An Ontario judge is urging the provincial Ministry of Community Safety and Correctional Services to address “useless” presentence reports coming from Quebec that “flouted” Criminal Code requirements after concerns arose in at least two cases.
“While it may be that the probation services unit within Ontario regularly delegates preparation of a [presentence report] for an out-of-province resident to the provincial government of the offender’s residency, the Ontario government remains obliged to discharge its obligations pursuant to s. 721 of the Criminal Code,” wrote Superior Court Justice Deena Baltman in R. v. McPherson on March 19.
“It is therefore imperative that Ontario insures that these deficiencies are addressed forthwith, in order to prevent recurrences in any future cases.”
The comments followed Baltman’s strong criticism of the quality of a presentence report prepared by a Quebec probation officer. “This is not the first case where Quebec authorities have flouted, if not outright ignored, the sentencing requirements set out in the Criminal Code,” wrote Baltman.
Kelvin McPherson resides in Montreal but he was facing prostitution-related charges in Brampton, Ont. After his conviction in November 2012, Baltman ordered a presentencing report from Quebec by January 2013 in English. “If the report arrives in French, it will be of no assistance and will cause further delay,” she noted.
The report arrived late due to a backlog noted by a probation officer in Montreal and was in French. After receiving the translated version, the judge said the content of the report was “useless” and “made disparaging remarks about the offender’s behaviour” instead of simply outlining McPherson’s “age, maturity, character, behaviour, attitude, and willingness to make amends” as required by the Criminal Code.
“Essentially, she maligned him for maintaining his innocence, a factor which should be irrelevant given his plea of ‘not guilty,’” wrote Baltman.
McPherson’s defense counsel Hilary Dudding notes “the judge was unhappy” with the report because “it came late and came in the wrong language” and “90 per cent focused on how bad she [the probation officer] thought the crimes were, none of which is relevant to the judge.”
McPherson had pleaded not guilty and the officer who wrote the report emphasized that the offender wasn’t willing to admit his guilt, says Dudding. “The area that they are supposed to stay away from is the offence and their role in the offence and whether they’re sorry for it. That is up to the courts. He testified he didn’t do those things. Everyone should be trained and know not to go into that area because it is irrelevant.”
Baltman noted the goal of the report “is not to serve as a forum for the author’s personal views on the offender’s role in the offences.” According to Dudding, the purpose of presentence report is for the offender “to have someone sit down and figure out what their life circumstances are.”
The report “was a court order in a federal proceeding, not a request subject to the convenience or efficiencies of a particular provincial probation service,” wrote Baltman.
Dudding redacted the report to include only the relevant information before the hearing could proceed. “I basically took a copy of the report and edited out the improper parts,” she says.
“The judge agreed to accept the edited version. We could’ve had another one done, but it had already taken three months since the conviction.”
Dudding says the writer of the report was a “misguided probation officer” who “didn’t seem objective to me.”
“After all that, instead of receiving something useful, the parties and the court were delivered a diatribe by a highly partisan and poorly trained probation officer,” wrote Baltman. “This is not only a waste of taxpayer’s monies but a disservice to the criminal justice system.”
McPherson received a three-year jail term and Dudding says that if there was any further delay past February 2013, she would have considered asking for a remedy in the form of a reduced sentence.
The case follows another matter last year, R. v. Knockwood, in which Ontario Superior Court Justice Casey Hill found “outrageous” misconduct by Quebec authorities that “required redress in the form of a reduced sentence” for an aboriginal woman convicted of smuggling heroine.
In that case, Hill reduced the agreed-upon sentence because of delays in receiving a Gladue report from Quebec, a province where, court heard, “they do not complete Gladue reports.” In response, counsel agreed to a regular presentence report with Gladue content. But probation staff from Quebec asked to push back the due date for the report given “limited officers at that location that would be able to conduct the interview in English.”
Hill rejected the request. “The court’s decision of August 10 was a court order in a federal proceeding, not a request subject to the idiosyncratic response of a particular provincial probation service,” he wrote in August 2011.
“If necessary, the court shall take whatever further coercive and/or punitive measures necessary to enforce its order.”
The report arrived on time but was in French. “On November 28, counsel informed the court that they were in agreement that the report was entirely inadequate and non-compliant with the agreement and direction as to the inclusion of Gladue content — a conclusion with which the court was in complete agreement,” wrote Hill. “Ms. McPherson [Knockwood’s lawyer] reported that the offender was devastated by the skimpy and uninformative report.”
In fact, counsel for the Ontario Ministry of Community Safety and Correctional Services told the court the report had “no expected Gladue content but also fell short of the necessary content for an ordinary presentence report.”
According to Shannon McPherson, Knockwood’s defence lawyer, “The systematic discrimination faced by women like Ms. Knockwood is a huge concern to our courts.”
Knockwood was upset and made her own inquiries at a Montreal courthouse about getting a Gladue report. A native court worker told her she could get a Gladue-type report “for a fee.”
In the meantime, the Ontario ministry arranged for Aboriginal Legal Services of Toronto to prepare a Gladue report. After several other delays, the report arrived on March 6, 2012. At this point, defence lawyer McPherson argued eight years was no longer an appropriate sentence. In her view, according to the ruling, the court should reduce it because of the delay in procuring the Gladue report “with consequential stress and disrespect for the special circumstances of aboriginal offenders.”
In his ruling, Hill referred to the importance of individualized sentences for aboriginals. “The outrageousness of this story is self-evident,” he wrote. “A shameful wrong. Contempt for the rights of aboriginal Canadians. A denial of equality.”
In the end, Knockwood received a six-year sentence. “The integrity of the criminal justice system was bolstered by his honour’s very well-reasoned approach,” says defence lawyer McPherson.
“His honour’s ruling was certainly well appreciated by my client.”
For her part, Baltman ordered the court’s trial co-ordinator to send a copy of her endorsement to the Ontario ministry’s director of legal services. Neither the Ontario ministry nor Quebec’s Ministry of Public Security responded to requests for comment on the concerns raised in both rulings.