Testimonial Aids for Young, Disabled or Vulnerable Witnesses

From Criminal Law Notebook

Support Person Assisted Testimony

Support person — witnesses under 18 or who have a disability
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.

Witness not to be a support person
(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.
No communication while testifying
(5) The judge or justice may order that the support person and the witness not communicate with each other while the witness testifies.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 14.


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Underage or Disabled Witnesses
Section 486.1(1) requires that the judge to permit a support person. There is a presumption that a support person can be used unless it is rebutted by the respondent who can establish that it would "interfere with the proper administration of justice".[1]

Vulnerable Witnesses
Section 486.1(2) grants the judge discretion to permit a support person to be "present" and "close" to the witness while he testifies. The application must be made by either the Crown or the witness himself.

History
The 2015 amendments change the standard under s. 486.1(2) for a support person from being "necessary to obtain a full and candid account from the witness of the acts complained of" to simply requiring that the support person "would facilitate" full and candid account of evidence.[2]

  1. ↑ R v NHP, 2011 MBQB 31 (CanLII), per Bryk J at para 11 - relating to pre-2015 amendments
  2. ↑ see s. 486.1

Witness Screen and Close-Circuit Video Testimony

Section 650 requires that the accused be present for all evidence heard in a trial. An exception can be made under s. 486.2 for evidence to be given where the accused does not have direct contact with the witness due to separation by a screen or closed-circuit television.

On application by a prosecutor or witness, the judge may order that their testimony be heard either behind a screen or from a different room so that the witness cannot see the accused.

The governing section is 486.2 which states:

Testimony outside court room — witnesses under 18 or who have a disability
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
...
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
...
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
2005, c. 32, s. 15; 2014, c. 17, s. 12; 2015, c. 13, s. 15, c. 20, s. 38.


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Purpose of s. 486.2

The purpose of the section is to "[enable] the young complainant to be able to recount the evidence, fully and candidly, in a more appropriate setting, given the circumstances, while facilitating the elicitation of the truth."[1]

Concurrent Statutory and Inherent Jurisdiction

There is also a free-standing inherent jurisdiction in the superior court to permit the use of screens where there are concerns for the witnesses safety.[2]

Valid Reasons

Reasons such as shyness and nervousness have been accepted as valid.[3]

Impermissible Adverse Inferences

The court may not make any adverse inferences from whether or not an order for a screen or video link is made.[4]

Anytime that a screen or video is used in a jury trial, the judge must give instructions to the jury that no negative inference should be drawn from its use.[5]

Only Judge Decides Appropriate Aid

It is up to the judge to make the determination of what type of testimonial aid is the most appropriate for the witness. The Crown can only make a recommendation.[6]

Onus and Standard of Proof

Under the new version of 486.2, the Crown no longer needs to adduce any evidence before it is entitled to use an aid. There is an automatic presumption that it can be used once the Crown asks for it.[7] There is no onus on the respondent of an application to establish that the aid would interfere with the administration of justice.[8]

Reason to Refuse Aid

The Court "can only refuse to make an order if it is satisfied the order would interfere with the proper administration of justice".[9]

Form of the Accommodation
There is some debate in the case law on who is to determine the type of accommodation to be ordered. Some say that it is the applicant who chooses unless the chosen form would interfere with the proper administration of justice".[10] Other courts see the inherent jurisdiction of the courts as authority to chose the form of accommodation from the beginning.[11]

Requirements of the
Constitutionality

Section 486.2 does not violate s. 7.[12]

History

Section 486.2 was added to the Code on January 2, 2006, replacing a provision that was permissive in imposing a screen where necessary to "get a full and candid account" of the acts. This would often make a potentially fragile witness testify to establish grounds. The amendment was added to make it easier for child witnesses to be protected.[13]

The previous version of 486.2 read:

486...
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.


This section was amended in 2015[14] to reflect an intention to lower the standard that existed previous.[15]

  1. ↑ Levogiannis, supra at pp. 291-92
  2. ↑ R v Letourneau, 1994 CanLII 445 (BC CA) (1994), 87 CCC (3d) 481 (BCCA), per Cumming JA at p. 517 to 521
  3. ↑ R v Elmer, 2006 BCPC 81 (CanLII), per Godfrey J
  4. ↑ 486.2 ...
    (8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
  5. ↑ Letourneau, supra
    R v Levogiannis, 1990 CanLII 6873 (ON CA), (1990), 62 CCC (3d) 59 (ONCA), per Morden ACJ
  6. ↑ NHP, supra
  7. ↑ R v Wight, 2011 ONCJ 414 (CanLII), per Lalande J, at para 21
    R v Etzel, 2014 YKSC 50 (CanLII), per Gower J at para 15
  8. ↑ GAP, supra
    NHP, supra at para 16
  9. ↑ NHP, supra at para 17
    GAP, supra
  10. ↑ R v SBT, 2008 BCSC 711 (CanLII), per Smart J at paras 41-42
    R v Etzel, 2014 YKSC 50 (CanLII), per Gower J at para 11
  11. ↑ Etzel, ibid. at para 12
    R v CTL, 2009 MBQB 266 (CanLII), per Martin J
    R v Brown, 2010 SKQB 420 (CanLII), per Gunn J
    Wight, supra
  12. ↑ Levogiannis, supra
  13. ↑ R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J, at para 16
  14. ↑ See Canadian Victims Bill of Rights Act, S.C. 2015, c. 13, s. 15.
  15. ↑ R v NM, 2019 NSCA 4 (CanLII)(link pending), per Bourgeois JA (3:0)

Witnesses Over 18 and Non-Disabled

486.2
...
Other witnesses
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
...
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider

(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) the nature of any relationship between the witness and the accused;
(e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;
(f.1) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(h) any other factor that the judge or justice considers relevant.

