R. v. D.C.R. Date:, 2017 BCPC 202

Citation: R. v. D.C.R. Date: 20170616 2017 BCPC 202 File No: 44260-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.C.R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS PUBLICATION BAN (pursuant to s. 486.4(2) - Complainant or Witness for listed sexual offences and 486.4(3) - Complainant or witness under 18 Counsel for the Crown: R. Smith Counsel for the Defendant: J. Pakenham Place of Hearing: Prince George , B.C.

Date of Hearing: June 7, 2017 Date of Judgment: June 16, 2017 [1] On March 3, 2017, following a trial before me, I convicted D.C.R. of one count of sexual assaulting K.L.G. on January 26,2016, in Prince George, B.C. As D.C.R. was a first time offender, I ordered a Pre-sentence Report, which Probation Officer Cindy Rossprepared and filed on April 7, 2017. On Page 5 of her report, PO Ross stated that it may be beneficial to have the Forensic PsychiatricServices conduct a psychological/ psychiatric assessment for risk of sexual offending to get a more complete picture of D.C.R.’s mentalhealth and risk.

This recommendation is based on D.C.R.’s disclosure to PO Ross that he has struggled with depression in the past andwondered if the term “sexual addiction” may apply to him. [2] Counsel appeared before me for sentencing on April 12, 2017, at which time I adjourned the sentencing hearing to facilitate therecommended psychiatric assessment. Dr. David J. Wiebe, a Forensic Psychiatric Services psychologist, prepared and delivered to theCourt an 11-page psychological assessment report dated May 31, 2017. [3] At the commencement of the sentencing hearing on June 7, 2017, Mr.

Pakenham, counsel for D.C.R., asked the Court to rejectPO Ross’s April 6, 2017 Pre-Sentence Report and Dr. Wiebe’s May 31, 2017 Psychiatric Assessment. Mr. Pakenham submits thesereports are flawed beyond reclamation and the Court ought to strike them entirely and direct the preparation of new ones by new authors. The Crown concedes there are inappropriate comments in both reports, but submits they can be salvaged by redaction. [4] The Defence provided oral submissions and relied on the following authorities: R. v. Purchase, (NSSC), R.v. Cleary, 2015 NSSC 333 and R. v. Chaaban, 2011 ABPC 310 .

The Crown also provided oral submissions andrelied on R. v. Aleksev, 2016 ONSC 6080 ; R. v. Blackwell 2007 BCSC 1486 ; R. v. Carrera-Vega, 2015 ONSC 4958; R. v. Goldberg, 2011 BCSC 1926 ; R. v. Green, 2006 ONCJ 364 ; R. v. W.J.M., 2012 ABPC 301 ; R.v. Morelli (1977), (ON CJ), 37 C.C.C. (2d) 392 (ONCJ); R. v. Rudyk (1975), 1 C.R. (3d) S-36 (NSSC); R. v.Woodcock, 2010 ONSC 3752 . Issues [5] The issues before the court in this application are as follows: 1. Should the Court reject PO Ross’s April 6, 2017 Pre-Sentence Report entirely? 2.

If the Court does not reject PO Ross’s April 6, 2017 Pre-Sentence Report in its entirety, what is the appropriate remedy? 3. Should the Court reject Dr. Wiebe’s May 31, 2017 Psychiatric Assessment entirely? 4. If the Court does not reject Dr. Wiebe’s May 31, 2017 Psychiatric Assessment entirely, what is the appropriate remedy? Background Facts [6] The facts relevant to D.C.R.’s conviction are set out in my Reasons for Judgment in R. v. D.C.R., 2017 BCPC 80 . Insummary, D.C.R. and K.L.G. were co-workers at the (omitted for publishing) Retirement Home Restaurant in Prince George B.C.

