Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions A Survey of Three Jurisdictions


Acknowledgements

Research into the perceptions and experiences of Canada’s judiciary can only be conducted with the approbation and support of the Chief Judge or Chief Justice. Accordingly we would like to express our gratitude to Chief Judge Walter (Alberta), Chief Justice Stansfield (BC), Chief Judge Wyant (Manitoba) and Chief Justice Lennox (Ontario) for their support of this research project. We would also like to thank Ms Susan McDonald from the Research and Statistics division of the Department of Justice Canada for her support of the project in general and comments upon previous drafts of this report. Jocelyn Sigouin from the Policy Centre for Victim Issues also provided helpful feedback on an earlier draft. We are also most grateful to Nicole Myers for assistance in coding and analyzing the data on which this report is based. Ultimately, of course, our greatest debt is to the members of the judiciary in three provinces for taking the time from their onerous duties to complete the questionnaire.

Julian V. Roberts
Professor of Criminology, University of Ottawa, currently on leave at the Faculty of Law, University of Oxford. julian.roberts@crim.ox.ac.uk.

Allen Edgar
Research Counsel, Centre for Judicial Research and Education. allen.edgar@jus.gov.on.ca.

Highlights

Since their introduction in 1988, victim impact statements (VIS) have generated considerable controversy. To this point however, there has been an almost complete absence of information about the attitudes and experiences of the most important criminal justice professional with respect to sentencing: judges. Only three surveys have ever been conducted of Canadian judges: Manitoba in 2001, Ontario in 2002, and the Multi-site study in 2003/04. The purpose of the present research project was to replicate the Ontario survey four years later in three additional jurisdictions. Surveys were distributed in British Columbia, Alberta and Manitoba in February 2006. The same questionnaire and methodology for distribution was used. This report compares responses across jurisdictions, and summarizes responses from the entire sample of judges. It also provides comparisons between the results of surveys conducted in 2002 and 2006.

Judges in all four jurisdictions reported an increase in the number of VIS submitted. This is particularly true in Manitoba where 41% of the respondents reported seeing a moderate or significant increase in the number of VIS.

To explore perceptions of the utility of victim impact statements judges were asked the following question: "In general, are victim impact statements useful?". The response options were that the statements were useful "in all cases", "in most cases", "in some cases" and "in just a few cases". Consistent with the responses from Ontario, judges in the three new jurisdictions clearly found victim impact statements to be useful in general.

The second question relating to this issue asked judges whether they found VIS useful in terms of providing information relevant to the principles of sentencing. Again, the general reaction was affirmative although there was considerable inter-jurisdictional variability. The response was particularly positive in Manitoba where almost half (47%) of judges stated that they found VIS to contain information relevant to sentencing principles often, almost always or always. This response was made by fewer judges in British Columbia (36%) and far fewer in Alberta (12%). Over the three jurisdictions, approximately three quarters of judges reported finding relevant information; only one-quarter of the total sample stated that VIS never contained information relevant to the principles of sentencing.

Consistent with the trend for judges to be sensitive to the issue, we found that most judges reported that they almost always or often referred to the victim impact statements in their reasons for sentence.

The findings from this survey demonstrate that although victim impact statements are entered in only a relatively small percentage of sentencing hearings, judges report that they are a useful source of information at sentencing. Moreover, most respondents acknowledged that VIS represent a unique source of information relevant to the purposes of sentencing.

Executive Summary

Since their introduction in 1988, victim impact statements (VIS) have generated considerable controversy. This is true in Canada as well as other jurisdictions. To this point however, there has been an almost complete absence of information about the attitudes and experiences of the most important criminal justice professional with respect to sentencing: judges. While a very limited number of studies have explored the views of judges in other jurisdictions, only three surveys have been conducted of Canadian judges: Manitoba in 2001, Ontario in 2002, and the Multi-site study in 2003/04. The purpose of the present research project was to replicate the Ontario survey four years later in three additional jurisdictions. Surveys were distributed in British Columbia, Alberta and Manitoba in February 2006. The same questionnaire and methodology for distribution was used. This report compares responses across jurisdictions, and summarizes responses from the entire sample of judges.

Most judges sentence a very large number of offenders every month

The caseload in Canada’s criminal courts creates a large number of sentencing hearings. Respondents were asked how many sentencing hearings they conducted each month, and the averages were: BC: 55; Alberta: 33; Manitoba: 38. The aggregate average for the three jurisdictions was 42 sentencing hearings per month, considerably lower than the average number reported by judges in Ontario (71). These statistics have important implications for the sentencing process, and in particular for the question of victim input: judges are under great pressure to get through a large number of cases.

