Crown:  A. Khader, Assistant Crown Attorney, Toronto
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1   MR. PENNEY: ... So, if he can be arraigned on th[e voyeurism] count and I'll enter a plea under 606(4) with my friend's permission.

¶ 2   THE COURT:  To what count — charge?

¶ 3   CROWN: Mischief under, Your Honour.

¶ 4   MR. PENNEY: ... To mischief under.

¶ 5   THE COURT:  Okay. All right, and that will be with the Crown's consent?

¶ 6   CROWN:  Yes, Your Honour.

¶ 7   THE COURT:  All right. So, let's do 606(4). Is this an informed plea?

¶ 8   MR. PENNEY: Yes, it is, Your Honour. The plea is informed and there's been extensive discussions between myself and my friend. But, Mr. B. understands that by pleading guilty today, he's essentially doing to the Crown's work for him and proving the Crown's case with his submission here in court. He understands that he's giving up the right to have a trial and he also understands that though, Your Honour, will give great weight to the joint submissions particularly in light of recent Supreme Court of Canada decision. Ultimately, the sentence is Your Honour's decision, and Your Honour's alone. — So, having said that, Your Honour, I'd ask him to be arraigned, please, on the count before the court and I'll enter the special plea for him.

¶ 9   THE COURT:  Okay, thank you. Could he be arraigned?

¶ 10   CLERK — ARRAIGNMENT:  G.B., on or about the 23rd day of January in the year 2017 at the City of Toronto in the Toronto Region, did without lawful excuse surreptitiously record with a cellphone video camera and monitor, make a visual recording of a person who was in circumstances that give rise to a reasonable expectation of privacy when that person was in a place in which that person could reasonably be expected to be nude, to be exposing his or her genital organs, or anal region, or exposing her breasts, or be engaged in explicit sexual activity, namely the unisex single shower area for Goodlife Fitness, Toronto and thereby committed an offence, contrary to s. 162(1)(a) of the Criminal Code of Canada. How does the Crown elect to proceed?

¶ 11   CROWN:  Summarily.

¶ 12   CLERK:  How do you plea to the charge, guilty or not guilty?

¶ 13   MR. PENNEY: Mr. B. pleads not guilty to the charges read but guilty to the offence of mischief under $5,000 that arises from the same transaction.

¶ 14   CLERK:  Thank you.

¶ 15   THE COURT:  Sorry counsel, can I have your name for the record please?

¶ 16   MR. PENNEY: Penney, initial C. P-E-N-N-E-Y, initial C.

¶ 17   THE COURT:  Thank you, sir.

¶ 18   THE COURT:  Yes.

¶ 19   MR. PENNEY:  Just have a seat.

¶ 20   CROWN — THE FACTS:  By way of background, Your Honour, the complainant in this matter and the accused were coworkers and were known to each other at the time of the offence. On Monday, January 23rd, 2017 at approximately 1:54 p.m. Toronto police received a call to attend the Goodlife Fitness, which is located [redacted]. At approximately 12:54 p.m. the complainant went into a private shower and turned the water on. She looked up and believed she saw a ceiling tile move. She left to remove some clothing. She then returned to the same shower and looked up and found a cellphone on a selfie stick. She screamed, yelled and ran from the shower. The police attended and investigated video footage revealed a suspect going in and out of the change rooms. The suspect was identified and located, and that was Mr. B.. Mr. B. was arrested, read his rights to counsel and transported to 32 Division.

¶ 21   MR. PENNEY:  I can admit those facts as substantially correct on behalf of Mr. B.. I, do note, Your Honour, that I'm asking, Your Honour to sustain the plea on the mischief because of his actions. There's no indication the phone, in fact, was on but the phone was there and it's clearly a mischief. And, I'm asking, Your Honour, to find him guilty of that please.

¶ 22   CROWN:  It interfered with her lawful enjoyment.

¶ 23   THE COURT:  It certainly did.

¶ 24   MR. PENNEY:  ... No question.

