R. v. Nathalie Gettliffe-Grant, 2006 BCSC 1943 (CanLII)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20061110

Docket: 23879

Registry: Vancouver

Regina

v.

Nathalie Gettliffe-Grant

Before: The Honourable Madam Justice Koenigsberg

Oral Ruling on Application for Psychiatric Assessment

November 10, 2006

[1]               THE COURT:  The Crown seeks an order pursuant to this court’s authority under s. 721(4) or s. 723(3) of the Criminal Code that Nathalie Gettliffe-Grant undergo a psychiatric assessment to assist the court in determining a fit sentence. 

[2]               Essentially, there are two issues raised relating to whether such an order can be made:  (1) Is there jurisdiction in this court to make such an order; and (2) if there is jurisdiction, does the evidence put before this court constitute a sufficient factual foundation to justify making such an order?  In other words, is there evidence of mental disorder of some kind such that the court would be assisted in determining how to apply the principles of sentencing in this case to fashion the most appropriate sentence?  My conclusion is that the answer to both of these questions is no.

[3]               I will deal first with the question of jurisdiction.  The Crown makes an eloquent and thoughtful argument that courts should and do have jurisdiction to order such an assessment for sentencing purposes under s. 721(4) or 723(3).  I set out the relevant parts of these sections:

721.(1)  Subject to regulations made under subsection (2), where an accused … pleads guilty … 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 purpose of assisting the court in imposing a sentence …

(3)  Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

(a)      the offender’s age, maturity, character, behaviour, attitude and willingness to make amends …

(4)  The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2).

Subsection (2) is not relevant to these proceedings.

723.(1)            Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

(3)            The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

[4]               There is only one case in this jurisdiction which specifically considered these sections of the Criminal Code and concluded that there is such jurisdiction.  R. v. Saba (1997), New Westminster Registry No. X047316 (B.C.S.C.), is a decision of this court decided in 1997 only a few months after the enactment of these sections.  Saba appears to be the only case either counsel could find which dealt specifically with these sections. 

[5]               I must respectfully disagree with my learned sister judge that jurisdiction to order a psychiatric assessment of a non-consenting offender can be found in either s. 721 or s. 723.  There were several cases decided in Ontario subsequent to the enactment of those Criminal Code sections and after Saba was decided, the reasoning of which is inconsistent with such jurisdiction residing in such broad and non-specific provisions.  Of course, the learned judge in Saba did not have the benefit of these decisions.  These cases note that only specific provisions in highly circumscribed situations provide for courts to order accused persons to submit to psychiatric assessments.

[6]               Even in these cases, there is no provision to compel cooperation by the accused in such assessments, and in some of those situations the accused is advised he need not cooperate.  These specific provisions are found in s. 672.11.  That section reads:

672.11            A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

(a)      whether the accused is unfit to stand trial;

(b)      whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

(c) is not relevant

(d)      the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused; or

(e)      whether an order should be made under subsection 741.1(1) to detain the accused in a treatment facility where the accused has been convicted of the offence.

I note and say parenthetically that though subsection (e) has been in the enactment for a number of years, it still has not been proclaimed.

[7]               The Crown says additional support for the court’s authority to order a psychiatric assessment can be found in R. v. O’Neill, 2002 BCSC 254 (CanLII), (2002) BCSC 254, a decision of this court which considered R. v. Saba and distinguished it on its facts.  The judge in O’Neill did not analyze or consider whether Saba was jurisdictionally rightly decided.  Like the judge in Saba, the judge in O’Neill did not have the benefit of considering the Ontario Court of Appeal decisions in R. v. Lenart 1998 CanLII 1774 (ON C.A.), (1998), 39 O.R. (3d) 55, 158 D.L.R. (4^th) 508, R. v. Simanek, [2001] O.J. No. 4187 (QL), and the Ontario High Court of Justice decision in R. v. Connors reflex, (2001), 48 C.R. (5^th) 301, [2001] O.J. No. 4286 (QL).  None of those cases deal directly with whether s. 721(4) or s. 723(3) of the Criminal Code confer jurisdiction upon a court to order a psychiatric assessment.  I interpret them as not considering those sections specifically, because it was never suggested that they would confer such jurisdiction.

[8]               All of the Ontario cases specifically consider the authority of courts to order a psychiatric assessment of an offender whether there is consent or not under the Criminal Code.  All of these decisions came down more than one year after the enactment of s. 721(4) and s. 723(3) and many came down several years later.  All agree that, absent findings or procedures engaging s. 672.11 or s. 752.1, the dangerous or long-term offender section, there is no criminal court jurisdiction to order a psychiatric assessment.  At paras. 19 and 20 of R. v. Lenart 1998 CanLII 1774 (ON C.A.), (1998), 123 C.C.C. (3d) 353, 39 O.R. (3d) 55, Finlayson J.A., for the majority, stated as follows:

[19]  For the purposes of this appeal, it is sufficient to say that the Criminal Code did not provide at the relevant times a statutory basis for conducting a psychiatric assessment for the purpose of sentencing.  Section 672.11 of the Criminal Code sets out the circumstances in which a court may order an assessment of the accused's mental condition. When a guilty verdict has been rendered, as in this case, the only circumstance in which an assessment order may be made is set out in s. 672.11(e), which provides:

672.11   A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, it if has reasonable grounds to believe that such evidence is necessary to determine …

(e)  whether an order should be made under subsection 747.1(1) to detain the accused in a treatment facility, where the accused has been convicted of the offence.

[20]  This section is not of assistance as s. 747.1(1) has not been proclaimed in force.  As a result, in the absence of dangerous offender circumstances, there is no provision in the Criminal Code authorizing a court to remand a convicted person to a psychiatric facility for a psychiatric assessment for the purposes of sentencing.

