1.0 Background

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This report describes the findings from a small research study conducted by Department of Justice Canada (JUS) researchers in the summer of 2023 that examined the use of virtual testimony from Child Advocacy Centres (CACs) and Child and Youth Advocacy Centres (CYACs) in Canada. In this first section (1.0 Background), a definition of virtual testimony is provided, along with some of the research literature on virtual testimony from the past decade, the criminal justice context and background on CACs/CYACs, and the legal framework for virtual testimony.

Sections 2.0, 3.0 and 4.0 include the methodology, findings and discussion.

Section 1 will provide background to understand the very specific context for this research study. The section begins with a short discussion on the term chosen for this study – “virtual testimony” – with more information provided in Appendix 1. A review of Canadian research about virtual testimony and hearings in general, as well as challenges identified before and during the pandemic, is followed by a review of research on testimonial aids, CACs/CYACs in Canada, decreasing the risk of re-victimization by participating in the criminal justice system, and the legal framework for witnesses to provide their testimony virtually.

1.1 Virtual Testimony

1.1.1 Definition

For the purposes of this report, “virtual testimony” is the term used to describe:

Testimony provided during a court or administrative tribunal hearing from outside of the courtroom where the proceedings are being held. The witness may be located in another room in the courthouse, at another location, or at the witness’ place of residence. The testimony can be relayed using whatever technology provides the best audio and visual possible depending on the court’s requirements.

The researchers reviewed websites for the courts of justice of each province and territory and for federal courts, as well as websites for key justice stakeholders such as the Canadian Bar Association and the Association of Law Societies of Canada (see Appendix 1) for their use of the terms “virtual testimony” and “remote testimony.” The review showed that at the time (fall 2023), the term “virtual testimony” is more commonly used by stakeholders and so it is the term that this study uses; however, “remote testimony” is also used in some instances by courts and by one or more CACs/CYACs. One study participant indicated that the purpose for using the term “remote testimony” is to distinguish testimony within the courthouse, but from a different room as the trial proceeds, from testimony that is provided from a location outside of the courthouse, such as a CAC/CYAC.

1.1.2 Research on virtual testimony

For many people, virtual testimony appeared to arrive during, and because of, the COVID-19 pandemic. It has actually been available for several decades, but the technology required was quite expensive. A presentation by Troussel in 2022 showed prior to the pandemic, the literature mainly reflected concerns for individual rights, analysis of the use of virtual hearings in immigration law, analysis of which technology should be used and how, and general reflections about the transformation of law.^{Footnote 1} Since that time, the literature has focused on reviews of virtual hearings which were implemented as a response to the pandemic.

During the pandemic, an abrupt shift was noted where “the physical space went into cyberspace” (Lederer 2021). Hearings became virtual hearings. There was no longer a physical space to ground the proceedings as before the pandemic where maybe one or two witnesses would appear virtually; everyone involved appeared on the screen.

Two things changed with the pandemic. Multiple participants were now “remote”, including the lawyers and sometimes judicial officers. There was also a dramatic growth in the use of cheaper and more accessible software-based video conferencing platforms (e.g., Webex, Zoom, Skype, Kinly CVP and Microsoft Teams) and many courts used more than one platform. (Rossner, Tait and McCurdy 2021)

The website remotecourts.org was set up by Professor Richard Susskind in March 2020. Puddister and Small (2020) reviewed the practices at 44 courts in Canada and found that 90% of them had used technology to move urgent matters forward. Overall, courts in Canada were able to fulfill their essential service mandate by providing access to matters deemed essential. This said, Puddister and Small found that Canadian courts are not necessarily providing “trial by Zoom.” Courts are just as likely to suggest teleconferencing alongside videoconferencing. How the decision as to what technology will be used has varied. For some courts, a judicial administrator will canvass for the availability of technology among counsel and judges, while others allow the presiding judge to choose.

This pandemic period gave a boost to the credibility of virtual hearings, as well as virtual testimony. With the pandemic seemingly over, and based on the interviews conducted with CACs/CYACs, different courts have made different decisions around virtual hearings with respect to how to move forward.

