IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
Citation: R. v. B.P., 2015 NSPC 34
Date: June 12, 2015
Docket: 2775823, 2775824
Registry: Halifax
BETWEEN:
HER MAJESTY THE QUEEN
v.
B.P.
RESTRICTION ON PUBLICATION: section 110 YCJA
DECISION ON THE ADMISSIBILITY OF PORTIONS OF CERTAIN VICTIM IMPACT STATEMENTS
BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK
HEARD: June 2, 2015
DECISION: June 12, 2015
CHARGES: sections 235 and 88(1), Criminal Code
COUNSEL: Peter Craig and Kim McOnie, for the Crown
Megan Longley and Alexander Baranowski, for BP
By the Court:
Introduction
[1] On the night of August 29, 2014 Daniel Michael Pellerin was fatally stabbed. BP pleaded guilty to his second-degree murder on February 18, 2015. BP was 15 at the time of the murder; Mr. Pellerin was 28.
[2] BP is being sentenced as a young person under the Youth Criminal Justice Act (“YCJA”). His sentencing hearing is proceeding on June 24. The maximum youth sentence for second degree murder is seven years. (section 42(2)(q)(ii),YCJA) I have been told to expect a joint recommendation for an Intensive Rehabilitative Custody and Supervision Order (“IRCS”) pursuant to section 42(2)(r) of the YCJA.
[3] BP’s sentencing had been scheduled for May 21. On May 20 it became apparent that an essential component of the IRCS sentence recommendation had not been prepared – the joint treatment plan setting out the detailed IRCS’ treatment strategy developed by the IWK and the Nova Scotia Youth Facility. The sentencing hearing could not proceed without the plan. An IRCS sentence cannot be imposed unless “there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence.” (section 42(7)(c), YCJA) BP’s sentencing was adjourned to June 24 so that the IRCS plan could be formulated.
[4] Late in the afternoon of May 20, the day before BP’s original sentencing date, I received the victim impact statements prepared by Mr. Pellerin’s family members. I formed the preliminary view that four of them might not be in compliance with the legal requirements for victim impact statements as set out in section 722 of the Criminal Code. I informed Crown and Defence in an email that I had concerns and forwarded the cases I was familiar with on the issue – R. v. Berner, [2013] B.C.J. No. 835 (C.A.), R. v. Sparks, [2007] N.S.J. No. 50 (P.C.), R. v. McDonough, [2006] O.J. No. 2199 (S.C.J.), and R. v. Gabriel, [1999] O.J. No. 2579 (S.C.J.) Subsequently a pre-hearing conference was scheduled for June 2. That pre-hearing conference became a voir dire.
[5] Prior to the voir dire on June 2, counsel for BP forwarded their comments on some of the content in four of the victim impact statements.
[6] On June 2 Mr. Craig submitted that, in the Crown’s view, the statements were compliant with the requirements of the Criminal Code. The Defence disagreed. There was common ground that factual references in one of the statements would have to be removed.
[7] What is not in issue is who decides what constitutes permissible content of a victim impact statement. The sentencing judge decides. It is a matter of judicial discretion structured by the legal principles that govern sentencing proceedings, and in this case, the legal principles that apply to the sentencing of a young person under the YCJA. What follows are my reasons on the issue of the admissibility of certain content in four of the Pellerin family victim impact statements.
Youth Criminal Justice
[8] The issues in relation to the victim impact statements have arisen in the context of the sentencing of a young person. While much of what I have to say in these reasons could be applied to the sentencing of an adult offender, it is important to recognize that the sentencing regime for young persons is distinctive and separate. The Declaration of Principle under the Youth Criminal Justice Act mandates "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity." (section 3(1)(b)(ii), YCJA) The Supreme Court of Canada has held that young persons are entitled to a presumption of diminished moral blameworthiness that reflects, as a consequence of their age, their heightened vulnerability, immaturity, and reduced capacity for moral judgment. (R. v. D.B., [2008] S.C.J. No. 25, paragraph 41) These fundamental principles govern the sentencing of a young person.
[9] Section 38 of the YCJA contains the purpose and sentencing principles of the legislation, and indicates that:
The purpose of sentencing ... is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
[10] The critical factor in sentencing a young person is accountability. The relevant sentencing principles referenced in section 38 of the YCJA include: parity -- that a young person's sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; proportionality -- that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; and, subject to the proportionality principle, that the sentence be the least restrictive sentence that is capable of achieving the overall purpose of sentencing; that it be the one most likely to rehabilitate the young person and reintegrate him or her into society; and that it promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. (sections 38(2)(b);(c);(e)(i)(ii)(iii), YCJA)
[11] All the aforementioned principles inform the criminal justice processes for all young persons, including those convicted of murder. And although the term “offender” is not found in the YCJA, it is a term of convenience I will use in these reasons.