Ifound that in the late afternoon of January 26, 2016, D.C.R. came into the bathroom at work where K.L.G. had gone to change into herserver’s uniform. He pulled down her leggings and underwear, grabbed and kissed her bare buttocks. D.C.R. claimed that through herwords and actions, K.L.G. invited him into the bathroom for the purposes of engaging in sexual activity. I found that K.L.G. did notconsent to this sexual activity and I rejected his defence of honest but mistaken belief in her consent. I convicted D.C.R. of one count ofsexual assault contrary to s. 271(

a) of the Criminal Code. [7] D.C.R. is now before me for sentencing. There are a number of highly relevant factors in play, including: (

a) at the time of theoffence D.C.R. was 35 years old with no criminal record; and (

b) the victim was a 16 year old co-worker and high school student. Pre-Sentence Reports [8] Both PO Ross’s April 6, 2014 Pre-Sentence Report and Dr. Wiebe’s May 31, 2017 Psychological Assessment are species ofpresentence reports governed by s. 721 of the Criminal Code: R. v. Blackwell 2007 BCSC 1486 and R. v.

Goldberg, 2011 BCSC 1926. [9] Subsections 721(1) and (2) of the Criminal Code empowers the sentencing judge to order a probation officer to prepare and filea report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether theaccused should be discharged under s. 730.

These sections read as follows: Report by probation officer 721(1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guiltyof an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to theaccused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged undersection 730. Provincial regulations

(2) The lieutenant governor in council of a province may make regulations respecting the types of offences for which a court mayrequire a report, and respecting the content and form of the report.

… [10] In British Columbia, s.4(1)(

c) the Correction Act, SBC 2004, c 46, requires probation officers to prepare reports for the court asthe court may order. [11] Justice Smith in Blackwell (at para. 39) concluded that in order to fulfill its obligations under ss. 718, 718.1 and 718.2 of theCriminal Code, the Court has jurisdiction under ss. 721(4) and 723(3) to order a psychiatric assessment report for sentencing purposes. [12] Sections 721(4) suggests the psychiatric assessment reports be included as part of the presentence report: 721(4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutorand the offender, to be included in the report, subject to any contrary regulation made under subsection (2). [13] Section 723(3) suggests an order independent of a presentence report to have an assessment complete: 723(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production ofevidence that would assist it in determining the appropriate sentence.

Purpose of Pre-Sentence Reports [14] In R. v. Nasogaluak, 2010 SCC 6 , the Supreme Court of Canada re-asserted that: The determination of a fit sentence is . . . an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case”. […] [15] The purpose of a presentence report is to assist the sentencing judge in imposing a fit and just sentence which is individualizedto the circumstances of a particular offender. In Blackwell, Madam Justice D.

Smith discussed the purpose of presentence reports in lightof the court’s obligation to engage in an individualized sentencing process. She writes at para. 35: 35. The exercise of the court’s discretion in determining an appropriate sentence requires the court to balance all of the principles ofsentencing as they apply to a specific offender. Those include denunciation, specific and general deterrence, separation from societywhere necessary, rehabilitation and providing reparations for and acknowledging the harm done by the offender to victims and thecommunity.

With a youthful first offender, the principle of rehabilitation is significant. Additional principles of sentence further requirethe court to increase or decrease a sentence to account for any relevant aggravating or mitigating circumstances relating to the offence orthe offender, including evidence that the offences were motivated by mental disability. The overarching principle is that a sentence mustbe proportionate to the gravity of the offence and the degree of responsibility of the offender. [16] In R. v. Angelillo, 2006 2 S.C.R. 55, Charron J., for the majority, stated at paragraph 22: 22.

The principles of sentencing are now codified in ss.718 to 718.2. . . These provisions confirm that sentencing is an individualizedprocess in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of theoffender. . . Thus, the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances,character and reputation of the accused is before the court.

