Victims of Crime Research Digest No. 9

The Use of Closed Circuit Television: The Experiences of Crown Prosecutors and Victim-Services Workers in the Ontario West Region

By Shanna Hickey

Shanna Hickey is a researcher with the Research and Statistics Division, Department of Justice Canada, in Ottawa. She works primarily on victims of crime research in the Department.

Introduction

Closed-circuit television (CCTV) is the transmission of video and audio signals to a specific audience. Unlike broadcast television, CCTV is not available to the general public. Used most often to monitor private and public spaces, CCTV is also used as a testimonial aid in criminal courts around the world. Witnesses provide testimony through a camera and microphone located outside the courtroom, so that they do not have to face the accused. In Canada, the use of CCTV to allow witnesses under the age of 18 yearsFootnote 7 to testify outside the courtroom is governed by subsections 486.2(1) and (5) of the Criminal Code:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside 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.  . . .

486.2 (5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

The Criminal Code provisions on testimonial aids, which also include support persons and screens, have been amended several times during the past 25 years. The most recent amendments, in the Victims Bill of Rights ActFootnote 8, provide greater flexibility to the courts to order their use. Another amendment allows the use of testimonial aids (support person, screen, testimony outside the courtroom by CCTV) for the presentation of victim-impact statements. Testimonial aids are seen as key to victims’ rights to participation and to protection.

Victim/witness programs, such as the Victim/Witness Assistance Program (V/WAP) and the Child Witness Project (CWP), provide vital services to help navigate the justice system—which many witnesses and victims find intimidating, overwhelming and causing secondary victimization (Johnson and Dawson 2011). The authors (2011) reported that these programs have several positive impacts on victims including: increased participation in the criminal-justice process, as well as a greater likelihood of cooperating with prosecution. The Crown prosecutor’s role is to represent the state and conduct a truth-finding procedure to administer justice. Having access to clients who are as comfortable as possible and able to provide articulate testimony aids the Crown to both represent the state and ensure a fair trial. Consequently, CCTV can play an important role in supporting the truth-seeking function of the trial.

Under the Criminal Code, CCTV must be used if a witness under the age of 18 requests it, unless doing so would interfere with the proper administration of justice. Despite this requirement, CCTV use varies across and within jurisdictions due to the availability of the technology, and to the interest and willingness of the witness, the Crown, defence and judge. Some research has been completed on the use of testimonial aids for children and vulnerable adults (see Hurley 2013; Ainsley 2013; Bala et al. 2010; Chong and Connolly 2015). This study sought to explore the use of CCTV for children testifying in criminal court in the Ontario West Region to determine whether CCTV and other aids facilitated testimony for child and youth witnesses.

Professionals working in the West Region of Ontario raised a concern about the use of screens rather than CCTV: that the child or youth witness must testify while in the same room as the accused. CCTV separates the child or youth witness from both the adversarial courtroom environment and the accused. This separation often puts the witness—who is accompanied by a support person—more at ease.

The Department of Justice surveyed Crown prosecutors and workers from the V/WAPFootnote 9 and the CWPFootnote 10 regarding the use of CCTV for child and youth witnesses in their region of Ontario. This article describes the study method and results, and discusses similar studies for greater context.

Method

The e-surveys described in this article were part of a larger studyFootnote 11 that involved three data sources:

  1. in-depth interviews conducted by an experienced contractor with 15 children and youth, and 13 parents who were involved in criminal proceedings;
  2. demographic information gathered from parents and guardians through a questionnaire; and
  3. two electronic surveys (e-surveys), one completed by 47 Crown prosecutors and one completed by 18 members of V/WAP and CWP staff.

The Department of Justice Canada’s Research and Statistics Division developed and administered the e-surveys, which were then reviewed by the Steering GroupFootnote 12 and Community Advisory GroupFootnote 13. All West Region Crowns, along with V/WAP and CWP representatives who had prosecuted a case involving a child or youth witness, were invited to complete the survey. Participation in the e-surveys was voluntary.

Findings

Of all 65 people surveyed, 40% were male (n=26), 57% were female (n=37) and two did not specify gender. Most respondents reported significant experience in the field: 46% (n=30) indicated between 7 and 15 years of experience, while 38% (n=25) indicated 16 or more years of experience. Only 15% of respondents had fewer than six years’ experience.

