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 (cont'd)
5.3 Who is the Victim?
In the United States, a certain degree of concern has been expressed in relation to the issue of the appropriate scope of the term, "victim," in the context of victim impact statements. [33] Indeed, it has been suggested that, in many American jurisdictions, the definition of a victim is far too broad and that permitting an excessively broad range of individuals to submit victim impact statements signifies "a disturbing trend toward the unrestricted admissibility of prejudicial evidence at the expense of rational sentencing"
(Donahoe, 1999, p. 27). However, according to Sullivan (1998, p. 22) the relevant Canadian legislation employs a more restrictive definition of "victim," although it is nevertheless "sufficiently broad so that it permits family members of homicide victims to present statements"
(Sullivan, 1998, p. 22). [34]
There is no reason why the current Criminal Code definition of "victim" – for the purpose of identifying who is eligible to submit a victim impact statement – should not also be used in the context of victim participation in plea bargaining hearings. Where appropriate, family members should be permitted to provide input into the judicial decision–making process that is designed to determine whether a proposed plea agreement should be accepted or rejected – as is currently the case with victim impact statements. However, further expansion of the legislative definition of "victim" should be considered only with the greatest caution since the presence of too many parties "at the table" may render it extraordinarily difficult to reach an acceptable plea agreement.
- [33] The definition as to who is a victim appears to be even broader in the United States than in Canada. The case of United States v. McVeigh (1997) set the precedent that not only the direct victims of the bombing – namely, survivors and family members – may submit a victim impact statement, but also the indirect victims – such as the rescuers – could submit a victim impact statement. In this case, at least four or five rescuers were allowed to submit a victim impact statement (Donahoe, 1999, p. 21).
- [34] See section 722(4) of the Criminal Code, in which "victim" is defined in the following manner:
- means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
- where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement, … includes the spouse or common–law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.
- Problems regarding the construction of an appropriate definition of "victim" in the context of victim impact statements have also been reported in Great Britain and Australia (Edwards, 2001, p. 39).
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