Crown: M. DeVos, Office of the Crown Attorney, Guelph
Defence: Craig Penney, Toronto Defence Attorney, Guelph
¶ 1 THE COURT: Mr. P.C., you are charged on the 24th of October, 2004, at Guelph, you committed mischief by wilfully damaging without legal justification or excuse and without colour of right, an automobile of [the complainant], the value of which did not exceed five thousand dollars. How do you wish to plead with this charge?
¶ 2 CLIENT: Guilty, Your Honour.
¶ 3 THE COURT: All right, go ahead, please.
¶ 4 CROWN: Just by way of some background information — [the complainant] and Mr. P.C. were in a common-law relationship for about six years. They separated in approximately 2002. There are no children of that relationship.
¶ 5 It is also noted here that there are some outstanding charges involving Mr. P.C. in Halton Region at the time of this incident, concerning Mr. P.C. and [the complainant. She] tells police that she is concerned about Mr. P.C. and her safety with respect to ongoing contact with Mr. P.C.
¶ 6 On this particular occasion it was Sunday, October 24th. [The complainant] who resides in Milton was in Guelph for business reasons, I believe, or in any event was in Guelph and had parked her company vehicle at the [mall] in Guelph. She parked it there at around 1:15 p.m.
¶ 7 Mr. P.C., who at the time resided in Guelph, was observed by an independent civilian witness scratching [the complainant]'s vehicle, a 2001 Oldsmobile Alero ... The civilian observed Mr. P.C. scratching along the passenger side, the rear doors, the hood. The witness observed Mr. P.C. walking away from the vehicle and get into a black Honda Civic, licence marker ***, which was registered to Mr. P.C.
¶ 8 The civilian followed Mr. P.C.'s vehicle and at the same time called 911. He followed the vehicle to a point where police intercepted the two vehicles which was on Garden Street just south of Stoneycreek Road West. Police did a search of Mr. P.C.'s vehicle and found a silver metal object about five inches long with a pointed tip which they had seized at the time of the arrest, and Mr. P.C. was charged with the mischief offence.
¶ 9 It is also noted that he was on bail at the time from Milton and there was also a charge with respect to the bail. Those are the facts that the Crown is relying on with respect to this plea.
¶ 10 With respect to damages, Mr. Penney and I have had discussions about that. It is my information that this vehicle had other damage to it from other issues. The vehicle was repaired and the total repairs done to that vehicle were about thirty-four hundred dollars. The problem we faced was trying to apportion that to the particular mischief that is the subject of this plea.
¶ 11 You'll hear that we have an agreement for a monetary amount of $1000 that Mr. Penney will undertake to forward to the insurance company of this motor vehicle. I am told that they, in fact, covered the cost of repairing the vehicle — both these particular issues and other issues that are the subject of the repair invoice.
¶ 12 THE COURT: Mr. Penney, do you have any comment on those facts?
¶ 13 MR PENNEY: Those facts, Your Honour, have been reviewed with Mr. P.C. on a number of occasions and those facts are admitted as being correct. I'd ask Your Honour to find him guilty, please, on the charge as read.
¶ 14 THE COURT: All right. There will be a finding of guilty. The other two counts on the Information I take it the crown wants withdrawn?
¶ 15 CROWN: That's correct, Your Honour.
¶ 16 THE COURT: All right, they will be endorsed as requested. Now, what about a record?
¶ 17 CROWN: There are no prior convictions for Mr. P.C.
¶ 18 THE COURT: And you want to go ahead with the sentencing hearing today?
¶ 19 MR PENNEY: Yes, we've been preparing, Your Honour for the sentencing hearing on this matter for about nine months now, considering that there was never any issue as to his guilt with respect to this count. I'm asking Your Honour to give him credit, frankly, for an early guilty plea because this is something that could have been done in September. I am not criticizing my friend in any way because certain events have unfolded in the past six months that have caused my friend to take a different position than the Crown took at the judicial pre-trial. But I do want Your Honour to know that this is not somebody who is pleading guilty at the last minute — this is something that should have been pled guilty to earlier. He is admitting now what he had admitted to all along.
¶ 20 I have, Your Honour, a great deal of material to put before you on sentencing, and subject to what Your Honour has to say, I'm simply going to provide it to Your Honour. It was provided to my friend in advance. I'm going to ask that it collectively be marked as Exhibit "A."
¶ 21 THE COURT: All right, on sentencing: Exhibit Number "A," case law brief, produced and marked.
