Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Crown Attorney Respondents
Findings from Crown Attorney Respondents (continued)
Findings from Crown Attorney Respondents (continued)
7. Victim Impact Statements
Victim impact statements (VIS) are written statements in which victims can describe the effect of the crime on them and any harm or loss suffered as a result of the crime. The 1999 amendments to the Criminal Code allow victims to read their statements aloud during sentencing, require the judge to ask before sentencing whether the victim has been informed of the opportunity to complete a VIS and permit the judge to adjourn the sentencing, to give the victim time to prepare the statement.
Victims of crime can submit victim impact statements at sentencing and at parole. At parole, the victim can rely on the victim impact statement from sentencing and/or provide another statement to the parole board. The following discussion considers victim impact statements at sentencing only.
At Sentencing
Frequency of Submission
Survey respondents were asked whether, based on their experience, victims generally submit victim impact statements to the court. Half of Crown Attorneys surveyed believe that victims generally submit victim impact statements only in serious cases, such as sexual assault, other violent offences, and certain property crimes. About one-third think that victim impact statements are submitted in most cases, and about one-fifth reported that in their experience, victims usually do not submit victim impact statements, regardless of the severity of the offence. The results for frequency of submission of victim impact statements are provided in Table 12. These results include only those respondents who provided an answer to this question.
Providing Information on Impact Statements
Related to the issue of whether victims submit victim impact statements is the provision of information to victims about the statements. If awareness is low, submission rates will be correspondingly low. In interviews, a few Crown Attorneys questioned whether criminal justice professionals are completely fulfilling their roles concerning victim impact statements when discussing the frequency of submission of these statements. A few Crown Attorneys expressed their belief that victims may not be adequately informed of victim impact statements. Some noted that it is the responsibility of police to inform victims of the opportunity to submit victim impact statements and questioned whether they are routinely doing so. [3]
Method of Submission
Of the Crown Attorney respondents with sufficient experience to respond, 90% of Crown Attorneys stated that victim impact statements are usually submitted in writing only. About one-fifth reported that Crown Attorneys read the statement. Table 13 provides the survey results of those respondents who were able to answer this question.
| Victim Services (n=194) | Crown Attorneys (n=184) | Defence Counsel (n=180) | Judiciary (n=108) | |
|---|---|---|---|---|
| Written statement only | 82% | 90% | 79% | 87% |
| Victim reads statement | 18% | 5% | 2% | 7% |
| Crown Attorney reads statement | 16% | 21% | 18% | 16% |
| Other | 2% | 3% | 4% | -- |
Note: Respondents could provide more than one response; totals sum to more than 100%.
According to those Crown Attorneys interviewed, it is more common for the Crown Attorney or the judge to reference the victim impact statement than for the statement to be read in court. With only one exception, all Crown Attorneys said that victims rarely express a desire to read their statements in court; the victim reading his or her statement is apparently more common in very serious cases involving violence against the person.
Timing of Submission
When to submit victim impact statements produced conflicting views among Crown Attorneys. Early receipt of the statement ensures that it is considered during plea negotiations; however, the requirement of disclosing the victim impact statement to the defence counsel before trial puts the victim at risk of being cross-examined on the statement. Because of these competing concerns, Crown Attorneys were divided when asked about the best time for them to receive victim impact statements. Half (50%) of those surveyed prefer to receive victim impact statements as soon as possible (i.e., as soon as they receive the file or before beginning plea negotiations), and 44% think that it is better to receive them only after a finding of guilt.
Crown Attorneys who hold the former view said in interviews that victim impact statements assist them in preparing cases and negotiating pleas. These Crown Attorneys do not regard as problematic the obligation to disclose victim impact statements to defence counsel; on the contrary, they are of the view that such disclosure assists in the negotiation of a plea. Several of these Crown Attorneys also pointed out that having the victim impact statement early in the case helps to ensure that the contents of the statement will not damage the case. These Crown Attorneys disagree with the current Criminal Code provision stating that victim impact statements shall be submitted after a finding of guilt. They argued that this provision obliges Crown Attorneys and defence counsel to make decisions on possible plea agreements without full knowledge and creates the potential for victim impact statements to contain information that differs from or contradicts the evidence presented at trial. If the information contained in the victim impact statement supports a lesser or a more serious charge after a conviction or guilty plea has already been entered, the court faces a dilemma.
Several Crown Attorneys noted in interviews that there is no point in receiving the statement early because it may not be necessary (e.g., in the event that there is a stay or an acquittal). A few Crown Attorneys made the point that submitting the statement after a finding of guilt helps to ensure that it will be relevant and up to date at the time of sentencing and will not need to be revised. In addition, taking more time allows for a more complete statement.
