Brief for the Sub-Committee on the Open Court Principle: Virtual Hearings and Virtual Access Privacy and Security of Victims and Vulnerable Witnesses Related to Testimony in Criminal Proceedings

BACKGROUND

The Sub-Committee on the Open Court Principle, established by the Steering Committee on Justice Efficiencies and Access to the Justice System, has requested feedback from the Ombudsperson.

The Sub-Committee will make recommendations to the Steering Committee on Justice Efficiencies and Access to the Justice System in November of 2023. The work is based on the open court principle and seeks to identify advantages and disadvantages with respect to the privacy and security rights of those who testify in criminal court, either virtually or with members of the public, as virtual observers.

The Sub-Committee has asked for feedback on the following issues:

1. Feedback on victims’ participation and the use of virtual testimonies as witnesses in criminal hearings in trial courts and identifying any needs or gaps.

2. Privacy or security issues that have emerged in relation to virtual testimony or virtual access.

3. Solutions our Office may propose around the issues provided in the Backgrounder and Preliminary Findings.

POSITION

Our Office hears from victims and survivors of crime across Canada about a broad range of issues. We track every complaint we receive, whether it is related to provincial jurisdiction which would be linked to court systems, or federal, as in the case of the federal prison system. When the Office is approached about the provincial administration of justice, we may refer clients to applicable provincial organizations, such as the Victim/Witness Assistance Program (VWAP) in Ontario. There are also similarities between court proceedings and Parole Board of Canada (PBC) hearings, and we have heard positive and negative feedback about virtual hearings in both contexts.

The Canadian Victims Bill of Rights (CVBR) guarantees victims the rights to information, protection, participation, restitution, and to file a complaint. It must be noted, however, that there are differences in the rights of an accused/offender and those of a victim. The accused is guaranteed information throughout the process and is generally provided free legal services if they cannot afford them. Victims do not have equal rights as the CVBR requires victims to request information, and many things they want to know will be withheld in the name of privacy. This is also problematic when applying a gendered lens as most accused/offenders are males who are being provided with information, while victims are often women who are not kept informed.

The CVBR is quasi-constitutional legislation meaning that it is of fundamental importance and holds primacy over ordinary statutes. For example, if there were to be a conflict between them, the CVBR would have primacy over the Criminal Code. When the Minister of Justice releases Charter statements for criminal legislation that is introduced to ensure that the Charter is being respected, we believe that it should also reference the CVBR to ensure victims’ rights are being upheld.

FEEDBACK ON VICTIMS’ PARTICIPATION AND THE USE OF VIRTUAL TESTIMONIES AS WITNESSES IN CRIMINAL TRIALS – NEEDS OR GAPS

Each case in the criminal justice system is unique and victims of crime have different needs and preferences. Virtual and in-person hearings have different strengths and weaknesses, and both should be made available to respect the victim’s preferred method of participation and ensure their safety.

Positive feedback around virtual testimony and access

Safety

• Some victims are uncomfortable being in the same room as the person who harmed them. Remote participation can provide a greater sense of safety and comfort.
• Participating virtually has helped reduce anxiety and fear for some victims, such as the fear of being followed home from an in-person hearing.
• Some victims have reported preferring virtual hearings so they can participate in a safe and familiar space with greater access to self-care.
• Some victims have reported that participating virtually can allow greater activation of support networks throughout a hearing, since they can discuss the case as it unfolds.

Accessibility

• Victims with diverse physical or psychological needs may be unable or find it challenging to travel and attend court hearings. Virtual participation improves access.
• Virtual hearings can save money associated with travel or taking time off work. Virtual participation reduces the financial burden on survivors.
• Victims from rural and remote communities can benefit from reduced travel time and logistics, provided they have access to technology and a stable Internet connection.
• Access to interpreters can be easier to facilitate.

Recommendations to improve virtual testimony and access

Victim autonomy

1. The OFOVC recommends that victims be given a choice of their preferred method of participation. Not all victims and witnesses have the same needs.