Overall, the courts have done well with these fundamental changes, but challenges do remain. Three key challenges have been raised by Puddister and Small (2020): i) the digital divide; ii) privacy and cyber-security; and iii) quality and reliability of technology.

Digital divide

According to the Canadian Radio-television and Telecommunications Commission, at the end of 2022, 93.1% of households in Canada had access to high-speed^{Footnote 2} internet. In rural areas, this percentage dropped to 67.4% (or 1.1 million households without access); in the North, the percentage was 57.5% (or 20.8K households without access); and on First Nations reserves the percentage was 50.1% (or 67.8K households without access).^{Footnote 3}

The digital divide–the inequalities between those who have regular and quality access to digital technologies and those who do not, as well as inequalities in technical competence and skill. Many Canadians, particularly those in rural and remote areas, do not have adequate access to broadband, nor do many Indigenous communities (CRTC 2020; Hyslop 2019).

These challenges could be potentially insurmountable for an individual attempting to access the court system (Puddister and Small 2020).

Where there is an over-reliance on technology, access to justice will remain out of reach of many. Some individuals lack internet access, especially high-speed internet, or have limited access to phone data or email, etc. These people in particular will face multiple challenges in trying to access a virtual hearing.

Understanding that access to the internet – although not high speed – is nearly universal and that access may be through a phone rather than a computer, analysts from Statistics Canada (Wavrock et al. 2021) developed a typology of internet users in Canada to distinguish their activities and skills. The five categories are non-users, basic users, intermediate users, proficient users, and advanced users.^{Footnote 4} Figure 1 below shows a breakdown of Canadians and their internet usage by category. While advanced and proficient internet users together make up more than half (56%) of Canadians aged 15 years and older, non-users make up almost a tenth of Canadians. It is important to remember this category of non-users when making access to justice reliant on technology, specifically internet usage.

Privacy and cybersecurity

Courts function on the basic premise of “open court” whereby a court is open to the public unless there is a specific reason why the court should not be (see Cameron 2003). The use of software, such as Zoom, opened up courtrooms to a plethora of incidents that caused great concern for privacy and for victims’ safety. In the cases being handled by CACs/CYACs, there would be automatic publication bans on identities because the victims are under the age of 18 years. Nonetheless, these issues remain at the top of the list of challenges for virtual testimony and for virtual hearings.

Quality and reliability of technology

At the outset of the pandemic, there were many interrupted or failed sessions due to limited bandwidth. Issues with connectivity were also rampant and the federal government itself needed to remedy these challenges in order for its own employees to work from home. The limited bandwidth challenges have been resolved in large part, at least in urban centres, although glitches continue to interrupt virtual activity. In the criminal justice context, the most salient issue is whether the technology is truly user-friendly.

1.1.3 The criminal justice context

In Section 1.4 below, the legal framework for virtual testimony will be laid out. Here, it is noted how virtual testimony has been used in the criminal justice context in Canada prior to the pandemic, mostly to support the testimony of children and vulnerable adults. There are three types of testimonial aids: a witness may testify from i) behind a screen, ii) from outside the courtroom via closed-circuit television (CCTV), and iii) alongside an accompanying support person (see section 1.4 infra). In addition to these traditional aids, the Criminal Code and the Canada Evidence Act also authorize publication bans and video-taped testimony, along with appointment of counsel to cross-examine a witness and orders to exclude the public from the courtroom (McDonald 2018, 5). For at least the past decade, the use of a support dog or other support animal has become more accepted and common, especially with children and other vulnerable witnesses (see McDonald and Rooney 2014; McDonald and Poulin 2022).

Following the coming into force of amended testimonial aids provisions in 2006,^{Footnote 5} the Department of Justice Canada, through the Victims Fund, encouraged provinces and territories to:

• purchase equipment (CCTV and screens);
• facilitate training on the use of that equipment for all justice professionals; and
• raise awareness about testimonial aids through public legal education and information and workshops at conferences.

