Crown: T. McCarthy, Assistant Crown Attorney, Woodstock
Defence: Craig Penney, Toronto Sexual Assault Lawyer
¶ 1 CROWN: The facts in support of the finding: the complainant [A.W.'s granddaughter] was 13 years old at the time of these allegations living in [her home town] Ontario. She had been adopted ... [The parents] then separated in the fall of 2010. They share custody of [A.W.'s granddaughter]. A.W. is ... [her] grandpa. [She] describes having always had a close relationship with both of her grandparents after her adoption into the family.
¶ 2 Your Honour, I'm advised that on October 12th, 2013, [She] and her grandfather, A.W., were in the basement of A.W.'s residence. They were sitting on a couch under a blanket. A.W.'s wife was also on the couch. A.W.'s daughter and her partner were also present in the room sitting on a different sofa. The complainant was sitting cross-legged on the couch beside the accused. He began to rub her leg over her pyjama pants. He then reached under her pyjama pants and moved his hand and touched her vagina. She describes him as playing with her pubic hair. She was not wearing anything underneath her pyjama pants. He then briefly moved his hand away before touching her vaginal area a second time with his finger. She crossed her legs, the accused removed his hand, the complainant stated she was going to bed, said goodnight, and went upstairs. As indicated, she was 13 years of age at the time of that offence.
¶ 3 She disclosed this incident to a school friend the following week seeking advice. She also disclosed the incident to her mother two weeks post incident. [A.W.'s granddaughter] further advises that on October 25th she and her grandfather were at his residence. He was sitting on a chair, and she leaned over to give him a goodnight hug. She advises that using two hands the accused grabbed her buttocks and squeezed, asking her if she liked it. She describes the accused as breathing heavily and that he then put his hand inside her jogging pants and underwear running his hand down the front of her thigh. Again, she was 13 years of age at the time of the offence. This was disclosed to her mother the following day. Those are the facts.
¶ 4 THE COURT: Counsel?
¶ 5 MR PENNEY: Yes, Your Honour. Those facts have been reviewed in some detail with A.W. and they are not admitted except through the facts that are outlined in Dr. Gojer's report, and those facts from Dr. Gojer's report are outlined in a letter to [the Crown] Mr. Hanbidge, which I'll hand up to Your Honour, with my friend's permission.
¶ 6 CROWN: Yes, of course.
¶ 7 MR PENNEY: Just to save Your Honour from writing all of that down again. My proposal is we'll simply mark that letter as an exhibit, Your Honour. But it was understood in discussions with the Crown Attorney that to give the complainant a voice in these proceedings we would have those allegations read out. Those facts are identical to what's in Dr. Gojer's report, Your Honour.
¶ 8 THE COURT: So just by way of quick summary, the allegations concerning the pyjama incident are at best were him attempting to get his weight off, sort of re-established, and touched her accidentally, and only touched her pubic hair.
¶ 9 MR PENNEY: That's correct. It was accidental and there was a touching of the pubic hair.
¶ 10 THE COURT: And on the, what's called the bum-patting incident, on that occasion he agrees that his touching of her on that occasion fell outside the appropriate familial boundaries and therefore constitutes an assault.
¶ 11 MR PENNEY: That is correct. He does not admit, Your Honour, to uttering the words that were alleged nor to the heavy breathing, but does admit particularly in light of the entire context, and particularly in light of the accidental touching that occurred beforehand.
¶ 12 [Dr. Gojer's report, character letters, and the victim impact statement are marked as Exhibits.]
¶ 13 THE COURT: Just going to make a finding of guilt based upon amendment to the facts.
¶ 14 CROWN: Thank you kindly.
¶ 15 THE COURT: Pursuant to 266. All right.
[A joint submission is made at this time.]
¶ 16 THE COURT: Thank you. Stand up, sir. Is there anything you'd like to say at this point? You don't have to say anything, but if you want to now is your opportunity.
¶ 17 CLIENT: No thank you, Your Honour.
¶ 18 THE COURT: First of all, it is a joint submission. There is no record here. The accused has pled guilty. The assault that he has admitted to is going beyond what is familial at the time, the patting of the butt portion of the young child. He has a strong supportive family. I have read the letters. They set a good picture, or present a good picture for the Court to understand who is before the Court. He is an upstanding member of the community, had many trials and tribulations himself of recent vintage, he has overcome those and supported others. Dr. Gojer's report is very highly thought of a person in his field. I have got reports of his in the past. It indicates very low chance of any such behaviour in the future and really did not see the need for any counselling given what he has admitted to doing. He is very remorseful throughout this process. It is quite clear that it has led into bouts of depression. And the joint submission is for a conditional discharge and I see no reason to deviate from that. As one of my heroes as a child, as Abraham Lincoln said, he always found that mercy bears richer fruit than does strict justice, and I agree with him on many circumstances, and I agree with him in this case. This is a case that should acknowledge the accused taking responsibility at an early stage and not having to put this young lady through any grief of a trial, or preliminary hearing, or anything of that sort, that to this Court, is very, very important.
¶ 19 As such, I accept the joint submission. There will be a conditional discharge. The terms will be as follows; you will keep the peace for a period of 12 months, you will report today only to start the process of probation, there will be no further reporting required. You will not associate or communicate directly or indirectly nor to go to the place of residence of employment or education of the complainant except as initiated by [A.W.'s granddaughter] and in the presence of a parent. Do you understand that, sir?
¶ 20 CLIENT: Yes, Your Honour.
¶ 21 THE COURT: If there is a reconciliation that is going to take place at any time in your family, I would hope that that happens for everybody, including yourself, that would have to be initiated by the young lady and in the presence of her parent for the time being. I assume you have read the Victim Impact Statement.
¶ 22 CLIENT: I have.
¶ 23 THE COURT: Yes, you can understand at that age, the impact it has had and I, I truly believe you do understand all of that.
¶ 24 CLIENT: Yes, I do.
¶ 25 THE COURT: And I thank you for your plea, that is very important. Anything else for this? Sorry I have to give a surcharge, I cannot give a fine. There will have to be a surcharge sir, $100 surcharge. I will give you a year to pay that. The government makes me do that. I do not really want to do that. I have to do what the government tells me. Anything else for this gentleman?
¶ 26 CROWN: The balance of the charges are to be endorsed withdrawn.