Victim Participation in the Plea Negotiation Process in canada

5. Victim Participation In The Criminal Justice System: The Precedent Of Victim Impact Statements In the Sentencing Process

5.1 Are Victim Impact Statements a Vehicle for Revenge?

During the final quarter of the twentieth century, a mounting concern for the degree of frustration expressed by many victims of crime led to the development of policies that were explicitly designed to enhance the nature and scope of victim involvement in the criminal justice process (Erez, 1990, p. 20; Finn–DeLuca; 1994, p. 404; & Tobolowsky, 1999, pp. 21–30). In addition to the expansion of victim–compensation schemes, various Canadian jurisdictions implemented "victim–witness programs, social service referral programs, crisis intervention programs, victim advocacy programs and victim–offender mediation programs" (Young, 2001, p. 1). Certainly, one of the most visible – and dramatic – elements among this series of reforms was the introduction of the victim impact statement as a form of direct participation in such critical phases of the criminal justice process as sentencing and parole (Erez, 1990, p. 19; Erez & Roeger, 1995, p. 364; Tobolowsky, 1999, p. 3). [27]

It might well be argued that a logical "next step" along the road to reform would be to make legal provision for the involvement of victims in the process of plea negotiations. In the Canadian context, the participation of victims in plea bargaining would, of course, constitute a leap into uncharted waters. In order to assess the potential impact of such a significant reform on the functioning of the criminal justice process, it would be fruitful to examine relevant aspects of the Canadian experience with the use of victim impact statements within the confines of the sentencing process. This experience may provide a valuable basis for making projections as to the likely impact of victim participation in plea bargaining on the levels of victim satisfaction with the criminal justice process. Similarly, the debate surrounding the current use of victim impact statements by trial courts in Canada highlights a critical issue, that must be addressed by those who would seek to implement a policy of victim participation in plea bargaining – namely, what is the appropriate weight that should be accorded to victims' wishes and perspectives by prosecutors and judges in Canada?

5.1 Are Victim Impact Statements a Vehicle for Revenge?

There is little doubt that victim impact statements may chronicle a pattern of suffering that is certain to elicit a strong feeling of sympathy for the victim within the courtroom, where sentencing takes place. Indeed, some of the statements made by victims may legitimately be labeled "horror stories." For example, in the case ofJiany–Yaghooby (1998), the accused set the family house on fire, thereby causing his daughter to suffer injuries that inflicted permanent and severe brain damage. The accused also tried to kill his wife by striking her with a hammer; fortunately, she escaped serious injury. The trial judge referred to the victim impact statement insofar as it dealt with the consequences for the daughter:

Words are not adequate to convey how this otherwise attractive, vital, and energetic young woman is now destined to live out whatever is left of her life span. (para. 8)

In her victim impact statement, the accused's wife briefly described her pain and suffering in the following, poignant terms:

Although I am still alive, I feel I am dead. My life is over. I am alive just for my children, otherwise there is no point of living like this. (para. 9)

In a similar fashion, one of the victims in the case of Bates (2000), described the nature of the impact that the crime (criminal harassment) had made upon her life:

You ask how this has affected me. It has affected my whole life and probably will for a long time. Our sleeping patterns still haven't returned to normal and I still feel we must be on the look out as deep down I know it isn't over and won't be for a long time. We are going to change a lot of things in our lives, although we aren't running scared out of town yet. I am changing my license plates, our phone number and anything personal that he may know about. We still must run the store and things must go on but now we have to do it via a secret code just to keep us safe. (para. 33).

Finally, in R. v. Dale (1998), Madam Justice Stromberg–Stein of the Supreme Court of B.C. explicitly stated that a "significant aggravating factor" in this case was the "devastating impact that the offence" had on the young victim. The accused – a taxi driver – had sexually assaulted a seventeen–year old female, who was celebrating her graduation from high school. In the words of the trial judge:

A night of celebration turned into an unspeakable nightmare from which the complainant has not recovered. Not surprisingly, she is emotionally scarred, suffers nightmares, and fears being alone (para. 19).

It is of particular significance that the victim impact statement had graphically detailed the extent to which the sexual assault on the complainant had "wrought havoc on (the victim's) life, created problems in all aspects of her life" (para. 8).

