Crown:  N. Chiera, Assistant Crown Attorney, Burlington
Defence:  Craig Penney, Toronto Sexual Assault Lawyer, Burlington

¶ 1  CROWN:  We are going to be asking that G.B. be arraigned on one count. The intention is that he is going to enter a plea with the assistance of his counsel to a lesser and included offence of simple assault.

¶ 2  THE COURT:  So that would be count one he is to be arraigned on then?

¶ 3   MR PENNEY:  Yes, please, Your Honour. And Your Honour, we both thank you for your indulgence this morning. It is just the nature of the investigations and charges such as this where a lot of family members are affected; sometimes it is not until we get all heads together in one room that a resolution appears on the horizon.

¶ 4  THE COURT:  Okay.

¶ 5   MR PENNEY:  So it is deeply appreciated, but I think my friend and I can say that the time was used productively.

¶ 6  THE COURT:  And how is the Crown proceeding?

¶ 7  CROWN:  Summarily.

¶ 8  THE COURT:  And you have taken him through 606(1), Mr Penney?

¶ 9  MR PENNEY:  Yes, I have, Your Honour.

¶ 10  THE COURT:  Okay. All set for arraignment then?

¶ 11   MR PENNEY:  Yes.

¶ 12  THE COURT:  G.B., if you can stand, please. We are going to have you arraigned now and record your plea to count one. Let Mr Penney enter the plea on your behalf, sir.

¶ 13  CLERK:  G.B., you stand charged between the 7th day of June, 2008 and the 8th day of June, 2008, both dates inclusive, in the Halton Region, did commit a sexual assault on [the complainant], contrary to Section 271 of the Criminal Code. How do you plead to this charge, guilty or not guilty? Please let your lawyer answer.

¶ 14  MR PENNEY:  Just one second, Your Honour. Could I see the Information, please. There is an issue I think my friend and I have to address. Your Honour. Can we amend the Information on consent to 14 and 15 June, because it was a Father's Day weekend, 2008?

¶ 15  THE COURT:  Is that on consent?

¶ 16  CROWN:  Sorry, yes, that is on consent.

¶ 17  THE COURT:  Yes, I have made the amendment.

¶ 18  MR PENNEY:  Thank you, Your Honour. I do not need him to be re-arraigned, Madam Clerk.

¶ 19  CLERK:  Okay.

¶ 20  MR PENNEY:  I can waive that necessity, please, and enter a not guilty to the charge of sexual assault as read, but a guilty plea to the lesser and included offence of assault with the Crown's consent.

¶ 21  CROWN:  And that is on consent.

¶ 22  THE COURT:  All right.

¶ 23  CLERK:  Take a seat, sir, and listen to the evidence.

¶ 24  CROWN:  Your Honour, the matter before you involves [the complainant], who was 13 years old at the time. At the time of the incident, G.B. was in a three year common-law relationship with [the complainant]'s mother. The families, or the joint families, lived together at a residence in Big Town, Ontario. G.B. had a relationship with [the complainant] in the position of a parent. Also living with the family was [the complainant]'s nine year old sister. G.B. also had a son from a previous marriage residing at the house.

¶ 25  On the evening in question, G.B. and [the complainant]'s mom had been swimming in the backyard swimming pool. After swimming, G.B. had left his swim trunks on a bench outside and proceeded into the house. G.B. then attended upstairs to the bedroom, bedrooms in the upper level of the house, checked on his son, who was sleeping, and checked on [the complainant]'s sister, who was also sleeping. The gentleman then attended to [the complainant]'s room. G.B. attended at the door and went into the room. He was naked at the time. He became aware that [the complainant] was awake and quickly kneeled down beside her bed. He rubbed her back from her neck down to her lower back. He also was rubbing [the complainant]'s arm, as [the complainant] was lying on her bed. He leaned over and kissed her on the arm and said something to the effect of either do you like that? How's that? Or something like that. [the complainant] asked him to go get her mother. G.B. then left the room to go call [the complainant]'s mother. G.B. could not recall if he re-entered the room after that or not, but did recall shortly going to bed after the incident. [the complainant]'s mom was advised by [the complainant] about the incident the next day and police were contacted shortly after that. Police did speak with G.B..

