Victim Impact Statements
General Principles
Section 722 address victim impact statements:
- Victim impact statement
722 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 [order of discharge] in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing 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.
- Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1) [victim impact statement].
- Adjournment
(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) [victim impact statement] or to present evidence in accordance with subsection (9) [victim impact statement – any victim evidence eligible], if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
[omitted (4), (5), (6) and (7)]
- Consideration of statement
(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) [victim impact statement] and disregard any other portion.
- Evidence concerning victim admissible
(9) Whether or not a statement has been prepared and filed in accordance with this section, 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 [order of discharge].
R.S., 1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s. 17(Preamble); 2000, c. 12, s. 95; 2015, c. 13, s. 25.
- Copy of statement
722.1 The clerk of the court shall provide a copy of a statement referred to in subsection 722(1) [victim impact statement], 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).
[annotation(s) added]
The purpose of a Victim Impact Statement (VIS) is to "assess the general effect of the crime" upon the victim.[1]
As well, it informs the sentencing judge of the victims perspective which is must consider in light of the gravity of the offence.[2]
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.
Provisions requiring the withholding of VISs until after a finding of guilt are constitutional.[3]
See s. 672.541, for details on the use of victim impact statements before a review board.
- ↑ R v Andersen, 2011 NLTD 51 (CanLII), [2011] NJ No. 126 (S.C.), per Stack J, at para 28 (“to assess the general effect of the crime on [the victim’s] well being and state of mind”)
- ↑
see R v FTR, 2011 NLTD 98 (CanLII), [2011] NJ No. 229 (S.C.), per Faour J, at para 29
- ↑ R v Fessahaie, 2009 NWTTC 10 (CanLII), per Schmaltz J
Persons Who can File a VIS
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]
Within the meaning of s. 722, "a person to whom harm was done" include the recipient of harm but also persons "directly affected by the commission of the offence".[2]
- ↑ R v Gabriel, 1999 CanLII 15050 (ONSC), 137 CCC (3d) 1 (Ont. Sup. Ct.), per Hill J, at para 48
- ↑ R v Granada, 2013 ABCA 404 (CanLII), per curiam
Form and Presentation of Statement
Section 722:
722
[omitted (1), (2) and (3)]
- Form
(4) The statement must be prepared in writing, using Form 34.2 [forms] in Part XXVIII [Pt. XXVII – Summary Convictions (ss. 785 to 840)], 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.
- Presentation of statement
(5) The court shall, on the request of a victim, permit the victim to present the statement by
- (a) reading it;
- (b) reading it in the presence and close proximity of any support person of the victim’s choice;
- (c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or
- (d) presenting it in any other manner that the court considers appropriate.
- Photograph
(6) During the presentation
- (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or
- (b) if the statement is presented by someone acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.
- Conditions of exclusion
(7) The victim shall not present the statement outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
[omitted (8) and (9)]
R.S., 1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s. 17(Preamble); 2000, c. 12, s. 95; 2015, c. 13, s. 25.
[annotation(s) added]
- Copy of statement
722.1 The clerk of the court shall provide a copy of a statement referred to in subsection 722(1) [victim impact statement], 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).
[annotation(s) added]
It has been suggested that in order for a VIS to be admissible it should contain the following: [1]
- 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."[2]
Admissible Content
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
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 a sentence. Such comments are inadmissible.[1] Nor should there be any reference to offences not charged.[2]
There are 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]
- statements by persons with unidentified connections to the victim or to remote a connection
- references to facts that are not accurate
- statements speaking of the offender including character[5]
- suggesting penalties
- seeks personal revenge [6]
- promoting an "eye for an eye"
- statements that are inflammatory and jeopardize the desired restraint in sentencing[7]
- makes diagnoses of the offender[8]
- mischaracterizations of the offence or the law
- ↑
R v Gabriel, 1999 CanLII 15050 (ON SC), 137 CCC (3d) 1, per Hill J, at para 16
R v Bremner, 2000 BCCA 345 (CanLII), [2000] BCJ No. 1096 (BCCA), per Proudfoot J, at para 27
R v Denny, 2016 NSSC 76 (CanLII), per Rosinski J, at para 115 ("Victim and Community Impact Statements are not to contain assertions of fact purportedly about the offence or offender; nor should they comment on the offender’s character or disparage the offender; or make recommendations or comments about the sentence the court may impose")
- ↑ R v Noor, 2011 BCSC 1629 (CanLII), per Arnold-Bailey J, at para 21
- ↑ Gabriel, supra, at paras 29 to 33
- ↑ Gabriel, supra, at paras 48 to 53
- ↑ e.g. R v Walchuk, 2001 SKCA 36 (CanLII), [2001] S.J. No. 148 (Sask.C.A.), per Cameron JA
- ↑
Bremner, supra
R v Sangha, 2001 ABQB 373 (CanLII), [2001] AJ No 545, per Martin J
R v DMLG, 2001 CanLII 359 (SK PC), [2001] S.J. No. 581, per Halderman J
R v Hawley [1999] O.J. No. 5393(*no CanLII links) - ↑ Bremner, supra calls offender a pedophile
- ↑ Bremner, supra calls him a pedophile
Consequences of New Evidence in VIS
Where there is new evidence revealed in the VIS that may have affected the outcome of trial, the defence may apply to re-open the case.[1]
- ↑ e.g. R v Al-Rawi, 2020 NSSC 385 (CanLII), per Moir J
Offence Specific Impact Statement
- Community impact statement
722.2 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 [order of discharge] in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.
- Form
(2) The statement must be prepared in writing, using Form 34.3 [forms] in Part XXVIII [Pt. XXVIII – Miscellaneous (ss. 841 to 849)], 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.
- Presentation of statement
(3) The court shall, on the request of the individual making the statement, permit the individual to present the statement by
- (a) reading it;
- (b) reading it in the presence and close proximity of any support person of the individual’s choice;
- (c) reading it outside the court room or behind a screen or other device that would allow the individual not to see the offender; or
- (d) presenting it in any other manner that the court considers appropriate.
- Conditions of exclusion
(4) The individual making the statement shall not present it outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
- Copy of statement
(5) The clerk of the court shall, as soon as feasible after a finding of guilt, provide a copy of the statement to the offender or counsel for the offender, and to the prosecutor.
1999, c. 25, s. 18(Preamble); 2015, c. 13, s. 26.
[annotation(s) added]
- Community
The LGBTI community can be a "community" within the meaning of s. 722.2.[1]
- Form of Statement
A commemorative youtube video can be an acceptable form of community impact statement so long as any "impermissible commentary" can be disregarded.[2]
- ↑ R v Denny, 2016 NSSC 76 (CanLII), per Rosinski J, at para 122 - manslaughter victim was a local LGBTI advocate
- ↑
Denny, ibid., at para 122