



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. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this subpara.
    comes into force, if the conduct alleged involves a violation of the
    complainants sexual integrity and that conduct would be an offence referred to
    in subpara. (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in para. (a).

(2)     In proceedings
    in respect of the offences referred to in para. (1)(a) or (b), the presiding
    judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)     For greater certainty,
    an order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pascal, 2020 ONCA 501

DATE: 20200806

DOCKET: C53388

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stewart Pascal

Appellant

Stewart Pascal, appearing via
    videoconference

James Lockyer and Catriona Verner, for
    the appellant

Craig Harper, for the respondent

Heard: September 11-12, 2019

On appeal from the conviction entered on
    January 8, 2009 and the sentence imposed on June 11, 2010 by Justice Terrence
    A. Platana of the Superior Court of Justice, with reasons reported
at
2010 ONSC 3187
.

ADDENDUM


[1]

After a trial before a judge of the Superior
    Court of Justice sitting without a jury, the appellant was convicted of sexual
    assault causing bodily harm. He also pleaded guilty to two counts of failure to
    comply with an undertaking. The Crown instituted dangerous offender
    proceedings. The trial judge found the appellant to be a dangerous offender and
    imposed an indeterminate sentence.

[2]

The appellant appealed his conviction of sexual
    assault causing bodily harm. He also appealed the decision that he was a
    dangerous offender and the sentence of detention in a penitentiary for an
    indeterminate period imposed as a result of that finding. He did not appeal his
    convictions of failure to comply with an undertaking.

[3]

On May 6, 2020, the court allowed the
    appellant's conviction appeal and ordered a new trial.

[4]

As a result of our decision to quash the
    conviction and order a new trial on the count of sexual assault causing bodily
    harm, there remained no conviction of a serious personal injury offence upon
    which the DO (dangerous offender) designation could be grounded. In our view,
    setting aside the conviction of the predicate offence rendered it unnecessary
    for us to consider the DO finding and sentence. Thus, we did not set aside that
    finding or that sentence.

[5]

The trial judge grounded his finding that the
    appellant was a DO and imposed the sentence of detention in a penitentiary for
    an indeterminate period not only on the basis of the conviction of sexual
    assault causing bodily harm, but also on the basis of the convictions of
    failure to comply with an undertaking.

[6]

Failure to comply with an undertaking is not a
    serious personal injury offence. It cannot serve as a predicate offence for a
    finding that an accused is a DO. Nor can it be a lawful basis upon which to
    impose an indeterminate sentence. To the extent the sentence imposed was made
    applicable to the convictions of failure to comply with an undertaking, the
    sentence was unlawful. Discrete sentences should have been imposed for the
    convictions on those counts to be served concurrently with the indeterminate
    sentence.

[7]

Counsel on both sides ask that we rectify the
    situation by setting aside the dangerous offender finding on the counts of
    failure to comply with an undertaking and substitute a sentence of 30 days on
    each count, the sentences to be served concurrently with each other and with
    any sentence the appellant may now be serving.

[8]

In our view, when we quashed the conviction of
    sexual assault causing bodily harm, the DO finding and sentence imposed as a
    consequence dissolved. The convictions of failure to comply with an undertaking
    remained, as did the overarching appeal from sentence. The existence of that
    appeal provides us with the necessary authority to implement the agreement of
    the parties.

[9]

For these reasons, we set aside the DO finding
    and sentence of indeterminate detention imposed as a result. The indeterminate
    sentence was also imposed on the convictions of failure to comply with an
    undertaking. That sentence was not lawful. We substitute a sentence of
    imprisonment for 30 days on each count of failure to comply with an
    undertaking. The sentences are to be served concurrently with one another and
    with any sentence to which the appellant is now subject.

David Watt J.A.

B.W. Miller J.A.

Fairburn J.A.