¶ 25   THE COURT — FINDING OF GUILT:  Okay. Mr. B., I find you guilty of the offence of mischief under.

¶ 26   MR. PENNEY:  Yes.

¶ 27   CROWN:  So, Your Honour, there's no criminal record being alleged in this case. I can advise that I've had a number of discussions with Mr. Penney with respect to sentencing. The complainant was contacted. The complainant advised that she's content with this matter resolving by way of mischief and did not provide any further input beyond that. The complainant was further content with this matter resolving by way of a discharge. The question then being, whether it would be appropriate for a conditional discharge or an absolute, absolute discharge. The Crown's concerns in this case were twofold. One, whether there was any video on the phones — on the phone itself of the complainant. And, secondly, any sort of counselling or rehabilitation that would be required and the reasons why this offence was committed.

¶ 28   I could advise, Your Honour, that I have received a report from a counsel that Mr. B. has attended. It's a rather detailed report. Probably one of the best that I've seen with respect to his counselling and it actually involved Mr. B. bringing his wife to six, six of the seventeen sessions that he attended. It wasn't just simply to preform a sort of counsel. Given that, Your Honour, the Crown is content that there will be no further counselling required in this case. With respect to the phone itself, I've spoken with my friend. He's content there were actually two cellphones, one that was allegedly used in the shower and another one that was seized off Mr. B.'s desk. My friend is content that both those phones be seized and ultimately destroyed. And so, with that, there is now a joint submission, Your Honour, for an absolute discharge in this case. Noting that the complainant would be on side — or is on side, I should say.

¶ 29   THE COURT:  Okay. You don't want a geographic restriction?

¶ 30   CROWN:  Mr. B. has been fired from that place of employment.

¶ 31   CROWN:  So, he no longer works with the complainant.

¶ 32   THE COURT:  Okay. That's not something the complainant was interested in?

¶ 33   CROWN:  No.

¶ 34   THE COURT:  Mr. Penney, tell me something about Mr. B..

¶ 35   MR. PENNEY:  Yes, I will. Your Honour, he's 35 years of age. He's a permanent resident that's — I'll pause there to indicate that's one of the reasons that we took this approach. In my submission, Your Honour, this would have been an appropriate case for conditional discharge a year ago. Approximately, 13 months have been passed and I essentially convinced my friend to give Mr. B. an opportunity to demonstrate to the Crown, and to the community, and to the victim, and to his wife that he can take full responsibility so he can come to court today, 13 months after the event, having done all of those things that we would have hoped he would do had he been sentenced a year ago. Because he's a permanent resident, Your Honour, if he received a period of probation, that time while he's on probation gets excluded from his residency calculations. So, that is one of the main benefits of him receiving an absolute discharge. He did lose his job, Your Honour, as a result of this charge. They were aware immediately. He was suspended without pay and then he found another job not too long after that in May so it would have been 5 months after with Sears in the same field and unfortunately, of course with the collapse of Sears he lost that employment, so he's currently unemployed.

¶ 36   He is married. At the time of the offence, they had a small baby, 3 months that's now 15 months old. His wife, Your Honour, has been involved in this case from the beginning. When I say from the beginning, from, from arrest because the officer got involved to confirm his arrest and make sure that somebody in the family was aware. So, he's presently right now, Your Honour, working as a fulltime caregiver for his daughter.

¶ 37   And, Your Honour, he's had 18 sessions of treatment with Mr. Rob Peach that does work with essentially sexual, sexual offenders and individuals such as Mr. B. that are violating boundaries. And, and, Mr. Peach made it a point with Mr. B. in the beginning to identify all of the boundaries that were violated here and all the betrayals, which include disappointing people at work, putting his, putting his employer, you know, essentially hurting his employer and betraying that trust because this was done to a fellow employee and they had to suspend him. They were required to suspend him for the safety of the victim and her comfort, leaving that position unfulfilled without any scheduling. The victim obviously, she was affected and the other primary victim here, Your Honour, is his wife 'cause there was a major betrayal here. So, I'm, I'm not going to put the report — there's sensitive information on the report, Your Honour, that affects both him and as well the victim, his wife not, not the victim in the, in the shower. But I do want to read out just a couple of portions of it, in terms of where he's at in terms, in terms of what I call the big three, which is number one, taking ownership. Number two, gaining insight and number three, relapse prevention. So, Mr. Peach writes,

