Impact Statements at Sentencing: Developments since the Victims Bill of Rights

By Marie ManikisFootnote 21

Introduction

In Canada, while victim and community impact statements (VIS and CIS) have been around for decades, the Victims Bill of Rights ActFootnote 22 (VBRA) amended the Criminal Code of CanadaFootnote 23 (the Code) in 2015 to add new provisions to the existing VIS regime, including forms to specify the content and form of these statements, and introduced community impact statements (CIS) within legislation. This article discusses some of the Canadian legal developments in this area since the enactment of the VBRA and provides an update of national and international developments since the 2012 and 2019 issues of the Victims of Crime Research Digest,Footnote 24 and a previous chapter on sentencing.Footnote 25

1.0 Victim Impact Statements: Recent Guidance from the Courts of Appeal

1.1 Framework

The 2013 BernerFootnote 26 decision by the Court of Appeal of BC sets out a number of key guiding principles and limitations to VIS. Firstly, the Court emphasized that VIS must further the purpose of determining a just sentence by keeping in mind the objectives of sentencing under section 718 of the Code, namely denunciation, deterrence, incapacitation, rehabilitation, reparation, and acknowledgement of harm. Secondly, VIS must not contain material that distracts judges from sentencing, that appears to place value on the life of the victim over that of the offender, or that seeks to compensate grief through the imposition of a harsh sentence. The sentencing judge must be wary of the risk of valuing victims based on the strength of feelings expressed in the VIS. When such information is present, judges can either ignore it or have it excised by consent of Crown and defence.Footnote 27 Finally, since retribution (just deserts) is an important sentencing rationale in Canada, VIS and CIS are relevant tools to assess moral blameworthiness and the seriousness of the offence in crafting a just sentence.Footnote 28

Appellate and trial courtsFootnote 29 have also acknowledged the judiciary’s supervisory role under section 722(2) to inquire whether reasonable steps were taken to provide the victim with an opportunity to prepare a VIS. In Espinoza-Ortega,Footnote 30 the Court of Appeal of Ontario made clear that the trial judge rightly inquired about whether an opportunity was provided to victims to submit a VIS and delayed sentencing to allow the Crown to give the victim this opportunity. Finally in, Boucher,Footnote 31 the Court of Appeal of Alberta stated that the failure of the sentencing judge to specifically refer to each aggravating and mitigating factor, including the VIS, will not require appellate interference if the sentence is otherwise fit.

1.2 A flexible approach to VIS delivery

Prior to the 2015 amendments, the mode of delivery of VIS was not legislatively specified, giving rise to variation. For instance, in MB,Footnote 32 an e-mail was accepted as a VIS, on the basis that the Code allowed for flexibility and that no party objected. In Berner,Footnote 33 however, the British Columbia Court of Appeal concluded that the sentencing judge and Crown erred in allowing a photograph of the child victim and a video of a school performance to be shown. The Court stated that this material heightened emotions, carried the risk of unjust sentencing, and raised the victims’ expectations that the tribute will influence the length of the sentence.

The 2015 Code amendments introduced Form 34.2 and methods of delivery under s. 722(4). These amendments allow for a flexible approach to readingFootnote 34 and various methods of presentation.Footnote 35 In Morgan,Footnote 36 however, the judge made clear that anything beyond the reading of the VIS, such as the use of photographs and video presentations, requires applications, with adequate notice to defence and the judge. Further, the VIS form specifically directs victims that their VIS may include a drawing, poem or letter if this helps them express how the crime impacted them and ancillary victims. Courts have been and continue to be receptive to these different means of delivery, including letters, drawings, poems, and photographs.Footnote 37 For instance, in Holt, the victim wrote a poem described by the judge as “eloquently and graphically”Footnote 38 capturing the impact of the attack on her. Similarly, in Bouffard,Footnote 39 a young girl provided drawings and photographs illustrating her reaction to the loss of her sister. In Angus,Footnote 40 the victim provided a verbal statement to the prosecution, authorized to be presented by the prosecution and considered by all to be a VIS.