While these timing issues raise important concerns, the submission of victim impact statements is not treated uniformly across the sites, and victims often receive little information about the pros and cons of early submission. In some sites, the victim either submits his or her statement directly to the court registry or to victim services who, in turn, provides it to the court. With these methods, the Crown Attorney, defence counsel, and the judge all receive the victim impact statement after the finding of guilt. In other sites, the Crown Attorney receives the victim impact statement earlier because the instructions to victims included with the victim impact statement form advise them to submit the statement right away and/or the forms are sent with a return envelope addressed to the Crown Attorney. In these jurisdictions, unless victims seek assistance, they will not receive full information on the best time to submit a victim impact statement.
Cross-Examination of Victim
Defence counsel can cross-examine victims on their victim impact statements both at trial (if the statement is received before a finding of guilt) and at sentencing. The survey results in Table 14 show that about one-quarter of Crown Attorneys have been involved in a case where the victim was cross-examined on his or her impact statement at trial or at sentencing. In some sites, the possibility of cross-examining the victim on the victim impact statement at trial is forestalled because the Crown Attorney, court, and defence counsel only receive the statement after a finding of guilt.
TABLE 14: HAVE YOU EVER HAD A CASE WHERE THE DEFENCE COUNSEL OR THE ACCUSED CROSS-EXAMINED THE VICTIM ON THEIR VICTIM IMPACT STATEMENT?
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Yes | 24% | 20% | 12% |
| No | 71% | 71% | 80% |
| Don't know | 3% | 4% | 3% |
| No response | 3% | 5% | 6% |
| Crown Attorneys (N=188) | Defence Counsel (N=185) | Judiciary (N=110) | |
|---|---|---|---|
| Yes | 26% | 23% | 10% |
| No | 65% | 70% | 80% |
| Don't know | 6% | 3% | 5% |
| No response | 3% | 5% | 6% |
Note: Respondents could provide only one response. Some totals sum to more than 100% due to rounding.
In interviews, Crown Attorneys commented that cross-examination on victim impact statements is quite rare. It occurs because the contents of the statement differ from the evidence presented at trial or because the defence counsel is sceptical about a victim's claims of ongoing effects or injuries. Crown Attorneys said that cross-examination of the victim is so infrequent because they usually can agree to excise prejudicial information or other inadmissible material before submitting the victim impact statement to the court.
Judicial Use of Victim Impact Statements
As mentioned above, under the 1999 amendments to the Criminal Code, judges must inquire before sentencing whether the victim has been advised of the opportunity to prepare a victim impact statement and can adjourn the sentencing hearing to allow a victim to be informed and prepare an impact statement. One-third (30%) of Crown Attorneys reporting that in cases where no victim impact statement is submitted, judges generally ask whether the victim has been informed about impact statements. However, Crown Attorneys also reported that, when no victim impact statement is submitted, they often do not contact the victim about whether he or she wants to submit a victim impact statement. Less than one-tenth (7%) reported that they always contact the victim and one-fifth (19%) said that they usually do.
Under the Criminal Code, judges must consider victim impact statements at the time of sentencing. Eighty-six percent of Crown Attorneys surveyed reported that they remind judges to consider victim impact statements in cases where a statement is submitted. In interviews, Crown Attorneys expressed the belief that victim impact statements have a limited impact on sentencing. Although they believe that judges consider the statements, they also think that judges do not and should not base their sentencing decisions on them (the few Crown Attorneys who argued that victim impact statements should play a more prominent role in sentencing decisions were a distinct minority). Crown Attorneys pointed out that the victim impact statement is one of numerous factors that judges must consider when determining a sentence. Furthermore, judges must remain objective and fair and must impose sentences that are consistent with the Criminal Code and case law.
Obstacles to Use of Victim Impact Statements
As shown in Table 15 below, about half of Crown Attorneys (48%) believe that there are obstacles to the use of victim impact statements. Over a third of victim services providers and police could not provide an answer.
| Victim services (N=318) | Crown Attorneys (N=188) | Defence Counsel (N=185) | Police (N=686) | |
|---|---|---|---|---|
| Yes | 30% | 48% | 80% | 19% |
| No | 22% | 43% | 14% | 45% |
| Don't know | 43% | 6% | 6% | 36% |
| No response | 5% | 3% | 1% | 1% |
Note: Respondents could provide more than one response; totals sum to more than 100%.
Crown Attorneys were asked to explain why they believe there are obstacles to or problems with the use of victim impact statements. Table 16 shows the main reasons cited; the results are discussed in more detail below.
For Crown Attorneys, the biggest obstacle or problem is the inclusion of inappropriate or irrelevant material. In interviews, several Crown Attorneys observed that rather than restricting themselves to a description of the impact of the crime, victims frequently include a recitation of the facts of the case, refer to the offender's alleged involvement in other criminal activities, or offer their views on sentencing.
