What role should victim impact statements play in Canadian courts?

Victim impact statements delivered at criminal trials have been championed by everyone from feminist activists to tough-on-crime conservatives. But questions remain about what the rise of the victims’ rights movement means for the rights of the accused, and about the role of victims in a system designed to try cases on behalf of the public.
Before Larry Nassar, ex-U.S. Gymnastics doctor, was sentenced to 40 to 125 years in prison for molesting more than 100 girls, Jeanette Antolin (above) and 155 others read victim impact statements during his sentencing hearing. Questions remain, however, about how these statements should influence offenders' sentences in Canadian courts. (Getty Images)
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Victim impact statements have been championed by everyone from feminist activists to tough-on-crime conservatives.

They might be delivered by a rape survivor, the family members of a murder victim, or seniors who lost their life savings in a Ponzi scheme.

They are heard after a guilty verdict and before sentencing. But serious questions remain about how these statements should influence offenders' sentences.

When retired Nova Scotia judge Nancy Bateman was called to the bench in 1990, victim impact statements were a relatively new part of the Canadian criminal justice system.

"No one really told us how they were to be used, but my understanding was they were to give the victims a voice," she said. "But putting it into effect in terms of sentencing is a whole other exercise."

In Canada, we have a crisis of violent crime being perpetrated against women ... where women largely don't come forward to report to the police.- Tracy Porteous, Executive Director of the Ending Violence Association of B.C.

Critics of these statements worry that certain kinds of victims — especially those who are white, upper class, or especially eloquent and articulate — will be taken more seriously by the courts, and that will be reflected in sentencing.

In an article for The New Yorker, historian Jill Lepore writes that victim impact statements sometimes include details like a murder victim's high grades or community service. She believes that advances "the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others."

Bateman says hearing victim impact statements helped her understand the reality of the crimes she considered. But when determining a sentence, she says judges must largely set aside the emotional details they hear.

"There are certain guidelines for sentencing … and we can't deviate too far outside those guidelines," she said.

"I think [victim impact statements] may increase expectations in the persons who file them or testify that they will have a great deal of impact, but it cannot — because the homeless, or the inarticulate, or the people who just aren't able to do it ... the sentence in their case shouldn't be treated as less serious."

'I think the court owes it to victims to hear that'

Tracy Porteous, the executive director of the Ending Violence Association of B.C., says it's "absolutely critical" that the courts hear directly from victims about how they've been affected.

"[The impacts of crime] are deep, and they are long and they can last a lifetime. I think the court owes it to victims to hear that," she said.

Victim impact statements are only submitted in a small portion of cases. Porteous argues that if more people were aware of their right to be heard at sentencing, it might increase trust in the justice system.

"In Canada, we have a crisis of violent crime being perpetrated against women ... where women largely don't come forward to report to the police. There is a view that victims have of the justice system that it's not a place for them," she said.

She argues victims have very few rights within the criminal justice system, but the right to submit an victim impact statement is one of them.

Porteous also doesn't believe we should be worried "about the expression of emotion in court."

"[The idea that] the courts should be bringing a level of compassion and emotionality and humanity to very dehumanizing, violent experiences, I think that's a good thing," she said.

'We have to avoid setting up the expectation that tough punishment equals respect'

Lisa Kerr, a Queen's University law professor who studies sentencing and prison law, argues we shouldn't assume victim impact statements will be cathartic or healing.

Courts aren't therapy. Judges are not social workers.- Lisa Kerr, Queen's University law professor

"Courts aren't therapy. Judges are not social workers. It may not actually be a very good setting to tell your story," she said.

 "We also have to avoid setting up the expectation that tough punishment equals respect. I think there's often a sense that if the judge respects my story and believes what happened to me, then she'll impose a very serious sanction … It might be sort of painful or traumatizing if the sentence imposed doesn't meet the victim's expectations."

Our justice system is designed to try cases on behalf of the wider community, not individuals, says Kerr.

"The modern legal system is set up to supplant vigilante justice, to supplant private vengeance. The administration of criminal justice is a public venture," she said.

"The whole reason that offences [like assault, robbery and murder] are in the Criminal Code is because we care about human life, about bodily integrity, about personal security ... We care about those things, period, no matter who they happen to. I think, actually, our system is supposed to be somewhat indifferent to individual differences, in terms of reactions to those wrongs."

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