The Victim Impact Statements and the Application relating to Their Admissibility
[12] Eight victim impact statements have been prepared for BP’s sentencing. Four family members wish to read their statements into the record. This will be a difficult but essential part of the sentencing process. It will be important for me, BP , and the public to hear the victims describe the harm done to them and the loss they have suffered as a result of Mr. Pellerin’s murder.
[13] Mr. Pellerin was a deeply loved member of an extended family. Victim impact statements have been prepared by his mother, his brother, his sisters, his nephew, his former spouse and mother of his daughters, his aunt and his uncle. They describe the enormity of the heartbreak borne by a devastated family.
[14] The victim impact statements that are not being read into the record will have been read by me, Crown and Defence counsel, and BP . The voices of those family members are no less significant because their victim impact statements are not being read aloud. Victim impact statements submitted in this manner form part of the record just as much as the read-in statements do.
[15] The Crown and Defence agree that victim impact statements cannot contain references that claim to be factual. However that is where any consensus with respect to the victim impact statements ends. The Defence objects to other content in the four statements, submitting that portions of these statements are impermissible because of comments directed to BP; criticism of BP, that is, comments on his character; expressions of vengeance; and recommendations on sentence. It is the Crown’s position that the passages identified by the Defence are admissible expressions of emotion and loss.
[16] There is also divergence on what should be done if I find any parts of the victim impact statements to be non-compliant. Mr. Craig submits I should simply disregard the impermissible portions. Ms. Longley and Mr. Baranowski argue that they must be edited out.
[17] These reasons therefore deal with two principal issues: (1) do the four victim impact statements contain any content that is not admissible at BP’s sentencing, and (2) if so, how should that content be treated – should I simply disregard it or should it be edited out?
The Criminal Code Provisions Governing Victim Impact Statements
[18] As I already noted, BP is a young person being sentenced under the Youth Criminal Justice Act. Except to a very limited extent the Criminal Code sentencing provisions do not apply to the sentencing of a young person as a young person. BP is not being sentenced as an adult.
[19] The YCJA does incorporate into youth sentencings the Criminal Code provisions in relation to victim impact statements. Therefore when a young person is being sentenced, sections 722, 722.1, and 722.2 of the Criminal Code apply “with any modifications that the circumstances require.” (section 50(1), YCJA)
[20] In R. v. Berner, [2013] B.C.J. No. 835, the most recent appellate level decision to deal with victim impact statements, the British Columbia Court of Appeal provided the following overview of the victim impact statement aspect of the sentencing regime:
12 Victim impact statements play an important role in the sentencing process. They were formally introduced into sentencing proceedings by legislation in 1988. While there was some inconsistency among the courts as to the admissibility of such evidence prior to codification, the general trend was toward acceptance. The issue was resolved in R. v. Swietlinski, [1994] 3 S.C.R. 481 at 503, where Chief Justice Lamer observed: "It is well known that the victim's testimony is admissible at a hearing on sentencing". The current statutory scheme, enacted in 1995, is set out in s. 722 of the Criminal Code. That section provides:
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.
(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.
(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.
(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.
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. [Emphasis added.]
13 Section 722(2) requires a sentencing judge to consider a victim impact statement "for the purpose of sentencing." The content of the statement is restricted to a description of "the harm done to, or loss suffered by, the victim arising from the commission of the offence." …
14 Two things flow from the admission of victim impact statements. First, on the reading of the victim impact statement in court the consequences of the offender's actions are brought home palpably to the offender. Second, the trial judge is made aware of the damage the commission of the criminal offence has caused the victim(s) and thus, indirectly, the community in general…
[21] In concluding this review of the Criminal Code provisions that govern victim impact statements, I want to be clear there has been no suggestion that anyone who filed a victim impact statement in this case is not a victim according to law. Each person who prepared a victim impact statement is entitled to be heard by the court on the harm done to them and the loss they have suffered. What they are entitled to say in their victim impact statements is governed by legal rules and principles established by legislation and judicial decisions.
Victims of Crime and the Sentencing Process
[22] The criminal justice system is frequently experienced by victims as alienating, confusing, and stressful. Despite their intimate experience of harm and loss, victims have felt excluded, relegated to looking on as the case proceeds. Victims’ Services programs, Crown policy directives, and legislative provisions have been developed to improve the experience of victims of crime dealing with the prosecution of a crime. Victim impact statements are a feature of a more responsive criminal justice system. They “contribute significantly to a just sentencing process.” (Gabriel, paragraph 21) They serve a number of purposes and situate the offence in a context that only those most directly affected can explain.