The court must therefore consider facts extrinsic to the offence, and the proofof those facts often requires the admission of additional evidence. [Citations Omitted.] Also see Green, pp 4-5 and Carrera-Vega, at para. 20 Contents of the Presentence Report [17] Subsection 721(3) of the Criminal Code provides direction on the content of PSR. It states: Content of report

(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters: (

a) the offender’s age, maturity, character, behaviour, attitude and willingness to make amends; . . . [18] The Courts have also provided the following direction as to what can be and cannot be included in presentence reports: a. presentence reports are intended to be an “accurate, independent and balanced assessment of an offender, his background andhis prospects for the future”: R. v. Junkert, 2010 ONCA 549 , para. 59, cited in Aleksev, at para. 24 and Carrera-Vega at para.20; b. authors of presentence reports “must be guided by principles of fairness and endeavor to be as thorough as possible.

This can beaccomplished by canvassing all relevant information . . .” Carrera-Vega, para. 21 citing Junkert, at para. 60. c. presentence reports “should address the offender’s background and the author’s views about the offender’s future”: Carrera-Vega, para. 20; d. authors of presentencing reports ought to confine themselves to portraying the “background, character and circumstances of theperson convicted”: Rudyk, p. S-31, cited in Purchase, Green, p. 5, Chaaban, p. 9. para. 36; e. the function of a presentence report is to “supply a picture of the accused as a person in society - his background, family,

education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivation”:Chief Justice MacKeigan in Bartkow, as cited in Purchase and Chaaban, at p. 12, para. 51; f. a presentence report can contain opinions provided they are “relevant and helpful, which are the threshold requirements for anyopinion evidence in court proceedings”: Chaaban, at p. 7, para. 29, citing R. v. Graat, (SCC), [1982] 2 S.C.R. 819; [19] The Courts have also provided direction on what sort of information ought not to be included in presentence reports.

Reportsare said to have “crossed the line” where they include: g. the investigator’s impressions of the facts relating to the offence charged, whatever the source, be it the police, [offender], orother witnesses, whether favourable or unfavourable: Rudyk, p. S-31; Bartkow, cited in Purchase and in Green, p. 5 and Chaaban, p. 9,para. 36; h. facts relating to the offence for which the offender is being sentenced: Rudyk, p.

S-31 Chaaban, at paras. 35 - 37; Green, p. 4;Purchase, citing Bartkow; i. unproven allegations of criminal conduct by the offender not subject to the proceedings: Chaaban, at para. 53, Green;Purchase, citing R. v. Sparks (1985) (NS CA), 66 N.S.R. (2d) 253; W.J.M., p. 5, para.11; j. details of the offender’s criminal record: Purchase citing Bartkow; k. the author’s views of what sentence should be imposed: Purchase citing Bartkow; l. many opinions or conclusory statements: Chaaban, p. 7, para. 30; and m. information from the Victim Impact Statement: Aleksev, p. 6, para. 25.

Disputed Facts [20] Subsection 724(3) of the Criminal Code provides that where there is a dispute with respect to any fact that is relevant to thedetermination of a sentence, the Court is required to request that evidence be adduced to prove the existence of the fact unless the Courtis satisfied that sufficient evidence was adduced at the trial. Subsection 724(3)(

b) specifies that the party wishing to rely on a relevantfact, including a fact contained in a pre-sentence report, has the burden of proving it. Either party is entitled to cross-examine anywitness called by the other party and if the Court is satisfied on a balance of probabilities of the existence of a disputed fact, may rely onit in determining the sentence. [21] The Crown acknowledges it bears the burden of proving the accuracy of contested facts contained in a presentence report: R. v.Morelli (1977), (ON CJ), 37 C.C.C. (2d) 392 and R. v. Revet, 2010 SKCA 71.

In this case, the Crown has indicated ithas no intention of calling evidence on contentious facts contained in PO Ross’s April 6, 2017 Presentence Report or Dr. Wiebe’s May31, 2017 Psychological Assessment. This means the Court cannot rely on any fact stated in those report to which the Defence objectsunless it was proven at trial.

