R. v. Duyck, 2019 BCPC 330

Citation: R. v. Duyck 2019 BCPC 330 Date: 20191219 File No: 254976-7-KBC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. DAVID MARCEL DUYCK RULING ON APPLICATION FOR A PRE-SENTENCE REPORT WITH A PSYCHOLOGICAL COMPONENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: D. Assonitis Counsel for the Defendant: L. Footman Place of Hearing: Vancouver , B.C. Dates of Hearing: October 28, November 7, 2019 Date of Ruling: December 19, 2019 INTRODUCTION

[1] Mr. Duyck pled guilty to breaching his probation. Before commencing the sentencing hearing the Crown requested that thecourt order the preparation of a Pre-Sentence Report (“PSR”) with a psychological component. Counsel for Mr. Duyck opposed theCrown’s request arguing that a PSR was not necessary and if the court determined that a PSR was required, counsel argued that the courtlacked the jurisdiction to order a psychological component. [2] The task for the court is to determine if a PSR is required and if so, whether the court has the jurisdiction to order apsychological component. BACKGROUND [3] Mr.

Duyck is 36 years old. His criminal record commences in 2013 with an assault conviction. Thereafter, he amassedconvictions for assault, assault with a weapon, breach of probation and breaching a recognizance. In fact, his record contains threeconvictions for assault, two convictions for assault with a weapon, six convictions for breaching a recognizance and eight convictionsfor breaching his probation. [4] With respect to Mr. Duyck’s convictions, all but one of the assault convictions involved K.E., who was Mr. Duyck’s intimatepartner. The Crown described some of the assaults and these include, Mr.

Duyck placing his foot on K.E.’s throat, throwing cleaningfluid on K.E., spitting in K.E.’s face and hitting K.E. with objects. These assaults were committed while Mr. Duyck was bound by eithera recognizance or a probation order prohibiting him from having contact with K.E. [5] Mr. Duyck’s instant matters involve five counts of breaching his probation. Two counts involve failing to report to a probationofficer and failing to reside where directed. The three other counts involve Mr. Duyck having contact with K.E. and attending at herresidence contrary to his probation order. [6] Mr.

Duyck’s criminal history discloses escalating violence where he has displayed a shocking level of degrading behaviour.The record also shows that efforts to rehabilitate and deter Mr. Duyck have failed. Finally, and sadly, all efforts to protect K.E. haveseemingly failed. IS A PSR REQUIRED? Position of the parties The Crown [7] The Crown argues that the objectives of sentencing cannot be achieved without greater insight into Mr. Duyck’s backgroundand psychological framework. The Crown points out all interventions have failed to rehabilitate and deter Mr.

Duyck, and in the resulthis violence is escalating and K.E. remains at risk. As such, the Crown asserts that greater insight into Mr. Duyck’s character will bestequip the court in fulfilling its obligation of crafting a sentence that rehabilitates and protects the community. The Crown relies on thefollowing authorities: R. v. Blackwell, 2007 BCSC 1486, R. v. Challes, (ONSC), R. v. Goldberg, 2011 BCSC 1926,R. v. MB., 2014 ABQB 683, R. v. B.P.H. , 2015 BCPC 271. Counsel for Mr. Duyck [8] Counsel for Mr.

Duyck argues that she is prepared to provide the court with the information necessary to impose a fit andappropriate sentence. Counsel points out she can provide information related to Mr. Duyck’s background, education, substance use andfuture plans. As such, counsel argues that a PSR is unnecessary and that it would delay the sentencing proceedings. In support, counselrelies on: R. v. Shapely, (SK KB), [1998] S.J. No. 790 (Q.B.), and R. v. Kandola and Johal, 2012 BCSC 1012. Analysis [9]

Section 721 of the Criminal Code grants a court the authority to order a PSR. The purpose of a PSR is to provide a sentencingjudge with a picture of the offender as a person in society. This would include the offender’s background, family, education,employment, physical and mental health and social activities: R. v. Riley (1996), 1996 NSCA 112 , 107 C.C.C. (3d) 278(NSCA). [10] The information gathered in a PSR must be an accurate, independent and it must present a balanced assessment of the offender,as well as his background and his prospects for the future: R. v. Junkert, 2010 ONCA 549 at para. 59.

The information in a PSR is tohelp the court impose a sentence that considers the circumstances of the offender and therefore complies with the principles andobjectives of sentencing: R. v. McPherson, 2013 ONSC 1635 at para. 12. [11] The decision to order a PSR is in the discretion of the sentencing judge.

Factors that can be considered in deciding to order aPSR include, the need for further information, any delay that maybe created in its preparation and any associated expense be it for thejustice system or the accused: Shapely at para. 19. [12] In considering the matter, I instruct myself on the purpose and principles of sentencing and the attendant obligations of asentencing judge. I also acknowledge that understanding an offender’s background, family, employment, remorse and insight contributesto the imposition of a fit and appropriate sentence.

