Crown: V. Paris, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 CLERK: P.M., you, sometime between and including the first day of January in the year 1991 and the 31st day of December in the year 1994, in the Municipality of Metropolitan Toronto, in the Toronto Region, did commit a sexual assault on [the complainant], contrary to the Criminal Code. How does the Crown elect?
¶ 2 CROWN: I'll be proceeding summarily, Your Honour, with my friend's ...
¶ 3 MR PENNEY: I'm consenting, Your Honour, to the jurisdiction of the Court. The matter is more than six months old.
¶ 4 THE COURT: All right. Thank you.
¶ 5 CLERK: How do you plead to the charge, guilty or not guilty?
¶ 6 MR PENNEY: On behalf of P.M., Your Honour, he would like to enter a plea of not guilty to the charge of sexual assault and guilty to the charge of assault, with the Crown's consent under s. 606(4).
¶ 7 CROWN: Yes, that's with my consent.
¶ 8 THE COURT: All right. Mr. Paris, are you seeking, given the nature of the charge, an order banning publication?
¶ 9 CROWN: Yes, please.
¶ 10 THE COURT: Mr. Penney, any issue about that?
¶ 11 MR PENNEY: No issue, Your Honour.
¶ 12 THE COURT: All right. There will be an order banning publication of the complainant's name or any material which might identify the complainant.
¶ 13 CROWN: Thank you, Your Honour.
¶ 12 THE COURT: Yes, the facts?
¶ 14 CROWN: Yes. Wednesday — between Wednesday January first, 1991, and Sunday, December 31st, 1994, the accused, P.M., was staying at the home of [the complainant]. The accused is the victim's uncle.
¶ 15 The accused was sleeping in the victim's bed. The victim was sleeping on the floor beside him. This occurred when the victim was approximately 12 years old and the victim remembers it was Christmas Eve. During the night the accused placed his hand on the victim's penis over his pants. The victim woke up and the accused stopped.
¶ 16 Shortly after this incident the [complainant] permanently left the family home. He did not disclose the incident to his mother or step-father because the accused was not — was the favourite brother of his mother.
¶ 17 On the 19th of February, 2002, the accused called police to report he was being extorted by the victim. The accused disclosed to the attending police officers that he had been assaulted — or he had assaulted the victim approximately eight years previously and that he was being extorted by the victim.
¶ 18 He then added that he was also paying the victim for sex in the last year. The victim had left the apartment prior to the police arrival. Police officers took a report. Attempts were made to locate the victim. On March 12th, 2002, the victim was located in Waterloo.
¶ 19 The victim refused the opportunity to tell his story on video but did relate the incident to Detective Sergeant Simpson of the Waterloo Regional Police. Based on this information the accused was arrested on the 15th of March, 2002.
¶ 20 THE COURT: Mr Penney?
¶ 21 MR PENNEY: Yes, Your Honour, those facts have been reviewed extensively with — P.M. can admit them as being correct. P.M., would you please indicate to His Honour whether those facts are correct or not?
¶ 22 CLIENT: Correst, Sir.
¶ 23 THE COURT: All right. Thank you. There is a finding of guilt on the count of simple assault.
¶ 24 CROWN: Your Honour, just before we put this matter over for the victim impact statement, I'll just put, very quickly, on the record as to why the Crown would accept the plea to this in the circumstances.
¶ 25 I think I indicated in the judicial pre-trial there has been contact over the last few days with the complainant in an attempt to get him to attend to testify at a trial. While there is a statement by the accused, which was the starting point for all of this, there are some problems with that statement that would still require the accused attend.
¶ 26 In light of that, we have made very — we made great efforts in attempting to get this gentleman to come down from Kitchener. He has refused to so, however today he did contact the office, indicating that he now did wish to come down.
¶ 27 After a lengthy conversation with him, the officer in charge explaining to him the circumstances of the plea, he indicated that he wanted the opportunity to present a victim impact statement.
