Victim impact statements are tendered during an accused’s sentencing hearing. The formalized victim impact
statement at s. 722 of the Criminal Code was introduced in 1995.[1] Additionally, Ontario enacted the Victims’
Bill of Rights in 1995.[2] In 2015, the Canadian Victims Bill of Rights gave victims the federal statutory right
to make a statement, in addition to other procedural entitlements within the
criminal justice system.[3]
The Criminal Code defines ‘victim’ at section 2 as follows:
“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property
damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.[4]
Purpose of the Victim Impact Statement
Victim impact statements are used by the court in addition to other facts to determine a “fit” sentence for an offender. If a victim impact statement is tendered, then it must be considered. Victim impact statements are meant to convey the effect that the offence had on the victim, including physical or emotional harm, property damage, or economic loss.[5] Even if a victim does not prepare a statement, the judge can consider any other evidence of the victim of the offence (for example testimony during a trial, or additional evidence) during
the sentencing hearing.[6]
If the victim impact statement contains other information that should not be included (e.g. the type of sentence that the victim wants the offender to receive) the judge is to disregard those portions of the victim
impact statement.[7] A court may order the Crown or another party to vet the victim impact statement to ensure that only admissible information is provided.[8] The British Columbia Court of Appeal has stated explicitly that it is the Crown’s job to vet the victim impact statement.[9] The Crown can tender more than one victim impact statement.[10]
Timing for obtaining the Victim Impact Statement
A victim impact statement may be prepared at any time, but once it is provided to the Crown, it must be disclosed to the defence. As such, in order to prevent premature disclosure, often a victim impact statement is not prepared until a finding of guilt has been made. As soon as practicable after an accused is found guilty, the court will inquire whether or not reasonable steps have been taken to notify the victim of the opportunity to
prepare a statement.[11] The court has the discretion to adjourn the proceedings to obtain a statement or other evidence.[12]
Form of the Victim Impact Statement
The victim impact statement is filed in form 34.2 of the Criminal Code.[13] In Ontario, several parties can assist the victim in preparing a victim impact statement:
- the officer in charge of the case,
- the local victim witness assistance program, or
- several non-profit victim assistance programs.
Despite the direction in the Criminal Code, a victim impact statement need not take the prescribed form to be recognized and treated as a victim impact statement.[14] Unless defence counsel expressly objects to the form, a victim impact statement may be filed in another form, such as an e-mail.[15]
Letters that are sent directly to the accused do not meet the definition of victim impact statements pursuant to section 722 and, if counsel objects, may not be admitted.[16]
Filing the victim impact statement in court
Once a victim impact statement is prepared, it must be delivered to the Crown. It will
then be disclosed to the defence before being provided to the sentencing judge.[17] In terms of presenting the victim impact statement in court, there are various options:
- The written statement can be filed and the Crown can read it into the record.
- The written statement can be read by someone acting on the victim’s behalf.[18]
- The victim may choose to read it in open court and then file the written statement.[19] At the time the victim reads the statement, they may be accompanied by a support person of their choosing (friend, relative, victim witness assistance program support person, etc.)[20]
- A family member close to the victim may read or present the statement.[21]
- The victim may choose to read the statement via closed circuit TV or from behind a screen to avoid facing the offender and then have the statement filed.[22]
- The victim may ask the presiding judge to present the statement in another way, provided the judge deems the manner appropriate.[23]
In addition to the written statement, the victim may also include a photograph of themselves taken from before the offence, provided it does not disrupt the proceedings.[24]
Situations where the victim may have to testify
If the Crown intends to rely upon a fact contained in a victim impact statement as an aggravating factor on sentencing, they must prove such facts beyond a reasonable doubt.[25] For example, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances (including their health and financial situation) is an aggravating factor.[26] In situations where the Crown is alleging additional aggravating factors, the judge has the power to order witnesses to appear and be cross-examined.[27] Counsel may cross-examine the victim where there is a dispute as to the aggravating fact to be proved. However, the right is subject to the judge’s discretion. In order to ensure that the victim is not needlessly harassed, the Ontario Court of Appeal has stated,
This analysis suggests that there is a discretion on the part of the sentencing judge to assess the offender's request in light of the facts that have been proved and the evidence that has been led, whether at the trial or on the sentencing hearing, with a view to achieving a just reconciliation between respecting the procedural rights of the offender and respecting the legitimate role of the victim in the sentencing process. The sentencing judge's duty to ensure that the offender's procedural rights are protected entails a discretion to permit cross-examination when satisfied that there is an air of reality to the claim that the facts are in dispute and that the offender's request to cross-examine is not specious or empty.[28]
Thus, there are limits as to when a victim may be cross-examined on a victim impact statement.
