of application

A witness with mental health problems attempted suicide close to the court date.  A letter from her psychiatrist was used to support an application for a testimonial aid. Defence counsel did not object. The witness was permitted to testify from behind a screen.

A personal aid worker testified

The witness, a woman, age 25, had a severe brain injury. She had a personal aid worker, and that individual was called to support the application for a testimonial aid.  The Crown noted that “she was the person best able to know the abilities and disabilities of the witness”. The court accepted the aid worker’s testimony. The witness testified from behind a screen and with a support person beside her.

Victim services provider gave evidence to support application

A young woman, then aged 17, testified at the preliminary hearing using a screen and support person. She turned 18 before the trial. The victim services person alerted the Crown that the witness had learning difficulties and problems with comprehension. In support of the application under s. 486.2 (1) for a screen, s. 486.1 for a support person and s. 486.3(2) for appointment of counsel for cross-examination, the victim services worker was called to give evidence on her observations and interactions with the witness. The testimonial accommodations were allowed.

3.5 Examples of Evidence Used to Support “Discretionary” Applications

The witness testified to satisfy the need

The witness was age 17 at the time of the incident and 18 at the time of the trial. The charges involved sexual assault. The application for a testimonial aid was made at the “last minute” as the witness “seemed okay” ahead of time, then just before testifying she “froze” and stated she could not testify in front of the accused. The Crown questioned the witness to satisfy the application - and she was asked how she would be affected if she did not have a screen. If the Crown had had prior notice, she would also have applied for a support person. The defence counsel strongly objected, but the application was granted and the witness was permitted to testify from behind the screen.

Oral submission by the Crown

The witness was one of six victims, but the only one who stated that she would be unable to testify in front of the accused. Charges before the court included sexual offences. Based on oral submissions by the Crown, and without any other written or oral evidence, the judge agreed that there was a pre-existing mental health condition and previously confirmed domestic violence, and therefore the witness was extremely vulnerable. At the preliminary hearing, the witness testified from behind a screen and the matter was committed to trial. At the Supreme Court level, the screen was again allowed, based upon oral submission by the Crown.

Expert assessment

The witness was 16 at the time of the sexual assaults and aged 36 at the time of the trial. She suffered from PTSD, anxiety and depression. The Crown received early input from victim services and also met with the victim several weeks prior to the date of the preliminary hearing.

Defence counsel opposed the application under s 486.2(2) for CCTV. Initially the crown had planned to call evidence from the investigating officer, but as a result of the opposition, a psychological assessment was obtained. The assessment focused on the witness’ ability to “give a full and candid account” of her evidence in the presence of the accused. The assessment report was submitted and the psychologist gave opinion evidence. The application was granted.

In sections s.486.1(1) and (3) and s.486.2(1) and (3), both the presumptive application and the factors used to argue for a discretionary applications include mental or physical disability.

3.6 When Applications are made

Participants were asked about the timing of the applications, whether they were made weeks ahead, for example at a pre-trial hearing conference; less than one week, for example, at the beginning of preliminary inquiry or trial; or, during the preliminary inquiry or trial. Their responses covered a wide range of time frames and practices. Some applications were made several weeks before the court hearing, others less than one week before and most were made on day of court appearance. On occasion, an application was made in the middle of a hearing, when it was evident that the witness was in such a state of distress that they could not continue without a testimonial aid.

Applications under s. 486.1 and s. 486.2 must be made during the proceedings to the presiding judge or justice or before the proceedings begin to the judge or justice who will preside at the proceedings. Information from participants indicated that the day of the court hearing was when most applications are made; it is only the day of the court hearing that the presiding judge will be known and available as per s. 486.1(2.1) and s.486.2(2.1)). These last minute applications can be stressful for the witness. Applications for superior court trials are generally made in advance, as the case would have been assigned to a Crown and the judge or justice who will preside is known. In addition, defence counsel is advised of the intention to apply for a testimonial aid(s) at the pretrial meeting. Several participants reported that making an application ahead of the court date to the judge or justice who will preside at the proceedings is often problematic in that the trial judge may not be known ahead of time. Related to this issue was a concern that there was an uncertainty for a witness who has to wait until the last moment to find out if a testimonial aid will be allowed. It was also noted that adjournments can occur as a result of late applications.

