On December 2, 2014, a judge in an Alberta courtroom allowed a specially trained type of therapy dog, known as a trauma dog, to assist a young girl while she gave evidence at a sexual assault trial. This was a first in Canada. Later that week it is expected that her brother will take the stand to give evidence at the trial and the dog will be sitting next to him for comfort as well.The prosecutor in the case made the application to allow the dog to assist the child witnesses, and the accused’s lawyer did not oppose it.
As we have written about in recent weeks, Canadian courts and lawmakers have been moving towards making things easier on those who have come forward with allegations of a sensitive and/or sexual nature.
There are a few other court procedure exceptions potentially available to children and vulnerable witnesses in trials where the allegations are of a sexual nature, and they have been in existence in the Criminal Code of Canada for some time. These include allowing the witness to give their evidence from behind a screen, or by video from another courtroom, so that the witness does not have to see the accused while they are giving evidence. Also, for a child witness, a video recorded statement taken from them shortly after the incident may be entered as evidence, if a judge is satisfied of certain conditions. This exception to the normal process, is especially helpful for very young witnesses who may have forgotten the incident in the intervening time. Another exception is that although normally an accused has a right to face his accuser by personally cross examining him or her, when the allegations are of a sexual nature a judge will likely order that the accused cannot personally cross examine the complainant.
Previously, under sections in the Criminal Code, Canadian courts have allowed children and vulnerable witnesses to have a support person to be present and close to a witness while the witness gives evidence. Proponents of therapy dogs argue that children have an inherent trust of animals and animals make the experience even easier on them than the presence of a counselor or other assistance person. While even the dog’s handler, Sgt. Brett Hutt, agrees that there is “no science to it”, it seems intuitive that the presence of a dog may make the experience of giving evidence easier for some. As a lawyer, it seems that the interests of justice possibly may be better served by the presence of a therapy dog as opposed to a support person. A child or vulnerable witness may look at a support person for assistance with their evidence, or alter their evidence (even inadvertently or subconsciously) due to the close presence and perceived expectations of a support person with whom they have a relationship. A therapy dog allows a vulnerable witness to be comforted without attaching any of the baggage that may come along with a human support person.
There are some potential trial fairness concerns with allowing therapy dogs to be involved in trials. In a jury trial, emotions and sympathies of members of the jury towards child witnesses are already high. A child witness giving evidence with a dog may make it nearly impossible for jurors to separate their emotions from the situation and give the evidence a dispassionate evaluation. In the Alberta case there were reports that the girl was actually hugging the dog at one point during her evidence. That is a powerful emotionally charged image. There is a reason why animal videos go viral, and why we would be smart to post a picture of a dog with blog. People love animals and they elicit emotional response. Even in a case being heard by judge alone without a jury, this imagery and its associated response may be too difficult for even judges to set aside.
Another potential concern is that at the end of the day, the therapy dog in this case is a police dog. It has a uniformed police handler. The use of a police dog in a courtroom to assist a witness may give jurors the message that the police support the evidence being given by the witness, and that it is therefore more worthy of belief.
For better or worse, it seems that, at least for the time being, therapy dogs are a part of the Canadian courtroom landscape. I just hope when they are involved in trials the dogs can take their bathroom breaks on the same schedule that is already set for the human participants.