Crown: L. Collins, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Toronto Domestic Lawyer, Ontario Criminal Defence
¶ 1 THE COURT: I don't know if it has been said specifically but there is no criminal record here?
¶ 2 CROWN: No criminal record; no, Your Honour.
¶ 3 MR PENNEY: There is no criminal record, Your Honour.
¶ 4 THE COURT: There is the Peace Bond but that was ...
¶ 5 CROWN: Yes, from 2006, yes.
¶ 6 THE COURT: The aggravating factors here are the offence itself. The offence that he has plead to is making repeated phone calls with intent to harass the complainant but more than that happened here. There was also that e-mail which is reprehensible. Exhibit 1 is a copy of the e-mail. It is part of the record. As I say, it's reprehensible.
¶ 7 There is no record here but there was a prior occurrence which resulted in a Peace Bond — some indication of the accused's past conduct. In mitigation, I take into consideration that the accused at this stage has entered a plea of guilty.
¶ 8 It is the trial date but it is a guilty plea and that is a mitigating factor. Also mitigating is the accused indication of remorse today in Court.
¶ 9 I think it's of importance that Exhibit #2, the letter from Dr. Quek indicates that the accused has been dealing with this for some time. That is, as defence counsel indicates, it wasn't a last minute effort to put together a file to present to a Court. It's something that the accused has been working with since ... well it indicates here that he presented himself for counselling September 28th, 2008, so it's been over a year and he has done substantial counselling with Dr. Quek; and the doctor summarizes and recommends that the accused has acknowledged his behaviour towards the complainant and that it's inappropriate and that he is now dealing with his negative thought patterns.
¶ 10 He requires supportive counselling to deal with those issues and his connection with a supportive christian organization has been a positive influence, but he needs personal counselling to deal with issues of anger and moodiness.
¶ 11 I take into consideration the negative impact and effect on the complainant, Exhibit 3, where this has been devastating for her. Again I am going back to Exhibit 1 which is the e-mail letter. It describes some of the photographs that were attached and I can see why the effect has been what it has been on the complainant.
¶ 12 The complainant understands the proceeding today and feels some satisfaction from the outcome of it. The accused has taken responsibility for this. She also feels some satisfaction from the proposed conditions.
¶ 13 I also take into consideration that the accused has spent five days in pre-trial custody. This is someone with no criminal record. I also take into consideration the fact that he was on a very strict bail for a year — something almost tantamount to a house arrest. There were some exceptions but it's as if he has served at least, in part, some form of a conditional sentence.
¶ 14 I also take into consideration as I have been told by both counsel that the Crown may have had difficulty in proving it's case and that it would have been a difficult situation for the complainant to deal with it in Court. Now she doesn't have to. The accused has accepted responsibility.
¶ 15 The offence here could have ended up with a jail term. There is a joint submission for a conditional discharge. Given the mitigating and aggravating factors, in particular the relief for the complainant but also the accused taking responsibility for this and having started down this road to rehabilitation and his pre-trial custody and strict bail conditions, I cannot say the joint submission is outside the appropriate range.
¶ 16 The accused will be granted a conditional discharge. He will be placed on probation for a period of three years. He must have no contact directly or indirectly with the complainant. He is not to be within 500 metres of the address given and he is also not to attend the other two addresses on *** and *** being her current work address and the Y.M.C.A. respectively. He is not to attend at the complainant's employment or residence or where she happens to be.
¶ 17 With respect to the community service order, given the comments from the spouse that there has been substantial controls on the accused since these charges have been laid and that she feels those kinds of controls would be lessened if he is somewhere doing community service, then on that basis I will not make the community service order; although if I were making it, and I thought it was appropriate, it would be a lot more than thirty hours.
¶ 18 With respect to the weapons condition, I will make that order. There is a history here. She fears him and there will be a condition that he not possess any weapons as defined by the Criminal Code and that he not apply for a Firearms Acquisition Certificate or licence or registration.
¶ 19 Are there any terms that I have left out?
¶ 20 CROWN: The counselling, Your Honour.
¶ 21 THE COURT: Yes, thank you. Given Exhibit #2 I just read in the doctor's recommendation and as counsel have both indicated and I totally agree that that's a condition that's appropriate that he continue with Dr. Quek or his designate with counselling as directed by Dr. Quek or his designate.
¶ 22 CROWN: I would also ask that he not be in possession of any photos of [the complainant].
¶ 23 MR PENNEY: Yes, that's on consent.
¶ 24 THE COURT: Yes.
¶ 25 CROWN: Okay, thank you. That was important to me.
¶ 26 THE COURT: That's appropriate, yes.
¶ 27 CROWN: And the only other point I had was when Your Honour just read out the first provision you said, "no contact directly or indirectly" and I just wanted to make sure it's no contact or communication because a lot of this is communication through text that I ...
¶ 28 THE COURT: Yes, so is the standard term appropriate — "not to associate, contact or hold any communication directly or indirectly".
¶ 29 CROWN: Yes, thank you very much.
¶ 30 THE COURT: Anything else?
¶ 31 MR PENNEY: No. Your Honour, I have one closing comment just to sort of put something on the record that Ms Collins communicated to me. This might assist A.G. and his family that are here.
¶ 32 THE COURT: Yes.
¶ 33 MR PENNEY: This is something that Ms Collins cautioned me about before Court commenced. If you could just have a seat please A.G.; and this is with a view to taking a restorative approach here today. There are provisions in the Code, Your Honour, that allow the Crown, when there is a breach of probation, to have the accused brought back before the sentencing judge, being Your Honour in this case, to have him sentenced if there is a breach. Ms Collins has communicated to me that this is something the Crown would do in this case. This joint submission was made because of a sincere restorative justice approach, largely based on A.G.'s good conduct to date, but also on the promises that he is making today to Your Honour, to the community, to [the complainant] and to his family. If there is a breach — certainly if there is a breach with respect to [the complainant] — any time within the next three years, it is the Crown's intention to re-open these sentencing proceedings and to have him sentenced on the basis that would be more appropriate without the type of mitigation that's before Your Honour today. I know A.G. was listening carefully to what Your Honour had to say in terms of the type of sentence that might have been imposed had there not been the many mitigating factors before this Court today.
¶ 34 THE COURT: Yes, thank you.
¶ 35 MR PENNEY: Thank you, Your Honour.