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

4. Judicial Perceptions Regarding Utility and Relevance of VIS

4. Judicial Perceptions Regarding Utility and Relevance of VIS

4.1 Judges generally find victim impact statements useful

"They put a very human face to the consequences of the criminal conduct" (Alberta respondent)

Perhaps the most controversial issue in the area of victims and sentencing concerns the contents of the victim impact statement. Critics of victim impact statements argue that they contain no useful information that has not emerged at trial or placed before the court in Crown submissions on sentence. For this reason, several questions in our survey addressed the contents of victim impact statements and their utility to the court at the time of sentencing. The perceptions of judges should be accepted as determinative on this issue. It is logical to assume that the usefulness of a particular piece of information for the purposes of sentencing is a matter for the court to decide.

The first question on this topic was general in nature. 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. Over all three jurisdictions half the judges held the view that these statements were useful in all or most cases. Only 19% of judges believed that VIS are useful in just a few cases (see Table 14). This pattern of results suggests that contrary to some commentators, judges do in fact find victim impact statements useful. One judge noted who had indicated "useful in all" noted the following: "I would always like to have them".

Even some judges who are somewhat sceptical of the utility of the victim impact statement sometimes find them useful. One Ontario respondent wrote that: "I am not a great fan of VIS – I prefer to receive the information from the Crown. However, occasionally I have been very impressed with the insight provided by a VIS ... ." Finally, these trends are consistent with the earlier Manitoba study that found 84% of participants agreed that a VIS assists the court in making sentencing decisions (D’Avignon, 2002).

Considerable variability emerged between jurisdictions. This can be illustrated by combining the first two response categories. Similarly high percentages of judges in British Columbia, Manitoba and Ontario (62%, 59% and 48% respectively) reported that impact statements were useful in most or all cases. The percentage was appreciably lower in Alberta where approximately one-third (35%) held this view (see Table 15).

Table 14: In general, are VIS useful? (Three Jurisdictions Combined, N= 96)
VIS are useful in all cases in which they are submitted 18%
VIS are useful in most cases in which they are submitted 32%
VIS are useful in some cases in which they are submitted 31%
VIS are useful in just a few cases in which they are submitted 19%
Total 100%

Table 15: In general, are VIS useful?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
VIS are useful in all cases in which they are submitted 19% 14% 24% 21%
VIS are useful in most cases 43% 21% 35% 27%
VIS are useful in some cases 19% 43% 29% 40%
VIS are useful in just a few cases 19% 21% 12% 12%
Total 100% 100% 100% 100%

4.2 Judges believe VIS contain information relevant to the principles of sentencing

The second question relating to the issue of relevance 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. Over the three jurisdictions 8% of judges reported finding relevant information in the VIS "always or almost always", while a further 19% reported finding the information "often" useful in this respect. Only one-quarter of the total sample stated that VIS never or almost never contained information relevant to the principles of sentencing (Table 16).

As with the previous question, responses were more positive in Manitoba and British Columbia. Almost half (47%) of the Manitoba judges and over one third of British Columbia respondents stated that they found VIS to contain information relevant to sentencing principles often, almost always or always. This response was provided by only 12% of judges in Alberta (Table 17).

Table 16: Do VIS provide information relevant to the principles of sentencing? (Three jurisdictions Combined, N= 96)
Always or almost always 8%
Often 19%
Sometimes 47%
Never or almost never 25%
Total 100%

Table 17: Do VIS provide information relevant to the principles of sentencing?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
Always or almost always 11% 2% 18% 10%
Often 25% 10% 29% 27%
Sometimes 42% 57% 35% 51%
Never or almost never 22% 31% 18% 12%
Total 100% 100% 100% 100%

4.3 Judges perceive VIS to constitute a unique source of information relevant to sentencing

It has been argued that the information contained in the victim impact statement is useful, but redundant in the sense that it will emerge from Crown submissions or evidence adduced at trial. 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?". The aggregated response in 2006 was more positive than negative. Across the three jurisdictions 47% stated that VIS often or sometimes contained useful information unavailable from other sources; 21% responded that VIS almost never contained such information (Table 18). These trends parallel those emerging from the 2002 survey of Ontario judges.  Taken together the responses to these inter-related questions suggest that from the judicial perspective, the victim impact statement represents a useful source of information relevant to sentencing.

As with the previous two questions about impact statements, clear differences emerged among jurisdictions. 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, while no respondents in Alberta were of this opinion (Table 19).

Table 18: How often do VIS contain information relevant to sentencing that did not emerge during the trial or in the Crown’s sentencing submissions? (Three Jurisdictions Combined, N= 96)
VIS often contain useful information unavailable from other sources 12%
VIS sometimes contain useful information unavailable from other sources 35%
VIS seldom contain useful information unavailable from other sources 32%
VIS almost never contain useful information unavailable from other sources 21%
Total 100%

Table 19: How often do VIS contain information relevant to sentencing that did not emerge during the trial or in the Crown’s sentencing submissions?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
VIS often contain useful information unavailable elsewhere 17% -- 29% 14%
VIS sometimes contain useful information unavailable 39% 29% 41% 52%
VIS seldom contain useful information unavailableElsewhere 19% 49% 18% 18%
VIS almost never contain useful information unavailableElsewhere 25% 22% 12% 16%
Total 100% 100% 100% 100%

4.4 Perceptions of judges consistent with those of Crown counsel and judges in other jurisdictions

Crown counsel (in Ontario at least) appear to share the view held by many judges that VIS represent a useful source of information. In a survey of Crown counsel in Ontario, 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.

