JIDV - IJOV

Authors

Introduction

n Canada, as in most other common law jurisdictions, crime victims have the right to submit a victim impact statement at sentencing.^[1] Victims complete a victim impact statement form, which is then submitted to the court, and a copy is made available to the offender prior to the sentencing hearing. For research into the reaction of victims to the use of victim impact statements see Meredith and Paquette (2001). Since their introduction, victim impact statements (VIS) have generated considerable controversy in Canada as well as other jurisdictions (see Roberts, 2003, for a review of research into the use of victim statements at sentencing, and Young (2001) for a broader discussion of victim issues in Canada). Victim impact statement provisions entered the Criminal Code of Canada in 1988, and statutory amendments were introduced in 1999 to further promote the use of these statements in the sentencing process. These amendments included codification of the victim’s right to submit a victim impact statement orally at the sentencing hearing.

            The statutory platform for the use of Victim Impact Statements in Canada is provided by Section 722 of the Criminal Code that begins:

722(1) Victim Impact Statement ‑ For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(2) Procedure for victim impact statement - A statement referred to in subsection (1) must be

(a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by the Lieutenant Governor in Council of the province in which the court is exercising its jurisdictions; and

                        (b) filed with the court.

722(2.1) Presentation of statement -The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (2), or to present the statement in any other manner that the court considers appropriate.

            Research into the functioning of the victim impact statements in Canada and elsewhere has identified a number of problems with respect to this reform of the sentencing hearing (see Roberts, 2003). To this point however, there has been an almost complete absence of information about the attitudes and experiences of the most important criminal justice professional with respect to the sentencing process: judges. While a very limited number of studies have explored the views of judges in other jurisdictions (see Erez and Rogers,1999; Henley, Davis and Smith, 1994), no survey has ever been conducted of the Canadian judiciary. It is an important oversight; if judges do not support the use of victim impact statements, or do not use the information contained therein, victims are unlikely to wish to submit such statements. The purpose of this research project was to fill this void by exploring the experiences and perceptions of a sample of Canadian judges. This article reports the findings from the survey.

Method

            A survey relating to the use of victim impact statements was developed. Judges were asked a series of specific questions and were also asked to add their comments about any aspect of the victim impact statement regime. The questions addressed a number of general issues with respect to the use of victim impact statements. (A copy of the questionnaire can be obtained from the first author). As well, judges were asked about the effect of recent (1999) reforms designed to improve the effectiveness of victim impact statements in sentencing. With the co-operation of the Office of the Chief Justice of the Ontario court of Justice, the survey was subsequently distributed electronically to all sitting judges in the province. Responses were received electronically and by mail. The questionnaires were returned anonymously to researchers. A “cut-off” date was reached once 10 consecutive business days had passed without a completed survey being received. The analyses reported here are based upon responses received according to this criterion. Completed surveys were received from approximately one third of all judges that regularly sentence offenders under the Criminal Code. This response rate is comparable to other surveys of the judiciary in this country.^[2]   

Findings

Volume of Sentencing Hearings in Canada’s criminal courts

            The caseload in the Canadian court system creates a large number of sentencing hearings each month. Survey respondents were asked how many sentencing hearings they conducted each month, and the average was 71. Fully 15% of the sample reported sentencing over 100 offenders each month. This pattern has important implications for the sentencing process, and in particular for the question of victim input: judges are under great pressure to get through a large number of sentencing hearings. This prevents them from devoting a considerable amount of court time to any particular case. The consequence for the use of victim impact statements is clear: judges have little time to devote to allowing victims to read their statements aloud in court, even though they have the right to do so according to recent amendments to the Criminal Code in Canada. One way of increasing the number of victims who submit a victim impact statement therefore, would be to reduce the number of sentencing hearings conducted, thereby increasing the amount of court time available for each specific hearing.

Few Victims Submit Victim Impact Statements

            Although since 1988, crime victims in Canada have had the right to submit a VIS to the court, only a minority of victims actually do. This survey confirms one of the problems with victim impact schemes identified in reviews of the research literature: victim impact statements are seldom submitted (see Roberts, 2003). Fully 70% of the judges surveyed reported that a victim impact statement had been submitted in less than 10% of cases. Only 5 judges reported having had a victim impact statement submitted in more than one quarter of the cases in which they had imposed sentence. On average, judges reported that a victim impact statement was submitted in 11% of cases.

            Several judges spontaneously identified this problem in comments on their questionnaires. One respondent wrote: “Unfortunately they are under-utilized. I am often told that the victim does not want to complete one, which indicates a lack of understanding on the victim’s part.” Although some victims may not wish to submit a statement for their own personal reasons, research in Canada and elsewhere has demonstrated that many victims refuse to submit a statement because they have little faith in the judicial process, or because they have been told that the statement “will make no difference to the judge”.

