Her Majesty the Queen v. V.W. [Indexed as: R. v. W. (V.)]

89 O.R. (3d) 323

Court of Appeal for Ontario,

Laskin, MacPherson and Sharpe JJ.A.

January 25, 2008

Criminal law -- Young offenders -- Sentencing -- Serious violent offence -- Serious Violent Offence designation part of sentencing process -- Victim impact statements admissible to prove facts required to make Serious Violent Offence designation -- Defence having right to cross-examine makers of statements but only where defence satisfies low threshold establishing that facts contained in victim impact statement are disputable and that request to cross-examine is not specious or empty.

The youth was convicted of three robberies, two of which involved pizza deliverymen and the use of an imitation weapon and the third involved the robbery of an iPod from a teenaged girl. The Crown sought Serious Violent Offence ("SVO") designations pursuant to s. 42(9) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"), and relied on victim impact statements from the pizza deliverymen to prove that they had suffered psychological harm amounting to "serious bodily harm". The deliverymen were not present for cross-examination. The trial judge rejected the youth's assertion that the use of the victim impact statements without an opportunity to cross- examine the makers amounted to a breach of his rights under s. 7 of the Canadian Charter of Rights and Freedoms. The trial judge made SVO designations for the two pizza delivery robberies and sentenced the youth to 18 months' custody. The youth appealed the SVO designations.

Held, the appeal should be dismissed.

An SVO designation is part of the sentencing process. Victim impact statements are therefore admissible pursuant to s. 722(1) of the Criminal Code, R.S.C. 1985, c. C-46 and s. 50(1) of the YCJA to prove the facts required to make [page324] an SVO designation. The use of victim impact statements is subject to the general provisions of s. 724(3) of the Code. The Crown bears the burden of proving any disputed facts and the offender has the right to cross-examine on the evidence the Crown leads. However, s. 724(3) does not give an offender an automatic or open-ended right to insist that victims attend for cross- examination any time the Crown wishes to use a victim impact statement in a sentencing hearing. Nor does s. 7 of the Charter mandate such a right. Permitting automatic or unlimited cross- examination would undermine the goal of victim impact statements which are designed to give victims a voice in the justice system, including a right to confront offenders with the harm they caused, and to ensure that the judge will know the consequences of a crime. On the other hand, an absolute bar on cross-examination would unduly interfere with offenders' procedural rights. Balancing these rights and goals can be achieved by imposing a burden on the offender to satisfy the sentencing judge that there is an "air of reality" to the allegation that a fact or facts contained in the victim impact statement are disputable and that the request to cross-examine is not specious or empty. In this case, had the sentencing judge done so, he necessarily would have come to the conclusion that the request to cross-examine the victims was specious or empty.

APPEAL by a youth from the Serious Violent Offence desigation made by Minard J. of the Ontario Court of Justice, dated July 28, 2006.

