Victim Participation in the Plea Negotiation Process in canada

5. Victim Participation In The Criminal Justice System: The Precedent Of Victim Impact Statements In the Sentencing Process (cont'd)

5.2 The Influence of Victim Impact Statements on the Sentencing Process: The Emerging Canadian Jurisprudence

While many jurisdictions have introduced victim impact statements into the sentencing process, it is not entirely clear whether these statements exert a significant degree of influence on the severity of the penalty that is ultimately imposed. [30] In general, Canadian courts have been careful to suggest that, while victim impact statements provide valuable information, they should not be viewed as a vehicle by means of which the victim is permitted to play a direct role in determining the nature – or quantum – of the sentence that is meted out by the trial judge.

In R. v. Labbe (2001), Justice Bouck, of the B.C. Supreme Court, expressed the view that victim impact statements are essential for two purposes:

First, so the court is more aware of the harm done by the offender to the victim so that the sentencing judge has a better understanding of the offence's gravity. Second, to assure victims that the sentencing process includes them by ensuring they are not irrelevant and forgotten. (para. 51, quoting Paradis, Prov. Ct. J. in R. v. J.A.F. (1997)).

However, in Labbe, a case of manslaughter, Bouck, J. openly articulated his concerns about the extent to which victim impact statements should have a direct influence on the actual outcome of the sentencing process:

It is not clear whether Parliament meant that judges must impose a more severe sentence than is usual for a particular crime if there is a victim impact statement, or a less severe sentence if there is not. Nor is it clear whether the more grievous the loss suffered by the victim, or the surviving family of the victim, the more severe the sentence should be. (para. 47)

According to Bouck, J., "the guiding principle in criminal law is that any criminal offence is not a wrong committed against the person who is harmed, rather it is a wrong against the community as a whole" (para. 48). While victim impact statements may provide valuable information that is of considerable relevance to the sentencing goals articulated in the Criminal Code, the severity of the punishment imposed on the offender should not be a direct function of the victim's subjective characterization of his or her degree of suffering:

… To my mind, it matters not if the deceased is young, promising and much–loved, or old, deranged and despised by all who knew him. The law ought not to measure the value of a life taken, for to do so would diminish every person's right to live out his or her appointed span. (para. 52).

In Bremner (2000), the B.C. Court of Appeal unequivocally articulated the position that the victim of a criminal offence should have no role in determining either the type of sentence or the quantum of punishment that should be imposed on the offender. [31] In the words of Proudfoot, J.A. (Huddart, J.A. concurring),

There is nothing in the sections of the Code that permits a victim to have a role in suggesting the length of sentence or kind of sentence to be imposed… I do not wish to detract in any way from victims' ability to put forward to the court "the harm done" or "the physical or emotional loss as a result of the crime" but the Code does not enable a tripartite procedure with regard to recommendations for sentencing. The parties on sentencing remain the same as at the trial. (para. 23).

In Bremner, the accused had been convicted of four charges of indecent assaults against young men, aged between 13 and 16. He was sentenced to 18 months' imprisonment. Upon the accused's appeal against sentence, the Court of Appeal varied the sentence to a conditional sentence. Reflecting the view that the victim's desire for revenge must not influence the trial judge, Justice Proudfoot stated that,

Those victim impact statements (including that of A.H.) which urged particular sentencing options on the court were clearly not appropriate to be presented at a sentencing proceeding. Moreover, more than one statement sought to achieve personal revenge, something that is not appropriate in the sentencing process. (para. 28).

In a similar vein, the case of Thornton (2000) demonstrates that trial courts are loath to suggest that their sentences are directly based on the contents of a victim impact statement – even if it expresses a profound degree of personal suffering. Although the consequences of Thornton's offence were described as being "catastrophic," the trial judge nevertheless did not appear to place much weight on the victim impact statement. The accused had been convicted of dangerous driving causing death and the deceased's mother had filed a victim impact statement – from which the trial judge concluded that, "it is obvious that her son's death has had a traumatic effect on her" (para. 39). In imposing a conditional sentence, Justice Romilly, of the Supreme Court of B.C., simply referred to the victim impact statement as being only one of the many factors that had been taken into consideration. This approach was dramatically illustrated when the trial judge directly addressed the mother of the deceased:

… I just wish to point out that the Court fully understands the loss and pain that you have suffered as a result of this tragic accident. Nothing that we can do can bring your son back to life. The Court can only follow existing jurisprudence and attempt to bring some measure of closure to this sad incident. (para. 43).

However, while Canadian judges have repeatedly emphasized the precept that victims do not have any direct role to play in determining the specific sentence that should be imposed on "their" offenders, the appellate courts have nevertheless taken the initiative to set aside sentences imposed at the trial level, if the trial judge has failed to take into account significant information that has been presented in a victim impact statement. For example, in Kennedy (1999), the Ontario Court of Appeal set aside the sentence imposed by the trial judge because he had failed to take into consideration the full impact of the sexual assault upon the complainant, who had made a victim impact statement. [32] As Feldman, J.A. (para. 21) stated, in delivering the judgment of the Court, "a sentencing judge is always mindful of the fact that nothing can undo what has already happened to the victim, whereas the system can attempt to address the needs of the perpetrator and the need of society to try to assist the perpetrator to become a productive and contributing member. However, the Court then proceeded to emphasize its view that 'sentencing is a balancing process' and that, in this particular case,… the crime was particularly horrific for the victim. So was the aftermath… Contrary to the view of the sentencing judge, in those circumstances, general deterrence became particularly significant as a sentencing factor. It was an error to discount it and to treat this as a case in which the applicable sentencing principles could be properly balanced by the imposition of a sentence at the lowest end of the range for offences of this type." (para. 22).

