Victims of Crime Research Digest No. 12

Recent Developments in Victim and Community Participation in Criminal Justice

By Marie ManikisFootnote 1

Introduction

Victims’ rights and the laws on victim impact statements (VIS) have evolved considerably since the last update in the 2012 Victims of Crime Research Digest (Manikis 2012). In 2015, the Victims Bill of Rights Act (VBR) was revised to the stand-alone Canadian Victims Bill of Rights (CVBR),Footnote 2 which entrenched victims’ rights in federal legislation for the first time. These rights include:

  • the right to information about the criminal justice system, the status of the case, and the services available to victims;
  • the right to protection, including security and privacy;
  • the right to participation, as a way to have victims’ views considered;
  • the right to request restitution to compensate victims for loss; and
  • the right to remedies, by lodging complaints if victims feel their rights have been violated.

The VBR also amended the Criminal Code of CanadaFootnote 3 (CC) to introduce community impact statements (CIS), additional provisions on VIS, and forms to specify what these statements should say. This article discusses key cases that are implementing VIS, CIS, and the CVBR, as well as international developments in this area of the law.

1.0 Victim Impact Statements: Recent Guidance from the Courts of Appeal

1.0 Framework

Since 2012, Canadian Appeal Courts have provided additional guidance on VIS.

The 2013 BernerFootnote 4 decision sets out some of VIS’s key guiding principles and limitations. First, the British Columbia Court of Appeal emphasized that VIS must further the purpose of determining a just sentence by keeping in mind the objectives of sentencing under section 718 of the Criminal Code to:

  • denounce illegal conduct,
  • deter offenders from committing crimes,
  • separate offenders from society if necessary,
  • help to rehabilitate offenders,
  • make amends for harm done, and
  • acknowledge the harm offenders have done.

Second, VIS must not contain material that

  • distracts the court from what it properly needs to consider at sentencing,
  • appears to place value on the life of the victim over that of the offender, or
  • seeks to compensate the grief of the victim(s) by imposing a harsh sentence.

The sentencing judge must be wary of the risk of valuing victims based on the strength of feelings expressed in the VIS. When such information is present, judges can either ignore it or have it deleted if both Crown and defence consent.Footnote 5 Further, since retribution (just deserts) is an important rationale for sentencing in Canada, VIS and CIS are important tools for assessing the offender’s moral blameworthiness and the seriousness of the offence in the process of crafting a just sentence.Footnote 6

1.1 A flexible approach to delivering VIS

Before the VBR, the courts did not specify how VIS was to be delivered. As a result, courts’ decisions on VIS varied. For instance, in MB,Footnote 7 an email was accepted as a VIS, on the basis that the Criminal Code allowed the form of the VIS to be flexible if no party objected. In Berner, however, the British Columbia Court of Appeal concluded that the sentencing court and Crown erred in allowing a photograph of the child victim and a video of a school performance to be shown. The Court stated that this material heightened emotions, carried the risk of unjust sentencing, and raised the victims’ expectations that the tribute would influence the length of the sentence.

The 2015 CC amendments allow a flexible approach to readingFootnote 8 VIS and various methods of presenting them.Footnote 9 In Morgan,Footnote 10 however, the judge made clear that anything beyond reading the VIS, such as the use of photographs and video presentations, requires victims to apply to do so, and to give adequate notice to defence and the court. The VIS form itself instructs victims that their VIS may include a drawing, poem, or letter if this helps them express how the crime affected them. Courts have been receptive to these different means of delivery, which also include photographs.Footnote 11 For instance, in Bains,Footnote 12 the mother of a murder victim included a poem that the sentencing judge alluded to and responded to positively.

Whether viewing videos as a way of delivering VIS is acceptable has yet to be clarified. As seen in Berner, judges have been reluctant to permit videos due to the heightened emotions involved. However, as will be seen in Denny in the context of CIS, a judge, exceptionally, allowed the presentation of videos when necessary “to properly place before the court a window into the community and the impact of the crime on that community.”Footnote 13 In the context of VIS, courts may benefit from the limited empirical research on videos in the United States to determine the potential risks involved in the great emotional appeal of this method.Footnote 14

