Hearing the Victim at Sentencing

• Author: Marie Manikis
• Pages: 153-168

153

CHAPTER EIGHT

Hearing the Victim at Sentencing

Marie Manikis*

e role of victims in the Canadian criminal justice system has changed

signicantly over the past two decades. Although some legal practi-

tioners and academics remain opposed, victims are now an integral

part of various stages of the process, including at trial, sentencing, and

parole. e increasing role of victim participation in the Canadian

criminal justice system is part of a larger movement across common

law jurisdictions that arose partially out of concerns about the treat-

ment of victims in the criminal justice process.

* The author is most grateful to the editors, David Cole and Julian Roberts, for their sub-

stantial and continuous contribution in the f‌ield of sentencing. A special thanks for their

constant support and feedback throughout the years and for providing mentorship and

inspiration to many generations of sentencing scholars.

 Julian V Roberts, “Listening to the Crime Victim: Evaluating Victim Input at Sentencing

and Parole” ()  Crime and Justice ; Marie Manikis, “Imagining the Future of

Victims’ Rights in Canada: A Comparative Perspective” ()  Ohio State Journal of

Criminal Law .

 Marie Manikis, “Contrasting the Emergence of the Victims’ Movements in the United

States and England and Wales” ()  Societies ; Edna Erez, “Victim Participation

in Sentencing: Rhetoric and Reality” ()  Journal of Criminal Justice .

154 |   

A. THE CHANGING ROLE OF VICTIMS AT SENTENCING

Before the formal recognition of victims at sentencing, presiding

judges usually adopted the traditional view that the prosecutor repre-

sented the public interest, including the interests of victims, and thus

seldom accepted victim participation as witnesses at sentencing. e

victim impact statement (VIS) regime in Canada was rst introduced

in  under section  of the Criminal Code, following the report by

the Canadian Sentencing Commission in , which recommended

the admission of statements describing the emotional, physical, and

nancial harm of victims in sentencing. is regime went through

several legislative changes over the years. Most notably, in , a statu-

tory reform required the court to consider a victim impact statement

where one has been submitted. Nevertheless, consideration of these

statements was left to the discretion of prosecutors and judges who, at

times, failed to introduce or consider them.

While the prosecutor still represents the public interest, victim

impact statements are increasingly being considered an important tool

for hearing the voices of victims. Legislative amendments in , for

example, made victim participation more robust by imposing manda-

tory obligations upon the judiciary. Indeed, the Criminal Code, section

(), uses “shall inquire” as obligatory terminology for sentencing

judges to consider statements from victims “describing the physical

or emotional harm, property damage or economic loss suered by

the victim as a result of the commission of the oence.” Moreover,

as discussed in this chapter, courts in recent years have increasingly

recognized the victim impact statement as relevant evidence when

crafting sentences, and the failure to properly consider it has given

 See R v Antler (),  CCC (d)  (BC SC); and R v Robinson (),  CR (d)

 (Ont HC).

 Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa:

Supply and Services Canada, ).

 Bill C-, An Act to amend the Criminal Code (Sentencing) and other Acts in conse-

quence thereof, st Sess, th Parl,  (assented to  July , proclaimed in force

 September ), SC , c .

 Bill C-, An Act to amend the Criminal Code (victims of crime) and another Act in

consequence, st Sess, th Parl,  (assented to  June ), SC , c .