Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions A Survey of Three Jurisdictions
5. Judicial Recognition of Victim Impact
- 5.1 Judges often refer to the victim impact statements or its contents
- 5.2 Judges often address the victim directly
- 5.3 Victim impact statements and communication in a sentencing hearing
5. Judicial Recognition of Victim Impact
5.1 Judges often refer to the victim impact statements or its contents
Research has demonstrated that crime victims appreciate official acknowledgement of the harm they have suffered (Young and Roberts, 2001). This may come from statements in the Crown’s sentencing submissions. The most important consideration for the victim, however, would appear to be judicial recognition. For this reason we asked judges in the survey how often they referred to the victim impact statement or its contents in their reasons for sentencing.
Consistent with the trend for judges to be sensitive to victims’ interests, we found that most judges reported that they almost always or often referred to the victim impact statements in their reasons for sentence.[13] Across the three new 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 (Table 22). The 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 somewhat lower in Manitoba (35%) and Alberta (29%; see Table 23).
| Almost always | 39% |
|---|---|
| Often | 23% |
| Sometimes | 33% |
| Never or almost never | 5% |
| Total | 100% |
| British Columbia (2006) N= 37 | Alberta (2006) N= 42 | Manitoba (2006) N= 17 | Ontario (2002) N= 63 | |
|---|---|---|---|---|
| Almost always | 53% | 29% | 35% | 32% |
| Often | 25% | 21% | 24% | 37% |
| Sometimes | 22% | 41% | 35% | 28% |
| Never or almost never | -- | 10% | 6% | 3% |
| Total | 100% | 100% | 100% | 100% |
5.2 Judges often address the victim directly
For a variety of reasons, most sentencing hearings take place in the absence of the victim. The victim may not have been apprised that the hearing is taking place, or the victim may not wish or be able to be present. However, when victims are in attendance, they appreciate judicial recognition of the harm they sustained (Roberts, 2002). The survey included the following question to explore this issue: "Do you ever address the victim directly in delivering oral reasons for sentence?"
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Results indicated that judges are certainly aware of this issue[14]. Approximately one-third of respondents in the three jurisdictions stated that they often addressed the victim when giving oral reasons. Across the three new provinces, 28% of the sample stated that they often addressed the victim directly while only 16% responded that they never or almost never addressed the victim directly (Table 24). Addressing the victim directly was least frequent in Alberta where only 19% reported that they often pursued this strategy.
| yes, often | 28% |
|---|---|
| yes, sometimes | 35% |
| only occasionally | 21% |
| never or almost never | 16% |
| Total | 100% |
| British Columbia (2006) N= 37 | Alberta (2006) N= 42 | Manitoba (2006) N= 17 | Ontario (2002) N= 63 | |
|---|---|---|---|---|
| yes, often | 35% | 19% | 35% | 32% |
| yes, sometimes | 30% | 36% | 47% | 31% |
| only occasionally | 19% | 26% | 12% | 18% |
| never or almost never | 16% | 19% | 6% | 19% |
| Total | 100% | 100% | 100% | 100% |
This question provoked a number of comments, particularly from judges in the 2002 Ontario survey. One Ontario judge wrote, "always, if I am told the victim is present"
. Other comments on the same topic included the following: "As a matter of principle, I will speak about the victim if the victim is present."
"If the victim is present in Court, I always ask them if they wish to say anything."
(Ontario)"If a VIS is submitted, I ask [the victim] if s/he has anything to add – to me it is very important that the victim be allowed to speak to Court."
(Ontario)"They are not always present [but] if they are, I most often will do so [i.e., address the victim]."
(Ontario)"I have often asked if the victim is present in the courtroom and invited the victim or someone there on his/her behalf to speak as type of victim impact statement even if a formal statement has been prepared and vetted by defence counsel. In the rational process of sentencing we should be prepared to accommodate not only the victim’s reasons but also his or her emotional response to the crime. I am sure that the cathartic effect on the victim is very beneficial and helps offset the initial trauma caused by the crime."
(Ontario)
5.3 Victim Impact Statements and Communication in a Sentencing Hearing
A number of insightful comments were made by judges participating in the 2006 surveys. Several of these raised the communicative element of a victim impact statement. VIS may be seen as promoting communication between the parties present, rather than representing an attempt to influence the court (see Roberts and Erez, 2004). Thus one judge noted that,
"The victim impact statement does not change how I sentence an offender but it allows the victim an opportunity to "speak to" the offender. And I often refer to what the victim may have said when I speak to the offender about the sentence".
In a similar vein another respondent added the following:
"The accused should always be asked if he or she has had a chance to review the contents of theVISprior to the sentencing hearing. If not, because the Crown has just produced it I generally either read it out in whole or in part or stand the case down so that the accused can read it!". Another respondent wrote that: "I make particular use of theVISfor the purpose of s. 718(f) of the Criminal Code – promoting offenders’ sense of responsibility and acknowledging harm. Crown can convey [a sense of] physical injury of financial loss but theVISis particularly effective in conveying emotional impact in the victim’s own words".
- [13] This finding reflects a growing tendency on the part of judges in many jurisdictions to recognize victim impact in their reasons for sentence. Recent evidence of this can be found in a 2001 practice direction from the Lord Chief Justice to judges in England and Wales:
"The court should consider whether it is desirable in its sentencing remarks to refer to the evidence provided on behalf of the victim."
- [14] One respondent added the following comment:
"I often speak with the victims if they are present"
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