Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary

3. Results of the Survey of Judges

3. Results of the Survey of Judges

This chapter presents the results of the survey on judges' perceptions of and experiences with Bill C-2 provisions. It addresses the following research questions outlined in Section 1.2:

  • Are judges familiar with the amendments contained in Bill C-2? Have they had the opportunity to use them? Do they think they're useful?
  • How often are applications being made for testimonial supports? Are the applications generally successful? If not, why not?
  • Have the judges had any difficulties with the implementation of any of the testimonial support provisions contained in Bill C-2?
  • How often are applications being made for appointment of counsel to self-represented accused for purposes of cross-examination? Are the applications generally successful? If not, why not? 
  • Have the judges held competency inquiries?  How often is the child witnesses' competence accepted without inquiry?  How often is the child found incompetent to testify?
  • Do the judges have any concerns regarding any of the provisions contained in Bill C-2?

3.1 Demographics of Survey Respondents

As described in the methodology section, four jurisdictions agreed to participate in this project:Nova Scotia (both levels of court),Alberta (both levels of court),British Columbia (Provincial Court),and the Yukon (Territorial Court). The breakdown of completed surveys returned by jurisdiction and level of court is presented in Table 3.1. The largest proportion of judges were from Alberta (50% of the sample), followed by British Columbia (26.5%), Nova Scotia (17.6%), and the Yukon (5.9%). Three-fifths of the judges (61.8%) sat in provincial court, while almost two-fifths (38.2%) sat in superior court.

Table 3.1: Number of Completed Surveys Returned by Jurisdiction and Level of Court
Jurisdiction Provincial Court Superior Court Total
n % n % n %
Alberta 8 47.1 9 52.9 17 50.0
Nova Scotia 2 33.3 4 66.7 6 17.6
Bitish Columbia 9 100.0 -- -- 9 26.5
Yukon 2 100.0 -- -- 2 5.9
Total 21 61.8 13 38.2 34 100.0

In order to assess their experience, survey respondents were asked how often they hear criminal cases, as well as some characteristics about their criminal cases (Table 3.2). A six-point Likert scale was provided, using the following categories: never (0%); occasionally (1-25%); sometimes (26-50%); often (51-75%); almost always (76-99%); and always (100%). All of the judges who completed the survey had heard criminal cases, with the largest proportions reporting the frequency of sometimes (29.4% of the sample) and almost always (26.5%). One-fifth of the sample reported hearing criminal cases often (20.6%), and one-fifth said they hear criminal cases occasionally (20.6%).

Table 3.2: Characteristics of Judges' Criminal Cases

  Never Occasionally Sometimes Often Almost / Always Always Total
n % n % n % n % n % n % n %
Frequency of hearing criminal cases 0 0.0 7 20.6 10 29.4 7 20.6 9 26.5 1 2.9 34 100.0

Of criminal cases going to trial/ preliminary inquiry, frequency that involved: Never Occasionally Sometimes Often Almost / Always Always Total
n % n % n % n % n % n % n %
Child witness 0 0.0 29 85.3 3 8.8 0 0.0 2 5.9 0 0.0 34 100.0
Domestic violence 2 5.9 21 61.8 5 14.7 6 17.6 0 0.0 0 0.0 34 100.0
Sexual assault with an adult complainant 1 2.9 23 67.6 9 26.5 1 2.9 0 0.0 0 0.0 34 100.0

In terms of the characteristics of their criminal cases going to trial/preliminary inquiry, the majority of survey respondents (85.3%) reported that their cases occasionally involved child witnesses, while 8.8% said they sometimes involve child witnesses, and 5.9% said they almost always involve child witnesses. When asked how often their cases involve domestic violence, the majority of respondents said occasionally (61.8%), followed by often (17.6%) and sometimes (14.7%). Two respondents said their criminal cases never involve domestic violence. Lastly, when asked how often their cases involve sexual assault with an adult complainant, over two-thirds (67.6%) said occasionally, and over one-quarter (26.5%) said sometimes. One respondent reported never having a criminal case involving sexual assault with an adult complainant.

3.2    Judges' Use and Perceptions of Bill C-2

The second section of the survey asked judges if they were familiar with the amendments contained in Bill C-2. The vast majority of respondents (88.2%; n=30) said they were. When looking at responses by level of court, all of the provincial court judges reported being familiar with the Bill C-2 amendments, compared to 69.2% of the superior court judges (Figure 3.1). Similarly, over three-quarters of the sample (76.5%; n=26) said they have had the opportunity to use amendments contained in Bill C-2. When examining this question by level of court, all of the provincial court judges have used the amendments, compared to 56.6% of the superior court judges who were familiar with the amendments.