All of the 46 Crown prosecutors surveyed indicated that they had been called to the bar between 1981 and 2013, with the majority called in 2003. Almost all (96%, n=44) had access to CCTV, indicating that CCTV equipment is available in most of the region’s courtrooms. At the same time, however, most (85%, n=40) reported technical difficulties with the use of CCTV. Only six respondents reported no technical difficulties.

Experiences with CCTV

Both e-surveys included questions about assessing the need for CCTV and how the technology was used. One question asked whether respondents were aware of cases where a witness or a witness’ representative (other than the Crown) had applied to use CCTV. Out of 65 respondents, 62 answered this question and the majority (90%, n=56) indicated they were not aware of any such case. Only three respondents knew of a case where a witness or witness representative had applied to use CCTV.

The e-survey of Crown prosecutors asked how comfortable they were conducting examinations using CCTV equipment. More than half (57%) indicated they were either “comfortable” (n=16) or “very comfortable” (n= 10) using the equipment; 24% (n=11) indicated feeling “somewhat comfortable,” and the remaining 20% indicated being “uncomfortable” (n=5) or “very uncomfortable” (n=4).

When asked how often they accompany a child when he or she is testifying in court, 71% of V/WAP and CWP representatives indicated either “always” (n=8) or “often” (n=4). Three respondents indicated they accompany a child “sometimes”. 

In response to a question about when the need for CCTV is identified, 54% of Crown prosecutors (n=25) indicated that this occurs during the initial screening or review of the file and 15% (n=7) indicated this occurs during the first meeting with a witness. Another 15% (n=7) indicated this occurs before the preliminary hearing, based on a recommendation from victim services. Three Crown prosecutors indicated that this need is identified at preliminary hearing or trial.

In response to a question about when the application for CCTV is made for a witness under the age of 18 years, 37% of Crown prosecutors (n=17) indicated the day of the court appearance for both preliminary hearings and trials. Another 26% (n=12) indicated making applications weeks before hearings and 17% (n=8) indicated months before hearings. The remaining 17% of respondents (n=8) indicated that the timing of applications depended on the level of court, the date set for trial, and/or whether the application was contested.

Of the Crown prosecutors surveyed, 60% indicated making applications to use CCTV for witnesses under the age of 18 years either “often” (n=20) or “always’ (n=8); 35% indicated they do so either “sometimes” (n=7) or “not very often” (n=9). Ninety-one percent of Crown prosecutors indicated that applications for the use of CCTV were approved either “often” (n=16) or “always” (n=24). Additionally, more than half of Crown prosecutors (57%, n=26) indicated that defense counsel object “not very often” to the use of CCTV; 33% indicated that defense counsel object either “sometimes” (n=11) or “often” (n=4).

More than half of the Crown prosecutors surveyed (56%, n=25) reported that they had not dealt with an application for CCTV that had resulted in an adjournment, while 33% (n=15) reported applications resulting in adjournments. In some cases, although the application for CCTV had been approved, the equipment was not immediately available and the trial was adjourned.

Crown prosecutors were also asked about testimonial aids commonly used in combination with CCTV. The use of a support person was reported most often by respondents (93%, n=43), followed by a section 715.1 application to play a video recording of witness testimony (70%, n=32), the appointment of counsel to conduct the cross-examination of the witness when the accused is self-represented (54%, n=25), the exclusion of the public (15%, n=7), and the use of a screen (11%, n=5).

The e-survey of V/WAP and CWP staff asked about the testimonial aids for child witnesses used in their courts. The most commonly reported aid was CCTV (76%, n=13), followed by a support person (71%, n=12), a screen (65%, n=11), and the appointment of counsel for self-represented accused on cross-examination (35%, n=6).

The responses of Crown prosecutors show that CCTV is frequently used with other testimonial aids—in particular a support person accompanying the witness in the other room. While respondents reported that the need for CCTV is identified early on in the process, the timing of applications appears to vary significantly and is sometimes not made until the first day of the trial or preliminary hearing.

Challenges with CCTV

Both surveys indicate that the primary challenge with the use of CCTV was technical problems, such as low-quality audio and video, and difficulties with operating the equipment. Of the 65 Crown prosecutors and members of V/WAP and CWP staff surveyed, 88% (n=43) cited these problems. Some respondents also described difficulties with the simultaneous use of CCTV and a section 715.1 videotape statement.