Remedying a flawed presentence report [22] When a presentence report contains inappropriate content, the sentencing judge has the following options: a. reject the report completely and order another one prepared: Aleksev, para. 27; Purchase, page 4; b. disregard the report’s inappropriate parts: Aleksev, para. 27; c. ignore alleged factual errors; d. consensually correct or modify factual errors; e. allow the party wishing to rely on a disputed fact to prove it; and/or f. give the impugned information or comments little or no weight. [23] In Purchase, Justice Saunders of the Nova Scotia Supreme Court ordered a new report prepared. [24] In Aleksev, the sentencing judge stated (at para. 6) the presentence report before him was “so deficient and rife withinappropriate content that I considered ordering a new one.” Ultimately, upon hearing submissions of counsel, Justice Trotter agreed tosalvage what he could by expunging the inappropriate content.

This was also the remedy adopted in Green where the Probation Officerappended a faxed letter from an investigating police officer containing inflammatory comments about the offender. In R. v. Woodcock,2010 ONSC 3752, (at paras. 38 and 39) Justice Pardu dealt with the inappropriate personal and polemical views of the author of apresentence report by simply disregarding them. Similarly, in R. v. W.J.M., 2012 ABPC 301, Judge M.J. Durant dealt with informationof uncharged criminal conduct contained in a presentence report by disregarding it entirely.

In Carrera-Vega, Justice Fairburn stated hewould not take into account any comments by a family doctor about the offender’s potential for re-offending or the officer-in-charge’ssuspicious about uncharged offences. [25] The Courts recognize that presentence reports are not used only by judges in sentencing hearings; they are also used bycorrectional, parole and probation authorities. For this reason, the sentencing judge can order the original presentence report sealed sothe correctional system can only access the redacted version.

Issue #1: Should the Court reject PO Ross’s April 6, 2017 Pre-Sentence Report entirely?

[ 26 ] On April 6, 2017, Probation Officer Cindy Ross completed the presentence report I ordered on March 3, 2017. In preparing this report, PO Ross interviewed D.C.R., his spouse, J.H., his step-father, D.M. and the victim, K.L.G. PO Ross provided information on the following: a. D.C.R.’s family relationships, living arrangements and associates; b. D.C.R.’s education, employment and finances; c. D.C.R.’s behavior and emotional status; d. D.C.R.’s substance use; e. Victim information (K.L.G.); f. Court history and interventions; g. D.C.R.’s attitude and receptiveness to previous and proposed interventions; h. D.C.R.’s attitude and understanding regarding the offence; and i. A

summary and proposed interventions. [ 27 ] Defence Counsel’s principal objections to this presentence report are as follows: a. PO Ross includes in the report victim information which does not comply with s. 722 of the Criminal Code ; b. PO Ross misstated D.C.R.’s comments about how he felt about the offence. Under the heading “Attitude and Understanding regarding offence”, PO Ross states: D.C.R. takes full responsibility for the offence; however, he also suggested he only acted out in a sexual manner because he believed the signals the victim gave him encouraged him.

He was also found guilty as opposed to pleading guilty and for the same reason as mentioned above; he states he would not have acted if she had not encouraged him. His thought process appears to suggest he believes the victim is at least partially to blame for his behavior. c. PO Ross, Under the heading “Summary and Proposed Interventions”, states: Although D.C.R. has taken responsibility for his action, he does appear to fault, in part, the victim for his offence. He stated on several occasions he would not have behaved in a sexual manner with her unless he felt she invited it.

His comments may be considered an attempt to diminish his responsibility as an adult not to engage a sixteen year old girl in sexual activity of any kind. . . [ 28 ] D.C.R. asserts that what he said to PO Ross was: . . . at the time he believed that there was consent to the sexual contact, but at the present time he realized he didn’t have a sufficient basis to come to that conclusion and was wrong in doing so and he fully accepts responsibility for his actions. [ 29 ] PO Ross’ misunderstanding or misstatement of what D.C.R. said about the offence has coloured her assessment of D.C.R. in a seriously prejudicial manner. [ 30 ] Mr.