Figure 3.1:  Proportion of Judges Reporting Familiarity with and Use of the Amendments in Bill C-2, by Level of Court

Figure 3.1 Proportion of Judges Reporting Familiarity with and Use of the Amendments in Bill C-2, by Level of Court
[Description]

Judges who reported being familiar with the amendments contained in Bill C-2 were asked the extent to which they agree or disagree that certain provisions amended in Bill C-2 are useful. The results are presented in Table 3.3. Overall, the vast majority of judges either agreed or strongly agreed that the provisions in Bill C-2 are useful. Over 96% of respondents agreed or strongly agreed that appointed counsel for self-represented accused and changes to the provisions governing competency inquiries are useful, while only 3-4% disagreed. Likewise, over 86% of respondents agreed or strongly agreed that the provisions involving support persons, screens and closed-circuit television, and video-recorded evidence are useful. Approximately 13% disagreed or strongly disagreed that these amended provisions are useful.

Table 3.3: Extent to Which the Judges Agree That the Provisions Amended in Bill C-2 are Useful
  Strongly Agree Agree Disagree Strongly
Disagree
Total
n % n % n % n % n %
Competency inquiries 13 46.4 14 50.0 1 3.6 0 0.0 28 100.0
Support persons 10 33.3 16 53.3 3 10.0 1 3.3 30 100.0
Screens and closed-circuit television 11 37.9 14 48.3 3 10.3 1 3.4 29 100.0
Appointed counsel for self-represented accused 17 58.6 11 37.9 1 3.4 0 0.0 29 100.0
Video-recorded evidence 14 48.3 12 41.4 3 10.3 0 0.0 29 100.0

3.3 Judges' Experiences with the Provisions Contained in Bill C-2

3.3.1 Competency Inquiries

When the 30 judges who stated that they were familiar with the provisions contained in Bill C-2 were asked if they had held competency inquiries (s. 16.1) since January 2006, 46.7% (n=14) stated that they had. Figure 3.2 presents the proportion of judges who reported using each of the provisions amended by Bill C-2 by level of court. As shown in the figure, over one-half (52.4%) of provincial court judges have held competency inquiries, while one-third (33.3) of superior court judges have held inquiries.

Figure 3.2:  Proportion of Judges Using Various Provisions Amended by Bill C-2, by Level of Court

Figure 3.2 Proportion of judges using various provisions amended by Bill C-2, by Level of Court.
[Description]

Table 3.4 presents the characteristics of judges' cases involving competency inquiries by age of the child witness. As might be expected, as the child's age increases, so does the likelihood that their competence will be accepted without an inquiry. For children 3-5 years of age, 81.8% of respondents indicated that they never accept their competence without an inquiry; this figure decreased to 50% for child witnesses aged 6-9 and to 27.3% for children aged 10-13.

Table 3.4: Characteristics of Judges' Competency Inquiries by Age of Child Witness

Frequency that witnesses's competence is accepted without enquiry:
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
3-5 years 9 81.8 0 0.0 1 9.1 0 0.0 0 0.0 1 9.1 11 100.0
6-9 years 5 50.0 2 20.0 1 10.0 2 20.0 0 0.0 0 0.0 10 100.0
10-13 years 3 27.3 5 45.5 1 9.1 1 9.1 1 9.1 0 0.0 11 100.0

Frequency that en enquiry is held:
  Never Occasionally Sometimes Often Almost /
Always
Always Total
% n % n % n % n % n % n n %
3-5 years 1 10.0 1 10.0 0 0.0 1 10.0 0 0.0 7 70.0 10 100.0
6-9 years 0 0.0 1 10.0 1 10.0 1 10.0 3 30.0 4 40.0 10 100.0
10-13 years 0 0.0 2 20.0 1 10.0 1 10.0 3 30.0 3 30.0 10 100.0

Frequency that child is found incompetent to testify:
  Never Occasionally Sometimes Often Almost /
Always
Always Total
% n % n % n % n % n % n n %
3-5 years 5 45.5 1 9.1 2 18.2 2 18.2 1 9.1 0 0.0 11 100.0
6-9 years 3 33.3 3 33.3 0 0.0 2 22.2 1 11.1 0 0.0 9 100.0
10-13 years 5 45.5 3 27.3 0 0.0 1 9.1 2 18.2 0 0.0 11 100.0

When asked how often a competency inquiry is held for children of various age groups, respondents indicated that inquiries are most likely to be held with younger children: 70% of judges stated that they always hold an inquiry with children aged 3-5 years; this percentage decreased to 40% for children aged 6-9 and 30% for children aged 10-13. When asked the frequency with which children of various ages are found incompetent to testify, the pattern of findings was somewhat mixed. For children in the 3-5 and 10-13 age groups, approximately one-half of respondents (45.5%) indicated that they never find these children incompetent; the corresponding figure for children in the 6-9 age group was 33.3%.

