Crown: R. Kenny, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 MR PENNEY: Can you come forward, please, Mr. S.M.? If you could just have a seat or stand right there.
¶ 2 CROWN: I've spoken to my friend Mr. Penney this morning. I believe we're actually at this point in a position where we can propose a resolution in this matter to Your Honour. It's a matter that was set for trial today. Indeed, the complainants are in the body of the Court today. However, after reviewing the matter both with the complainants and with my friend, I believe we are now in a position where we can resolve the matter before Your Honour today. What we are proposing is a plea to counts five, six and seven on the Information.
¶ 3 THE COURT: Madam Clerk — and that would be at this time?
¶ 4 CROWN: That would be at this time, correct.
¶ 5 THE COURT: Mr. Penney, is that agreeable to you?
¶ 6 MR PENNEY: Yes, Your Honour, that is agreeable. I discussed this at length with Mr. S.M. The plea is voluntary, Your Honour. It is informed. I can say from the outset that the Crown's evidence on these three counts is as strong as any case I've seen in my 13 years of practice, and there's been no issue with respect to his guilt on these three counts from the very beginning. And he understands that he's waiving his right to a trial. We're certainly prepared to have a trial today. Mr. S.M. does not want to have a trial, certainly not on these three counts. If the trial had proceeded, Your Honour, it would have proceeded with a plea of guilty on these three counts, and a trial on the other counts. So in that sense it's not a late plea. His plea on these two counts was always going to be guilty.
¶ 7 THE COURT: I understand. Mr. S.M., did you understand what your lawyer said?
¶ 8 CLIENT: Exactly. Yes, I do.
¶ 9 THE COURT: I want to just confirm that you know, as I said very accurately, that if you go ahead and plead guilty, you're going to give up your right to have a trial and not make the Crown prove the case against you, which you do have the right in law to do — understand?
¶ 10 CLIENT: I understand.
¶ 11 THE COURT: May I ensure that you further understand, as again, I'm sure your lawyer would have told you, when it comes time to determining the appropriate sentence or disposition or penalty, whether we do that today or another date, I will be obliged to listen very carefully to what the Crown will recommend and your lawyer and you have the right to address the Court, too, but at the end of the day, only the judge can determine what sentence to impose. Do you understand that?
¶ 12 CLIENT: I understand.
¶ 13 THE COURT: Knowing that, do you wish to go ahead and plea guilty to the three counts?
¶ 14 CLIENT: I do.
¶ 15 THE COURT: Very well. Listen carefully to our Clerk.
¶ 16 CLERK: S.M., on or about the 10th day of May, in the year 2005, in the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging without legal justification or excuse and without colour of right, property, to wit: the automobile of [the complainant], the value of which did not exceed $5,000, contrary to the Criminal Code.
¶ 17 And further, that S.M., on or about the 11th day of May, in the year 2005, at the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging, without legal justification or excuse and without colour of right, property, to wit: the automobile of [the complainant], the value of which did not exceed $5,000, contrary to the Criminal Code.
¶ 18 And further, that S.M., on or about the 16th day of May, in the year 2005, in the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging, without legal justification or excuse and without colour of right, property, to wit: the automobile of [the complainant], the value of which did not exceed $5,000, contrary to the Criminal Code. How does the Crown elect to proceed?
¶ 19 CROWN: Summarily, please.
¶ 20 CLERK: And how do you plead to these three charges, sir, guilty or not guilty?
¶ 21 MR PENNEY: Guilty, Your Honour.
¶ 22 CLERK: Thank you. Please be seated and listen to the facts, sir. Listen carefully though.
¶ 23 CROWN: The facts alleged are as follows, three individuals, one [the complainant], who is the vice president of operations at [the trucking company], as well as [the other complainant], who is the president of [the trucking company], as well as [another complainant], who is the manager of operations with [the trucking company], at — after April the 11th, in the year 2005 up until May the 11th, in the year 2005 — experienced the repeat vandalization of the car tires of the automobiles they were driving, as well as the automobiles that members of their family were driving. This affected five separate individuals, the three I've mentioned, as well as [two women]. Because this occurred on approximately 15 separate dates over the two-month period, the individuals with [the trucking company] hired a private investigator to observe their vehicles and to try and put an end to this matter.
¶ 24 As a result of hiring this private investigation company that goes by the name of P.I. Firm, on May the 10th, in the year 2005, at approximately 4:30 p.m., the complainant, [the complainant], parked his car at the Tim Horton's ... as P.I. Firm staff conducted surveillance on his car. When [the complainant] did this, he entered the store to get a coffee. At that point, the accused before the Court, Mr. S.M., was observed parked in an area of the parking lot, where he was observing the car of [the complainant] He then approached [the complainant]'s car and pulled out a five inch long awl and punctured both tires on the passenger side.
¶ 25 As I said, both passenger side tires were punctured and part of this event was captured on video by the surveillance team. The accused, Mr. S.M., was then observed to hide behind a van and a dumpster until [the complainant] left the area. [The complainant] was notified by P.I. Firm that his tires had been punctured and the cost to replace those tires at that point was, I believe, $90.
