R v Duyck – 2019 BCPC 330 (Harris):

[1] Mr. Duyck pled guilty to breaching his probation. Before commencing the sentencing hearing the Crown requested that the court order the preparation of a Pre-Sentence Report (“PSR”) with a psychological component. Counsel for Mr. Duyck opposed the Crown’s request arguing that a PSR was not necessary and if the court determined that a PSR was required, counsel argued that the court lacked the jurisdiction to order a psychological component.

The Crown
[16] The Crown argues that sections 721 (4) and 723 (3) of the Criminal Code permits the ordering of a PSR with a psychological component. In support, the Crown relies on: R. v. Blackwell, 2007 BCSC 1486, R. v. Challes, 2008 CanLII 13360 (ONSC), R. v. Goldberg, 2011 BCSC 1926, R. v. MB., 2014 ABQB 683, R. v. B.P.H. , 2015 BCPC 271.

Counsel for Mr. Duyck
[17] Counsel for Mr. Duyck argues the court does not have the jurisdiction to order a psychological component to a PSR. Counsel points out, the Criminal Code does not expressly authorize the ordering of a psychological report for sentencing purposes. Counsel argues the absence of express wording was intentional and a tacit recognition that the preparation of a psychological report invades an individual’s privacy. Counsel relies on: R. v. Gettliffe-Grant, 2006 BCSC 1943 and R. v. McCrea, 2007 BCPC 0258.
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[25] Justice Gaul in Goldberg followed Justice Smith’s reasoning and at a paras. 29 – 31 observed:

[29] In Blackwell, D. Smith J, as she then was, engaged in a detailed review and analysis of the conflicting decisions relating to the ordering of non-consensual psychiatric assessments for the purposes of sentencing. In concluding that a trial judge has the jurisdiction to order such an assessment, Madam Justice Smith observed at paragraph 37: Unlike a fitness or NCRMD remand, a psychiatric assessment for the purpose of sentencing does not typically require an offender to attend a psychiatric institution and remain there for a fixed period of time while the assessment is completed. Instead, an offender is invited to participate in the assessment process, as he would be at the behest of a probation officer. If he declines to participate, the qualified professional conducting the assessment may still examine collateral material in order to produce a report for the court. The purpose of the assessment is not to conscript evidence from Mr. Blackwell but to assist the Court in determining an appropriate sentence. Mr. Blackwell’s participation in such an assessment could assist the Court in better understanding his conduct in these offences. In the absence of an assessment, the Court may only have the aggravating circumstances of the offen[der] to consider.
[30] I find the reasoning of Madam Justice Smith in Blackwell to be persuasive. I also note that it has been followed in other Canadian jurisdictions (See: R. v. Challes, 77 WCB (2d) 204, R. v. Gibbons, 2009 NUCJ 30, and R. v. J.L., 2009 QCCQ 14013).
[31] My authority to make the order sought is, however, not unlimited. The law is quite clear that before making an order I must be satisfied there is a logical nexus or relevance between the information being sought and the matters under consideration in sentencing.
With regard to this point, Madam Justice Smith explained at paragraph 32 in Blackwell: However, a review of the circumstances in Hunter suggests that evidence required to meet the “logical nexus or relevance” test is not necessarily limited to “bizarre” or extreme conduct by an offender during his or her trial. The comments in Hunter were made in response to the trial judge’s request for certain, very peripheral information to be included in the PSR [pre-sentence report]. The appellate court allowed most of the trial judge’s requests but excluded those requests that were found to be unnecessary or extraneous. Accepting the basis on which the court in Hunter ordered a psychiatric assessment for sentencing purposes, the evidence required to support a “logical nexus or relevance” for such an assessment need not, in my view, rise to the level of Saba-like behaviour at trial. Concerns about the random, unprovoked, inherently dangerous and violent nature of an offender’s actions could, in my view, also meet the criterion for logical nexus or relevance.
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[27] In summary, I conclude that a court has the jurisdiction to order a psychological component to a PSR, however, such an order can only be made if there is a logical nexus or relevance between the information being sought and the matters under consideration in sentencing: Blackwell.