            This finding is important both for a country like Canada, where victim statements have been in use for years, and other jurisdictions contemplating the introduction of this sentencing reform. The lesson is clear: it is important to convince victims of the benefits of submitting a statement, and equally important to provide courts with sufficient time to conduct sentencing hearings.

Judges frequently do not know whether the victim has been apprised of the right to submit a VIS

            It is sometimes challenging for a judge to know whether the victim has been apprised of his or her right to submit a victim impact statement. Respondents were asked about this particular issue. One third stated that it was “difficult in most cases”; 18% stated that it was “easy in some cases”; 35% responded that it was easy in most cases while only 14% responded that it was easy in all cases. This pattern of responses suggests that it is frequently difficult to ascertain whether the victim has been provided with the opportunity to submit a victim impact statement.

            According to Section 722.2 (1) of the Criminal Code:

As soon as practicable after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim or victims have been advised of the opportunity to prepare a statement referred to in subsection 722(1).

            This provision creates a statutory obligation on judges to make an inquiry with respect to the victim impact statement before proceeding to sentencing. Many sentencing hearings take place following a guilty plea. This plea is often a result of plea negotiations that may have resulted in an agreement to make a joint submission on sentencing. In other words, there is often little opportunity to pursue the issue of a victim impact statement. In the survey, judges were asked how often they elected to proceed with a sentencing hearing without knowing whether the victim has been apprised of his or her right to submit a victim impact statement in accordance with section 722.

Utility of Victim Impact Statements at Sentencing

            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 from 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 are determinative on this issue; whether a particular piece of information is useful for the purposes of sentencing is surely a matter for the court to decide, and not other criminal justice professionals or academic commentators.

Most judges say that they find victim impact statements useful

            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”. Only 12% responded that they were useful in just a few cases. Forty percent stated that they useful in some cases, while almost half the sample responded that they were useful in most or all cases in which they are submitted.

            This pattern of results suggests that contrary to some commentators, judges do in fact find victim impact statements useful when determining sentence. Even some judges who are somewhat sceptical of the utility of the victim impact statement sometimes find them useful. One 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...” The second question relating to this issue asked judges whether they found VIS useful in terms of providing information relevant to the principles of sentencing. Again, the general reaction seemed to be positive: Only 12% responded never or almost never. Half stated “sometimes”, 27% “often” and 10% “always” or “almost always”.

Judges state that victim impact statements can contain unique information

            It may be argued that the information contained in the victim impact statement is useful, but redundant, in the sense that it has already emerged in court. To address this question we asked 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?”. Only 16% of the judges responded that victim impact statements almost never contained unique, relevant information. A further 18% responded that victim statements seldom contain useful information unavailable elsewhere. Approximately half (52%) stated that victim impact statements sometimes contained unique relevant information, while 14% chose often. Taken together the responses to these inter-related questions suggest that from the judicial perspective – which, after all, is critical – the victim impact statement can be a useful source of information relevant to sentencing.

Prosecutors also report that the victim impact statements are useful

            It is interesting that a similar trend emerged from the survey of Crown counsel in Ontario. In that survey, 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. 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.

Victim impact statements most likely to be useful in cases involving violence

            Additional questions on the survey asked about the kinds of offences for which victim impact information is particularly useful. 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, 84% responded affirmatively. These respondents were then asked to identify which category of offence they had in mind. Fully 83% identified crimes of violence, and 51% identified domestic assaults. Approximately the same percentage (53%) identified 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 cited, the purpose of the victim impact statements being to quantify the extent of loss to the victim.

            Finally, one 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 VIS were particularly useful where the impact of the crime is “likely to be significant, e.g., break and enter”.

            In light of the very limited resources of the criminal justice system in Canada, it is important to direct resources where they will be most effective. The findings from this survey suggest that victim impact statements are particularly useful for some offences, less so for others. The justice system should therefore concentrate on establishing priorities of victims, beginning of course with the victims of violence. Jurisdictions considering the introduction of victim impact statements would be advised to follow the practice in some provinces in Canada, where prosectors adopt a form of triage, in which priority is given to the most serious cases, particularly those involving violence.

In many cases, judges have to proceed with sentencing without knowing about the VIS

            The results indicated that judges often have to proceed to sentence the offender without knowing the status of the victim impact statement. Only 6% responded that they never proceeded, with 29% that almost never proceeded without first establishing whether the victim had been so apprised. One quarter of the judges sometimes proceeded without this information and fully 40% “often proceeded”.

