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 (cont'd)

3. Results of the Survey of Judges (cont'd)

3.3 Judges' Experiences with the Provisions Contained in Bill C-2 (cont'd)

3.3.3 Screens and Closed-circuit Television

When the 30 judges who were familiar with the provisions contained in Bill C-2 were asked if they had used the screens or closed-circuit television (CCTV) provision (s.486.2) of Bill C-2 since January 2006, 70% (n=21) stated that they have. As indicated in Figure 3.2, a substantial majority of provincial court judges (85.7%) have used the screens or CCTV provision; the proportion of superior court judges using this provision was considerably lower (33.3%).

As shown in Table 3.7, when asked how often applications for screens or CCTV are made in cases involving child witnesses under the age of 18, almost one-half of respondents (42.9%) said occasionally, while equal proportions (14.3%) said sometimes, often, and almost always. When asked how often these applications are not successful, the majority said never (85%), followed by occasionally (10%). Reasons given for denying an application included: complainant was not vulnerable; there was not enough evidence to support the application; the screen obstructed counsel's view of the witness; and credibility was very much an issue.

In cases with vulnerable adult witnesses, two-third of judges (66.7%) stated that applications for screens or CCTV are never made, while 16.7% said that they are occasionally made and 11.1% said that they are always made. The most common situations of vulnerability leading to these applications were mental handicap/deficiency, the nature of the charge itself, sexual assault victim, and age. When asked how often these applications are not successful, 50% of respondents said never, while 33.3% said occasionally. The most common reasons for granting the application for use of a screen or CCTV with a vulnerable adult were: never opposed/agreement; satisfied it was essential so the witness could testify; obvious fear and stress; nature of the charge; and to ensure a full and candid account.

Table 3.7: Characteristics of Judges' criminal Cases Involving the Provisions for Screens and Closed Circuit Television
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
Cases with child witnesses under the age of 18:
How often application for screen or closed-circuit television is made
1 4.8 9 42.9 3 14.3 3 14.3 3 14.3 2 9.5 21 100.0
How often application is not successful 17 85.0 2 10.0 1 5.0 0 0.0 0 0.0 0 0.0 20 100.0
Cases with vulnerable adult witnesses:
How often application for screen or closed-circuit television is made
12 66.7 3 16.7 0 0.0 1 5.6 0 0.0 2 11.1 18 100.0
How often application is not successful 3 50.0 2 33.3 1 16.7 0 0.0 0 0.0 0 0.0 6 100.0

Table 3.8 presents the frequency that successful applications involved screens or CCTV. Over one-third of respondents (36.8%) stated that successful applications in cases with child witnesses under the age of 18 always involved screens, while 15.8% each indicated that successful applications never, occasionally, or almost always involved screens. CCTV was used considerably less often in successful applications in cases involving child witnesses under the age of 18, with 37.5% stating that it was used occasionally and 31.3% stating that it was never used.

In successful applications in cases involving vulnerable adult witnesses, 50% of judges said that screens were always used, while 33.3% said that they were never used. Similarly, 40% of judges stated that CCTV was always used, while 40% stated that it was never used in these cases.

Table 3.8: Frequency of Provisions Granted in Successful Applications for Screens and Closed-Circuit Television
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
Cases with child witnesses under the age of 18: Screens 3 15.8 3 15.8 1 5.3 2 10.5 3 15.8 7 36.8 19 100.0
Closed-circuit television 5 31.3 6 37.5 1 6.3 1 6.3 1 6.3 2 12.5 16 100.0
Cases with vulnerable adult witnesses: Screens 2 33.3 0 0.0 1 16.7 0 0.0 0 0.0 3 50.0 6 100.0
Closed-circuit television 2 40.0 0 0.0 1 20.0 0 0.0 0 0.0 2 40.0 5 100.0

When asked if they had encountered problems in arranging for appropriate equipment for s. 486.2 applications, one-half of the respondents said yes and one-half said no. Specific problems mentioned by respondents included:

  • notice not provided by Crown/police that screen should be available;
  • quality of screens;
  • not enough screens available;
  • poor lighting and sound in room;
  • some courthouses not set up for CCTV;
  • equipment needs to be booked ahead and the trial judge may not be sitting in the jurisdiction before trial;
  • screen is cumbersome;
  • screen requires time to warm up resulting in delays if no advance notice is given by counsel; and
  • creates logistical problems in the courtroom.

