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

• R v Agar, 2007 BCPC;
• #26636-1-K, Williams Lake;
• Criminal harassment
• Trial

• Application under ss. 486.2(2) and 486.3
• discretionary

• Adult female complainant with no disability
• Lengthy domestic history with the accused

• The judge  appointed counsel, but accused was unwilling to instruct him or share his defence
• A week before trial counsel came to court and advised judge that he could not receive instructions and ethically did not know what to do, as he could not effectively cross-examine without instructions
• On trial date nothing had changed and trial judge excused counsel – Law Society Benchers had advised him that he could not ethically perform his job as counsel
• Crown argued that accused  should not be entitled to cross-examine complainant at all in light of his behavior
• Judge permitted cross-examination as the right to do so is integral for administration of justice
• Judge had originally denied Crown’s application under s. 486.2(2) for CCTV
• In light of fact that accused would be cross-examining (not counsel) and that accused did not oppose CCTV order, this application was revisited and granted

• R v Canning, 2010 NSPC 59, [2010] N.S.J. No. 497 (P.C.)
• Multiple sexual offences against multiple individuals, some under 14
• Trial

• Crown application under s. 486.3 considered, after accused’s application for state-funded counsel for the trial was denied.
• [6]
• Mandatory and discretionary

• Four complainants
• Some under 14 at the times of the offences [1]

• Each complainant testified about how they would feel about being cross-examined by the accused [47]
• #1: is under 18 and would have difficulty concentrating (and wanted a screen) [47]
• #2: is over 18 said accused questioning him would affect his answers [47]
• #3: prefers to be cross-examined by a lawyer, but did not say accused questioning him would affect his answers [47]
• #4: said it would make no difference [47]

• The court must consider “the age of the witness, the nature of the offence and the relationship between the witness and the accused.” [47]
• Here, the accused also made an application for court funding for counsel, which indicates that he has no issue with having a court appointed lawyer [48]
• The Test: “The test is not met simply by a witness expressing a wish. There must be reason to think that there is actual need for the requested order. The rationale is not to spare a witness some discomfort, but to prevent the injustice which would occur if the witness were unable to speak the whole truth.” [49]
• Application granted for complainant  #1 – proper administration of justice does not require the accused to personally cross-examine [50]
• Application granted for complainant #2 – necessary to obtain a full and candid account [50]
• Application denied for complainants #3 and #4

• R v C(CA), 2011 BCPC 170; sexual touching and uttering threats;
• Prelim

• Very little discussion on this point. The judge states that the criteria are satisfied and nothing indicates any interference with the proper administration of justice [24]
• Application granted [24]

• R v Fazekas, 2010 ONSC 6603; Criminal harassment and related charges;
• Trial

• Crown filed affidavit re: charges and transcript of Partial Proceedings at Trial. [3]
• Crown who observed the accused at the original trial testified that he was vulgar, used foul language and became agitated when cross-examining the complainant [3]
• The accused filed the transcript of the cross-examination of another complainant on a subsequent trial [4]

• Opposed, based on s. 650 of the Criminal Code and Charter ss. 7 and 11(d) [6]
• Argued that full answer and defence requires him to personally cross-examine the complainant because he knows her best, and he get admissions a lawyer could not, and that the jury might draw an adverse inference [7-10]

• “Section 486.3(4) of the Criminal Code establishes a presumption that an accused charged with criminal harassment shall not cross-examine the complainant. The accused has the onus of rebutting this presumption by demonstrating that the proper administration of justice requires him or her to personally cross-examine the complainant.” (cites R v G(DP), [2008] OJ No 767) [5], [12])
• Cites G(DP) and R v Grey, [1996] OJ No 4743 (Ont Prov Div), where it was held that the accused’s right to make full answer and defence was not infringed because he could instruct counsel [14]-[16]
• Purpose of the section (quoting R. v S.(P.N.), [2010] O.J. No. 2782 (Ont CJ)): “Section 486.3 is found within that part of the Criminal Code setting out legislated aids for a witness in court, such as screens and support people, to facilitate a witness providing full and candid testimony. Specifically, s. 486.3, if an application is made, authorizes the court to order that an accused not cross-examine a particular witness directly, but to insert a "legal screen" between the accused and witness by ensuring a third party conduct the cross-examination” [17]
• Notes that section 486.2 was upheld as constitutional in R v S(J) (2008), 238 CCC (3d) 522 (BCCA), aff'd (2010), 251 CCC (3d) 1 (SCC): quoting from S(J): “s. 486.2 of the Criminal Code is “merely the next step in the evolution of the rules of evidence. These rules seek to facilitate the admissibility of relevant and probative evidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of their evidence.”[18]-[21]
• In the present case, the accused has not demonstrated that the proper administration of justice requires him to conduct the cross-examination. He was polite and civil, but had difficulty staying focused and a tendency to get excited – he is no substitute for a legally trained advocate, and will have ample opportunity to consult with counsel [22]-[23]

