Canadian Bar AssociationElder Law: Theory and Practice

CRIMINAL LAW AND THE ELDERLY

Lisa Jacek Criminal Law Policy Branch

Ministry of the Attorney General

Criminal Law Policy Branch, Ministry of the Attorney General

• CLPB Mandate: To provide policy, practical and legal advice to Crown counsel to assist them in the day-to-day exercise of their discretion in individual cases through the drafting and revision of the Ontario Crown Policy Manual

• CLPB counsel are available for consultation by front-line prosecutors on day-to-day policy issues as necessary

Crown Policy Manual• A comprehensive compilation of all prosecution polices

and directives issued to Crown counsel.

• Purpose is to:

1. Articulate policies and directives of the Attorney General

2. Provide Crown counsel (as agents of the Attorney General) with direction about their role in conducting prosecutions and appeals.

3. Provide transparency to the public and accountability to the Attorney General.

Crown Policy Manual• The Crown Policy Manual has three components:

1. Policies

2. Practice Memoranda

3. Confidential Legal Memoranda

• The manual was updated and re-released on March 31st, 2006.

• Practice memoranda provide specific policy direction and detailed legal and practical guidance to Crown counsel on a variety of issues as necessary and are publicly available upon request

Elder Abuse – Crown Policy• Assistant Crown Attorneys prosecute various

forms of elder abuse including physical abuse (domestic violence or institutional abuse) or financial abuse (abuse of Power of Attorney, fraud schemes directed at seniors)

• The Ministry of the Attorney General provides direction to Assistant Crown Attorneys in these types of prosecutions in the form of Practice Memoranda

• Assistant Crown Attorneys are given formal direction that would apply to the prosecution of elder abuse cases in the following Practice Memoranda:

1. Spouse/Partner Offences

2. Victims of Crime

3. Witnesses

4. Highlights of Bill C-2 – Protection of Children and Other Vulnerable Persons – Amendments to the Criminal Codeand Canada Evidence Act

5. Victims of Crime: Access to Information and Services Communication and Assignment of Cases

6. Victims of Crime: Victims/Witnesses With Special Needs

Practice Memoranda

• These policies explicitly define elderly victims as “special needs victim/witnesses”

• “special needs victim/witnesses” are defined as:

“ witnesses deserving of additional measures in conducting these prosecutions such as a system to identify cases with vulnerable victims as well as early assignment of Crown counsel to these prosecutions”

• These Practice memoranda also provide direction on a wide range of topics designed to enhance these types of prosecutions.

• This includes advice on interview techniques for vulnerable witnesses as well as guidance in bringing applications to apply for various testimonial aids such as:

i) a court support person; ii) testimony out of court or behind a screen; iii) and prohibiting cross-examination by an accused of a vulnerable witness as provided for the by the Criminal Code.

Bill C-2 -- TOOLS FOR

PROSECUTORS:TESTIMONIAL AIDS

• Bill C-2 vastly expanded the Criminal Code’s testimonial aid provisions to also offer protections for adult victims• These additional protections include:

i) Support Persons ii) Testimony outside courtroom/behind screeniii) Prohibition of cross-examination by accused

Support person486.1(1) (the old 486(1.2))

• Where witness is under 18 or has a physical or mental disability

• Mandatory test

• Changes the test from discretionary to mandatory -- “shall” make the order “unless … the order would interfere with the proper administration of justice”

Support person486.1(2) (the old 486(1.2))

• [new] Allows the section to apply to ANY WITNESS in ANY PROCEEDING– discretionary test – the court may make the order “where necessary

to obtain a full and candid account”

FACTORS TO CONSIDER

• age of the witness• whether witness has mental or physical

disability• nature of the offence• nature of the relationship between the

witness and the accused• any other circumstances that the judge or

justice considers relevant

TIMING

• the application may be made:

• during the proceedings to the presiding justice or judge OR

• before the proceedings to the justice or judge who will preside at the proceedings

Support Person

• A witness cannot be a support person unless “necessary for the administration of justice”

• Judge may order that support person and witness not communicate with each other while the witness testifies.

• (6) all new – “no adverse inference may be drawn from the fact that an order is, or is not, made under this section.”

• Where witness is under 18 or has physical or mental disability– applies in “any proceedings” (not just

enumerated/lengthy list)– removes word complainant and leaves witness (which

includes complainant/victim)– changes the test from discretionary [“may” make the

order without specifying upon what conditions] to mandatory “shall” make the order “unless … the order would interfere with the proper administration of justice”

Testimony out of court/behind screen 486.2 (the old 486(2.1))

• [new] Allows the section to apply to ANY WITNESS in ANY PROCEEDING– discretionary test – the court may make the order “where

necessary to obtain a full and candid account” – court to take into account same factors as for

support person

Testimony out of court/behind screen 486.2 (the old 486(2.1))

• where necessary to have the witness testify on the motion they may testify from outside of the courtroom or behind the screen

• no witness shall testify outside of the courtroom unless arrangements have been made for closed circuit television etc.

• (8) all new –

• “no adverse inference may be drawn from the fact that an order is, or is not, made under this section””

Testimony out of court/behind screen 486.2 (the old 486(2.1))

• ANY WITNESS – new– in any proceeding– on application of any witness– D shall not cross-examine witness IF necessary

to obtain full and candid account (onus on person bringing application)

– TJ shall appoint counsel for the cross-examination

s.486.3 – cross-examination by accused

factors to consider – (all new)– those set out in s.486.1(3):

– age of the witness– whether witness has mental or physical disability– nature of the offence– nature of the relationship between the witness and the

accused– any other circumstances that the judge or justice

considers relevant

Cross-examination by accused

• Timing – may be made during proceedings to the presiding

justice or judge OR– before the proceedings to the justice or judge who

will preside at the proceedings.

• (5) all new – “no adverse inference may be drawn from the fact that an order is, or is not, made under this section”

Cross-examination by accused

VIDEO-RECORDED EVIDENCE

(Section 715.2)• Where victim or witness has a mental or physical

disability that may influence their ability to communicate evidence.– the tape is admissible if the criteria are met unless

the admission of the video recording would interfere with the proper administration of justice

– applies to “any proceeding”

• The Judge or Justice may prohibit any other use of the video recordings in 715.1 or 715.2.

THE PROSECUTION: Special Considerations

• Multiple Interviews – Multiple Benefits:– Necessary to assess the communication skills and cognitive

level of elderly witnesses (possible Khan/Smith application?)– Necessary to assure vulnerable witnesses become more

comfortable with both the court process and the Assistant Crown Attorney prosecuting their case .

• Location of the Interview: Crowns must consider potential mobility/medical problems, privacy issues and comfort levels.

• Preparation Aids: Microphones; transcripts reproduced in large print; review of video.

• Expedite Trial Dates – In some cases, memories of elderly victims can be frail, especially where capacity is at issue or memory problems are likely – Crowns can work with the trial co-ordinator’s office to expedite dates but the setting of dates is ultimately in control of the judiciary.

CIVIL COUNSEL Assisting Elderly Clients

• Inform your client as to the nature of the criminal process

• Arrange and accompany to initial police meeting

• Document Production: – Forward any documentation (i.e. financial) or

correspondence with the offender to the police– Document all conversations with the offender

including the date, time and substance of conversation –NOTE: counsel may become a witness.