Victims of Crime Research Digest No. 11

Helping Victims Find their Voice: Testimonial Aids in Criminal Proceedings

By Susan McDonald

Canada has included provisions in the Criminal Code allowing witnesses to use testimonial aids since 1988, when former Bill C-15 (An Act to amend the Criminal Code of Canada and the Canada Evidence Act) came into force. Further amendments came into force in 1999, in 2006 and most recently in 2015, with the Victims Bill of Rights Act (VBR).

Three decades of social-science research have helped improve our understanding of testimonial aids for both children and vulnerable adults, and clarified their practical role in the Canadian criminal justice system. This article provides an overview of research completed by the Department of Justice about the use of testimonial aids, and identifies further research that would improve our understanding of the challenges and successes thus far.

Changes to the Testimonial Aids Provisions in the Criminal Code since 1988

There are three types of testimonial aids: a witness may testify from behind a screen, from outside the courtroom via closedcircuit television (CCTV), or alongside an accompanying support person. In addition to these traditional aids, the Criminal Code and the Canada Evidence Act also authorize publication bans and video-taped testimony, along with appointment of counsel to cross-examine a witness and orders to exclude the public from the courtroom. These measures, often included in broader discussions about testimonial aids, are considered in this summary.

Former Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act (hereinafter Bill C-2) received Royal Assent on July 21, 2005. The Bill’s Criminal Code amendments to facilitate witness testimony came into force on January 2, 2006. They were intended to provide greater clarity and consistency for the use of testimonial aids and other measures for witnesses under the age of 18 years. They made testimonial aids and other measures available to vulnerable adult witnesses for the first time.

The 2006 amendments also expanded the court’s authority to appoint a lawyer to conduct the cross-examination of a witness where the accused is self-represented and the case involves either witnesses under the age of 18 or adult victims of criminal harassment. Under the amendments, testimonial aids are mandatory if requested by the witness.

The VBR came into force on July 23, 2015. Because of the VBR’s amendments to the Criminal Code’s testimonial aids provisions, it became easier for a judge to order that a support person accompany an adult witness during testimony. The judge can now make such an order, upon request, on the basis that it would facilitate the giving of a “full and candid account by the witness of the acts complained of” (amended section 486.1(2) of the Code), or if it would otherwise be in the interest of the proper administration of justice.

Additional factors to be considered by the court in determining whether to make such an order include:

  • Whether the witness needs the order for his or her security or for protection from intimidation or retaliation;
  • Society’s interest in encouraging the reporting of offences;
  • Ensuring the participation of victims and witnesses in the criminal justice process (amended section 486.1(3) of the Code).

The court continues to have discretion to consider any other circumstance considered to be relevant, although it is now formulated as any other “factor” that the judge considers relevant (amended section 486.1(3) of the Code). The amendments granted similar discretion regarding the use of witness screens and CCTV.

Research through the Years

The Department of Justice has conducted social science research into the victim-related provisions of the Criminal Code for decades.Footnote 1 This article focuses on studies and key findings related to testimonial aids. The article groups these studies primarily by method and data source (i.e. literature reviews, court observations, qualitative interviews, case-law review, surveys of criminal justice professionals and operational data from jurisdictions).

National data on criminal trials are collected through the Integrated Criminal Court Survey (ICCS), housed at the Canadian Centre for Justice Statistics (CCJS) at Statistics Canada. Unfortunately, national data on testimonial aids are not currently collectedFootnote 2 and thus, little is known about their use in preliminary inquiries, at trial and – since the 2015 amendments – during sentencing.

Bill C-2 mandated a parliamentary review; after the provisions came into force in 2006, the Department of Justice discussed the collection of data on the use of testimonial aids with each province and territory. Saskatchewan and Newfoundland agreed that victim services workers would enter relevant information in a form prepared by Justice Canada officials, then submit completed sheets for analysis about every six months. Justice Canada’s Research and Statistics Division would share this analysis with the Federal/Provincial/Territorial Working Group on Victims of Crime. Despite using the same coding form, there were differences in how the data were captured (e.g. what additional information was provided in the Notes section and how many questions were left blank) and because of this, there are differences in how the data are reported. Prince Edward Island agreed to track the use of testimonial aids during the first six months of 2008 using its own system.

