R. v. Cooper, 2015 ONSC 1771

R. v. Cooper, 2015 ONSC 1771

COURT FILE NO.: 12-1035

DATE: March 18, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TREVOR COOPER

Sam Humphrey, for Her Majesty the Queen

Peter Boushy, Amicus Curaie, for the Accused

HEARD: December 8, 2014

Restriction on Publication:

The proceedings in this case are subject to an order made under s. 486.4 of the Criminal Code that identity of the complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

RULING

JAMES J

1This ruling addresses the following three matters:

1. Defence request to stay count 2

2. Defence request for an order directing the preparation of a psychiatric report regarding Mr. Cooper’s mental health for sentencing purposes; and,

3. Defence request that Mr. Cooper undergo sexual behaviour testing for sentencing purposes.

The Request to Stay Count 2

2Count 2 involves a charge of sexual assault on A.D. When the charges were presented in the Ontario Court of Justice, the particulars in support of this charge related to the same factual allegations as Count 1, namely, that when A.D. was about six years old, Mr. Cooper touched A.D.’s chest area with his hand when they were sitting together on a couch while both were visiting the home of relatives in Newington, Ontario.

3At the preliminary inquiry, A.D.’s cousin, A.S. testified that according to A.D., there had been another incident at the Newington house, this time in a bedroom. The way this incident was described at the jury trial was that when A.D. was about six or seven years old, Mr. Cooper got on top of her in a bedroom and neither of them were wearing any clothes. A.D.’s testimony to the jury was that she recalled feeling some pain between her legs.

4A.D. did not disclose this incident in two police statements prior to the preliminary hearing or when she testified at the preliminary inquiry. After the preliminary inquiry, Crown counsel indicated that he wanted to incorporate the allegations respecting the bedroom incident into the case against Mr. Cooper to be presented to the jury.

5By agreement between Crown counsel, Mr. Cooper and the amicus curiae, Mr. Boushy, the jury was told that Count 2 related to the bedroom incident only. The jury found Mr. Cooper guilty on Count 2.

6At the sentencing hearing, Mr. Boushy challenged the procedural correctness of this arrangement, notwithstanding that it had been done on consent. Both counsel referred to section 574 of the Criminal Code which provides that:

574. (1) Subject to subsection (3), the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of

(a) any charge on which that person was ordered to stand trial; or

(b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any charge on which that person was ordered to stand trial.

(1.1) If a person has not requested a preliminary inquiry under subsection 536(4) or 536.1(3) into the charge, the prosecutor may, subject to subsection (3), prefer an indictment against a person in respect of a charge set out in an information or informations, or any included charge, at any time after the person has made an election, re-election or deemed election on the information or informations.

(1.2) If indictments may be preferred under both subsections (1) and (1.1), the Prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection (1) combined with one or more charges or included charges referred to in subsection (1.1).

(2) An indictment preferred under any of subsections (1) to (1.2) may, if the accused consents, include a charge that is not referred to in those subsections, and the offence charged may be dealt with, tried and determined and punished in all respects as if it were an offence in respect of which the accused had been ordered to stand trial. However, if the offence was committed wholly in a province other than that in which accused is before the court, subsection 478(3) applies.

7It seems to me that Count 2, as presented to the jury, was essentially a new charge in respect of which Mr. Cooper was not committed to trial but which he consented to be added to the case brought against him. As such, it falls within the scope of the authorization provided by section 572(2).

8The request for an order staying Count 2 is dismissed.

The Request for the Preparation of a Psychiatric Report

9The presentence report prepared by Probation and Parole Services noted that the police questioned Mr. Cooper’s mental health status and the author commented on page 8 that “it is unclear if Mr. Cooper’s oddities are just part of his personality, or if they are possibly connected in in some way to mental illness. It is believed that a psychiatric assessment would assist in gaining insight into Mr. Cooper’s personality and overall mental health.”

10In addition there is evidence of that Mr. Cooper experienced brain trauma and was in a coma following a motorcycle accident when he was eighteen years old that may have had permanent effects.

11He says through amicus curiae that a psychiatric report can be ordered for sentencing purposes under the authority of sections 721(4) and 723(3) of the Code (see also R. v. A.C., 2008 13360 (ON SC), [2008] O.J. No. 1179 (S.C.J.)).

12Crown counsel is opposed to this request because of the delay in achieving finality to the proceeding.

13Any report which is requested needs to be relevant to the sentencing process. Here, there is evidence of unusual behaviour that may be connected to Mr. Cooper’s mental health. A psychiatric assessment may provide useful information for determining a fit sentence. I note as well that, unlike the situation in R. v. A.C., in this case the request is being made by the defence.

14In my view there is an adequate basis to support the request and Mr. Cooper ought to be accorded an opportunity to have this issue addressed before he is sentenced.

15The request is granted for the preparation of a psychiatric report to assess Mr. Cooper’s mental health status for sentencing purposes.

The Request for Sexual Behaviour Testing

16The defence also requests an order directing that Mr. Cooper undergo sexual behaviour testing, including phallometric testing, to assist the Court in determining a fit sentence. The relevance of such testing in relation to the offences for which Mr. Cooper has been found guilty is self-evident, even where specific deterrence is not a primary concern, and can assist in the consideration of appropriate ancillary orders.

17I am satisfied that there is statutory authority to support the request. I note that this type of testing was also considered with approval in the A.C. case. It is not unusual to have the benefit of this type of testing when sentencing an offender for crimes of a sexual nature.

18This issue was also raised in the pre-sentence report where the author commented that “an even more specialized assessment around sexual behaviour would help in determining if Mr. Cooper has any deviant sexual interests and if he presents a risk to re-offend in a sexual manner.”

Disposition

19The request for a stay of Count 2 is dismissed.

20The requests for a psychiatric assessment and sexual behaviour testing are granted.

21In A.C., MacLeod J. directed that the probation officer assigned to complete the pre-sentence report arrange for the testing to be performed by a suitably qualified professional. I would make a similar order.

22If any party wishes to address the mechanics of obtaining the reports that have been ordered or other matters of concern arising from this ruling, a trial management teleconference may be requested through the trial co-ordinator’s office. The previously scheduled date for sentencing on April 7, 2015 will need to be vacated and that can be accomplished by speaking to the matter of re-scheduling at that time.

Honourable Justice Martin James