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


7. Judicial Perceptions of the Purpose of VIS

The final question on the survey explored judicial perceptions of the purpose of the victim impact statement. The Criminal Code offers no statutory guidance regarding the purpose of the statement; courts are simply directed to consider the statement at sentencing. The leading case in Canada regarding the use of VIS is R. v. Gabriel[16], wherein Hill, J. identified the principal purposes served by victim impact statements at sentencing. We drew upon this judgement as well as the scholarly literature and asked respondents to rate the following five purposes using an importance scale from 1 (not at all important) to 10 (very important).
  1. To provide the court with information about the impact of the crime
  2. To provide the victim with an opportunity to participate in the sentencing process
  3. To provide the victim with an opportunity to communicate a message to the offender
  4. To provide the offender with an idea of the harm inflicted on the victim
  5. To provide the Crown with information about the seriousness of the crime

Tables 30 and 31 provide the average importance ratings assigned by the respondents for all jurisdictions combined and then broken down by jurisdiction. As can be seen there was considerable variation across jurisdictions, although providing the victim with an opportunity to participate in sentencing ranked number one in two of three jurisdictions. Similarly providing the Crown with information about the seriousness of the crime was ranked lowest in all three jurisdictions.

Table 30: Purposes of VIS: Average Importance Ratings for (Three Jurisdictions Combined, N= 96)
Provide the victim with an opportunity to participate in the sentencing process 7.9
provide the offender with an idea of the harm inflicted on the victim 7.8
Provide court with information about the impact of the crime 7.4
Provide the victim with an opportunity to communicate a message to the offender 7.0
Provide Crown with information about the seriousness of the crime 4.5

Note: 10 point scale where 1=not at all important, 10=very important.

Table 31: Purposes of VIS: Average Importance Ratings and Rank
  British Columbia (2006) N= 37 Alberta (2006) N= 42 Manitoba (2006) N= 17
Provide court with information about the impact of the crime 7.0 (3) 7.2 (3) 9.0 (2)
Provide the victim with an opportunity to participate in the sentencing process 7.5 (2) 7.9 (1) 9.1 (1)
Provide the victim with an opportunity to communicate a message to the offender 6.7 (4) 7.0 (4) 7.3 (4)
provide the offender with an idea of the harm inflicted on the victim 7.9 (1) 7.3 (2) 8.7 (3)
Provide Crown with information about seriousness of crime 4.5 (5) 3.7 (5) 6.4 (5)
Note: 10 point scale where 1=not at all important, 10=very important.

8. Discussion

This survey addressed two principal questions relating to the VIS regime in Canada: (i) do these statements serve a useful purpose at sentencing, and (ii) have the statutory reforms of 1999 had an impact on the participation of the victim in the sentencing process? On the basis of the responses of judges in four jurisdictions we would respond affirmatively to both. There is little doubt that the respondents found victim impact statements to represent a unique source of information that is relevant to the principles of sentencing. Of course, the statements will vary in the extent to which they contain useful information, and some will contain little that can assist a court in the determination of sentence. But on the whole it seems clear that the statements are useful and that courts (and victims) would suffer if the practice of allowing victims to submit impact statements were discontinued.

It is equally clear that with respect to the frequency with which the statements are submitted, they only appear in a minority of cases proceeding to sentencing. However, we cannot tell whether the relatively low participation rate is a result of a decision made by the victim, or reasons relating to the administration of justice. Crown counsel are sometimes unable to contact the victim in time to allow a statement to be filed by the court, and if the offender is in custody the court will proceed to sentencing without the benefit of victim input. Some victims will have no interest in submitting a statement, in the same way that some crime victims will elect not to report a crime to the police. That of course remains their privilege, although victim services personnel should ensure that the potential benefits to the court, the offender and also to the victim are clear.

It is important to recall that the relevance of victim impact statements varies among cases, with the greatest relevance usually in crimes of violence. In her study involving Manitoba judges, D’Avignon (2002) reports that 41% of the sample agreed that VIS are not needed in minor cases. Two comments from Manitoba judges make the point well. One respondent noted, "It [having a VIS for every sentencing decision] is not necessary. In minor cases, such as theft, I know what the impact is". Another judge observed that, "they [VIS] are not necessary in every case. That would just stretch resources too thin. It is more important to have them in certain cases like crimes of violence and serious property crimes. We don’t want to dilute the system by getting one in every case. Instead it would be better to have a proper victim impact statement in cases where it is very valuable".

One of the surprising findings from the survey concerned the number of statements in which the victim had made a request or recommendation with respect to the specific disposition that should be imposed. This is particularly unexpected in light of the practice of many Crowns of editing the statements and removing extraneous or inappropriate material. Perhaps the time has come to review the VIS forms in use across the country (as well as the information provided to victims) to see whether a more accurate idea of the purpose and function of the VIS can be conveyed to crime victims. After all, victims’ recommendations for sentence should not be placed before the court, unless of course they are consistent with submissions of counsel.

8.1 Some objections to victim input at sentencing

It must be added that a small number of judges are uneasy with the concept of victim participation in sentencing. One respondent wrote the following:

“VISs are one of Parliament's more stupid ideas. They send the wrong message to victims [who] should not be involved in sentencing. Relevant information can come from them through the Crown. VIS should not be a soapbox for victims to rail at offenders. That is not a proper use of a courtroom. Reading the VIS in court is threatening and is of no use to the judicial process. If it is to be done, do it in some other forum. I go through the motions for VIS, but they are only useful in informing the offender about the harm. They should not affect sentence.”

Despite the critical tone of the comment the individual nevertheless sees a purpose (albeit limited) to the VIS, namely to educate the offender about the impact of the crime on the victim.

Another judge added the following comment to his or her questionnaire:

"I have always had some difficulty with the use of VIS as I feel that it is, to some extent, intended to inflame the court against the convicted and while a proper appreciation of the iniquity is necessary, it is my opinion that this is the job of the Crown. Even more so do I feel that it is inequitable as this material is not there in every case. Some victims are less bothered by that has happened to them and either do not fill out a VIS or play the incident down. The opposite can also happen and there can be a real problem when large amounts of extraneous, prejudicial and irrelevant information is included. I do not think that the appropriate sentence should depend on the availability of this material. I don't see myself as a tough sentencer but I don't lay awake at night worrying about it- I don't think any judge could or should. As a result, I pay lip service to the statements but do not allow myself to be affect by the emotional content. "

 

8.2 Conclusion and future research priorities

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. A number of trends emerged across all provinces. At the same time, however, some differences did emerge on a number of issues. This suggests that there is still room for a more uniform implementation of the victim impact statement regime. Two research priorities would 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. For example, we have noted that British Columbia is the only jurisdiction in Canada without a formal VIS program. To what extent does this fact explain variation in the use and perceived utility of VIS? These kinds of questions can only be definitively answered following a truly national analysis. 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.

[16] Gabriel, supra, note 10