¶ 26  G.B. did provide a statement to the police and advised the police as the facts admitted to on the plea before you. In his statement to the police, G.B. advised that he went in naked and that was inappropriate and stupid and poor judgment, and everything else. He told police, "I was aware she was awake, but I quickly kneeled down beside the bed." He also advised police that he did kiss [the complainant] on the arm and said something like how's that, or something, and that in retrospect it sounded creepy. G.B. acknowledged and understood why it was that [the complainant] subsequently advised her mother as to the incident and why [the complainant] was bothered by the incident.

¶ 27  As a result of G.B.'s actions on that day, the Crown's position as well that his actions on his own acknowledgment were inappropriate in a parental and child context, especially in the circumstances where [the complainant] was 13 at the time and the gentleman was naked at the time. On that basis, the plea before you is to be assault. Those are substantially the facts, Your Honour.

¶ 28   THE COURT:  Okay. Are they acknowledged as being true?

¶ 29   MR PENNEY:  Yes, Your Honour, the facts being substantially correct. I would just like to add a couple of things to the narrative. Just first of all, Mr Chiera, with respect to the disclosure, the investigation came about, this occurred, Your Honour, the Saturday going over to the Sunday, Father's Day. There was a disclosure to [the complainant]'s mother the next morning. The mother then confronted G.B., and he admitted what he did on the same basis that he's admitting to Your Honour today. Those admissions were made to the mother at that time, and as well as to [the complainant]. He apologized at that time and acknowledged the behaviour as being wrong. And what he admitted then is what he's admitting now. The police actually didn't become involved, Your Honour, until the mother called the Children's Aid Society some time later, and ultimately was put in touch with the police. The police don't become involved, in fact, until the second week of July. The statement that G.B. made to the police was on July the 12th, approximately four weeks afterwards. There was a full confession and acknowledgement both to [the complainant] and to her mother the morning afterwards, and then there was a full confession, acknowledgement to the police on July the 12th.

¶ 30  I'm asking Your Honour to find him guilty, Your Honour, of the assault. Although G.B. told the police at the time and told the mother the morning afterwards there was absolutely no sexual intent or sexual purpose to his touching, it was a thoughtless act going in naked. He believed at the time that she didn't know he was naked because of the darkness in the room. Obviously, he was wrong about that. But he acknowledges, Your Honour, in all the circumstances, that this touching, which is undisputed, falls outside appropriate parental boundaries when we are looking at the relationship between parent and child. And being that it falls outside appropriate parental boundaries, it must be assaultive, and he asks Your Honour to find him guilty on the basis of that inappropriate parental touching, but on the basis that he had no sexual intent and there was no sexual nature to the touching. Would you stand, G.B..

¶ 31  G.B.:  Yes.

¶ 32  THE COURT:  Okay. It makes out the offence. I register a finding of guilt for the assault. You can be seated again, sir. It is important for the record to reflect that sexual assault does not require sexual intent on the part of the offender. Violating sexual integrity of the complainant is sufficient. That is the law. As to sentence?

[After the submissions, the Judge asked G.B. if he wanted to say anything.]

¶ 33  G.B.:  Ten months ago I made a very bad decision that has affected the lives of everyone close to me. My actions have resulted in great pain to [the complainant]. I apologized to her ten months ago, and I apologize to her again today. I did not mean to hurt her or to betray her. I am sorry.

¶ 34  THE COURT:  I take into account that you are 42 years of age, sir. You have no prior record. It sounds like you are a man of good character, other than the act I am sentencing you for today, which you have expressed sincere remorse for. I accept that you are remorseful. You also apologized immediately upon being confronted with your actions, and you gave an inculpatory statement to the police. Although this is a plea on a trial date, which normally does not get the same weight as an early guilty plea, I am satisfied based on what Mr Penney has told me — the Crown has not taken a different position — that this should get the same benefit as it if was a very early guilty plea. Things had to progress in such a way that this could now come to a conclusion today, whereas it could not when you were appearing back in the set date Courts.

¶ 35  So, for those reasons, I have determined that it is not contrary to the public interest to give you the benefit of a conditional discharge, sir. It will be for 18 months attached to a probation order requiring you to report as directed, take any counselling as may be directed by your probation officer in consultation with your personal physician. As we discussed, I will request that the detailed statement given to the police be sent to probation so that they know what it is that you immediately admitted to and was the basis of this plea. You will also, of course, keep the peace and be of good behaviour. I will waive the victim fine surcharge, as if this was a plea at an early opportunity.