Crown: J. Flaherty, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 CLERK: J.L., on or about the 22nd day of May in the year 2016 at the City of Toronto in the Toronto region did willfully damage the door [at an] apartment ... at 1** Chestnut Street in Toronto, the property of Toronto Community Housing Corporation, the value of which did not exceed $5,000 and thereby commit mischief, contrary to section 430(4) of the Criminal Code. Crown has elected to proceed summarily.
¶ 2 MR PENNEY: Acting as J.L.'s agent, Your Honour, I enter the plea of guilty on behalf of J.L. to that charge as read.
¶ 3 THE COURT: Very well.
¶ 4 CROWN: So, Your Honour, the facts that are admitted for the purpose of the guilty plea to the mischief and that have been canvased with J.L. in advance and are part of the instructions to proceed by counsel, Mr Penney, are that on Sunday the 22nd of May 2016 at about 1 a.m. J.L. was residing with his cousin on the 1*th floor of 1** Chestnut Street here in the city.
¶ 5 There was a party happening ... just down the hall; J.L. was heavily intoxicated. Though not invited, J.L. presented himself and gained entry. He became belligerent and was asked to leave; he was hesitant but complied when [the complainant], a friend of the tenant, admonished him, "You need to get the hell out; we don't want you here."
¶ 6 About 15 minutes afterward, [the complainant] and a female friend decided to leave for a cigarette. After they entered the elevator, J.L., then barefooted and with a beer in one hand and a paring knife loosely held in the other, prevented the elevator door from closing by placing his back against the door and raising his foot against the other side.
¶ 7 The complainant asked him to remove himself. J.L. responded, "If you want to leave, you need to pay me," [the complainant] replied, "I'm sorry, what did you say?," and J.L. repeated his demand. [The complainant] asked her friend to hold her cigarette, took a step towards J.L. and forcibly pushed him with both hands from the entrance. As the elevator door closed [the complainant] ... stared him down as he hung his head low and sheepishly looked on.
¶ 8 After they returned, J.L. still very much intoxicated, returned to the apartment door with a knife, causing three small puncture holes to the door. Police were called; J.L. was arrested and held for a bail hearing. At 52 Division J.L. was flippant, uncooperative and at times belligerent.
¶ 9 J.L. resisted the officer's legal search of his person, telling the officers at one point, "I'm not doing that gay shit." J.L. refused to avail himself of the many opportunities the police gave him to voluntarily cooperate. He also actively resisted the search and as a result the police had to employ force to conduct the legal searches, after which J.L. became compliant. Those are the facts.
¶ 10 MR PENNEY: Those facts have been canvased with J.L. J.L. agrees that those facts are correct and asks that Your Honour find him guilty.
¶ 11 THE COURT: All right, those facts have been reduced to writing and what I propose to do is file it as an exhibit.
¶ 12 CROWN: Yes, please. Thank you, sir.
¶ 13 THE COURT: Given Mr Penney's comments, there will be a finding of guilt.
[Submissions are made. Exhibits are filed as evidence.]
¶ 14 THE COURT: All right, I've read the documents filed by Mr Penney. J.L., through Mr Penney acting as counsel and with instructions from his client has entered a guilty plea to a charge of mischief. The agreed statement of fact has been filed as an exhibit. This matter was judicially pre-tried before me back in September.
¶ 15 Based on the notes, I'm told that at the time that there was an agreement that were there joint submission for an absolute discharge, given that he had to return to [his home country] he would not need to appear in court for the guilty plea, Mr Penney would appear as agent and enter the guilty plea on his behalf; I've never done and that I will never do that again in the future in the absence of the defendant.
¶ 16 Both counsel are officers of the court and they tell me that's what I agreed to, I therefore accept what they tell me. I have no issue with accepting their comments. What I have issue with is that I failed to note on my judicial pre-trial form, that very specific vital fact, I did not state the position that he did not need to be in open court for the guilty plea. And for that, I should be so sanctioned.
¶ 17 Beyond that at a judicial pretrial, I do not take the position lightly of advising counsel of whether or not I'm in agreement with their position. Normally speaking, things may change as to what the facts actually are that the Crown alleges and if the defence then objects to certain parts of them, then it all unravels. Therefore, I never normally provide my input that I would accept a joint submission; but in this case, I did. In fact, I clearly noted it in the judicial pretrial form, and therefore that is not the issue.
¶ 18 The issue is that I failed to note that he needed to be in court. In any event, as I said earlier, the admissions that have been reduced to writing, they have been accepted holus-bolus by defence; they've been filed as an exhibit as I've said. The information that I have is that J.L. has gone out of his way to not only try to correct his behavior of that evening but is now on the path to become a successful young man. Apparently, now he has his own practice as a Chartered Physical Therapist and he's doing well. He should be commended for that.
¶ 19 The joint submission is one of an absolute discharge, I have no issue with that, as I said earlier.
¶ 20 Sentence will reflect as follows — mindful of one day of pretrial custody taken at a 1.5 basis — absolute discharge. Now, your client has a fine that goes with that, a victim fine surcharge, and you're well aware of that.