Pakenham asserts the report is biased and beyond redemption. [ 31 ] The Crown asserts the impugned content can be redacted from the report. Victim Impact information [ 32 ] PO Ross’s presentence report, like many in this jurisdiction, includes the victim’s view of the impact of the offence. Section 722(2) of the Criminal Code sets out the procedural requirements for victim impact statements. They must be (

a) prepared in writing in the form and in accordance with the procedures established by a provincial program; and (

b) filed with the court. Once a statement has been entered into court, it becomes public record. The Criminal Code provides that the clerk of the court shall provide a copy of a statement as soon as practicable after a finding of guilt, to the offender, or counsel, and the prosecutor: s. s. 722.2 . [ 33 ] In Aleksev , one of the serious problems identified by the Judge was the inclusion of comments made by the deceased’s family. Justice Trotter stated at para. 25, in part: 25. . . . Similarly, a PSR is not a forum for the expression of views by those impacted by the offence.

There is a separate procedure for obtaining input from victims in s. 722 of the Criminal Code . This procedure was used in this case, yielding very helpful information from those affected by the offence. This information should not have been repeated in the PSR. All told, the PSR is unbalanced, unfair and unhelpful. [ 34 ] I do not understand that the victim in this case had filed a s. 722 Victim Impact Statement and therefore there is no risk of potential prejudice from repeating in the presentence report the victim’s views previously expressed in the Victim Impact Statement: see Revet , at para. 62 .

Nevertheless, the victim’s view of the impact of the offence or the offender is not contemplated in s. 721(3) . Accused Views of the Offence [ 35 ] There is nothing in Section 721(3) which invites the probation officer to interview the offender about the offence for which he

was convicted; however, presentence reports often contain the offender’s views on the offence. [36] In Chaaban, Judge Anderson, considers questions and comments by the probation officer about the offence as a “dangerousarea.” At para. 35, he cites a passage from R. v. Donovan, 2004 NBCA 55 , [2004] N.B.J. No. 273, which includes thefollowing: 31 The pursuit of pre-sentence-report-information about an offence has been declared off-limits by trial and appeal courts in Canadafor over a quarter of a century. See, R. v.

Martell (1984), (PE SCAD), 48 Nfld. & P.E.I.R. 79 (P.E.I.C.A.) whereMacDonald J. agreed with the Nova Scotia Court of Appeal in R. v. Craig (1975), (NS CA), 11 N.S.R. (2d) 695 that itis unwise to rely on statements in a report that deal with the details of the commission of an offence. At para. 12, MacDonald J. alsoagreed with the decision of the Nova Scotia Court of Appeal in R. v.

Bartkow (1978), (NS CA), 24 N.S.R. (2d) 518per MacKeigan C.J.N.S. at para. 10, that a pre-sentence report should be confined to portraying the background, family, education,employment record, physical and mental health, associates, social activities, potential and motivation of the person. 32 Under the headings of Pre-Sentence Reports, Facts Relating To The Offence, the author, Clayton C.

Ruby, Sentencing, 5th ed.(Toronto and Vancouver: Butterworths, 1999) states at p. 97: The facts relating to the offence for which the accused is to be sentenced, and especially allegations with respect to wrongdoing that isnot the subject of the proceedings, ought not to be included in any pre-sentence report.

The exclusion of allegations with respect to the offence includes self-serving utterances by the accused. [37] Subsection 721(3)(a), however, requires the Probation Officer to include in a presentencing report an assessment of theoffenders “attitude and willingness to make amends.” This involves to some degree an evaluation of whether the offender expressesremorse. (See for example, Junkert at para. 55.) Ruling on Issue #1 [38] Based on Counsel’s submissions and the case law referred to above, I do not find PO Ross’s April 6, 2017 Presentence Reportso rife with errors or tainted by bias that it ought to be struck and a new one ordered.

