Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Defence Counsel Respondents
Findings from Defence Counsel Respondents (continued)
Findings from Defence Counsel Respondents (continued)
4. 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.
At Sentencing
Frequency of Submission
Survey respondents were asked whether, based on their experience, victims generally submit victim impact statements to the court. Table 10 below provides the respondents answers to this question.
Defence counsel are divided about the frequency with which victim impact statements are submitted. Forty-five percent of defence counsel believe that victims generally submit victim impact statements only in serious cases, such as sexual assault, other violent offences, and certain property crimes. About 40% 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.
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 defence counsel questioned whether criminal justice professionals are completely fulfilling their roles concerning victim impact statements when discussing the frequency of submission of these statements.
In contrast, a few defence counsel who were interviewed ascribe the submission rate to lack of Crown Attorney diligence. According to these defence counsel Crown Attorneys either do not pursue getting victim impact statements or they receive the statements but do not submit them to the court. The perception among these defence counsel is that Crown Attorneys believe they can more effectively present the victim's interest in sentencing or that they view the victim impact statement as redundant because the judge has already heard the victim's testimony. Statements made by Crown Attorneys at one site support this perception; they reported not always submitting the victim impact statement to the court and, instead, simply telling the court what the victim has experienced. [2]
Method of Submission
Of the 180 defence counsel respondents with sufficient experience to respond, close to 80% of defence counsel agreed that victim impact statements are usually submitted in writing only. About one-fifth of survey respondents reported that Crown Attorneys read the statement. Two percent of defence counsel believe that the victim reads their statement. Table 11 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%.
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 12 show that about one-fifth of defence counsel 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 12: 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. Surveyed defence counsel and judges concurred. The few defence counsel who reported cross-examining the victim said that they did so either to contest inappropriate or irrelevant material (e.g., prior, unrelated history with the accused) or to test the victim's credibility, in part because of inconsistencies between the victim impact statement and the victim's earlier statements.
In interviews, defence counsel 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. Several defence counsel also said that they rely on the judge either to intervene and refuse the victim impact statement or to disregard the irrelevant portions. A few defence counsel mentioned that while they had not cross-examined the victim on the impact statement, they did argue the impact statement during sentencing and question its claims.
Obstacles to Use of Victim Impact Statements
In surveys, defence counsel were asked, "Are there any obstacles to the use of victim impact statements?"
Most defence counsel (80%) reported problems with impact statements. Table 13 below shows the results for all relevant respondents.
| 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%.
When asked to explain why they believe there are obstacles to or problems with the use of victim impact statements, defence counsel reported that the biggest obstacle or problem is the Inclusion of inappropriate or irrelevant material (80%). Table 14 shows the main reasons cited for all respondent groups; the results are discussed in more detail below.
In interviews, several defence counsel 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. In their survey responses, defence counsel also mentioned several other concerns involving the information contained in victim impact statements. According to one-fifth of defence counsel, victim impact statements can contain inflammatory claims that introduce bias into the process (18%). One-tenth of defence counsel also noted that victim impact statements sometimes contain new information or information that contradicts the evidence presented in court.
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%), victim services providers (16%), and police (21%) 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.
Defence counsel do not object to the use of victim impact statements. Rather, they reported feeling limited in the action they can take because challenging victim impact statements is viewed so negatively.
A few defence counsel commented in their interviews that some victims do not appear to understand the purpose of the victim impact statements. They attribute this to the lack of assistance in explaining and reviewing the statements. Other difficulties, in the opinion of defence counsel, are that victim impact statements may cause judges to deviate from sentencing guidelines (14%), that the impact statements inappropriately inject emotions into the criminal justice process (13%), and that they are difficult to challenge (10%).
[2] The procedure for victim impact statements is governed by a provincially designated program, and there are some variations in the procedure among provinces.
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