Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions A Survey of Three Jurisdictions
- 2.1 Some Judges report having difficulty in determining whether the victim has been apprised of the right to submit an impact statement
- 2.2 Judges may have to proceed with sentencing without knowing whether the victim has been apprised of the right to submit a victim impact statement
2. Informing the Victim
2.1 Some Judges report having difficulty in determining whether the victim has been apprised of the right to submit an impact statement
In the past, it has been challenging for a court to establish whether the victim has been apprised of his or her right to submit a victim impact statement. With respect to this issue respondents were asked the following question: "How difficult is it to ascertain whether the victim has been apprised of their right to submit a statement?"
As can be seen in Table 4, judges appear evenly divided: 46% report that it is easy to ascertain this information in all or most cases, while 42% report that it is difficult in most cases.[6] These trends are very consistent with the experiences of judges in Ontario in 2002: 49% of respondents stated that it was easy to ascertain this information in most or all cases, 51% responded that it was difficult in most cases.
Table 5 provides the jurisdictional comparisons, which reveal little variability across provinces with respect to this issue. Written comments suggest that some respondents clearly had some difficulty -- one Alberta respondent noted: "I really have no way of knowing the extent to which victims are apprised of the availability let alone the process and purpose of the statement submission system"
. Three Alberta individuals were critical of Crown counsel with respect to this issue. One noted that, "Crowns are not as diligent as they could or should be in seeking and obtaining a VIS"
. Another wrote that this was "Not something that is usually addressed by the Crown". Finally, a third respondent added: "Crown has a duty to advise victims of theVIS.They consistently neglect this requirement"
.
| Easy in all cases | 10% |
|---|---|
| Easy in most cases | 36% |
| Easy in some cases | 12% |
| Difficult in most cases | 42% |
| Total | 100% |
| British Columbia (2006) N=37 | Alberta (2006) N=42 | Manitoba (2006) N=17 | Ontario (2002) N=63 | |
|---|---|---|---|---|
| Easy in all cases | 6% | 10% | 19% | 14% |
| Easy in most cases | 37% | 41% | 19% | 35% |
| Easy in some cases | 9% | 10% | 25% | 18% |
| Difficult in most cases | 43% | 41% | 38% | 33% |
| Other response | 6% | |||
| Total | 100% | 100% | 100% | 100% |
2.2 Judges may have to proceed with sentencing without knowing whether the victim has been apprised of the right to submit a victim impact statement
According to Section 722.2 (1) of the Criminal Code:
As soon as practicable after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim or victims have been advised of the opportunity to prepare a statement referred to in subsection 722(1).
This provision creates a statutory obligation on judges to make an inquiry with respect to the victim impact statement before proceeding to sentencing. Many sentencing hearings take place immediately following a guilty plea. This plea is often a result of plea negotiations that may have resulted in an agreement to make a joint submission on sentencing. In other words, there is often little opportunity to pursue the question of whether a victim impact statement is available without adjourning the matter when it otherwise would have been completed that day. In the survey, judges were asked how often they had to proceed with a sentencing hearing without knowing whether the victim has been apprised of his or her right to submit a victim impact statement in accordance with the statutory provision.
Across the three 2006 surveys, almost two-thirds (64%) stated that they often proceeded with the hearing without having ascertained whether the victim had been apprised of the right to submit a statement. Twelve percent responded "never" or "almost never" (Table 6). The survey results revealed considerable cross-jurisdictional variability regarding whether judges proceed to sentence the offender without knowing the status of the victim impact statement. The percentage responding that they often proceeded without this information varied from 35% in Manitoba to 70% in British Columbia (Table 7). The higher percentage in BC may be related to the absence of a VIS program in that province.
| Often | 64% |
|---|---|
| Sometimes | 20% |
| Almost never | 8% |
| Never | 4% |
| Other response | 4% |
| Total | 100% |
| British Columbia (2006) N= 37 | Alberta (2006) N= 42 | Manitoba (2006) N= 17 | Ontario (2002) N= 63 | |
|---|---|---|---|---|
| Often | 70% | 69% | 35% | 40% |
| Sometimes | 14% | 14% | 47% | 25% |
| Almost never | 5% | 10% | 12% | 29% |
| Never | -- | 7% | 6% | 6% |
| Other response [7] | 11% | -- | -- | -- |
| Total | 100% | 100% | 100% | 100% |
- [6] Some judges clearly see the VIS as a matter for the Crown alone. One BC respondent noted that,
"I never ask the question [whether the victim has been apprised of this right]. It is none of my business."
Another respondent from the same province wrote:"It is assumed [that the victim has been informed] as the law requires it. I am told in approximately 30% of cases"
. Finally, a respondent from Manitoba suggested that the nature of the offence might determine the level of difficulty in establishing what the victim knows when he or she noted that:"It depends upon the nature of the case"
. - [7] These included: "rely on Crown"; "it is assumed [to be there] because the law requires it" and "I don’t ask".
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