An evaluation of those funding efforts found that:

[F]unding for testimonial aids has increased victims’ access to a greater number of higher quality testimonial aids, which have helped reduce the stress of testifying, the stress and anxiety of parents and supporters during the course of the proceedings, and have given child witnesses and their supporters choices and a sense of empowerment in the criminal justice process. (Department of Justice Canada 2011, iv)

As noted in Hurley (2015), it is generally accepted that testimonial aids have improved the experience of children in the courtroom. Studies from the United Kingdom and the United States have reported the benefits of witnesses testifying from outside the courtroom to facilitate the process of giving evidence (Davies and Noon 1993; Goodman et al. 1998). The Department of Justice Canada has undertaken its own research that supports this general finding (see Bala et al. 2009; Hickey 2015; 2016; Hurley and Hickey 2015; Hurley 2016; McDonald 2018; Hickey and McDonald 2019).

In 2018, the Department hosted a Knowledge Exchange on testimonial aids to reflect on what researchers, policy makers, judges, Crown prosecutors, and victim services had learned over time (see McDonald 2018) and what challenges remained. As one might imagine, CCTV was more readily available in urban areas, and less so in rural, remote and Northern parts of the country. Based on a survey of the 80 participants, the following challenges were identified (Hickey and McDonald 2019):

1. Resistance to the use of testimonial aids;
2. Lack of availability/resources;
3. Technology issues;
4. Process issues including when to make an application; and
5. Problems with screens including issues around storage and transporting them due to their size and bulkiness.

Knowing the research on the use of testimonial aids – specifically CCTV use – in the Canadian criminal justice context and the more general research on internet use and virtual testimony helps to situate this particular study on virtual testimony in CACs/CYACs.

1.2 Child Advocacy Centres

Children’s Advocacy Centers (CACs) started in the United States in the mid-80s. In 2010, the Department of Justice Canada announced funding to support the development or enhancement of these multi-disciplinary organizations under the slightly different name, Child Advocacy Centres (CACs) and later, Child and Youth Advocacy Centres (CYACs). A CAC or CYAC is a collaboration between law enforcement, child protection, medical and mental health professionals, and victim advocates in a child-friendly facility where children, youth, and their families can receive an individualized response and services after the occurrence of child abuse. Services provided include prevention, intervention, prosecution, treatment and support for victims and their families.

CACs/CYACs bring together a multi-disciplinary team (MDT) to provide a coordinated and comprehensive response to address the needs of children, youth, and their families in cases where abuse is suspected. CACs/CYACs seek to minimize system-induced trauma and support longer-term well-being by providing a child-friendly facility for young victims and their families to seek services, ideally under one roof.

A CAC/CYAC is a community-based program, designed to meet the unique needs of the particular community in which it is located. Consequently, no two centres are alike, but each CAC/CYAC has a number of key elements in common, including:

• A multi-disciplinary team that includes law enforcement, child protection services, victim advocacy and support services, mental health services, medical services, staff of the CAC/CYAC and where appropriate, prosecutions;
• Child and family-friendly facilities;
• Forensic interviewing services;
• Victim advocacy and support, including court preparation and support;
• Specialized medical support and treatment;
• Specialized mental health services;
• A process for case review; and,
• Organizational capacity.

Training and education for professionals working with child abuse victims and community education and outreach are also considered important activities that are undertaken by CACs/CYACs.

Research on CACs has been led by American academics with the most prominent study by Theodore Cross, Lisa Jones and colleagues from the University of New Hampshire’s Crimes Against Children Research Centre. The study examined four American CACs comparing their services and outcomes for children and families to services and outcomes for children and families in comparable, nearby non-CAC communities (Cross et al. 2008). This research found that, although CACs and comparison communities feature similar rates of prosecution and conviction, CACs offer more coordinated investigations, better access to medical exams, more referrals for mental health services, and higher levels of caregiver satisfaction with investigations. While children’s satisfaction did not differ between CAC and non-CAC communities, evidence suggested that CACs might reduce children’s fears during interviews.

In 2016, a paper by Australian academics James Herbert and Leah Bromfield was released with the results of a meta-study of the effectiveness of CACs. The review found that there was a lack of research on the effect of the model on child and family outcomes. Although some modest outcomes were clear, there was a lack of empirical research, and too great an emphasis on measuring program outputs.