In my view the concerns raised by counsel forD.C.R. can be addressed through: (

a) cross-examination of PO Ross; (

b) one or more of the remedies set out in paragraph 22 above. Issue #2: If the Court does not reject PO Ross’s April 6, 2017 Pre-Sentence Report entirely, what is the appropriate remedy? Ruling on Issue #2 [39] I am of the view PO Ross’s April 6, 2017 Pre-Sentence Report ought to be admitted with clearly inappropriate content redacted.

Any information that is troubling, but less than “clearly inappropriate” can be ignored in whole or in part or simply given less weight. [40] Victim Information: Given K.L.G. had not provided a formal Victim Impact Statement as set out in s. 722 of the CriminalCode, I find the victim information included in the report generally helpful and admissible under s. 721(4).

I am mindful K.L.G.’s beliefshe is suffering post-traumatic stress disorder as a result of the incident is simply her subjective impression. [41] Attitude and understanding regarding the offence: The first statement under this caption (reproduced above in paragraph27(b)) certainly reflects D.C.R.’s evidence at trial. (This statement is also repeated under the heading “Summary and ProposedInterventions” reproduced in paragraph 27(

c) above.) I am reluctant to simply modify PO Ross’s April 6, 2017 Presentence Report tosuggests views or impressions she may not adopt. If counsel agree, we can endorse the report to indicate D.C.R.’s assertion he told PORoss the following: At the time he believed that there was consent to the sexual contact, but at the present time he realized he didn’t have a sufficient basis tocome to that conclusion and was wrong in doing so and he fully accepts responsibility for his actions. [42] Presumption of Innocence.

I agree PO Ross’s statement that D.C.R. was “found guilty as opposed to pleading guilty” mightsuggest to some readers there was something aggravating about D.C.R. exercising his right to silence and a trial. Although an early pleacan be mitigating, denial and trial are never aggravating. It is unclear to me whether PO Ross was simply pointing out the fact D.C.R.was not convicted after a guilty plea or was suggesting something more.

For this reason I would redact the following sentence from thePO Ross’s April 6, 2017 Presentence Report: He was also found guilty as opposed to pleading guilty and for the same reason as mentioned above; he states he would not have acted ifshe had not encouraged him. Issue #3: Should the Court reject Dr. Wiebe’s May 31, 2017 Psychiatric Assessment entirely? [43] As a result of PO Ross’ recommendation in her April 6, 2017 Presentence Report, I requested the Prince George PsychiatricServices Clinic prepare a psychiatric assessment of D.C.R., including a risk assessment for sexual violence.

Position of the Defence [44] Mr. Pakenham says Dr. David Wiebe’s Psychological Assessment is even more problematic than PO Ross’s April 6, 2017 Pre-Sentence Report. [45] Dr. Wiebe completed his report on May 31, 2017. In addition to a number of Court and Crown documents, Dr. Wiebeinterviewed D.C.R., J.H. and Probation Officer Cindy Ross. He also reviewed PO Ross’s April 6, 2017 Pre-Sentence Report. [46] Mr. Pakenham finds many aspects of the Dr. Wiebe’s May 31, 2017 Psychiatric Assessment problematic. For example, on Page

7, Dr. Wiebe states: When anticipating future risk scenarios, it is important to note that it is not likely that D.C.R. is at risk for more severe or general violence.

If he were to engage in future sexual offending, the most likely scenario would be one with the same type of offence and circumstances, i.e. an opportunistic “groping type” offence where D.C.R. attempts to engage in sexual activity with a female known to him by assuming consent without actually asking for permission. ( Given his prolific sexual history of multiple partners, as well as the presence of antisocial traits, it is more likely than not that this sort of scenario has occurred before, but the woman or women involved failed to report D.C.R. to the Police. ) [Emphasis added.] [ 47 ] Mr.

Pakenham argues the first part of this passage is speculative and inappropriate. The statement in brackets is particularly troubling. It is pure conjecture, not brought forward by collateral sources and cannot be given any weight. It exemplifies a bias to such a high degree the report cannot be salvaged through redaction. The fact there is no support for this supposition differentiates this case from situations where the author provides information about incidents unrelated for the offences which caused the commission of the report in the first place.

