SUPREME COURT OF Nova Scotia
Citation: R. v. McCormick, 2022 NSSC 61
Date: 20220301
Docket: Amherst, No. 481912
Registry: Amherst
Between:
Her Majesty the Queen
v.
Daren Wayne McCormick
PRE-SENTENCE REPORT DECISION
| Judge: |
The Honourable Justice Joshua Arnold
|
| Heard: |
February 8, 2022, in Amherst, Nova Scotia
|
| Counsel: |
Terry Farrell, for the Federal Crown Daren McCormick, self-represented |
Overview
[1] A pre-sentence report (“PSR”) was prepared for Daren McCormick’s sentencing. The PSR contains comments, opinions and feelings attributed to a police officer that are not in accord with s. 721 of the Criminal Code, or the relevant caselaw. The PSR does not provide much in the way of collateral source information. As a result, I ordered a different probation officer be assigned to prepare a new PSR. These are my reasons.
Facts
[2] Mid-way through a jury trial presided over by Hunt J., Mr. McCormick and the Crown requested a Resolution Conference to be conducted by me. Mr. McCormick represented himself, with some assistance from his friend Kevin Moore, who is not legally trained. At the conclusion of the Resolution Conference, Mr. McCormick again appeared before Hunt J. and pleaded guilty to count 2 on the indictment, which states:
AND FURTHERMORE on or about the 23rd day of August, 2017, at or near Northport, Nova Scotia, did possess a substance included in Schedule II to wit: Cannabis Marihuana, greater than three kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.
[3] The parties agreed that I should preside over the sentencing hearing. Sentencing was adjourned by Hunt J. to February 8, 2022, for preparation of a PSR.
[4] The PSR was prepared by Senior Probation Officer Aleshia L. Bushen and was received by the Court on February 2, 2022. It is eight pages long, plus has a 22 page appendix entitled “JEIN Offender Summary”. The PSR discusses the author’s difficulty in arranging an interview with Mr. McCormick, along with problems encountered in connecting with his collateral sources:
OFFENDER PROFILE
…
The interview for this Pre-sentence Report was conducted via telephone on January 14, 2022. The offender had been scheduled to interview in person at the Amherst Community Corrections office on January 7, 2022 and arrived on time but declined to comply with the office mandatory masking policy, therefore, the interview could not be completed at that time. It should be noted, Daren McCormick arrived at the office with a Halloween mask as he felt it would suffice as a face covering but same does not meet Correctional Services policy which requires use of masks that cover the mouth and nose.
This writer offered a virtual appointment via Zoom or Microsoft Teams as an alternative and the offender agreed to explore same but was unable to access these platforms. Telephone interviews were offered for January 12, 13, and 14, 2022 and the offender did not indicate his preference. This writer called at the scheduled time on January 12, 2022 but the offender was not home. His mother stated "he left Tuesday night to save a child's life and I don't know when he will be back." On January 13, 2022, there was no answer at the scheduled time but this writer did reach Daren McCormick on January 14, 2022. He explained he had just arrived home hours earlier and the interview was completed without issue.
…
During our interview, Daren McCormick provided telephone numbers for two collateral contacts. Messages were left for the first contact, Peg Williams, on three occasions but same were not returned. The telephone number provided for Rick Dwyer was incorrect as it is currently assigned to someone else who indicated they have no knowledge of or contact information for Mr. Dwyer. This writer made numerous daily attempts on January 26, 27 and 28, 2022 to reach the offender by phone for updated collateral information but the calls went immediately to a busy signal. The offender had previously advised this writer that Kevin Moore is acting as his legal representative and provided verbal permission to communicate with him so an email was sent to Mr. Moore on January 28, 2022 requesting that Daren McCormick contact this writer immediately to update his collateral contact numbers. The following response was received from Mr. Moore on January 31, 2022: "I'm wondering if the DEFENCE copy of the psr is available for review. As per McMcormick instructions I am continuing to act as his counsel, and amica curae as well. Thank You. Oh, and yes that phone number is out of service at the moment as there was a catastrophic fire that resulted in complete loss." Submission of this report was delayed until the deadline of February 2, 2022 to allow time for the offender to provide updated contacts, but he had not reached this writer by phone, email or at the office to provide updated collateral contact information.
