What special protections are available to vulnerable
victims and witnesses?
The Criminal Code includes provisions referred to as testimonial
aids and other measures which assist vulnerable victims and
witnesses in providing
their testimony in criminal court. These provisions recognize that
some victims
and witnesses may be more vulnerable because of their youth or other factors
such as the nature of the crime. Vulnerable victims and witnesses may require
support and assistance when providing testimony.
Testimonial aids include:
- Allowing a witness to testify outside the courtroom by
closed-circuit
television or behind a screen which would allow
the witness to not see the accused.
- Allowing a support person to be present while young victims
and witnesses testify, in order to make them more comfortable.
Other measures which assist victims and witnesses in providing
their testimony
include:
- All or some members of the public may be required to leave
the courtroom during all or part of the court proceedings.
- A lawyer can be appointed to conduct the
cross-examination
of vulnerable witnesses when the accused is self-represented.
- Publication bans can be ordered to prevent
the publication,
broadcast or transmission of any information that could identify a victim
or witness.
How does a judge decide whether to order a testimonial aid or other
measure to facilitate testimony?
The judge will consider the circumstances of the offence and the victim or
witness who is giving testimony:
- Victims and witnesses under the age of 18 years or any
witness with a disability that makes it difficult for them to communicate
will receive testimonial aids or other measures when they
are applied for.
The judge must grant the protection unless the judge believes it
would interfere
with the proper administration of justice, for example, by
affecting the right
of the accused person to a fair trial.
- Other vulnerable victims and witnesses
may receive
a testimonial aid or other measure if the judge feels it is necessary for
the victim or witness to give full and candid testimony. The
judge will consider
factors such as the witness’s age, whether the witness has a mental
or physical disability, the nature of the offence and the nature
of any relationship
between the witness and the accused.
- In cases involving victims of criminal harassment, an
order will be granted upon application for the appointment of
counsel to conduct
the cross-examination of the victim when the accused is self-represented.
The judge must grant this protection unless the judge believes it
would interfere
with the proper administration of justice, for example, by
affecting the rights
of the accused person to a fair trial.
How do vulnerable victims and witnesses receive these
protections?
The victim or Crown attorney can ask the presiding judge for a testimonial
aid or other measure before or at any time during court proceedings.
Can the accused person object to the use of any of these
measures?
These measures are intended to improve the experiences of victims
and witnesses
who testify while fully protecting the rights of accused persons.
In some cases, judges may deny or limit the use of these special
protections
in order to ensure the rights of the accused person are not infringed.
Are testimonial aids and other measures to facilitate testimony new?
Testimonial aids and other measures to assist victims and
witnesses in providing
testimony have been part of the Criminal Code since 1988. These
provisions were
most recently amended in 2006 to provide greater clarity and consistency for
victims and witnesses by:
- expanding the categories of victims and witnesses who may
apply for testimonial
aids such as screens, testimony by closed-circuit television and
support persons.
Previously these aids were available only to victims and
witnesses under the
age of eighteen in certain court proceedings, such as cases
involving sexual
and certain violent offences;
- ensuring that the publication ban provisions keep up with
advances in technology
by clarifying that they prevent the publication, broadcast
or transmission
in any way of any information that could identify the
victim or witness;
and
- providing victims with greater certainty that testimonial aids will be
granted. Victims and witnesses under the age of 18 will not be required to
prove that the order is necessary—it must be granted when applied for
by the victim or Crown attorney. Similarly, victims of criminal harassment
of any age will not be required to show the need for counsel to be
appointed
to conduct their cross-examination when the accused is
self-represented.
Where is more information available?
If you or someone you know has been a victim of crime, help is available.
All provinces and territories have services for victims of crime.
They can help
if you need information or other assistance.
For more information about Canada’s justice system and
links to victim
services, visit our website:
http://canada.justice.gc.ca/victim
Policy Centre for Victim Issues
Department of Justice
284 Wellington Ave.
Ottawa, Ontario
K1A 0H8
Fax: (613) 952-1110
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