• Victims have a right to participate and to read a Victim Impact Statement at sentencing, regardless of the format of the hearing. This can be a significant moment to communicate to the person who harmed them and to feel heard in the justice process.
• We have heard that virtual hearings can feel unreal to some victims.
• We have heard about the importance of being grounded for culturally significant processes, like an Indigenous circle hearing which may include smudging and passing a talking piece.
• We have heard about the importance of reading the accused’s body language.
• In serious cases like homicide, sometimes police officers and detectives wait with the victim’s family outside the courtroom, even on their personal time, to offer support and answer questions. This informal contact increases victim satisfaction with the justice system. It is not clear to what extent this might happen with virtual hearings.

Delays in notification

2. Victims and survivors should be notified well in advance of the format for the hearing and advised in a timely manner of any changes to it.

• Victims and survivors have shared frustrations regarding last-minute notifications and changes to the format of hearings.
• This can take an emotional and financial toll on victims:
  • If the victim is working with a therapist and exploring techniques to address their trauma responses, they may have prepared by visualizing the environment for the hearing.
  • A victim may schedule time off work, arrange respite care for children, make travel arrangements, and book accommodations. Rescheduling to a virtual hearing leaves the victim to absorb cancellation costs.

• Last-minute notifications and changes may affect victims’ ability to provide their best evidence, undermining their participation as a witness.
• The Office has also heard of a case where the victim was notified after a parole hearing had taken place after the fact.
  • PBC notified the victim that the hearing would be in person but later informed them that the hearing had taken place by paper review.
  • The decision to release the offender was made and the victim felt that they had been deprived of their final opportunity to participate.

3. Victims and survivors should be provided with information on participation in both formats so they can know what to expect if there is a change of format.

• Learning about both formats can allow a victim or survivor to make an informed choice.
• Victims should be informed of what protections or testimonial aids are in place for both formats.

Enhance technology to protect and respect victims’ rights

4. More effort should be made to mitigate the impact of technical difficulties to minimize secondary harm to victims.

• The Office has heard about technological glitches during parole hearings that have caused problems for victims, such as audio being cut off or video being turned on and off during proceedings.
• To support a move towards greater virtual participation, more efforts need to be made to ensure that technological capabilities are pre-tested and work efficiently.
• Enhancing these technologies will contribute to the critically important goals of better protecting victims/participants and upholding their right to participation.
• Should participants require technological support/equipment (i.e., someone hard of hearing requiring a headset), it should be provided in a timely manner to ensure their rights to participation are respected.

Fees associated with court records

5. Simplify the process to order court transcripts and provide them to victims who participate in virtual hearings free of charge upon request.

• If the internet connection is poor, or if the audio is difficult to hear or cuts out completely, victims are more likely to request transcripts.
• Attending hearings virtually increases the risk of uncontrolled interruptions for victims, from children, pets, postal service deliveries, or other distractions in the home environment.
• Victims generally have to pay for copies of court transcripts, and it can be difficult to hire an authorized court transcriptionist.

PRIVACY OR SECURITY ISSUES THAT HAVE EMERGED IN RELATION TO VIRTUAL TESTIMONY OR VIRTUAL ACCESS

Cases of intimate partner violence (IPV)

• In cases of IPV where both parties involved are still living together, virtual participation may be dangerous, as the alleged abuser may be able to intimidate and exert control over the victim’s testimony.
• Children may be able to overhear the proceedings, potentially swaying them to one parent’s side, creating household conflicts, or causing them trauma.
• Courts must understand the dynamics of IPV and consider coercive control when deciding between in-person or virtual participation.

