COURT FILE NO.: CR-20-76 DATE: 2022/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

Plaintiff

– and –

Justin Michael Wiseman

Accused

Derek Zuraw, for the Crown

David Oake, for the Accused

HEARD: December 20, 2022

Sentencing Adjournment

Endorsement

The Honourable Justice R. J. Harper

Issue

[1] Should the sentencing of the offender be adjourned as a result of the presentence report not being prepared?

Background

[2] Justin Wiseman was found guilty by me of multiple counts or sexual related offences on November 7, 2022.

[3] After the finding of guilt, counsel for the offender sought to adjourn the sentencing in order to obtain a Presentence Report (PSR). The Crown agreed and also required time to obtain victim impact statements. An order requisitioning probation services at Cambridge to prepare a PSR was made and sent to Cambridge Probation on November 7, 2022.

[4] The matter was adjourned to Assignment Court (AC) on November 24, 2022, in order to set a date for the sentencing. That date at AC was chosen in order that the Crown and Defence would be in a better position to gauge the timing of the reports requested for the sentencing. The normal timeline for preparation of such reports is 4 to 6 weeks.

[5] The sentencing date was discussed at the assignment court and set at the assignment court for December 20, 2022, at 10 a.m.

[6] Instead of receiving a PSR, a document that is titled as a “Memorandum” from Cambridge Probation and Parole authored by Sandra Johnson, dated December 16, 2022, was sent to Justice R. J. Harper, Crown Attorney J. Mazin and Defence Counsel D. Oake.

[7] That memorandum stated the following:

On November 8, 2022, the Cambridge Probation and Parole office received a requisition for a Presentence Report, that was Ordered November 7, 2022, for the offender, Justin Wiseman. The requisition noted the matter would return to Court on November 24, 2022, to set a date for sentencing.

The requisition contained Wiseman’s address however, there was no telephone number listed or indication what Wiseman was given direction to contact any probation office to make an appointment for the presentence interview.

On December 6, 2022, this writer inquired about the sentencing date as no further or updated requisition was provided by the Court. Further, no contact was made by Wiseman. This writer contacted the Crown Attorney’s office in Brantford and spoke with Abby White, Law Clerk, who advised that Wiseman’s sentencing date was December 20, 2022, and provided an email address for Wiseman’s lawyer David Oakes.

Mr. Oakes was contacted via email and responded with Wiseman’s phone number. Wiseman does not have a voice mail service, and after several attempts, contact was made on December 8, 2022.

On December 9, 2022, Wiseman was interviewed at the Cambridge Probation & Parole Office and confirmed that he was not provided any direction to contact the Probation office.

During the interview, it was determined that the Probation Office was provided with incorrect documents relevant to the completion of the report.

The above noted complications have resulted in a delay of the process of completing the PSR as requested for December 20, 2022. Given the nature of the offences and additional information that is required to complete a thorough report, including contact with collateral sources, it is respectfully requested that the Court put the sentencing matter over. This writer recognizes the importance of the PSR and respectfully suggests a date the last week of January to facilitate the time required to complete the report, taking into consideration the holiday season.

Please forward an updated requisition to the Cambridge Probation and Parole office when the new sentencing date is determined.

[8] Through the trial coordinator, I suggested that the author of the above noted memorandum attend to answer some questions with respect to her memorandum.

[9] Ms. Sandra Johnson attended on today’s date. She confirmed that she did receive the requisition to conduct a PSR on November 8, 2022. She also advised that she did not contact the Court, the Crown nor defence counsel prior to December 6, 2022, in order to get further information on how to contact Mr. Wiseman, nor did she write to Mr. Wiseman at the address shown on the requisition she received on November 8, 2022.

[10] Ms. Johnson stated that she was on holidays until November 24, 2022. She did not feel there was a sense of urgency since the Court had not as yet set a sentencing date before she went on holidays.

[11] In her memorandum Ms. Johnson made reference to her learning that the Probation services was provided with incorrect documents relevant to the completion of the report. She went on in her memorandum to state that: “the above complications have resulted in a delay of the process of completing the PSR.”

[12] It was agreed to by the Crown and the defence that no incorrect documents would delay the report.

[13] After considering the representations of Sandra Johnson, I find that any delay was not caused by any “complications”. The delay was a function of probation workload and holiday schedule.

[14] This Court has a duty to ensure that after a person is found guilty, a date for sentencing must be set as soon as practicable.

[15] Criminal Code of Canada section 720 reads as follows:

720(1) A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.

[16] As noted by Justice Turnbull in R. v. Roy, 2011 ONSC 5097 at para. 16:

There is sparse case law on the implementation of s. 720 of the code.

[17] Nevertheless, Turnbull J. in this case refers to s. 720 of the CCC as a “judges statutorily mandated duty” to sentence as soon as practicable.

[18] S. 721 (1) of the CCC imposes a mandatory duty on the Probation officer. It reads:

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 purposes of assisting the court in imposing a sentence or in determining whether the accused should be discharged under section 730.

[19] Nothing in section 721 (1) refers to the date set for sentencing. The date that triggers the mandatory requirement on the Probation Services to prepare a PSR is the date they receive the order/requisition from the court.

[20] The Cambridge Probation office received the requisition signed by me on November 8, 2022. The requisition did not contain any ambiguity as to whether a presentence report was requested for Justin Wiseman. It also contained an address for Mr. Wiseman was set in the requisition. There was no phone number set out in the requisition. However, if Probation felt that the contact information was lacking in any way, they should have contacted either the Court, the Crown, or the defence counsel in order to get that information.

[21] The memorandum of Sandra Johnson dated December 16, 2022, noted that Mr. Wiseman was not provided any direction to contact the Probation office. It was at the request of Mr. Wiseman’s counsel, Mr. Oake that a PSR be prepared prior to sentencing. This request was made on November 7, 2022, in the presence of Mr. Wiseman. Mr. Wiseman’s lawyer gave the court clerk Mr. Wiseman’s address to put in the requisition to Probation Services. Mr. Wiseman was present when all of this occurred.

[22] Neither the Crown nor an offender who seeks a PSR prior to sentencing should just sit and wait until someone contacts them to allow for the timely preparation of a PSR.

[23] The purpose of ss. 720 and 721 is to allow, as much as possible, that a person who has been found guilty of an offence to know his or her sentence in a timely manner. The victims also have an interest in bringing the matter to a timely conclusion.

[24] Neither Mr. Zuraw or Mr. Oake, both very experienced counsel, indicated that they have never dealt with section 720 and section 721 of the CCC.

[25] In my view, both sections reflect an important mandate on the court and probation to move forward in a timely and thorough manner so that the court is able to bring criminal matters to a just and fair conclusion.

[26] Although Sandra Johnson stated in her memorandum that the last week in January would be a preferred date for sentencing to allow for a through and complete PSR, she conceded today that the report was almost complete. She agreed that the dates suggested by the court of January 18 and 19 of 2023 would allow for the thorough and complete PSR.

[27] Both Crown and defence indicated that they are available.

[28] Sentencing shall be adjourned to January 18, 2023, at 10 a.m.

Date: December 20, 2022

_______________________ Harper, J.