• R. v D.P.G., [2008] O.J. No. 767 (S.C.J.)
• Pornography charges

• Crown application under s. 486.3(1)
• Mandatory

• Several witnesses between 9-15 years old
• voyeurism

• The reason advanced by D.P.G. for opposing the Crown's motion is that his past experience with lawyers has left him without any confidence that the questions he wishes to ask will be put to the witnesses. He cites examples of prior trials where he was unable to communicate with counsel in the court room even to the point of being prohibited from passing notes to counsel. [3]
• He adds that four of the witnesses under the age of 18 are cousins, that he has known them since they were born, and has never had any difficulty communicating with them. He also suggests that I ought to interview the witnesses to determine if they are reluctant to be cross-examined by him personally. He submits further that cross-examination by him likely would be les intimidating than if it were conducted by a lawyer. [4]
• The section does not require that I interview the witnesses or even that I determine it is their wish to be cross-examined by someone other than the accused. Once the Crown makes the application the presumption arises and the accused must satisfy the court that the proper administration of justice requires the accused to conduct the cross-examination personally. [5]

• R v Gendreau, 2011 ABCA 256; Sexual assault, unlawful confinement;
• Appeal

(486.3(2))

• Appellant did not oppose the application at trial, but expressed preference to conduct it himself [21]
• On appeal, argues that his ability to fully defend himself was compromised [24]

• At trial, the Crown submitted that the unequal relationship between complainant and the appellant,  the intimate and humiliating nature of the sexual assault, and the appellant’s explanation all indicated that counsel should be appointed [22]
• The appellant effectively agreed and confirmed that he was content to have the lawyer he proposed appointed [22]
• The judge agreed to appoint counsel
• This ground of appeal is without merit – the appellant and counsel consulted on several occasions and the lawyer put the appellant’s theory to the complainant [24]
• Here, the circumstances of the case, nature of the relationship between the appellant and complainant, and the nature of the alleged criminal acts all support the judge’s decision to appoint counsel [25]

• R v Jones, 2011 NSPC 3; Assault, unlawful confinement, threats against three complainants (two of accused’s children and estranged spouse)
• Trial

• The children are three and six years old;
• The adult complainant is the accused’s estranged spouse
• No disability mentioned

• No requirement to call witness/complainant: The Crown does not need to call the actual witnesses or complainants to give evidence on these applications (citing R v Predie, R v G.(D.P.)). [7]
• Hearsay allowed: Nothing in the Criminal Code prohibits the court from receiving hearsay evidence – to allow it would be to undermine the purpose of the provisions, as the accused would be able to cross-ex the witness [7]
• Children: How will a disservice be done to the proper administration of justice if a lawyer on behalf of accused conducts the cross-examination of the young girls rather than accused himself?  He argues that he can communicate well with the children.  Crown has presented persuasive case that they would be further traumatized. Therefore, ordered.
• Adult: The court need only “form the opinion that the appointment of counsel is necessary to obtain a full and candid account from the witness” (citing R v Predie)
• This case is factually similar to Predie: previous intimate relationship between complainant and accused, power imbalance – this is the type of witness this section is intended to protect [38], [40]
• Other relevant factors: the accused’s behavior in court, if emotion-driven, supports an appointment of counsel (citing Predie) [41], [42] – can he conduct a focused, rational cross-examination?
• In this case, the accused is reasonably focused, managed his emotions, and took direction from the court. However, the judge noted some “indications of a controlling attitude, in his demeanour and comments, that could express itself in a cross-examination of [the complainant]” (accused refused to refer to his ex-spouse by her new name) [42]
• Response to accused’s arguments re: self-representation:
  1. on the balance of the trial, he will be able to represent himself, and
  2. the Criminal Code provisions trump his right to self-representation for the limited purpose of such cross-examinations [44]
• Application granted

• R v Lloyd, 2011 ONCJ 15
• (Sup.Ct.Jus.)
• Prostitution  offences
• Trial

• Intake (early) Pre-trial
• (judge notes that he is not the trial judge)

