Pre-Sentence Reports: Difference between revisions

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Generally, a pre-sentence report should be considered when sentencing a first-time offender.<ref>
Generally, a pre-sentence report should be considered when sentencing a first-time offender.<ref>
''R v Bates'' (1977), 32 CCC (2d) 493, [http://canlii.ca/t/hv0zh 1977 CanLII 2054] (ON CA){{perONCA|Brooke JA}}{{atp|494}}
{{CanLIIRP|Bates|hv0zh|1977 CanLII 2054 (ON CA)| (1977), 32 CCC (2d) 493}}{{perONCA|Brooke JA}}{{atp|494}}
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Revision as of 11:39, 14 February 2021

General Principles

A Pre-sentence Report is a report that is generated by a probation officer on order of the court after interviewing the offender and collateral sources that is for the benefit of the judge in determining sentence.

The enabling provision that allows the ordering of a report is section 721, which states:

Report by probation officer

721 (1) Subject to regulations made under subsection (2) [provincial regulations re form and content of reports], where an accused, other than an organization, pleads guilty to or is found 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 writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under section 730 [order of discharge].

Provincial regulations

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

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;
(b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament;
(c) the history of any alternative measures used to deal with the offender, and the offender’s response to those measures; and
(d) any matter required, by any regulation made under subsection (2) [provincial regulations re form and content of reports], to be included in the report.
Idem

(4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2) [provincial regulations re form and content of reports].

Copy of report

(5) The clerk of the court shall provide a copy of the report, as soon as practicable after filing, to the offender or counsel for the offender, as directed by the court, and to the prosecutor.
R.S., 1985, c. C-46, s. 721; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995, c. 22, s. 6; 1999, c. 25, s. 16(Preamble); 2002, c. 1, s. 183; 2003, c. 21, s. 15.
[annotation(s) added]

– CCC

Note up: 721(1), (2), (3), (4), and (5)

Under section 724(3)(b), where there is a dispute on factual claims within the report, the party relying upon it must prove the fact.

The judge may use the information in the report to assess the character of the offender in order to relate the offence to the offender.[1]

In only extreme cases of "outrageous" conduct, a failure on the part of probation services to discharge its duty to prepare a report in a timely manner can result in a reduction of sentence.[2]

  1. ↑ R v Brown, (1985), 31 Man.R. (2d) 268, 1985 CanLII 3479 (MB CA), per Monnin CJ, at 274
  2. ↑ R v KK, [2012] OJ No 1592 (S.C.), 2012 ONSC 2238 (CanLII), per Hill J, at paras 70 to 72

"Gladue Reports" and Cultural Impact Assessments

See also: Aboriginal Sentencing Principles and Factors

Gladue Reports are also a form of pre-sentence report that provides information on the offender's background and childhood. It is not an expert report.[1]

Cultural Impact Assessments

The use of a "cultural impact assessment" as a variation on the concept of a "Gladue Report" but for those of other over-represented groups have some consideration in law.[2]

  1. ↑ R v Lawson, 2012 BCCA 508 (CanLII), per MacKenzie JA, at para 22
  2. ↑ e.g. R v Gabriel, 2017 NSSC 90 (CanLII), per Campbell J

Purpose

The purpose of a pre-sentence report is to provide 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 motivations.”[1]

The report is used "to help the judge arrive at a sentence that both reflects the relevant circumstances of the offender and accords with the principles and objectives of sentencing".[2]

The function is not to provide evidence of an offence, give details of a criminal record, or tell the court what sentence to give.[3]

The report should be an "accurate, independent and balanced assessment of an offender, his background and his prospects for the future."[4]

  1. ↑ R v Riley, 1996 CanLII 5615 (NS CA), per Pugsley JA
  2. ↑ R v McPherson, 2013 ONSC 1635 (CanLII), per Baltman J , at para 12
  3. ↑ R v Bartkow (1978), 24 N.S.R. (2d) 518(*no CanLII links) , at para 10
  4. ↑ R v Junkert, 2010 ONCA 549 (CanLII), per O'Connor ACJ

Procedure to Order a Report

Where a judge lacks full information on the background of the offender, particularly where the jeopardy of the offender is significant a judge should order a pre-sentence report.[1]

Generally, a pre-sentence report should be considered when sentencing a first-time offender.[2]

Refusal to Order a PSR

However, given the general limitations on resources, the judge may want to decline to order a report where there is no specific purpose in ordering one.[3]