            Section 722 (2.) of the Criminal Code states that: “The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (2), or to present the statement in any other manner that the court considers appropriate.” This section was introduced in order to increase the number of victims who participate in the sentencing process by submitting an impact statement. How often do victims express a desire to make an oral presentation of their victim impact statement? It seems to be a quite rare occurrence in Canada. Thirteen percent of respondents stated that it had “never happened” in their court. Almost two-thirds responded that it happened “very occasionally” while the remainder (22%) stated that it sometimes took place.  

            Section 722(2) entered the Code as part of the amendments of 1999, and was designed to create the opportunity for victims to deliver their statements orally. Judges were asked whether they had perceived any increase since 1999 in the number of victims who expressed a desire to deliver their statements orally. The consensus – encompassing over two-thirds of the respondents – was that there had been no change in the number of victims making this request. Twenty-four percent of respondents reported noticing a “slight increase”, while 8% had noted a “moderate increase”. The experience of judges accords with that of Crown counsel. A survey of prosecutors in Canada found that 69% reported that their had been no increase in the number of victims requesting to present their victim impact statement in person (Cole, 2003).

Judges were somewhat concerned about possible delays created by oral delivery of statements

            Some commentators have expressed apprehension that as increasing numbers of victims elect to deliver their statements orally, sentencing hearings will become more protracted, consuming more valuable court time. Most respondents (68%) stated that this question was not applicable, as they had noticed no increase in the volume of victims making an oral presentation. Ten percent of the judges responded that the increase had had no impact on the amount of time it took to conduct a sentencing hearing. However, a significant minority (21%) stated that the increased number of victims delivering their statement orally had increased the amount of time taken to conduct a sentencing hearing. In other words, for those judges who had noticed an increase in the number of victims wishing to present a statement orally, a significant number believed that this trend had had an impact on the amount of time it takes to conduct a sentencing hearing.

Cross-examination of the victim by defence counsel seldom occurs

            Some victims have been cross-examined on the contents of their victim impact statements. This can be stressful for the victim, as several victims have affirmed (Young and Roberts, 2001). It is unclear how often this practice occurs. Responses to the survey suggest that it is a relatively rare occurrence: 84% stated that it never or almost never took place; 16% responded that it occasionally happened. No judge responded that it “sometimes” or “often” took place. One respondent noted that the defence usually counters the contents of the victim impact statement through submissions rather than by means of cross-examination of the victim. In her survey of defence counsel in Alberta, Bateman encountered the view that “they would only [cross-examine] if they were positive it would not backfire on their case” (2002, p. 25). Another judge observed that in his/her experience, “in about 10% of cases, defence counsel has objected to some contents of the victim impact statement as being inappropriate for admissibility.”

Contrary to assertions of some critics, VIS seldom contain opinions about the sentence that should be imposed

            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 is quite clear on this issue: victim impact statements should not contain recommendations for sentence. The victim is required to restrict him or herself to providing information about the impact of the crime. Nevertheless, research in other jurisdictions suggests that some victims do seek to make such statements at sentencing (see Roberts, 2003). Some victim impact statement forms used in Canada explicitly direct the victim to omit such material. The Alberta Victim impact statements form for example, notes that “The statement should not contain... recommendations as to the severity of punishment”. Other forms may encourage victims to include their views on sentence when they allow the victim to include “other comments or concerns”.

            Judges were asked how often, in their experience, victim impact statements contain the victim’s wishes regarding the sentence. Almost half the sample responded that this information was always, almost always or often present. Forty-one percent stated it was sometimes present. It is worth noting that only 16% responded that it was never or almost never present. 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. They also suggest that the manner in which VIS are introduced to victims and the information accompanying their introduction varies across the province (see Roberts and Edgar, 2002, for further discussion).

            Research has demonstrated that crime victims appreciate official acknowledgement of the harm they have suffered. This can come in the form of the victim impact statements, statements in the Crown submissions on sentence and other ways. 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.

When giving reasons for their sentence, judges often refer to the victim impact statement

            Consistent with the trend for judges to be sensitive to the issue, we found that over two-thirds of the judges reported that they almost always or often referred to the victim impact statements in their reasons for sentence. This finding reflects a growing tendency on the part of judges 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.” Only 3% of respondents stated that they never or almost never referred to the victim impact statements. Twenty-eight percent responded that they sometimes made reference to the victim impact statements.

            Several respondents wrote comments stressing the importance of recognizing the victim:

*          “I feel that the most important aspect of sentencing when a VIS has been filed is to acknowledge it and state on the record that it has been considered and factored into the sentence. In this way the complainant can feel that his or her efforts and feelings have been considered and given weight. I try to specifically make reference to a particular passage of the VIS (usually that section that asks how they have been affected by the actions of the accused).”