Same procedure for determination
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
...


– CCC

The onus is upon the applicant to establish on a balance of probabilities that the witness will suffer from significant "emotional distress, anxiety and possibly an anxiety attack or anxiety attacks" and that a screen will be required for a full and candid account.[1]

  1. ↑ R v Buckingham, 2009 CanLII 31184 (ON SC), per Turnbull J at para 27
    cf. R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J at para 16

Procedure

The application for the testimonial aid can be made any time before or during the proceedings.[1]

The party applying for the screen may need to call evidence. If the witness for whom the testimonial aid is sought needs to testify, they may testify using the aid in the voir dire.[2] A failure to do so may result in the court rejecting the application for the use of a video link or screen.[3]

  1. ↑ see s. 486.2(2.1) "An application ... may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings."
  2. ↑ see s. 486.2(6)
  3. ↑ R v MACL, 2008 BCPC 272 (CanLII), per Woods J

Factors

The court must take into account:[1]

  • the age of the witness,
  • whether the witness has a mental or physical disability,
  • the nature of the offence,
  • the nature of any relationship between the witness and the accused, and
  • any other circumstance that the judge or justice considers relevant.

Evidence from a victim services officer on their observations and opinions of the witness can be relevant.[2]

Balanced against the interests of the protection of the witness, the concerns that are raised by the protection include: [3]

  • testimony outside of the courtroom will not "bring to bear the seriousness of the occasion in the same way as a courtroom"
  • The ability of counsel and the judge to assess the witness’s testimony may be compromised;
  • There is no reasonable opportunity for counsel to show documents to the witness since the witness would be in another room, and,
  • The possibility of technical malfunction, including ensuring that the witness does not hear certain exchanges occurring within the courtroom.

It is not sufficient that the witness be "embarrassed and emotionally upset about her upcoming testimony" and that the option to use a screen would be a "relief" to her.[4]

Central to the analysis of the factors is whether the accommodation "will enhance or undermine the truth-seeking function of our criminal trial process."[5]

  1. ↑ s. 486.2(3) which cites factors in 486.1(3)
    see also R v SBT, 2008 BCSC 711 (CanLII), per Smart J at para 40
  2. ↑ e.g. R v Kerr, 2011 ONSC 1231 (CanLII), per Matheson J
  3. ↑ R v GAP, 2007 MBQB 127 (CanLII), per Simonsen J at para 14
  4. ↑ R v Khreis, 2009 CanLII 74221 (ON SC), per Charbonneau J
  5. ↑ SBT, supra at para 40
    R v Etzel, 2014 YKSC 50 (CanLII), per Gower J at para 19

Children and Disabled

486.2...
Other witnesses
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
...
2005, c. 32, s. 15.


– CCC

There is a presumption of availability of protection. The court however must be satisfied that the "testimonial aid will not interfere with the proper administration of justice".[1]

  1. ↑ GAP, supra at para 16

Admission of a Video Statement of a Victims, Children or Disabled Witnesses

See also: Statutory Hearsay Exception for Victims, Children and Disabled

Prohibition on Cross-Examination of Persons Under 18

Interpreters for Disabled

Section 6 of the Canada Evidence Act addresses communication in testimony by persons with disabilities:

Evidence of person with physical disability
6.(1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.
...
Inquiry
(3) The court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under subsection (1) or (2) is necessary and reliable.


– CEA

This applies to situations where the witness is deaf or mute and cannot communicate orally.

Where an interpreter of sign language is used, there is no added requirement that a video record of the evidence be made.[1]

  1. ↑ R v Titchener, 2013 BCCA 64 (CanLII), per Ryan JA

Witness Security Order

Security of witnesses
486.7 (1) In any proceedings against an accused, the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, make any order, other than one that may be made under any of sections 486 to 486.5, if the judge or justice is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of justice.

Application

(2) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(3) In determining whether to make the order, the judge or justice shall consider

(a) the age of the witness;
(b) the witness’s mental or physical disabilities, if any;
(c) the right to a fair and public hearing;
(d) the nature of the offence;
(e) whether the witness needs the order to protect them from intimidation or retaliation;
(f) whether the order is needed to protect the security of anyone known to the witness;
(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(h) the importance of the witness’s testimony to the case;
(i) whether effective alternatives to the making of the proposed order are available in the circumstances;
(j) the salutary and deleterious effects of the proposed order; and
(k) any other factor that the judge or justice considers relevant.

No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2015, c. 20, s. 22.


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See Also

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