[23] Hill, J. in Gabriel described the value of victim impact statements in the sentencing process: the court receives relevant evidence directly from the person(s) who have suffered the harm or loss; the consequences of the crime are brought home to the offender; the sentencing process will be perceived as having greater legitimacy; and the special and unique identity of the victim is given some prominence in a process that focuses significantly on the perpetrator. (Gabriel, paragraph 19)
[24] Victim impact statements bring a necessary voice into the sentencing process. The participation of victims through the use of victim impact statements enhances the functioning of the criminal justice system. As Hill, J. stated in Gabriel:
…The satisfaction of being heard, in the sense of a direct submission to the court, enhances respect for the justice system on the part of the harmed individual, and over time, the community itself. Incidental to the victim impact statement process is the ability of the victim to secure a sense of regaining control over his or her life and the alleviation of the frustration of detachment which can arise where the victim perceives that he or she is ignored and uninvolved in the process. (paragraph 19)
[25] As the reasons in Gabriel indicate, judges have long been sensitive to the special pain and anguish felt by victims of crime. And where a crime has resulted in a death, “…human experience, logic, and common sense surely go some distance to presuming the existence of profound grief, loss and despair.” (Gabriel, paragraph 47)
[26] The importance of listening respectfully to victims in the sentencing process has been recognized in cases involving very serious crimes, for example: criminal negligence causing bodily harm (R. v. C.K.M., [2001] B.C.J. No. 2442 (P.C.), sexual assault of children (R. v. Bremner, [2000] B.C.J. No. 1096 (C.A.), aggravated assault (Sparks), criminal negligence causing death (Gabriel), dangerous driving causing death (Berner), and murder (R. v. McDonough, [2006] O.J. No. 2199 (C.A.). Judges appreciate that victim impact statements may serve,
…to assure the public that sentencing judges, while bound to sentence in accordance with the principles discussed earlier, are always keenly aware of the unique and intensely personal response of each victim harmed by the criminal conduct of another. (R. v. Readhead, [2001] B.C.J. No. 1810 (P.C.), paragraph 14)
The Victims Bill of Rights Act – Does it Have any Role in this Case?
[27] Mr. Craig’s submissions heavily emphasized the most recent legislative development in relation to victims’ participation in the criminal justice system. The Victims Bill of Rights Act (“VBRA”) received Royal Assent on April 23, 2015. It will come into force on July 23, 2015. In Mr. Craig’s submission the exercise of my discretion with respect to the content of the victim impact statements should be, as he put it, guided by the underlying values developed by Parliament in the Victims Bill of Rights Act.
[28] Mr. Craig took some time to review much of the content of the VBRA noting provisions that discuss rights to information, rights of protection, limited rights of participation, and restitution. Victim impact statements, the focus in this case, come within the participation rights of victims at the sentencing stage. As I have already described, they exist under the current provisions of the Criminal Code as a mechanism for ensuring a role for victims in the sentencing process and a right of participation.
[29] There is an obvious fact to be made in relation to the VBRA and BP’s sentencing: it does not apply. It is not yet in force and will not be in force on June 24. The Defence made this point in their submissions. I have decided however not to simply ignore the VBRA. I do not want the victims in this case to wonder what might have happened if BP’s sentencing had proceeded just a month later, on July 24. I have considered Mr. Craig’s submissions on the VBRA and examined the legislation. It may be useful to the victims to know that I have concluded the VBRA does not change the foundational legal principles that govern victim impact statements. In due course in these reasons I will explain why I take this view.
[30] I will make one further comment about my decision to consider the VBRA on this application. In a very recent unanimous decision of the Ontario Court of Appeal, R. v. Nguyen, which dismissed a constitutional challenge relating to spousal immunity, an issue addressed in the VBRA, the Court referenced the not-yet-in-force VBRA when discussing the issue of remedy. The Court noted Parliament’s intentions with respect to spousal immunity as indicated by the VBRA. (R. v. Nguyen, [2015] O.J. No. 2098, paragraph 156) I mention this as an example of a court taking some note of Parliament’s approach on an issue being addressed by the VBRA.
Section 722 of the Criminal Code and the Permissible Content and Focus of Victim Impact Statements
[31] Mr. Craig opened his submissions by urging a return to “first principles.” First principles as they relate to victim impact statements were articulated by Hill, J. in Gabriel:
22 Without, in any fashion, diminishing the significant contribution of victim impact statements to providing victims a voice in the criminal process, it must be remembered that a criminal trial, including the sentencing phase, is not a tripartite proceeding. A convicted offender has committed a crime - an act against society as a whole. It is the public interest, not a private interest, which is to be served in sentencing.