1.2 VIS as aggravating and mitigating evidence?

Most appeal and trial courts across the country have recognized that VIS evidence can be aggravating at sentencing, that is, it could support a stiffer sentence. Appeal courts have either used VIS evidence as an aggravating factor,Footnote 15 or determined that it is not an error in principle for a sentencing judge to determine that the impact of a crime on the victim, as described in the VIS, is an aggravating factor.Footnote 16 Indeed, an appeal court has highlighted that if it were otherwise, VIS would have limited use, thus rendering the mandate to consider VIS as part of the sentencing processFootnote 17 meaningless.Footnote 18 Most judgments at the trial and appeal levels have relied on newly enacted Criminal Code provisions to justify using VIS evidence as an aggravating factor.Footnote 19 Furthermore, courts in several provinces have expanded the factors that can aggravate the offender’s sentence to include ancillary, or secondary, harmFootnote 20 suffered by family members (or people who were close to the victim) even in some non-homicide cases.Footnote 21

In Alberta, the question remains unsettled. In Deer,Footnote 22 the Court of Appeal found that the trial judge erred in treating VIS evidence suffered by family members as an aggravating factor after the murder of a victim. It remains unclear whether the Court of Appeal also rejects all use of VIS evidence as aggravating or whether this rejection only relates to secondary harm. This lack of guidance is felt at the trial level. Some trial judges have found that when the harm (direct or indirect) described in the VIS is not disputed, the facts in the VIS can be relied upon as aggravating circumstances.Footnote 23 By contrast, in Krahn,Footnote 24 the judge interpreted Deer expansively, as prohibiting the general use of VIS evidence as aggravating. In Firingstoney, the judge interpreted Deer more narrowly to prohibit only ancillary harm, suggesting that “a family’s loss, conveyed through [VIS], cannot be treated as an aggravating factor at sentencing”Footnote 25 while specifying that this reasoning does not ignore the aggravating factor at s. 718.2(a)(iii.1).

Courts have also confirmed that the Crown must prove contested aggravating factors beyond a reasonable doubt. Indeed, when a party relies on a contested aspect of the VIS to aggravate the sentence, they must prove that aspect beyond a reasonable doubt. In Racco,Footnote 26 VIS information, containing medical diagnoses and records, was contested and then rejected on the grounds that it had not been proven beyond a reasonable doubt. Similarly, in BMS, the court required more evidence than a VIS to conclude that the level of psychological harm suffered by the victim amounted to a “violent offence” so that a jail sentence could be imposed on a young offender.Footnote 27

Trial courts have not addressed the question of whether a VIS can be used as a relevant mitigating factor. Appeal cases, however, have considered victims’ views that support mitigation. In Guerrero Silva,Footnote 28 the offender’s wife, who was the victim of domestic violence, wished that her abusive spouse not be separated from their child. The Quebec Court of Appeal interpreted this as a form of forgiveness and recognized that case law considers it to be a relevant factor in mitigation. The court nevertheless highlighted the special care needed in domestic violence cases to ensure that forgiveness is expressed without undue pressure. The court also highlighted that forgiveness is inversely proportionate to the gravity of the offence, and that sentencing also has a dimension of social denunciation – the offence encroaches on our society’s basic code of values – which goes beyond the interests of the offender and the victim. Ultimately, the court concluded that although the victim’s compassion towards the offender did not stem from external pressure, the sentencing judge placed too much emphasis on the victim’s wishes and underestimated the evidence of a risk of future violence towards the victim.Footnote 29 Interestingly, the court did not perceive the victim’s wishes as a sentence recommendation. It also underscored that the victim’s opinion as to the appropriate sentence is irrelevant and should not be solicited or considered by the sentencing judge.

Victims expressed their wishes for mitigation in another recent case, HE.Footnote 30 In this case, the victims of sexual assaults, namely the respondent’s wife and their two children, stated in their VIS that they hoped the respondent would get counselling for his anger and become a better person. They did not want him jailed, and the wife was surprised that there were potentially serious consequences to the respondent’s conduct. Despite this recommendation, the court did not rely on the victim’s opinion to craft the sentence. Instead, it retained the need for denunciation to justify several years of imprisonment.

These decisions highlight that although courts sometimes consider victims’ wishes and perceptions relevant, those wishes are not determining factors when the evidence supports a greater need for denunciation. This is difficult to reconcile with the view that the victim’s opinion about the appropriate sentence is irrelevant and that the judge should not solicit or consider it.Footnote 31 Indeed, separating the victim’s wishes about the future of the relationship from her wishes about the sentence to be imposed can be an artificial distinction for the judge, particularly when the victim’s wishes about the relationship would result in the offender not spending time in prison. The VBR and the Criminal Code amendments codify existing case law, which includes where, in exceptional cases, the court has allowed victims to provide their reviews on sentencing. However, the law does not specify these exceptional circumstances. That makes it difficult to know which situations may warrant victims’ opinions.