Comments provided by respondents included the following:

In BC, equipment is available for a region. Applications must be made at least two weeks before trial so equipment can be booked, and delivered to the courthouse in time for the trial. There is a theoretical risk the equipment could be required in two courts on the same day, but I have not encountered an actual problem with this. As long as the application is made early, which seems a reasonable expectation, there should be no problem arranging trial dates when the equipment is available.

We have a screen built for the purpose, but it is not that effective because it is designed to let the accused see the witness. It could be useful to exchange information regarding current technology.

Table 3.6 presents the most common point in the proceedings that applications for screens or CCTV are made. According to 55% of respondents, the applications are most likely to be made during the pre-trial hearing conference, followed by at the start of the trial/preliminary inquiry (25%) and during the trial/preliminary inquiry (20%).

When asked if they have had any difficulties with the implementation of s. 486.2 or if they had any suggestions for further reform, one judge noted that cameras should be able to close in on the witness. Other specific comments included:

The provision re: a witness testifying outside the courtroom, i.e., by closed circuit from a nearby room, can be problematic. The Code is not clear as to who can/should be in the same room as the testifying witness. Sometimes Crown join the witness in that room to pose the questions. Depending on courtroom facilities, the judge, the accused and the accused's lawyer may end up together in the courtroom and all other participants (Crown, clerk, court reporter, etc.) in a separate room where the witness is located, in order to accommodate the requirement that the accused be able to maintain contact with his/her counsel. This may place accused's counsel at a disadvantage with the witness. At the least, the Code should require that defence counsel be in the same room as the prosecutor when such a witness is testifying, to minimize the perception of isolating, and thereby stigmatizing, the accused and/or his counsel. Perhaps the rule should be that ONLY the witness be in the separate room, i.e., that neither counsel join the witness in that room.

Why not have the accused in another room and have the witness in the courtroom? I will bet that none of the lawmakers who passed this legislation ever tried to assess credibility or even control a witness over a video link. Some judges have terminated the out of court testimony and required the witness to be in the courtroom when their conduct was unacceptable.

3.3.4 Counsel Appointed for Self-represented Accused

Of the 30 judges who indicated that they are familiar with the provisions of Bill C-2, 23.3% (n=7) stated that they have used the counsel for self-represented provision (s. 486.3) since January 2006. As shown in Figure 3.2, one-third (33.3%) of provincial court judges have used this provision, while no superior court judges reported using it.

Table 3.9 presents the characteristics of judges' cases involving the use of this provision. With respect to the frequency with which these applications are made in cases with witnesses under the age of 18, 57.1% of respondents stated that this occurs occasionally, 28.6% of respondents said that this occurs almost always, and only one respondent said that this never occurs. When asked how often these applications are not successful, all judges responded never.

Table 3.9: Characteristics of Judges' Criminal Cases Involving the Appointment of Counsel for Self-Represented accused
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
Cases with child witnesses under the age of 18:
How often application for video-recorded evidence is made
1 14.3 4 57.1 0 0.0 0 0.0 2 28.6 0 0.0 7 100.0
How often application is not successful 6 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 6 100.0
Cases with vulnerable adult witnesses:
How often application for appointed counsel is made
4 57.1 3 42.9 0 0.0 0 0.0 0 0.0 0 0.0 7 100.0
How often application is not successful 3 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 3 100.0

With respect to cases with vulnerable adult witnesses, 57.1% of judges stated that applications under s. 486.3 are never made and 42.9% said that they are occasionally made. When asked how often these applications are not successful, all judges responded never. When asked their reasons for granting the application in these vulnerable adult cases, the following comments were provided:

Attitude of the accused was vengeful/angry.