The acceptability of videos in the context of VIS remains unclear. As seen in Berner, judges have been reluctant to permit videos due to the heightened emotions involved. However, in Denny in the context of CIS, a judge exceptionally allowed the presentation of videos when necessary “to properly place before the court a window into the community and the impact of the crime on that community.”Footnote 41 In the context of VIS, courts may benefit from the limited research on videos in the United States to determine the risks involved in this method’s emotional appeal.Footnote 42

Finally, further clarification about the requirements of Form 34.2 would be needed. In Solorzano Sanclemente,Footnote 43 the defence objected to the VIS letter suggesting it was not in Form 34.2 as required by section 722(1) and (4) of the Code. The judge highlighted that this was clearly not the intention of Parliament given its recent enactment of the VBRA, which supports flexibility in VIS delivery, and substance rather than form. In its decision in Lacelle Belec,Footnote 44 the Quebec Court of Appeal stated that section 722(4) specifies that the statement needs to be drafted with the 34.2 form with the guidance provided by the BC Court of Appeal in Berner (paragraphs 24-25).

1.3 VIS as aggravating and mitigating evidence?

Most courts across the country have recognized that VIS evidence can be aggravating at sentencing. Appellate courts have either used VIS evidence as an aggravating factor,Footnote 45 or determined that it is not an error in principle for a sentencing judge to determine that the impact of a crime on the victim, as described in the VIS, is an aggravating factor.Footnote 46 It was highlighted that if it were otherwise, VIS would have limited utility and the legislative mandate to consider them at sentencing would be meaningless.Footnote 47

Most judgments at the trial and appellate level have relied on section 718.2(a)(iii.1)Footnote 48 of the Code to justify the use of VIS evidence as an aggravating factor.Footnote 49 In Quash, the Court of Appeal of Yukon specified that this provision requires more than an acknowledgement of harm and judges must consider evidence that the offence had a significant impact as an aggravating circumstance.Footnote 50

Furthermore, courts in several provinces have recognized ancillary harmFootnote 51 suffered by family members (or people who were close to the victim) as aggravating.Footnote 52 Most recently, in Friesen, the Supreme Court of Canada recognized the relevance of VIS ancillary harm in sexual assault of children, highlighting that, “In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the ’best evidence’ of the harm that the victim has suffered.”Footnote 53

In Alberta, the question of aggravation remains unsettled. In Deer,Footnote 54 the Court of Appeal found that the trial judge erred in treating VIS evidence suffered by family members after a murder as an aggravating factor. It remains unclear whether the Court rejects all use of VIS evidence as aggravating or whether this rejection relates only to ancillary harm. This lack of guidance is also present at the trial level. Some judges have found that when the harm described in the VIS is not disputed, the facts in the VIS can be relied upon as aggravating circumstances.Footnote 55 By contrast, in Krahn,Footnote 56 the judge interpreted Deer expansively as prohibiting the general use of VIS evidence as aggravating. Similarly, in Soosay,Footnote 57 it was highlighted that a sentencing judge must consider VIS but approach them with caution and not as an aggravating factor, citing Deer. It argued that sentencing should not depend on the eloquence of survivors’ statements or on whether a VIS was filed at all. In Firingstoney, the judge interpreted Deer more narrowly to prohibit ancillary harm, suggesting that “a family’s loss, conveyed through [VIS], cannot be treated as an aggravating factor at sentencing”Footnote 58 while specifying that this reasoning does not ignore the aggravating factor at s. 718.2(a)(iii.1).

Courts have confirmed that the Crown must prove contested aggravating factors beyond a reasonable doubt. In Racco,Footnote 59 VIS information, containing medical diagnoses and records, was contested and rejected on the grounds that it had not been proven beyond a reasonable doubt. Similarly, in BMS, additional evidence was required to conclude that the level of psychological harm suffered by the victim amounted to a “violent offence” for the purpose of imposing a custodial sentence to a young offender.Footnote 60

This evidentiary burden, however, is required only when the VIS is contested or when there is evidence to the contrary. Indeed, in BRS,Footnote 61 a sexual assault case, the Court of Appeal of Alberta specified that when the impact described in the VIS is not contested and in the absence of evidence to the contrary, VIS need not be proven beyond a reasonable doubt. Judges can rely on them as evidence of the actual impact on a victim of a (sexual) offence,Footnote 62 but can also discount part of it if the judge sees credibility issues with it.Footnote 63 Moreover, in contexts of guilty pleas where the agreed statement of facts and the information obtained by the Crown prior to the guilty plea are inconsistent with the VIS, the VIS is considered disputed and aggravating facts in the VIS must be proven beyond a reasonable doubt.Footnote 64

Case law has also made clear that defence counsel play an important role in monitoring the content of VIS and that failure to raise issues with the VIS should be seen as an acquiescence. Nevertheless, the question remains whether the judge can find credibility issues with the statement when defence does not raise any objections. In Fisher,Footnote 65 the Court of Appeal of BC highlighted that when defence fails to challenge the VIS’s admissibility or to cross-examine victims on their VIS for strategic reasons, then it is incumbent upon the judge to consider the statement in determining an appropriate sentence.

