WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Desjardins-Paquette, 2012 ONCA 674
DATE: 20121005
DOCKET: C52063
Feldman, Sharpe and Ducharme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Carl Desjardins-Paquette
Appellant
Anne-Marie McElroy, for the appellant
Catherine Mullaly, for the respondent
Heard: August 21, 2012
On appeal from the sentence imposed on April 8, 2010 by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant was convicted of one count of sexual assault, two counts of breach of recognizance and sentenced to 40 months imprisonment in addition to 16 months pre-trial custody. The sexual assault involved the brutal rape of a 19-year-old victim in her own home and consisted of both forced vaginal intercourse and attempted anal intercourse. One breach of recognizance arose from a different sexual assault complaint of which the appellant was ultimately acquitted.
[2] The appellant, 24 years old at the time of the offence, had no criminal record and a history of serious mental illness. At the outset of trial he discharged his counsel and elected to defend himself. His pre-sentence report indicated that because of his mental illness, there was a significant risk that the appellant would either harm himself or others.
[3] The trial judge carefully reviewed the mitigating and aggravating factors. Given the gravity of the assault and the risk the appellant poses to the community, the trial judge imposed a sentence of 40 months imprisonment in addition to the 16 months pre-trial custody
[4] As it appeared to us at the oral hearing of this appeal that the appellant’s mental illness was a very significant factor, we asked counsel to obtain information from the correctional authorities as to any treatment or progress the appellant has made while in custody. We have now received and reviewed that information. Sadly, the appellant has not done well in prison. He has resisted treatment and appears to have made little if any progress towards rehabilitation and potential reintegration into the community.
[5] An effective sentence of six years for a first offender suffering from a serious mental illness was clearly a significant one. However, given the brutality of the sexual assault and apparent risk the appellant poses to the community, we are not persuaded that the trial judge erred or that there is any ground for appellate intervention.
[6] We recognize that this does not appear to be a case where either rehabilitation or community protection will be achieved by a lengthy period of incarceration without treatment. However, the institutional records indicate that the correctional authorities have tried to provide treatment but without success. In these circumstances, it is not within the power or capacity of this court to solve the problem this offender poses. That must be left to the correctional authorities.
[7] Leave to appeal sentence is granted but the appeal is dismissed.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“E. Ducharme J.A.”