[32] Sentencing has been described as “the power of the response of the community to the harm done to one of its members”, that response serving as “protection for every member of the community.” (Readhead, paragraph 10) It is a critical stage of the criminal justice process involving an objective, reasoned inquiry into what constitutes a fit sentence in law. By the time sentencing occurs there has either been a guilty plea as in this case, or a conviction following trial. At sentencing there are victims whose victimization has been admitted or proven beyond a reasonable doubt, the criminal standard of proof. But that does not transform victims into parties at sentencing. The parties at a sentencing remain the same as at a trial – they are the Crown and the offender. (Bremner, paragraph 23)
[33] The Victims Bill of Rights Act does not change this fundamental principle. There is nothing in the Act that affords victims participation rights in a criminal proceeding beyond what is presently provided by the law. The right of participation provisions of the VBRA as they relate to victim impact statements repeat what the Criminal Code already ensures: the right of “every victim”… “to present a victim impact statement to the appropriate authorities in the criminal justice system and have it considered.” (section 15, VBRA) Section 722 of the Code requires a sentencing court to consider – the language is “shall consider” – any statement that may have been prepared, that is of course, prepared in accordance with the legal principles governing content. In other words, where a victim impact statement is admissible, it shall be considered by the sentencing judge. (Gabriel, paragraph 17) That is the law now and will continue to be the law, no more and no less, once the VBRA is in force.
[34] Another “first principle” of sentencing is that vengeance does not belong in sentencing. (Gabriel, paragraph 25; R. v. Lerno, [2004] O.J. No. 2537 (C.A.), paragraph 8) The Supreme Court of Canada has been unequivocal on this point: vengeance has “no role to play in a civilized system of sentencing.” (R. v. M.(C.A.), [1996] S.C.J. No. 28, paragraph 80) In M.(C.A.), the Supreme Court described vengeance as “an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person.” Vengeance lacks all restraint and does not respect the fundamental sentencing principle of proportionality, the imposition of “a just and appropriate punishment, and nothing more.” (M.(C.A.), paragraph 80)
[35] As Hill, J. said in Gabriel, “…the victim impact statement regime should not be structured so as to foster or encourage any element of revenge on the part of a victim.” (Gabriel, paragraph 26) I see nothing in the VBRA that changes the focus of victim impact statements or permits vengeance to be insinuated into the sentencing process.
[36] It is a “first principle” that victim impact statements are intended to assist the sentencing court with its difficult task of sentencing. They supply for the sentencing judge’s consideration the voice of those most directly harmed by the actions of the offender. The sentencing process is about determining the just, proportionate sentence for the offender. It is about holding the offender, in this case, a young person, accountable according to law for what he has done. Sentencing is not intended to achieve personal redress for victims except in appropriate cases where restitution is ordered.
[37] The judicial consensus in relation to victim impact statements has settled what they are not to contain. It is impermissible for victim impact statements to contain assertions of fact purportedly about the offence: the facts have been established by agreement as in this case or by trial findings based on the evidence. Victim impact statements are not to express criticism of the offender or make recommendations or comments about the severity of the sentence. (Bremner, paragraphs 23, 27, 28; McDonough, paragraph 30; Sparks, paragraphs 8, 12)
[38] As Hill, J. stated in Gabriel: “Criticism of the offender tilts the adversary system and risks the appearance of revenge motivation.” (Gabriel, paragraph 30) The public interest is represented at the sentencing hearing by the Crown prosecutor. It is the Crown prosecutor’s role to make sentencing recommendations in the public interest, not the victims.
[39] And to again quote Hill, J. in Gabriel:
…The freedom to call for extraordinary sentences, beyond the limits of appellate tolerance, unjustifiably raises victim expectations, promotes an appearance of court-acceptance of vengeful submissions, and propels the system away from necessary restraint in punishing by loss of liberty…(Gabriel, paragraph 33)
[40] It is essential that sentencing judges scrupulously avoid “the appearance of court-acceptance of vengeful submissions” and ensure that the proceedings are conducted with dignity, restraint, and fairness. Victim impact statements “…should not contain material which appears to be an appeal to the sentencing judge to place a value on the life of a victim, or to compensate grief through the imposition of a harsh sentence.” (Berner, paragraph 17)
[41] Victim impact statements are evidence offered by victims to the court. The right to provide them is not a right to address the offender directly. Providing a victim impact statement does not include the right to confront the offender in court. (McDonough, paragraph 30) The communication of the harm inflicted and the loss suffered is a communication with the judge who will decide on the appropriate sentence having regard to all the admissible evidence and applicable law.
[42] And a final comment on “first principles”: this is the sentencing of a young person. He is to be held to account in accordance with the principles that recognize he is entitled to a presumption of diminished moral blameworthiness that reflects, as a consequence of his age, his heightened vulnerability, immaturity, and reduced capacity for moral judgment. (D.B., paragraph 41)
The Victims Bill of Rights Act
[43] In his submissions Mr. Craig said that in the VBRA provisions Parliament “did not direct how or to whom victims are to express themselves”. That statement misapprehends the VBRA. The VBRA has explicitly fine-tuned the victim impact statement regime but it has not added the right of victims to address the offender directly nor has it expanded the scope of the statements to include vengeance or criticism of the offender, or recommendations on sentence without the court’s express approval.