Specifically, the information assists in a PSR in identifying an offender’s level ofremorse, previous responses to corrections, possible rehabilitative avenues, and the offender’s level of insight. [13] In the instant case, I accept that counsel can provide some information regarding Mr. Duyck, however, I observe that theinformation provided at his other sentencing hearings appears deficient in that the resultant sentences have failed to rehabilitate or deterMr. Duyck. This failure raises alarms about the independence and quality of the information that has been previously offered.

In makingthese observations I do not fault counsel because the information forwarded to the court would likely have originated with Mr. Duyck.

[14] Based on Mr. Duyck’s lack of response to previous interventions, I am of a view that this court requires accurate, independentinformation beyond the information that Mr. Duyck provides to his counsel. As such, I am satisfied that a PSR is required to assist thecourt in imposing a sentence that reflects Mr. Duyck’s circumstances. [15] Finally, I have reviewed the cases relied on by counsel for Mr.

Duyck and I find his circumstances to be distinguishable.Specifically, unlike the instant matter, the judges in Shapely, and Kandola and Johal determined that a PSR was not required because thecourt already had the required information. In contrast, and for the reasons above, I am of the view that further independent informationis required for sentencing purposes. IS THERE JURISDICTION TO ORDER A PSYCHOLOGICAL COMPONENT? Position of the parties The Crown [16] The Crown argues that sections 721 (4) and 723 (3) of the Criminal Code permits the ordering of a PSR with a psychologicalcomponent.

In support, the Crown relies on: R. v. Blackwell, 2007 BCSC 1486, R. v. Challes, (ONSC), R. v.Goldberg, 2011 BCSC 1926, R. v. MB., 2014 ABQB 683, R. v. B.P.H. , 2015 BCPC 271. Counsel for Mr. Duyck [17] Counsel for Mr. Duyck argues the court does not have the jurisdiction to order a psychological component to a PSR. Counselpoints out, the Criminal Code does not expressly authorize the ordering of a psychological report for sentencing purposes. Counselargues the absence of express wording was intentional and a tacit recognition that the preparation of a psychological report invades anindividual’s privacy.

Counsel relies on: R. v. Gettliffe-Grant, 2006 BCSC 1943 and R. v. McCrea, 2007 BCPC 258 , 2007BCPC 0258. Analysis [18] Section 721(1) of the Criminal Code provides authority for the ordering of a PSR. Section 721(1) reads: [19] 721

(1) Subject to regulations made under subsection (2), where an accused, other than a corporation, pleads guilty to or isfound guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writingrelating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should bedischarged pursuant to

section 730. [20] Subsection 4 directs that the report must also contain information on any other matter required by the court. Subsection 4 reads:

(4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor andthe offender, to be included in the report, subject to any contrary regulation made under subsection (2). [21] Section 723 (3) of the Criminal Code authorizes a court to require the production of further information that would assist indetermining an appropriate sentence. The

section reads:

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidencethat would assist it in determining the appropriate sentence. [22] A review of the decisions, suggests a conflict of judicial thought on the issue of whether, sections 721 (4) and 723 (3) of theCriminal Code permits a sentencing judge to use their discretion and order a psychological component to a PSR in circumstances wherethe offender opposes such an order: Blackwell, Challes, Goldberg, MB, and B.P.H.

In contrast, Gettliffe-Grant, and McCrea suggests asentencing judge lacks the jurisdiction to order a psychological component to a PSR when the offender opposes such an order. [23] In considering the authorities, I find the reasoning in Blackwell to be compelling. In Blackwell, Justice Smith declined to followGettliffe-Grant.

In this regard, Justice Smith observed that the cases relied on by Justice Koenigsberg involved non-consensualpsychiatric assessments pursuant to s. 672.11 of the Code and not whether non-consensual assessments may be ordered for sentencingpurposes pursuant to ss. 721 (4) and 723 (3) of the Code. In this regard Justice Smith observed at paragraph 20: [20] In her analysis, Koenigsberg J. relied on several Ontario decisions that were decided subsequent to the enactment of ss. 721(4) and 723(3) and after the Saba case. See R. v. Lenart (1998), (ON CA), 39 O.R. (3d) 55 (C.A.), 158 D.L.R. (4th) 508 (Ont.C.A.); R. v.

Simanek, [2001] O.J. No. 4187 (C.A.) (QL), application for leave to appeal to the S.C.C. dismissed, June 20, 2002; and R. v. Connors (2001), (ON CJ), 48 C.R. (5th) 301, [2001] O.J. NO. 4286 (On.Ct.Jus.) (QL).

While at first blushthose decisions appear to suggest there is no jurisdiction under the Code to order non-consensual assessments of offenders for sentencingpurposes, a careful review of their reasons show their ratios were limited to the issue of whether assessments for sentencing purposescould be ordered pursuant to the s. 672.11 fitness or NCR provisions of the Code or the provisions of the provincial mental healthlegislation.