A judge may refuse to order a pre-sentence report, even for a first-time offender, where sufficient information regarding the accused background, potential for rehabilitation and other mitigating factors.[4]

  1. ↑ R v Pritchett; R v Graham (1969), 9 C.R.N.S. 262 (Ont. C.A.)(*no CanLII links)
    R v Samaras (1971), 16 C.R.N.S. 1 (Ont. C.A.)(*no CanLII links)
  2. ↑ R v Bates, 1977 CanLII 2054 (ON CA), (1977), 32 CCC (2d) 493, per Brooke JA, at p. 494
  3. ↑ R v Shapley, [1998] S.J. No. 790 (Q.B.), 1998 CanLII 13895 (SK QB), per Baynton J, at para 19
  4. ↑ R v Kandola, 2014 BCCA 443 (CanLII), per Garson JA, at paras 19 to 20

Valid Contents of Report

The PSR should be confined to "the background, character, and circumstances of the person convicted".[1]

It is not to be used "as a forum for the author's personal views of the offender's role in the offences." [2]

The probation officer have an obligation to "be thorough and fair and should canvass the relevant information before commenting on a particular issue."[3]

The officer may speak with the arresting officer or other officers who may have useful information about the offence and offender. [4] But it should not contain the investigator's "impression of the facts relating to the offence charged", regardless of whether it is aggravating or mitigating.[5]

The PSR should not contain "any facts or commentary which relate to the offence or the offender's role in it".[6]

Obligation to Object

If a PSR contains impermissible or improper subject matters and "an offender does not object" then "the judge [is] entitled to consider all of the contents of the pre-sentence report".[7]

  1. ↑ Regina v Rudyk (1975), 1 C.R. (3d) S 26 (NSCA)(*no CanLII links)
  2. ↑ R v McPherson, 2013 ONSC 1635 (CanLII), per Baltman J, at para 12
  3. ↑ R v Junkert, 2010 ONCA 549 (CanLII), per O'Connor ACJ
  4. ↑ Junkert, ibid.
  5. ↑ Rudyk, supra
  6. ↑ R v Green, 2006 ONCJ 364 (CanLII), per Trotter J, at para 13
  7. ↑ R v Webster, 2016 BCCA 218 (CanLII), per Frankel JA
    R v Phinn, 2015 NSCA 27 (CanLII), per Farrar JA (2:1), at paras 53 to 54

Youth Pre-Sentence Reports

Offender Psychiatric Assessment Reports

In circumstance, such as in sexual offence sentencing, a psychiatric assessment, usually relating to risk, may be ordered by the court. There is suggestion that ss. 721(4) and 723(3) provides authority for the court make an order directing that the offender undergo an assessment.[1]

Sections 721(4) suggests that the psychiatric report be included as part of the undertaking of writing the PSR.

721
[omitted (1), (2) and (3)]

Idem

(4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2) [provincial regulations re form and content of reports].
[omitted (5)]
R.S., 1985, c. C-46, s. 721; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995, c. 22, s. 6; 1999, c. 25, s. 16(Preamble); 2002, c. 1, s. 183; 2003, c. 21, s. 15.
[annotation(s) added]

– CCC

Note up: 721(4)

Section 723(3) by contrast suggests an order independent of a PSR to have an assessment complete.

723
[omitted (1) and (2)]

Production of evidence

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.
[omitted (4) and (5)]
R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.

– CCC

Note up: 723(3)

It is suggested that the court only has jurisdiction to order an assessment with the consent of the offender.[2]

A judge cannot use s. 723(3) to order a new assessment after defence and Crown both obtain contradictory LTO/DO assessments made under s. 752.1.[3]

Ordering assessments under s. 672.12 for the purpose of sentencing is not considered appropriate.[4]

  1. ↑ R v Gettliffe-Grant (2006), 217 CCC (3d) 474, 2006 BCSC 1943 (CanLII), per Koenigsberg J
    R v Blackwell (2007), 227 CCC (3d) 275, 2007 BCSC 1486 (CanLII), per D Smith J
    R v Gibbons, 2009 NUCJ 30 (CanLII), per Johnson J
  2. ↑ Gettliffe-Grant, supra
    cf. Blackwell, supra
    cf. R v Challes, 2008 CanLII 13360 (ON SC), per MacLeod J
  3. ↑ R v Bouvier, 2011 SKCA 87 (CanLII), per Caldwell JA
  4. ↑ R v Simanek, 2001 CanLII 3892 (ON CA), , [2001] OJ No 4187 (C.A.), per curiam

See Also

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