IV. The Legislative Process: Access to Justice for the Vulnerable

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Parliament responded to the circumstances of those who may be vulnerable in the criminal justice system with significant amendments to s. 486 of the Criminal Code, as well as by enacting the Canadian Victims Bill of Rights.66 These steps placed the legislative process at the forefront of change on issues of victim privacy, introducing testimonial aids and statutory rights and remedies. In combination, these steps reflected a shift in perception toward victims and witnesses in the criminal process. Parliament’s package of testimonial aids recognize that the failure to accommodate their needs may undermine access to justice for those harmed through the commission of criminal offences. Without measures to promote accessible justice, their participation – which is vital to the objectives of criminal justice – could be deterred and dampened. The extensive amendments to s. 486 create a framework for protecting vulnerable participants within an overarching commitment to the open court principle.

A. Section 486 and Testimonial Aids

Legislation sub-titled the “protection of children and other vulnerable persons”, was enacted in 2005, came into force in January 2006, and was supplemented by further revisions in 2015. In concert, these initiatives transformed s. 486 into a mini code that prescribes forms of assistance for victims and witnesses who may be vulnerable because of age, disability, the nature of the offences or proceedings, or for other reasons.

Section 486 is a longstanding Criminal Code provision grounded in an assumption that proceedings will be open, which authorizes judges to exclude the public where doing so would serve the interest of public morals, maintain order, or serve the proper administration of justice.

A challenge under s. 2(b) of the Charterresulted in one of the Supreme Court’s strongest open justice precedents.67 In CBC v. New Brunswick, La Forest J. linked the principle to democratic values, public access to information, and to the importance of a free and vigorous press and its newsgathering function.68 Describing it as “real and not illusory”, he stated that the public’s right to obtain information is predicated on the right of the press to gather information about court proceedings without undue government interference.69 Notwithstanding his strong endorsement of open court under s. 2(b), La Forest J. upheld s. 486. In particular, he held that the power to exclude the public allows courts to control the “publicity” of proceedings and protect the innocent, safeguard privacy interests, and afford a remedy to the underreporting of sexual offences.70 La Forest J. was also clear that the threshold for exceptions to openness is high; in that case, the trial judge improperly exercised his discretion by excluding the public for about 20 minutes during the hearing on sentence. The decision set a strong precedent for a strict approach to open justice, adapting the then-recent Dagenais/Mentuck test to s. 486’s discretion to exclude the public, and emphasizing that any exceptions to openness require a “sufficient evidentiary basis”.71

Up until 2005, the Court took a strict view of the Dagenais/Mentuck test and the exercise of judicial discretion to place limits on openness. Yet the Court also upheld provisions to accommodate the testimony of young witnesses.72 Against that background, even a cursory glance would reveal that the introduction of comprehensive and highly structured testimonial aids transformed s. 486. Though the provision rests on a baseline or default assumption of openness, the exceptions now codified contemplate accommodations and “testimonial aids” that are potentially available to all victims and witnesses.73

These aids are based on a recognition that those who are involved, and rarely by choice, may be vulnerable while participating in criminal proceedings. That vulnerability is addressed by accommodations that include providing evidence from outside a courtroom or behind a protective screen; being accompanied by a support person who is entitled to remain “close” during testimony; being protected from cross-examination by a self-representing accused; and being protected from the disclosure or publication of identifying information.74 In principle, by ameliorating the process for participants, s. 486’s aids address their access to justice needs and, in doing so, promote the efficacy of criminal justice.

That said, vulnerability is a matter of perception and, as such, presents precarious grounds for accommodations that can affect openness or the rights of the accused. Rather than directly legislate in the name of vulnerability, this reform created classes, or a hierarchy; the statutory classifications determine whether s. 486’s aids are presumptive in nature (mandatory on request), or discretionary and subject to a weighing of prescribed factors. Under the scheme, orders are mandatory for victims and witnesses who are under age 18 or have a disability, as well as in the case of certain offences. Orders are otherwise discretionary for other witnesses. Where accommodation is available at the discretion of the Court, the Criminal Code prescribes factors and checklists that must be considered before an order can be granted.