When asked the average length of time spent on competency inquiries for child witnesses of various age groups, the results were quite similar and ranged from 11.7 minutes for cases involving child witnesses aged 10-13, to 12 minutes for children aged 6-9 and 12.5 minutes for children aged 3-5.

Respondents were asked if they have had any difficulties with the implementation of s. 16.1 or if they had any suggestions for further reform. One judge offered the following comment:

Disclosure of videotaped statements by a child witness before the trial usually satisfies opposing counsel as to competence.

3.3.2    Support Persons

Participants were asked a series of questions regarding their experiences with and opinions of the support person provision (s. 486.1) of Bill C-2. Two-thirds of respondents (66.7%; n=20) who indicated that they were familiar with the amendments contained in Bill C-2 reported that they have used the support person provision since January 2006. As shown in Figure 3.2, almost three-quarters (71.4%) of provincial court judges indicated that they have used the support person provision, while almost two-thirds (62.5%) of superior court judges have used this provision.

Table 3.5 presents the characteristics of judges' cases in which the support person provision has been used. When asked how often an application for a support person is made in cases involving a child witness under the age of 18, most respondents said occasionally (60%), followed by often (15%) and almost always (15%). Judges indicated that applications for support persons in cases with child witnesses are likely to be successful: 80% said that they are never unsuccessful and 15% said that they are occasionally unsuccessful. When asked the most common reasons for denying an application for a support person, two judges stated that the support person might be a witness but that another support person was permitted, two judges said that the proposed support person was inappropriate and one stated that a support person was not shown to be necessary. When asked who the most common support persons were, 21 comments were provided by the judges, and their responses are presented in Figure 3.3. The most frequently mentioned support persons were family members (n=7), victim services workers (n=7), professionals/social workers (n=6), and adult friend (n=1).

Table 3.5: Characteristics of Judges' Criminal Cases Involving the Support Person Provision

Cases with child witnesses under the age of 18:
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
How often application for supprt person is made 0 0.0 12 60.0 1 5.0 3 15.0 3 15.0 1 5.0 20 100.0
How often application is not successful 16 80.0 3 15.0 0 0.0 0 0.0 1 5.0 0 0.0 20 100.0

Cases with vulnerable adult witnesses:
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
How often application for supprt person is made 11 64.7 5 29.4 0 0.0 0 0.0 0 0.0 1 5.9 17 100.0
How often application is not successful 3 50.0 0 0.0 1 16.7 0 0.0 1 16.7 1 16.7 6 100.0

Figure 3.3:  Most Common Support Person Used in Cases with Child Witness under 18 and Vulnerable Adult Witness

Figure 3.3 Most Common Support Person Used in Cases with Child Witness Under 18 and Vulnerable Adult Witness
[Description]

In cases with vulnerable adult witnesses, applications for support persons are considerably less common: 11 respondents (64.7%) indicated that applications are never made in these cases and 5 respondents (29.4%) stated that they are occasionally made. Of the six respondents who stated that applications for support persons have been made in cases involving vulnerable adult witnesses, three stated that they are never unsuccessful, while one person each stated that they are sometimes, almost always, or always unsuccessful. Two judges indicated that the most common reason for denying an application for a support person in cases with a vulnerable adult witness was that there were concerns that the support person had an interest in the outcome of the case. When asked who the most common support persons were, five comments were provided, and are presented in Figure 3.3. The most common support persons were victim services workers (n=2).

As indicated in Table 3.6, applications for support persons are most likely to be made at the start of the trial/preliminary inquiry (50%), followed by at the pre-trial hearing conference (33.3%), and during the trial/preliminary inquiry (16.7%). When asked if they have had any difficulties with the implementation of the support persons provision or if they had any suggestions for further reform, judges provided the following comments:

… Difficult to understand why support is required sometimes and when it seems inappropriate it has not assisted the Crown presenting the "vulnerable" witness..

There should be some minimum standard of evidence required to make the application such as affidavit or viva voce evidence.

[There should be an] interview or cross of the support person to reduce or remove influence or bias.

… Usually the provisions come under a judge's discretion in any case. In my view, the section is redundant and serves no useful purpose.

No difficulty. Our victim's services program in Nova Scotia explains the role of support person to both the witness and support person, so I have not encountered a situation where the witness was being prompted by the support person.

Table 3.6: Point in the Proceeding When Applications for Various Provisions in Bill-C-2 are Most Commonly Made
  Pre-trial Hearing
Conference
Start of Trial /
Preliminary Inquiry
During Trial /
Preliminary Inquiry
Total
n % n % n % n %
Support persons 6 33.3 9 50.0 3 16.7 18 100.0
Screens and closed-circuit television 11 55.0 5 25.0 4 20.0 20 100.0
Appointed counsel for self-represented accused 3 42.9 2 28.6 2 28.6 7 100.0
Video-recorded evidence 3 42.9 2 28.6 2 28.6 7 100.0
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