Results from Saskatchewan, Newfoundland and Labrador, and Prince Edward Island

Saskatchewan collected data from January 2008 to September 2015 about 286 children (aged 4 to 17 years) and 68 vulnerable adults (aged 18 to 87 years) who testified during preliminary inquiries and criminal trials, and one case where the age of the witness was not identified.Footnote 3 Most of the victims were female (84%).

The testimonial aid most commonly requested was a support person (335 times, 94% of witnesses), followed by a screen (202 requests). There were 103 requests enter to videotaped testimony, but few requests for CCTV or to exclude the public from the courtroom. In 45 cases, victim services workers indicated that testimonial aids would have been useful, but had not been requested (and provided no explanation about why they not been requested).

Newfoundland and Labrador collected data from February 2007 to March 2010. During this time, victim services in the province received 1,118 referrals for child victims and witnesses. Information on testimonial aids was collected in 94 of these cases.Footnote 4 Of these cases, the 92 children who testified ranged in age from four to 18 years and two-thirds were girls (67%). The cases include one adult and one witness whose age was not indicated.

The testimonial aid most commonly requested was a support person (77% of cases, n=72). Among these, the Crown made the request in almost all of the cases (96%, n=69) and another individualFootnote 5 made the request in the remaining cases (4%, n=3). A screen was requested in 69% of cases and CCTV in 14%. An order for the exclusion of the public was requested in 10% of cases. One case involved videotaped testimony and one application for videotaped testimony was denied. No cases involved counsel appointed for cross-examination. Victim services workers indicated that testimonial aids would have been helpful in an additional 19 cases.

Prince Edward Island collected data from January through June 2008. During this time, 39 cases involved child testimony and 3 involved the testimony of a vulnerable adult; 13 of these cases proceeded to a preliminary inquiry (n=6) or a trial (n=7). Two thirds of the witnesses were female (n=28) and one third was male (n=14). There were 23 guilty pleas, most being entered before trial, and two being entered after the preliminary inquiry.Footnote 6 In 14 of these cases, pleas were entered early in the case and testimonial aids were not discussed. The use of testimonial aids varied in the remaining cases. In some, they were discussed, but the victim did not want to use them. In others, they were used and helped witnesses provide full and candid accounts of the alleged incidents. Victim services workers identified one case where the victim would have benefitted from a testimonial aid. No request for a testimonial aid was denied.

Literature Reviews

In the early 2000s, the Department contracted clinical psychologist Dr. Louise Sas to undertake a review of the research literature on the cognitive, language and memory development of children in the context of criminal proceedings. Dr. Sas’ report (2002) provides valuable information about the importance of appropriate questioning, proper support for children when testifying and specialized training for criminal justice professionals.

Osgoode Hall Law School Professor Jamie Cameron’s seminal 2004 report Victim Privacy – The Open Court Principle reviews the legal literature on publication bans in Canada and elsewhere, and traces the development of relevant case law at the Supreme Court of Canada. The report devotes an entire chapter to sexual violence and examines the fundamental principle of open court. The report posits that the open court principle is critical to our democracy and to confidence in the rule of law, while also questioning whether “victim privacy, and the need for anonymity in particular, is justified by the nature of the offence, or should [it] instead be regarded as a remedial measure to address the chronic under reporting of sexual offences and encourage victims to trust the system.”

The Department contracted another review of literature a decade later. The Examination and Cross-Examination of Children in Criminal Proceedings: A Review of the International Literature (2014) by Tamara Jordan examines how the criminal justice systems of Australia, New Zealand, England and Wales, the United States, South Africa, Israel and Norway handle the examination and cross-examination of child witnesses. The author identifies five major developments for child witnesses: testimony video-taped before trial, intermediaries used to improve communication between child witnesses and courts, prohibitions on the improper questioning of child witnesses, special examiners to record child testimony, and representation for child witnesses in court.