The e-surveys identified another prominent challenge as the location of the CCTV room; Crown prosecutors, along with V/WAP and CWP staff, indicated that CCTV rooms are often inconveniently located (e.g. not near the courtroom), or located adjacent to a waiting area accessible to the accused and their supports. Some respondents indicated that this was particularly problematic when they needed to go back and forth from the courtroom to the CCTV room throughout the trial. A related challenge involves disagreements concerning who should accompany the victim in the CCTV room during particular phases of the trial. Other challenges identified by respondents included:

The e-survey asked V/WAP and CWP staff why CCTV is not frequently used at their court location(s). Four respondents indicated technical difficulties, three reported that CCTV is not available and two respondents indicated reluctance on the part of the Crown prosecutor or judge to use it.   

CCTV Training

Both e-surveys included specific questions about training. When asked if they had received training on working with child and youth witnesses, 23 of the Crown prosecutors surveyed indicated that they had received training, while 24 had not. Those who had received training reported accessing it through one or more of the Ontario Crown Attorney’s Association (OCAA), the Ministry of the Attorney General (MAG), in-house learning sessions, and other professionals (i.e. other Crown prosecutors, staff of V/WAP, CWP and the Children’s Aid Society). All who received training rated it as either “helpful” (n=13) or “very helpful” (n=10), and 83% (n=19) indicated that they would benefit from more training.

Crown prosecutors were also asked if they had received specific training on the law (Criminal Code provisions, procedure and case law) related to CCTV/testimonial aids. Again, approximately half had received training and half had not. This training was provided by one or more of the following: OCAA, MAG, Crown conferences and training sessions. Almost all (96%) of respondents found the training they had received either “helpful” (n=14) or “very helpful” (n=8). Seventy-four percent (n=17) of respondents indicated that they did benefit from this training, while four respondents did not.

The e-survey of 18 members of V/WAP and CWP staff included questions about training on the use of CCTV. Again, approximately half (n=9) indicated they had received training and half (n=8) indicated they had not. Of those who indicated the year they received training (n=7), the timing of this training ranged from 2000 to 2014. Of those who had received training, four respondents indicated they would benefit from further training, four indicated they would not and one did not know. When asked to specify what kind of further training they would benefit from, two respondents indicated they would like a refresher.

Crown prosecutors, V/WAP and CWP staff were asked to describe feedback they had received from witnesses under the age of 18 years or their parents regarding the use of CCTV. Slightly more than half of all respondents (n=36) answered this question. Most shared positive feedback from witnesses and parents, who expressed gratitude and appreciation, and described the use of CCTV in positive terms. According to respondents, many witnesses indicated that they could not have testified without CCTV, stating that it provided comfort and safety, and that it helped to relieve stress and further victimization. A small number of respondents mentioned that witnesses and parents also reported frustrations regarding technical difficulties and that clients did not like being in close proximity to defence counsel while in the CCTV room. 

Both e-surveys concluded with invitations to share additional comments. Most of these comments can be grouped into three general areas: general frustrations regarding technical difficulties, praise for the usefulness of CCTV, and the need for equipment or access to CCTV in their courtrooms.

Final Thoughts

The results of the two e-surveys clearly show strong support for the use of CCTV for child, youth and other vulnerable witnesses. An earlier study (Bala, Lindsay and McNamara 2001) also found that a majority of Crown prosecutors believed CCTV was both useful and beneficial to the child witness. In the current survey, a majority indicated that they had access to CCTV in their courtrooms and that they had experienced some technical difficulties while using CCTV. These challenges were first identified in research that is now several years old. For example, Bala et al. (2011) reviewed Canadian case law and surveyed judges from four Canadian jurisdictions, finding that 50% of judges experienced problems when arranging the use of CCTV, including “poor lighting and sounds in the room” and “logistic problems in the courtroom”. Plotnikoff and Woolfson (2009) also found that 40–48% of young witnesses experienced technical difficulties that either delayed their testimony or required them to testify in court, sometimes without screens.

In addition to the technical challenges associated with the use of CCTV, there appear to be a number of practical issues, such as the location of CCTV rooms and leaving witnesses unattended. Appropriate guidelines could certainly address these. The results of these e-surveys contribute to the small body of research on the use of testimonial aids in general and CCTV in particular, demonstrating the important role that they can play in ensuring that the voices of child and youth witnesses are clearly heard in the pursuit of the truth.  

References