Conversely, in Sayers,Footnote 66 defence counsel did not present any objections related to the VIS, yet the judge raised credibility issues with some aspects of the statement. Ultimately, the judge decided to accept the VIS as an aggravating factor at sentencing, but discounted it to some degree for these issues.

While the question of whether a VIS can be used as a mitigating factor has not been confirmed, appellate cases have considered victims’ views that support mitigation. In Guerrero Silva,Footnote 67 a victim of domestic violence wished that her abusive spouse not be separated from their child. The Quebec Court of Appeal interpreted this as forgiveness and recognized that case law considers this to be a relevant factor. It nevertheless highlighted that care was needed in domestic violence cases to ensure that forgiveness is expressed without undue pressure. The Court also highlighted that sentencing also has a societal denunciatory dimension which goes beyond the interests of the offender and the victim. It ultimately found that the victim’s compassion towards the offender did not stem from external pressure, but that the sentencing judge placed too much weight on her wishes, underestimating the risk of future violence.Footnote 68 Interestingly, the Court did not perceive the victim’s wishes as a sentence recommendation and reminded sentencing judges that victims’ opinions of appropriate sentences are irrelevant and should neither be solicited nor considered.

Further, in HE,Footnote 69 victims of assault and sexual assault in the context of domestic violence indicated in their VIS that they hoped the respondent would get anger counselling. They did not want him incarcerated. Despite this recommendation from some of the victims, their opinion towards mitigation was not relied upon to craft the sentence; instead, the need for denunciation was retained to justify years of incarceration.

These decisions highlight that victims’ wishes are sometimes considered relevant by the courts, but are not determinative when the evidence supports a greater need for denunciation. While the 2015 Codeamendments codify existing case law, which allows victims to provide their views on sentencing in exceptional circumstances, these circumstances are not explicitly specified in the law, which makes it difficult to know which situations may warrant victim opinions.

A favourable reception of victim recommendations can be seen in contexts where victims endorse recommended restorative justice processes within Indigenous communities. In Lariviere,Footnote 70 a case relating to sexual assault, a VIS endorsed the restorative justice process and stated that justice had been served by the criminal conviction without the need for imprisonment. The judge highlighted that ignoring the recommendations of participants within the restorative justice process would “render nugatory the commitment and efforts of all the participants and it would undermine the circle keepers’ goals of having the complainant and Mr. Lariviere continue to work on healing their relationship and act as guides for community members about appropriate behaviour and help other victims in the community to heal.”Footnote 71

Despite the VBRA’s recognition that the victim’s opinion can occasionally be relevant at sentencing, some judges continue to resist the idea of allowing victim recommendations,Footnote 72 particularly when they involve disproportionately severe sentences.Footnote 73 This issue was addressed in BP,Footnote 74 where the judge highlighted that the VBRA does not create a right for victims to recommend sentences, but that recommendations may be admissible if permitted by the court.

It remains to be seen the contexts under which opinions will be relevant. In Bard, the victim’s opinion was heard on the duration of the prison sentence before eligibility for conditional release.Footnote 75 Similarly, in PG,Footnote 76 a case where the victim’s VIS asked for the maximum sentence, the judge stated that while, “judges must be cautious in relying upon victims’ views about the quantum of sentence, our system of sentencing has long invited community input on the issue of whether to delay parole eligibility for certain violent offences (…) and jury recommendations on parole following convictions for second degree murder. In this case, the interests of both society and the victim create a compelling need to denounce the Defendant’s misconduct.”Footnote 77

2.0 Community Impact Statements

The 2015 amendments to the Code included a new CIS statutory provision that recognized their use at sentencing. Since 2015, 77 reported decisions — all but one from trial courts — have discussed CIS.