¶ 38   "Mr. B. takes full responsibility for his offending behaviours. He is candid and forthright in assuming accountability for his actions. He does not endorse any cognitive distortions or thinking errors common in individuals who have been charged with sex offences. He's been transparent in sharing the circumstances of his offence with his wife, his family and select peers in effort to hold himself accountable for his actions. In addition, he's deeply distressed that he behaved in a manner inconsistent with his personal values, including his value for the safety of woman, privacy and for the law. He has deep regret and remorse that his action has caused harm to the victim of his offence. He can articulate an understanding of how his action may have impacted the victim both presently and potentially in the future. He consistently and without exception describes empathy for the victim and her suffering. He included his wife in six of our treatment sessions. He's been motivated to develop an understanding of the factors that have contributed to his offending behaviour. He's developed a concrete comprehensive understanding of risk including specific factors that comprised his ability to make rational decisions in the past. His forward thinking and committed to developing skills to mitigate and avoid risk in the future. Finally, Mr. B. has made significant efforts to develop comfort and confidence in directly addressing related to risk with this personal supports. While further treatment may benefit Mr. B., no sex specific relapse prevention treatment is recommended at this time. He can identify and describe circumstances, thoughts and urges that could contribute to risk and also specific strategies he can use in response to each in an effort to decrease his likelihood of reoffending. I cannot identify any outstanding risk factors that require further assessment or treatment at this time."

¶ 39   So, essentially, Your Honour, he's been discharged now by Mr. Peach back in November and that's why we're here today requesting the absolute discharge subject to any further questions, Your Honour, may have, those would be my submissions.

¶ 40   THE COURT:  Okay. Thank you, Mr. Penney. Mr. B., is there anything you would like to say to me before I sentence you?

¶ 41   THE COURT — REASONS FOR SENTENCE: All right. Mr. B., I have a joint submission from two experienced counsel who obviously spent a great deal of time on this file and reviewed it thoroughly. In order to grant you a form of discharge, I must be of the view that it's in your best interest and it's not contrary to the public interest. It's pretty obvious that it's in your interest. This kind of case is not one that would ordinarily result in a discharge. I can say that with some confidence.

¶ 42   It appears through your very hard work, you're full acceptance of responsibility for your conduct and what I've heard through Mr. Penney and has been confirmed by the Crown, your hard work with respect to gaining insight as to what an invasive act this was, and what profound consequences have flowed from it. The ones that are most obvious to you are no doubt the impact that it had upon a relationship with people at work, obviously your wife and the community.

¶ 43   The report also speaks to the relapse prevention work that you've done with respect to identifying those triggers that might have resulted in this type of behaviour and how to more appropriately deal with it. So, effectively sir, everything that would have been in a probation order as already been done by you with respect to counselling going forward.

¶ 44   In all the circumstances, sir, I find that it's not contrary to the public interest. Obviously, a while ago, prior to you entering into this counselling program, I would have ordered a conditional discharge. But, I'm persuaded that an absolute discharge is a fit sentence in these very unique circumstances. Okay, so that's your sentence.

¶ 45   MR. PENNEY:  Thank you, Your Honour.

¶ 46   THE COURT:  The information will reflect that.

¶ 47   MR. PENNEY:  Thank you so much.

¶ 48   THE COURT:  Sir, there's a victim fine surcharge in this matter in the amount of $100. How long will it take you to pay that amount?

¶ 49   G.B.:  Sixty days.

¶ 50   THE COURT:  Sixty days? Sixty days to pay that.