Criminal Code of Canada - section 722(3) - Evidence concerning victim admissible

section 722(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the court to consider any other evidence regarding the victim of an offence when determining the sentence for the offender or whether they should be discharged under section 730.

SECTION WORDING

722(3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

EXPLANATION

Section 722(3) of the Criminal Code of Canada is an important provision that gives courts the discretion to consider any evidence related to the victim of the crime when determining the sentence to be imposed on the offender. This provision is particularly relevant in cases where a statement from the victim may not have been prepared or filed in accordance with subsection (2). The purpose of this provision is to ensure that the sentencing process takes into account the impact of the offence on the victim, regardless of whether or not a victim impact statement has been submitted. The court may consider a wide range of evidence related to the victim, such as medical reports, witness statements, or testimony from family members. By allowing the court to consider any evidence concerning the victim, Section 722(3) ensures that the sentencing process is as just and fair as possible. It recognizes that victims of crime often suffer in ways that cannot be captured in a statement, and that their experiences and perspectives are important to consider. Overall, Section 722(3) reflects Canada's commitment to ensuring that the voices of victims are heard and that the criminal justice system takes into account the harm caused to victims in determining the appropriate sentence for offenders.

COMMENTARY

Section 722(3) of the Criminal Code of Canada is a crucial provision that allows judges to consider any other evidence concerning the victim of an offense for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730. The provision grants the court the discretion to impose a sentence that considers the impact of the crime on the victim. As such, it ensures that victims are not overlooked during the sentencing process where justice is being served. One of the critical elements of the Canadian Criminal Justice system is the principle of just deserts. This principle ensures that the offender receives a sentence proportionate to the gravity of the crime committed. However, to impose a sentence that reflects the gravity of the offense, the circumstances surrounding the offense must be taken into account. In this regard, section 722(3) plays a vital role in ensuring that the judge has the necessary information concerning the impact of the crime on the victim. Judges often rely on victim impact statements to get a sense of the damages caused by the crime, such as physical injuries, emotional trauma, and financial loss. This statement, together with other evidence, allows the court to get a complete picture of the effects of the crime on the victim. Moreover, the provision creates room for the court to factor in the victim's views on the sentence to be imposed. After all, the victim is the one who has suffered directly from the crime, and their opinion on the matter should be considered. This implies that the court ought to listen to the victim's story before determining the sentence. Additionally, it allows for the victim to participate in the legal process and be relied upon as a source of evidence to provide information concerning the impact of the offender's actions on their life. Another critical feature of 722(3) is that it is not limited to the contents of the written victim impact statement required under section 722(2). The provision allows the court to consider any other evidence beyond the statement, including oral testimony from the victim or their family members concerning the effects of the offense on them. This approach ensures that victims are not confined to providing information solely within the legal parameters of a statement, rather it gives them the flexibility to provide more detailed or relevant information that could influence the outcome of the sentencing. In conclusion, section 722(3) of the Criminal Code of Canada plays a significant role in ensuring that the sentencing process reflects the gravity of the crime and the impact it has on the victim. The provision recognizes the importance of the victim's input and allows them to participate in the legal process. As such, it ensures that justice is done not only for the offender, but also for the victim who is often relegated to the background.

STRATEGY

Section 722(3) of the Criminal Code of Canada provides a tool to the courts to consider any evidence concerning the victim of an offence for the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged under section 730. This section opens up the possibility for a broader range of evidence to be presented during a sentencing hearing, beyond what may have been submitted in the victim impact statement provided in accordance with subsection (2). Strategic considerations when dealing with section 722(3) can be divided into two categories: the prosecutor's perspective and the defense lawyer's perspective. From the prosecutor's perspective, the strategic consideration is to present evidence of the victim's harm caused by the offence, and to use that evidence to argue for a longer sentence or a more severe penalty. The prosecutor will likely ask the victim to testify during the sentencing hearing and present evidence of the physical, emotional, and financial harm caused by the offence. The prosecutor may also present evidence from medical professionals, police officers, or other individuals involved in the investigation or treatment of the victim. The goal of the prosecution is to provide a comprehensive picture of the victim's experience to the judge and to seek a sentence that adequately reflects the harm caused by the offence. From the defense lawyer's perspective, the strategic consideration is to limit the impact of the victim's evidence on the sentence or to provide evidence of mitigating circumstances that should result in a more lenient sentence. The defense lawyer may challenge the admissibility or reliability of the victim's evidence and may cross-examine the victim to undermine their credibility. The defense lawyer may also present evidence of the offender's personal history, character, or mental health to argue for leniency. The goal of the defense is to minimize the sentence or to secure a discharge under section 730. Several strategies could be employed by both the prosecution and defense in dealing with section 722(3). These strategies include: - Preparation: Both the prosecution and defense should carefully review the victim impact statement and any other evidence related to the victim to identify potential areas of contention or support. The prosecution should prepare the victim for testimony and gather additional evidence if necessary, while the defense should gather evidence of mitigating circumstances and prepare arguments to challenge the victim's evidence. - Credibility assessment: The judge will assess the credibility of the victim and any other witnesses who testify during the sentencing hearing. Both the prosecution and defense should be aware of this and develop strategies that focus on enhancing or undermining witness credibility. - Negotiation: It may be possible for the prosecution and defense to negotiate a plea agreement or sentence recommendation that takes into account the victim's evidence. This approach could save time and resources and result in a more satisfactory outcome for both parties. - Sentencing submissions: Both the prosecution and defense will have an opportunity to make submissions to the judge regarding the appropriate sentence. These submissions should carefully address the victim's evidence and its impact on the sentence. In conclusion, section 722(3) of the Criminal Code of Canada can have a significant impact on the outcome of a sentencing hearing. Prosecutors and defense lawyers should carefully prepare for the hearing and develop strategies that focus on presenting or challenging evidence related to the victim. The ultimate goal should be to secure a sentence that is fair and just, taking into account all relevant factors.