3.0 Findings

This section describes the findings from the semi-structured interviews undertaken with representatives of 20 CACs/CYACs. In some areas, the interview data is complemented by information from funding proposals for example, or media reports. The findings are presented here thematically.

3.1 Purpose of virtual testimony

All the organizations interviewed stressed that the purpose of testifying remotely from the CACs/CYACs is to reduce the risk of re-traumatization of young victims/witnesses during criminal court processes.

Their focus is on what is best for the child or youth and how best to prioritize their needs. Almost all those interviewed noted that virtual testimony helps address the very real needs of the young victim/witness. For example, allowing virtual testimony to be provided from a room at the CAC/CYAC ensures a safe, familiar and comfortable space for the victim/witness allowing them to speak without fear and to facilitate a full and candid account of their victimization. Similarly, virtual testimony also eliminates the risk of seeing the accused – and their support peopleFootnote 13 – in person, which could happen if attending the court (particularly in rural communities and small courthouses or where other community buildings, such as the school or community centre, are used for court).

3.2 Steps towards implementation

Several CACs/CYACs had been considering virtual testimony prior to the COVID-19 pandemic. All those interviewed acknowledged that the pandemic helped to speed up the acceptance, and in some cases the championing, of this approach by key stakeholders.

Many CACs/CYACs considering virtual testimony reached out to other organizations already doing virtual testimony, especially Luna CYAC in Calgary. This particular CAC/CYAC had spoken about their work in this area through a national webinar during the 2021 National Victims and Survivors of Crime Week held in November of 2021.

For all organizations using dedicated spaces for virtual testimony, and many of those considering or developing it, there were specific steps followed, although not necessarily in a chronological order:

3.2.1 Barriers to implementation

For CACs/CYACs considering virtual testimony, funding was often the step missing, but many also noted that they just did not have the physical space in their current locations. Two CACs/CYACs were planning to move to a bigger space in the coming year and one CAC/CYAC had recently moved to a bigger space. These larger offices would allow them to have several rooms for forensic interviewing, as well as dedicated spaces for virtual testimony, among other key areas. Other barriers included ensuring reliable internet service and figuring out the right technology required by the courts.

The decision about whether victims/witnesses can testify from a CAC/CYAC via virtual testimony depends upon the judge who is responding to an application made by the Crown prosecutor. After discussing the matter with victim services, the Crown prosecutor responsible for the case will submit a motion to the court. Depending on the position of the defence, the motion could be approved on consent, or could be more contentious, although there is little evidence of this in the case law (see Bala forthcoming). Those interviewed reported that defence counsel more often opposed the introduction of testimony by video.

Two CACs/CYACs spoke about waiting for the “perfect case”. A few CACs/CYACs noted delays with using the virtual testimony space, as their Crown prosecutor was concerned that judges may refuse to grant permission for virtual testimony, thereby setting a case law precedent for their jurisdiction. As a result, the Crown prosecutor wanted to wait for a “perfect” case with a strong justification to use virtual testimony.

When probed about what the “perfect case” would be, participants noted that there are situations that would highly favour the use of virtual testimony. For example, a child has moved out of province to another part of Canada or to another country altogether. The cost of travelling back to the location of the criminal hearing, as well as the added stress of travel, disruption to the family’s new routines, and seeing the accused could be viewed as barriers to the child testifying in the case. Another clear example would be if the child had a disability that the courthouse could not easily accommodate. The thinking is that there would be no objections to the use of a virtual testimony room at a CAC/CYAC in these – or other – “perfect case” scenarios and the case would demonstrate how useful and important this tool could be to ensuring a full and candid account of what happened to the victim.

At the time of the interviews, CACs/CYACs who offer or are considering virtual testimony did not have a formal protocol, standard or policy in place with respect to providing virtual testimony. A few CACs/CYACs noted that they do have instructions on how to use the virtual testimony equipment such as, how to troubleshoot the technology. Organizations communicated that formalized protocols would be helpful, and they would be exploring this in the future, for example, how to go about reserving the space and what needs to be in place before the testimony starts.