To ensure a full and candid account and ensure no intimidation of the witness.

(1) Crown convinced court that witness was vulnerable and shouldn't, given the nature of the charge and the specifics of the allegation, be subjected to cross by the alleged perpetrator; (2) the accused was anxious to agree with the Crown's request because it gave him the opportunity to access legal advice that he could not otherwise gain because not eligible for Legal Aid program but not able to afford private counsel; (3) it was obvious to the court, based on exchanges with the accused in open court, that while his demeanour toward the court was appropriate, it was very questionable whether he was adequately equipped with skills to enable him to conduct an effective examination.

Table 3.6 presents the most common point in the proceedings that applications for counsel for self-represented accused are made. According to 42.9% of respondents, these applications are most likely to be made during the pre-trial hearing conference. Equal proportions of judges stated that these applications are likely to be made at the start of the trial/preliminary inquiry (28.6%) and during the trial/preliminary inquiry (28.6%).

When asked if they had experienced any problems with the implementation of s. 486.3 or if they had any suggestions for further reforms, the following comments were offered:

There is too much delay in getting counsel appointed.

In BC there is no provision for paying counsel appointed by the court.

There should be a pre-hearing conference in all cases where the victim is under 18.

The court should have full discretion/the court should be able to question for clarification.

3.3.5 Video-recorded Evidence

Of the 30 respondents who indicated that they were aware of the provisions contained in Bill C- 2, 50% (n=15) stated that they have used the video-recorded evidence provisions (ss. 715.1 and 715.2) since January 2006. As presented in Figure 3.2, almost one-half (47.6%) of provincial court judges have used these provisions, while over one-half (55.6%) of superior court judges have used it.

Table 3.10 presents the characteristics of judges’ cases involving the use of this provision. With regard to cases involving a child witness under the age of 18, 12 respondents (80%) stated that applications for the use of video-recorded evidence are made occasionally, while one judge each reported that this occurs sometimes, almost always, or always. When asked how often these applications are not successful, the substantial majority of respondents (85.7%) said never, while 14.3% said sometimes. Reasons given for denying these applications were that the video was problematic and that they were not necessary. In cases with vulnerable adult witnesses, no judge reported that an application for the use of video-taped evidence was made.

Table 3.10: Characteristics of Judges' Criminal Cases Involving the Provision for Video-recorded Evidence
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
Cases with child witnesses under the age of 18:
How often application for video-recorded evidence is made
0 0.0 12 80.0 1 6.7 0 0.0 1 6.7 1 6.7 15 100.0
How often application is not successful 12 85.7 0 0.0 2 14.3 0 0.0 0 0.0 0 0.0 14 100.0
Cases with vulnerable adult witnesses:
How often application for video-recorded evidence is made
11 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 11 100.0
How often application is not successful - - - - - - - - - - - - - -

When asked if they have had any difficulties with the implementation of s. 715.1, only one judge commented, stating that:

The witness was less persuasive at the trial months after the event, and after the giving of the statement. I suspected the prosecutor wanted to embellish the viva voce evidence of the witness by use of the videotape, but I could not be certain about this until I saw it. It took time to set it up and play the taped statement. In the end, it was not helpful. It is difficult or impossible to say that playing the tape would interfere with the proper administration of justice when deciding an application in these circumstances.

3.4 Questioning of Children

The survey included a section that asked judges about their experiences with the questioning of child witnesses, with a comparison to adult witnesses. Judges were asked how often, if at all, they have observed child witnesses (under 14 years of age) being asked questions by different professionals where they appear incapable of answering due to the complexity of the questions (or developmentally inappropriate questions) as revealed in court or on a video-recorded interview. The results are presented in Table 3.11. 