The powerful effect that may be triggered by the reception of a victim impact statement in the courtroom has raised some fundamental concerns as to the appropriateness of granting the victim a central role in the sentencing hearing. Indeed, there have been some commentators who have questioned the desirability of permitting victims to influence the outcome of the sentencing process: for example, it has been suggested that victim impact statements "appear to be a symbolic and punitive reform" (Roach, 1999, p. 292). Viewed through this particular lens, an increased level of victim participation during criminal court proceedings has been strongly associated with a sharp focus on retributive sentencing policies (Erez & Rogers, 1995, p. 365). Indeed, some authors have suggested that victim participation in the sentencing process is ultimately designed to produce harsher sentences (Murphy, J. 2000, p. 131; Smith, Watkins & Morgan, 1997, p. 61; Roach, 1999, p. 31; Stevens, 2000, p. 3; Tobolowski, 1999, p. 81; and Young, 2001, p. 15). Furthermore, it has been contended that victim involvement in the sentencing process has opened the door to significant disparities in the dispositions meted out to offenders (Hall, 1001, p. 223).

Some of the more passionate critiques of the use of victim impact statements by the courts have articulated the concern that an increased degree of victim participation may result in a courtroom environment in which raw "emotion" overwhelms cautious "reason" (Donahoe, 1999, p. 3; Erez & Roeger, 1995, p. 366; Murphy, 2000, p. 131; and Rapping, 2000, p. 280). Illustrative of this form of critique is the contention that, in some cases at least, the victims' display of "grief" constitutes no more than a mask to conceal "cold brutality" – namely, revenge (Rapping, 2000, p. 679).

This stream of disparaging commentary concerning the acceptability of incorporating victim impact statements into the criminal trial process has undoubtedly forced Canadian courts to address the "perplexing question of how to reconcile retribution with our moral aversion to vengeance" (Young, 2001, p. 14). Essentially, the courts appear to have espoused the view that, while retribution constitutes a significant – and legitimate – goal of sentencing, vengeance does not. [28]

The essence of this approach took firm shape in the decision of the Supreme Court of Canada inR. v. M (C.A.) (1996) (see, Manson, 2001, pp. 36–37). Chief Justice Lamer, in delivering the judgment of the Court stated that:

Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian Law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. (para. 79).

However, Chief Justice Lamer proceeded to emphasize that there is a world of difference between "vengeance" and "retribution." In his judgment, he unequivocally proclaimed that "vengeance has no role to play in a civilized system of sentencing." [29] Significantly, the line between "vengeance" and "retribution" was relatively simple for the Chief Justice to draw:

Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk–taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. (para. 80).

In R. v. Morrisey (2000), Justice Gonthier – on behalf of the majority of the Supreme Court of Canada – strongly re–affirmed the importance of the principle of retributive justice in the Canadian sentencing system and noted that it operates to ensure that a trial court metes out a punishment that is "commensurate" with the degree of harm caused by the offender's crime(s)(para. 48).

In essence, the Supreme Court of Canada has accepted the legitimacy of retribution as a sentencing goal and the role of the victim impact statement would, therefore, appear to be that of providing specific information about the nature and scope of the harm caused by the crime(s) concerned. The appropriate use of the victim impact statement is, therefore, not to facilitate the objective of revenge but rather to ensure that the ultimate punishment is, indeed, "commensurate" with the degree of harm inflicted on the victim(s).

In a similar vein, it would be reasonable to assume that the participation of the victim in the plea bargaining process would not be designed to establish a platform for vengeful prosecution but rather to provide valuable information to the court that is charged with the task of deciding whether or not to accept or reject a proposed plea agreement: in this sense, the objective of victim involvement is to ensure that the charge(s) that are ultimately laid are reasonably "commensurate" with the underlying circumstances that are alleged by the police, witnesses and the alleged victims themselves. Furthermore, it is important to avoid making the assumption that victims would invariably desire to pressure the prosecutor into laying the most severe charges possible or into refusing to enter into any form of plea agreement with the accused. Experience with victim impact statements suggests that victim input into the sentencing process does not invariably lead to increased severity: indeed, it may well work in the opposite direction and lead to a greater degree of lenience (Erez & Roeger, 1995, p. 373; Renke, 1996). It is, therefore, realistic to hypothesize that a certain number of victims would actually support the acceptance of a relatively lenient plea agreement – provided that it reflects an outcome that is acceptable to them. Indeed, it may well be the case that victims of certain offences (e.g., sexual assault) will be particularly willing to endorse a plea agreement if it enables them to avoid undergoing the trauma of testifying in court. Acceptance of the plea agreement may well turn on whether it is likely to contain a sentencing outcome that these victims would perceive as being adequate to protect them from further harm.

For example, a plea agreement may make provision for the accused to receive treatment under the terms of a probation order or conditional sentence. Some victims may regard the reduction of the risk of future harm through the treatment of an abusive, but nevertheless loved, partner as being a far more important goal than seeking a primarily punitive sentence that offers little – or no – prospect of behavioural change over the long term.