Victim impact statements (VIS) are submitted in only a small percentage of cases

One of the problems identified in the research literature is confirmed in this survey of judges: victim impact statements appear in only a small percentage of cases being sentenced. In BC, judges reported that a VIS had been submitted in 8% of cases, compared to 11% in Manitoba and 13% in Alberta. These statistics are comparable to the responses from Ontario in 2002 when on average judges reported seeing a VIS in 11% of cases.

Many judges report an increase in the number of VIS submitted

Judges in all four jurisdictions reported an increase in the number of VIS submitted. This is particularly true in Manitoba where 41% of the respondents reported seeing a moderate or significant increase in the number of VIS.

Judges report having difficulty in determining whether the victim has been apprised of his or her right to submit an impact statement

It is sometimes challenging for a judge to know whether a victim impact statement has been submitted. Respondents were asked about this particular issue. Almost half (42%) the respondents in all jurisdictions stated that it was "difficult in most cases". This pattern of responses suggests that it is frequently difficult to ascertain whether the victim has been provided with the opportunity to submit a victim impact statement.

Judges often have to proceed to sentencing without knowing whether the victim has been apprised of the right to submit a VIS

Judges often have to proceed to sentence the offender without knowing the status of the victim impact statement. The results revealed considerable variability regarding whether judges have to proceed to sentence the offender without knowing the status of the victim impact statement. The percentage that responded that they often proceeded without this information varied from 35% in Manitoba to 70% in British Columbia. Across the three 2006 surveys 64% stated that they often had to proceed.

Only rarely to victims elect to make an oral presentation of the impact statement

How often do victims elect to make an oral presentation of their victim impact statement? It seems to be a quite rare occurrence, in all jurisdictions. The most frequent response across all jurisdictions was "very occasionally". Approximately three-quarters of respondents held this view. In British Columbia 24% of the sample stated that the victim had never expressed an interest in delivering the statement orally whereas in Alberta only 5% gave this response.

Most judges report no change in the number of victims wishing to make an oral presentation of their victim impact statements

Judges were asked whether they had perceived any increase since 1999 in the number of victims who expressed a desire to deliver their statements orally. Considerable variation emerged across jurisdictions. Thus in British Columbia 69% of respondents reported no change in the number of victims expressing a desire to deliver statements orally whereas in Manitoba fewer than one quarter held this view. Manitoba judges were significantly more likely to report seeing an increase in requests for an oral delivery of the statement.

Victims seldom cross-examined on contents of their victim impact statements

Some victims have been cross-examined on the contents of their victim impact statements. This can be stressful for the victim, as several victims have affirmed. It is unclear how often this practice occurs. Responses to the survey suggest that it is a relatively rare occurrence: 97% stated that it never or almost never took place. This is consistent with findings from the survey conducted in Ontario, where 84% of respondents stated that cross-examination of the victim never or almost never took place.

Most judges perceive victim impact statements to contain information that is in general useful, as well as, relevant to sentencing

Judges were simply asked "In general, are victim impact statements useful?". The response options were that the statements were useful "in all cases", "in most cases", "in some cases" and "in just a few cases". Consistent with the responses from Ontario, judges in the three new jurisdictions clearly found victim impact statements to be useful. Combining the first two response categories it can be seen that 62% of judges in British Columbia reported that VIS were useful in most or all cases. The percentage was slightly lower in Manitoba (59%) and lowest in Alberta (35%). Over all three jurisdictions 50% of judges held this view. Only 19% of judges believed that VIS are useful in just a few cases. This pattern of results suggests that contrary to some commentators, judges do in fact find victim impact statements useful.

The second question relating to this issue asked judges whether they found VIS useful in terms of providing information relevant to the principles of sentencing. Again, the general reaction was affirmative although there was considerable inter-jurisdictional variability. The response was particularly positive in Manitoba where almost half (47%) of judges stated that they found VIS to contain information relevant to sentencing principles often, almost always or always. This response was made by fewer judges in British Columbia (36%) and far fewer in Alberta (12%). Over the three jurisdictions, approximately three quarters of judges reported finding relevant information; only one-quarter of the total sample stated that VIS never contained information relevant to the principles of sentencing.

Perceptions of judges consistent with those of Crown counsel

It is worth noting that a similar trend emerged from the survey of Crown counsel in Ontario. In that survey, approximately one-third of respondents indicated that in most cases, or almost every case, the VIS contained new or different information relevant to sentencing (see Cole, 2003). Similarly, when asked whether victim impact statements were useful to the court, approximately two-thirds of the Crown counsel responded, "yes, in most cases". No respondents in that survey indicated that victim impact statements were never or almost never useful to the court at sentencing.

