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PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . .Kendyl Sebesta Staff Writer . . . . . . Michael McKiernan Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Province strikes delicate balance in bullying law S chools face a diffi cult balancing act in addressing bullying. On the one hand is the obvious need to protect the victim. Given the recent attention on suicides by bully- ing victims in Ontario, it's clear that society has to do something to keep them safe. On the other hand, schools have a duty of care to the alleged perpetrators as well. First, they have to investigate the allegations properly and avoid act- ing hastily to, in a sense, convict them of wrongdoing. At the same time, they must make eff orts to address the perpetrators' actions in a constructive way by, for example, providing counselling and other help to try to stop the off ending behaviour. Schools are diff erent from the courts, of course, so the tough- on-crime rhetoric doesn't apply in the same way. Th e off enders are young, so it's important to undertake inter- ventions that will help them succeed and resolve their behaviour early on rather than taking a purely punitive approach. Privacy considerations are also a factor in how schools handle a case, particularly when it comes to commu- nicating with the victims' families. Th e government, then, has taken a reasonable approach with its pro- posed accepting schools act. It would require schools to be proactive about bullying by making it clear that the consequences will escalate up to ex- pulsion. At the same time, it would make them support students who want to lead activities that promote a more harmonious environment and designate the third week of every No- vember as bullying awareness preven- tion week. Th e legislation is by no means a panacea. Getting tough on perpe- trators has its obvious attraction but it doesn't always work. In the high- profi le case of Pickering, Ont., boy Mitchell Wilson, offi cials transferred the alleged perpetrator to another school. Yet the bully's friends who remained at Mitchell's school contin- ued to harass him, a fact that likely played a role in his eventual suicide as he feared going back to class. Nevertheless, cases like this one show that the government had to act. Schools, in fact, have already faced lawsuits, many of them in the Small Claims Court, from parents who claim offi cials didn't do enough to stop bullying. Th e need for action, then, is clear. Hopefully, though, the legislation will result in a measured approach. Rather than rushing to ex- pel the perpetrators, intervening early to provide help to both them and the victims is a better option. Overall, the government has struck a good balance by allowing for tough and escalating sanctions but also em- phasizing awareness and other sup- ports. In doing so, it has made it clear that schools have an added duty to act, something the parents who have been launching the court actions have been looking for. — Glenn Kauth pre-sentence report? What are the risks? While counsel can collect support, clients may letters of be assisted by the extensive background information that a pre-sentence report will con- tain. Th e report may be useful for Gladue submissions for ab- original clients, and a special Gladue report may provide even more information. But pre-sentence reports can be disastrous. Th e client may miss the appointment with probation and be ordered into custody pending completion of the report. A non-compliant client who's chronically late and disrespectful of authority is no candidate for a positive pre-sentence report. Outstand- ing charges, an incomplete criminal record, breaching bail, and a nasty prior domes- tic incident all spell trouble. Some clients, having de- cided they'll reap the benefi ts of pleading guilty, deny the Assessing the risks and benefits of pre-sentence reports W ill there be an advan- tage to your client if the court orders a off ence to their probation of- fi cer, which results in their pleas being struck. Incred- ibly, a client may boast of greater involvement than dis- closed to the court. A denial after being found guilty in a trial may show a lack of re- morse. One should pause here. Th e standard advice upon arrest is not to make any statements, so why are clients making them to probation offi cers? As pro- bation offi cers are in a position of authority, should they give the client the right to counsel? I'm not being facetious. Rather than do an end run around this sticky situation, the proba- tion offi cer shouldn't question the accused about the off ence. Justice L.G. Anderson of the Alberta provincial court recently held that it was im- proper for the probation offi cer to question the accused about the off ence itself. In fact, R. v. Chaaban provides an excellent summary of the law surround- ing pre-sentence reports. According to the ruling, A Criminal Mind By Rosalind Conway Mohammed Chaaban had pleaded guilty to evading the police. Anderson said that ques- tions and comments about the off ence itself journey into dan- gerous territory and that trial and appeal courts have long considered them to be off lim- its. Th e purpose of the report is to provide the court with infor- mation about the background, family, character, and circum- stances of the accused. Section 721 of the Crimi- nal Code states that the report must include, where possible, "the off ender's age, maturity, character, behaviour, atti- tude, and willingness to make amends." Th e inclusion of opinions can create problems but it may be diffi cult for the probation offi cer avoid giving one. to entirely www.lawtimesnews.com fi culty Th ere's generally no dif- when the offi cer provides a factually based opinion as to the accused's suitability for probation. Th e offi cer is well qualifi ed to do that. But Anderson held that what is problematic is the of- fi cer giving a viewpoint as to the appropriate sentence for the accused or including the opinion of the detective. At the same time, describ- ing the accused as known to the police was infl ammatory. As Anderson held: "Th ere is no room in a pre-sentence report for alleged criminality that is not proven. Th ere is certainly no room for innuendo." Th e court's power to order a pre-sentence report under s. 721 is discretionary. Once the court orders a report, counsel can assist the client in a num- ber of ways. Th ey can forward reference letters and other reports to probation, for ex- ample. Counsel should advise clients to be prepared for the meeting with probation, not to discuss the off ence, and to be December 5, 2011 • Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Eman Aboelsaud at: eman.aboelsaud@thomsonreuters.com or Tel: 416-609-5882 or Fax: 416-649-7870. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. aware that if they say anything, it must be entirely congruent with the facts of the plea or the trial. But if the client intends to appeal the conviction, it's crucial to say that counsel said not to discuss the case. If parts of the report are in dispute, they can be edited out. If counsel can't agree, they can cross-examine the probation offi cer. All aggravating facts at sentencing must be proven be- yond a reasonable doubt as per s. 724(3)(e). Opinion evidence is no diff erent. As a practical matter, it's useful to have a chat with the client about the risks and ben- efi ts of requesting a pre-sen- tence report. Certainly, it's less work to have probation prepare a report, but counsel's well- prepared sentencing brief of letters, reports, and any other supportive materials may assist the client far more. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

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