ONTARIO COURT OF JUSTICE

CITATION: R. v. I.F.L., 2022 ONCJ 310

DATE: 2022-07-06

NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

I.F.L.

RULING ON VICTIM IMPACT STATEMENT

NOTE: A s 486.31 publication ban applies prohibiting the publication of any information that could identify a witness in this case.

Heard and Delivered: July 6, 2022.

Mr. Greg Elder.......................................................................................... counsel for the Crown Mr. Ralph Steinberg.......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] The defendant objects to the admissibility of the Victim Impact Statement as it is not in the prescribed statutory form. In the alternative, if the statement is admissible, the defence submits that the first four paragraphs are not relevant and should be deleted.

[2] The Crown submits that even if the Victim Impact Statement is not in the proper format, that evidence is admissible under the provision in s 722(9) that permits the court to consider “any other evidence” concerning the victim. With respect to the first four paragraphs of the statement, the Crown notes that they are not inflammatory or critical of the accused. While not strictly tied to the offence, those paragraphs explain the victim’s life to that point and that’s relevant to the impact of the offence.

Victim Impact Statement Not in Statutory Form

[3] Victim input is an important and essential part of the sentencing process, particularly in cases of sexual assault.

[4] Section 718.2 (iii.1) requires a sentencing court to consider any evidence that the offence had a significant impact on the victim. Section 722 requires that the court consider any statement of a victim that is prepared in accordance with that section. Section 15 of the Canadian Victims Bill of Rights SC 2015 c13 s2, provides that victims of offences have the right to present a victim impact statement and to have that statement considered.

[5] I agree with the defence that s 722(4) requires that the victim impact statement “must” be in statutory form. Form 34.2 contains headings and points that guide the person preparing the statement towards evidence that would be relevant on sentence. Use of the form helps victims avoid inflammatory comments, sentiments of revenge, inappropriate references about the accused or recommendations as to sentence. Even where the statutory form is used, the court retains the ability to disregard any portions of the statement that are not relevant – s 722(8).

[6] In R v Jackson, 2002 CanLII 41524 (ON CA), [2002] OJ No 1097 (CA), the Court of Appeal reviewed a case where a police officer victim was permitted to make an oral victim impact statement to the trial court even though he did not file a statement under s 722. The court found that the trial judge erred in admitting the statement and that several aspects of the statement were inappropriate. The court rejected the Crown’s submission that the “any other evidence” provision in what was then s 722(3) and is now 722(9) provides an independent route to admissibility that circumvents the other requirements of that section.

[7] It is not plain that there is authority to receive a Victim Impact Statement that is not prepared in the prescribed statutory format unless that is done on the consent of both parties. It is not plain that the Victims Bill of Rights can or should provide an alternate route to admissibility. That provision appears simply to identify the right already present in the Criminal Code.

[8] In this case it is not necessary to come to a final conclusion as to admissibility as the Crown was prepared to re-submit the same statement in Form 34.2 today. The defence agreed there was no point to that exercise and on that basis the court receives that document in its current format as Exhibit #1 on sentence.

Content of the Victim Impact Statement

[9] The disputed paragraphs 1-4 of the victim’s statement briefly outline her life from the moment she arrived in Canada, to her marriage to the accused and the breakup of that marriage. The defence submits that even though the information is brief and there is nothing inflammatory regarding the accused, the information is irrelevant. The Crown submits that the victim provided the information she felt was necessary for the court to understand her personal circumstances, her level of trust in the accused and the impact of this offence.

[10] I agree with the defence that the remaining paragraphs 5-10 in the statement are directly relevant to the criteria set out in s 722. The brief opening paragraphs provide context to the victim’s circumstances and are submitted as having some relevance to the impact of the offence which then is described in detail in the further paragraphs.

[11] I find the disputed paragraphs to be admissible for the limited purpose identified by the Crown, but pursuant to s 722(8) I will disregard any portion in those paragraphs or any other part of the statement that is not relevant.

Delivered: July 6, 2022.

Justice Joseph F. Kenkel