Cases referred to R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 203 C.C.C. (3d) 449; R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 140 D.L.R. (3d) 612, 43 N.R. 361, 68 C.C.C. (2d) 477, 30 C.R. (3d) 289, consd Other cases referred to R. v. B. (D.) (2006), 79 O.R. (3d) 698, [2006] O.J. No. 1112 (C.A.) [Leave to appeal to S.C.C. granted [2006] S.C.C.A. No. 195]; R. v. K.W.W., [2004] B.C.J. No. 1997, 2004 BCPC 352; R. v. Lafleche, 2001 ABCA 292, [2001] A.J. No. 1504, 293 A.R. 285 (C.A.); R. v. McCraw, [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, 49 O.A.C. 47, 128 N.R. 299, 66 C.C.C. (3d) 517, 7 C.R. (4th) 314; R. v. P. (D.), [2006] B.C.J. No. 2113, 212 C.C.C. (3d) 237, 2006 BCCA 409, 41 C.R. (6th) 342; R. v. Shaban, [2004] A.J. No. 1310, 2004 ABQB 558; R. v. T.B.W., [2003] B.C.J. No. 1731, 2003 BCPC 256 Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 2 "bodily harm" [as am.], 722 [as am.], 724 [as am.] Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2 "serious violent offence", 42, 50(1), 62 Authorities referred to Bala, N., Youth Criminal Justice Law (Toronto: Irwin Law, 2003) Bromwich, R.J. and N. Bala, "Serious Violent Offences Under the Youth Criminal Justice Act" in The Youth Criminal Justice Act: A Practical Guide to the New Act. Proceedings of Continuing Legal Education Program Held January 18, 2003 (Toronto: Law Society of Upper Canada, 2003) Manson, A., The Law of Sentencing (Toronto: Irwin Law, 2001) Department of Justice, Policy Centre for Victim Issues, Multi- Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Judiciary Respondents (Ottawa: Department of Justice Research and Statistical Division, 2005) Roach, K., "The Role of Crime Victims Under the Youth Criminal Justice Act" (2003) 40 Alta. L. Rev. 965 [page325]

Samuel Goldstein, for appellant. Dan Guttman, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal concerns the use of victim impact statements in a Serious Violent Offence ("SVO") designation hearing under the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"). Are victim impact statements admissible to prove the facts required to make an SVO designation and, if they are, does the offender have the right to cross-examine the victim?

Facts

[2] The appellant was convicted of three separate robberies committed over a period of a few weeks. Two of the robberies involved pizza deliverymen and the use of an imitation weapon. The other involved the robbery of an iPod from a female teenager. The appellant pleaded guilty to one of the pizza delivery robberies and to the iPod robbery and was found guilty of the other robbery after a trial.

[3] The Crown gave written notice that it would be seeking three SVO designations pursuant to the YCJA, s. 42(9):

42(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly.

[4] None of the victims sustained any physical injury. However, "serious violent offence" is defined by the YCJA, s. 2(2), to mean "an offence in the commission of which a young person causes or attempts to cause serious bodily harm" and, as I will explain below, "serious bodily harm" has been interpreted to include "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant".

[5] The Crown relied on victim impact statements from the pizza delivery victims to prove that they had suffered harm that amounted to "serious bodily harm". Counsel for the appellant submitted that he was entitled [to] cross-examine the victims at the SVO designation hearing. The pizza delivery victims were not [page326] present and the appellant argued that use of the victim impact statements in those circumstances amounted to a breach of his s. 7 Canadian Charter of Rights and Freedoms rights.

[6] The youth justice court judge ruled that the Crown was entitled to prove that the offences were SVOs using the victim impact statements and that the appellant was not entitled to cross-examine the victims. The youth justice court judge ruled "that there indeed may be circumstances in these serious violent offence hearings where the failure to call the complainants to be cross-examined may amount to a breach of s. 7, depending on each case". However, he ruled that it was only in "the clearest of cases" that there was a Charter breach and that he was not satisfied that these were the "clearest of cases".

[7] Both pizza delivery victims were the subject of robberies involving the use of imitation weapons "as an item to instil intimidation and fear". One indicated in his victim impact statement that he remained terrified every time he went to work, and the other stated that he had problems sleeping, that he was afraid to go out, and that he had consulted his family doctor about his fears and anxiety. The youth justice court judge found that the victim impact statements reflected what "any usual or reasonable person" would expect, namely fear, fright, and "some long term impact in terms of their feelings of security and safety". The youth justice court judge further ruled that the likelihood of cross-examination undermining the substance of the victim impact statements was "so remote" that he was unable to find a breach of the principles of fundament justice.

[8] The youth justice court judge made SVO designations for the two pizza deliveryman robberies but ruled that the Crown had not met its burden with respect to the iPod robbery.

[9] The appellant was sentenced to 18 months custody and the two robberies were designated as SVOs. The appellant appeals the SVO designations.