¶ 28 So, while the Crown at first was opposed to a plea on the following facts, I think the circumstances of the case made it such that we felt that this was the most appropriate way to proceed. So, that's why the Crown is proceeding and agreeing to the plea to the lesser charge of assault and to the facts in this case.
[After submissions, the proceedings were adjourned to 22 July 2003 for sentencing:]
¶ 29 REASONS FOR SENTENCE: I think this case can be fairly described as an extremely unusual set of circumstances. I do not think that the Crown would take issue that if it had not been for Mr. P.M.'s feelings of guilt and certain inappropriate actions by the complainant, this matter would have never come to light. Charges never would have been laid.
¶ 30 This is also a matter where I think it is fair to comment that the complainant has certainly not been of particular assistance to the Crown in the prosecution of the matter. As counsel are certainly aware, I was advised at the judicial pre-trial of the circumstances surrounding the crown application for an adjournment of the trial date due to the complaint's not attending for the trial. I also now have a situation before me where, despite adjourning the matter for the specific purpose of allowing the complainant to file a Victim Impact Statement, he has chosen, as is his right, to not provide that information which would have been of assistance, obviously to the Crown and the court.
¶ 31   I now have before me a gentleman who many years ago committed a simple assault on a boy who has outside of that incident, based on the information before me, been a contributing member of the community; still is a contributing member of the community; has suffered significant consequences as a result of the commission of the offence; has also suffered from a difficult childhood himself, including significant abuse that he was subject to. Based on the report from Dr. Chisvin before the court, Mr. P.M. has done, certainly since these charges were laid, everything that he possibly could to attempt to deal with the issues arising from his own childhood and from his involvement in the particular offence before the court. I have no difficulty at all coming to the conclusion that I need not place any weight whatsoever on specific deterrence.
¶ 32 I do have to consider both general deterrence and denunciation. I do have to take into account that the assault, and I emphasize the simple assault, that took place in this case was on a boy who was at least arguably in somewhat of a position of trust or that Mr. P.M. was in somewhat a position of trust with and those are certainly concerns. It is rare when allegations of breach of trust arise where the courts are prepared to consider discharges. However, I am satisfied in this particular, very unusual set of circumstances that it would not be contrary to the public interest to grant a conditional discharge.
¶ 33 I am going to grant a conditional discharge and place Mr. P.M. on probation for a period of twelve months. The conditions of the probation, in addition to the statutory terms, will be explained when he signs the order. He will report to a probation officer today, thereafter as required. He will continue counselling with Dr. Chisvin or his designate at times and places as directed by Dr. Chisvin or his designate. He will sign a Form 14 to allow his probation officer to monitor compliance with the previous condition. He will have no contact or communication, direct or indirect, with the complainant.
¶ 34 Mr Penney, is there any particular family member under the age of 16 that Mr. P.M. has regular contact with?
¶ 35 MR PENNEY: No. He's indicating no, Your Honour.
¶ 36 THE COURT: I am considering the comments from Dr Chisvin contained in his report, in particular the bottom of page three and the top of page four. However, in the circumstances I am going to impose a condition that he not be in the presence of children under the age of 16 years unless in the company of another adult of at least 21 years; not to have in his possession any weapons as defined in the Criminal Code.
¶ 37 Is there any reason why he would require a Firearm Acquisition certificate, Mr Penney?
¶ 38 MR PENNEY: No, Your Honour.
¶ 39 THE COURT: All right, not have in his possession or apply for a Firearm Acquisition Certificate. Now, with respect to the issue of the request for a DNA sample, as I understand it, this is a secondary offence which would place the onus on the Crown, satisfying the court that it was appropriate to make the order. Obviously the requiring of an individual to provide a DNA sample is an extreme invasion of an individuals right to privacy. The courts, in appropriate circumstances, do have the authority to make that invasion.
¶ 40 However, each case has to be looked at carefully. In the particular circumstances here, where there is no prior criminal record of any kind, the offence itself is some ten years old, there has been no suggestion before the court of anything by way of a continuation or further types of offences, I am of the view that it is not appropriate in the circumstances to make that order.