R. v. V.W., 2008 ONCA 55
[25] In R. v. Gardiner, 1982 CanLII 30 (SCC), [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 (CanLII), [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.