3.3 Description of the dedicated spaces

The dedicated spaces for virtual testimony are all similar in size and how they are decorated. The 20 CAC/CYACs described rooms as follows:

At one centre, the room included Indigenous items such as drums and in addition, there was access to a separate Elders/Indigenous space.

3.4 Safety and confidentiality

Most of the CACs/CYACs interviewed, whether or not they offer virtual testimony, spoke about the importance of ensuring the safety of the families using the services, including guaranteeing them confidentiality.

A few of the steps that CACs/CYACs have taken include:

3.5 Testifying from a separate room at the courthouse

While most of the courts near CACs/CYACs are equipped with rooms from which victims can testify via CCTV, this approach still requires the victim to go to the courthouse and possibly see or run into the accused or the accused’s supporters. As well, one CAC/CYAC mentioned that the CCTV room at the courthouse might already be booked so it is helpful to have another option.

Even where the capacity to offer virtual testimony at a CAC/CYAC exists, those interviewed noted that Crown prosecutors, as well as judges, prefer to have the young victims/witnesses in the courthouse, rather than testifying from a different location such as the CAC/CYAC. CACs/CYACs noted that Crown prosecutors prefer to have physical access to the victim to be able to talk to them before the trial starts or while on break. As a possible solution, one centre mentioned that they can set up a Teams meeting or a phone call in a different room from the virtual testimony room – allowing the Crown and victim to connect. One CAC/CYAC also shared that there was pushback from judges concerning their inability to observe the victim or witness’ body language (e.g., fidgeting) in a virtual testimony setting.

For Boost CYAC, in Toronto, there is a new court facility at 10 Armoury Street with state-of-the-art technology for virtual testimony. Ontario considers such facilities as designated spaces for virtual testimony. As such, there is little reason, or interest, on the part of Crown and judges to support testifying from a location outside of the courthouse except in cases where the victims/witnesses live far from Toronto, e.g. BC or Ireland.

One CAC/CYAC mentioned that the child-friendly courtrooms are not wheelchair accessible and so using the virtual testimony room at the CAC/CYAC would be a solution if this type of accessibility was needed. The CAC/CYAC had not experienced such a situation at the time of the interviews.

3.6 Alternate uses of the dedicated spaces

CACs/CYACs were mixed in how they use their dedicated spaces. All the organizations prioritize child and youthFootnote 15 clients, as well as children and youth who are not clients of the CAC/CYAC. Adults with developmental disabilitiesFootnote 16 and other vulnerable adults may be considered on a case-by-case basis.

Municipal police and RCMP do sometimes ask to use the space for reaching families who live farther away and if the space is available, CACs/CYACs may agree.

Most CACs/CYACs said they would be open to having expert witnesses testify from the CAC/CYAC, but that their priority is the child and youth clients or children and youth having to testify – regardless of whether or not they are a client.

3.7 Funding

Most dedicated spaces have been funded through different government grants and contributions programs.

A review of proposals to the Victims Fund at the Department of Justice Canada found that 12 CACs/CYACsFootnote 17 have received funding for their dedicated spaces. Most of this funding came from “end of year” funding where funds become available late in the fiscal year when recipients cannot spend them before the end of the fiscal. End of year funding generally focuses on projects that are ready to go and can be implemented quickly. One of the projects was funded through COVID-19 grant funding; this was funding temporarily available to victim-serving organizations to address additional needs that had emerged during the pandemic. Two of the projects were part of an already approved provincial or territorial contribution agreement.

The amount of funding varied from $5,000 for equipment only to $47,500 for a complete renovation of the dedicated space, as well as purchasing the required equipment. Some of the CACs/CYACs use their forensic interview rooms, which were already sound-proofed, meaning few additional changes had to be made and thus requiring fewer resources. As CACs/CYACs learned during the pandemic, good internet is essential, specifically a dedicated high-speed internet connection. Other equipment needed is a computer, screen, microphone, and camera. For the most part, virtual testimony occurred using Microsoft Teams, which is what many of the courts were using.

Some CACs/CYACs in BC were able to access the Civil Forfeiture Grant program through the Community Safety and Crime Prevention Branch. These are one-time grants from civil forfeiture funds to support community-driven projects that complement existing services and meet the unique needs of individual communities.

