R. c. D'Amico, 2014 QCCQ 21007
[1] The Crown is asking for a pre-sentence report and a sexual behaviour assessment pursuant to sections 721 and 723 (3) of the Criminal Code.
[2] The Defence objects to such request.
[3] The issue here is for the Tribunal to decide if the Court has jurisdiction to order non-consensual pre-sentence and sexual behaviour reports for sentencing purposes.
[4] There is no obligation for the Tribunal to ask for a pre-sentence report to be done, as it is part of its discretional power[1].
[…] “The determination of a fit sentence is […], an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case”. […]
[6] In the scope of that goal, the judge, following the general principles at 718 to 718.2, has a large discretion[3]:
[43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.
[8] In Challes, justice Macleod, from Ontario Superior Court of Justice has asserted that the specific assessment order must be relevant to the issue of determining an appropriate sentence[5].
[9] Justice Richard Marleau, in J.L.[6] made an exhaustive review of the law and the jurisprudence on a non-consensual request for pre-sentence and psychiatric reports.
[10] Referring to Blackwell[7], justice Marleau concludes that the Tribunal has jurisdiction to order such reports, despite the absence of consent of the accused.
[11] The Tribunal shares the same opinion.
[12] In the scope of section 718 to 718.2 and of section 721(4) and 723(3) of the Criminal Code, the Tribunal is of the opinion that such reports are pertinent to the issue at stake, that issue being to individualize the sentence for the accused in harmony with the general principles of sentencing.
[13] The Tribunal believes that there is a logical nexus and relevance between the accusations for which the accused has been found guilty and the Crown’s request.
[14] The accused must know that he can refuse to participate to the evaluations.
[15] If so, the accused must know that qualified persons for the preparation and the execution of the Tribunal’s order will be entitled to gather information on him and bring them to the Tribunal even if he will not have given his point of view.
[16] The Tribunal orders that a pre-sentence report and a sexual behaviour assessment report be done in regards to the accused.
[17] The Tribunal also orders that besides from such reports, other information in regards to 721(4) and 723(3) of the Criminal Code be gathered by qualified persons in the scope of this decision.
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