Some participants discussed the issue of a “last minute need” for testimonial aids. For example, a vulnerable witness upon entering the courtroom may experience panic, heightened anxiety or intense fear. This reaction may not have been anticipated ahead of the court date.  Screens were reported to be used in these cases as CCTV may not be available on short notice.

3.7 Preparation Time Involved in Making an Application

Prosecutors were asked to comment on how much preparation time is involved in making applications for testimonial aids for vulnerable adults. There was a range of answers from participants.  In cases where defense counsel objects to the application, there is a hearing and this can be time consuming. Objections from defence are more frequent for “discretionary” applications.   

Where precedents on procedure and case law are available, this can minimize the preparation time required for Crowns.

The one application took a “fair bit of time” – the judge asked for written submissions.  I called an expert – the report took time. Preparation time is an issue, but it would not stop me from making an application.

3.8 Factors That May Influence Whether Applications are made for Testimonial Aids for Vulnerable Adults

Crown prosecutors were asked what, if any, factors influence whether they make an application for testimonial aids for vulnerable adults. Their responses included factors such as case load, time involved making the application and late identification of the specific needs of the witness. Some participants discussed the cost of a professional assessment as a consideration, but most believed the cost of an assessment would be approved by management.

One respondent noted that when an application was made, the psychiatrist who was treating the witness provided testimony as to the need for a testimonial accommodation, on a pro bono basis.  Other participants indicated that providing existing medical documents or records did not involve a cost.

3.8.1 Making an Application – An example of the process used in one jurisdiction

  1. The Crown and victim services meet separately with the witness early on and so the “process is in place.”
  2. The witness is advised of the availability of testimonial accommodations.
  3. Victim services “are proactive– they knock on the Crown’s door” and advise of the need for a testimonial aid.
  4. The applications are made weeks before the hearing. Defence counsel is advised by letter, and they typically do not oppose the application.
  5. The court administration is advised and prepared.
  6. An application is rarely made on the day of court.

One Crown suggested that the trial coordinator can play a key role in facilitating the application process.

3.9 Victim Services Providers: Working with Vulnerable Adult Witnesses

Victim services providers were asked to comment on time requirements when working with vulnerable adult witnesses. Most of the participants stated that several meetings with the witness and case/trial coordinator are required to meet the needs of the witness and to help ensure that necessary accommodations are in place. During meetings with victim services, special needs of witnesses can be identified such as interpretation services and the need for specialized supports and accommodations. During their initial meetings with victim services, witnesses may report concerns or fears about testifying.  Participants emphasized the importance of early planning and organization.  Participants also noted that, although witnesses are contacted not all witnesses utilize their services, resulting in “last minute” identification of a vulnerable witness. 

In many jurisdictions, victim services are provided with information about witnesses when charges are laid. Some victim services, for example those which are not linked directly to the Crown office, may not be alerted about the witness until later on in the process.

3.10 Positions of Defence Counsel

There were varying responses to the question of whether defence counsel generally oppose or consent to applications for testimonial aids for vulnerable adults.  Participants believed that the majority of “discretionary” applications were opposed, apart from a couple of notable exceptions.  Some participants noted that defence may agree to an application for the preliminary inquiry, but would oppose the application for the trial in that matter. In some smaller communities, the defence bar appears to consent more readily to applications. In a couple of large jurisdictions, where the participants make applications for vulnerable adults on a frequent basis, the cases are more likely to go forward on consent.  

3.11 Delays and Adjournments that may be Caused by Applications

Participants noted that delays and adjournments can result if a professional assessment is required to support an application.  Some participants indicated that they have requested a screen, instead of CCTV, for the witness as getting CCTV would necessitate a delay. In addition, if an expert is needed to testify regarding a vulnerable adult witness, there could be an adjournment. Where an application is contested by defence, delays can occur. Where no application for testimonial aids has been made, and the witness has a traumatic reaction in the courtroom and is unable to testify, delays may result.