[44] The VBRA maintains the strict boundaries around victim impact statements: they are to be directed to the judge. There is nothing in the language of the impending legislation that can be construed as changing that, no matter how broadly it is read.
[45] In the VBRA Parliament set out to expand, as Mr. Craig has explained, the informational, security, and participatory rights of victims in the criminal justice system. The addition of language that is simply redundant with existing sentencing provisions in the Criminal Code and the principles embedded in sentencing law, such as the paramount sentencing objective of protection of the public, has not fundamentally changed the sentencing process or the applicable substantive law.
[46] The VBRA amends the existing section 722 of the Criminal Code so that after July 23, 2015 it will provide that a sentencing 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. (section 25, VBRA)
[47] While this new section 722(1) is more specific about what “harm done to, or loss suffered by” – the language of the existing section 722(1) – includes, I am unaware of any instance where, under the current provisions, a sentencing judge has not considered descriptions in victim impact statements of physical or emotional harm, property damage or economic loss suffered by the victim. These are obvious impacts from crime, they are the kinds of harms and losses inflicted by offenders that sentencing judges are routinely informed about in victim impact statements. As I note later in these reasons, Nova Scotia’s Victim Impact Statement Program tells victims that a victim impact statement is an opportunity to outline “the financial, physical, and psychological/emotional impact of the crime.”
[48] Otherwise, the amendments to section 722 provide that judges are mandated prior to sentencing to inquire of prosecutors if reasonable steps have been taken to provide the victim with the opportunity to prepare a victim impact statement. The judge may order an adjournment to permit the victim to prepare a victim impact statement. (section 25, VBRA) Neither of these provisions would have any relevance to this sentencing were it to be occurring after July 23.
[49] The VBRA requires that a victim impact statement “must be prepared in writing” using a specific form which I will reference shortly and “in accordance with the procedures designated for that purpose” by the province. (section 25, VBRA)
[50] A new section 722(5) of the Criminal Code is created by the VBRA. It will govern the reading of the victim impact statement. It allows for a support person being with the victim while the statement is being read, or the reading of the statement outside the courtroom or behind a screen so as to permit the victim not to see the offender. (section 25, VBRA) It does not introduce the right to direct comments to the offender. The VBRA retains the procedural requirement that the victim impact statement is prepared for, and read to, the sentencing judge.
[51] Contrary to Mr. Craig’s suggestion that Parliament “did not direct how or to whom victims are to express themselves”, section 25 of the VBRA and its inclusion of a specific form for victim impact statements to follow explicitly directs how and to whom victims are to express themselves. And while a new section – section 722(5)(d) - will permit the presentation of a victim impact statement “in any other manner that the court considers appropriate”, the statement itself will still have to be prepared in accordance with the statutory provisions and the governing law, which has not been nullified by the VBRA. I have found no language in the VBRA which opens the door to content that is currently impermissible in a victim impact statement.
[52] Through the VBRA Parliament has provided an enhanced structure for the preparation and presentation of victim impact statements. It would have been profoundly insensitive to victims to purport to improve their experience in the criminal justice system but leave them in a state of uncertainty about what they can include and how they will be permitted to present their victim impact statements. Both the existing victim impact statement provisions in the Criminal Code and the VBRA amendments satisfy the sentiments expressed in the Preamble to the VBRA that “victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity.” (As an aside I will observe that dignity is enhanced by the absence of vengeance.)
[53] I note that the VBRA requires that the rights of victims “are to be exercised through the mechanisms provided by law.” (section 19, VBRA) And the VBRA is “to be construed and applied in a manner that is reasonable in the circumstances, and in a manner that is not likely to…interfere with the proper administration of justice…” (section 20,VBRA) This further confirms that the procedural and substantive requirements for victim impact statements will not deviate significantly from the existing regime.
[54] As I indicated earlier, the VBRA requires that victim impact statements are to be prepared in writing, using a form – Form 34.2 – which has been included in the legislation. Form 34.2 indicates what a victim impact statement “must not include.” It prohibits:
• any statement about the offence or the offender that is not relevant to the harm or loss suffered by the victim;
• any unproven allegation;
• any comments about any offence for which the offender was not convicted;
• any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or
• except with the court’s approval, an opinion or recommendation about the sentence.
[55] The Form invites the victim to present “a detailed account of the impact the offence has had on your life” and offers, in the category of “emotional impact”, examples of contexts that may have been affected such as: lifestyle and activities, relationships with others such as spouse, family and friends, ability to work, attend school or study, and “feelings, emotions and reactions as they relate to the offence.”
