Pascal's Case — Sexual Assault — Sentenced

Between
Her Majesty the Queen, and Pascal M.

[2003] O.J. No. 3899

Ontario Court of Justice
Toronto, Ontario
Bigelow J.

Oral judgment:  22 July 2003
(20 paras.)

BIGELOW J.:  — I think this case can be fairly described as an extremely unusual set of circumstances. I do not think that the Crown would take issue that if it had not been for Mr. P.M. feelings of guilt and certain inappropriate actions by the complainant, this matter would have never come to light. Charges never would have been laid.

¶ 2 This is also a matter where I think it is fair to comment that the complainant has certainly not been of particular assistance to the Crown in the prosecution of the matter. As counsel are certainly aware, I was advised at the judicial pre-trial of the circumstances surrounding the crown application for an adjournment of the trial date due to the complaint's not attending for the trial. I also now have a situation before me where, despite adjourning the matter for the specific purpose of allowing the complainant to file a Victim Impact Statement, he has chosen, as is his right, to not provide that information which would have been of assistance, obviously to the Crown and the court.

¶ 3 I now have before me a gentleman who many years ago committed a simple assault on a boy who has outside of that incident, based on the information before me, been a contributing member of the community; still is a contributing member of the community; has suffered significant consequences as a result of the commission of the offence; has also suffered from a difficult childhood himself, including significant abuse that he was subject to. Based on the report from Dr. Chisvin before the court, Mr. P.M. has done, certainly since these charges were laid, everything that he possibly could to attempt to deal with the issues arising from his own childhood and from his involvement in the particular offence before the court. I have no difficulty at all coming to the conclusion that I need not place any weight whatsoever on specific deterrence.

¶ 4 I do have to consider both general deterrence and denunciation. I do have to take into account that the assault, and I emphasize the simple assault, that took place in this case was on a boy who was at least arguably in somewhat of a position of trust or that Mr. P.M. was in somewhat a position of trust with and those are certainly concerns. It is rare when allegations of breach of trust arise where the courts are prepared to consider discharges. However, I am satisfied in this particular, very unusual set of circumstances that it would not be contrary to the public interest to grant a conditional discharge.

¶ 5 I am going to grant a conditional discharge and place Mr. P.M. on probation for a period of twelve months. The conditions of the probation, in addition to the statutory terms, will be explained when he signs the order. He will report to a probation officer today, thereafter as required. He will continue counselling with Dr. Chisvin or his designate at times and places as directed by Dr. Chisvin or his designate. He will sign a Form 14 to allow his probation officer to monitor compliance with the previous condition. He will have no contact or communication, direct or indirect, with the complainant.

¶ 6 Mr. Penney, is there any particular family member under the age of 16 that Mr. P.M. has regular contact with?

¶ 7 MR. PENNEY:  No. He's indicating no, Your Honour.

¶ 8 THE COURT:  I am considering the comments from Dr. Chisvin contained in his report, in particular the bottom of page three and the top of page four. However, in the circumstances I am going to impose a condition that he not be in the presence of children under the age of 16 years unless in the company of another adult of at least 21 years; not to have in his possession any weapons as defined in the Criminal Code.

¶ 9 Is there any reason why he would require a Firearm Acquisition certificate, Mr. Penney?

¶ 10 MR. PENNEY:  No, Your Honour.

¶ 11 THE COURT:  All right, not have in his possession or apply for a Firearm Acquisition Certificate. Now, with respect to the issue of the request for a DNA sample, as I understand it, this is a secondary offence which would place the onus on the Crown, satisfying the court that it was appropriate to make the order. Obviously the requiring of an individual to provide a DNA sample is an extreme invasion of an individuals right to privacy. The courts, in appropriate circumstances, do have the authority to make that invasion.

¶ 12 However, each case has to be looked at carefully. In the particular circumstances here, where there is no prior criminal record of any kind, the offence itself is some ten years old, there has been no suggestion before the court of anything by way of a continuation or further types of offences, I am of the view that it is not appropriate in the circumstances to make that order.

¶ 13 All right, thank you.

¶ 14 MR. PARIS:  In case it hasn't been stated already, I'm withdrawing the other charges.

¶ 15 THE COURT:  All right, I'm not sure if that was done or not, but in any event if the other charges weren't withdrawn, they are now withdrawn.

¶ 16 CLERK OF THE COURT:  The victim fine surcharge?

¶ 17 THE COURT:  That should apply.

¶ 18 MR. PARIS:  Thank you, Your Honour.

¶ 19 MR. PENNEY:  Thank you, Your Honour.

¶ 20 THE ACCUSED:  Thank you, Your Honour.

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