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

4.  Conclusions

Participants had many insights to share about barriers for vulnerable adults and use of testimonial aids. The following comments reflect the wide range of opinions and perspectives that were shared:

  • There is a presumption that adults are “okay,” and that they do not need a testimonial aid.
  • CCTV is “hard to impossible” to obtain for an adult witness.
  • The current situation for vulnerable adults is the same as the situation was for children before 2006.
  • It is concerning that following an application by the Crown, the judge will decide that the witness should try to testify to “test” if they need the aid. For fearful and intimidated victims and witnesses, if they see the accused, they shut down. Therefore there is no testimony. This defeats the whole purpose of the legislation.
  • Late identification of the vulnerable witness remains a barrier to being proactive in seeking testimonial aids.
  • The provincial court docket is on the Intranet; there is a concern about protecting the identity of the witness especially when the charge is incest.
  • It is problematic that the application must be made before the assigned trial judge – this frequently results in the application being made on the day of court, and not in advance, which is the ideal.
  • In domestic violence courts, there are often several trials booked for the morning and several more in the afternoon. Time is limited and so it is difficult to plan and identify witnesses who might need an aid.
  • In small, remote and isolated communities, witnesses are often uncooperative with the prosecutor. They may say that it did not happen or that they do not remember; they do not articulate their fear and so it is difficult to provide evidence of their vulnerability.
  • In circuit court locations, in addition to a lack of testimonial aids, there are no waiting areas for the witness and no privacy. Sometimes the whole community comes to court. Witnesses sometimes wait outside in a vehicle. It is difficult for witnesses even when screens and sometimes portable CCTV are brought in. 

4.1 Final Thoughts from those Interviewed

Take advantage of the Criminal Code and use the opportunities.  Information is key – let people know their options.  Make the applications. Prepare the witness.

Applications for CCTV and support person should go “hand in hand.”

Vulnerable adult witness cases should be flagged.  As Crowns, we depend on police officers to do this.   Alerting us ahead of time is essential.  We can then have the information we need to plan and make arrangements

We have to talk about these cases.  We need to make applications for vulnerable adult witnesses.  Let’s try. When it is done once, then it can be done again. We can say “that worked fine – so we can do it again”.

It’s in the legislation – we, in the justice system, need more awareness, understanding and education.

Have available a quick reference case law for vulnerable adults and a template or short guide for making applications

The high cost of assessments and the cost of expert witness testimony to establish a mental disability are barriers to making these applications. The freeze on funding and delays involved in assessments are also problematic and interfere with access to justice.

In some courthouses, the courtroom may not be located beside the testimony room. Problems can arise when court staff is unavailable to bring relevant documents or exhibits to the testimony room. In finding a remedy, a holistic approach must be taken, as it is a holistic issue.

4.2 In Sum

The information collected in this report represents the perceptions and experiences of Crown prosecutors and victim services providers on testimonial aids for vulnerable adult victims. The data gathered were obtained from interviews with participants who responded to a number of questions about the utilization of testimonial aids. The data show that there appears to be considerable variation in the experiences and perceptions of the participants; some of this variation is due to location and size of a given community. That is, there are different challenges in small, remote communities in comparison to those that surface in larger, urban centres. Readers are reminders that the findings in this report cannot be generalized to all Crown prosecutors or victim services providers or to all of Canada.  

In both the urban and rural context, there were many issues related to a lack of understanding and knowledge amongst justice personnel: the impact of trauma and sexual victimization on witness participation; mental health issues in general; meeting the needs of and working with people with disabilities; and, how a disability can impact participation of witnesses in the criminal justice system.

At the same time, both Crowns and victim services participants called for the removal of barriers for traumatized and intimidated vulnerable witnesses. Victims and witnesses who may be fearful about reporting violent crimes may be more likely to come forward if there is greater certainty of the availability of testimonial aids. Participants agreed that use of testimonial aids for vulnerable adult witnesses can be extremely important to facilitate a witness’ full and candid account of the alleged criminal incident.

References

  • Bala, N., J. J. Paetsch, L. D. Bertrand, and M. Thomas. 2011. Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2): Case Law Review and Perceptions of the Judiciary. Ottawa: Department of Justice Canada.

  • Belak, B. 2012. Policies and Practices in the Treatment of Vulnerable and Intimidated Witnesses. Missing Women Commission of Inquiry.

  • Benedet, J., and I. Grant. 2012. Taking the Stand: Access to Justice for Witnesses with Mental Disabilities in Sexual Assault Cases. Osgoode Hall Law Journal 50:1.

  • Department of Justice Canada. Constitution Acts, 1867 to 1982. Accessed May 31, 2013.

  • Canadian Human Rights Commission. Duty to Accommodate. Accessed May 31, 2013.

  • Endicott, O., C. Crawford, D. McCallum, and M. Bach. 1992. The Impact of Bill C-15 on Persons with Communication Disabilities. Ottawa: Roeher Institute and Department of Justice Canada.

  • Fraser, C., and S. McDonald. 2009. Identifying the Issues: Victim Services Experiences Working with Victims with Fetal Alcohol Spectrum Disorder. Ottawa: Department of Justice Canada.

  • Ross, R. 2009. Heart Song: Exploring Emotional Suppression and Disconnection in Aboriginal Canada. Discussion Paper. Accessed May 31, 2013.

  • Stienstra, D. 2012. About Canada, Disability Rights. Canada: Fernwood Publishing Company.

  • United Nations Enable - Convention and Optional Protocol Signatures and Ratifications. 2006. Welcome to the United Nations: It’s Your World. Accessed May 31, 2013.

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