Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Defence Counsel Respondents

Interview Guide and Self-Administered Questionnaire for Survey of Defence Counsel

KEY INFORMANT INTERVIEW GUIDE DEFENCE COUNSEL

The Department of Justice Canada has recently launched a multi-site study of victims of crime and criminal justice professionals. The main objectives of this study are:

The following questions address issues relating to the role of victims in the criminal justice system and the implementation of recent reforms to assist victims of crime through the criminal justice process.

Role of the complainant in the criminal justice process

In your opinion, what role should the complainant have in the criminal justice system? In particular, please consider bail decisions, plea negotiations, and sentencing.

Recent reforms relating to victims of crime

As you may know, a number of legislative changes, at the federal level, have been made relating to victims of crime and their participation in the criminal justice system (victim surcharge, victim impact statements, consideration of victim safety in bail decisions, assistance to victims testifying at trial, publication bans, etc.). The following questions address issues relating to the implementation of these provisions.

  1. In bail determinations, do you generally agree to conditions that address complainant safety? If no, for what reasons do you object? Do judges or justices of the peace usually place conditions for the complainant's safety on the accused?
  2. Do you generally agree to requests for a publication ban in non-sexual offence cases? If no, for what reasons do you object? Based on your experience, do judges usually grant publication bans in cases involving non-sexual offences?
  3. Do you generally agree to requests for exclusion of the public? If no, for what reasons do you object? Based on your experience, do judges generally grant requests to exclude the public from a trial?
  4. Do you generally agree to the use of a screen, closed-circuit television, or video-tape for testimony of a young complainant/witness or a complainant/witness with a mental or physical disability? If no, for what reasons do you object? Do courts usually grant requests for these testimonial aids? What has been your experience when such testimonial aids have been used?
  5. Do you generally agree to requests for a support person to accompany a young complainant/witness or a complainant/witness with a mental or physical disability? If no, for what reasons do you object? Do courts usually grant requests for a support person?

Section 486 (2.3) of the Criminal Code states that, unless required by "the proper administration of justice" a self-represented accused cannot cross-examine a child witness (under 18 years of age). This section is applicable to proceedings where an accused is charged with a sexual offence, a sexual assault under sections 271, 272, and 273, or where violence against the victim is "alleged to have been used, threatened, or attempted."

  1. Have you ever been appointed to act for the accused pursuant to s. 486(2.3)?
  2. Do you feel that s. 486 (2.3) of the Criminal Code should be expanded to include other complainant/witnesses and/or other types of cases? Please explain.
  3. To your knowledge, are victim impact statements usually submitted? What about in serious cases? What are the most common methods for submitting? (e.g., written only, read by victim, read by Crown, other)
  4. Have you ever had a case where you cross-examined the complainant on their victim impact statement? Please describe (e.g., was it during trial or sentencing, what were your reasons for needing to cross-examine the complainant, did the Crown object, why did the judge permit the cross-examination).
  5. Are there any problems with the use of victim impact statements?
  6. Do courts usually grant requests for restitution? Do you generally agree to requests for restitution? If no, for what reasons do you object? Do you generally offer restitution to mitigate the sentence?
  7. Is restitution enforcement a concern or problem?
  8. Based on your experience, is the victim surcharge waived more often than it should be? Do you generally request a waiver of a victim surcharge? Are these requests usually granted? Do judges generally waive the surcharge without a defence request to do so?
  9. In what types of cases do you think a conditional sentence is appropriate? Do you usually agree to conditions in the sentence for the victim's safety? Please explain.

Restorative justice

Restorative justice considers the wrong done to a person as well as the wrong done to the community. Restorative justice programs involve the victim(s) or a representative, the offender(s), and community representatives. The offender is required to accept responsibility for the crime and take steps to repair the harm he or she has caused.

  1. Have you used a restorative justice approach? Why or why not? At what stage of the process have you used restorative justice? (e.g., pre-charge, sentencing, other)
  2. How are victims involved in the process?

Conclusion

  1. Do you believe that information on these changes in the Criminal Code is adequately communicated to defence counsel? If not, what could be done to address the lack of information regarding these legal provisions?
  2. What has been accomplished by the Criminal Code provisions intended to benefit victims? Have there been any unintended consequences to these provisions? Please explain.
  3. Do you have any other comments?

Thank you for your participation