[56] As I have discussed, cases dealing with victim impact statements from a variety of court levels and jurisdictions have indicated that opinions or recommendations from victims on sentence are not permitted. The VBRA maintains this prohibition although it contemplates a sentencing judge allowing such opinions or recommendations. Presumably if content of this nature was opposed by either Crown or Defence or both, the judge would hold a hearing before exercising her discretion. What the VBRA does not do is create a right that does not currently exist: sentencing recommendations from victims will still be inadmissible unless permitted by the court.
[57] I will add one further comment: as noted by the Canadian Bar Association in its written brief[1] to the Senate Standing Committee on Legal and Constitutional Affairs reviewing the VBRA, victims will very rarely be “…equipped to make legally relevant or meaningful recommendations on the appropriate sentence.” It is the Crown’s role to represent the public interest in doing so. Judges are well aware of this and the questionable value of sentence recommendations or opinions victims might want to offer. As I have already said, the VBRA does not transform the sentencing process into a tripartite process.
[58] Under the VBRA, victims will be entitled to describe their “feelings, emotions and reactions as they relate to the offence.” (emphasis added) It is material to note that Parliament did not create a form that permits a description of “feelings, emotions and reactions” as they relate to the offender. Victim impact statements under the VBRA will still be statements about the impact an offence has had on the victim. They will continue to be evidence for consideration by the sentencing judge about the harm done to and the loss suffered by the victim as a result of the offence.
[59] I also want to address another provision of the VBRA which was relied on by Mr. Craig in his submissions about the expanding rights of victims in the criminal justice system. Mr. Craig referred me to section 14 of the VBRA which reads:
Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered.
[60] It would be absurd to view this provision of the VBRA as displacing the provisions I have been discussing that govern the procedure and content of victim impact statements. Section 14 cannot be interpreted to mean that victims will be able to side-step the VBRA provisions relating to victim impact statements and, in a sentencing hearing, “convey their views” about “decisions” (the sentence) “to be made by appropriate authorities” (the judge), in other words, to participate in the sentencing hearing subject to none of the constraints embedded in the applicable provisions of the VBRA and existing law. While I do not understand this to be what Mr. Craig was suggesting in referencing the section, I want to explicitly state that I regard section 14 as having nothing to do with judicial decision-making. Section 14 does not make it clear to whom victims are entitled to convey their views “about decisions” but it cannot be intended to apply to judges and the sentencing process. It can no more be relevant at sentencing than at trial, another judicial decision-making phase in the criminal justice process.
Information Provided to Victims by Victims Services in Nova Scotia
[61] The Nova Scotia Department of Justice website provides detailed information to assist victims of crime, including information about the preparation and use of victim impact statements. The following is reproduced from the Department of Justice Victims Services Programs webpage:
Victim Impact Statement Program
A Victim Impact Statement is your opportunity to tell the court about the impact of the crime on your life. It is a statement, written in your own words, that is considered by the judge in deciding the sentence for the offender. The Victim Impact Statement Program offers victims of crime the opportunity to present a statement to the court (for consideration in sentencing) outlining the financial, physical, and psychological/emotional impact of the crime.
As a victim of crime, you may feel left out of the criminal justice process. You may feel that everyone’s story is being heard except yours. However, victims can have a voice in the process. Before the offender is sentenced, you may tell the court how the crime has affected you through a Victim Impact Statement.
Who
May Complete a Victim Impact Statement?
A victim of any criminal offence may complete a statement. However, the
statement is not considered by the court until after the accused person has
been found guilty of the offence.
Who
Decides if a Victim Impact Statement is Submitted to the Court?
You do. Whether or not you provide a statement is entirely your decision. Once
you submit the statement to the court, it cannot be withdrawn. Your statement
may be submitted in writing or you may choose to read it in court.
What
Information Can I Give?
The statement should describe the harm or loss you have suffered as a result of
the crime. Your statement should refer only to the specific crime for which the
offender was found guilty. It should not contain opinions on the character of
the offender or the punishment the person(s) should be given. If your statement
contains information other than the impact the crime has had on you, the court
may not consider your statement.
How
Will the Information Be Used?
The information in your Victim Impact Statement is used by the judge in
determining an appropriate sentence for the offender. It may also be used by
correctional authorities when making decisions regarding the offender (e.g.
parol decisions).
Is the
Information Confidential?
No. Once the accused is found guilty or has pled guilty a copy of your Victim
Impact Statement is given to the judge, the Crown Attorney and the offender or
the offender’s lawyer. The contents of the statement are presented in a court
hearing which is open to the public. The written consent of the judge is
necessary, however, before the court will make a copy available to the public
or to the media.
Do I
Have to Appear In Court?
It is usually not necessary for you to appear in court; however, you may have
to testify in court if any of the information in your statement is questioned.
Where
Do I Go If I Want to Submit A Victim Impact Statement?
Victim Impact Statement forms and guidelines are available from your nearest
regional office. A Victim Services Officer will help you to complete the
statement and will submit it to the court on your behalf.