• Accused not opposed to order, and lawyer was prepared to act, but wanted an order from the judge fixing his rate of remuneration
• The materials now before judge indicate that there is a protocol in existence between Legal Aid Ontario and the Ministry of the Attorney General of Ontario. Under that protocol, when an order under section 486.3 is made the Ministry will fund counsel as opposed to Legal Aid Ontario. Legal Aid, however, will find counsel and monitor the case in accordance with Legal Aid billing and payment rules and practices. [4]
• Section 486.3(4.1), which was not brought to judge’s attention during the argument of this matter, vests jurisdiction to order the appointment of counsel under 486.3 "during the proceedings" in the judge "presiding at the proceeding" or "before the proceeding begins" in "the judge who will preside at the proceeding". The way this subsection is structured, it can only view the reference to "proceeding" as a reference to the actual hearing that is anticipated before the court. In this case, that would be the judge presiding at trial or the preliminary inquiry or the judge specific assigned to preside at the trial or preliminary inquiry. . . In order to solve this jurisdictional issue , the judge seized  himself with this matter prior to making any order and, and directed the trial co-ordinator to have this matter set before him for trial or preliminary as the case may be. [8], [9]
• Compensation issue – does the judge have the authority to set the rate? “The fact that section 486.3 is silent on a mechanism regarding compensation in this context may simply mean no more than Parliament is expressing its contentment to leave the fixing of compensation, if necessary, to the various courts upon which it has conferred the jurisdiction to appoint under 486.”

• R v C.M., 2012 ABPC 128
• Second degree murder
• Trial

• Crown application under s. 486.3(1)
• Mandatory

• Witness under 18
• Not the victim, but an important witness 
• Had been friends with the accused and then robbed by him, no longer friends

• the accused’s previous counsel was appointed as amicus and in order to cross-examine witness
• accused consents to order, but seeks to withdraw consent after examination in chief as he no longer trust the lawyer and he had since received disclosure that made him see the evidence as more valuable [28]
• judge allowed accused to withdraw consent and entered a voir dire
• accused wanted to call the witness on the stand in the voir dire – denied on basis that it would defeat the purpose of the provision [26]
• accused wanted to call the lawyer to the stand, found not to be compellable [27]
• accused a careful, capable, respectable cross-examiner, but he threatened the witness with a knife and exercised power over him
• Order granted

• R v DBM, 2006 BCSC;
• #71566-4, Kamloops; Sexual assault, criminal negligence, assault causing bodily harm, weapons charges, threats

• Application under s. 486.3(2)
• discretionary

• 3 adult female witnesses, no mental disabilities
• Witnesses are the daughter, sister-in-law, and wife of the accused
• There is a pattern of abuse with the wife

• Accused subpoenaed 3 witnesses, more of a direct examination than cross-ex
• Use of section shouldn’t be restricted where subpoenaed (the accused subpoenaed the witnesses)
• Provisions intended to provide a power beyond that a judge has in controlling the questioning of a witness
• Application granted for wife and daughter, not for sister-in-law (more distant relationship, only a few specific questions to ask)

• R v M.J.M., 2011 ONSC 2717; Sexual assault and sexual interference;
• Trial

• Complainant and mother lived in the apartment of accused, who was friends with complainant’s mother – the accused treated the complainant like his daughter [8]-[10]
• No reasoning given. [2]

• R v Morton, 2012 ONCJ 593; Voyeurism, mischief;
• Trial

• No reasoning given [3]

• R v Peetooloot, [2006] 42 CR (6th) 53 (NWT Territorial Court), [2006] N.W.T.J. No. 23; unlawful confinement, sexual assault, common assault:
• Prelim

• Considered factors in s. 486.1(3)
• Once a judge is satisfied that the appointment of counsel is necessary to obtain a full and candid account, then the order “shall” be made (no discretion) [11], [14]
• Application granted [11]
• The lawyer will be paid for his service (through legal aid or otherwise from government funds)

• R v Predie, [2009] O.J. No. 2723 (Ont SCJ); 7 offences including assault, assault with weapon, extortion, and firearms offences;
• Trial

• The complainant is the former common law spouse of the accused and alleges years of abuse
• Evidence supports that she is fearful of testifying

• Affidavit of Victim/Witness support worker who was assigned to the complainant to provide services [16]
• Evidence consisted of support worker’s direct observations of the complainant and hearsay statements made by the complainant in relation to her potential trial testimony [17]

