Judges cannot be overly swayed by victim impact statements: legal experts

Legal experts say a sentencing judge must use caution and not be overwhelmed by victim impact statements.

A Saskatchewan judge heard more than 70 victim impact statements this week as part of a sentencing hearing for the truck driver who caused a fatal crash involving the Humboldt Broncos junior hockey team bus.

Court heard that Jaskirat Singh Sidhu blew through a stop sign at a rural intersection and the bus driver could not avoid the collision.

Sixteen on the bus were killed and 13 others were injured. Sidhu was not hurt.

The powerful statements delivered by family and friends where emotional and often raw. They demonstrated a range of feelings from bewilderment and anger to sympathy and forgiveness.

Benjamin Perrin, a law professor at the University of British Columbia, said victim impact statements have been part of the Canadian justice system since the late 1980s, and were introduced out of concern that victims were being left out.

In 2015, the Canadian Victims Bill of Rights came into effect. It established the right of those harmed by a crime to present their feelings, including photographs, and allows judges to consider the statements as part of sentencing decisions.

Perrin said such a large number of statements as in the Broncos case is rare, but it speaks to the impact of the crime, which is relevant.

"There's a lot of caution that needs to be taken by judges in considering the victim impact statements, but they do provide valuable evidence that can be a source for them to arrive at a fair and appropriate sentence," said Perrin, who was a legal adviser to former prime minister Stephen Harper.

"When you or I hear a victim impact statement it can have a really profound and poignant impact on us, and you raise up your passions to give a really stiff sentence. That's because we're not judges. We're not trained in the law."

Marie Manikis, an associate law professor at McGill University has researched the role of victim impact statements. She said the focus should not be to craft a sentence, but to communicate a message.

The statements can be interpreted as either aggravating or mitigating factors in sentencing, she said, and hearing them can have an impact on an offender's level of remorse and responsibility.

In Sidhu's case, it's difficult because some victims have expressed forgiveness, while others have voiced condemnation,
Manikis said.

Saskatchewan criminal lawyer Aaron Fox said victim submissions are designed to make a sentencing judge aware of how someone has been affected by a crime.

But the second and more important function, he said, is that they allow victims the chance to participate in the proceedings and have their voices heard.

"I don't think victim impact statements necessarily have a big influence on what the sentence would be," said Fox. "The judge will listen to them. The judge will consider them, but really can't be overly swayed by it."
 

Perrin suggested it can be cathartic for some victims to have their feelings heard and cited research that shows it can be worse for them if they don't feel included in court proceedings.

"The criminal justice system is really not a healing process as much as we would like it to be."