An issue related to the inclusion of inappropriate information is the need to disclose the victim impact statement to defence counsel. This creates the possibility of defence counsel objections to the victim impact statement or cross-examination on the statement either at trial or sentencing. For Crown Attorneys (18%), this was an important obstacle, leading to victims or Crown Attorneys not submitting victim impact statements. In interviews, Crown Attorneys said that the victim impact statement can be detrimental to the Crown Attorney's case; it can make the victim more vulnerable and strengthen the defence. Several Crown Attorneys said that they do not use the victim impact statement if the claims contained in it are improbable or the victim is not credible. With respect to obstacles to the use of victim impact statements, a few Crown Attorneys mentioned literacy and language barriers in both the survey and interviews. Other obstacles to the use of victim impact statements mentioned by Crown Attorneys surveyed were time constraints (7%), delays in the court proceedings caused by adjournments needed to inform victims about victim impact statements (11%) and victim disinterest in submitting a statement (6%).
8. Restitution
Restitution requires the offender to compensate the victim for any monetary loss or any quantifiable damage to, or loss, of property. The court can order restitution as a condition of probation, where probation is the appropriate sentence, or as an additional sentence (a stand-alone restitution order), which allows the victim to file the order in civil court and enforce it civilly if not paid. The following discussion of restitution considers the current use of restitution, difficulties with enforcement, and obstacles to requesting restitution.
Use of Restitution
When asked if they generally request that restitution be paid to a victim, when appropriate, most Crown Attorneys (89%) reported that they do. To determine views on when restitution should be requested, Crown Attorneys were asked what considerations motivate their decision to request restitution. According to results from the survey of Crown Attorneys, the Crown Attorney's decision to request restitution is motivated primarily by the ability to quantify the losses (86%), but also by the victim's desire for restitution (64%) and by the offender's ability to pay (55%). In interviews, several Crown Attorneys observed that there is little point in requesting restitution if the offender has no income or is going to be incarcerated, although several said that they do not always know the offender's financial situation and therefore request restitution in all cases where the losses are quantifiable.
The use of restitution among Crown Attorneys is shown in Table 17.
| Crown Attorneys (N=188) | Defence Counsel (N=185) | |
|---|---|---|
| Do you generally request, when appropriate, that restitution be paid? | Do you generally agree to requests for restitution? | |
| Yes | 89% | 78% |
| No | 9% | 20% |
| No response | 2% | 2% |
Two-thirds (68%) of Crown Attorneys reported that judges usually grant requests for restitution. In interviews, they prefaced this response with the proviso that judges usually grant restitution when the offender has the ability to pay, although the judge sometimes reduces the amount in consideration of the offender's circumstances.
Problems with Enforcement
When asked if they think that restitution enforcement is a concern or a problem, half of Crown Attorneys (53%) responded in the affirmative. The survey asked these respondents to explain why they consider restitution enforcement to be a concern or a problem. The results are presented in Table 18 below. Crown Attorneys gave several reasons for the difficulties with enforcement. The most common reason given (one-fifth of Crown Attorneys) is that restitution orders are made in cases where the accused is not able to pay.
About one-fifth of Crown Attorneys (20%) also pointed to insufficient resources for enforcement. This was further commented on in interviews. Crown Attorneys intimated that not much effort is made, stating that payment does not often occur because the criminal justice system is not a collection agency. In their survey responses, 13% of Crown Attorneys also pointed to the difficulty of convicting an offender on a breach of probation as an obstacle to enforcement. While in theory, offenders can be charged with a breach of probation for failing to abide by their restitution order, such charges are rare because the Crown Attorney must prove that the offender wilfully broke the order. Even if the offender is charged with a breach, the typical consequence is a small fine much lower in value than the restitution order itself.
The other option is a stand-alone restitution order, where the victim has recourse to the civil courts to enforce payment. A small number of Crown Attorneys (19%) noted that the problem with this method of enforcement is that it requires the victim to engage in a difficult legal process and bear all the costs of enforcement. In interviews, Crown Attorneys pointed out that this is not a realistic option for many victims of crime. Table 18 provides the complete results.
| Reasons: | Crown Attorneys (n=100) | Defence Counsel (n=62) | Probation (n=128) |
|---|---|---|---|
| Accused are unable to pay | 22% | 47% | 30% |
| Insufficient resources for enforcement | 20% | 16% | -- |
| Civil enforcement difficult or victim responsibility | 19% | 8% | 4% |
| Difficult to convict on breach of order | 13% | -- | 18% |
| No penalty for failure to payr | 6% | -- | 9% |
| Restitution usually not made unless paid at sentencing | -- | 13% | -- |
| Probation is not involved | -- | -- | 26% |
| Other | 6% | 11% | 7% |
| No response | 22% | 10% | -- |
Note: Respondents could provide more than one response; totals sum to more than 100%.
[3] In some provinces, the police provide the victim with the form for completing a victim impact statement and advise them of where to send it. However, the procedure varies from province to province.
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