Issue

[10] Did the youth justice court judge err in admitting the victim impact statements in the SVO designation hearing and refusing the appellant the right to cross-examine the victims?

Analysis

Serious violent offence designation

[11] The Supreme Court of Canada has interpreted the terms "serious violent offence" and "serious bodily harm". In R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 203 C.C.C. (3d) 449, [page327] Bastarache J. held that the Criminal Code, R.S.C. 1985, c. C-46 definition of "serious bodily harm" applied, as s. 2(2) of the YCJA states, "Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code." The Criminal Code defines "bodily harm" at s. 2 as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". Bastarache J. then applied the definition given "serious bodily harm" in R. v. McCraw, [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, 66 C.C.C. (3d) 517, at p. 80 S.C.R., p. 524 C.C.C., as "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant."

[12] An SVO designation carries what the Supreme Court of Canada has described as "quite severe" consequences: R. v. D. (C.); R. v. K. (C.D.), at para. 21. In a similar vein, Professor Nicholas Bala writes, "The impact of such a determination on the life of a youth may be profound and, consequently, the discretion to make such determinations should be exercised with caution": Youth Criminal Justice Law (Toronto: Irwin Law, 2003) at 492.

[13] An offender who is at least 14 years old, has already committed two SVOs, and is being sentenced for an SVO for which an adult could be imprisoned for more than two years, is presumptively sentenced as an adult: ss. 62(a) and 2(1)(b) of the YCJA. This court has found that s. 62 infringes s. 7 of the Charter because it places an onus on the youth to justify a youth sentence: R. v. B. (D.) (2006), 79 O.R. (3d) 698, [2006] O.J. No. 1112 (C.A.). Leave to appeal to the Supreme Court of Canada has been granted: [2006] S.C.C.A. No. 195. Pursuant to ss. 42(7) and 42(2)(r) of the YCJA, the court may make an intensive rehabilitative custody and supervision order for the third serious violent offence.

Admissibility of victim impact statements as evidence of an SVO

[14] Victim impact statements may be used "[f]or the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to s. 730 in respect of any offence" and to describe "the harm done to, or loss suffered by, the victim arising from the commission of the offence": Criminal Code, s. 722(1). The Criminal Code provisions relating to victim impact statements apply to youth justice proceedings by virtue of s. 50(1) of the YCJA. [page328]

[15] The threshold question is whether the SVO designation can be characterised as an aspect of sentencing to permit the Crown to rely on victim impact statements.

[16] An SVO designation arguably could be seen as relating to the character and nature of the offence rather than to the sentence to be imposed, and this characterization would exclude the use of victim impact statements. The designation refers to the offence, not the offender, the hearing does not necessarily form part of the sentencing hearing, and finally, if the crime is a first or second SVO, the designation may not have any effect on the type or length of the sentence imposed.

[17] In my view, however, the designation is more aptly characterized as a part of sentencing.

[18] First, the operation and outcome of the provisions implicate sentencing. The relevant provisions fall within "Part 4: Sentencing" of the YCJA. Procedurally, the designation is made post-conviction, and the Crown usually makes the request at the outset of the sentencing hearing.

[19] Second, courts for the most part seem to treat the designation as a part of sentencing. For example, the British Columbia Court of Appeal stated simply, "This was a sentencing proceeding" in R. v. P. (D.), 2006 BCCA 409, [2006] B.C.J. No. 2113, 212 C.C.C. (3d) 237 (C.A.), at para. 35. Other courts have deemed it analogous to an aggravating factor in sentencing: R. v. T.B.W., [2003] B.C.J. No. 1731, 2003 BCPC 256, at para. 17; R. v. K.W.W., [2004] B.C.J. No. 1997, 2004 BCPC 352, at para. 51. In the case at bar, the youth justice court judge stated: "This is part of the sentencing hearing but it is a unique aspect of it that is unique to the Youth Criminal Justice Act, that is to say, the hearing as to the designation of the offence, the type of offence and whether it meets the criteria for a serious violent offence."