The decisions concluded that assessment remands for sentencing purposes could be ordered in the latter instance, under theOntario mental health legislation, but not under the Code provisions. None of the decisions, however, expressly addressed the scope ofss. 721(4) and 723(3) in light of the 1996 sentencing reforms. [24] Justice Smith then reviewed authorities from Alberta and concluded that court had the jurisdiction to order non-consensualassessments.

At paragraph 39, Justice Smith stated: [39] In the result, I find the court has jurisdiction to order a psychiatric assessment for sentencing purposes pursuant to ss. 721(4) and723(3) of the Code in order to fulfill its obligation under ss. 718, 718.1 and 718.2 of the Code. I am also satisfied that in thecircumstances of this case, such an assessment is warranted and would assist the Court in crafting an appropriate sentence.

[25] Justice Gaul in Goldberg followed Justice Smith’s reasoning and at a paras. 29 – 31 observed: [29] In Blackwell, D. Smith J, as she then was, engaged in a detailed review and analysis of the conflicting decisions relating to theordering of non-consensual psychiatric assessments for the purposes of sentencing.

In concluding that a trial judge has the jurisdiction toorder such an assessment, Madam Justice Smith observed at paragraph 37: Unlike a fitness or NCRMD remand, a psychiatric assessment for the purpose of sentencing does not typically require an offender toattend a psychiatric institution and remain there for a fixed period of time while the assessment is completed. Instead, an offender isinvited to participate in the assessment process, as he would be at the behest of a probation officer.

If he declines to participate, thequalified professional conducting the assessment may still examine collateral material in order to produce a report for the court. Thepurpose of the assessment is not to conscript evidence from Mr. Blackwell but to assist the Court in determining an appropriate sentence.Mr. Blackwell’s participation in such an assessment could assist the Court in better understanding his conduct in these offences.

In theabsence of an assessment, the Court may only have the aggravating circumstances of the offen[der] to consider. [30] I find the reasoning of Madam Justice Smith in Blackwell to be persuasive. I also note that it has been followed in other Canadianjurisdictions (See: R. v. Challes, (ON SC), 77 WCB (2d) 204, R. v. Gibbons, 2009 NUCJ 30, and R. v. J.L., 2009QCCQ 14013). [31] My authority to make the order sought is, however, not unlimited.

The law is quite clear that before making an order I must besatisfied there is a logical nexus or relevance between the information being sought and the matters under consideration in sentencing.With regard to this point, Madam Justice Smith explained at paragraph 32 in Blackwell: However, a review of the circumstances in Hunter suggests that evidence required to meet the “logical nexus or relevance” test is notnecessarily limited to “bizarre” or extreme conduct by an offender during his or her trial.

The comments in Hunter were made inresponse to the trial judge’s request for certain, very peripheral information to be included in the PSR [pre-sentence report].

Theappellate court allowed most of the trial judge’s requests but excluded those requests that were found to be unnecessary or extraneous.Accepting the basis on which the court in Hunter ordered a psychiatric assessment for sentencing purposes, the evidence required tosupport a “logical nexus or relevance” for such an assessment need not, in my view, rise to the level of Saba-like behaviour at trial.Concerns about the random, unprovoked, inherently dangerous and violent nature of an offender’s actions could, in my view, also meetthe criterion for logical nexus or relevance. [26] As for McCrea, Judge Brecknell at para. 26 expressed concern that he may have exceeded his jurisdiction by ordering apsychiatric assessment.

Judge Brecknell’s concern was based on his reading of Gettliffe-Grant and expressed shortly before Blackwellwas decided. As such, his comments were made without the benefit of Justice Smith’s comprehensive analysis. Accordingly, and withrespect, I do not find his concern to be persuasive. [27] In

summary, I conclude that a court has the jurisdiction to order a psychological component to a PSR, however, such an ordercan only be made if there is a logical nexus or relevance between the information being sought and the matters under consideration insentencing: Blackwell. SHOULD MR. DUYCK’S PSR INCLUDE PSYCHOLOGICAL COMPONENT [28] I conclude that Mr. Duyck’s PSR should contain a psychological component. Mr.

Duyck’s continued lack of rehabilitation anddeterrence, combined with his increasing level of violence and his inability to comply with court orders satisfies me that such an order isnecessary so that the court can best fulfil its obligation under ss. 718, 718.1 and 71.8.2 of the Code in that all of the information gainedwill assist in the crafting of a sentence that achieves the purpose and principles of sentencing. CONCLUSIONS [29] I conclude that a PSR is required.

I also conclude that pursuant to ss. 721(4) and 723(3) of the Code that the court has thejurisdiction to order a psychological component to the PSR. Finally, I conclude that there is logical nexus between Mr. Duyck’spsychological makeup and the sentence to be imposed. As such, the PSR will have a psychological component. ____________________________ The Honourable Judge R. P. Harris Provincial Court of British Columbia