The Alberta government consolidated its Community Initiatives Program (CIP), project-based grant stream, which supports projects that enhance and enrich communities throughout Alberta by supporting non-profit organizations for technology, portable equipment and other specific items that must be purchased and implemented within 18 months.

Only one organization indicated that the renovations and technology for their virtual testimony rooms were funded by a private donor. Another CAC/CYAC noted that they had fundraised the funds needed to develop their virtual testimony space.

CAC/CYAC partners have also supported the dedicated spaces. One local police foundation provided the technological equipment for a BC CAC/CYAC, and a local child abuse prevention committee provided the funding for the technological equipment for one ON CAC/CYAC.

3.8 Experiences with virtual testimony to date

Findings from the 2022-2023 CAC/CYAC National Operational Survey noted that CACs/CYACs with dedicated spaces for virtual testimony have had limited experience thus far with actual cases. At the time of the interviews for this study, summer 2023, those interviewed reported that the number of cases where virtual testimony was used ranged from 1 to 8.

This low number of cases per CAC/CYAC is due to a number of factors:

While the equipment is tested prior to each testimony, lessons are being learned with each experience. Some examples while testifying:

CACs/CYACs gave examples of cases where the victim had moved from the location where the trial would be heard (e.g. within the province) or even from the province where the case was being heard (e.g. the child moved to BC, while the case was moving forward in Ontario). These cases proved how valuable the virtual testimony rooms were and became excellent “first cases” or as discussed earlier “perfect cases”.

Even with excellent first cases, having champions – a judge or Crown prosecutor – makes a significant difference. Advisory groups, whether to support the specific issue of virtual testimony, or to support the work of the CAC/CYAC more generally, are essential in order to work through challenges and understand the perspectives of the different stakeholders in the criminal justice system, as well as in the other systems of mental health and child protection.

Another CAC/CYAC noted that it had used its virtual testimony room for three trials with a total of four witnesses and had worked out most of the challenges in pre-testing. Regardless, staff indicated that they would continue to pre-test before every trial.

3.9 Data

CACs/CYACs agreed that there is a strong need for good data. All further agreed that it will be important to capture details of virtual testimony when numbers of cases increase – and to capture outcomes of those cases.

The CACs/CYACs seem to be at very different stages in terms of data collection, which has an impact on what they are currently able to collect on virtual testimony. The larger centres have been using their information management systems to meet their research needs (i.e., not just performance metrics) and are adding to the data currently collected to cover virtual testimony. The larger centres also have dedicated research staff and are undertaking research projects, often in collaboration with universities; at least one CAC/CYAC has started research on virtual testimony. Smaller centres often have fewer resources, including funding for a customized database and staffing to collect, input and manage the data, which can make it a challenge to collect additional data outside the purview of performance metrics. A couple of CACs/CYACs that offer virtual testimony report not collecting any specific data on virtual testimony cases, in part, due to the infrequent use of virtual testimony at their centre. Most CACs/CYACs that offer virtual testimony do collect some data, for example, the use of the virtual testimony room, the number of people who have accessed the space, and the length of the time that the room was used.

3.10 Relationships, education, and awareness

All CACs/CYACs interviewed noted the importance of raising awareness about the benefits of virtual testimony and continuing education for all criminal justice professionals. This would include law enforcement, Crown prosecutors, judges, court staff, and even the defence bar. CACs/CYACs gave many examples of continuing education for the different justice stakeholders – lunch n’ learn events, specific presentations at judicial education events, written materials with photos of the virtual testimony room and ongoing, frequent communication between the CAC/CYAC and key partners.

This relationship-building and awareness raising always forms part of the first steps in establishing a dedicated space for virtual testimony. It is also seen as work that needs to be on-going. For example, it is essential that Crown prosecutors and judges are supportive of the use of dedicated spaces in CACs/CYACs for virtual testimony before moving forward with plans; building this support can take time.

A number of CACs/CYACs noted that recommending virtual testimony to a Crown prosecutor is more difficult when there is not a dedicated team of Crown prosecutors working on child abuse cases and there is a new prosecutor with each case. As well, with RCMP detachments, members may rotate in for a period of time and then move on to another assignment, which means that raising awareness needs to be an on-going activity. And this turnover of staff is also similar for child protection services. The key partners need to understand the importance of this trauma-informed approach to testifying.