[20] Finally, academic commentators have concluded that the designation falls within sentencing. Rebecca Jaremko Bromwich and Nicholas Bala have written, "Presumably the procedural and evidentiary rules that govern a sentencing hearing apply to this determination" and that "[i]t is submitted that the time for making such a determination is as a part of the sentencing stage for a particular offence": "Serious Violent Offences Under the Youth Criminal Justice Act" in The Youth Criminal Justice Act: A Practical Guide to the New Act. Proceedings of Continuing Legal Education Program Held January 18, 2003 (Toronto: Law Society of Upper Canada, 2003) at 5-6.

[21] I conclude, accordingly, that as an SVO designation is part of the sentencing process, the victim impact statements were admissible pursuant to the Criminal Code, s. 722(1) and the YCJA, s. 50(1). [page329]

The right to cross-examine

[22] I turn to the appellant's principal submission, namely the contention that he had the right to cross-examine the victims on their victim impact statements.

[23] Section 42(9) of the YCJA provides a summary procedural code for SVO designations and stipulates four elements:

-- the Crown must apply for such a designation

-- the parties must be given an opportunity to be heard

-- the youth justice court must hold a hearing

-- the youth justice court judge must make a judicial determination that the offence is an SVO.

[24] These requirements make it clear that an SVO designation is a discrete process that entails a judicial determination based on the evidence following a hearing at which the offender must be accorded procedural fairness.

[25] In R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 68 C.C.C. (2d) 477, at p. 514 C.C.C., Dickson J. held that "facts which justify the sanction are no less important than the facts which justify the conviction" and that "[c]rime and punishment are inextricably linked". This means that at the sentencing stage, "the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court."

[26] The Criminal Code, s. 724(3), codifies the Gardiner analysis and makes the following provision with respect to disputed facts on a sentencing hearing:

724(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (c) either party may cross-examine any witness called by the other party; (d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and [page330] (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[27] Although victim impact statements are not specifically mentioned, I can see no principled reason for excluding them from the reach of the general rule articulated by Dickson J. in Gardiner or these procedural protections listed in s. 724(3). I conclude, therefore, that victim impact statements are admissible, pursuant to s. 722(1), but that their use is subject to the general provisions of s. 724(3). The Crown bears the burden of proving any disputed fact and the offender has the right to cross-examine on the evidence the Crown leads.

[28] However, I do not read either Gardiner or s. 724(3) as meaning that an offender has an automatic or open-ended right to insist that victims attend for cross-examination any time the Crown wishes to use a victim impact statement in a sentencing hearing. Nor do I agree that s. 7 of the Charter mandates such a right. Conferring an automatic or unconstrained right to cross-examine would risk undermining the very purpose of victim impact statements, namely, to give victims a voice in the criminal justice process, to provide a way for victims to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. Conferring an open-ended right to cross-examine might discourage victims from offering such statements and re- victimize those who do. On the other hand, an absolute bar on cross-examination would unduly interfere with offenders' procedural rights.

[29] It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of the Charter, s. 42(9) of the YCJA and s. 724(3) of the Criminal Code is to impose a threshold "air of reality" burden on the offender to satisfy the sentencing judge that a fact or facts contained in the victim impact statement are disputable and that the request to cross-examine is not "specious or empty": see Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 198. If there is no factual dispute that meets this low threshold, the protections accorded by s. 724(3) are not triggered and I fail to see how there could be any violation of the appellant's s. 7 Charter rights.

[30] This analysis suggests that there is a discretion on the part of the sentencing judge to assess the offender's request in the light of the facts that have been proved and the evidence that has been led, whether at the trial or on the sentencing hearing, with a view to achieving a just reconciliation between respecting the procedural rights of the offender and respecting [page331] the legitimate role of the victim in the sentencing process. The sentencing judge's duty to ensure that the offender's procedural rights are protected entails a discretion to permit cross-examination when satisfied that there is an air of reality to the claim that the facts are in dispute and that the offender's request to cross-examine is not specious or empty.