Table 3.11: Judges' Perceptions of How Often Child Witnesses are Asked Questions they are Incapable of Answering by Various Professionals
  Never Occasionally Sometimes Often Almost /
Always
Always Total
n % n % n % n % n % n % n %
By Defence Counsel 4 13.3 8 26.7 9 30.0 9 30.0 0 0.0 0 0.0 30 100.0
By Crown 3 10.0 14 46.7 9 30.0 3 10.0 1 3.3 0 0.0 30 100.0
By Police (on video) 4 15.4 9 34.6 7 26.9 5 19.2 1 3.8 0 0.0 26 100.0
By Child Protection Worker (on video) 4 15.4 15 57.7 4 15.4 1 3.8 2 7.7 0 0.0 26 100.0
By Judge 5 20.8 13 54.2 4 16.7 2 8.3 0 0.0 0 0.0 24 100.0

The professionals that judges reported most often asked complex or developmentally inappropriate questions were defence counsel.  Almost one-third of the survey respondents (30%) said defence counsel often or almost always ask complex questions, compared to 23% by the police, 13.3% by the Crown, 11.5% by the child protection workers, and 8.3% by the judges. Similarly, 20.8% of the judges reported that judges never ask overly complex questions, compared to 13.3% by defence counsel. The judges reported that the majority of all professionals occasionally or sometimes ask questions where children appear incapable of answering due to the complexity of the questions.

3.5 General Comments

The last section of the survey gave the judges the opportunity to comment on any of the Bill C-2 provisions. Judges were first asked if they think any of the new provisions may render the trial unfair to the accused. As shown in Figure 3.4, overall, over three-quarters of the survey respondents (77.4%; n=24) indicated that they did not consider the provisions unfair to the accused.

When examined by level of court, provincial court judges (28.6%) were more likely to report that the new provisions may render the trial unfair to the accused than were superior court judges (10%). When asked to explain why they thought the provisions might render the trial unfair to the accused, the majority of comments concerned the support person provision.  Survey respondents made the following comments:

The use of a “support person”causes me some concern that it opens the door to a witness being coached — intentionally or otherwise. This is particularly the case with less confident witnesses or those who are vulnerable to the influence of others.

The role of the support person is often inherently biased and it is difficult to separate what is support and what might be coaching or evidence according to the expectations of another who is present.

I feel the provisions for a support person have significant potential for unfairness, particularly if the support person is allowed to communicate with the witness during testimony, often while they are both in a separate room altogether. Who screens the appropriateness of the support person? The support person may be Mom in a custody battle where there are allegations of sexual impropriety by the father against the child witness, yet the judge may never know of the dynamic. The judge can disallow the support person only if the order for the support person WOULD interfere with the proper administration of justice — a very high standard with so little info on the background of the support person being compellable or screened by a truly independent observer. If the support person can NOT communicate with the witness, one wonders why they need to be next to the witness — at least a child witness — at all, as opposed to being in the body of the courtroom.

I also do not like the perception that can arise re: testifying in a separate room altogether, which can effectively isolate the accused and his counsel alone with the judge while the Crown and witness share the room from whence the witness testifies. The rule should arguably stipulate that both counsel be in the same room with the accused.

Video statements are powerful, but not under oath, not tested at time, so can be some unfairness to accused. Yet fairness of accused needs to be balanced with other elements in the justice system. On balance, while some unfairness, not so much as to render trial unfair so as to provide a remedy for that.

In judge alone trials, I think there is little if any difference.  Juries can, I believe, be instructed to eliminate any problems.

Figure 3.4: Judges' Perceptions of Whether the New Provisions May Render the Trial Unfair to the Accused

Figure 3.4	Judges' Perceptions of Whether the New Provisions may Render the Trial Unfair to the Accused
[Description]

The last question in the survey asked judges if they had any other comments about the bill c-2 provisions or other matters related to proceedings involving children or other vulnerable witnesses. respondents made the following comments:

Historically, things have improved!

