Canadian Criminal Sentencing/Procedure/Victim Impact Statement

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Legislation[edit]

Victim impact statement
722. (1) 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.

Procedure for victim impact statement
(2) 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 jurisdiction; and
(b) filed with the court.

Presentation of statement
(2.1) 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.

Evidence concerning victim admissible
(3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

...

R.S., 1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s. 17(Preamble); 2000, c. 12, s. 95.

Copy of statement
722.1 The clerk of the court shall provide a copy of a statement referred to in subsection 722(1), as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor.

1995, c. 22, s. 6; 1999, c. 25, s. 18(Preamble).

CCC


Under s. 722(2), the Court must consider victim impact statements that are submitted to the court. After a finding of guilt, the court is required under s. 722.2(1), to inquire whether the victim has been advised of the opportunity to prepare a victim impact statement.

Persons Who can File a VIS[edit]

Only a victim may file a VIS. Section 722(4) defines a victim as:

Definition of “victim”
(4) For the purposes of this section and section 722.2, “victim”, in relation to an offence,

(a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and
(b) where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1), includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.

R.S., 1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s. 17(Preamble); 2000, c. 12, s. 95.

CCC

The victim must also be capable of "describing the harm done to, or loss suffered by, the victim arising from the commission of the offence."(s. 722(1))

It has been recommended that VIS not be permitted in by persons who are "unidentified in their connection to the [victim] or too remote in connection".[1]


Form of Statement[edit]

It has been suggested that in order for a VIS to be admissible it should contain the following: [2]

  • the statement is to be prepared in writing,
  • the statement is to be in the form and in accordance with procedures established by a program designated for that purpose by the province,
  • the statement is to be authored by a person meeting the definition of "victim" (s. 722(4) of the Code),
  • the statement is to describe the harm done to, or loss suffered by, the victim arising from the commission of the offence,
  • the statement is to be filed with the Court,
  • the clerk of the Court is to provide a copy of the statement to the prosecution and the defence (s. 722.1 of the Code)

It is important that when considering the VIS that the court maintain its “independent neutrality" by not "react[ing] to public opinion as to the severity of sentences."[3]

  1. Gabriel at para.48
  2. R. v. Gabriel (1999), 137 C.C.C. (3d) 1 (Ont. Sup. Ct.) at para. 16
  3. Gabriel at para. 33

Admissible Content[edit]

Impact statements should describe "the harm done to, or loss suffered by, the victim arising from the commission of the offence". (s. 722(1))


Inappropriate Content for a VIS[edit]

The Statement should describe the harm arising out of the offence. It is not an opportunity for the victim to criticize the offender, including his character, assert facts or recommend sentence. Such comments are inadmissible.[1] Nor should there be reference to offences not charged.[2]

There is limited cases where sentence recommendation may be admissible, such as during a sentencing circle.[3]

It has been suggested the follow sort of statements not be permitted:[4]

  1. statements by persons with unidentified connections to the victim or to remote a connection
  2. references to facts that are not accurate
  3. statements speaking of the offender including character[5]
  4. suggesting penalties
  5. seeks personal revenge [6]
  6. promoting an "eye for an eye"
  7. statements that are inflammatory and jeopardize the desired restraint in sentencing[7]
  8. makes diagnoses of the offender[8]
  9. mischaracterizations of the offence or the law
  1. R. v. Gabriel, 1999 CanLII 15050 (ON S.C.) 137 C.C.C. (3d) 1 at para. 16
    R. v. Bremner, 2000 BCCA 345 at 27
  2. R. v. Noor, 2011 BCSC 1629 at 21
  3. Gabriel at para. 29 to 33
  4. Gabriel at para. 48 to 53
  5. e.g.R. v. Walchuk, [2001] S.J. No. 148 (Sask.C.A.)
  6. R. v. Bremner [2000] B.C.J. No. 1096 (B.C.C.A), R. v. Sangha, [2001] A.J. No. 545 (Alta. Q.B.), R. v. D.M.L.G. [2001], S.J. No. 581 (Sask. Prov. Ct.), R. v. Hawley [1999] O.J. No. 5393
  7. R. v. Bremner [2000] B.C.J. No. 1096 (B.C.C.A) calls offender a pedophile
  8. R. v. Bremner [2000] B.C.J. No. 1096 (B.C.C.A) calls him a pedophile

Offence Specific Impact Statement[edit]

Community impact statement
380.4 (1) For greater certainty, for the purpose of determining the sentence to be imposed on an offender, or whether the offender should be discharged under section 730, in respect of an offence referred to in subsection 380(1), the court may consider a statement made by a person on a community’s behalf describing the harm done to, or losses suffered by, the community arising from the commission of the offence.

Procedure
(2) The statement must

(a) be prepared in writing and filed with the court;
(b) identify the community on whose behalf the statement is made; and
(c) explain how the statement reflects the community’s views.

Copy of statement
(3) The clerk of the court shall provide a copy of the statement, as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor.

2011, c. 6, s. 4.

CCC

References[edit]