Role of Crowns in MDTs

Thursday, April 11, 2013

The Role of Crown Prosecutors in the Multi-Disciplinary Team

(there are no PowerPoint presentations related to this session)

A multidisciplinary team approach (MDT) is the foundation of a CAC. An  MDT is a group of professionals, who represent various disciplines and work collaboratively to ensure a co-ordinated response. In Canada, as organizations develop the components of Children’s Advocacy Centres, the role of Crown prosecutor on the Multi-Disciplinary Team has been raised. The prosecutor represents the Crown, not the victim. The prosecutor also has a positive obligation to disclose all materials in his or her possession to the defence.

The prosecutors on this panel addressed the questions raised and discussed in their jurisdictions about the role or intended role of the Crown in Multi-Disciplinary Teams.

The panel included three crown prosecutors, from three different parts of the country, representing different stages of operation or development of a CAC. Edmonton crowns have been working closely with Zebra, a fully operational CAC, since its inception.  The Toronto crown’s office has played an advisory role in the planning and piloting of the Toronto CYAC, which opens in July 2013.  The crown counsel from B.C. has been one of two crown members on the CAC committee in Victoria (ORCA) since their early planning stages.

 

Shelley Bykewich, Crown Prosecutor, Edmonton, Alberta [Biography]

Zebra was new when she started — they learned together how to be a multidisciplinary team.

In Alberta, police make the charge; then the Crown gets the file from the police. If it’s a file specifically assigned to Zebra, the Crowns are the connected to the case early on in the process. Our office does not contact the family, as Zebra does that.

Crowns go into the Zebra location for court preparation – as the child is already comfortable there.

The chief of the Crowns office sits on the Zebra board, together with police representation and community members – there is significant community involvement.

“The big message for us is that it’s all about the child. When it comes to going into CACs it should be about the child and not about individual egos – not the police or the crown. This is the child’s life.  I make sure everyone I train knows that.”

She hopes that one day the role for the crown will be ‘in-house’ at Zebra.

 

Jill Witkin, Deputy Crown Attorney, Toronto, Ontario [Biography]

She began by explaining that Toronto does not yet have a fully operating CAC — but they are close to that goal.   The crowns’ office has had a dedicated child abuse team for many years. They also have a special court room for child abuse cases. Despite not having been under one roof, the benefit of this team is relationship-building with all of the different agencies around Toronto.

The crown is not currently an official partner with the Toronto CAC,  as the provincial government would have to provide resources  for that.  She is currently playing  an advisory role with BOOST.  It is important for everyone to  work  together, as this is what drives the success of CACs.  Collaboration and communication are key.  Informal conversations are just as important as formal.

She has been involved  in the steering committee to establish the Toronto CYAC, and their pilot project.

She is surprised to hear that the Edmonton crown’s office has a member sitting on the Board of Zebra, their local CAC.

She emphasized that strong relationships between crown, police and child protection are crucial in cases involving children.  “The more information the crown has – the better the prosecution will be.”

Regarding forensic interviewing,  she wondered if everyone was under the same roof, who would lead the interview. She emphasized that the quality of the interview process is the top priority.  “For a young child,  their video is their evidence. That is what the judge and jury focuses on. You have to capture a moment in time – the child’s demeanor,  their emotions, how they speak. That  all has to crystalize in the video.  If there are any leading questions…. or  if their face is obscured, …or if they’re seated with their back to the camera…. That’s a problem.” 

She questioned how a CAC in Toronto might deal with these issues:

■  Which agency is covering which costs? What will the flow charts look like?

■  Who will lead the investigative interviews? It’s usually the police, with child protection present and taking notes. But some agencies take a different position.

■  Different consent forms are used by different agencies. This will be a big  issue — including different policies on age of consent.

■  Does the crown really need to be under the same physical roof as  the CAC? She prefers that any crown in a CAC play an advisory role  — and that the advising crown  would not be the same person who will conduct the prosecution.

■  Records created in the course of  the investigation would  become available to the defense. Any therapy records have to  remain completely separate and private.

 

Paula Donnachie, Crown Counsel, Victoria, BC [Biography]

Two British Columbia crowns have been on a working committee at ORCA   (the group developing Victoria’s proposed CAC) or about 2 years, attending meetings that also include police, social services, health workers and victim services.   Several working groups for other potential CACs were established in the last year in other regions of BC.  The prosecution branch has formed a committee to determine what the role of the crowns will be in CACs.

In Victoria, there are specialized courts  for  child abuse cases. There is a policy that only crowns with training should handle  cases of child sex abuse.  She noted that the child should only be dealing with one prosecutor though the whole process.

She pointed out why the role of crowns in a CAC can raise some concerns:

In B.C., the  crowns do the charge approval.  She emphasized that the crown has to be independent.  “Any charge has to be in the public interest.  We have to determine when and how to prosecute — and do that without bias — or the perception   of bias. We are not an advocate for the child,  and we cannot be seen as such.”  She added that the defendant is entitled to objectivity from the crown – this is a fundamental principle of justice.

Regarding funding, she commented that private or public funding could  complicate  what the relationship may be between the Crown and CACs.

 

QUESTIONS, ANSWERS, COMMENTS

 

QUESTION: Where do vulnerable adults fit in?  What about people with FASD?

ANSWER: (Shelley Bykewich)

Zebra would identify someone  with FASD as a vulnerable adult – they could receive services and probably have access to special testimonial aids.

 

ANSWER:  (Jill Witkin)

Toronto is the only jurisdiction that has a team of crown prosecutors dedicated to child abuse cases. It’s intended for victims under age 16. But they do take on cases of elder abuse, or adults with mental or physical disabilities, on a case-by-case basis. CCTV was only available to children and people with mental and physical disabilities.  It has become presumptive for children and people with disabilities, and is now also discretionary for ANY adult witness who is deemed vulnerable .

 

COMMENT:  (Susan McDonald)

A survey is currently underway about the extent to which testimonial aids are used across the country  for vulnerable adults.

 

*          *          *

QUESTION: Why is the term “child abuse” used, rather than “child assault?”

ANSWER:   (Shelley Bykewich)

The public understands the term “child abuse.”  And there is no charge called “child assault” in the Canadian Criminal Code.

 

ANSWER:  (Jill Witkin)

Child abuse can include more than assault.  It can include neglect and abandonment.

 

ANSWER: (Paula Donnachie)

Assault has the sound of a one-off event. But abuse is lengthier.

 

*          *          *

 

QUESTION: What has been the impact of a CAC on defense counsel in your area?

 

ANSWER:  (Jill Witkin)

I can’t answer that, because there are no defense counsel on the implementation committees that we have been meeting with to plan Toronto’s CYAC.

 

Judges do want good evidence to come before them.

 

ANSWER:   (Shelley Bykewich)

Defense counsel  know that protocols are in place at Alberta CACs — and that everything that’s coming to court from the CAC is not contaminated.  And, that the rights of the accused are not offended.

 

ANSWER: (Paula Donnachie)

All  CACs must be mindful about the possibility of litigation around record keeping and disclosure of information.

COMMENT:  (Jill Witkin)

Remember – once  the crowns gets something – they have to disclose it to defense.

 

*          *          *

 

QUESTION:  Have there been more guilty pleas in Edmonton, since the CAC there has been operating?

ANSWER:   (Shelley Bykewich)

According to documentation by Zebra – it seems, that there have  been a high number  of guilty pleas and convictions, since the CAC has been active.