[62] As noted in the above, information available to victims indicates that a victim impact statement
…should not contain opinions on the character of the offender or the punishment the person(s) should be given. If your statement contains information other than the impact the crime has had on you, the court may not consider your statement.
[63] The form provided to victims for their statements includes a cover page that reiterates this direction. The extent to which victims are provided with guidance by Victims Services’ representatives in the preparation of their victim impact statements is not something I know. I have absolutely no doubt that the preparation of victim impact statements, especially where a loved one has been killed, is an overwhelmingly distressing experience requiring significant courage and fortitude.
The Four Victim Impact Statements in This Case with Challenged Content
[64] Earlier in these reasons I indicated there are four victim impact statements in this case containing content that has been challenged. As I said earlier, there is a consensus between Crown and Defence that one of the four statements makes references to alleged facts and that this content is impermissible.
[65] It has been difficult to determine how best to communicate my decisions in relation to the specific content of the four victim impact statements. These reasons have already been lengthy. I wish it had been possible to abbreviate them for the sake of the victims but I concluded that would not serve the broader interests of justice. This application raised significant issues that have demanded considerable reflection.
[66] The application to the four victim impact statements (which I have labelled Victim Impact Statements #1, #2, #3, and #4) of the principles I have been discussing has led me to conclude they each contain impermissible content. I have included in these reasons the content I have found to be inadmissible. Out of consideration for the victims I have decided not to read out all the content. It is available to be reviewed in these written reasons which are the record of my decision.
[67] First of all, with respect to the uncontested issue of factual content, I am providing counsel a copy of the victim impact statement (Victim Impact Statement #4) in which I have identified with orange highlighting what I have found to be inadmissible factual references. Those references are found on pages 1, 3, 4, and 5 as I have numbered them.
[68] Some of the “factual content” passages in Victim Impact Statement #4 deal with matters other than the offence for which BP is being sentenced and are addressed directly to him. This demonstrates that the challenged content in a victim impact statement may give rise to more than one type of objection.
[69] Starting at paragraph 70 below, I deal with the content in relation to which there is no consensus. I then address, for all the inadmissible content, the issue of “remedy”, that is, how should any impermissible content be treated: should I simply disregard it as the Crown urges or should it be edited out, as the Defence has argued?
[70] What follows now are the comments (which I have italicized) in the victim impact statements that I have found to be inadmissible. I have included the positions of the Crown and Defence on their admissibility, and my reasons for my determinations. For ease of reference, I will be providing counsel with copies of these victim impact statements with the inadmissible portions highlighted in yellow.
Victim Impact Statement #1
I remember thinking this is what evil feels like.
Crown: An expression of emotion not a criticism of the offender.
Defence: Criticism of the offender
My determination: I find this constitutes a comment on the character of the offender and is inadmissible.
You are going to be released in a few short years so I know we have to sell my husband’s family home of 60+ years and we have lived for the last 28 years because I no longer feel safe. You know where we live and watching you in this courtroom and knowing what you are capable of doing to people terrifies me.
Crown: This is an expression of the impact of the offence on the author of the statement.
Defence: Directed towards the offender.
My determination: These statements are directed to the offender and are inadmissible. They also go beyond a comment about the offence for which this young person is being sentenced.
Trying to imagine what his last thoughts must have been as you guys started stabbing him tears me to pieces. You not only took Daniel’s life but you destroyed a piece in everyone who loved him. We will never be the same people we were and his death at your hands will haunt us forever as I hope it does you till your dieing day.
Crown: An expression of sentiment and not impermissible. If expressed in a passive voice it would be uncontroversial. How the expression is worded is immaterial; what matters is the sentiment.
Defence: Directed towards the offender. The expressed hope that Daniel Pellerin’s death will haunt BP to his dying day is an expression of vengeance.
My determination: These statements are directed to the offender and are inadmissible. The final sentence is an expression of vengeance which is inadmissible. How harm and loss are expressed in a victim impact statement is material: as I have discussed, neither the existing law nor the VBRA permit uncalibrated, unrestrained expressions of emotion.
Victim Impact Statement #2
No one has the right to take the life of another human being, criminals need to be held accountable for their actions, there is no rehabilitation for the truly wicked and evil. Offenders that demonstrate that when given the slightest amount of freedom continue to attack the very foundation of our society with offences that escalate in severity, need to be dealt with accordingly.
Crown: An unproblematic expression of emotion, feeling and reaction and not a comment in relation to penalty.
Defence: A sentence recommendation and criticism of the offender.
My determination: I find these statements include opinions on the sentence and comment on the character of the offender. They are inadmissible.
Victim Impact Statement #3
I’m here in front of you BP, not because I want to be but, because I have to say “I Hate You” for what you did to my family and my Daniel.
…
…but you took it upon yourself for what ever reason to take him away from all of us on August 29, 2014.
The sentence you get today will never be enough. You murdered Daniel and I Hate You with all my broken heart.