Court Observation Studies

In 2001, BOOST: Child Abuse Prevention and Intervention (formerly the Toronto Child Abuse Centre, TCAC) conducted a court observation study to determine the influence of Bill C-15 on the testimony of children in Toronto’s Old City Hall’s “J-Court,” a child-friendly courtroom. The study found that although testifying in court remained a difficult task, the children fared well with the aids authorized by Bill C-15 (see BOOST 2001).

After Bill C-2, a similar court observation study was conducted involving both BOOST (Toronto) and the Zebra Child Protection Centre (Edmonton). Both provided strong support services to child victims and their families. To collect information, the two organizations trained volunteers to observe court hearings from June 2006 to April 2008: 57 cases in Edmonton and 67 cases in Toronto.

In Edmonton, the testimonial aids used most often were a support person to escort the child to the witness stand (91% of cases) and remaining with the child at the stand (85%). A support person was requested for 88% of the child witnesses and ordered by the judge 86% of the time. Other common testimonial aids included witness screens in 85% of cases, publication bans in 78% of cases, and voice amplifiers in 77% of cases.Footnote 7 CCTV was used in 25% of the cases.

In Toronto, the testimonial aid most commonly used was an order for the exclusion of the public (91%). Other common testimonial aids included publication bans (70%), voice amplifiers (65%) and witness screens (40%). CCTV was used in 24% of cases. A support person was requested for 64% of the child witnesses and ordered by the judge in 54% of cases.

Surveys of Criminal Justice Professionals

In the first years of the Federal Victims Strategy (then called the Victims of Crime Initiative), the Department of Justice launched a large, multi-site research project to document the perspectives of a range of key stakeholders, as well as victims, about their awareness and understanding of victim-related Criminal Code provisions. A Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada (PRA 2006) was conducted before Bill C-2 was introduced, and at a time when the use of testimonial aids was limited, both by legislation and by the culture of the adversarial criminal justice system. Applications for testimonial aids prior to Bill C-2 often required evidence establishing that the child witness needed the particular aid to provide a full and candid account of their evidence.

The 2006 study found that among testimonial aids designed for child witnesses and those with a mental or physical disability, screens appeared to be the most popular among Crown prosecutors, defence counsel and judges. Many Crown prosecutors explained that they do not request an aid without a compelling reason to do so, and many reported having as much success without the aids as with them. Judges were careful to emphasize the need for Crown prosecutors to present compelling evidence that the aids were necessary, as well as the need to ensure that relevant Criminal Code criteria are met. Furthermore, a few judges indicated during interviews that they wondered about the actual effectiveness of testimonial aids. A proportion of defence counsel surveyedFootnote 8 expressed serious reservations about testimonial aids, arguing that they violated fundamental principles of the criminal justice system intended to protect the accused.

In 2008, Bala et al. (2010) surveyed judges (n=39) in four jurisdictions about their awareness and understanding of the Bill C-2 changes. A majority of respondents (88%) said they were familiar with the amendments and three quarters said they had reviewed applications for testimonial aids. Respondents indicated that applications involving children were almost always successful, and that those involving vulnerable adults were often successful. Half of all judges surveyed reported technical or logistical challenges with CCTV. Overall, the judges surveyed were very positive about the provisions introduced through Bill C-2.

As part of a 2012 evaluation of the Federal Victims Strategy, the Department of Justice commissioned a follow-up to the multi-site study. Rather than telephone and in-person interviews, the follow-up study involved an electronic survey (e-survey) of police officers, Crown attorneys and victim services workers.Footnote 9 The results suggest that knowledge of victim issues grew considerably between approximately 2002 and 2012. Respondents to the follow-up survey indicated that awareness and knowledge of relevant legislation and of victims’ role in the criminal justice system had improved between 2002 and 2012. This perception was strongest among victim services workers (Department of Justice Canada 2016).