• An evidentiary basis is required to support an order under s. 486.3(2), although the section does not provide for any specific form of evidence (citing R v B(R), 2004 ONCJ 369) [12]
• The witness does not need to testify in connection with the application (citing R v Aikoriogie, 2004 ONCJ 96) [13]
• “It is sufficient if the requisite evidence is forthcoming from another witness with appropriate knowledge of the witness.” [13]
• The court has wide latitude in considering s. 486.3(2) applications – “The circumstances need not be ones that would create inordinate or exceptional stress” (citing Levogiannis) – it need only be necessary to obtain a full and candid account [14]
• No requirement for the witness to attempt to testify: The witness does not need to try to give evidence and fail before an order appointing counsel can be made [15].
• Hearsay evidence: Section 486.3(2) does not preclude the introduction of hearsay evidence to support an application [17]
• Section 486.1(3) factors: In the instant case, it is a domestic violence offence, connoting a power imbalance, and there is a close relationship – these indicate the possibility of not getting a full, candid account [21]-[23]
• Additional factor: The accused’s ability to conduct a “focused, rational and relevant cross-examination” is relevant to the application – “An unfocused, emotion-driven cross-examination will only heighten the anxiety and fearfulness of the witness and will increase the likelihood that the encounter between examiner and witness will take on the character of the very kind of domestic dispute that appears to have given rise to the charges now before the court.” [25]
• Application granted – the accused has demonstrated that he will not be able to conduct a focused, rational and relevant cross-examination [26]-[28]

• R v Papequash, [2006] Y.J. No. 15 (S.C.)
• Sexual Assault Trial

• Adjournment of trial based on Crown’s application for counsel, s. 486.3(2)
• discretionary

• Counsel for the accused withdrew because accused was not keeping in touch with him
• Accused needed an adjournment, and Crown also indicated it would make application for counsel to cross-examine complainant

• R v S.(P.N.), [2010] O.J. No. 2782 (Ont.C.Jus.)
• Assault
• Trial

• Crown application under s. 486.3(1)
• mandatory

• Two child witnesses (one his twelve year old niece)
• Section 486.3 authorizes the court to order an accused not to cross-examine a particular witness directly, but to insert a "legal screen" between the accused and witness by ensuring a third party conduct the cross-examination. But not just a “human screen” who parrots questions on behalf of accused [13] (QL)
• At a minimum, to meet such professional standards, counsel would need to meet with the accused for sufficient time to develop the defence theory and strategy of the cross-examination - this would surely require counsel to have first familiarized themselves with the disclosure including reviewing any videos. Counsel would also be required to have a detailed understanding of the evidence of any witness who testified prior to those witnesses the subject of a s. 486.3 order. In my view, any prior witness' testimony would need to be provided to counsel by way of a transcript or counsel would need to attend and observe the testimony both in-chief and the accused's cross-examination of the witness. [20] (QL)
• “Unfortunately there is a lack of guidance as to how the process should work.” [15] (QL)
• counsel arranged between government and legal aid, accused can participate in choice, funding arrangements between government and lawyer
• judge sets out a suggested protocol

• Crown application under s. 486.3(2)
• discretionary

• The witnesses are neighbours of the accused
• Neither witness is essential to the Crown’s case [2]

• Accused opposed – insisted on right to cross-examine personally [10]
• Argued that he will behave properly in cross-ex, having amicus curiae conduct the cross-ex would prejudice him in the minds of the jury, and the Crown’s application is based solely on hearsay [10-12]

• The purpose of the new provisions is to render the trial process more “user-friendly” to vulnerable witnesses [6]
• Counsel is not appointed simply because of the witness’s preference [9]
• A solid evidentiary foundation must be laid before an order under s. 486.3 should be made [16]
• The judge is not satisfied that the witnesses will be unable to give a full and candid account of their observations [16]
• The judge looks to the prelim transcript to observe that counsel obtained a full and candid account from the witnesses, though it was not the accused who conducted the cross-ex [17]
• The Test: “Weighing the unfettered right of the accused to defend himself against the discretionary order that I might make to accommodate a witness, I believe I must be satisfied on a balance of probabilities that a full and candid account would be unachievable should the accused cross-examine an individual witness. The evidence on a voir dire must establish the "necessity" of making such an order.” [19]
• Evidence required: “…at a minimum there must be reliable, trustworthy evidence from sources with intimate knowledge of the individual witness so that the court can be satisfied on a balance of probabilities that a full and candid account could not be achieved in the event the witnesses were subject to cross-examination by the accused.” [19]
• In this case, the witnesses are prepared to testify if need be – the accommodation is therefore not necessary [21]
• There are other methods available to assist nervous witnesses [22]