Despite the VBR recognizing that the victim’s opinion can occasionally be relevant at sentencing, some judges have resisted the idea of allowing recommendations from victims, particularly when they involve sentences that are disproportionately severe.Footnote 32 This issue was addressed in BP:Footnote 33 the judge highlighted that the VBR does not create a right for victims to recommend sentences, but it does allow their recommendations to be admissible if permitted by the court. It remains to be seen whether judges will grant permission when they want to hear the victim’s wishes for the relationship, or whether VBR will also expand in other contexts. The latter approach was supported in Bard, where the victim’s opinion was heard on the issue of how long the prison sentence should be before the offender could become eligible for conditional release.Footnote 34

2.0 Community Impact Statements

The 2015 amendments to the Criminal Code in the Victims Bill of Rights Act included a new CIS provision. This formally recognized the use of CIS at sentencing. Since 2015, approximately 25 reported decisions – all from trial courts – have dealt with CIS.Footnote 35

2.1 What is a recognized community?

Although courts have not explained how to define a community or identify a community’s representative when submitting a CIS, discernible communities can be found in the case law. They generally fall into one of four categories:

  • the community of a particular neighbourhood, town, or geographic areaFootnote 36 whose representatives are often mayors;Footnote 37
  • the community of the victim’s work colleagues,Footnote 38 typically represented by supervisors and company representatives;Footnote 39
  • Indigenous nations, whose representatives are often Chiefs or managers;Footnote 40 and
  • the community as a group with a particular identity marker, such as the Muslim community or the LGBT community.Footnote 41

Representatives of those communities seem to be either individualsFootnote 42 or organizationsFootnote 43 with those identity markers who are activists within the community.Footnote 44

2.2 CIS framework

Very few court decisions expand on the role, content, or form of CIS. Courts have relied on the VIS framework to interpret the CIS regime, particularly since both VIS and CIS forms in the CC are similarly drafted. Indeed, as is the case with VIS, CIS must not contain assertions of fact about the offence or offender, and cannot contain comments on the offender’s character or make recommendations about the sentence. CIS are meant to convey the impact of the crime on a community, as told by one person’s words.Footnote 45 While some courts allow the mode of delivery to be flexible, this is not always the case.

In Denny, two CIS were submitted – one by a member of the LGBT community, which included presenting a local community magazine and a YouTube video montage to illustrate a memorial tribute made by the local community. The defence objected to the admissibility of the magazine and video, saying they did not comply with the newly enacted CIS form. The judge accepted this mode of delivery, highlighting that CIS should be prepared and presented like VIS to the greatest extent possible, but that it might be difficult for one person to fully articulate the impact on the community or where it might be better to communicate this impact in an unorthodox way. Indeed, the judge highlighted that form 34.3 of the Criminal Code recognizes flexibility by allowing drawings, poems, or letters to describe the harm suffered.

In Ali,Footnote 46 a document purportedly filed as a CIS by the Crown was rejected as such by the court (although it was accepted on different grounds). The court explained that the document said nothing about the harm or loss suffered by the community, only gave general information about the frequency of a class of offences, did not refer to a specific offence, and failed to conform to the required form, 34.3.

3.0 Implementation of Legislative Changes Introduced by the Victims Bill of Rights Act

This section examines cases that relied on the legislative changes under the VBR to enforce victims’ rights, including the right to

  • information,
  • the use of testimonial aids,
  • restitution, and
  • participation.

3.1 Rights to information and the use of testimonial aids

The right to informationFootnote 47 applies to different stages of the criminal process. It has most frequently been used to provide victims with information about decisions to release the accused. More specifically, the provision was invoked by administrative tribunalsFootnote 48 in the context of non-criminally-responsible–related decisions under Criminal Code section 672.38. Its purpose was to provide victims with information about the decision to conditionally release the accused, the specific conditions of release, as well as notices of future hearings. To protect the accused’s privacy, tribunals have refused to provide the exact location of the accused’s residence when the victim requested that information.

Under section 13 of the CVBR, which recognizes the victim’s right to ask for a testimonial aid, courts have allowed complainants to testify with the assistance of a support dogFootnote 49 and outside the courtroom by video links.Footnote 50

3.2 Rights to seek restitution and participation

In a recent case of fraud, the court implemented the victim’s right to seek restitutionFootnote 51 and ordered the offender to make full restitution to the victim(s).Footnote 52 The CVBR is also frequently cited as a statutory authority for victims to be heard in court, with specific references to VIS at the sentencing stage.Footnote 53