[As appears in original]
[5] Unfortunately, the report also includes comments, feelings and opinions attributed to Sergeant Aaron Graham of the Amherst Police Department:
CORRECTIONS HISTORY
…Sergeant Aaron Graham of the Amherst Police Department provided comments for inclusion in this report on January 17, 2022. Sergeant Graham advised Daren McCormick is well known to police. He believes the offender presents himself as a leader amongst the Freeman on the Land in this area. He noted some of the offender's previous offences have been very concerning, particularly those involving threats to harm or kill police and an attempt to bring a weapon into the Court building. As a result, Sergeant Graham considers Daren McCormick to be unpredictable and potentially dangerous.
Sergeant Graham noted the offender’s attitude toward government is anti-establishment. When asked what actions Daren McCormick could take to reduce his risk for recidivism, Sergeant Graham expressed doubt as the offender does not respect or abide by restrictions placed upon him and strongly conveys his belief that the laws of the land do not apply to him. His close associations with other individuals who share his values and beliefs appear to bolster his convictions.
[6] In the Assessment of Community Alternatives/Resources section, the author states:
A primary concern for the offender appears to be his strong anti-establishment views. Daren McCormick was adamant in his assertion that the criminal justice system and government, in general, is corrupt and he feels persecuted by same. He stated if he opposes the direction of the Court or any other authority, he will proceed with what he feels is in his best interest and not that to which he is directed. As such, it is not clear that Daren McCormick is a good candidate for community based supervision.
[7] Interestingly, in this case the Crown is simply recommending a sentence of two years’ probation, while Mr. McCormick suggests this probationary term can be served by way of a conditional discharge. The Crown is opposed to a discharge.
Law
[8] Section 721(1) and (3) of the Criminal Code sets out when, how and why a PSR should be prepared:
721 (1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, 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 or in determining whether the accused should be discharged under section 730.
…
(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;
(b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament;
(c) the history of any alternative measures used to deal with the offender, and the offender’s response to those measures; and
(d) any matter required, by any regulation made under subsection (2), to be included in the report.
[9] The law regarding what should or should not be contained in a PSR was explained by Saunders J. (as he then was) in R. v. Purchase, [1992] N.S.J. No. 582, 127 N.S.R. (2d) 392 (S.C.T.D.). Saunders J. detailed the background to his concerns with the report:
4 At the time, it seemed to me that there might have been some misunderstanding or lack of understanding on the part of the author whose report I had rejected concerning the information which should and should not be included in a pre-sentence report ("PSR"). Several case authorities were referred to during argument and I directed counsel to ensure that complete copies of those cases were passed along to the Adult Probation office in Kentville so that officials there would have the benefit of earlier directions from the Court.
5 I drew counsel's attention to the references I found most offensive. At the bottom of page 6 of the PSR the Probation office had asked a local police officer for his views as to the remorse or perceived remorse on the part of the accused. Such opinions should not be included in a PSR. Further, it is the function of the Crown Attorney to allude to a criminal record in submissions made at the time of the sentence hearing. That is not the role of the police.
6 There was also a reference to alleged involvement by the accused in offenses other than the one presently before the Court. That is improper.
7 The author interviewed and quoted the remarks of a former probation officer whose last reported contact with the accused was at least seven years earlier. As Mr. Manning said, this interviewee painted the accused "as a latter day fagan still involved with young juvenile offenders in the community". Such unfounded commentary colors the whole tenor of the presentation and has no place in a PSR.
[10] Saunders J. reviewed the law regarding the appropriate contents of a PSR:
8 In the case of R v. Rudyk (1975) 11 N.S.R. (2d) 541 Chief Justice MacKeigan said at pp. 544-5:
"I would here urge that a pre-sentence report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted. It should not, however, contain the investigator's impressions of the facts relating to the offence charged, whether based on information received from the police, accused, or other witnesses, etc., whether favourable or unfavourable. And if the report contains such information the trial judge should disregard it in considering sentence."
