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PAGE 2 NEWS augusT 23, 2010 • Law Times Appeal court's attack on pre-sentence report signals wider issue T BY JULIUS MELNITZER For Law Times he Ontario Court of Ap- peal recently served no- tice to probation offi cers preparing pre-sentence reports that they will be held to high standards of professionalism. "Th is is a reminder that was ne- cessitated 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. Th e court's comments in the high-profi le case of R. v. Junkert earlier this month followed its rejec- tion of the "very negative picture" of the appellant, Matthew Junkert, painted by a probation offi cer tasked with preparing the report in the wake of Junkert's convictions in January 2009 of impaired driving causing death and dangerous driv- ing causing death. In April of that year, Justice Peter Wright of the Ontario Court of Justice imposed a fi ve-year sentence and prohibited Junkert from driving for 10 years. Th e appeal court's rejection SEEKING TOP PROFESSIONALS DAMAGES QUANTIFICATION AND BUSINESS VALUATION FTI Consulting Canada requires entry and mid level professionals for its growing domestic and international business valuation and damage quantifi cation practices. Our Toronto based group works on some of the largest and most complex cases in Canada and around the world. There are also positions available for our London UK offi ce. We are looking for independent thinking professionals with a background in accounting and/or economics who are interested in furthering their education through the Canadian Institute of Chartered Business Valuators (leading to a CBV designation). A Masters in Accounting, Finance, Economics; or a professional accounting designation is required. 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L4G 3S9 Tel: (905) 727-0077 Fax: (905) 727-0017 www.lawtimesnews.com 8/19/10 6:24:10 PM • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer delivered to your inbox every week...FREE of the pre-sentence report, how- ever, proved a pyrrhic victory for Junkert as Associate Chief Justice Dennis O'Connor and justices Robert Armstrong and David Watt unanimously upheld both the con- victions and sentence. Nevertheless, Brodsky says the result of the appeal doesn't diminish the signifi cance of the court's comments on the pre- sentence report. "Th e Court of Appeal is reminding probation offi cers and supervisors that they are offi cers of the court and that, although they are entitled to strong opinions, the opinions must be based on appropriate in- formation, thought, and analysis that one would expect from the average professional. Th e court is also implicitly suggesting that the probation offi ce come up with a protocol that sets minimum standards for the preparation of a competent pre-sentence report." Th e case arose on the evening of Nov. 29, 2006, as Junkert, re- turning from his girlfriend's home at a "signifi cant speed" estimated at 90 to 93 kilometres per hour, failed to negotiate a gradual turn and drove his Subaru off a residen- tial road. His car struck 37-year- old Teresa Callaway, a mother of four children who was out jog- ging, and propelled her face-fi rst into the side of a Dodge Neon parked in a driveway. O'Connor, who wrote the court's reasons, acknowledged that the fi ve-year term was at the high end of the range but concluded that the punishment was neither unfi t nor a signifi cant 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 satisfi ed that the in- crease, if there is one, is incremental and that it quite properly contin- ues 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 fi led with the court at the time of sentencing," he wrote. Th e report portrayed Junkert as lacking remorse, having a poor atti- tude towards work, and displaying "contempt for court orders." But a vigorous cross-examina- tion by defence lawyer Martin Her- man showed the probation offi cer had relied almost entirely on the superfi cial observations of a single police offi cer whom he erroneously believed to be the one who had ar- rested Junkert. He didn't speak to two other offi cers who had more contact with Junkert and who tes- tifi ed that the accused was remorse- ful, according to the judgment. Th e probation offi cer also failed to refer to critical portions of a re- port from a counsellor who saw Junkert on several occasions after the accident. Th e counsellor's re- port 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 is- sue 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 defi ciencies, 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 in- tended to be an accurate, inde- pendent, and balanced assessment of an off ender, his background, and his prospects for the future," he wrote. "When preparing pre- sentence reports, probation of- fi cers must be thorough and fair and should canvass the relevant information before commenting on a particular issue." O'Connor also expressed con- cern 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 fi le and move on to the next case," he says. "Th e Crown doesn't stop there. Th ey collect their favourite will- says, usually from police offi cers and other documents that seem important, and send them off to be incorporated in the institutional fi le, where the material will be ac- cessible to correctional authorities and the parole board." Ultimately, Brodsky sees Junkert as underlining the importance of probation offi cers' role in preparing pre-sentence reports. "Th e court underscores the fact that proba- tion offi cers are performing as im- portant a role as psychiatrists and psychologists do. Th e diff erence is that no regulatory body supervises them. In my opinion, there ought to be, although the Court of Ap- peal doesn't go that far." As it turns out, Brodsky isn't the only criminal lawyer who's concerned about questionable pre- sentence reports. "Th e 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." LT

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