A similar approach was embraced by the Ontario Court of Appeal in the case of Bates (2000), in which it was held that the sentence of the trial court should be set aside because the trial judge had failed to take account of the ongoing effects of the offender's crimes upon his victim. The Court of Appeal substituted a "penitentiary term" for the suspended sentence that had originally been imposed by the trial judge. The accused had been convicted of criminal harassment, uttering a death threat, three counts of assault and six counts of failure to comply with the terms of various bail orders. The Court noted (para. 30) that crimes involving family violence "are particularly heinous because they are not isolated events in the life of the victim" and noted that, in addition to "continuing abuse," the victim also "experiences perpetual fear of the offender." Significantly, the Court emphasized that the victim impact statements that had been prepared in this case graphically demonstrated the ongoing fear that had been created by the accused's ongoing campaign of harassment:

In addition to the need to consider the safety and security of the victims, the court was required to consider the victim impact statements and the ongoing effects the victims were suffering as a result of the conduct of the respondent. The sentencing judge failed to do so. (para. 46).

It is also noteworthy that appellate courts have taken pains to underscore the view that a trial judge is entitled to place considerable weight on the information presented in a victim impact statement, provided that he or she duly relates this information to the appropriate sentencing principles that have been articulated by Parliament and the appellate courts. For example, in R. v. Jackson, (2000), the accused was a police officer, who had been convicted of one count of assault against his wife and one count of careless storage of firearms and ammunition. The trial judge sentenced the accused to a suspended sentence and probation. In justifying this decision, the trial judge made it clear that he had been significantly influenced by certain information contained in the victim impact statement:

In my view the appropriate manner of disposition of this matter on sentence is by way of a suspended sentence and by way of probation. I am concerned about what is expressed in the victim impact statement in terms of the anger that is said to be in the accused and certainly when dealing with his ex–wife. I sensed it in the evidence that I heard at this trial, and that is a concern to me. (para. 7).

The accused appealed to the B.C. Supreme Court and contended that he should have been granted a conditional discharge. However, Justice Cowan upheld the original sentence, concluding (para. 11) that the "trial judge was fully cognisant (sic) of the several matters which he had to weigh and consider in deciding upon the appropriate sentence."

Similarly, in Tran (1999), the accused had entered a plea of guilty to manslaughter and had been sentenced to a term of seven years in prison. A victim impact statement had been filed at the sentencing hearing by the deceased's wife and daughter. This statement was characterized by the trial judge as being "extremely powerful and moving" (para. 3). In light of the contents of the victim impact statement, the trial judge ruled that it was to be considered an aggravating factor that the deceased's demise had "left his widow and four infant children in a country foreign to them and in a precarious economic circumstance" (para. 5). In affirming the sentence, Justice Braidwood, of the B. C. Court of Appeal, ruled that "there is no indication that undue emphasis was placed on the victim impact statement." In his view,

… it is an aggravated aspect of this case that the appellant and the deceased were friendly such that he would well know the family responsibilities that his victim had assumed before he stabbed him to death in the presence of the young girl. (para. 18).

A final example of this appellate approach, to the use that is made of victim impact statements by the trial judge, is furnished by the case of Miclash (2001), in which the accused had been convicted of sexual assault causing bodily harm against a three–year–old girl. He was sentenced to five years' imprisonment and the B.C. Court of Appeal subsequently upheld this sentence. Saunders, J.A. noted that "the significant physical damage and emotional trauma is another aggravating factor" (para. 11). These consequences were underscored by the victim impact statement, that "provides insight into the devastation and damage the accused caused the complainant, her sister and her mother"(para. 12). However, Justice Saunders (para. 7) emphasized that the Court of Appeal has "time and time again, said that offences of this type should be severely punished in order to protect children and especially daughters and stepdaughters, and to express the community's concern and condemnation for this type of behaviour." In the end result, the Court noted that the trial judge had been correct to emphasize the principles of deterrence and denunciation and it appears that the victim impact statement merely provided information that was relevant to the application of these principles.

Overall, it appears that the growing body of Canadian case law concerning the use of victim impact statements in the sentencing process is predicated on the unequivocal principle that the victim should not be granted any direct role in fixing the nature and quantum of the penalty ultimately meted out by the trial court. However, the appellate courts have undoubtedly varied sentences, where the trial judge has failed to take into account critical information that is contained in victim impact statements and that is considered to be relevant to the application of the basic principles of sentencing that apply in all cases. Furthermore, the appellate courts have been markedly reluctant to hold that a sentence should be set aside because the trial judge has placed undue weight on the contents of a victim impact statement: indeed, such an outcome is only likely to occur where the trial judge has not demonstrated in his or her ruling that all of the other relevant factors were duly considered before the ultimate choice of sentence was made.

Insofar as victim participation in the plea bargaining process is concerned, the Canadian judicial experience with victim impact statements suggests that there would be absolutely no support for the notion that the victim should have the right to veto, or to dictate the terms of, any proposed plea agreement. However, if Canadian courts were to be assigned the task of accepting or rejecting proposed plea bargains, then it is suggested that the experience that they have gained in relation to victim impact statements in the context of sentencing might well prove to be particularly apposite to this novel situation. More specifically, this experience would appear to indicate that those courts, which are faced with the need to decide whether a proposed plea agreement should be accepted or rejected, will be expected to take into account any information presented by the victim – provided that it is deemed to be relevant in terms of the general principles that will ultimately be articulated for the guidance of judges who are engaged in this new task. Furthermore, as Renke (1996, p. 115) has pointed out in relation to victim impact statements, granting victims the opportunity to actively participate in critical phases of the criminal justice process reflects their rights to "have a voice, to ensure that the real effects of crime are not elided by professional talk" and to "not be forgotten."