



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:

486.    (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
    appellants 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.

