A ruling by New Brunswick’s top court that declares victims “cannot be
allowed to hijack” a trial and chastens a judge so moved by tearful
accounts of loss that he doubled an expected sentence is prompting
debate over whether it is time to rethink the judicial system’s focus on
victims’ rights.
The judgment has victims’ rights advocates warning
their voices are being silenced, but has others applauding the court’s
appeal for what the judge described as “dry-eyed justice.” Over the past
two decades, victim impact statements have become dramatic and
compelling features at most criminal trials.
Often spoken by the victim directly to the perpetrator in court, they
have become — for the public and the media — defining moments. Usually
packed with emotion, strong victim impact statements have moved courts
to tears. But little is known about what happens next.
Despite mandating a place for victims’ voices, the Criminal Code
gives little guidance on its use by judges.
In this latest ruling, the Court of Appeal of New Brunswick
overturned a sentence against Tina Steeves, a recovering drug addict
from Moncton who pleaded guilty last year to theft, fraud and breach of
undertaking.
As part of her plea deal, the Crown attorney and her lawyer jointly
asked for two years in jail. But after hearing the victim impact
statements from her parents, who were swindled out of their life
savings, Justice Irwin Lampert decided two years was “not enough” and,
in a rare move, doubled the sentence.
Hooked on pain medication, Steeves lied to her parents, telling them
her life was in danger and she needed money to pay extortionists
threatening her. The parents drained their life savings, drew cash
advances, went without their own medication to save money and sold their
cars and furniture to give her $400,000 over two years in a misplaced
bid to help. She used the money to buy drugs.
The appeals court ruled the trial judge was wrong to place so much
weight on the victims.
“The agreed-upon sentence is not so lenient that its adoption by him
would have brought the administration of justice into disrepute or would
otherwise have been contrary to the public interest,” wrote Chief
Justice Ernest Drapeau on behalf of the appeals court.
“Victim impact statements have a significant role to play in the
imposition of sentence, but they cannot be allowed to hijack the
process,” he wrote.
“While retribution is an accepted sentencing principle, vengeance is
not.
“The ultimate objective is dry-eyed justice according to law.”
Joe Wamback, who formed the Canadian Crime Victim Foundation after
his son was left permanently injured from an assault, is among those who
see the ruling as a diminishment of the victims’ role in sentencing.
“I find it demoralizing, frustrating and a massive setback, not only
for the victim’s rights movement but also for the will of parliament,”
he said.
“The justice system in Canada is not the sole property of judges,
lawyers and criminals. It is there to serve victims as well as those
accused of crime,” he said. “This ruling will do a massive disservice to
the judicial system.”
But Clayton Ruby, a criminal and constitutional lawyer who has
authored a legal text on sentencing, praised the decision, saying
victims remind the court of the impact of a crime but they cannot be
allowed to trump accepted sentencing principles.
“The victim’s interest is narrow… They want longer sentences for
emotional reasons but it’s not in the best interests of the public,” he
said. The courts must reflect a broad public interest perspective.
“The Crown can’t allow anybody else to speak for the state,” he said.
Victims had no sure voice in criminal proceedings until 1988 when
changes to the Criminal Code said courts needed to hear of the impact of
the crime.
“Courts have been grappling with this ever since. How courts deal
with victim impact statements hasn’t had a lot of direction from the
Supreme Court,” said Jeff Rybak, a recent law school graduate who
researched victim impact statements in Canada as a graduate project.
The result, he said, is judges say they considered the victims but
rarely provide details.
“How much of an impact do they have? We don’t know because judges
aren’t telling us,” said Mr. Rybak. Saying too much leads to appeals,
just as has happened in New Brunswick.
Emphasizing the victims raises troubling propositions, he said, such
as whether a drunk driver who kills a beloved member of the community
with a family which is able to articulate its desperate loss should be
punished more harshly than one who kills a homeless person with no one
to mourn them.
The issue would benefit from clear guidance by the Supreme Court, he
said, adding this case may hasten that.
ahumphreys@nationalpost.com
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