Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm

Abstract

This article discusses the Quebec Court of Appeal decision in Cook that provides an unambiguous affirmation of the importance of victim impact evidence as a source of aggravation at sentencing. If followed in other jurisdictions, the decision will have a significant impact on the evolution of victim impact statements. To date, the victim impact statement has remained in a legal no man’s land, somewhere between an unsworn statement made by the victim, which may (or may not) be entered into the record and a form of evidence that can affect the quantum of punishment and hence the liberty interests of the defendant. This state of affairs is unsatisfactory for all concerned. In our view a victim impact statement serves a number of purposes, some expressive in nature. We discuss the concept of ancillary harm — inflicted on secondary crime victims — to demonstrate the utility of impact statements as a source of legally-relevant information at sentencing. We conclude that an impact statement is evidence that enables the court to reach a more accurate determination of the harm created by the offence. In this sense the use of victim impact evidence promotes the principle of proportionality at sentencing. This evidence is properly adduced at a separate penalty phase of the criminal process, namely the sentencing hearing.