In August 2011, I heard the victim impact statements at the sentencing of Jack Tobin, the handsome son of privilege who, by his own recklessness, had accidentally run over and killed a friend.

The statements had the usual effect. Swear to God, if it were up to the casual observers in court, Tobin would have been sent to the gallows — so powerful was the expression of grief he had wrought. He had taken from the world the most precious thing, and on a ridiculous lark.

But justice is blind, and stonehearted; it sheds no tears.

We leap ahead to last week, the sentencing hearing for Simon Banke, who learns his fate in 17 days.

A promising young man, by court accounts, he fishtailed his sports car one rainy night in September 2010 with horrible consequences. It jumped the curb on Albert Street, killing a young couple waiting for a bus, thus, among many disastrous legacies, leaving three orphans.

There were several victim impact statements presented to court last week. With some exceptions, it was predictable. There is, after all, this shattering, authentic eloquence about grief.

All of which to raise a point: does it matter how well “victim impacts” are expressed at sentencing hearings? Indeed, do the statements make any real difference in how a judge hands out a sentence?

The middle child in the Banke fatality, describing herself as “relatively happy”, had a remarkable conclusion to her statement. “I still mourn the loss of my parents,” she wrote, “but I am no longer angry, or depressed about it. I hold no animosity towards the accused, though I cannot speak for the rest of my family. What happened was horrible, but I am still living to the best of my ability for them.”

Does this contribute to the argument that Banke should serve less time, not more?

Well, heavy is the hand that swings the gavel. Good luck, your honour.

There has been considerable research about victim impact statements in Canada, much of it done by Julian Roberts when he was a professor at the University of Ottawa.

Much of the research consists of surveys of judges done in Ontario, Manitoba, B.C. and Alberta, at various points during the last 10 years.

I couldn’t find the precise answer I was looking for in the literature, but if you read between the lines, the surveys indicate that sentences do not grow longer or shorter based on the quality of the expression of grief, whether done orally or in writing.

Thank goodness for that. This should not be a contest about who can be the most literate or moving about their misery. The crime is the crime.

The research found that victim impact statements, in fact, are not submitted very often.

Introduced in 1988, a summary posted by the Department of Justice says impacts statements are submitted in only about 10 per cent of sentencing cases.

Logistics clearly creates a problem. Judges reported doing between 33 and 71 sentencing hearings a month, a hectic pace that probably sacrifices “victim input.”

The surveys asked judges if they found the statements, “in general”, to be “useful.”

The results were encouraging or alarming, depending on your point of view. In Alberta, only 35 per cent of judges said the statements were useful in most or all cases, though that figure rose to 50 per cent when taken over all jurisdictions surveyed.

A follow-up question asked if judges found the statements “useful” in providing information “relevant to the principles of sentencing.” The positive figures declined, to as low as 12 per cent in Alberta, 36 per cent in B.C., but 47 per cent in Manitoba.

In other words, half or more of judges surveyed found the statements didn’t help much when it came to basic sentencing principle such as, for example, deterrence.

An argument might be made, in fact, that emotion-laden statements can serve to reinforce the misperception that crime is rampant in Canada and that criminals need much tougher sentences, so horrible is the havoc they wreak.

There doesn’t seem to be any question that providing statements has a therapeutic value for victims and makes them feel included in the process. This alone may be reason enough to keep them.

Guidelines from the Ministry of the Attorney General speak to their limiting effects, however. Victims are not to make proposals about sentences, but can speak to probation conditions. They are asked to stay away from “vengeful comments, criticisms or rumours about the accused.”

One wonders, at a hearing principally about punishment of the accused, what all this pain and drama, so genuinely expressed, in the end contributes.

Related Story: Banke sentenced to 18 months in fatal bus stop crash

Source: Ottawa Citizen


Last updated on: 2013-01-12 | Link to this post