The Degree to which Victim Impact Statements Influence Sentencing (a student perspective)

Ninety-six victim impact statements were determined to be admissible at the sentencing hearing of Nicholas Bell-Wright in relation to the second-degree murder of Cooper Nemeth. The case drew national headlines:

“…Nicholas Bell-Wright, 23… pleaded guilty to second-degree murder last November in the 2016 death of Nemeth… the teenager had left a house party in East Kildonan, according to an agreed statement of facts provided to court, and met up with Bell-Wright.

He had told Nemeth he could help him set up a drug deal. The two left the home in Bell-Wright's car.

"A violent encounter subsequently occurred," Crown attorney Mike Himmelman previously told court.

Bell-Wright shot Nemeth twice in the head with a .22-calibre semi-automatic pistol.

Nemeth's parents reported him missing later that day.

A massive search effort attracted hundreds of volunteers, including members of the Bear Clan Patrol. Flyers with a photograph of the teenager were posted around Winnipeg.

On Feb. 20, Nemeth's body was found in a garbage bin behind a house on Bayne Crescent, just one street over from the house party where he was last seen.

Bell-Wright was arrested the following morning.”1

To what degree does the sheer quantity of these statements truly inform the court’s decision? The minimum sentence available for Bell-Wright is life with no chance of parole for ten years. The issue for the sentencing judge to consider was how long the offender would have to wait until he can apply for parole.

Victims of crime have the right to present a victim impact statement under the Victims Bill of Rights which came into effect July 23, 2015.2

This right to participation is consistent with the Canadian Charter of Rights and Freedoms, which is affirmed in the preamble of the Victims Bill of Rights.3 Participation is further recognized in section 722 of the Criminal Code, which allows victims to file and read a victim impact statement at the time of sentencing of the offender.4 A victim impact statement is a “written statement from a victim that describes the physical or emotional harm, property damage, or economic loss which the victim of an offence has suffered”.5 The courts must take these statements into account when sentencing an offender. Though courts always do consider the experiences of victims when sentencing offenders, courts have been cautious to state the degree to which statements directly determine the nature or quantum of the sentence which is ultimately given.

The 2001 case of R v Labbe outlines the two essential purposes of victim impact statements. The first is so that the court “is more aware of the harm done” to assist in determining the sentence’s gravity.6 The second is to assure victims that they are “not irrelevant and forgotten”.7 Justice Bouck in this case considers the two part test, and states that the “law ought not to measure the value of a life taken” by imposing more or less severe sentences based on a victim impact statement.8 This case indicates that though victim impact statements can inform the courts and provide victims with a certain degree of closure, such benefits are unlikely to substantially alter the length or type of sentence contemplated by the judge.

In R v Thornton, the judge described the effects of the offence as “catastrophic”, but did not appear to place much weight on the victim impact statement during sentencing. The judge states that “the Court can only [follow] existing jurisprudence” when administering a sentence.9 This suggests that a victim impact statement may only have the ability to marginally alter a sentence within a range accepted by the common law for similar offences. To sentence outside the realm of similar offences may risk violating an offender’s rights pursuant to section 12 Canadian Charter of Rights and Freedoms to be free of “cruel and unusual treatment or punishment” which is “grossly disproportionate” or “outrages the standards of decency”.10 An excessive punishment based on victim impact statements is a practice the courts do not condone.

Although it would appear that victim impact statements do not typically impact a sentence, judges must still consider them. It is an “error to discount”, or to put “undue emphasis”, on a victim impact statement.11 Appellant courts have made it clear that a failure of the trial judge to appropriately consider information in a victim impact statement may result in the overturning of a sentence. This is demonstrated in R v Kennedy, where the sentencing judge did not adequately consider the full impact of a sexual assault upon the complainant.12 It was determined that the trial judge made an error in discounting the victim impact statement when balancing sentencing principles.13