2.1 What is a recognized community?

Although courts have not explained how to define a community or identify a community’s representative for the purpose of submitting a CIS, they have suggested a generous and liberal interpretation of section 722.2 be given to admitting CISFootnote 78 as this section is “intentionally vague as to the definition of the affected community.”Footnote 79 By reviewing case law, the author has found that discernible communities can be found in case law and generally fall into one of four categories. The first defines the community in relation to a particular neighbourhood, town or geographic areaFootnote 80 and its representative is often a mayor.Footnote 81 The second defines the community in relation to aspects of employment, including the victim’s work colleaguesFootnote 82 or the professional community affected by the offenceFootnote 83 and is typically represented by a supervisor and company representative.Footnote 84 The third category defines the community as a group with a particular identity marker.Footnote 85 Representatives of these communities seem to be either individualsFootnote 86 or organizationsFootnote 87 with identity markers and experience with activism within the community.Footnote 88 The fourth understands communities as individual victims with particular vulnerabilities who cannot be heard at sentencing and thus require proxies.Footnote 89

2.2 CIS Framework

Parliament’s recognition of CIS under the Code intended to give sentencing courts access to broader information about the impact of a crime than what was already available with individual victims.Footnote 90 CIS can provide useful context to properly understand the unique impact of an offence on communities in matters that might not otherwise be appreciable to people who are not from the community, as well as offer a way to discuss the lived experience of certain communities in local contextsFootnote 91 and help understand their needs.Footnote 92

Courts have relied on the VIS framework to interpret the CIS regime, particularly since both VIS and CIS forms in the Code are similarly drafted. As is the case with VIS, CIS must not contain assertions of fact about the offence or offender, comments on the offender’s character, or make recommendations about the sentence.Footnote 93 Inflammatory or problematic comments are usually redacted.Footnote 94 Courts have refused to consider certain forms of evidence as CIS, notably documents that fail to mention anything about the harm or loss suffered by the community, only give general information about the frequency of a class of offences, and do not refer to a specific offence — thus failing to conform to Form 34.3.Footnote 95

Similarly to VIS, courts generally recognize flexible methods of delivery and forms of evidence as CIS, highlighting that form 34.3 of the Code recognizes flexibility by allowing drawings, poems and letters to describe the harm suffered.Footnote 96

In Denny, a local community magazine and a YouTube video montage were presented to illustrate a memorial tribute made by the local community. Despite objections by the defence, the judge accepted these modes of delivery, highlighting that to the extent possible, CIS should be prepared and presented like VIS, but that circumstances may arise where one person cannot fully articulate the impact on the community or that it may be better to communicate this impact in an unorthodox matter.

Further, in Teck Coal Limited,Footnote 97 the judge allowed illustrations by artists to symbolize their relationship with the environment. In addition, statements that discuss systemic issues, such as racism, and calling for systemic changes are considered admissible as CIS.Footnote 98

More recently, surveys by survivors of child sexual abuse and pornography are increasingly admitted as part of CIS to share the collective voice of certain victims,Footnote 99 enabling judges to appreciate the nature and gravity of offences and their impact.Footnote 100 For instance, in AAJT, despite objections by defence about the general nature of these accounts, the judge decided that it offered a fair representation of the community most directly impacted by the criminal activity and was the only practical or realistic way of getting this kind of information before the court, as survivors are unlikely to testify at sentencing hearings about the sexual abuse they suffered and the continuing dissemination of images.

3.0 Developments on VIS in common law jurisdictions

3.1 England and Wales

In England and Wales, PerkinsFootnote 101 clarified the framework and limitations of VIS,Footnote 102 including their purpose, form, and content. This decision is cited authoritatively in many cases and was recently complemented by ChallFootnote 103 and Panta.Footnote 104 Similar to the Canadian approach, VIS constitute evidence and must be legally treated as such. The responsibility for presenting admissible evidence remains with the prosecution, which can be challenged in cross-examination and give rise to disclosure obligations.Footnote 105 Victims have the choice to make these statements and their absence should not be considered as absence of harm.Footnote 106

Greater credibility and weight seems afforded to VIS when medical evidence is presented,Footnote 107 especially evidence supporting psychological harm.Footnote 108 Accordingly, statements may contain facts, expressions of a deeply personal nature, and other incontrovertible evidence.Footnote 109 The Court pointed out in Chall that there is always a risk that the raw emotion expressed might be exaggerated or unintentionally overstated. The Court also stated that if a judge is going to rely on a statement of this sort to justify a leap in the categorization of a sentence, then this needs to be explained in the sentencing remarks.Footnote 110 Similarly, in Panta, the Court made clear that judges need to explain steep increases in sentences when relying on statements that are not supported by further evidence in order to ensure that they are not afforded disproportionate weight. Failure to provide such explanations resulted in a successful appeal even if the statement was well written.