¶ 26 On May the 11th, 2005, in the afternoon, the complainant again attended the same Tim Horton's. The accused was parked in a spot where, again, he could observe this parking lot. He once again punctured one of the tires with the same awl. This entire event was recorded on video. The tire was replaced at the cost of $45.
¶ 27 Finally, on May the 16th, in the afternoon, [the complainant] again attended the Tim Horton's on S*** Street. The accused, Mr. S.M., was again parked in a location where he was observing this area. He was oblivious to several P.I. Firm investigators, as well as two plain clothes members of the Toronto Police Service. When [the complainant] parked outside of the Tim Horton's, the accused, Mr. S.M., exited his vehicle and punctured a tire.
¶ 28 The accused was arrested by police as he was returning to his own vehicle. He had the awl that was seen on all three days in his left pocket. This whole event was again recorded on video.
¶ 29 In the end, the total amount to replace the tires on the three occasions was $524.17.
¶ 30 The accused was read his rights, he was transported to 23 Division for further investigation. He was charged accordingly and held for a show-cause hearing. And I can inform the Court there have been no so such attacks since this ended — or since this arrest. Those are the facts alleged by the Crown.
¶ 31 THE COURT: Thank you. Mr. Penney, are the facts substantially accurate?
¶ 32 MR PENNEY: Yes, Your Honour. Those facts have been reviewed in some detail with Mr. S.M., Your Honour. The facts are admitted, Your Honour, subject to the qualification that Mr. S.M. had no knowledge or participation in anything that occurred with respect to what was going on in those other people's homes or at their addresses. He does, of course, admit to the conduct which has been admitted to with respect to the May 10th count, the May 11th count, and the May 16th count.
¶ 33 THE COURT: Thank you. Subject to that, there will be findings of guilt. Mr. Kenny, Mr. Penney, did you wish to proceed to sentence then?
¶ 34 CROWN: I believe on behalf of the Crown, the Crown is ready to proceed on sentence today.
¶ 35 THE COURT: Yes.
¶ 36 MR PENNEY: I'm ready to proceed, as well, Your Honour. I do have two detailed reports from a psychotherapist that Mr. S.M. has been seeing since shortly after his arrest. He had 18 sessions since May 24th. It's a circumstance where Your Honour might want a pre-sentence report, but it would be my submission that, once Your Honour sees these two reports, Your Honour will have more than a sufficient basis to impose an appropriate sentence today.
¶ 37 THE COURT: All right, thank you. Why don't we go ahead and see where we are then. Go ahead.
¶ 38 CROWN: Would Your Honour like to take the morning break to see those reports or would you like me to proceed at this time?
¶ 39 THE COURT: May I ask that the two of you begin your submissions and then perhaps over the break I'll have an opportunity to look at them. It may be that you'll cover some of the material in the course of your comments in any event.
[At this time, submissions were made by counsel. The Crown asked for a suspended sentence. The Defence asked for a conditional discharge.]
¶ 40 THE COURT: Mr. S.M., you have entered pleas of guilty to three counts of mischief. Property offences are sometimes thought to be in a different category of offences, because they do not involve often, as in your case, a direct confrontation between a victim and the individual responsible, like yourself. But vandalism can be a very mean-spirited crime, which your offences, I think, really were. They can bring a real sense of fear because of the unknown. Anyone who has their possessions disturbed in the course say of a home entry, feels terribly violated to have their own personal items of property looked at by a stranger and although no one is suggesting that that is what you did here, I do want you to understand that from the point of the victims, they very understandably would feel very concerned at the fear of the unknown, that someone would target them, would destroy their property and give them a real sense of unease. So crimes like vandalism carry their own special type of stigma.
¶ 41 Your acceptance of responsibility for your conduct and actions goes a long measure to bringing a peace of mind to these victims. Your reimbursing them financially is also an important aspect of the sentence that I am about to impose. It is most important to convey to you that on account of the Order that I am about to impose, as well, that your continued conduct will be subject to a Court Order, that is monitoring by the Court to both protect the victims over a further period of time — I am going to place you on probation for a two year period — but also to assist you so that you can continue making the good progress that you have made.
¶ 42 I accept that there are a number of very aggravating factors here, which I have referred to, but one must also be mindful that you are a first offender, now 44 years old. You are entitled to be treated as a first offender who has accepted responsibility for your actions. In measuring your blameworthiness, the Court also must take into account that you have embarked on conduct to assist you in gaining insights for your unlawful conduct. Your having attended 18 counselling sessions will go a long way to ensuring that there is no repetition of this behaviour, which I have noted from Dr. Quek's report was very much brought on from conditions of depression and anxiety that you have suffered.
¶ 43 You have been subject to a restrictive bail. You have spent two days of pre-trial custody. Importantly, you have not re-offended since being subject to a Court Order.