Finally, it is worth noting that the experiences of judges and crown counsel regarding the utility of VIS are consistent with the few earlier studies that have addressed the issue. For example, in one study that was commissioned by the Department of Justice, the researchers concluded that their findings "did not support the argument that the information found in victim impact statements was available to the court from other sources" (R. S. Sloan Associates, 1990, p. 12). Moreover, comparable findings also emerge from other jurisdictions: Erez, Roeger and Morgan (1994) found that judges in South Australia agreed that victim impact statements provide information unavailable from other sources.

4.5 Victim impact statements particularly useful for crimes of violence

Additional questions on the survey explored the issue of utility. First, respondents were asked if there were certain offences for which a victim impact statement is a particularly useful source of information. Not surprisingly, perhaps, across the three jurisdictions, 79% responded affirmatively. These respondents were then asked to identify which category of offence they had in mind. The offences identified most often by respondents in all three jurisdictions were crimes of violence and sexual offences. Multiple responses emerged for this question.

Fraud offences were also frequently cited, particularly those resulting in significant loss to the victim. Property offences were also identified; in these cases, the VIS is very useful to quantify the extent of loss to the victim. These results are consistent with responses to the Ontario survey. One Ontario judge noted that VIS may be particularly useful in youth court, so that young offenders "can appreciate the pain that they have caused". Some judges noted other circumstances in which information from the victim is particularly useful, for example, where the injury to the victim is not clearly manifest to an objective observer. Others noted that victim impact statements were particularly useful where the impact of the crime is "likely to be significant, e.g., break and enter" (Alberta respondent). Finally, several respondents noted that victim impact statements were particularly useful in cases in which the harm to the victim was in some way unusual or exceptional.

Two written comments expressed some scepticism regarding the utility of the information contained in victim impact statements. One Ontario judge wrote that, "In most cases, we do not need a VIS to understand the impact on victims such as emotional trauma, or physical injuries or damage from B & E." Another respondent from the same province remarked that, "If there has been a trial and the victim has testified,VIS is just redundant information. If there has not been a trial but a good PDR/PSR reflecting victim’s views,VIS is redundant. Otherwise VIS are very useful for all crimes".

4.6 Judges report that victims’ views on sentencing appear in a significant percentage of statements

The last question with respect to the contents of the victim impact statements concerns the controversial issue of victims’ views of the appropriate disposition. The case law in Canada[10] and other common law jurisdictions is clear on the matter: victim impact statements should not contain recommendations for sentence. Nevertheless, research in other jurisdictions suggests that victims do sometimes make such recommendations in their impact statements (see Roberts, 2002). The study involving 19 Manitoba judges in 2001 found that two-thirds of the sample stated that victim statements included inappropriate information, and the most frequent category of such information was sentencing recommendations (D’Avignon, 2002). Indeed, one of the principal objections to the introduction of victim impact statements is that they may bias the court through the introduction of victim "sentencing submissions". For this reason some victim impact statement forms explicitly direct the victim to omit such material.[11] Other forms may appear to permit victims to include their views on sentence when they allow the victim to include "other comments or concerns".[12]

We asked judges how often, in their experience, victim impact statements contain the victims’ wishes regarding the sentence that should be imposed. Across the three new jurisdictions 24% stated that sentence recommendations were often, almost always or always present. Another one quarter stated that VIS "never or almost never" contained sentence recommendations (Table 20). 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 in 2002 reported seeing victim "submissions" on sentencing often, almost always or always (Table 21).

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. Whether a VIS contains the victims’ views on the sentence that should be imposed may well depend on the form used in the particular jurisdiction. Thus one judge from Manitoba noted that the "Manitoba VIS form specifically tells victims not to put in their views about sentence".

Table 20: How often does a VIS contain the victim’s wishes regarding the sentence? (Three Jurisdictions Combined, N= 96)
Always or almost always 3%
Often 21%
Sometimes 51%
Never or almost never 25%
Total 100%

Table 21: How often does a VIS contain the victim’s wishes regarding the sentence?
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17 Ontario (2002) N= 63
Always or almost always 6% 2% -- 6%
Often 31% 17% 12% 37%
Sometimes 44% 57% 47% 41%
Never or almost never 19% 24% 41% 16%
Total 100% 100% 100% 100%

In response to this question one judge from Alberta noted that: "The vast majority of statements are both brief and appropriate in the sense that the statement attempts only to describe the "real impact" e.g., loss of sleep, loss of trust, loss of innocence and the like. It is extremely rare in my experience, for a victim to attempt to dictate (or suggest) what the court ought to do by way of sentence" (emphasis in original).