The only conclusion to be drawn from the impugned comments is Dr. Wiebe seeks to have D.C.R. suffer a more serious sentence than the court might otherwise impose. [ 48 ] Mr. Pakenham points to a further example of bias on page 7: . . . The fact is there is a whole other side to D.C.R. that most people do not know and have not observed - and which he certainly did not reveal much in the current assessment - an individual that is selfish, unfaithful, vulgar, antisocial, and obsessed with sexual activity. [ 49 ] Mr. Pakenham queries the basis Dr.

Wiebe’s conclusory comments if D.C.R. did not reveal this “whole other side” of himself in the assessment. He argues Dr. Wiebe’s remarks are irrelevant, inflammatory and prejudicial, having no bearing on risk factors he was asked to assess. [ 50 ] Mr. Pakenham says another example of irrelevant and prejudicial information is found on Page 3 of the Psychiatric Assessment where Dr. Wiebe reiterates J.H.’s allegations D.C.R. had hit and punched her approximately five times in past few years. Mr.

Pakenham argues these unproven allegations of criminal wrongdoing are entirely irrelevant and prejudicial without any nexus to the current offence and they should not appear in the report. [ 51 ] Mr. Pakenham also points out that Probation Officer is named as a source of Dr. Wiebe’s information. This suggests the bias permeates both PO Ross’s April 6, 2017 Presentence Report and Dr. Wiebe’s May 31, 2017 Psychological Assessment and both ought to be rejected and redone by new authors. Position of the Crown [ 52 ] Mr.

Smith argues there is no need to requisition new reports as the current ones have no impact on the Crown’s sentencing position. The Crown is seeking a jail sentence based primarily on s. 718.01 of the Criminal Code which directs the court to give primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. The Crown has never required a presentence report or a psychological assessment. [ 53 ] Mr. Smith points out that the Crown has proceeded summarily in this matter, which means the maximum jail sentence the court could impose, is 18 months.

D.C.R. has no criminal record so there is no jail sentence the court could impose which would avert risk for any appreciable length of time. There is nothing in the PO Ross’ April 6, 2017 Presentence Report or Dr. Wiebe’s May 31, 2017 Psychological Assessment which impacts the length of jail sentence the Crown seeks. At most, their reports may influence the length and conditions of probation. [ 54 ] The Crown agrees the Court cannot consider aggravating a number of the issues the defence raises with respect to PO Ross’ April 6, 2017 Presentence Report or Dr. Wiebe’s May 31, 2017 Psychological Assessment.

Specifically, a judge cannot increase D.C.R.’s sentence because he maintained his innocence or demonstrated a lack of remorse or insight. In fact, lack of insight is to be expected where someone, such as D.C.R., is at the beginning of a rehabilitative process. [ 55 ] The Crown also agrees the Court cannot pay the slightest bit of attention to Dr. Wiebe’s speculative comments that D.C.R. committed previous sexual offences which were unreported and uncharged. Nor can the Court treat as aggravating behaviours which may be antisocial, but not illegal.

This information cannot be used to increase D.C.R.’s jail sentence, only the length of his probation. Ruling on Issue #3 [ 56 ] Dr. Wiebe’s Psychological Assessment includes some irrelevant and prejudicial comments which must be excised. More problematic is the degree to which these irrelevant and prejudicial considerations impacted Dr. Wiebe’s assessment that D.C.R. presents a moderate risk for reoffending. In reaching this conclusion, Dr. Wiebe took into consideration a number of factors which include allegations of domestic violence and conflict.

I note, however that D.C.R. himself described his relationship with J.H. as one involving significant conflict and reciprocal physical violence. [ 57 ] Dr. Wiebe provided opinion evidence on D.C.R.’s risk for sexual reoffending. He did so at the request of this Court and with D.C.R.’s informed consent and participation. Forensic practitioners who assess a sexual offender’s risk of recidivism employ various risk assessment instruments and diagnostic tools in reaching their clinical judgment. They employ a methodology accepted in their field of expertise. [ 58 ] Dr.

