Pascal's Case — Sexual Assault — Sentenced

Between
Her Majesty the Queen, and Pascal M.

[2003] O.J. No. 3898

Ontario Court of Justice
Toronto , Ontario
Bigelow J.

Guilty Plea:  24 June 2003
(73 paras.)

¶ 1     MR. PARIS:  I'm here on the P.M. matter.

¶ 2     THE COURT:   Yes.

¶ 3     MR. PARIS:  Your Honour, what's going to happen today, subject of course to Your Honour's opinion on this, but we're going to enter the plea but had contact with the complainant in the interim and he wishes to file a victim impact statement.

¶ 4     THE COURT:  All right.

¶ 5     MR. PARIS:  If Your Honour is available an the 24th of July we'd ask to return at that time. That's a Thursday.

¶ 6     THE COURT:  Just give me a moment.

¶ 7     MR. PARIS:  Certainly.

¶ 8     THE COURT:  Actually I'm not available. I have a medical appointment and indications afterwards is that one is not in good shape, I understand.

¶ 9     MR. PENNEY:  Your Honour, I'm hoping to move it back as opposed to forward, so if my friend can suggest a date.

¶ 10     THE COURT:  The 22nd would be fine.

¶ 11     MR. PENNEY:  The 22nd I can do.

¶ 12     MR. PARIS:  I have a few matters in 124 court but if I'm given an indulgence to come in and handle the plea then I can do it.

¶ 13     THE COURT:  Sure. I can work around that. That shouldn't be any problem.

¶ 14     MR. PARIS:  Thank you.

¶ 15     MR. PENNEY:  Yes, Your Honour, we'd like the matter resolved today but I don't think there is any principle basis upon which I can oppose an application for a victim impact statement. So, we're still content that he be arraigned today.

¶ 16     THE COURT:  All right.

¶ 17     MR. PENNEY:  And he enter the plea and a finding of guilt ...

¶ 18     THE COURT:  P.M., come forward, please.

¶ 19     CLERK OF THE COURT:  Which count?

¶ 20     MR. PENNEY:  If he could be arraigned, please ...

¶ 21     MR. PARIS:  On count one, please, the sexual assault.

¶ 22     CLERK OF THE COURT:  P.M., you, sometime between and including the first day of January in the year 1991 and the 31st day of December in the year 1994, in the Municipality of Metropolitan Toronto, in the Toronto Region, did commit a sexual assault on S.W.B., contrary to the Criminal Code.

¶ 23     How does the Crown elect?

¶ 24     MR. PARIS:  I'll be proceeding summarily, Your Honour, with my friend's ...

¶ 25     MR. PENNEY:  I'm consenting, Your Honour, to the jurisdiction of the Court. The matter is more than six months old.

¶ 26     THE COURT:  All right. Thank you.

¶ 27     CLERK OF THE COURT:  How do you plead to the charge, guilty or not guilty?

¶ 28     MR. PENNEY:  Mr. - on behalf of P.M., Your Honour, he would like to enter a plea of not guilty to the charge of sexual assault and guilty to the charge of assault, with the Crown's consent under s. 606(4).

¶ 29     MR. PARIS:  Yes, that's with my consent.

¶ 30     THE COURT:  All right. Mr. Paris, are you seeking, given the nature of the charge, an order banning publication?

¶ 31     MR. PARIS:  Yes, please.

¶ 32     THE COURT:  Mr. Penney, any issue about that?

¶ 33     MR. PENNEY:  No issue, Your Honour.

¶ 34     THE COURT:  All right. There will be an order banning publication of the complainant's name or any material which might identify the complainant.

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

¶ 36     THE COURT:  Yes. The facts?

¶ 37     MR. PARIS:  Yes. Wednesday -- between Wednesday January first, 1991, and Sunday, December 31st, 1994, the accused, P.M., was staying at the home of the complainant, Mr. S.W.B. The accused is the victim's uncle.

¶ 38     The accused was sleeping in the victim's bed. The victim was sleeping on the floor beside him. This occurred when the victim was approximately 12 years old and the victim remembers it was Christmas Eve. During the night the accused placed his hand on the victim's penis over his pants. The victim woke up and the accused stopped.

¶ 39     Shortly after this incident the accused (sic) permanently left the family home. He did not disclose the incident to his mother or step-father because the accused was not -- was the favourite brother of his mother.