The survey asked Crown attorneys about the frequency of their requests for testimonial aids for victims. More than half of Crown respondents (53%) said they often request a support person for victims who testify. One quarter to one third of Crown respondents said they rarely request other aids (video-taped statements, witness screens, CCTV). The majority of Crown respondents (68%) noted obstacles to requesting testimonial aids, particularly for victims under the age of 18 years: the application process is rigorous and some judges have reservations or express concerns about impact on witness credibility. Some Crown respondents mentioned other barriers, such as defence objections, as well as technology and facility limitations. A new version of the e-survey, with questions added about the changes introduced by the VBR in 2015, was conducted again in early 2018.Footnote 10

Case Law Reviews

While a review of case law is considered legal research, it can help to understand the judiciary’s interpretation of legislation and to examine any constitutional challenges. Reviews of case law were part of both the Bala et al. (2010) report and Ainslie (2013) study on testimonial aids for vulnerable adults. Justice Canada continues to monitor relevant case law and completed an update in early 2018. It appears that applications for vulnerable adults are relatively rare – particularly “discretionary” applications – at least in comparison to applications for children, although these applications are generally successful. Higher-court interpretations of the various legislative provisions have also been generally favourable: applications were granted and unnecessary obstacles to testifying were removed.

Qualitative Research

One research project (Epprecht et al. 2005) involved the analysis of anonymous letters written by children aged 7–12 and their parents who participated in the Child Protection Program (CPP) in the late 1990s in St. John’s, Newfoundland and Labrador. The letters enabled participants to comment on the program, as well as on their interactions and experiences with the criminal justice system. Many of the concerns raised by participants – such as its adversarial nature and delays – continue to be problematic and stressful for children, youth and their families. Improved accessibility of testimonial aids, the provision of victim support services and the development of Child Advocacy Centres across the country facilitate the participation of children and youth in legal processes.

In 2009, Charlotte Fraser and Susan McDonald interviewed 12 victim services providers about their experiences with clients suspected of suffering from Fetal Alcohol Spectrum Disorder (FASD).Footnote 11 All respondents agreed that FASD is an important issue. They also agreed that those involved in criminal courts generally had an inadequate understanding of FASD; most did not recognize that testimonial aids could help witnesses affected by FASD. The respondents recommended appropriate training for all justice professionals. The respondents also indicated that the strategies identified for working with clients who suffer from FASD could be used for clients with communication or learning challenges.

In 2012, Pamela Hurley interviewed Crown prosecutors, as well as victim advocates working with vulnerable adults, about the use of testimonial aids. The experiences and perceptions of participants varied considerably; some of this variation appears to correlate to community size and location (Hurley 2013). Participants identified many issues related to justice officials’ lack of understanding and knowledge about vulnerable witnesses, including: the impact of trauma and sexual victimization on witness participation, mental health, meeting the needs of and working with people with disabilities, and how a disability can impact witness participation in the criminal justice system. Participants called for the removal of barriers affecting traumatized, intimidated or vulnerable witnesses. Victims and witnesses who are reluctant to report violent crimes may be more likely to come forward if testimonial aids were certain to be available.

As part of the 2011 Evaluation of the Federal Victims Strategy (Department of Justice 2011), a specific study was completed in 2009 on the use of the Victims Fund to support the implementation of Bill C-2. The study focused on equipment purchases, such as screens and CCTV systems that enhanced the capacity of provinces and territories to implement the amendments, along with related expenditures, such as training and other supports. The evaluation concluded that the Fund increased the capacity of the jurisdictions to provide a greater number of higher-quality testimonial aids to vulnerable witnesses.

Since 2010, the Department of Justice has commissioned a number of small research projects related to specific testimonial aids; most involve in-depth interviews with key stakeholders. McDonald and Ha (2015), for example, examined requests in the territories for public exclusion orders and for the appointment of counsel when a self-represented accused may need to cross-examine witnesses. Researchers undertook qualitative, in-depth interviews with Crown prosecutors, as well as Crown Witness Coordinators (CWCs) across the north. The interviewees acknowledged that applications for public exclusion orders were rare, because of the need to demonstrate that no alternative was available. All of the Crown prosecutors and CWCs who had experience with applications for appointment of counsel indicated that these applications were always granted, although they often led to adjournments to retain counsel – a difficult challenge for circuit courts.