Wiebe’s opinion that D.C.R. is a moderate risk for future sexual offending is based on “all available information” which included structured professional guidelines for assessing risk for sexual violence. Dr. Wiebe’s report indicates that in assessing D.C.R.’s risk of recidivism, he considered at a number of risk factors. These risk factors included D.C.R.’s criminal and psychosocial history, which in turn involved an inquiry into D.C.R.’s childhood and early development, intimate relationships, mental health and substance abuse. Dr.

Wiebe made and recorded his own clinical observations from his interview with D.C.R. As part of his assessment, Dr. Wiebe

engaged psychological testing which took into considerations D.C.R.’s circumstances prior to the offence, his attitude towards the offence, his current circumstances and function and his risk for sexual violence. Dr. Wiebe also included in his report J.H.’s observations as she was his wife of many years and has known D.C.R. since high school. [ 59 ] Dr. Wiebe utilized a structured professional guideline for assessing D.C.R.’s risk of future sexual offending.

These are set out on page 7 of his report and consider the following factors: a. minimization or denial of sexual offending (including blaming the victim); b. problems with self-awareness; c. problems with stress or coping; d. adverse childhood experiences (domestic violence and conflict); e. history of mental health issues; and f. significant intimate relationship problems (including multiple infidelities and several instances of partner violence). [ 60 ] I know of no authority which prohibits forensic psychologists or psychiatrists from relying on information they deem trustworthy in assessing risk.

Specifically, I am not aware of any legal restriction against these professionals relying on information received from the accused and his spouse of domestic violence and conflict simply because these incidents have not resulted in a criminal conviction. Moreover, I do not see the utility to the court of a psychiatric risk assessment based only on such information with which the offender may provide or agree. Such a restriction would likely produce a highly skewed result upon which the Court could not rely. [ 61 ] In my view Dr.

Wiebe’s May 31, 2017 Psychological Assessment is helpful tool to assist the Court in crafting a fit sentence for D.C.R. which takes into consideration his rehabilitative needs. In particular, it will likely assist in the Court in determining the appropriate conditions of D.C.R.’s supervision in the community. Issue #4: If the Court does not reject Dr. Wiebe’s May 31, 2017 Psychiatric Assessment entirely, what is the appropriate remedy? Ruling on Issue #4 [ 62 ] I am cognizant of the fact that Dr. Wiebe’s May 31, 2017 Psychological Assessment may be used by correctional services.

Accordingly, I would redact in part Dr. Wiebe’s following comment on page 7 of his report: . . . The fact is there is a whole other side to D.C.R. that most people do not know and have not observed - and which he certainly did not reveal much in the current assessment - an individual that is selfish, unfaithful, vulgar, antisocial, and obsessed with sexual activity. to read: . . . The fact is there is a whole other side to D.C.R. that most people do not know and have not observed - and which he certainly did not reveal much in the current assessment . . .

It is difficult to get a clear and exact picture of his risk for future sexual violence. [ 63 ] I would redact entirely the passage on page 7 of the report which reads: (Given his prolific sexual history of multiple partners, as well as the presence of antisocial traits, it is more likely than not that this sort of scenario has occurred before, but the woman or women involved failed to report D.C.R. to the Police.) [ 64 ] At the sentencing hearing, I will hear submissions as to what weight ought to be given to Dr. Wiebe’s assessment that D.C.R. is a moderate risk to reoffend.

Additional Ruling [ 65 ] With respect to both PO Ross’ April 6, 2017 Presentence Report and Dr. Wiebe’s May 31, 2017 Psychological Assessment, I invite further submissions of Counsel as to any further redactions or modifications they believe appropriate. [ 66 ] If the parties cannot agree, the defence can apply to have PO Ross and Dr. Wiebe attend the sentencing hearing for cross- examination on their respective reports. The Honourable Judge J. T. Doulis Provincial Court of British Columbia