In Canada, there has been some research on the specific model undertaken over the past decade (see for example, Research and Statistics Division 2017; Louden and Glynes Elliott 2018; Price et al. 2019). The JUS study of six CACs/CYACs developing over five years found three key elements in those CACs/CYACs to be essential: a physical site for operations, the co-location of partners (MDT) whenever feasible, and an active victim/family advocate. Additional aspects that were found to be extremely helpful for developing CACs/CYACs were:

• access to mental health services for clients and MDT members;
• providing case updates and sharing information with clients, especially youth;
• clients benefitting from having both female and male staff in the CACs/CYACs; and
• access to private spaces within CACs/CYACs enhances the experience for clients (Research and Statistics Division 2017, 6).

Overall, the study found that CACs/CYACs reduced both non-financial and financial hardship for clients. They reduced stress and re-victimization by providing a single, safe, and child-friendly place for victims and their families to obtain interviews, information, and support (for five of the six locations); reducing the number of victim interviews (e.g., by videotaping); providing a single point of contact through the victim advocate who provided emotional support, information, referrals to services, and/or assistance navigating intimidating systems; and in some sites providing emergency cell phones, bus tickets, taxi slips, and/or food vouchers (Research and Statistics Division 2017, 7).

A Social Return on Investment (SROI) report (2017) for Boost Child and Youth Advocacy Centre in Toronto found that the organization provides $4.6 million in annual, city-wide benefits including integrated services, faster responses for victims, better justice and health outcomes and lasting benefits to society.^{Footnote 6} These net benefits to society were lower rates of trauma related symptoms in victims, less impact on caregiver employment, and quick access to counselling services. For every $1 spent, the return in societal benefits is $3.

In 2022, the BC Network of Child and Youth Advocacy Centres released its own SROI report. The SROI revealed a ratio of 1:5.54, which indicates that for every dollar invested in CYACs, approximately $5.54 in social and economic benefit is returned. The main benefits include: wellbeing and quality of life changes for children and their families; improved quality of work for CYAC management and staff, Multi-Disciplinary Team (MDT) members, and partner agencies; and realized efficiencies with BC’s systems of care which span healthcare, education, justice, child protection, and policing.

The CACs/CYACs have also worked to address gaps in the system which affect their clients, including access to medical examinations, availability of prosecutors with expertise working with child victims, use of testimonial aids (e.g., screens and CCTV), and access to child-friendly environments for forensic interviews and court appearances (Research and Statistics Division 2017, 7).

This large research project remains significant, but at the same time, more research in the Canadian CAC/CYAC context would be valuable. The current research study is one example of efforts to fill gaps in data and understanding about how CACs/CYACs are addressing the needs of their clients and their families.

In the spring of 2023, there were 39 CACs/CYACs in operation across the country with nine in development, and one undertaking a feasibility study. In addition, there were two exploring the CAC/CYAC model. See Figure 2 below.

1.3 Reducing risk of additional trauma

Today, the importance of trauma-informed practice in the development and implementation of policies, procedures and programs is seen as a basic requirement for work with victims and survivors of violence and abuse. Indeed, two decades ago Professor Judith Herman noted that:

If someone set out to design a system to provoke symptoms of post-traumatic stress disorder, it might look very much like a court of law (Herman 2003, 159).

Even before getting to a court of law, however, victims and survivors must go through reporting the incident and any investigation. A JUS report that examined the impact of trauma on adult sexual assault victims explained the neurobiology of the impact of trauma on the brain and why forensic interviewing, investigations, and even questioning in the courtroom need to be re-imagined (Haskell and Randall 2019). For children, chronic abuse and other forms of trauma can have significant impacts on the development of their brains. In the past two decades, there has been significant research undertaken to understand these impacts and apply those learnings – by applying a trauma-informed approach or perspective – to settings like the criminal justice system.^{Footnote 7}

As the National Child Traumatic Stress Network (NCTSN) notes on its website:

A service system with a trauma-informed perspective is one in which agencies, programs, and service providers:

1. Routinely screen for trauma exposure and related symptoms.
2. Use evidence-based, culturally responsive assessment and treatment for traumatic stress and associated mental health symptoms.
3. Make resources available to children, families, and providers on trauma exposure, its impact, and treatment.
4. Engage in efforts to strengthen the resilience and protective factors of children and families impacted by and vulnerable to trauma.
5. Address parent and caregiver trauma and its impact on the family system.
6. Emphasize continuity of care and collaboration across child-service systems.
7. Maintain an environment of care for staff that addresses, minimizes, and treats secondary traumatic stress, and that increases staff wellness.

There are many resources – including training, manuals, videos, and articles – that have been developed in the past ten years or so to support victim services providers, Crown prosecutors, and judges to approach prosecution in a more victim-focused and trauma-informed manner.^{Footnote 8} The criminal justice system in Canada must always balance the constitutionally protected rights of the accused with the rights of the victim(s); this is not always straightforward, nor easy (see Cameron 2003). CACs/CYACs work in the best interests of the child and recognize the importance of minimizing or eliminating re-victimization of the child or youth, and their family, in the contexts of both the criminal justice and child protection systems. The objective of reducing trauma for children and their families is present in all ten of the Canadian guidelines (see Child and Youth Advocacy Centres 2021). A further example of this is found in a recent article in an American law journal entitled “Avoiding the second assault: A guidebook for trauma-informed prosecutors” (Werner 2021). Overall, the author notes that four key principles support a good trauma-informed prosecution: i) choice and voice, ii) transparency, iii) privacy, and iii) connection (2021, 590-592).

Werner notes that for healing to occur, victims/survivors need: i) social acknowledgement of what has happened; ii) control over their lives; and iii) an opportunity to tell their story the way they wish to tell it (2021, 575). Yet a criminal proceeding is out of the victims or survivors’ control; it is something done to them with rules that are hard to understand about how and when they can speak.

At the same time, participating in a criminal proceeding can be beneficial for victims/survivors, regardless of their age or experience. Being believed in a public forum can be very powerful and healing (Young and Dhanjal 2021).

The question remains, however, as to whether these trauma-informed approaches really make a difference. A meta-analysis of studies on CACs/CYACs (Herbert and Bromfield 2015) found that most evaluations have focused on outputs, and there is little research examining whether the CAC model leads to recovery from trauma.

Considering the stated mission of CACs to reduce systemic trauma, it is concerning that no studies have measured these benefits against standard service delivery (Herbert and Bromfield 2015, 348).

The authors provide recommendations at the end of their study, noting:

There is a clear need for more rigorous empirical research of the CAC model, particularly on the impact of the services on child trauma symptoms, both in terms of therapeutic interventions, and to demonstrate reduced child trauma resulting from coordinated/co-located services; (Herbert and Bromfield 2015)

This study does not take on the evaluation of virtual testimony and whether, or how, it reduces re-victimization for children and other vulnerable witnesses. It is hoped that in the coming years, the topic will be studied rigorously.

1.4 The Legal framework

Testimonial aids for children and for vulnerable adults have existed since 1988 in Canada (see Bala 2018; Bala et al. 2009). In 2006, the provisions in former Bill C-2^{Footnote 9} came into effect making testimonial aids for children mandatory upon request.

In July 2015, the Canadian Victims Bill of Rights (CVBR)^{Footnote 10} came into force giving victims of crime a right to protection and specifically a right to request testimonial aids (see Appendix 1). Former Bill C-32: An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts⁠^{Footnote 11} also introduced amendments to the Criminal Code and the Canada Evidence Act to further operationalize the rights enshrined in the CVBR.

Reviews of case law since 2006 have shown that trial judges generally have good awareness of the challenges for children when testifying in a criminal trial (Bala 2023; 2018; Bala et al. 2009). The Supreme Court of Canada rendered several decisions^{Footnote 12} that facilitated the use of accommodations and also recognized the need to give deference to trial judges who have the very difficult task of assessing the credibility of children.

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