I see a potential problem for counsel required to cross examine one witness in a trial or prelim when they do not have conduct of the whole trial or prelim. If I were counsel obliged to do it, I think I would want written instructions from the accused about the areas for cross examination and the purpose of it, and/or a list of questions they wanted asked.

The legislation is redundant because so much is dependent upon the discretion of the court under the circumstances of the trial. The legislation seems to say all groups have the capacity to testify, but once on the record every word becomes evidence and the court's discretion is called upon to assign weight to that testimony — wouldn't it be better to have the court decide whether or not a witness can and should be heard?

3.6 Summary of Survey Results

  • Four jurisdictions participated in this project: Nova Scotia (both levels of court); Alberta (both levels of court); British Columbia (Provincial Court); and the Yukon (Territorial Court). The largest proportion of survey respondents were from Alberta.
  • Three-fifths of the 34 participants sat in provincial court, and two-fifths sat in superior court.
  • All of the judges had experience hearing criminal cases.
  • The vast majority of judges were familiar with the amendments contained in Bill C-2, and three-quarters had used them.
  • Almost all the judges agreed that the amendments in Bill C-2 are useful.
  • Over three-quarters of the judges did not think the amended provisions contained in Bill C-2 might render the trial unfair to the accused, i.e., they think that the provisions are fair.
  • Almost one-half of the judges have held competency inquiries since January 2006.
  • As child's age increases, so does the likelihood that their competence will be accepted without an inquiry; about one-fifth of judges reported that even with the youngest age group (3-5 years) there are no competency inquiries, rising to almost three-quarters with the oldest age group (10-13 years).
  • While some children in all age groups were found incompetent to testify, even in the youngest age group (3-5 years), almost one-half the judges reported that they had never found a child incompetent under the new provision.
  • Judges reported that the average length of time spent on a competency inquiry is 12 minutes.
  • Two-thirds of the respondents had used the support person provision. Judges reported that the provision is used occasionally in cases involving child witnesses and, when applied for, the application is almost always successful.
  • Judges reported that the most common support persons for child witnesses are family members and victim services workers.
  • The support person provision is used less frequently for vulnerable adult witnesses, and the applications for adults are more likely to be unsuccessful.
  • Survey respondents reported that the most common support persons for vulnerable adult witnesses are victim services workers.
  • Applications for support persons are most likely to be made at the start of the trial/preliminary inquiry.
  • Almost three-quarters of judges had used the screens and closed-circuit television provision. They reported that the provision is used occasionally in cases involving child witnesses and, when applied for, were almost always successful.
  • Two-thirds of the survey respondents said that the provision is never used in cases involving vulnerable adult witnesses, and one-third reported that these applications are occasionally unsuccessful.
  • Judges reported that when this provision is used, screens are applied for more often than closed-circuit television.
  • Applications for screens or closed-circuit television are most likely to be made during the pre-trial hearing conference.
  • Comments from judges indicated that there are difficulties in arranging for use of screens, and especially closed-circuit television.
  • Almost one-quarter of the survey respondents said they have used the counsel for self-represented accused provision, and this provision is used occasionally for cases involved child witnesses and vulnerable adults.
  • When applied for, judges reported that these applications are always successful.
  • Applications for counsel for self-represented accused are made most often during the pre-trial hearing conference.
  • One-half of the survey respondents reported using the video-recorded evidence provision of Bill C-2.  Judges said this provision is occasionally used in cases involving child witnesses, but is never used in cases involving vulnerable adult witnesses. Applications are almost always successful.
  • Applications for the video-recorded evidence provision are made most often during the pre-trial hearing conference.
  • When asked about the credibility of witnesses, judges reported that, in general, the younger the witness, the more likely they are to make an unintentional false statement. Conversely, the older the witness, the more likely they are to make an intentionally false statement.
  • Survey respondents reported that defence counsel were more likely than other professionals to ask children under 14 overly complex or developmentally inappropriate questions.
Date modified: