Victim Impact Statements in a Multi-Site Criminal Court Processing Survey

Melissa Lindsay

The Victim Impact Statement (VIS) provision has been in the Criminal Code since 1988 and has been amended several times in the past two and a half decades (see Roberts 2008). It is the one provision that applies to all victims, regardless of whether or not they testify during a trial. Bill C-32, the Victims Bill of Rights Act, introduces amendments that will clarify the parameters of appropriate VIS content, enable vulnerable victims to present a VIS using testimonial aids, broaden its use to formally allow Community Impact Statements to be presented for all offences, and codify a standard form to be used across Canada.

Canadian research on VISs has shown that they are submitted to courts infrequently. For example, in a survey of judges in three Canadian provinces, Roberts and Edgar (2006) found that judges estimated that they were receiving a VIS in only 8% of cases in BC, 11% in Manitoba and 13% in Alberta. Similarly, a study by the same authors in 2002 found that Ontario judges estimated that victim impact statements were submitted in only 11% of cases.

The purpose of this article is to provide additional insight into the use of victim impact statements in Canadian criminal courts. Court data collected by Statistics Canada does not include any victim-related data, such as whether a VIS was submitted and delivered or whether witnesses used testimonial aids. Consequently, there are no national data, and estimates on the prevalence of VIS are estimates, as with the surveys of judges noted above. This article describes data collected on victim impacts statements from a multi-site criminal court processing study that assessed court and Crown prosecutor files for criminal cases that were closed in 2008.

Methodology

The primary goal of the study was to measure effectiveness and efficiency in the criminal justice system by gathering information pertaining to appearances and duration of cases. Information was collected on cases from provincial court and Crown files in cities in five sites in four provinces: Saskatchewan, Nova Scotia, Prince Edward Island and British Columbia. Footnote 1 Case information was collected for each stage of the criminal justice system, from first appearance to sentencing. Specific information regarding victims involved in the case was collected, including whether victims submitted a VIS. In total, data were collected on 3,093 cases.

Case information was collected for each stage of the criminal justice system, from first appearance to sentencing. Specific information regarding victims involved in the case was collected, including whether victims submitted a VIS. In total, data were collected on 3,093 cases.

Case information was collected for each stage of the criminal justice system, from first appearance to sentencing. Specific information regarding victims involved in the case was collected, including whether victims submitted a VIS. In total, data were collected on 3,093 cases.

In this study, a VIS was flagged if one had been recorded or produced, as noted in a Crown/prosecution file. Even where a VIS may have been flagged, there is no guarantee that the sentencing court in fact considered it. As such, all that is known is that a VIS had been produced and placed on file.

In addition, even where a VIS was considered, it is unknown how it was presented to the court. Although the VIS is always submitted in writing, it can be received in different ways, such as being read silently or out loud by the judge, out loud by the Crown or a representative of the victim, or by the victim him or herself. In many jurisdictions, victims are encouraged to submit their VIS as soon as possible, often in a sealed envelope, which will be included in the court file and only opened if there is a conviction. In some of the files reviewed for this study, there would have been a VIS, even where there was no conviction. Because a VIS is only considered in cases where there is a conviction, these were the cases that were selected for the analyses described below.

Two separate databases were created, which allowed for an exploration of victim-related information. The first database included all of the victim-specific variables that were collected. A victim was flagged and included if the victim-specific section of the multi-site survey was completed, even if data were missing. It is important to note that it is possible that other cases may have included victims, but if this information was not available in the files, the case would not have been included in the analyses. This database captured data on all of the victims in the cases and allowed for analyses of multiple victims in one case. In total, data were collected on 1,586 victims.

The second database included all of the case-related information and was analyzed in the context of the case. In this database, in order for a case to be flagged as having a victim, at least one of the victim-specific items in the multi-site survey had to have been coded as a “yes”. As above, it is possible that a case may have involved a victim, but it may not have been captured if this information was missing. As a result, the information presented is likely an undercount of the true number of victims involved. Moreover, this database only captured one victim per case. In total, data were collected on 1,316 victims. Fewer victims were accounted for in this database compared to the victim-specific database as it was not possible to account for multiple victims.

Findings

Victim Impact Statements from the Perspective of the Victim as the Unit of Analysis

VISs were explored from two perspectives: where the unit of analysis is the victim and where the unit of analysis is the case. This first section explores the use of the VIS from the perspective of the victim in terms of injuries experienced by victims, the relationship between the victim and the offender, and the gender of the victim.

In the database of the victim-specific variables that were collected, there were 1,005 cases in which there was a conviction. In 975 cases there was a finding of guilt, and in 30 cases there was a finding of guilt or guilty of a lesser or included offence. There were no cases in which there was a suspended sentence.

Overall, 93 VIS submissions were made in the 1,005 cases in which there were convictions (9%).

First, the submission of a VIS was explored in terms of the most serious injury suffered by the victim. Almost two-thirds (65%) of the VISs were made in cases in which the victim suffered no injury or only minor physical ones for which no professional medical treatment was required (scratches, bruises, etc.). This does not mean that there was no psychological or emotional impact; indeed, a family member of a homicide victim may not have experienced physical harm himself or herself, but might well wish to submit and deliver a VIS to describe the emotional impact of this incident. Sixteen percent of the VISs were made in cases where there was a major physical injury that required medical treatment. The remaining 19% were made in cases where there was damage to property or possessions.

The submission of VISs was also explored in terms of the relationship between the victim and the accused. VISs were most likely to be delivered by victims who were strangers to the accused (39%), followed by former spouses/common-law/intimate partners (22%) and those with an “other” Footnote 2 relationship with the offender (11%). The remainder came from victims who were a current spouse/common law partner (8%), friend (8%), business or corporation (7%), or other family member (5%).

The gender of the victims who submitted victim impact statements was also considered. Nearly three-quarters (71%) of the VISs were submitted by female victims.

Victim Impact Statements from the Perspective of the Case as the Unit of Analysis

The second section explored the delivery of VISs from the perspective of the case as the unit of analysis. This section explores the submission of victim impact statements as a function of the most serious offence in the case, the most serious outcome, and the most serious sentence imposed on the accused.

In the database of the case-specific information, there was a conviction and a victim in 828 cases. There were 790 cases in which there was a finding of guilt, 23 cases in which there was a finding of guilt or guilty of a lesser or included offence, and 15 cases in which there was a suspended sentence.

Victim impact statements were submitted in 90 of the 828 cases (11%) in which there was a victim and a conviction. This finding is consistent with research on judges’ estimates of the prevalence of VIS in certain jurisdictions (Roberts and Edgar 2002; 2006).

As can be seen in Table 1, the highest proportion of VISs were submitted in cases in which the most serious offence was a violent one, including Assault Level 1 Footnote 3 (23%), Assault Level 2 Footnote 4 (21%) and Other violations involving violence or the threat of violence (18%), which includes uttering threats and criminal harassment.

TABLE 1. MOST SERIOUS OFFENCE BY DELIVERY OF VICTIM IMPACT STATEMENT Footnote 5
Most Serious Offence Victim Impact Statement

Assault Level 1

21 (23%)

Assault Level 2

19 (21%)

Other violations involving violence or the threat of violence

16 (18%)

Other property offences

9 (10%)

Break and enter

3 (3%)

Robbery and Extortion

5 (6%)

Administration of justice offences

3 (3%)

Traffic Violations

5 (6%)

Sexual Assault Level 1

2 (2%)

Other sexual violations

0 (0%)

Assault Level 3

1 (1%)

Fraud

2 (2%)

Probation and Bond Violations

2 (2%)

Offences causing death

1 (1%)

Other assaults

1 (1%)

Drug Offences

0 (0%)

Violations resulting in the deprivation of freedom

0 (0%)

Firearms and weapons offences

0 (0%)

Sexual Assault Level 3

0 (0%)

Other Criminal Code Violations

0 (0%)

Total

90 (100%)

The submission of a VIS was also examined in regard to the most serious sentence the accused received. As shown in Table 2, the most serious sentence that was imposed most often in cases in which a VIS was submitted was a custodial sentence (38%), followed by probation (28%) and a conditional sentence (11%). Other most serious sentences imposed in cases in which a VIS was submitted included a fine or restitution (10%), a suspended sentence (6%), and a conditional sentence (5%), and one case each for conditional and absolute discharge, respectively.

TABLE 2. MOST SERIOUS SENTENCE BY DELIVERY OF VICTIM IMPACT STATEMENT
Most Serious Sentence Victim Impact Statement

Custody

31 (38%)

Probation

23 (28%)

Conditional Sentence

9 (11%)

Fine/Restitution

8 (10%)

Suspended Sentence

5 (6%)

Conditional Discharge

4 (5%)

Absolute Discharge

1 (1%)

Other (Prohibition, Alternative Measures)

1 (1%)

Community Service

0 (0%)

Total

82 (100%)

Conclusion

The data analyzed show that the proportion of VISs submitted in these cases is similar to what has been estimated by judges surveyed in previous studies. Depending on the unit of analysis (victim or case), the percentage of VISs submitted in cases where there was a victim were low at 9% (victim analysis) and 11% (case analysis).

These data show that VISs were submitted mostly in cases in which the victim sustained no physical injuries or only minor ones. In addition, VISs were most commonly submitted in cases where the accused was a stranger to the victim, and most of the victims who submitted VIS were female.

It was also possible to consider VISs from the case perspective. These analyses revealed that VIS were most often submitted in cases involving a violent offence. This is consistent with the findings from Roberts and Edgar’s surveys of the judiciary (2002; 2006). In addition, more than half of offenders received either a custodial sentence or probation.

While this information does shed some light on the use of VISs in Canadian courts, it also has its limitations. For example, the data represent only a portion of the cases that are seen in criminal courts in Canada, so the findings cannot be generalized to all provincial court cases. Moreover, a large amount of data on one jurisdiction was missing, which in turn likely decreased the number of cases that could be examined in the data with VIS-related information. The data also did not capture how VISs were delivered, as it only captured cases in which a VIS was on the court file. This information would be useful as there is little understanding of how the VIS is being used by victims at sentencing.

As noted in the introduction, the VIS is the one provision that applies to all victims, regardless of whether they testify during a trial or not, and is one of the primary ways in which victims can participate in the criminal justice process. With the Victims Bill of Rights, it will be even more important to understand how often victims are exercising their right to participation.

References

Melissa Lindsay, MA, is currently with Aboriginal Affairs and Northern Development Canada. Her article was prepared in her capacity as a researcher with the Research and Statistics Division, Department of Justice Canada, in Ottawa.