Another research project (Hurley 2015; Hickey 2016) focused on the use of CCTV in Ontario’s West Region in 2012. The project involved in-depth, semi-structured interviews with 15 child and youth victim/witnesses who had testified in court, along with 13 of their parents. The project also involved separate e-surveys completed by 47 Crown prosecutors and 18 victim services workers. All child and youth interviewees found CCTV beneficial and appreciated the support provided by victim services and Crown prosecutors. They, along with their parents, found cross-examination, delays, and the length of time for the case to reach a conclusion extremely difficult and stressful. The author noted that the use of CCTV could not insulate children and youth from these negative impacts (Hurley 2015, 8). Other research has found that cases involving child victims should be expedited (e.g. Sas 2002). Waiting for the trial and delays remain serious issues and are key concerns among children, youth, and their parents (Hurley 2015; Hickey 2016).

A small study (Ha and Ndegwa 2015) in Canada replicated work done by Jones et al. (2010) in the US. Researchers reviewed media reports about criminal cases involving children and youth, that had publication bans in place. The research investigated whether the media reports revealed information that could inadvertently identify victims. Of the 90 articles reviewed, almost a quarter (23%) contained identifying information. The identifying information reported most often was the name of the child’s school, church or day care (33%), the child’s street or address (29%), and the full name of non-offending relatives (24%). The full name of the victim was included in four out of the 21 articles that contained identifying information (23%). More than half of the articles did not mention whether a publication ban was in place (57%); however, 41% of the articles did specify that there was a publication ban. Seven of the articles indicating that a publication ban was in place contained identifying information, including the home address of the victim or the accused (full or partial), name/address of daycare, and partial name of victim (e.g. “baby Alison”).

As referenced earlier, Jamie Cameron’s (2004) report on victim privacy and the development of case law on publication bans remains a strong treatise on this area of law. Recent news, however, that Google searches produce links to court decisions subject to publication bans raise questions about the utility of publication bans in the Internet age.Footnote 12

An interesting development is the increased use of support dogs with children and other vulnerable witnesses (see McDonald and Rooney 2014). Support dogs are not new in US courts, although they are still relatively novel in Canada and little case law exists on decisions to permit or deny such applications. Justice Canada will continue to work with jurisdictions to keep abreast of developments in this field.

Conclusion

In Canada, testimonial aids have been available since 1988 on a case-by-case basis, and presumptively since 2006 for children. National data on the use of testimonial aids in criminal proceedings do not exist, although changes to the ICCS are coming, and basic data will be collected. Justice Canada is most interested in the filing and outcome of applications for testimonial aids, and in identifying remaining barriers to their use, rather than in raw data about the number of aids used in a given time period.

It is generally accepted that testimonial aids facilitate witness participation and serve to minimize the stresses associated with testifying in criminal proceedings. Testimonial aids, however, do not protect children, youth and vulnerable adult witnesses from the negative impacts of vigorous cross-examination by defence counsel, or from the lengthy periods needed for cases to be decided.

National data about the use of testimonial aids during preliminary inquiries, trials and sentencing would help identify barriers to their use across the country. These barriers include a lack of equipment, defence objections and the denial of applications for vulnerable adults. Additional research on the criminal justice system experiences of child and youth victim witnesses, as well as those of vulnerable adults, would help to clarify issues and identify potential solutions. Very little research incorporates the experiences of young and vulnerable witnesses in Canada; these experiences vary among and within jurisdictions. CCTV equipment, for example, is much more accessible in urban locations than in rural and remote communities. Finally, research is still needed to better understand the prevailing perspectives – particularly among defence counsel – on the use of testimonial aids.

References

Susan McDonald, LLB, PhD, is Principal Researcher with the Research and Statistics Division, Department of Justice Canada. She is responsible for victims of crime research in the Department and has extensive research experience on a range of victim issues.

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