In brief, there are two types of provisions in s. 486’s mini-code of testimonial aids: those that protect a witness or victim who is giving evidence,75 and those that protect witness or victim identity from being disclosed or published.76 Aids are available, either presumptively at the request of the Crown or vulnerable participant, or at the discretion of the Court. Structurally, aids such as testifying outside the courtroom or behind a screen are mandatory on request for those under age 18 or with a disability.77 Though the same protection is available to others where it would facilitate the witness in giving a “full and candid account”, a judge’s discretion to make such an order is fettered by a mandatory list of factors. Society’s interest in encouraging the reporting of offences and participation of victims and witnesses in the criminal justice process are among the factors that must be considered.78 While s. 486.2 protects witnesses from seeing the accused during their testimony, s. 486(1) authorizes a judge to exclude the public or provide a screen to protect witnesses from being seen by the public. Once again, the exercise of this discretion is governed by a prescribed list of factors, which includes the reporting of offences and participation of victims and witnesses.79 On their face, these provisions contemplate significant accommodations for victims, witnesses, and justice system participants which, when granted, reduce the scope of access to open court proceedings.

Section 486 protects trial participants from the disclosure of their names or identity during proceedings, as well as by bans on the publication of identifying information. First, s. 486.31 allows a judge to make an order prohibiting the disclosure of any information that could identify a witness.80 Additionally, an order banning publication of information identifying a victim or witness is mandatory, on request, under s. 486.4 (2), (2.1) and (2.2), for certain offences and for victims under age 18.81 Section 486.5 grants a residual discretion to judges to make an order banning the publication of identifying information for any witness, where it is “in the interest of the proper administration of justice”, and for a “justice system participant”, where certain offences are involved and it is likewise in the interest of the proper administration of justice.82

This summary demonstrates that s. 486’s framework of testimonial aids is comprehensive and wide-ranging. Shielding victims and witnesses from the public or an accused compromises the open court principle at least for that part of a proceeding when they testify – which in many or most cases might be critical. Meanwhile, orders protecting the identity of victims and witnesses who participate in criminal proceedings depart from the view that anonymization is the exception in criminal justice. If not outdated, that convention is open to skepticism, as suggested in Bragg Communications, where victim identity was dismissedas relatively unimportant.83

In addition, s. 486’s departures from open justice’s underlying values are significant where accommodation is mandatory on request (i.e., by victims or witnesses under age 18 or those with disabilities), as well as where the identity of a victim, witness of “justice system participant” is permanently prohibited from disclosure or publication. Accommodations that are available on a discretionary basis are subject to a prescribed list of facts that includes a weighing of the salutary and deleterious effects of an order and, where appropriate, consideration of any effective available alternatives. These criteria explicitly incorporate and codify elements of the open justice jurisprudence, as described above. There, context is an important factor in balancing the competing interests in accommodation and open court.

The manifest goal of the reforms is to promote the efficacy of the criminal justice process by accommodating the needs of these participants. In doing so, the reforms advance the important objective of access to justice for those who face obstacles when called on to give testimony in court. As required, the Department of Justice Canada has undertaken a review of these reforms, and has otherwise commissioned studies to determine how s. 486’s testimonial aids are working.84 Data collection is an ongoing process, and while some aids encounter resistance from judges or objections by counsel, the research confirms that overall the vulnerable participant provisions have been reasonably well received. In the circumstances, it should not be surprising to learn that some testimonial aids are more effective than others and that some provisions are relied on more often than others.

At present, it is uncertain whether and when Charterchallenges to these provisions, either on open court or legal rights grounds, might reach provincial appellate courts and ultimately the Supreme Court of Canada. From that perspective, The Queen v. R.D.F., a decision in the Provincial Court of Saskatchewan, is worth noting.85 At issue were mandatory and discretionary publication bans under s. 486.4(2.2) and s. 486.5, respectively, to protect the identity of the victims in a mass shooting that took place at a school in northern Saskatchewan. Despite lacking the authority to invalidate the provision, the judge found s. 486.4(2.2)’s mandatory ban for all victims under the age of eighteen years unconstitutional, because there was no evidence to support an automatic ban, on request, in every case.86 For that reason, the provision could not apply in the circumstances. The judge also found that a discretionary ban under s. 486.4(5) was unwarranted; in concluding that the evidence of harm to those who might be identified was not sufficient, Martinez J. applied the Dagenais/Mentuck test and analyzed s. 486.5(7)’s list of factors.87

In finding against both publication bans, R.D.F. relied on robust application of the open court principle, including the requirement of an evidentiary basis. In that, the decision was consistent with the first generation jurisprudence. Whether a similar approach will prevail in other settings or contexts is unclear. Although the Court’s more recent decisions acknowledge the vulnerability of participants in the justice system, much in any given instance will depend on the context.88 In short, the open court principle may be deeply embedded in the jurisprudence, but is far from invincible when balanced against the interests of vulnerable participants in criminal justice.

