The Role of Crown Prosecutors in Child Advocacy Centres in Canada

Child Advocacy Centres (CACs)^Footnote1 are designed to provide a coordinated response to children involved in the criminal justice system by offering a central point for services related to investigation, support, and crisis intervention. The critical aims of this coordinated response are to reduce system-induced trauma and to provide specialized, centralized services that support children through the justice process and enhance their long-term well-being. CACs were first developed in the United States (US) in the 1980s and there are currently more than 1000 American organizations.

The extant evidence supports CACs as an effective strategy for prosecuting crimes against children. US cases that proceed via a CAC, when compared with those that proceed without a CAC, tend to see increased prosecution rates (Connell, 2009), reduced time to charges (Walsh et al., 2008), and reduced costs (Shadoin et al., 2006). Further, children whose cases proceed via CACs have been found to have lower stress, and are more likely to experience medical examination and a child-friendly setting for an investigative interview (Cross, Jones, Walsh, Simone, & Kolko, 2007; Faller & Palusci, 2007; Jensen et al., 1996; Jones, Cross, Walsh, & Simone, 2007). Though there has been much less research conducted in Canada, in one six-site study, evaluations by caregivers and victims were very positive, including evidence that the CAC reduced hardships for clients – both financial and non-financial (Department of Justice Canada, 2018).

In the United States, CACs must meet 10 standards for accreditation through the National Children’s Alliance (NCA, 2017):

1. Multi-Disciplinary Team (MDT),
2. Cultural Competence and Diversity,
3. Forensic Interviews,
4. Victim Support and Advocacy,
5. Medical Evaluation,
6. Mental Health,
7. Case Review,
8. Case Tracking,
9. Organizational Capacity,
10. Child-Focused Setting.

The US model has been adapted in Canada, within the parameters of Canadian law, and geographical and logistical considerations. For instance, CACs in Canada typically include a MDT (with law enforcement, child protection services, mental health services, medical services, specialized forensic interviewing, and victim advocacy). However, there are other standards that are less easily adapted in some jurisdictions. For example, one of the 10 NCA standards requires a child-friendly facility and in Canada, due to vast geographical spread in some regions, virtual models have been developed as a practical solution.

The first CAC model developed in Canada was the Regina Children’s Justice Centre (RCJC) in 1993. Substantive growth in the use of CACs across Canada was assisted in 2010 when the Department of Justice Victims Fund provided funding for the creation of new CACs and there are now centres either in place or in development in most provinces and territories. Though there are many common features in CACs across Canada, there are also many differences in the approaches the centres use both within and between jurisdictions.

The role of the Crown

A central tenet of the CAC is the MDT. The NCA standards outline the required members for the MDT in the United States: law enforcement, child protective services, medical, mental health, victim advocacy, and prosecutors. The MDT approach has been shown, in several US studies, to enhance collaboration and coordination among team members, relative to non-CAC investigations (Cross et al., 2007, 2008). Of note, this team approach to investigations directly involves prosecutors in the United States, who are typically a member of the MDT (some CACs are located in district attorney officers, others in Child Protective Services or hospitals; Walsh et al., 2003). However, in the Canadian context, the role of prosecutors in CACs has been more complex.

Crown prosecutors in Canada work within the justice system, but exercise prosecutorial discretion independently from government, police, the victim, and the accused. The Crown are “Ministers of Justice,” meaning that they serve the court and the public interest, not a particular cause. Rather, they represent society as a whole and therefore must take into account fairness in the administration of justice. This requires balancing the decision to prosecute offences with the likelihood of conviction, determining whether prosecution is in the public interest, and serving justice to both the alleged victim and offender.

The independence of the Crown role applies to both in-court and out-of-court behaviour (R. v. Boucher, 1955; R. v. Regan, 2002). In Regan, the “Minister of Justice” concept was further clarified as comprising three critical components: objectivity, independence (including from police and defence), and lack of animus (towards the accused). However, this requisite independence must be balanced with a close working relationship with the police or investigative agency (Public Prosecution Service of Canada (PPSC) Deskbook, 2014, s 2.1). The role of the Crown includes the provision of legal advice to investigative agencies, such as direction about methods or investigative techniques for gathering admissible evidence, and identifying areas of a particular case for which additional investigation is desirable or needed (PPSC Deskbook, 2014, s.4.2.2). Crown involvement at the investigative stage is common, but such pre-charge cooperation still requires an ultimately independent assessment of the investigated case by the Crown prior to prosecution.

While the Crown in Canada may work closely with members of a CAC, including police and social workers, their role is to evaluate evidence, assess the public interest in a prosecution, and lay or review charges accordingly. Thus, despite working closely with a CAC, the Crown do not work for a CAC, but rather receive information from a CAC and evaluate that information for the possibility of prosecution. Indeed, the provision of legal advice by the Crown to investigative agencies to ensure that evidence is gathered in an admissible manner is perhaps one of the critical advantages of their involvement in a CAC. When the Crown has consistent, direct access to investigators at the CAC, expectations can be made clear to investigators and expertise can be developed. Targeted training and discussion with investigators who specialize in working with child victims and witnesses could lead to evidence being gathered in ways that better promote the ability to appropriately prosecute offences against children.

The relationship between the Crown and investigative and support agencies can differ across jurisdictions. For instance, in some provinces (British Columbia, Quebec) Crown prosecutors lay charges, whereas elsewhere in Canada, police may lay charges on their own, and prosecutors review these charges.^Footnote2 This difference in pre-charge screening may have an impact on both the working relationship between parties, as well as on the rate of guilty findings. For instance, according to Statistics Canada, provinces that engage in pre-charge screening have some of the highest rates of guilty findings, relative to provinces without pre-charge screening (Statistics Canada, 2017). Despite some signs that this close collaboration might decrease justice delays and contribute to more successful prosecutions, currently in Canada, there is no clear support for either pre-charge screening or no pre-charge screening, and calls for thorough research into the question have been made (Standing Senate Committee on Legal and Constitutional Affairs, 2017).

Disclosure

One of the key considerations related to the Crown’s involvement in CACs is the Crown obligation of disclosure. As outlined in the PPSC Deskbook (2014) and in case law, R. v. Stinchcombe (1991), the Crown must disclose to the defence all information that could, “reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence” (R. v. Egger, 1993). The to-be-disclosed information does not necessarily have to meet standards of admissibility (R. v. O’Connor, 1995), but should be reliable and relevant to the case at hand.

As disclosure obligations relate to the Crown’s role in a CAC, any information to which the Crown is privy becomes fodder for disclosure. Thus, if mental health, social services, or other ancillary services are discussed within the Crown’s presence, the Crown is obligated to disclose any relevant information that arises to defence counsel. The Crown then, must balance exposure to prosecution-relevant evidence with the possibility of exposure to evidence that is not directly related to prosecution or defence, but for which disclosure could be required nonetheless.

Current project

Given the legal and practical constraints of the role of the prosecutor in CACs across jurisdictions in Canada, the aim of the current project was to explore how these relationships are currently being navigated and to document the variety of approaches to the Crown/CAC relationship. There is a general lack of research on Canadian CACs (see McDonald, Scrim, & Rooney, 2013), and little is known about how the Crown are currently operating within or alongside Canadian CACs. Thus, semi-structured interviews were undertaken with Crown prosecutors who worked closely with CACs across Canada to document their experiences and perspectives.