Victims of Crime Research Digest, Issue No. 5

Victim Impact Statements: Recent Guidance from the Courts of Appeal

Marie Manikis is a member of the Quebec Bar and a DPhil (PhD) candidate at the Faculty of Law, University of Oxford, in Oxford, England.

Julian Roberts, PHD is Professor of Criminology at the Faculty of Law, University of Oxford, in Oxford, England. His research areas include sentencing, victims, criminal justice, and public opinion.

Although crime victims in all common law countries have a right to file a victim impact statement (VIS) to assist a court at sentencing, Canada is the jurisdiction where there has been the most research and judicial attention to the VIS.Footnote 1 Judgments shaping the use of VIS have been emerging from courts across the country for years now (Katz 2009). Most of these judgments clarify the nature and role of victim impact evidence at sentencing and contribute to the evolution of VIS in this jurisdiction. They also re-affirm the status of the victim impact statement as an important element of sentencing in Canada. However, despite the important guidance provided by appellate courts in recent years, certain evidentiary questions remain to be clarified by the courts. In this brief article, we comment upon recent (2010 to present) decisions from appellate courts in several provinces. It is significant that most of the new cases deal with serious personal injury offences, often sexual aggression. This reflects the significance of the VIS for such offences.

Who is a victim?

Several recent judgments address the role of secondary victims, usually family members of primary victims. The jury in Cook returned a verdict of manslaughter where the indictment charged first-degree murder. Cook had had an intimate relationship with the victim for a protracted period, and he therefore was aware of the consequences for third parties of any harm inflicted on the direct victim. The trial judge imposed a custodial term of 12 years. The Court imposed a sentence in what may be described as “high-end” manslaughter, due to the influence of several aggravating factors. Although no victim impact statement had been filed according to the requirements under section 722(2), the trial judge exercised his discretion under section 722(3) to consider the written evidence filed by the victim’s daughter before the sentencing hearing and allowed her to read it before the court. Her testimony made it clear that the homicide, in addition to the death of the direct victim, had inflicted lasting harm upon many other individuals. With respect to victim impact, the trial judge noted the following: “I have decided to take into account, as permitted by section 722(3) of the Criminal Code, the impact of the homicide upon the close relatives of the victim.”

The critical question in this judgment was whether the additional harm visited upon other victims and documented in the impact statement constitutes a legitimate aggravating factor. Writing for the Quebec Court of Appeal, Associate Chief Justice Hilton concluded that “the trial judge committed no error in making use of [the victim’s daughter’s] statement to reach a conclusion that the devastating effect of [the victim’s] death on her immediate family constituted an aggravating factor.” The decision in Cook provides an unambiguous affirmation of victim impact evidence as a source of aggravation at sentencing.Footnote 2

In Johnny, the accused, who was a member of an Aboriginal community, was convicted and sentenced for aggravated assault (after placing his victim in a coma and on life support) as well as robbery of a jewellery store. When assessing the harm, the sentencing judge made reference to the impacts of the aggravated assault upon the victim and his family members, including the victim’s children and his retired mother and father on “whom a significant care burden has now been placed with respect to [victim] Randall Cote.” The sentencing judge also referred to the victim impact statements provided by the clerks who worked at the store and by the store owner who had been present during the robbery. The defence appealed the sentence suggesting that the sentencing judge erred in failing to expressly have regard at sentencing to the Aboriginal circumstances of the accused. The appeal, however, was rejected.

For the purposes of submitting a VIS, courts have adopted a wide definition of victims, which not only includes the immediate victim of the crime. For example, in these two cases, the ancillary harm suffered by family members is unambiguously treated as relevant evidence at sentencing.

Lessons for Counsel: Object now or forever hold your peace…

Recent decisions also have consequences for criminal practitioners. One of the lessons of Revet and R. v. G.(K.) concerns the role of counsel with respect to a victim impact statement. These two decisions make it clear that defence counsel should examine the VIS carefully, with a view to establishing whether there is any content to which objection should be made or which may require cross examination of the victim. In Revet, the VIS contained information which the appellant asserted went beyond the proper scope of the VIS,Footnote 3 yet defence counsel had not contested these matters. The majority of the Saskatchewan Court of Appeal ruled that by failing to object to elements of the VIS, defence counsel were held to have assented to the contents of the VIS which ultimately affected the sentence imposed. In a lengthy and robust dissent in Revet, Jackson, J.A., took a different view. The dissenting opinion affirms the position that the VIS cannot be used to supplement the facts presented by the Crown, and that defence counsel’s failure to object to the contents of the VIS did not transform those contents into probative evidence.

However, both the majority and dissenting opinions re-affirm the position that within an adversarial model, facts relevant to sentencing must derive directly from the parties, and not from other sources such as a victim impact statement or a pre-sentence report. This position also finds support from Dunn, a decision from the British Columbia Court of Appeal. In this case, the Court had been influenced by the VIS to impose a restitution order. The trial judge’s restitution order was prompted by his consideration of the victim impact statement and not as a result of a request from the prosecutor. The order was therefore “an afterthought made without the benefit of full argument”; the judge simply pronounced the order without exploring the offender’s ability to pay or resolving how the order fits in with the other aspects of the sentence. Accordingly, the appeal was dismissed and the restitution order set aside.

R. v. G.(K.) goes a step further than Revet or Dunn. The Crown in this case had conceded that sections of the VIS exceeded the scope of the VIS and should have been excised or ruled inadmissible. Defence counsel failed to object to these sections despite having ample opportunity to do so. This failure was interpreted by the Ontario Court of Appeal to vitiate any claim that the sentencing hearing was unfair. Taken together, these three judgments further establish the status of the VIS as an important element of sentencing in Canada and also reaffirm the role of counsel within the context of an adversarial proceeding. Further­more, they clearly suggest that the content of VIS cannot be challenged on appeal if it was not contested during sentencing.

In R. v. M. (W.) the British Columbia Court of Appeal (BCCA) took a somewhat different approach to the VIS. The appellant appealed a five-year sentence imposed for two counts of sexual assault against his stepdaughters. One ground of appeal was that the Court had admitted victim impact statements without allowing cross-examination to establish the veracity of their contents. The BCCA ruled that the statements were “not tendered for their factual truth; they are expressions of the emotional impact and the other effects these offences had on the complainants, and as such, the appellant’s disagreement with some of their contents does not raise any reviewable issue on appeal.” This may suggest that the VIS carries no evidential value, but merely rounds out the Court’s understanding of the consequences of the offence, which would inevitably diminish the need for defence counsel to contest the content of these statements.

The Content, Role and Limits of VIS in Sentencing

The VIS regime in Canada (and all other common law countries except the US; see Roberts 2009) does not permit victims to make recommendations for sentencingFootnote 4; it is well established in the case law now that if comments are expressed as to the appropriate sentence, these should be excised by the Crown.Footnote 5 In the event that they are expressed without warning in oral delivery of the VIS, they should be set aside by the Court.Footnote 6

In Penny, the appellant contended that the Court had improperly considered information in the VIS which was not part of the victim’s testimony. The New Brunswick Court of Appeal reaffirmed the position that the VIS should be restricted to the limits set out in the Criminal Code provisions, namely to provide a description of “the harm done to or loss suffered by the victim” (s. 722(1)). The inference from this judgment is that had the VIS contained extraneous information which had a material impact upon the sentence it would have constituted reversible error. In Penny, however, the contentious passage did not contain such information; it merely elaborated on the circumstances in which the offence was committed.

Woodward, a very recent judgment from the Ontario Court of Appeal, provides another example of the importance of the VIS in establishing, for the purposes of sentencing, the harm caused by the offender. In dismissing the appeal against the sentence, the Court noted that “the victim impact statement filed by the complainant speaks to the immediate harm she suffered.” The judgement then describes some of the contents and provides quotes from the VIS.

Furthermore, in Arcand, the Alberta Court of Appeal also confirmed the importance of VIS in assessing harm. In a case where no VIS was submitted, the Court noted the difficulty in assessing harm without any references being made to the circumstances of the complainant. The appellate court stated that a VIS contributes to the full appreciation of the facts and “mitigates the risk that the focus in sentencing will be on the offender only.” Thus, the Court of Appeal stressed the importance of the duty to inquire into the opportunity to prepare a VIS under section 722.2, to ensure that victims were informed of their “right” to make a VIS, which had not been mentioned by anyone in the sentencing hearing, including Crown counsel. Accordingly, the Court clearly articulated that “the sentencing judge should ensure that the complainant has been properly informed, whether by Crown counsel or otherwise, of the right to make a victim impact statement.”

Similarly, the New Brunswick Court of Appeal in Steeves reasserted the importance of victim impact statements and the relevance of harm in joint submissions and sentencing, but placed limits on its power to influence on sentencing.Footnote 7 In this case, the accused, a recovering drug addict, pleaded guilty to theft, fraud and breach of undertaking towards her employer and repeatedly towards her parents. The parties in this case presented a joint submission suggesting that the accused be sentenced to two years of imprisonment, but the trial court, merely relying on the harm described in the victim impact statements, ruled that the proposed sentence was not long enough and sentenced the accused to forty-eight months of imprisonment, in addition to the three months spent in jail on remand. The accused appealed the sentence, and the appellate Court set aside the trial court’s decision, replacing it by the cumulative two-year jail term, initially proposed in the joint submission. The appeal was granted on the basis that the trial judge “was overwhelmed by the victim impact statements’ poignant account of the misery suffered by the appellant’s parents” which “overshadowed the several mitigating circumstances revealed by the record.”

The appellate court in this case underlined the importance of victim impact statements by suggesting that they have “a significant role to play in the imposition of a sentence,” but noted that they cannot be allowed to determine the process by overturning the joint submission. In other words, whilst VIS are important and useful in assessing victim harm, they should be considered along with all other relevant factors when determining a sentence.

Finally, in Tejeda-Rosario, the Ontario Court of Appeal dealt with a relatively rare situation involving both civil and criminal proceedings to suggest that a civil suit does not affect the importance of a VIS at sentencing. The offender was a psychiatrist who had been convicted of two counts of sexual assault against one of his patients. The trial court had taken the position that the civil suit drained the VIS of any significance as a consideration in the determination of sentence. The Court of Appeal rejected this view, noting that the psychological harm arising from the offence—and giving rise to the civil suit—was also properly a matter for the sentencing judge in the criminal proceeding.

These recent cases unambiguously confirm that VIS are relevant at sentencing to assess and understand the harm victims have suffered as a result of the offence. They also recognise the limits of VIS regarding their content and their weight at sentencing. Despite reaffirmation of the status of VIS as an important element at sentencing, courts have yet to establish in an unambiguous way the role and impact of VIS at sentencing. Whilst some decisions above consider VIS as probative evidence which can affect the sentence (see, for example, R. v. Cook and Revet), others suggest that it is merely an expression of the emotional impact the offence has had on the victim, which can help the judge understand the consequences of the offence (see, for example, R. v. M. [W.]). The nature of VIS can have important consequences on all involved individuals in the process,Footnote 8 and thus specifying its exact nature would contribute to greater clarity in sentencing on whether cross-examinations regarding the VIS are accepted or not in Canada.

Conclusion

This brief overview of the recent case law suggests that in recent years, Canadian appellate courts have reflected on the definition of victims, the nature and content of VIS. Whilst all cases have underscored the importance of victim impact statements as well as their limits in sentencing, some ambiguity still remains with regards to the nature of the information contained in these statements. Most cases have treated this information as evidence of harm, but others have suggested that the expression of emotional harm carries no evidential value, and should merely be used by judges to understand the consequences of the offence. Furthermore, some of these cases suggest that the use of the VIS provisions impose positive duties on the actors within the process: prosecutors have a duty to inform victims about the opportunity to make a statement and disclose the victim impact statement prior to trial (see Lonegren), and judges are to inquire as to whether this duty was respected and take the VIS into account during the determination of the sentence. Finally, to adequately defend their clients’ interests, defence counsel also have an important duty to verify the contents of the VIS and object to any irrelevant or inadmissible elements before the sentencing decision is made.

References and Recent VIS-related Publications

Cases Cited