Crown: A legitimate expression of sentiment. It does not matter how the feelings are expressed.
Defence: Directed to the offender. Recommendation in relation to sentence. “…you took it upon yourself for what ever reason to take him away from all of us on August 29, 2014” is an assertion of fact.
My determination: These statements are directed at the offender and are inadmissible for this reason and also because expressions of hatred are not comments on the offence but on the offender. It does matter how feelings are expressed in victim impact statements. Statements about the perceived inadequacy of a sentence are inadmissible.
Victim Impact Statement #4
…because you took him away. You stole his life…
I had to go where you killed him to try to understand why anyone would do this to Daniel…
My sons were both present when I was told how you inhumanely killed their Uncle Dan.
My sons lost so much because of you.
And most importantly what you did took away their childhood.
I hate what you’ve done has brought out the worst in me…You took the life of a wonderful person. You didn’t even give him a chance to fight for his own life. He had no way of defending himself. You cowardly ambushed my brother and stole his life. I have seen no signs of remorse or regret from you. How would you react if it was your little brother or sister? Would you still sit there rolling your eyes, and looking so smug? You act as though this is not a big deal. Maybe over the next few years while you are away from the people you care about, you will only slightly begin to get it…
…and what you did to him. I hope his face is the first thing you see in the morning and the last thing you see at night. You need to know that…but because of your blatant disregard for my brothers life...
There is no punishment harsher than the one you will face when you meet my God. One day you will be held accountable by even a higher power and only then will you truly pay for what you have done. I hope his last breath haunts you like it does me. You took away any chance to say goodbye. I will never forgive you for that. You have no idea what you have done to our entire family, and forgiveness is not an option. I will forever hate you for stealing him away from us. I honestly hope that one day you feel pain like this and realize fully what you have done. What you stole. Who you stole. I will never let you or anyone else ever forget Daniel, and who you took him from.
We see you sitting here smirking and laughing…making faces, like his life didn’t matter. His life mattered to more people than you will ever know.
Crown: Use of strong language to describe how [the victim] feels. “It is not for the court or anybody to tell [the victim] how to express [his/her] emotions, feelings and reactions”.
Defence: Directed towards the offender.
My determination: These statements are directed at the offender and are inadmissible. There are also inadmissible comments on the character of the offender and expressions of vengeance.
[71] My detailed assessment of the four victim impact statements with content in issue identifies as inadmissible, statements of fact, statements directed to the young person, comments on/criticisms of the character of the young person, comments on sentence, and expressions of vengeance.
[72] I reject Mr. Craig’s submission in relation to Victim Impact Statement #4 that, “It is not for the court or anybody to tell [the victim] how to express [his/her] emotions, feelings and reactions.” As I have discussed in these reasons, whether it is the existing section 722 of the Criminal Code or the amendments introduced by the VBRA being relied upon, the content of victim impact statements must come within the governing legal parameters. It is ultimately and indisputably the role of the courts to ensure that they do. (Gabriel, paragraph 55; Berner, paragraph 26; Sparks, paragraph 15)
[73] And, as I explained earlier, “emotions, feelings and reactions” have to relate to the offence, not the offender and cannot include expressions of vengeance.
The Issue of Remedy
[74] In Berner, the British Columbia Court of Appeal identified the Crown as responsible for what is contained in a victim impact statement being presented to a sentencing court:
27 Before moving on, we wish to stress that victims and their families are not expected to appreciate these distinctions. It is the responsibility of Crown counsel to communicate with victims and their families about the appropriate content of victim impact statements, vet the materials once received, and not seek to admit victim impact statements which go beyond these parameters.
[75] Earlier decisions took this same position. (McDonough, paragraph 31; Jackson, paragraph 51) Avoiding any appearance of unfairness is essential at sentencing, “one of the most critical moments in the process.” (Jackson, paragraph 56)
[76] I do not agree that the appropriate response to inadmissible content in a victim impact statement is to simply disregard it. I find it is not appropriate to permit inadmissible content to be read into the sentencing record. I am in full agreement with Williams, J., in Sparks where he concluded that inadmissible content should be “excised” before a victim impact statement is presented and/or read to the court at sentencing. (Sparks, paragraphs 16, 17, and 19) The inadmissible content I have identified in the four victim impact statements in this case is to be removed and, before they are presented at the sentencing hearing on June 24, the statements either redacted or redrafted to contain only the admissible portions.
Concluding Comment
[77] I want to conclude by expressing my regret that what has undoubtedly been an almost unbearable experience for the Pellerin family of dealing with the murder of Mr. Pellerin and the criminal justice processes associated with it has been made more difficult as a result of the victim impact statement issue. I hope they will still be willing to provide, in accordance with my ruling, victim impact statements at sentencing. Their participation in BP’s sentencing is important and will be valued.