Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 13086 Date: 2013-10-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Cecil Munro

Before: Justice J. De Filippis

Heard on: October 21 & 22, 2013

Reasons for Ruling released on: October 30, 2013

Counsel:

• M. Malleson, for the Crown
• A. Goldkind, for the Defendant

Reasons for Ruling

De Filippis J.:

[1] On December 13, 2012 I found the Defendant guilty of sexual interference with a person under the age of 16 years, invitation to sexual touching involving a person under the age of 16 years, and sexual assault contrary to sections 151, 252 and 271 of the Criminal Code, respectively. Following the verdict, on application by the prosecutor, I appointed a psychiatrist to prepare an assessment to be used as evidence at a dangerous offender hearing. The prosecutor later obtained the approval of the Attorney General to bring an application to have the Defendant declared a dangerous offender. The psychiatrist is scheduled to testify. The Crown claims the doctor is not his witness and he has the same right as the Defence to cross-examine. The Defence objects that this gives the Crown an unfair advantage and undermines the adversarial system. After considering submissions, I ruled that both Crown and Defence had the right to cross-examine. These are my reasons.

[2] Section 752.1 of the Criminal Code provides that:

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.

[3] The present counsel did not appear at the trial of this matter or at the initial stages of the dangerous offender proceedings. For those purposes, Crown counsel was Mr. Hendry and Defence counsel was Mr. Fraser. On 6 February 2013, they appeared before me and the Crown stated that he was "applying for the assessment". I ruled that the Crown was entitled to do so because this case meets the criteria in section 753; that is, the predicate offence for which the Defendant had been convicted was sexual assault and he had at least two prior convictions for designated offences for which he was sentenced to jail for at least two years. I found that there are reasonable grounds to believe the Defendant might be found to be a dangerous or long term offender (for a discussion of this test, see R v Webster 2011 ONSC 2502). The Crown made these comments:

Mr. Fraser and I have had some discussions….we'd be asking Your Honour to hold off on actually making the order for the assessment, putting this over for at least a month, cause I'm in the process of obtaining or looking into the availability of various psychiatrists….I've started that process and I've provided at least one name to Mr. Fraser….speaking for Mr. Fraser, he also wants to consider any potential psychiatrist that – that names provided by – on the Crown's behalf, on whether that's agreeable to them or there's going to be further litigation in terms of who's going to do the report…and defence needs time to make that consideration.

[4] At a subsequent appearance I was informed by Mr. Fraser that the dangerous offender hearing would be handled by new counsel with greater experience in such matters. Mr. Goldkind was later retained by the Defendant and appeared on the date I was invited to appoint a psychiatrist to prepare the statutory report. It is agreed that this was done without any inquiry; that is, the Crown proposed Dr. Mark Pearce as a suitable person, the Defence made no comments about the proposal, and I appointed the assessor accordingly. It is important to note that during argument about the present ruling, the Defence did not take up my invitation to challenge the Crown's declaration that the assessor was picked simply because he has the expertise and is on the roster of available doctors for dangerous offender hearings in Central East Region. In this regard, I also note that Dr. Pearce is currently an assistant professor of Psychiatry at the University of Toronto and staff psychiatrist at the Centre for Addiction and Mental Health as well as at the Ontario Shores mental health facility.

[5] The report prepared by Dr. Pearce is 62 pages. It is based on 5.5 hours of interviews with the Defendant and review of 3794 pages of material about the Defendant's interaction with the criminal justice system and parole authorities over the past decades. Dr. Pearce concludes as follows: "In summary, and considering the aforementioned factors and in particular Mr. Munro's advancing age, there are some reasons for optimism that this gentleman will be manageable in the community upon the expiry of an LTSO [long term supervision order]". It is conceded by Crown counsel that after receiving his copy of the report, he contacted Dr. Pearce to discuss it.

[6] In asserting the right to cross examine Dr. Pearce, the Crown relies on an unreported decision in R v Stratton, 30 September 2010 (Ontario Court of Justice). In that case, my colleague, Justice Bellefontaine had previously ruled that the psychiatrist is appointed by the court, that neither party has a veto power over who the assessor should be and that the court is not obligated to choose a person from a list approved by the Crown. Indeed, over the strong objection by the Crown, Justice Bellefontaine appointed a doctor proposed by the Defence. The Crown argued that since the doctor had been appointed by the Court and provided a report opposite in interest to the Crown, fairness dictated that it be permitted to cross-examine the witness. The Defence opposed this submission. Justice Bellefontaine held as follows (at page 4):

I am allowing the crown to cross-examine for the following reasons. The rationale underlying the rule confining counsel to direct examination is substantially weakened when the witness is a psychiatrist appointed by the court. The witness can no longer be presumed to be favourable interest to the questioner. The questioner has no inside advantage with the witness, as both parties will have equal access to the report filed and the witness appointed for preparation purposes. Finally, a professional witness appointed by the court cannot reasonably be seen to be likely to agree with the questioner just because he has been called to the witness stand by the questioner.