¶ 22 MR PENNEY: It is quite detailed, Your Honour, and in depth, and includes at least four psychotherapy reports, a detailed psychiatric report from a Dr. Bloom, and numerous other letters and affidavits from the bail review. I also have two witnesses that I'd like to call, although I suspect after Your Honour has an opportunity to read what is in the materials because they are quite detailed and thorough that Your Honour may not need to hear from them.
¶ 23 So I don't know if Your Honour wants some time to review that. I'm going to be making brief references to some case law as well. I'll hand that to the Clerk now but I don't think Your Honour needs to review that in advance. I'll make brief reference to it in my submission.
¶ 24 I'm in Your Honour's hands — if you want me to proceed? I suspect it might be better if Your Honour reviews that first rather than having me trying to summarize what's in there. Once Your Honour has an opportunity I'll be ...
¶ 25 THE COURT: Well, you're the one that's done all the work on this, and if you think I should read it before I decide whether the other witnesses, the witnesses are necessary ... and in any event if I don't read it now I'll probably be listening in a vacuum.
¶ 26 MR PENNEY: Yes, I would prefer Your Honour to read it. It would certainly shorten my submissions and it would put in better context the evidence of the two witnesses I'm going to call, if Your Honour needs to hear from them at all, because I'll lead them through obviously what's in the materials already and just give Your Honour an update. So if Your Honour is content to do that, I'd please ask Your Honour to do that.
¶ 27 THE COURT: Okay. Well, I'll take 20 minutes and see if I can get through this in that period of time.
[On proceedings resuming:]
¶ 28 THE COURT: The Crown should be commended for the reasonableness of the position he is taking having regard to the steps that this person has taken. Mr. Penney is to be commended for the materials provided to the Court. I don't think in my 25 years as a judge and prior to that, 14 years in criminal practice, that I've seen better materials than this. I've seen some as good, but not any better and they are of great assistance to me to arrive at the conclusion as to what should be done.
¶ 29 I have no problem awarding this man a discharge, conditional upon his completing a period of probation for all of those reasons, which I'm not going to repeat, but a few submitted by Mr. Penney. The ones that I do wish to emphasize are, firstly, that he has shown by 11 months of pristine conduct in the community since he was released by Mr. Justice Murray, that he is capable of obeying a Court order with respect to [the complainant] and her daughter, and that conduct in my view goes to a great length to, I think, after the passage of time since this occurred, to assuage any fears as best as the Court can do it that might be with [the complainant] with respect to a recurrence of this sort of activity.
¶ 30 Secondly, as indicated by his counsel, this man, in every other respect of his life has been a model citizen and the break up of this relationship has caused an aberration in his conduct prior to all of this happening. Those are the two really good reasons why I think that he should receive a discharge, along with the other reasons submitted by the defence, Mr. Penney.
¶ 31 I appreciate that there still may very well be those feelings of apprehension, as set out in her victim impact statement, but that is something over which the Court has no control except through an order of non association and non communication.
¶ 32 If the general public were aware of all of the aspects of the facts concerning this person's situation, that is Mr. P.C.'s situation, I doubt very much if there would be very many people who would think it would be contrary to their general interest, and that is the main reason, that's the most important aspect of considering whether a discharge is appropriate or not.
¶ 33 So for all those reasons, as I earlier indicated, there will be a discharge. It will be conditional upon his completing 18 months of probation, that's six months longer than the usual average probation order, to give [the complainant] some form of comfort for longer than the usual period of time.
¶ 34 In addition to observing the statutory conditions of a probation order as set out in the Criminal Code, which includes keeping the peace and being of good behaviour, he will keep the peace and be of good behaviour specifically with respect to [the complainant] and her daughter N.S.. He will remain away from them, their places of residence, and employment, and school, and not communicate directly or indirectly with them.
¶ 35 He will report to and be under the supervision of a probation officer for so long as the probation officer deems it necessary. That will obviate the necessity of Mr. P.C. having to come back to Court if the probation officer feels that reporting is no longer a necessary part of the probation order.
¶ 36 He will ... I did say "take such counselling," did I not?
¶ 37 CROWN: No.
¶ 38 THE COURT: I didn't? You will take such counselling as in the opinion of your probation officer is necessary, including continuation of the counselling presently being undertaken.
¶ 39 Now, is there anything I have neglected to address that either of you have asked me to?
¶ 40 CROWN: No, Your Honour.
¶ 41 THE COURT: Would you stand up, please, sir. If you breach your probation you can be charged with that offence. You could also be brought back before me for sentencing and, in addition to those two things occurring, if you breach your probation you could be brought back before the Court on notice to you by the Crown Attorney and the discharge awarded to you could be revoked and you would have a criminal conviction registered against your record. If you or the Crown want to change the terms of your probation order, either of you can do so on notice to the other.