[31] Although there is little jurisprudence and commentary discussing cross-examination on victim impact statements, the case law and commentary that does exist supports the conclusion that cross-examination may be allowed, but only at the judge's discretion.

[32] In R. v. Lafleche, 2001 ABCA 292, [2001] A.J. No. 1504, 293 A.R. 285 (C.A.), the Alberta Court of Appeal decided that the sentencing judge had erred in accepting the complainant's testimony at the sentencing hearing "under the aeguise' of a victim impact statement": para. 22. The court held, "we find that [the sentencing judge's] denial of a right to cross- examine the complainant on the new factual assertions on the guise of it simply being a victim impact statement was also an error at law and in principle": para. 23.

[33] In R. v. Shaban, [2004] A.J. No. 1310, 2004 ABQB 558, at para. 20, the Alberta Court of Queen's Bench supported the notion that a trial judge retains discretion to permit or deny cross-examination. The court suggested, "To permit cross- examination on a Victim Impact Statement without permission of the Court would fly in the face of s. 722 and would have a chilling effect on victims who are given the right to have their statements considered at the time of sentencing."

[34] Allan Manson, The Law of Sentencing, supra, supports a qualified right to cross-examine. Kent Roach [in] "The Role of Crime Victims Under the Youth Criminal Justice Act" (2003) 40 Alta. L. Rev. 965 at 987, states, "Victims may be subject to adversarial cross-examination on their statement."

[35] Finally, a Department of Justice survey of judges suggests that cross-examination on victim impact statements does occur, but that judges maintain control over it. Ten percent of the 110 judges surveyed had presided over a case in which a victim was cross-examined at sentencing on the victim impact statement. The courts exercised discretion: "Judges cited the inclusion of contradictory facts or facts not in evidence as some of the few instances where they would allow cross-examination on a victim impact statement": Policy Centre for Victim Issues/Department of Justice, Multi-Site Survey of Victims of Crime and Criminal Justice Professionals Across Canada: Summary of Judiciary Respondents (Ottawa: Department of Justice Research and Statistics Division, 2005) at 13. [page332]

Application to the Facts of this Case

[36] Unfortunately, neither Gardiner nor s. 724(3) appears to have been drawn to the attention of the youth justice court judge. He was asked to deal with the issue as a possible breach of s. 7 of the Charter. As I have already noted, he ruled that it was only "in the clearest of cases" that denying the right to cross-examine would constitute a Charter breach and that he was not satisfied that these were the "clearest of cases". While I do not wish to be taken as endorsing the view that a s. 7 Charter breach is only made out "in the clearest of cases", I do say that the youth justice court judge erred by applying a more stringent test than mandated by s. 724(3), namely, whether there was a "dispute with respect to any fact that is relevant to the determination of a sentence".

[37] However, the youth court judge also found that the likelihood of cross-examination changing or affecting the substance of the victim impact statements was "remote". I agree with that assessment. In my view, had the judge applied the "air of reality" test, in view of the evidence led at trial as to the manner in which these offences were committed, he necessarily would have come to the conclusion that the request to cross-examine the victims was specious or empty. The appellant pointed what appeared to be a handgun while masked in a dark location, an act obviously intended to instil intimidation and fear in the victim. To make an SVO designation, the judge need not find that the offender actually caused serious bodily harm: the designation can also be based on a finding that the offender attempted to cause serious bodily harm. In my view, any challenge to the allegations of trauma in the victim impact statements lacked an air of reality and there was no prospect that through cross-examination on the victim impact statements the appellant could have avoided a finding of harm or attempted harm sufficient to support an SVO finding.

[38] Accordingly, I would grant leave to appeal, but dismiss the appeal.

Appeal dismissed.