B. The Canadian Victims Bill of Rights

The Canadian Victims Bill of Rights, an Act for the Recognition of Victims Rights, marks a significant development because it synthesizes, validates, and provides remedies for those who are the victims of crime.89 The preamble declares, in part, that it is important that victims’ rights be considered throughout the criminal justice system, and that consideration of these rights is in the “interest of the proper administration of justice”.90 Though the legislation only applies to federal institutions, the preamble also notes that the provinces share responsibility for criminal justice and have recently endorsed the Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003.91

The Act’s provisions include the right to information, the right to certain protections, the right of participation, and the right, at the least, to require a court to consider making a restitution order. Of particular interest are the protections, which include s. 11, stating that every victim has the right to have their privacy “considered by the appropriate authorities”; s. 12, declaring that every victim is entitled to request that their identity be protected, as a complainant or witness; and s. 13, stating that every victim appearing as a witness is entitled to request access to testimonial aids. Not surprisingly, these provisions are consistent with and relate, in part, to the amendments to s. 486 of the Criminal Code. Section 20 qualifies the Act’s protections, stating that its provisionsmust be applied in a manner that is “reasonable in the circumstances” and does not “interfere with the proper administration of justice”.92

Enforcement and remedies present issues whenever rights are created. Section 25 of the Actgrants victims the right to file a complaint concerning the suspected or alleged infringement of rights in the legislation.93 It further provides that every federal department, agency, or body involved in the criminal justice system must put a complaints mechanism in place, with components for reviewing complaints, making recommendations, where appropriate, and notifying the complainant of the outcome.94 The Actis also explicit as to limits on the rights created by this legislation. For instance, while s. 28 specifies that no cause of action or right to damages arises from an infringement or denial of its entitlements, s. 29 adds that there is no right of appeal from any decisions taken or orders made under the legislation.

The Act’s impact is as yet unknown. In that, it is instructive that s. 2.1 calls for parliamentary review five years from the date of its enactment. Whether and how the Canadian Victims Bill of Rights responds to and addresses issues of importance to victims and the administration of criminal justice may become clearer at that point.

C. Conclusion

The federal government has actively attended to the needs of victims, witnesses, and “justice system participants”, with major amendments to s. 486 of the Criminal Code and enactment of the Canadian Victims Bill of Rights. These reforms are driven by the recognition that some victims and witnesses are inherently vulnerable when participating in criminal proceedings, but also that others, who do not carry the statutory markers of vulnerability (i.e., age, disability, nature of the offence) might require accommodation. When the decision to accommodate is discretionary, rather than mandatory on request, a higher threshold of justification must be met. Before completing this discussion, two other references should be added. First, a provision authorizing publication bans at Review Board proceedings, under Part XX.1, was added to the Criminal Code.95 Second, at least one statutory amendment sought to enhance openness and the accountability of young offenders. In 2012, the Youth Criminal Justice Act was amended by the Safe Streets and Communities Act, which in turn was aimed at protecting the public by holding young offenders accountable, promoting their rehabilitation and reintegration to society, and preventing crime by addressing the underlying behaviours.96 Section 75 was altered to allow a judge to lift a publication ban where an offender receives a youth sentence for a violent offence, in circumstances where the offender poses a “significant risk” of re-offending and it is necessary to lift the ban to protect the public.97

The Criminal Code amendments and Canadian Victims Bill of Rights are important initiatives that shift the balance toward accessible justice – and effective law enforcement – for those involved in criminal justice as victims and witnesses. As such, these initiatives retreat to some extent from open justice and the rights of the accused, as understood in the earlier jurisprudence. That said, these changes have yet to be challenged and tested under the Charter.

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