4.0 Developments on VIS in Common Law Jurisdictions

4.1 England and Wales

In England and Wales, PerkinsFootnote 54 clarified the framework and limitations of VIS,Footnote 55 including their purpose, form, and content. This decision has been authoritatively cited in many cases and contains similarities with the Canadian approach, that VIS constitute evidence and must be legally treated as such. Victims can decide whether to make these statements, but the responsibility for presenting admissible evidence remains with the prosecution. The VIS may be challenged in cross-examination and therefore the VIS regime – the content of the VIS and any supporting evidence – gives rise to disclosure obligations.Footnote 56

Although the victim’s opinion of the sentence is not relevant under the Crown Prosecution Service guidelines,Footnote 57 some cases have considered victims’ views as mitigating circumstances. In Nunn,Footnote 58 a case involving death by dangerous driving, members of the victim’s family, who knew the offender and his suffering following the offence, pleaded that the sentence was too long and was making it difficult for them to cope with their trauma. Although the court highlighted that their opinion should play no role in sentencing, it relied on a merciful approach towards the victim’s family to reduce the sentence. Similarly, in Roche, the Court of Appeal suggested that a court can never become an instrument of vengeance, but can “in appropriate circumstances, to some degree, become an instrument of compassion.”Footnote 59 Finally, in Perks, the Court of Appeal stated that victims’ opinions should not be considered, except

  1. where the sentence passed on the offender is aggravating the victim’s distress, and
  2. where the victim’s forgiveness provides evidence that their psychological or mental suffering must be much less than would normally be the case.Footnote 60

4.2 Australia

In Australia, recent case law has also addressed evidentiary issues related to aggravation, the distinct language of VIS, and the consideration of ancillary harm.

As in Canada, Australian courts require proof beyond a reasonable doubt when the VIS contains contested aggravating evidence.Footnote 61 When the defence does not contest that evidence, there is generally no difficulty when the court relies on VIS information that is confirmed by other sources. Problems arise when the defence does not contest, but evidence is cited that can significantly aggravate the sentence. In those situations, judges are instructed to draw the defence’s attention to this to allow them an opportunity to challenge the evidence.Footnote 62 This greater judicial intervention departs from the adversarial model and has not been recognized in other common law jurisdictions.

In Dimitrovska,Footnote 63 the Court of Appeal distinguishes between legal language and the language of victims. The court recognized the subjectivity of VIS and stated that they can only be used to provide information about the general effect of the injury, rather than about more specific effects resulting from the injuries. When more specific elements are cited as evidence, such as prognoses, evidence from a qualified expert is necessary. Further, it was decided that VIS would lose much of their force and benefit if expressed in language used by lawyers. It is therefore acceptable for VIS to be imprecisely or ordinarily expressed.

Finally, as in some Canadian cases, the court in GEFootnote 64 expanded the recognition of ancillary harm suffered by family members beyond cases of homicide where the primary victim has died. The court held that, given the broad definition of harm, the statute includes the harm suffered by a family of a young child, who is the primary victim, even if death has not occurred.

4.3 United States

The American VIS regime differs notably from most common law jurisdictions. In Bosse,Footnote 65 the Supreme Court considered it an error to allow victim recommendations to the jury about the sentence in a death penalty case. However, this question is not settled, since a state supreme courtFootnote 66 held that Bosse does not apply to non-capital proceedings. That court stated that a jury’s dangerous uses of a victim’s recommendation in a capital murder trial do not occur in non-capital sentence proceedings before a neutral and impartial judge. If this approach were to apply, it would differ from common law jurisdictions that do not usually allow for sentencing recommendations. Finally, another court recently held that a sentencing judge has broad discretion to admit and consider victim evidence in forms outside of the bounds of VIS and victim impact testimony.Footnote 67 Contrary to the ambiguity in Canada, the court made clear that videos are part of these accepted forms.

Conclusion

Domestic and international case law has evolved considerably since the CVBR was enacted. Although courts have offered some clarity throughout the years on questions about recognizing VIS and CIS as evidence, more guidance based on a principled analysis of sentencing would be helpful in this area. Further reflections and research on conceptions of harm, secondary victimization, and the impact of emotions in the criminal process would contribute to a better understanding of the value of victim and community participation in the criminal process.

References

Manikis, Marie, and Julian Roberts. 2012. “Victim Impact Statements: Recent Guidance from the Courts of Appeal.” Victims of Crime Research Digest, No. 5, 2–6.

Marie Manikis has been an assistant professor at the Faculty of Law of McGill University since 2013 and is a member of the Centre for Human Rights and Legal Pluralism, McGill University, and the International Centre for Comparative Criminology, University of Montreal. She teaches criminal justice, criminal law, sentencing, and criminal procedure.

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