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

3. Issues Surrounding Oral Delivery of the VIS


3. Issues Surrounding Oral Delivery of the VIS

3.1 Victims seldom ask to read their victim statement aloud in court

Research with crime victims, particularly in cases of serious violence has revealed considerable interest in delivering the statement orally at the sentencing hearing. Section 722 (2.1) states that:

The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (2), or to present the statement in any other manner that the court considers appropriate.

How often do victims express a desire to make an oral presentation of their victim impact statement? It appears to be a quite rare occurrence. The most frequent response across all three jurisdictions was "very occasionally". Approximately three-quarters of respondents (74%) provided this response. Some variability emerged across provinces: 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 (Table 9).

Table 8: How often do victims express a desire to deliver their statement orally? (Three Jurisdictions Combined, N= 96)
Often --
Sometimes 13%
Very occasionally 74%
Never happened in my court 14%
Table 100%

Table 9: How often do victims express a desire to deliver their statement orally?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
Often -- -- -- --
Sometimes 3% 19% 18% 22%
Very occasionally 73% 76% 71% 64%
Never happened in my court 24% 5% 12% 13%
Total 100% 100% 100% 100%

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

Section 722(2) entered the Code as part of the amendments of 1999, and was designed to create the opportunity for victims to deliver their statements orally. Has the provision stimulated the submission of 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. Overall, 39% of the total sample reported an increase while approximately half (51%) perceived no change. A further 11% of respondents were unable to respond to the question due to the fact that they had been appointed after 1999 (Table 10).

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, less than one quarter held this view (Table 11). Manitoba judges were more likely to report seeing an increase in requests for an oral delivery of the statement. The experience in Manitoba contrasts with responses from Ontario in 2002. Only 32% of Ontario judges,[8] but 59% of Manitoba respondents reported an increase in this respect.[9] British Columbia would seem to be the anomalous jurisdiction regarding responses to this question suggesting a slower uptake of victim impact statements in that province (Table 11). This may be related to the absence of a formal VIS program in that jurisdiction.

Table 10: Have you noticed any increase since the 1999 amendments in the number of victims who want to deliver their statements orally? (Three Jurisdictions Combined, N= 96)
Yes, a significant increase 1%
Yes, a moderate increase 7%
Yes, a slight increase 31%
No, no change 51%
Cannot say/ respondent appointed after 1999 11%
Total 100%

Table 11: Have you noticed any increase since the 1999 amendments in the number of victims who want to deliver their statements orally?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
Yes, a significant increase -- 2% -- --
Yes, a moderate increase -- 5% 24% 8%
Yes, a slight increase 29% 32% 35% 24%
No, no change 69% 46% 24% 68%
Cannot say/ respondent appointed after 1999 3% 15% 18% --
Total 100% 100% 100% 100%

3.3 A small minority of judges report longer sentencing hearings as a result of victims making an oral presentation

Some commentators have expressed apprehension that as increasing numbers of victims elect to deliver their statements orally, sentencing hearings will become more protracted, consuming more valuable court time. (It will be recalled from earlier sections of this report that most judges report having to conduct a considerable number of sentencing hearings each month). Approximately two-thirds (68%) of respondents in the 2002 Ontario survey stated that this question was not applicable, as they had noticed no increase in the volume of victims making an oral presentation. Eight percent of the judges responded that the increase had had no impact on the amount of time it took to conduct a sentencing hearing. However, approximately one quarter (24%) stated that the increased number of victims delivering their statement orally had increased the amount of time taken to conduct a sentencing hearing. In other words, for those judges who had noticed an increase in the number of victims wishing to present a statement orally, a number believed that this trend had had an impact on the amount of time it takes to conduct a sentencing hearing. This supports the conclusion that this provision for oral delivery has not lead to any striking overall increase in the time devoted to sentence hearings only because the vast majority of victims do not attempt to take advantage of it – either because they do not want to or because they are unaware of their right to do so.

Responses from the three new jurisdictions suggest a somewhat different state of affairs. Across the three provinces, 33% of respondents reported an increase in the amount of time taken for a hearing, while 25% reported perceiving no impact (Table 12). However, in Manitoba almost half (47%) believed that the number of VIS had increased the time taken for hearings (Table 13). In Alberta, 34% of respondents reported an increase in the amount of time taken to conduct sentencing hearings, while only 22% reported no impact. One Alberta respondent who had perceived an increase in the amount of time taken noted that, "[the VIS] was an added factor to consider at sentencing".

Table 12: If the number of VIS has increased, has this affected the time taken for a hearing? (Three Jurisdictions Combined, N= 96)
Has increased the amount of time to conduct a hearing 33%
Has had no impact on amount of time 25%
Not applicable 42%
Total 100%

Table 13: If the number of VIS has increased, has this affected the time taken for a hearing?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
Has increased the amount of time to conduct a hearing 25% 34% 47% 21%
Has had no impact on amount of time 22% 22% 40% 10%
Not applicable 53% 44% 13% 68%
Total 100% 100% 100% 100%

3.4 Only a small proportion of crime victims are cross-examined on their victim impact statements

Victims may be cross-examined on the contents of their victim impact statements. This can be stressful, as several victims have affirmed (Young and Roberts, 2001). Research with small numbers of victims in cases of very serious violence suggested that when cross-examination took place, victims found it very aversive, even if they had been forewarned by Crown counsel. It is unclear how often this practice occurs. Responses to the survey suggest that it is a relatively rare occurrence. Across all jurisdictions in 2006, 97% stated that it never or almost never took place. No judge responded that it "sometimes" or "often" took place. These trends are consistent with the findings in Ontario where 84% of the sample responded that cross-examination of the victim never or almost never took place.