Protections for Victims and Witnesses

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 103-151

103

Protections for

Victims and

Witnesses

5

I. Overview ................................................ 104

II. Canadian Victims Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

III. Support Person (Section 486.1) ............................. 110

IV. Testifying Without Seeing the Accused (Section486.2) ........... 112

V. Appointment of Counsel for Cross-Examination (Section 486.3) ... 124

VI. Exclusion of the Public (Section 486) ......................... 127

VII. Publication Ban (Section 486.4) ............................. 128

VIII. Non-Disclosure of a Witness’s Identity (Section486.31) .......... 130

IX. Video-Recorded Evidence (Sections 715.1 and 715.2) ............ 131

X. Testimonial Competency ................................... 136

XI. Preparing the Victim to Testify ............................... 137

XII. Cross-Examination of the Victim ............................. 139

Appendix 5.1 Form 34.2: Victim Impact Statement ............. 142

Appendix 5.2 Form 48.2: Victim Impact Statement—Not Criminally

Responsible .................................. 145

Appendix 5.3 Form 34.3: Community Impact Statement ......... 148

Appendix 5.4 Form 34.1: Statement on Restitution ............. 151

© 2024 Emond Montgomery Publications. All Rights Reserved.

104Prosecuting and Defending Sexual Oence Cases

I. Overview

The Canadian justice system has long recognized that the prosecution of a sexual

oence can be dicult for victims. Unlike other oences, sexual oences involve

testimony about sensitive and emotionally charged incidents. Furthermore, particu-

lar vulnerabilities can add to the stress of a victim or witness in court. Parliament has

increasingly enacted and refined provisions that contain protective measures for victims

and witnesses. These measures seek to facilitate the participation of vulnerable wit-

nesses while ensuring that the rights of accused persons are respected. The objective is

to ensure that the most comprehensive evidence is adduced in the search for the truth.1

Whether you are prosecuting or defending a case involving a sexual oence, you

should be familiar with the various protections and testimonial aids available for vic-

tims and witnesses. The Crown in particular should be in a position to discuss these

processes with victims and witnesses, or to ensure that there is a victim/witness ser-

vice available and equipped to doso.

This chapter will cover the relevant legislative provisions in the Criminal Code,2

and other acts, that are available for victims and witnesses, and how they apply in

practice. It will also provide some practical suggestions for the Crown on how to prop-

erly prepare the victim to testify. Finally, it will discuss how to ensure fair and proper

cross-examination of the victim. The areas that will be discussed are:

II. Canadian Victims Bill of Rights;

III. Support Person (Section 486.1);

IV. Testifying Without Seeing the Accused (Section 486.2);

V. Appointment of Counsel for Cross-Examination (Section 486.3);

VI. Exclusion of the Public (Section 486);

VII. Publication Ban (Section 486.4);

VIII. Non-Disclosure of a Witness’s Identity (Section 486.31);

IX. Video-Recorded Evidence (Sections 715.1 and 715.2);

X. Testimonial Competency;

XI. Preparing the Victim to Testify; and

XII. Cross-Examination of the Victim.

II. Canadian Victims Bill of Rights

The Canadian Victims Bill of Rights3 creates a number of protections for victims of

crime. Its preamble highlights important principles that apply to victims of crime:

1 In R v Levogiannis, [1993] 4 SCR 475 at 483, 85 CCC (3d) 327 at 333, the Court held that

“[t]he goal of the court process is truth seeking and, to that end, the evidence of all those involved

in judicial proceedings must be given in a way that is most favourable to eliciting the truth.”

2 RSC 1985, c C-46.

3 SC 2015, c 13 [CVBR].

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter 5 Protections for Victims and Witnesses 105

that crime is harmful on victims and society, that victims deserve to be treated with

courtesy and compassion, and that a victim’s rights need to be considered through-

out the criminal justice system. Significantly, victims have rights guaranteed by the

Canadian Charter of Rights and Freedoms,4 and consideration of those rights is in the

interest of the proper administration of justice.

In addition to the CVBR being a federal statute focused exclusively on victims,

Bill C-32 makes amendments to the Criminal Code and the Canada Evidence Act5 that

further enhance protections for victims and witnesses in the criminal justice system.

These amendments, as they relate to sexual assault cases, will be discussed below and

throughout this book where applicable.

The rights provided under the CVBR must be applied in a manner that is not likely

to interfere with the proper administration of justice. These rights should not interfere

with the exercise of police and prosecutorial discretion, and they should not contribute

to excessive delay in an investigation or prosecution.6 All federal legislation must be

construed and applied in a manner compatible with the rights set out in the statute and

in the event that an inconsistency arises, the provisions of the CVBR should prevail.7

Under the CVBR, the definition of “victim” in the Criminal Code and Youth

Criminal Justice Act8 is expanded to include “an individual who has suered physical

or emotional harm, property damage, or economic loss as the result of the commis-

sion or alleged commission of an oence.”9 This will be important in sentencing, since

“victim” could now include a spouse, parent, sibling, or child of the victim of abuse.

The rights10 created by the CVBR include:

1. the right to information,

2. the right to protection,

3. the right to participation, and

4. the right to restitution.

These rights, and any views that a victim expresses in relation to their rights,

should be considered at every stage of the prosecution.

4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11

[the Charter].

5 RSC 1985, c C-5.

6 CVBR, s 20.

7 CVBR, s 22.

8 SC 2002, c 1.

9 CVBR, s 2.

10Notwithstanding the use of the term “rights” throughout the legislation, as well as in the title,

s28 provides that no cause of action or right to damages arises from an infringement or denial

of a right provided in the statute. Furthermore, s27 clarifies that the provisions of the CVBR

do not grant or remove the current status of a victim as a party, intervener, or observer in any

proceedings.

© 2024 Emond Montgomery Publications. All Rights Reserved.