International Law

R. v. V. W.

Are victim impact statements admissible to prove the facts required to make an SVO (Serious Violent Offender) designation in a hearing under the Youth Criminal Justice Act and, if they are, does the offender have the right to cross-examine the victim?

Sort of.

An offender does not have an automatic or open-ended right to insist that victims attend for cross-examination any time the Crown wishes to use a victim impact statement in a sentencing hearing. Nor does s. 7 of the Charter mandate such a right. Rather . . .

It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of the Charter, s. 42(9) of the YCJA and s. 724(3) of the Criminal Code is to impose a threshold ?air of reality? burden on the offender to satisfy the sentencing judge that a fact or facts contained in the victim impact statement are disputable and that the request to cross-examine is not ?specious or empty?: see Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 198. If there is no factual dispute that meets this low threshold, the protections accorded by s. 724(3) are not triggered and I fail to see how there could be any violation of the appellant?s s. 7 Charter rights.

This analysis suggests that there is a discretion on the part of the sentencing judge to assess the offender?s request in the light of the facts that have been proved and the evidence that has been led, whether at the trial or on the sentencing hearing, with a view to achieving a just reconciliation between respecting the procedural rights of the offender and respecting the legitimate role of the victim in the sentencing process. The sentencing judge?s duty to ensure that the offender?s procedural rights are protected entails a discretion to permit cross-examination when satisfied that there is an air of reality to the claim that the facts are in dispute and that the offender?s request to cross-examine is not specious or empty.

Although there is little jurisprudence and commentary discussing cross-examination on victim impact statements, the case law and commentary that does exist supports the conclusion that cross-examination may be allowed, but only at the judge?s discretion.

Full post as published by Criminal Review on January 27, 2008 (boomark / email).