X                   “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.”

Conclusions

            A number of important conclusions emerge from this survey of judges. First, the results of this survey provide evidence to refute the position that victim impact statements contain little or no information that is unavailable from the prosecutor’s sentencing submissions. Significant numbers of judges appear to find material in the victim impact statements that is relevant to the task of determining the sanction to be imposed. Moreover, this observation assumes that the victim impact statement is purely informational, and unidirectional: the victim submits information relevant to sentencing which the court then uses to arrive at an appropriate disposition. But as the literature (and indeed the case law) makes clear, the victim impact statement serves other purposes as well. The expression of impact information carries communicative significance for the victim, who may wish to communicate a message to the offender as well as the judge. In addition, if the victim is present in court, there is an opportunity for the judge to communicate a message to the victim. In other words, allowing the use of victim impact statements at sentencing creates the potential for reciprocal communication to occur (see Roberts and Erez, 2003, for further discussion).

            Although judge find victim impact statements useful, it is clear that there are great constraints upon the ability of judges to take time to entertain oral presentations on impact information from the victim: judges simply have too many hearings to conduct. Caseload has an impact on whether the statement ever gets to court. As one judge wrote: “I think that they [VIS] are a great idea, but I get the impression that it is just one more bit of paper that the police or Crown have to contend with, since they are so busy, it often does not get done”.

            Despite the fact that Canada has permitted the use of victim impact statements for many years, much remains to be done. It is clear that much remains to be done before the victim impact statements realize their full potential. Victims need to be encouraged to submit statements, and should be able to deliver their statement orally, at the sentencing hearing. At present, this occurs only very rarely, and one explanation is that there are simply too many sentencing hearings being conducted in a restricted amount of time.

            Finally, these results provide valuable insight into the experiences of Canadian judges with respect to the use of victim impact information at sentencing. It would be useful, then, to replicate this survey in at least one other jurisdiction, to see whether judges in other countries have similar reactions to victim impact statements at sentencing.

References

Bateman, A. (2002) Use of Victim Impact Statements: Alberta Lawyers’ Perspectives. B.A. Thesis, Department of Psychology, University of Calgary.

Cole, M. (2003) Losing one’s Voice: The Victim Impact Statement at Sentencing. M.A. Thesis. Ottawa: Department of Criminology, University of Ottawa.

Erez, E., Roeger, L. & Morgan, F. (1994) Victim Impact Statements in South Australia: An Evaluation. Adelaide: South Australian Attorney-General’s Department.

Erez, E. and Rogers, L. (1999) Victim Impact Statements and Sentencing Outcomes and Processes. British Journal of Criminology, 39: 216-239.

Giliberti, C. (1990) Victim Impact Statements in Canada. Volume 7. A Summary of the Findings. Ottawa: Department of Justice Canada.

Henley, M., Davis, R. and Smith, B. (1994) The Reactions of Prosecutors and Judges to Victim Impact Statements. International Review of Victimology, 3: 83-93.

Meredith, C. and Paquette, C. (2001) Summary Report on Victim Impact Statement Focus Groups. Ottawa: Policy Centre for Victim Issues, Department of Justice Canada.

Roberts, J.V. (2003) The Use of Victim Impact Statements in Sentencing: A Review of International Research Findings. Criminal Law Quarterly, in press.

Roberts, J.V., Doob, A.N., and Marinos, V. (2000) Judicial Attitudes Towards Conditional Sentences of Imprisonment: Results of a National Survey. Ottawa: Department of Justice Canada.

Roberts, J.V. and Edgar, A. (2002) Improving the use of Victim Impact Statements at sentencing: Exploring reform options. Report for the Policy Centre for Victim Issues. Ottawa: Department of Justice Canada.

Roberts, J.V. and Erez, E. (2003) Reciprocal Communication and the role of victim impact information at sentencing. Manuscript under review and available from first author.

Rogers, L. and Erez, E. (1999) The Contextuality of Objectivity in Sentencing Among Legal Professionals in South Australia. International Journal of the Sociology of Law, 27: 267-286.

Young, A. (2001) The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999. Ottawa: Policy Centre for Victim Issues, Department of Justice Canada.

Young, A. and Roberts, J.V. (2001) Research on the role of the victim in the criminal process in Canada. Ottawa: Policy Centre for Victim Issues, Department of Justice Canada.

^[1]Victims also have a right to submit a statement at parole hearings, although this rarely occurs.

^[2]For example, Roberts, Doob and Marinos (2000) reported a response rate of 36% in their survey of judicial attitudes to conditional sentences of imprisonment. Bateman (2002) reports a response rate of 19% in a survey of crown and defence counsel experience with victim impact statements.