Although victim opinions regarding the sentence are irrelevant under the Crown Prosecution Service guidelines,Footnote 111 some cases have considered victims’ merciful views as mitigating.Footnote 112 Similarly, in Roche, the Court of Appeal suggested that a court can never become an instrument of vengeance, but can “in appropriate circumstances, to some degree, become an instrument of compassion.”Footnote 113 Finally, in Perks, the Court of Appeal stated that victims’ opinions should generally not be considered, except (i) where the sentence passed on the offender is aggravating the victim’s distress, and (ii) where the victim’s forgiveness provides evidence that their psychological or mental suffering must be much less than would normally be the case.Footnote 114

3.2 Australia

In Australia, recent case law has also addressed evidentiary issues related to aggravation, agreed facts, the distinct language of VIS, and the consideration of ancillary harm. On certain issues, it appears more restrictive than case law in Canada.

As in Canada, Australian courts require proof beyond a reasonable doubt when the VIS contains contested aggravating evidence.Footnote 115 When the defence does not contest, there is generally no difficulty if the Court relies on VIS information confirmed by other sources. Problems arise when the defence does not contest, but evidence is adduced that can significantly aggravate the sentence. In these situations, judges are instructed to notify the defence and allow an opportunity for challenge.Footnote 116 This greater judicial intervention departs from the adversarial model and is not seen in other common law jurisdictions.

Further, in Gagan,Footnote 117 the court made clear that there can be difficulties in the use of VIS where their content is the only evidence of harm — cautioning against the use of their content as an aggravating factor. The importance of corroboration was highlighted in Hardwick.Footnote 118 Accordingly, failure to corroborate with expert evidence, reports or other evidence would need to be met with a degree of circumspection, especially in matters of psychological injuries.Footnote 119 It was also argued that aggravating evidence needs to establish substantial additional harm over and above that which is inherent in the offence.Footnote 120

In Dimitrovska,Footnote 121 the Court of Appeal highlighted the subjectivity of VIS and stated that they can only be used to provide information about the general effect of the injury, rather than about more specific effects. When more specific elements are adduced, such as prognoses, evidence from a qualified expert is necessary. Further, it was decided that VIS would lose much of their force and benefit if expressed in language used by lawyers. It is therefore acceptable for VIS to be imprecisely or ordinarily expressed.

Finally, as with some of their Canadian counterparts, Australian courts highlighted the importance that VIS be consistent with facts agreed to by the parties and with the charges laid.Footnote 122 They also recognized ancillary harm and expandedFootnote 123 its recognition beyond cases of homicide. Courts held that, given the broad definition of harm, the statute includes the harm suffered by a family of a young child who is the primary victim, even if death has not occurred.

3.3 United States

The American VIS regime has notable differences from most common law jurisdictions. In Bosse,Footnote 124 the Supreme Court considered it an error to allow victim recommendations to the jury about the sentence in a death penalty case. This question remains unsettled, since a State Supreme CourtFootnote 125 held that Bosse does not apply to noncapital proceedings. It stated that the dangerous uses of a victim’s recommendation by a jury in a capital murder trial are not present in noncapital sentence proceedings before a neutral and impartial judge. If this approach were to apply, it would differ from common law jurisdictions that generally do not allow for sentencing recommendations.Footnote 126

Recently, in George,Footnote 127 and contrary to most of the common law, the judge decided that disclosure of the VIS to the defendant was not required and thus defendants are not entitled to review VIS in advance.

Finally, it was recently held that a sentencing judge has broad discretion to admit and consider victim evidence in forms outside of the bounds of VIS and victim impact testimony.Footnote 128 Contrary to the ambiguity in Canada, the judge made clear that videos are part of these accepted forms.

Conclusion

In conclusion, domestic and international case law has evolved considerably since the enactment of the VBRA, which introduced the Canadian Victims Bill of Rights and made many amendments to the Code. Although courts have offered some clarity throughout the years regarding the recognition of VIS and CIS as evidence, additional guidance and greater consistency across the provinces would be helpful. Further reflections and research on conceptions of harm, assessing credibility, and the impact of emotions in the criminal process would contribute to a better understanding of victim and community participation in the criminal process.

Table of Cases

References