9 Again, in R v. Sparks (1985) 66 N.S.R. (2d) 253 Chief Justice MacKeigan said at p. 255:
Unsworn allegations of criminal conduct by an accused unrelated to the offence under review should not appear in a pre-sentence report, and if they do they should of course be specifically rejected and not considered by the Judge so that justice may appear to be done."
10 Similarly in R v. Bartkow (1978) 24 N.S.R. (2d) 518 objection was taken to the following statement appearing in that pre-sentence report:
"The grapevine has had it for the past couple of years that the accused would sell dope to anyone who had the money regardless of age."
Chief Justice MacKeigan, at p. 522 said:
"I wish those who prepare such reports, would realize that it is no part of their job to give any information, whether inculpatory or exculpatory respecting offences which the accused committed, especially ones for which he has not been convicted. Their function is to supply a picture of the accused as a person in society - his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations. Their function is not to supply evidence of criminal offences or details of a criminal record or to tell the court what sentence should be imposed."
[11] Saunders J. also noted the absence of information from collateral sources in that PSR due to a lack of effort on the part of the author to get in touch with the relevant individuals:
11 I am also concerned that there has been little, if any, effort to contact those sources of information whom Mr. Manning has identified as being able to speak on his client's behalf. These are people in the community, including professionals for whom the accused has worked. They might well be in a position to vouch for the accused, his present circumstances and his prospects for rehabilitation. Mr. Manning specifically asked the Adult Probation Service that these individuals be contacted.
[12] In determining that a different probation officer should be assigned to create an entirely new report, Saunders J. stated:
12 Writers of PSR's would do well to remember the purpose of a pre-sentence report. It is a public document written to assist the presiding Justice in the imposition of a fit and proper sentence. It is of no assistance if it cannot be relied upon. It is unreliable if it contains accusations, rumour, conjecture, or accounts which may be seen to be prompted by bias or self-interest. These reports should not raise the spectre of other alleged offenses for which the accused has neither been charged nor convicted.
13 It should present a fair and objective view of the individual and his or her standing in the community. However well meaning this author's intentions, a PSR should not contain references which might leave the impression that its purpose is to buttress a conviction or result in a greater sentence.
[13] When Purchase was decided the governing provision was s.735 of the Criminal Code, which did not contain the level of direction and detail as is now found in s.721. In my opinion, despite the legislative detail found in s.721, Purchase is still instructive. See also R. v. D.C.R., 2017 BCPC 202, [2017] B.C.J. No. 1314, at paras 4 and 18-25; R. v. Cleary, 2014 NSSC 333, [2014] N.S.J. No. 541, at para 27; and E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd Edition (Carswell, looseleaf), at § 18:216.
Analysis
[14] In this case, the PSR does not reference any significant collateral sources as identified by Mr. McCormick (other than a corrections officer who dealt with Mr. McCormick several years ago when he was incarcerated). The author did exert some effort to contact Mr. McCormick’s collateral sources, mainly unsuccessfully, for a variety of reasons. The author was then unable to connect with Mr. McCormick to obtain alternate contact information for the collateral sources due to a house fire suffered by him at the time the PSR was being prepared.
[15] The more significant issue is that many of the comments found in the PSR attributed to Sergeant Graham are offside for a report of this kind. Accusations, opinions, feelings, rumour, and conjecture are not helpful, being prejudicial and irrelevant, and contrary to the law as set out in Purchase.
[16] In these situations, the court has a choice. If the tainted information in the PSR is such that it can be excised from the admissible portions of the PSR, then the sentencing judge can indicate on the record which aspects of the PSR they are not relying on, purge the offending portions and proceed through sentencing in the usual course. If, as in Purchase, the offending portions of the PSR are so significant that the objectivity of the entire PSR is in question and appears to, for example, buttress a conviction or suggest a greater sentence, then the judge may order a new PSR prepared by a different probation officer.
Conclusion
[17] The PSR in Mr. McCormick’s case appears to either buttress his guilty plea/conviction and/or suggests a greater sentence than the two years’ probation being recommended by the Crown. This PSR cannot be salvaged by judicial editing. Justice must not only be done, but must be seen to be done. Therefore, a different probation officer is to be assigned to prepare a new PSR for Mr. McCormick in accordance with the requirements of s. 721 of the Criminal Code and as explained in the caselaw.
Arnold, J.