3.12 Application Outcomes

Prosecutors were asked about reasons they recalled for any denied applications for vulnerable adult witnesses.  Their information suggests that many “presumptive” applications were successful, while “discretionary” applications were less successful. Many of the “discretionary” applications were described as “not meeting the standard.”  It would appear that there are wide variations within and across jurisdictions in the granting of “discretionary” applications. A small number of prosecutors reported that their applications were almost always successful.

Some of the reasons given for denying an application included:

  • The application did not satisfy the Court that the victim is so mentally distraught that they could not give a full and candid account
  • The application did not meet the standard.  The Court stated that the testimonial aid is not intended for the comfort of the witness; there is a higher bar to meet, that of a “fear of the accused.”  
  • It depends on the judge.  One judge always denies the application, or else first wants to see how the witness does in court to test if they need they need the testimonial aid. The participant stated that, “This defeats the whole purpose of the legislation.”

3.13 Attitudes, Opinions, Thoughts and Experiences on Screens and CCTV/Video-Conferencing

There was a range of opinions expressed about the use of screens compared to testimony outside of the courtroom using CCTV or video-conferencing. There were differing reasons as to why one accommodation would be sought, in preference to the other, for a vulnerable adult witness. Some Crowns request a screen in the belief that it is easier to obtain than CCTV. Some Crowns stated their preference to have the witness in the courtroom, and use a screen, while others would not consider applying for a screen as they consider CCTV or video-conferencing to be a superior accommodation. Many participants agreed that use of a testimonial aid allowed the witness to give a full and frank account.  Some Crowns discussed the emotional impact of the witness when they enter the courtroom and see the accused, which they consider could be diminished by the use of CCTV or the screen. Other participants expressed the importance of vulnerable witnesses having testimonial options and, of having the opportunity to express their wishes about how they would testify. In some courtroom locations there are limited testimonial aids available, and a portable screen might be the only aid. In a few locations, a support person may be the only choice.

Summary of Attitudes, Opinions, Thoughts and Experiences on Screens and CCTV/Video-conferencing

  • Observations about screens
    • I prefer a screen – I want the witness in the courtroom
    • I had thought about CCTV, but the judges are reluctant – there is a preference for the screen
    • Screens help, but don’t help the problem of walking by the accused
    • There are problems with some screens – there is a space at the bottom (where it rests on the witness box) and the witness can see the accused.  Some screens are ineffective as they are broken
    • In the gang-related cases, witnesses may be an informant or terrified to testify and be identified. Special screens are used – the witness cannot see the accused and the accused cannot see the witness.
    • I would apply for either a screen or CCTV – it depends on the individual
  • Observations about testifying outside the courtroom via CCTV/video-conferencing
    • When a witness is stressed or fearful then you don’t get the best evidence – CCTV helps get better quality evidence
    • CCTV allowed witness to give a full and candid account of the evidence – without the aid, the witness would not have been able to speak
    • There are witnesses who would be unable to testify if they are in the same room as the accused
    • CCTV provides only a two-dimensional view of the witness – there is a lack of emotional impact for the court
    • When a witness is distraught – that is compelling evidence.  With videoconferencing, the witness behaves more casually. I prefer to see the witness in the courtroom rather than in another room
    • With CCTV, if you have good monitors, the witness is “virtually present” in the courtroom.

All participants could clearly articulate the importance of testimonial aids to facilitate testimony for vulnerable adults.

There is no question that if we did not have testimonial aids there would be cases that could not proceed to trial.  If we have a witness that is so traumatized, we would not proceed without testimonial aids.

Crown prosecutors noted the importance of training for Crowns who are not comfortable with the technology and for younger Crowns who understand technology, but who may be unsure about the process of making an application.  In addition, it is important to demonstrate the CCTV equipment to defence counsel (for those who have not used it) when feasible, ahead of the court date. This orientation can satisfy many of their concerns and might even result in no opposition to the application.

3.14 Some Perspectives and Experiences of Prosecutors in Communities with Circuit Courts

Intimidation and use of testimonial aids

One Crown reflected that in many Northern communities, the influence and pressure that is put on victims and witnesses not to testify can be immense. Therefore, Crowns try to use testimonial aids. Often, they must take testimonial aids with them when travelling to satellite courts.  CCTV has not been as successful as there have been problems with the technology.  The portable equipment is very cumbersome.

