Can a judge order an assessment of the accused’s mental condition for the purposes of sentencing without the accused’s consent?

This question which has been asked in several reported decisions in this past decade suggests two schools of thought and has yet, in my view, a conclusive answer.

The interpretation of s. 723(3)

Section 723(3) of the Criminal Code reads as follows:

(3) Production of evidence — 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.

The  interpretation of the word ” production” in conjunction with the french translation ” présentation ” suggests that such pieces of evidence must already exist in order for them to produced or presented.

Judge Trueman of the B.C Provincial Court interprets section 732(3) in R v. Gray (2002) as follows:

“Section 723 (3) is very much like Section 721 (4). I find that both of these sections relate to information that is already in existence. I interpret these sections to mean that I cannot order the creation of a body of evidence, but I can order that evidence which already exists be produced to the court.”

Given this interpretation, a judge cannot therefore order the  production of a new body of evidence, but only that of evidence that already exists in order to assist the court at the sentencing stage.

In R v. O’Neill (2002) BCSC,  the same interpretation of section 721(3) is rendered. The crown in this matter requested the preparation of a psychiatric report in the framework of a dangerous offender designation. The crown had abandoned its request under section 753 but wished nevertheless to use the psychiatric report that was already prepared for the sentencing hearing. In addition, the crown had requested that the court order Mr. O’Neill to undergo a new evaluation by virtue of section 723(3).

The request was partially granted, allowing the crown to use an amended report that excludes an mention of the accusations for which Mr. O’Neill was acquitted. With respect to the request for a new evaluation under section 723(3), the court deemed the request unfounded given the lack of any reference to Mr. O’Neill suffering from any mental health issues during his trial.

In R. v. Gettliffe-Grant,(2006) BCSC the judge  found that the Court did not have jurisdiction to order a psychiatric assessment for the general purposes of sentencing. Justice Koenigsberg interprets section 723 comparatively with other sections of the criminal code and states the following:

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.

Alternative Procedural Methods

Are there other procedural methods which permit a judge to order such a psychiatric evaluation for sentencing purposes? In R v. Lenart ( 1998) Judge Finlayson of the Ontario Court of Appeal confirmed for the majority that a psychiatric assessment order under section 672.11 cannot be requested for the purposes of creating evidence for the purposes of sentencing .  Thus, the question as to whether provincial legislative mechanisms would allow for such an assessment.

The crown in this matter succeeded at obtaining a psychiatric assessment of Mr. Lenart for the purposes of sentencing by virtue of sections 21 & 22 of  the Ontario Mental Health Act. The court ordered that Lenart undergo a 30 day psychiatric assessment without his consent.

At the appellate level, defence counsel argued that sections 21 & 22 of the Mental Health Act should be deemed “Ultra Vires” as they encroach the federal powers to legislate in criminal matters.

The Ontario Court of Appeal considered that sections 21 & 22 of the Mental Health Act were within the ” Pith and Substance”  of provincial  legislation.  In addition, the court deemed the provincial legislation did not prohibit an act but was rather an accessory to the federal legislative power by facilitating the court to receive additional information that may assist the judge render an appropriate sentence.

What about jurisdictions that do not have such provincial legislation ?

Contrary to the BC decision of R. v. Gettliffe-Grant,(2006) , decisions from Alberta which also lack such provincial legislation have developed another approach  that would allow the power to order an assessment.

In R. v. Hunter, 1997 208 A.R. 321 (Q.B.), the judge found that it was allowed not only by virtue of s. 723(3) but also in accordance with the responsibilities and obligations imposed under s. 718.2 . A limited scope is however defined, and such orders need only apply to specific cases.

Judge Lo Vecchio states the following:

“The section does not grant an open ended authority, either specifically or by necessary implication, to require the production of any report, evidence or person.  There must be some logical nexus or relevance between what is being ordered to be produced and the matter under consideration.”

This reasoning was subsequently followed in R. v. Quintal, 2003 ABPC 79 (CanLII), 2003 ABPC 79, another Alberta decision.

It must be noted that the courts have made it very clear that crown cannot use such psychiatric assessments to potentially declare the accused to be a dangerous offender or long-term offender.  R. v. R.A.N., 2001 ABCA 312 (CanLII) &  R. v. Blackwell, 2007 BCSC 1486 (CanLII)

In addition, the decision of R v. Blackwell recognized that despite the order to undergo a psychiatric assessment, the accuse ” cannot be compelled to participate in a courtordered psychological or psychiatric assessment conducted by a qualified professional.”

The situation in Quebec is similar to that of British Columbia and Alberta, in that there are no specific provincial measures allowing for psychiatric assessment of the accused  during a criminal trial.

The only Quebec decision I was able to identify dealing with this issue is the case of R. c. J.L., 2009 QCCQ 14013 (CanLII)

Judge Marleau of the Court of Quebec follows the same line of reasoning determined in R v. Hunter &  R v. Quintal.

“An assessment of the current mental condition of the accused, already under psychiatric care and follow-up since 2007, is relevant.The nature of the offences charged, how the offences were committed, the fact that they were committed during follow-up and that they concern members of the clinic where he was an outpatient as well as his psychiatrist demonstrate this relevance.

All these circumstances result in a “logical nexus or relevance between what is being ordered to be produced and the matter under consideration”.

The accused must be informed that he can refuse to participate in this psychiatric assessment, just as he can refuse to participate with the probation officer in the pre-sentence report.

If he refuses to cooperate, he must be informed that the qualified persons preparing and executing the order may nonetheless obtain information about him and disclose it to the Court without the accused having an opportunity to give his point of view. Since an accused is often in the best position to raise mitigating factors in his favour, he must also understand that his refusal may result in only aggravating circumstances being presented at the forthcoming hearing.”

The Current state of the Law

As the law currently stands, the highest court to decide on this question is the court of  appeal in   R v. Lenart. Alan Manson, an authority in Canada on the subject of Sentencing and author of The Law of Sentencing opines that it is regrettable that the decision was not appealed before the Supreme Court of Canada. For the time being, we are left with two jurisprudential interpretations that do not provide a definitive answer. The trend however suggests that more courts have adopted an unrestrictive interpretation of the applicable sentencing provisions and lean towards ordering such an evaluation.