VISconstitute a unique source of information relevant to sentencing

It may be argued that the information contained in the victim impact statement is useful, but redundant, in the sense that it has already emerged from the Crown. To address this question the survey posed the following question: "How often do victim impact statements contain information relevant to sentencing that did not emerge during the trial or in the Crown’s sentencing submissions?" As with a number of other questions, the most positive response came from the Manitoba judges where 29% stated that VIS often represented a unique source of information. In British Columbia only 17% held this view, and not one respondent in Alberta held it. The aggregated response was more positive than negative. Across the three jurisdictions 47% stated that VIS often or sometimes contained useful information unavailable from other sources; only 21% responded that VIS almost never contained such information. These trends parallel those emerging from the survey of Ontario judges. Taken together the responses to these inter-related questions suggest that from the judicial perspective – which is surely critical – the victim impact statement represents a useful source of information relevant to sentencing.

TheVISoften contains the victim’s recommendations regarding sentence

The survey asked judges how often, in their experience, victim impact statements contain the victims’ wishes regarding the sentence that should be imposed. The pattern of responses varied according to the respondent’s jurisdiction. Only 12% of judges in Manitoba stated that the victim’s wishes regarding sentencing were often, always or almost always present. The proportion of judges responding in this way was somewhat higher in Alberta (19%), and much higher in British Columbia (37%). It was highest of all in Ontario where almost half the sample (43%) in 2002 reported seeing victim "submissions" on sentencing often, almost always or always. Across the three new jurisdictions 24% stated that sentence recommendations were often, almost always or always present. Only one quarter (25%) stated that victim sentence recommendations were never or almost never present. These responses demonstrate the need to better inform victims about the true purpose of the victim impact statements, and to guide them regarding the kinds of information that should not be included in their statement.

Judges often refer to the victim impact statement or its contents

Consistent with the trend for judges to be sensitive to the issue, we found that most judges reported that they almost always or often referred to the victim impact statements in their reasons for sentence. This trend was most noticeable in British Columbia where over half (53%) almost always referred to VIS or victim impact in reasons for sentence. The percentages reporting this were considerably lower in Manitoba (35%) and Alberta (29%). Across the three jurisdictions, 39% of respondents almost always referred to victim impact when giving reasons for sentence. Overall, only 5% stated that they never referred to victim impact statements.

If the victim is present at sentencing judges often address him or her directly

Most sentencing hearings take place in the absence of the victim. However, when they are present, it is clearly of assistance to be addressed by the court. The last question on the survey was the following: "Do you ever address the victim directly in delivering oral reasons for sentence?" Results indicated that judges are certainly alive to this issue: almost two-thirds (63%) of all respondents stated that they sometimes or often addressed the victim directly. Sixteen percent never or almost never addressed the victim, and 21% stated that they did so "only occasionally".

Conclusion

As a result of the surveys conducted in four jurisdictions we now have a much more informed view of the utility of victim impact statements. Two research priorities would appear to emerge from the studies conducted to date. First, it is important to complete the picture with respect to judicial attitudes and experiences regarding the victim impact statement. Assuming the co-operation of the respective Chief Justices, it would be relatively easy and economical to survey the judiciary in the remaining provinces and territories. We need to know how well the VIS regime is functioning in these other jurisdictions, and whether regional variations are more pronounced when the smaller provinces or territories are included.

Second, once a comprehensive portrait of judicial attitudes is available, we see the need for a "best practices" analysis. This would consist of a review of all the research pertaining to VIS in Canada, with a view to identifying the factors associated with the most successful use of victim impact statements. This exercise would include a review of procedures, protocols and materials. Following such an exercise it would be possible to develop a best practices protocol to be shared across all jurisdictions. Finally, since victim input at sentencing is a feature of all common law jurisdictions, it would also be useful to include an international component, to determine whether superior practices exist in another country.

It was encouraging to note that while variability emerged across the jurisdictions in response to some questions, there was generally considerable consensus – particularly regarding to the most important issues concerning the victim impact statement regime. We would end this report on the perceptions of judges in four jurisdictions by concluding that despite a number of criticisms victim impact statements perform a useful function in the sentencing process in Canada.

Introduction

Victim impact statement provisions entered the Criminal Code in 1988, and statutory amendments were introduced in 1999 to further promote the use of these statements in the sentencing process. These amendments included codifying the right of the victim to submit a victim impact statement orally at the sentencing hearing. Since their introduction, victim impact statements (VIS) have generated a considerable amount of research in Canada as well as other jurisdictions (see Roberts, 2002, for a review of research into the use of victim statements at sentencing, and Young, 2001, for a review of the role of the victim in the criminal process). Much of this research has explored the perceptions of criminal justice practitioners such as Crown Counsel. However, members of the judiciary are in many respects best placed to inform policy-makers about the relative success of a sentencing tool such as the victim impact statement. First and foremost, the VIS is a device to communicate information to the court about the impact of the crime upon the victim. Whether (and how) this tool is useful in sentencing is a matter for judges alone to determine. Accordingly, the views of the judiciary are critical to our understanding of the utility of these statements to courts across Canada.