Change the venue

  • In situations where vulnerable adult witnesses could be intimidated by community members, Crown has made an impromptu application to change the venue.  This means that the victim can be outside of a hostile community and also have access to a courthouse with CCTV.
  • Testifying in small and remote communities
  • Court can be a “public spectacle” for members of a small community.  There is often nowhere for the witness to wait – there is no private place to meet – everyone passes by.  It takes a really determined complainant to testify.
  • Video-conferencing meetings with witnesses are possible 
  • Both Crowns and victim services have used video-conferencing to connect with witnesses when travel to remote communities prior to the court date is not feasible. The need to use a confidential, secure place was stressed– some community offices do not afford privacy for the witness.

Challenge of geography in remote communities

It is important to meet a witness ahead of time so you can assess the witness in terms of communication, and concerns about testifying. The distance to travel can present challenges.

The bar

There is a collegial bar in our small community and there is trust amongst the different counsel so applications may be more readily consented to by defence.

Technology

Access to equipment continues to be a problem for many Northern communities. Some Crowns bring their own computers. Screens are not available in most circuit courts. So while technical solutions are valuable and worthwhile, technology is also expensive and constantly evolving.  In remote communities we need finances so court services can arrange for the technology.

In circuit courts, where testimonial aids are not available, one solution is to have the vulnerable witness face the judge and not the gallery.

Delays

In cases where defence counsel oppose an application, and the application is argued at the beginning of the trial, court services are advised to have the equipment on hand, to avoid any delay.  

3.15 Video-Recorded Evidence – s.715.2

Criminal Code s.715.2 provides that :

s. 715.2 (1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that the admission of the video recording in evidence would interfere with the proper administration of justice.

It would appear that applications under s. 715.2 are rare for vulnerable adult witnesses. Two of the eighteen Crowns reported making one application each under this section. One of the victim services participants provided an example of how the statement of one vulnerable adult was successfully introduced as evidence.

The charges involved sexual assault.  The victim had suffered serious, multiple injuries and also experienced significant emotional distress as a consequence.  In support of the application, the Crown called evidence from the victim services worker and the police officer who provided their observations of the witness, and a physician provided medical evidence. The application was successful.

One participant suggested that for certain vulnerable witnesses consideration could be given to making an application under s.540 (7) of the Criminal Code, wherein the Crown prosecutor may present the evidence of a witness in the form of a prior statement versus calling viva voce evidence. If granted by the Court, this would obviate the need for the witness to testify at the preliminary hearing.

3.16 Exclusion of the Public – s. 486(1)

Criminal Code s.486(1) provides that :

s. 486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all of any members of the public from the courtroom for all of or part of the proceedings.

Of the eighteen prosecutors, three made applications to exclude the public from the courtroom.  One of the applications was specific to excluding named family members of the vulnerable witness. Participants suggested the following may prevent a Crown from making an application for exclusion of the public from the courtroom:

  • Concern that there may be an appeal;
  • The Charter of Rights and Freedoms guarantees freedom of the press;
  • The perception that this application is rarely made.

Some participants suggested that there are alternatives to a formal application for exclusion of the public such as an informal request to the judge to have some or all members of the public excluded from the courtroom.

3.17 Appointment of Counsel for Cross-Examination by Self Represented Accused - s. 486.3 (2)

Former Bill C-2 expanded the Court’s ability to appoint a lawyer to conduct the cross-examination of a victim when the accused is self-represented. Where the witness is under the age of eighteen or an adult victim of criminal harassment, an order appointing a lawyer to conduct the cross-examination will be granted, upon application, unless that order would interfere with the proper administration of justice. There is also discretion to appoint a lawyer to cross-examine any adult witness in any proceedings where the judge is of the opinion it is necessary to obtain a full and candid account from the witness.

Participants noted that there is a significant increase in self-represented accused and that applications to appoint a lawyer to conduct the cross-examination are made quite frequently in domestic violence cases and also in cases involving sexual assault. More than half of the Crown prosecutors reported that they had made applications under s.486.3 (2).

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