3.11 Challenges and solutions

The challenges and the solutions identified by the CACs/CYACs doing virtual testimony, as well as those considering it, were similar. These are included below. Considering that virtual testimony is still a new service provided by some CACs/CYACs, CACs/CYACs providing a dedicated space for virtual testimony are still learning how to overcome some of these challenges, especially at the time of the interviews. Where solutions were proposed by CACs/CYACs, they are provided alongside the challenges.

  1. Exhibits – Three CACs/CYACs spoke about the challenge of managing exhibits when they need to be put in front of the witness when at the CAC/CYAC. One solution identified was that documents can be delivered to the CAC/CYAC by the police or other secure method.
  2. Testimony of adult witnesses, especially a non-offending caregiver – This was a fairly common challenge wherein the judge, Crown prosecutor and defence counsel want adult witnesses to appear in person. So, a caregiver may have to be at the courthouse ready to testify, rather than at the CAC/CYAC waiting for their child to complete their testimony. This is emotionally – and sometimes logistically – difficult for both child/youth and adult witnesses.
  3. Technology– All those interviewed spoke about the challenges of technology. These challenges were sometimes due to poor internet, glitches in the technology, but also due to human error where court staff were not familiar with how to work the technology. Many CACs/CYACs told us that the best solution was to practice, practice and practice some more. While they could ensure that everything worked well at the CAC/CYAC, they had less or little control over the technology located in the courtroom. Here, good communication and relationships between court staff and the CACs/CYACs are essential as is having enough time in the day to troubleshoot or help out if needed.
  4. Space – In some of the smaller CACs/CYACs, those interviewed noted that they cannot handle more than one trial at a given time. Luckily for these CACs/CYACs, the number of cases going to trial is small, so this challenge was, at the time of the interviews, a hypothetical one.
  5. Turnover/frequent changes in personnel – There is a great deal of turnover in police and child protection services. These changes require ongoing time and resources to re-establish relationships and ensure there is a high level of awareness amongst all key stakeholders.
  6. Establishing a good case precedent – As noted earlier, a few CACs/CYACs noted delays with using the virtual testimony space, as the assigned Crown prosecutor was concerned that judges could refuse to grant permission for virtual testimony, thereby setting a case law precedent for their jurisdiction. As a result, the Crown prosecutor wanted to wait for a “perfect” case with a strong justification to use virtual testimony.
  7. Funding – Almost all the CACs mentioned funding as a challenge, especially those that do not have sustainable funding. The process of finding, applying and reporting on grants or contributions is a full-time job. Participants noted that establishing a national organization to advocate for permanent funding for CACs/CYACs would be an important step forward, but that there would always be the need for innovation through project funding at the local level. Several CACs/CYACs spoke about looking at non-traditional funding sources such as law foundations as well as private foundations and individual and corporate donors.

In some areas, there is still a push for the young victim/witness to go to court. This highlights the ongoing need for education for everyone (criminal justice stakeholders, clients and families, the broader public, and CACs/CYACs considering virtual testimony) and the importance of learning from the CACs/CYACs who are already doing virtual testimony.

Researchers asked representatives of the CACs/CYACs who had experience with developing dedicated spaces for virtual testimony about what advice would they give to centres that are in development. Some of this advice is summarized below:

As recognized by CACs/CYACs from the North, virtual testimony is particularly suited for Northern and remote communities. CACs/CYACs, as do many services, struggle to meet the needs of their clients and families who live far from a central location. As one CYAC noted:

Really, we’re the only child advocacy centre in the North, and the need here is identified as being, you know, the highest in Canada for the types of issues we’re talking about. So we’re really just starting to tap the surface of that issue and build trust in the communities. And without the centre and without the awesome sort of staff that are coming on board, I don’t know what a lot of these families would do. There would literally be nowhere for them to be able to come forward and get support and advocacy for additional help.

Another CAC described the challenges of only having one CAC for an entire province, and also of serving the territories as well. No immediate solution was offered for these dilemmas.