To date however, there has been an almost complete absence of information about the attitudes and experiences of the most important criminal justice professional with respect to the sentencing process: judges.[1] While a very limited number of studies have explored the views of judges in other jurisdictions,[2] only two surveys have been conducted of the Canadian judiciary with respect to this important issue. The first involved 19 provincial court judges in Manitoba in 2000-2001 (see D’Avignon, 2001). The second survey, which was contracted by the Department of Justice Canada, was distributed to all sitting judges in the province of Ontario in 2001 (see Roberts and Edgar, 2002). Responses were received from approximately one-third of all judges, a response rate comparable to other surveys of the judiciary.[3]

The Ontario survey generated a number of important findings relating to the use of victim impact statements in Canada. The purpose of the present research was to extend that survey to explore the perceptions and experiences of judges in other jurisdictions four years later. In addition, this research provides unique insight into the views of judges with respect to the critical issue of sentencing, and represents one of the few explorations of judicial perceptions conducted in this country.

Methodology

As noted, one of the principal goals of the present research was to replicate the survey conducted in Ontario in 2002. For this reason, the same questionnaire was employed, although some additional questions were added on this occasion. These new items explored judicial perceptions of the purpose of a victim impact statement as well as judges’ views on the benefit for victims of submitting a VIS at sentencing. In order to ensure that these additional questions did not influence responses to the original items used in the Ontario survey, they were placed at the end of the questionnaire. The same methodology was adopted in terms of distributing the survey (see Appendix A for survey).

In February 2006, a request for assistance was sent to the Chief Judges and Chief Justice of three provinces: British Columbia, Alberta, and Manitoba. British Columbia is the only jurisdiction in Canada without a formal VIS program; accordingly, one of the purposes of the present research was to see whether judicial experiences and perceptions might be different in that province. All three consented to the survey being conducted in their jurisdictions and distributed the survey out of their offices to all sitting provincial court judges in their province. The completed surveys were anonymous. The majority were returned through the office of the Chief Judge or Justice, the rest were mailed directly to the researchers.

After a period of three weeks, a reminder communication was sent from the office of the Chief Justice. This resulted in a number of additional responses being returned. Thus, the same data collection procedure was followed in all three jurisdictions, and is consistent with the first survey conducted in the province of Ontario in 2001, with the report being completed in 2002.

In addition to completing the questionnaire, a number of judges added their own comments about the issues raised. These spontaneous comments are provided throughout this report. Some of these respondents identified themselves or the specific courthouses in which they sat. Their comments have been edited in order to preserve their anonymity beyond the province in which they reside.

Response Rate

The variable of critical interest in any survey is the response rate. The higher the response rate, the more confident the researchers can be that the sample respondents are representative of the population. It is reasonable to anticipate that research involving criminal justice practitioners will generate a lower response rate than surveys with other professionals or the general public. Judges in particular have less time than many other professionals. This reality must be kept in mind when evaluating the response rates of any survey of judicial officers.

Table 1 provides the numbers of respondents and response rates from the three jurisdictions involved in this research, as well as, the earlier survey conducted in Ontario. The response rate is defined as the number of respondents expressed as a proportion of all sitting judges at the time the survey was distributed. As can be seen, the response rates were somewhat variable across the jurisdictions, although Manitoba recorded the highest response rate (50%). The higher response rate in that province reflects the smaller number of judges (34); a superior response rate is probably to be expected when the total number of potential respondents is small. The weighted average response rate across the three jurisdictions surveyed in 2006 was slightly higher than the response rate achieved in Ontario four years earlier (36% vs. 31%).

Table 1: Survey Response Rates
  Ontario (2002) N= 63 British Columbia (2006)
N= 37		 >Alberta
(2006)
N= 42		 Manitoba
(2006)
N= 17		 Weighted Average Rate in 2006
Response Rate 31% 27% 42% 50% 36%

Findings

This report summarizes findings from the three jurisdictions surveyed in 2006, and provides comparisons with the survey conducted in Ontario in 2002. The survey and summary of results can be found in Appendix A. The discussion that follows provides a more detailed and fulsome analysis of these data. Tables conform to the following format: combined results are first summarized for the three jurisdictions surveyed in 2006[4] and then a more detailed breakdown between the four jurisdictions is provided.