[7] The Defence submits the Crown should not be permitted to cross examine the witness because a dangerous offender hearing is a sentence hearing and adversarial in nature. The adversarial system promotes fairness by requiring a party calling a witness to avoid leading questions, subject to exceptions such as an application pursuant to section 9 of the Canada Evidence Act. The rationale for this traditional practice is discussed by Watt, J (as he then was) in R v Clancey [1992] O.J. No 3968. In this regard, the Defence argues that the rules of evidence and procedure "do not change simply because a report is made based on a court order. To paraphrase an adage, he who alleges must prove".

[8] The Defence claims that Stratton is distinguishable because in that case there was a contested hearing to determine who the Court should appoint to prepare the report. Therefore, since the Court selected an expert proposed by the Defence and opposed by the Crown, it is understandable that the Court might grant the latter permission to cross examine, especially since the report was favourable to the Defence. I agree with the Crown that the rationale for the decision, as set out in the above quoted passage, is not based on these distinctions. In the alternative, the Defence submits that I should decline to follow Stratton because it is wrongly decided:

The ratio of the case rests on the misplaced assumption that the witness was that of the court….the filing of a report with the court does not mean that the proceedings must continue – the Crown could review the report and elect not to proceed with the application. Put another way, the Crown has the discretion to proceed with a dangerous offender application. If it wishes to do so, the Crown must meet its onus and call the necessary evidence.

[9] There is no question that a sentence hearing is adversarial in nature. However, the objective of the process causes a significant shift in focus from the trial proper; the attention is not on the guilt or innocence of the accused but the protection of society. This is especially so in a dangerous offender proceeding which is not punitive or reformative but designed to assess and manage future risk posed by an offender who meets the criteria in section 753 of the Code. As noted in Stratton (at page 6):

Specifically in the context of dangerous offender proceedings, the Supreme Court of Canada in R v Jones (1994) 89 C.C.C (3d), p. 383, describe the different balancing of interests which occurs at the sentencing phase of proceedings. They stated, "As with all sentencing, both the public interest and safety, and the general sentencing interests of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender. The sentencing stage places a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender….Accordingly, a strict adherence with traditional adversarial evidentiary proceedings are relaxed in the sentencing context and have been done in a number of ways.

[10] Allowing both counsel to cross-examine the assessor will more likely provide me with the greatest possible range of information and enable me to better discharge my broader obligation to protect society in this dangerous offender hearing. This approach also reflects the unusual evidentiary rule in such a hearing; the assessment is ordered by the Court, copied to the parties, and filed as evidence. Neither party can withdraw the report. In these circumstances, I agree with Justice Bellefontaine that "The only purpose for [the author of the report] to be called under the dangerous offender evidentiary regime is in fact for him to be cross-examined" (Stratton, page 9). I find that cross-examination of the assessor by both Crown and Defence is in accord with the nature and purpose of a dangerous offender hearing, and, in particular, the unique requirement that a report be commissioned and received by the Court.

[11] My ruling in this matter would be different if Dr. Pearce had been proposed by the Crown because he was seen to be friendly witness who would render a favourable report. In these circumstances, absent an inquiry by the court (with or without challenge by the Defence), the appointed assessor is really a party witness and the traditional adversarial process should apply. However, I reject the assertion that this is such a case. In advancing this claim, the Defence points out that the Crown launched this dangerous offender hearing, selected Dr. Pearce, without input by the Defence, and discussed the report with him after its release. None of these points justify a finding that Dr. Pearce is a party witness friendly to the Crown. Indeed, the concluding opinion in his report suggests otherwise. In any event, while the Crown has the discretion to begin the proceedings, the court appointment of an assessor and receipt of the report as evidence is mandated by statute. There is nothing on the record before me support a finding that Dr. Pearce was proposed by the Crown because of bias. Moreover, the fact that the Defence made no comment about the recommendation constitutes acceptance of the proposal. Lastly, I am not troubled that the Crown talked to Dr. Pearce about his report. There is no property in this witness and the Defence is entitled to do the same.

[12] On the resumption of this hearing, Dr. Pearce will testify about his report and be cross examined by both Crown and Defence counsel.

Released: October 30, 2013

Signed: Justice J. De Filippis