The Ontario Court of Appeal recently served notice to probation officers preparing pre-sentence reports that they will be held to high standards of professionalism.
“This is a reminder that was necessitated not just by the particular case before the court but because there have been similar examples of sloppy pre-sentence reports in other cases,” says Daniel Brodsky, a Toronto criminal lawyer.
The court’s comments in the high-profile case of
R. v. Junkert earlier this month followed its rejection of the “very negative picture” of the appellant, Matthew Junkert, painted by a probation officer tasked with preparing the report in the wake of Junkert’s convictions in January 2009 of impaired driving causing death and dangerous driving causing death.
In April of that year, Justice Peter Wright of the Ontario Court of Justice imposed a five-year sentence and prohibited Junkert from driving for 10 years.
The appeal court’s rejection of the pre-sentence report, however, proved a pyrrhic victory for Junkert as Associate Chief Justice Dennis O’Connor and justices Robert Armstrong and David Watt unanimously upheld both the convictions and sentence.
Nevertheless, Brodsky says the result of the appeal doesn’t diminish the significance of the court’s comments on the pre-sentence report.
“The Court of Appeal is reminding probation officers and supervisors that they are officers of the court and that, although they are entitled to strong opinions, the opinions must be based on appropriate information, thought, and analysis that one would expect from the average professional.
The court is also implicitly suggesting that the probation office come up with a protocol that sets minimum standards for the preparation of a competent pre-sentence report.”
The case arose on the evening of Nov. 29, 2006, as Junkert, returning from his girlfriend’s home at a “significant speed” estimated at 90 to 93 kilometres per hour, failed to negotiate a gradual turn and drove his Subaru off a residential road.
His car struck 37-year-old Teresa Callaway, a mother of four children who was out jogging, and propelled her face-first into the side of a Dodge Neon parked in a driveway.
O’Connor, who wrote the court’s reasons, acknowledged that the five-year term was at the high end of the range but concluded that the punishment was neither unfit nor a significant departure from sentences previously imposed that warranted interference from the Court of Appeal.
“While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years.”
But O’Connor was careful to distance his conclusions from the contents of the pre-sentence report. “In dismissing the appeal, I do not want to be taken as in any way adopting or approving the pre-sentence report that was filed with the court at the time of sentencing,” he wrote.
The report portrayed Junkert as lacking remorse, having a poor attitude towards work, and displaying “contempt for court orders.”
But a vigorous cross-examination by defence lawyer Martin Herman showed the probation officer had relied almost entirely on the superficial observations of a single police officer whom he erroneously believed to be the one who had arrested Junkert. He didn’t speak to two other officers who had more contact with Junkert and who testified that the accused was remorseful, according to the judgment.
The probation officer also failed to refer to critical portions of a report from a counsellor who saw Junkert on several occasions after the accident.
The counsellor’s report stated that “it was clear that remorse and regret and guilt very much occupied [the appellant’s] mindset and contributed to the host of depressive symptoms.”
“In short, the pre-sentence report presented a misleading and unfair picture about the issue of the appellant’s remorse,” O’Connor concluded.
Aggravating matters, the report painted an incomplete picture of the appellant’s work record and “implied unfairly” that Junkert was at fault for not continuing counselling after the accident.
But because the trial judge had noted the deficiencies, Junkert’s appeal lawyer, Alan Gold, didn’t raise the inadequacy of the report as a ground for overturning the conviction and sentence.
Still, O’Connor felt compelled to deal with the issue.
“A pre-sentence report is intended to be an accurate, independent, and balanced assessment of an offender, his background, and his prospects for the future,” he wrote. “When preparing pre-sentence reports, probation officers must be thorough and fair and should canvass the relevant information before commenting on a particular issue.”
O’Connor also expressed concern about the report’s impact on Junkert’s prospects for parole. “I am concerned that the parole board, when considering the issue of the appellant’s release, not be misled by the inaccuracies in the pre-sentence report,” he wrote.
According to Brodsky, the court’s concerns about parole issues are valid. “After sentencing, defence lawyers usually pack up the file and move on to the next case,” he says.
“The Crown doesn’t stop there. They collect their favourite will-says, usually from police officers and other documents that seem important, and send them off to be incorporated in the institutional file, where the material will be accessible to correctional authorities and the parole board.”
Ultimately, Brodsky sees Junkert as underlining the importance of probation officers’ role in preparing pre-sentence reports.
“The court underscores the fact that probation officers are performing as important a role as psychiatrists and psychologists do. The difference is that no regulatory body supervises them. In my opinion, there ought to be, although the Court of Appeal doesn’t go that far.”
As it turns out, Brodsky isn’t the only criminal lawyer who’s concerned about questionable pre-sentence reports.
“The disparity between the report and reality in Junkert, particularly on the remorse issue, was just stunning,” says Paul Copeland of Copeland Duncan in Toronto. “But that’s certainly not the only pre-sentence report I’ve seen that’s turned out to be totally off the wall.”