Improper considerations in Victim Impact Statements
As mentioned, when the Crown wishes a court to consider the facts contained in the victim impact as an aggravating factor, the standard of proof for those facts is beyond a reasonable doubt. In R. v. Taylor, the Ontario Court of Appeal held that, victim impact statements, like criminal records, do not justify double punishment -- once for the crime against society, and again to counterbalance the harm done to the victims.[29]
Matters that should not be included in a victim’s statement
include:
- Sentencing recommendations;
- Criticism of the offender;
- Assertions as to the facts of the offences;
- Statements directed to the offender;
- Descriptions of other offences committed by the
offender. - Overly emotional statements.
Victim impact statements that are presented in an overly emotional and prejudicial manner are inappropriate. The B.C. Court of Appeal in Berner, considered it inappropriate for the father of the child who was killed to show 10 photographs and a video of his daughter on a large video screen in the courtroom while delivering his victim impact statement.
Such matters must be disregarded in accordance with s. 722(8) of the Criminal Code.[30]
Conclusion
Even if Counsel cannot obtain Form 34.2, a statement can still be prepared in a simple letter to the judge format. Counsel should steer the victim away from personal attacks on the accused, pleas for a harsh sentence, or the recitation of a litany of other offences for which the offender was not charged. On the other hand, a victim is allowed to request leniency for an offender, but the court may make inquires to ensure that the offender is not pressuring the victim to ask for that leniency.[31]
Whether you are an accused being sentenced after receiving a victim impact statement or a victim drafting a victim impact statement, the lawyers at Berkes Law can provide assistance in Orillia, Barrie, Newmarket, Vaughan, Richmond Hill, Markham, Kitchener, Guelph, Brampton, Mississauga, Hamilton, St. Catharines, Niagara Falls, Toronto, Scarborough, Pickering, Ajax, Whitby, Oshawa, Kingston, Lindsay, Peterborough and elsewhere in Ontario.
[1] Unless otherwise noted all section numbers refer to the Criminal Code of Canada. RSC 1985, c C-46.
[2] Victims'
Bill of Rights, 1995, SO 1995, c 6
[3] Canadian Victims Bill of Rights, SC
2015, c 13 s 2 at section 15
[4] Section 2
[5] Section 722(1)
[6] Section 722(9)
[7] Section 722(8)
[8] R.
v. Gabriel 1999 OJ 2579 (Ont. SCJ)
[9] R.
v. Berner 2013 BCJ 835 (BCCA)
[10] R. v. Phillips 1995 OJ No 3617 (Ont. Gen. Div.)
[11] Section
722(2)
[12] Section
722(3)
[13] Section
722(4)
[14] Section
722(9)
[15] R.
v. MB 2013 OJ No 3384 (ONCA) at para 19; R. v. Sanclemente, 2019, OJ No 439 (SCJ) at para. 16
[16] R. v. Berseth, [2019] O.J. No. 2732 (SCJ) at
para. 9, note 1.
[17] Section
722.1
[18] Section
722(6)(b)
[19] Section
722(5)(a)
[20] Section
722(5)(b)
[21]
R. v. Alexander, [2014] O.J. No. 111(SCJ)
[22] Section 722(5)(c), (7)
[23] Section 722(5)(d)
[24] Section 722(6)(a)(b)
[25] R.
v. Gardiner [1982] S.C.J. 71; Ibid at s. 724(3)(e)
[26] Section 718.2(a)(iii.1)
[27] Section 723(4)
[28] R. v. V.W., [2008] OJ No 234
(OCA) at paras 22-35; See also, R. v. B.T. 2013 ONCA 535 at para 6.
[29] R.
v. Taylor 2004 OJ No 3439 (OCA) at para. 42
[30] R. v. Sanclemente, [2019] O.J. No. 439
(SCJ) paras 17-19
[31] R. v. Clayton (1982) 69 C.C.C. (2d) 81 at p. 83
(Ont. C.A.)