By Adam Newman, Associate
Victim Impact Statements (“VIS”) play a highly influential role in sentencing. Not only do they factor in to what sentence someone found guilty is given, Parliament went out of its way to expressly provide victims of crime with a statutorily protected opportunity to express the impact the crime had on them.
While the impact a crime had on the victim is important in determining how serious an offence was, and the appropriate proportional sentence to be given, there are necessary limits to Victim Impact Statements, and they raise certain procedural issues.
Section 722 (1) of the Criminal Code of Canada states that the Court “shall consider: the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.” This provision defines the limits of Victim Impact statements. A VIS statement does not properly include the harm suffered to others unless that harm itself constitutes harm towards the victim. Further to this limit, ample case law has supported the proposition that victims should not be “usurping” the role of the prosecutor or judge in recommending a sentence, comment on the character of the accused, or re-establish or allege facts about the case. That is not properly the role of the victim impact statement, allowing any of the above would be exceeding the important but limited role of a VIS. (R. v. Penny (2010), 257 C.C.C. (3d) 372 (N.B. C.A.), R. v. Bremner (2000), 146 C.C.C. (3d) 59 (B.C. C.A.))
Another point to consider is that according to 722(2) of the Criminal Code, a VIS can only be sought once an accused pleads guilty. This means that an accused who was not released on bail prior to their plea of guilty who would likely be sentenced to an amount of time not exceeding their time spent in custody, may have to spend more time in custody while the prosecutor attempts to seek victim input. This means that the time an accused would otherwise be out of custody is spent in jail while a VIS is being sought out. According to 722(3) the court need only be satisfied that an adjournment for this purpose would not be contrary to the proper administration of justice. There is clear tension here between the rights of victims, and the rights of the accused. Why doesn’t Parliament make it so that victim input can be sought prior to a plea of guilty and eliminate this tension? Would the Crown need to disclose this victim input, if so what what new issues would arise?