R. v. B.P.H. Date:, 2015 BCPC 271

Citation: R. v. B.P.H. Date: 20150720 2015 BCPC 0271 File No: 72119-2 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.P.H. ORAL RULING ON APPLICATION FOR PRE-SENTENCE REPORT OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION s. 486.4(2) C.C.C. Counsel for the Crown: J. Carpenter (as agent for B. McCormick)

Counsel for the Defendant: C.L. Sutton Place of Hearing: Nanaimo, B.C. Date of Hearing: July 20, 2015 Date of Judgment: July 20, 2015 [1] THE COURT: This is in the matter concerning Regina v. B.P.H.. B.P.H. was charged on Information 72119-2. It is a single-count information that provides as follows: B.P.H., on or about the 19th day of October, 2010, at or near Nanaimo, in the Province of British Columbia, did sexually assault J.M.,contrary to

Section 217 of the Criminal Code. [2] This matter came on before me for trial. I convicted B.P.H. of the offence outlined in Count 1. [see R. v. B.P.H. 2012 B.C.J.3074; 2012 BCPC 565] Before me is an application by Crown for a pre-sentence report containing a forensic component. Crown isseeking that report pursuant to s. 721 of the Criminal Code. [3] The circumstances surrounding the conviction are that B.P.H., who is aged 46, sexually assaulted the complainant, who wasaged 16 years at the time.

The circumstances were that the sexual assault occurred after B.P.H. provided liquor to the complainant, J.M.,who is a friend of a family member of B.P.H.. [4] The concern that Crown raised is that the circumstances indicate a sexual assault occurred with intoxication being acontributing factor and, specifically, that it was intoxication of a vulnerable complainant, being the 16-year-old J.M. [5] Crown's position is that a pre-sentence report would provide an independent review of B.P.H.. The report would provide anindication of B.P.H.’s attitudes towards the offence and also to his victim.

It is Crown's submission that the pre-sentence report wouldprovide a vehicle by which there could be recommendations as to possible counselling requirements for B.P.H. as part of his sentence. The pre-sentence report would also identify areas of concern and, specifically, areas of concern with regards to possible recidivism onthe part of B.P.H.. [6] A pre-sentence report prepared by an independent party, in the submission of Crown, is appropriate in these circumstances toassist in the sentencing of B.P.H.. The forensic psychological component provides the additional benefit of a risk assessment for B.P.H..

In particular, it would provide some indication of his insight into the offences for which he has been convicted. It also provides a meansof permitting consideration by both the court as well as probation officers of the type of treatment options that may be available toB.P.H.. [7] The position advanced on behalf of B.P.H. is that this is not a matter where a pre-sentence report will be of particular use to thecourt.

The offence for which B.P.H. has been convicted is characterized as a straightforward sexual assault case which is marked bytouching over clothing; that accordingly should be viewed as being in the low range with offences of this nature. [8] Defence indicates that a psychological assessment would be of limited value due to the fact that notwithstanding his conviction,B.P.H. testified that he did not commit the offence for which he has been convicted, and he stands by his position that he was not and isnot guilty of the offence. [9] Accordingly, as I understand the defence’s submission, he will have no level of insight into the offence because he does notview himself as having committed the offence. [10] Similarly, I understand that B.P.H.'s position is that he would not be open to any treatment because, again, he is of the view thathe is not guilty of the offence for which he has been convicted. [11] It is part of the defence submission that information which will be effectively disclosed by the pre-sentence report will bepresented to the court as part of their submissions on sentencing.

Therefore those submissions can fulfil the same function that a pre-sentence report may provide. [12] I specifically raised with counsel for B.P.H. my concern that even if B.P.H. does not accept that he committed a sexual assaultin this instance, the circumstances in which he placed himself in with respect to his 16-year-old relative and with the 16-year-oldcomplainant can be described, at best, as untoward. I queried as to whether or not it would be useful for the court to have someindependent review of B.P.H. insight into those aspects of the offence, in other words, the surrounding circumstances.

Again, theresponse, as I understand it, is that B.P.H. could convey this information through counsel's submissions. [13] Defence has pointed me to a decision in the case of R. v. Blackwell, 2007 BCSC 1486 , [2007] B.C.J. No. 2168. Thisis a decision of Justice D.M. Smith rendered in 2007. At that time, Justice Smith was dealing with a youth offender and there was someresistance that there be a court-ordered psychological or psychiatric assessment conducted by a qualified professional.

In that case, thelearned justice came to the conclusion which is set out in paragraph 6 of her decision, which reads as follows: I agree with Mr. Blackwell’s counsel’s latter comment, as does the Crown: Mr. Blackwell cannot be compelled to participate in a court-ordered psychological or psychiatric assessment conducted by a qualified professional. However, even without Mr. Blackwell'sparticipation, such an assessment, albeit more limited, might provide some assistance to the Court in determining a fit sentence, subject tothe issue of the court's jurisdiction to make such an order.

[ 14 ] I note from the

summary of that decision which appears in Martin's Annual Criminal Code, 2012, Judicial Edition , that case is cited for the proposition that subsection (4) of s. 721 authorizes the court on its own motion to order a non-consensual psychiatric assessment for sentencing purposes. My review of the decision indicates that it is open to the court to certainly order the report.

But as to whether or not B.P.H. participates fully in the matter, it is certainly open to him to refuse to cooperate. [ 15 ] That, of course, in itself may provide the author of the report with some concerns which may be expressed to the court and which may be matters of relevance to the sentencing. [ 16 ] In summarizing the decision which I have referred to in the Blackwell case, the headnote provides, I think, a succinct statement with respect to the matter, and it reads as follows: A pre-sentence report would assist the court in determining an appropriate sentence for the offender in light of his age, and lack of a prior criminal record -- The aggravating factors surrounding the offences suggested that the offender had possible psychological or psychiatric issues that needed further investigation -- The court thus had jurisdiction to order a psychiatric assessment for sentencing purposes in order to fulfill the principles of sentencing -- The assessment would not conscript evidence from the offender, as he would be invited to participate at the behest of a probation officer with a qualified professional in attendance. [ 17 ] In this matter, B.P.H. does not have a prior criminal record.

He denies that alcohol is an issue, and of course, he denies that he has offended. That, in itself, together with the circumstances which I characterize as being, at best, untoward, give me some concern that B.P.H. may have several issues of denial which need to be drawn to his attention and perhaps explored by a probation officer and by qualified individuals who may be able to deal with the forensic component of the report. [ 18 ] I would, in these circumstances, be very reluctant to proceed to sentencing without having a pre-sentence report in front of me.

I am of the view that it will be of tremendous assistance both to Crown and to the defence in terms of their submissions as to an appropriate disposition of this matter, and it will be of assistance to the court in coming to a conclusion concerning a fit sentence with respect to this matter. [ 19 ] Accordingly, I will direct that there be a pre-sentence report ordered in connection with this matter. [ 20 ] MR. CARPENTER: Do you intend that there be a psychological/psychiatric component? [ 21 ] THE COURT: There will be a forensic psychological component to the report. (REASONS CONCLUDED)