[9]               When one considers the profound invasion of privacy engaged by a non-consensual psychiatric assessment, the very limited and circumscribed circumstances in which a court may order one pursuant to the Criminal Code is not surprising.  To underscore my conclusion that neither s. 721 nor s. 723 purport to confer jurisdiction to allow such an invasion of privacy, one need only compare the specificity of the provisions allowing an assessment in s. 672.11 and thereafter, with the general, broad, and non-specific provisions relied upon by the Crown.

[10]           I, in no way, wish to be understood to unduly limit the scope of s. 721(4):

The ordering of any other matter required by the court to be included by a probation officer in a presentence report.

or s. 723(3):

The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

These provisions are important and relied upon time and again in these courts, particularly s. 723(3), as the court must have appropriate evidence to properly meet the requirements of s. 718.2.

[11]           It is not unusual for courts to be faced with sentencing applications in which, after hearing from both the Crown and the offender, the court does not have all of the relevant information and may ask for such before imposing a fit sentence.  The type of evidence which may be required by a court in these circumstances, as noted in such decisions as R. v. Hamilton and Mason 2004 CanLII 5549 (ON C.A.), (2004), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129, (O.C.A.) and R. v. Hunter (1997), 208 A.R. 321, 53 Alta. L.R. (3d) 169, (A.B.Q.B.), is limited to investigation and non-conscriptive evidence, but it is also broad enough to allow the court to obtain evidence of the likely application and availability of any conditions the court may want to impose in any sentence.

[12]           I will now deal with the issue of the need for a sufficient factual foundation to justify making a non-consensual order, if there is such jurisdiction.  The learned trial judge in Saba found on explicit evidence adduced by the defence at trial that Mr. Saba’s mental state was in issue.  At para. 10 of her reasons, she found:

… the accused's psychological or psychiatric status was squarely raised by the defence and loomed as an issue throughout the trial.

Further, the trial judge made observations herself which caused her grave concern as to his mental state.  At para. 11, she stated:

As a trial judge with 12 years experience, I must also note that the accused conducted himself at trial in a fashion which I can only describe as bizarre. His evidence in chief and cross-examination mirrored many of the observations made by Dr. Lee. He was almost manic in his manner of delivering his testimony and appeared to clearly enjoy performing for the court. He expressed various paranoid theories of who might be the arsonist. Many of his answers reflected an entirely unrealistic view of the world around him.

Quoting from R. v. Hunter, decided only a few months before Saba, which in turn was decided only a few months subsequent to the enactment here at issue, the judge noted, at paras. 22 and 23:

[22]  In Hunter the Alberta Queen’s Bench placed a limit on the ostensibly infinite authority conferred upon the court in a section 723(3), to compel the production of evidence for the purpose of sentencing. The court held that there must exist:

… some logical nexus or relevance between what is being ordered to be produced and the matter under consideration.

[23]  At paragraph 34 the court held:

In my view, the power of a Provincial Court Judge to control the process of a sentencing Court in which the Provincial Court Judge is presiding, in order for the Judge to discharge the responsibilities given the sentencing Court in the sentencing process, does arise by statute through the addition of section 723(3).  If I were wrong in that view, I would also find that such power must arise by necessary implication from the responsibilities and obligations imposed on the sentencing Court by Section 718.2 of the Code.

Thus, in Saba, the logical nexus was as found by the sentencing judge that Mr. Saba’s mental state was squarely in issue throughout the trial and by the observation of the court.  Having so found, the trial judge noted that the sentencing principles themselves, particularly deterrence and rehabilitation, engaged an exploration of the offender’s mental state.

[13]           As I previously noted, non-consensual psychiatric assessments are a profound invasion of a person’s privacy.  In my view, if there is jurisdiction in this court to order one for the purposes of sentencing, evidence as clear as that relied upon in Saba would be necessary to justify such an order.  The components of that evidence were that the defence raised the matter and proffered evidence of mental disturbance at trial; second, and perhaps most importantly, the trial judge observed evidence of mental disturbance during the trial which paralleled that commented upon by the psychiatric assessment proffered by the defence.

[14]           Further, that evidence of mental disturbance raised questions on sentencing which, as commented on by the sentencing judge, could have mitigated the harshness of any sentence imposed.  In my view, no such evidence can be discerned here.  What has been put before me is supposition that Ms. Grant may have a psychiatric illness or disturbance and this psychiatric illness or disturbance may pose a risk that she will reoffend.  She certainly does not rely on any such illness to explain or excuse her criminal conduct.

[15]           On behalf of the Crown, it is argued that the evidence put before the court raises concerns regarding the offender’s motivation, attitude, and mental state in relation to the risks of reoffending: it urges that without knowledge of the offender’s underlying psychological state of health, the court will find it difficult to achieve the goals of deterrence and rehabilitation in sentencing this offender.  I would comment, as a practical aside, where an offender resists such an invasion of her privacy and where doubt is thus placed on whether she would cooperate with such a psychiatric assessment, little if any value would be gained if such a psychiatric assessment was procured.

[16]           I agree that evidence of the offender’s attitude, motivation, and mental state, as known, are all relevant factors on a sentencing.  However, it would appear to me that if the Crown is able to produce admissible evidence of the type and nature put before me on this application, there is significant evidence available which is relevant to the offender’s likelihood of reoffending, as well as her attitude and her motivation for committing the offences to which she has pled guilty.  In short, there is simply no evidence of the kind available in Saba to justify ordering a psychiatric assessment even if I found there was jurisdiction in the court to do so.  I dismiss the Crown’s application.

“M.M. Koenigsberg, J.”
The Honourable Madam Justice M.M. Koenigsberg