¶ 40     On the 19th of February, 2002, the accused called police to report he was being extorted by the victim. The accused disclosed to the attending police officers that he had been assaulted -- or he had assaulted the victim approximately eight years previously and that he was being extorted by the victim.

¶ 41     He then added that he was also paying the victim for sex in the last year. The victim had left the apartment prior to the police arrival. Police officers took a report. Attempts were made to locate the victim. On March 12th, 2002, the victim was located in Waterloo.

¶ 42     The victim refused the opportunity to tell his story on video but did relate the incident to Detective Sergeant Simpson of the Waterloo Regional Police.

¶ 43     Based on this information the accused was arrested on the 15th of March, 2002.

¶ 44     THE COURT:  Mr. Penney?

¶ 45     MR. PENNEY:  Yes, Your Honour, those facts have been reviewed extensively with ... P.M. can admit them as being correct.

¶ 46     P.M., would you please indicate to His Honour whether those facts are correct or not.

¶ 47     THE ACCUSED:  Correct, sir.

¶ 48     THE COURT:  All right. Thank you. There is a finding of guilt on the count of simple assault.

¶ 49     MR. PARIS:  Your Honour, just before we put this matter over for the victim impact statement, I'll just put, very quickly, on the record as to why the Crown would accept the plea to this in the circumstances.

¶ 50     I think I indicated in the judicial pre-trial there has been contact over the last few days with the complainant in an attempt to get him to attend to testify at a trial. While there is a statement by the accused, which was the starting point for all of this, there are some problems with that statement that would still require the accused attend.

¶ 51     In light of that, we have made very— we made great efforts in attempting to get this gentleman to come down from Kitchener. He has refused to so, however today he did contact the office, indicating that he now did wish to come down.

¶ 52     After a lengthy conversation with him, the officer in charge explaining to him the circumstances of the plea, he indicated that he wanted the opportunity to present a victim impact statement.

¶ 53     So, while the Crown at first was opposed to a plea on the following facts, I think the circumstances of the case made it such that we felt that this was the most appropriate way to proceed. So, that's why the Crown is proceeding and agreeing to the plea to the lesser charge of assault and to the facts in this case.

¶ 54     THE COURT:  All right. Mr. Penney, at the judicial pre-trial, or just after the pre-trial was provided with a report dated the fourth of June, 2003, from a Dr. Chisvin. I gather you -- I frankly haven't had an opportunity to read it as of yet. I gather you wish that filed as an exhibit?

¶ 55     MR. PENNEY:  Yes, unless Your Honour wants to it with you until the 21st (sic), I would ask it be marked as an exhibit, but I'm content that Your Honour keep it in your own files so you can review it, rather than have it follow the information. It's up to Your Honour.

¶ 56     THE COURT:  Frankly, it's better that someone keep it.

¶ 57     MR. PENNEY:  We'll know where it is.

¶ 58     THE COURT:  We will know where it is.

¶ 59     MR. PENNEY:  In that case then, Your Honour, I'd ask that you find P.M. guilty, I don't think you've done that yet.

¶ 60     THE COURT:  I have done that.

¶ 61     MR. PENNEY:  Oh, I'm sorry. Okay, would you mark that, please, Exhibit one on the sentencing.

¶ 62     THE COURT:  All right.

¶ 63     MR. PENNEY:  And I'd ask additionally, Your Honour, because of the sensitive nature of the material in the report that it be put in an envelope and sealed and not to be opened except by judicial order because exhibits as Your Honour knows are public documents and I'd prefer not to have this readily available to everybody by just simply paying a dollar per page.

¶ 64     THE COURT:  Mr. Paris?

¶ 65     MR. PARIS:  I'm not opposed to that in the circumstances, Your Honour. I have read the report in full and I completely understand my friend's concerns in the circumstances.

¶ 66     THE COURT:  All right. Exhibit One will be sealed and there will be access to no one, save and except for the parties, subject to an order from myself or another justice.

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

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

¶ 69     MR. PENNEY:  And the return Court is?

¶ 70     MR. PARIS:  It's the 22nd, correct?

¶ 71     THE COURT:  Yes. I will make it July 22nd, 10:00 a.m., 112 court, to be traversed in front of me. I understand, Mr. Paris, you have other commitments and will be juggling so when you get to it, you get to it.

¶ 72     MR. PARIS:  Thank you, very much, Your Honour.

¶ 73     MR. PENNEY:  Thank you so much, Your Honour.

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