'Dry-eyed justice'

Judge questions impact of victims on rulings

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.

(Published by National Post - August 6, 2010)

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