Vulnerable victims and witnesses

• While a virtual setting may appear to be a more comfortable option for participation, there are several concerns that may be potentially serious and need to be addressed.
• There have been cases where an accused or offender may have a number of supporters signing up to attend the virtual proceedings, the on-screen presence or names of which can in some instances be very intimidating for victims or witnesses.
• If a victim or witness is participating from home, when the proceeding comes to a close there may be no one to talk to if they are in distress.
• In-person proceedings may provide victims with access to support on site.
  • For example, at the Ottawa courthouse, VWAP has support staff available to accompany the victim during in-person proceedings, and Ottawa Victim Services can provide volunteers.
• Victims who choose to participate virtually need to have supports available to debrief and provide them with assistance for their mental well-being.
  • A list of services available should be provided to victims and witnesses when proceedings have ended - whether in-person or virtually.
  • Some local victim services may offer a safe space for victims to participate in virtual proceedings at their offices, providing the victim with on-site support and maintaining their home as a safe space.

Victim-centred and trauma-informed training for court personnel

• Court proceedings are often re-victimizing. The behaviour of court actors, which may include victim blaming, talking down, or minimizing during court proceedings, exacerbates victim trauma.
• When traumatic court proceedings occur in the victim’s home, it can be perceived as invading their safe space, connecting future trauma reactions to their home environment.
• It is essential that legal personnel, judges, and court staff receive victim-centred and trauma-informed training. This could include the neuroscience of trauma to understand how victims of crime may react in certain situations.

Recommendations on Privacy and Security

6. The OFOVC recommends the development of national standards for virtual participation in the criminal justice system. It should include clear guidance on the implementation of victims’ rights, and instructions for how victims will be provided with information, protection, and support.

7. The Office also recommends that legal personnel, judges, and court staff receive victim-centred and trauma-informed training. This should include the neuroscience of trauma to understand how victims of crime may react in certain situations, and how to support them so they can provide their best evidence.

8. A process for feedback and complaints should be implemented to learn more about victims’ experiences with virtual hearings.

9. The OFOVC recommends that Justice officials consistently enforce publication bans; they should inform members of the public participating in virtual proceedings of any applicable publication bans and of the consequences of breaching them before entering the virtual proceedings. They should also notify victims subject to a publication ban of the process to have one removed.

10. To ensure consistency, improved training of justice officials (on implementing and monitoring virtual access) is also recommended.

Advanced screening of cases to protect victims and witnesses

The advanced screening of individual cases is crucial for privacy, security, and confidentiality concerns.

11. The Office supports the recommendation of the Office of the Commissioner for Federal Judicial Affairs Canada to screen cases on an individual basis and recommends that protocols be put in place to prevent re-victimization ¹

• Screening questions may include:
  • Do any participants, including witnesses and observers, have any concerns related to privacy, security, or safety? If yes, how will these be managed?
  • If during a hearing, one’s safety (e.g., victim or witness) becomes compromised, how will this be addressed? Instructions should be given in advance and a protocol must be put in place to try to prevent re-victimization.

Enforce publication bans

• Judges must ensure that participants are informed before they enter the virtual court of any applicable publication bans and the consequences of breaking them.
• This could be provided as a message (written and audio) that participants would see before being allowed to enter the virtual court.
• Coordinators could also clarify expectations with information on how to join a virtual hearing.
• Victims could also be informed about the new process to remove a publication ban (Bill S-12).

Provide information to facilitate stronger victim participation

• Since victims need to be contacted and emailed information on how to connect to virtual hearings, these messages could also provide information on victim rights and access to support.
• At the moment, victim services may simply email clients about a hearing coming up and may not elaborate further. Correspondence should include an explanation of the purpose of different hearings, how they will be conducted, possible outcomes, and what role the victim may play in the hearing.

CONCLUSION

The introduction of virtual hearings provides a significant opportunity to strengthen the implementation of victims’ rights in the criminal justice system. Assessing the protection needs of victims and offering informed choice in the format of hearings better reflects the government’s obligations under the CVBR to consider the protection and participation rights of every victim.

Virtual platforms and the requirement to send information on how to connect to a hearing offer a new avenue to provide information on victim rights and victim assistance services. Information relevant to each hearing could be provided with connection instructions.

Since victims of crime are not provided with legal assistance in the criminal justice system, opportunities to provide information and referrals to resources should be maximized whenever possible. It is a low-cost way to strengthen protection and participation for victims of crime.