Pascal's Case — Sexual Assault — Sentenced

Client:   Pascal M., Accused
Complainant:   Pascal's nephew
Charges:   Sexual Assault; Sexual Exploitation; Sexual Interference

Background:   Pascal was being extorted by his nephew. The extortion had been going on for years. The nephew had Pascal over a barrel, so to speak, because Pascal had once touched him inappropriately. Unfortunately, Pascal had compounded the problem in later years by agreeing to have sex for money with the nephew. He had now reached the point, though, of mental exhaustion. His nephew had many times threatened to go to the police, and that threat had held Pascal captive for many years. Pascal had to find a way to stop the extortion and the on-going mental abuse. His solution was to call the police himself. The police attended at Pascal's home. Pascal gave them the history, but he told the police that he didn't want his nephew charged criminally. He just wanted the extortion to stop. The police took his report, and also interviewed the nephew. They charged Pascal with sexual assault, sexual interference, and sexual exploitation. The nephew was never charged with the extortion.

READ THE POLICE REPORT

Goals:   Pascal walked into my office with the weight of the world upon his shoulders. He wanted to quickly bring closure to the matter, and he especially wanted to avoid having a trial. Essentially, he wanted to plead guilty and stay out of jail. I also asked Pascal to keep an open mind to the possibility of fighting the charges if it became apparent that a guilty plea would likely land him in jail. He agreed.

Strategy:   The Crown was not in a forgiving mood when we met to discuss resolving Pascal's matter. At the time, the Ontario Court of Appeal had just released a decision. The decision indicated (to the Crown's office, at least) that jail would be the likely sentence for any person convicted of sexually abusing a minor if that person was in a position of trust. Pascal's case fell into that category. I explained to Pascal that I was not confident of keeping him out of jail if he decided to plead guilty. I asked him to think about having a trial and challenging the reliability of the evidence in Court. The Crown's case was not overwhelming, I explained, and Pascal would not have to testify. I further explained that, given the current state of the law, our best chance of staying out of jail was to fight and win. Pascal agreed. We scheduled the trial.

Results:   On the morning of the trial, it quickly became apparent that the Crown was having some problems securing the attendance of their star witness. (The details are discussed somewhat in the Court transcripts below.) Not knowing if the Crown would, in fact, be able to secure the nephew's attendance, I offered the Crown a bird in the hand. I proposed the following:  (i) that Pascal enter a guilty plea to a simple assault; (ii) that the Crown would not ask for jail; and (iii) that I would be able to ask for a conditional discharge. For reasons well explained by His Honour in the transcripts below, Pascal did receive a conditional discharge. (A "conditional discharge" is a criminal record which purges itself automatically 36 months after being imposed.) Not only did Pascal escape jail and a conviction, but he also escaped receiving a criminal record as a sexual offender.

READ THE GUILTY PLEA TRANSCRIPT
READ THE SENTENCING TRANSCRIPT
READ PASCAL'S TESTIMONIAL