¶ 44 Balancing all of these factors into account, I have concluded that it would not be contrary to your interest to impose a discharge. Having regard to the public interest, I am confident that I can impose a sentence that will take into account aspects of deterrence and that I should permit you to be sentenced as a first offender with 44 years of good credit to your name and to allow you to receive a discharge from the Court.
¶ 45 The sentence that I am going to impose then will be a conditional discharge. I am going to place you on probation for a two-year period, as I have indicated. That is a lengthier period for a first offender, but it will provide protection to the victims here, as well as giving you continued supervision. I have already ordered forfeiture of the weapon. Why don't you take a seat next to your lawyer while I indicate to you what the terms of the probation Order are and then I wish to review them with you and your lawyer and Mr. Kenny, to ensure that the terms are appropriate.
¶ 46 I have already indicated the length of probation being two years. You need to understand, as I am sure your lawyer would have told you, that probation being a binding Order of the Court, you must abide by each and every term that I impose. Failing to do so would render you liable to the Criminal Code charge of breach of probation, punishable by a fine and/or period of jail.
¶ 47 Mr. S.M., all probation Orders carry three mandatory terms, that you keep the peace and be of good behaviour; attend Court when required; notify the Court in advance of any change of name or address, employment or occupation.
¶ 48 The following terms are additional, but equally binding terms, the only difference being that you, the probation officer, and the Crown Attorney's office have the right to seek a variation of any of these additional but binding terms over the next two-year period. Subject of our reviewing of them together, I think they should include the following.
¶ 49 You will report within two working days of today to your probation officer and thereafter whenever required to do so.
¶ 50 You will have no contact directly or indirectly with any of the five named individuals, the three individuals from your former place of work, along with [two more persons], I believe. We have the proper spelling of their names. Meaning that in relation to these five people, who include [all complainants], neither you nor anyone on your behalf can have any contact with them. Do you understand that?
¶ 51 CLIENT: Yes.
¶ 52 THE COURT: That is a very important term of the probation period. I want you to live at an address approved by your probation officer.
¶ 53 Continue to seek and maintain gainful employment, as clearly you are able to do.
¶ 54 In terms of the attendance terms, I am going to deal with them in the following way. You are not to attend at all any address of the five named individuals, where they would either live, work, attend school or otherwise be to your knowledge. So no attendance at any of the five individuals by virtue of any of the addresses they would be.
¶ 55 I am going to also impose these terms, that you not attend within a 100 metres radius of [the trucking company].
¶ 56 I am going to simply indicate you are not to attend at all Tim Horton's property on S*** Street. What I am intending to do is to indicate that should it be in the course of your employment that you happen to drive by, but certainly you are not to attend on that property at all. You are not to stop there and if you do find yourself driving by that portion of S*** Street, you may do so. It may well be advisable and it would certainly be my suggestion to you, that to the extent that you can, given that you cannot go within 100 metres of 101 S*** Street, that you simply stay off that block. But I do not want to impose an Order that will result in an unintended way with your breaching it.
¶ 57 You will not possess any weapons as defined by the Criminal Code while on probation.
¶ 58 Finally, the counselling that you have undertaken with Dr. Quek has obviously been very helpful, sir.
¶ 59 I do think that it would be helpful for you to be assessed in area of depression and anxiety or any other stress management area. In the event that your probation officer recommends to you that you undertake any course of counselling, I want you to be agreeable to doing so, through your family, through your family doctor, through a referral from Dr. Quek. It is certainly open to you to continue with any course of counselling, quite apart from my Order and I think quite clearly you have benefited from that.
¶ 60 Mr. Kenny, I think I have gone through the terms that were recommended to me, but may I begin with you to see if there is anything you would like to additionally recommend?
¶ 61 CROWN: No, you've covered the Crown's terms. The only thing I'd be asking is if the pre-trial custody can be marked on the Information, please. Yes, I thought I had indicated that, but if not, that is to be noted, along with the forfeiture of the awl. Thank you.
¶ 62 MR PENNEY: Yes. Your Honour, just in terms of the wording of the term for the counselling ...
¶ 63 THE COURT: Yes.
¶ 64 MR PENNEY: ... Your Honour is imposing, take such counselling as recommended by the probation officer?
¶ 65 THE COURT: As may be recommended.
¶ 66 MR PENNEY: Yeah, that's — I'm content with that. I just didn't want Dr. Quek named. I'd ask Your Honour that we delete the condition that restitution be made. I've given the undertaking. I've run into all sorts of problems when that's part of the probation and I have to get back to the probation officer. Either I'm serious about my undertaking or I'm not. I am very serious. It will be made. The letter will be sent in 48 hours. I actually have the cash on me today. I offered to pay cash. My friend prefers me to send a cheque out of my trust account. I'm very happy to that. I would just like the probation Order to be as clean as possible.
¶ 67 THE COURT: Mr. Kenny, any comments about that?
¶ 68 CROWN: Perhaps if I could just speak to the complainants, to see whether or not cash is an issue or not and then ...
¶ 69 THE COURT: All right.
¶ 70 CROWN: They will take cash on today's date and we can deal with it all on that basis.
¶ 71 THE COURT: Great.