Though victim impact statements may not be able to substantively determine the nature or quantum of a sentence, their consideration by the courts contributes to a restorative justice approach. Victims have the opportunity to tell their story, and offenders have the opportunity to understand the full consequences of their actions. Victim impact statements are often the victims’ only opportunity to participate in the criminal justice process, or to have the opportunity to directly confront the offender who has harmed them. Bell-Wright read all ninety-six victim impact statements and “understood how Nemeth’s death affected so many people”.14

In another high profile case, the sentencing judge of Larry Nassar in the United States, regarding the sexual abuse of dozens of gymnasts, heard the victim impact statements of over one hundred and fifty victims.15 The victim impact statements of these the women served to illuminate the extent and nature of the abuse to the judge before sentencing. Though Justice Aquilina could only sentence based on what was in the common law, her comment that “justice requires action and a voice- and that is what has happened here in this court” acknowledges the importance of victim impact statements when determining an appropriate sentence for an offender.

In the sentencing of Nicholas Bell-Wright for the second degree murder of Cooper Nemeth, the victim impact statements tendered were considered by the judge under section 14 and section 15 of the Victims Bill of Rights. This piece of legislation allows victims to “convey their views” and “present a victim impact statement” to be considered by the Court.16 Statements tendered had to be considered by the judge, but it is unlikely they substantively informed the sentence itself.

Chief Justice Joyal, the sentencing judge for Nicholas Bell-Wright, noted the large quantity of victim impact statements during his sentencing decision, and stated that they described the effect the murder had on the victim’s friends, family, and community. Though only sixteen victim impact statements were read in court, all ninety-six were considered and submitted into court records.17 Chief Justice Joyal stated that his role was to “follow dispassionate objectivity in sentencing”, which suggests that the victim impact statements did not substantively influence the sentence.18 The ultimate sentence imposed by Chief Justice Joyal was life imprisonment with no chance of parole for sixteen years.19

Endnotes

1 “Influx of victim impact statements forces delay in sentencing for Cooper Nemeth killer” CBC News (Jan 15, 2018) online: <http://www.cbc.ca/news/canada/manitoba/nicholas-bell-wright-sentencing-cooper-nemeth-killing-1.4485840>.

2 Canadian Victims Bill of Rights, SC 2015, c 13, s 2.

3 Ibid.

4 Criminal Code of Canada, RSC, 1985, c, C-46, s 722.

5 “Victim Impact Statements”, Department of Justice (31 August 2017), online: <http://www.justice.gc.ca/eng/cj-jp/victims-victimes/sentencing-peine/vis-dv.html>.

6 R v Labbe, 2001 BCSC 123 at para 51.

7 Ibid.

8 Ibid at paras 47, 52.

9 R v Thornton, 2000 BCSC 1430 at para 43.

10 The Constitution Act, 1982, Schedule B to The Canada Act 1982 (UK), 1982, c 11, s 12; R v Smith (Edward Dewey), [1987] 1 SCR 1045 at para 98, 110.

11 R v Kennedy, 1999 CanLII 3808 (ON CA) at para 22; & R v Tran, 1999 BCCA 367 (CanLII) at para 18.

12 Ibid.

13 Ibid.

14 Kelly Malone, “’I live in such darkness,’ Cooper Nemeth’s mom tells court before killer sentenced”, CBC News (24 January 2018), online: <http://www.cbc.ca/news/canada/manitoba/cooper-nemeth-sentencing-1.4502073>.

15 “Larry Nassar sentenced to 40 to 175 years in prison- live updates”, CBC News (24 January 2018), online: <https://www.cbsnews.com/news/larry-nassar-sentence-us-gymnastics-doctor-40-to-175-years-sexual-abuse-today-2018-01-24/>.

16 Supra note 2.

17 Karen Pauls and Kelly Malone, “Unusually high number of victim impact statements in Cooper Nemeth case wont set a precedent: judge”, CBC News (22 January 2018), online: <http://www.cbc.ca/news/canada/manitoba/16-victim-impact-statements-cooper-nemeth-1.4498225>.

18 Supra note 14.

19 Ibid.