Crown: J. Rodger, Assistant Crown Attorney, Brampton
Defence: Craig Penney, Toronto Criminal Defence Lawyer, Brampton
¶ 1 THE COURT: With respect to Mr. P.C. the plea was entered on a charge that indicated during a five-year period last past and ending on or about the 30th day of November 2004, in the City of Mississauga, unlawfully did for a sexual purpose, touch [the complainant] a person under the age of 14, directly with a part of his body, to wit his penis, contrary to section 151 of the Criminal Code. The time period is exceedingly broad, but the offence is not. I understand there is some difficulty in setting the time period, and as it is not a particularly important element it was never clarified further in the information.
¶ 2 The facts upon which the defendant pled are as follows: the complainant, V., is the defendant's step-daughter. He had been a father figure to her since she was about one and a half. He lived in the residence with her and her mother. And I have been told that she was approximately six years old at the time of this offence. With respect to that, [the complainant] had a girlfriend over to their home. Apparently, the two girls were playing while naked. The court has no information as to what may have prompted this activity and to clarify that even further, there is no suggestion before the court that the defendant did anything to orchestrate this. While the girls were playing naked, the defendant undressed too. During the play, the complainant, V., kissed the defendant's penis and her girlfriend touched his penis with her hand. He asked the girls not to tell. With respect to these facts, there were additional facts that the Crown mentioned, or additional acts I think would be a better way of putting it, that the Crown mentioned but did not seek to prove, and do not form part of this guilty plea. Quite frankly, it still escapes me as to why anything was said about them at all in the circumstances. I would note as well, that there is a bit of a mismatch between the admitted facts and the charge in that the facts suggest that [the complainant] touched the defendant whereas the charge says he touched her. I am prepared nonetheless, to proceed on the charge that have been pleaded to and in doing so, my thought is this: that she couldn't have touched him in this manner without his cooperation and I am prepared to take the view that it was mutual touching in the sense that they touched each other.
¶ 3  With respect to the girlfriend, the defendant was not arraigned on any charge involving another complainant. It is common ground that the Crown could not have proven that aspect to which he has admitted, as the girl in question's family was uncooperative in anything to do with the investigation in this matter. The defendant has made the admission, essentially, wanting to ensure that everything is taken care of at the time of his plea.
¶ 4 With respect to the count to which he did plead involving [the complainant]. I think it is important to acknowledge that both parties agreed that [the complainant] did not want to testify. Her mother was concerned about her testifying. Others who have been involved with her did not think it would be in her best interest. Given issues of memory and things of that nature, I think the ability to prove the charge may have been in question if it was a trial. But in the face of all of that, the defendant did plead guilty.
¶ 5 Another comment I would like to make about the plea is as follows: throughout the report that I have in front of me, which I will return to later, there is no hint of any equivocation. I actually find it startling how the majority of defendants charged with similar offences over the course of a number of interviews and/or over the course of counselling, often back-pedal with respect to some aspect of their accountability. As much as I have seen it happen many times, it always surprises me to a certain extent, as one would expect they would have the good sense not to do this when it is against their interest, but nonetheless, they do. And I have read all of the reports presented to me thoroughly, and there is not a hint of any back-peddling by the defendant with respect to his responsibility. And in yet another way I think his plea is sound, a true indication of remorse, and deserves substantial consideration from the court.
¶ 6 There was evidence called on the sentencing. There was one witness, [the complainant's mother]. She is the common-law spouse of the defendant and the mother of [the complainant]. She struck me as a bright, articulate individual. She let the court know that counselling with [the complainant] was going well and that visits with her and [the complainant] outside of their home with the defendant were also going well. During these times they were having "a normal family time". Her understanding is that the Halton C.A.S. took no position with respect to the unification of the family, and part of that would be that apparently they are taking no position with respect to the defendant returning to [the complainant and her mother]'s home. She felt there was no risk at this time. She is prepared to monitor the situation closely, and if the court insisted upon this, she would get the cooperation of her family through her mother and her brother to monitor the situation even more closely. She indicated to the court that she would withdraw her consent for the defendant returning home if there was any problem. She presents as someone who was willing to comply with the suggestions of various authorities in the past and in the future, in order to facilitate family reunification.
¶ 7 One always has to look at the evidence of someone in [the complainant's mother]'s position with great care, as there is a potential for a conflict between her needs and wants and the best interest of the child. As I noted before, she struck me as a bright and articulate witness. She shares financial responsibilities for this home with the defendant, but on the other hand, she is not financially dependent upon the defendant. She was willing to do everything that the court, the C.A.S., and the Crown have suggested to date. She has indicated a continuing willingness to do so in the future. One has to be careful not to be unfair about this type of position, as far as compliance is concerned. So, for example, it is unfair to say she would do anything to get the defendant back home when her only other choice would be to resist the suggestions that have been made, and she would be criticized for that. As far as I can tell from the evidence before me, her cooperation seems to be for all of the right reasons. I cannot detect any question or concern that would lead to another inference.
¶ 8 Also before me on the sentencing, are a number of reports and I have carefully reviewed all of those reports. There are three reports from Timothy Quek, Q-U-E-K. He is a psychologist and in the briefest summary, I would indicate as follows: these are positive reports with respect to the defendant having insight into the situation; the reports are positive with respect to the complainant's adjustment in light of what has gone on; individual and joint counselling has taken place between the defendant and his wife, and with the complainant, V., the whole family has been highly invested in making this work; and all of this has been financed by the defendant. By the time of the second report dated July 4th 2006, the defendant had been to 37 sessions on his own. [The complainant's mother] had been at 25, including 12 with the defendant. [The complainant] had been at seven sessions and there have been eight sessions with [the complainant] and the defendant. The relationship between all three of these people is described as being positive and healthy.
¶ 9 I also have the report from the psychiatrist, Dr. Gojer. That report indicates that the defendant was depressed at the time of the offence, although not to the extent of having a major depressive illness. The report also summarizes the fact that there were 35 counselling sessions, and also group therapy sessions, and there is an indication from the doctor that the defendant has gained insight into his behaviour and that his risk to reoffend is very low.
¶ 10 The defendant is 36. He has a positive employment record. He is intelligent, hard working; he is an achiever. Essentially, he has pulled himself up by his own bootstraps.
¶ 11 With respect to this matter as far as the position of the parties is concerned, it is a defence position that a conditional discharge is appropriate. It is a Crown position that there should be six months in jail and two years probation.
¶ 12 I have considered all the principles of sentencing. I am keenly aware of the dominant role of general deterrence in sentencing, in charges like this one that involve activity of a sexual nature, involve a child, and a position of trust as between a child and the offender. I am keenly aware that this almost always results in time in custody. I have spent a long time reflecting on the evidence in this case and have come to the conclusion that this case is an exceptional one and that sentencing, as a result, need not involve custody even given the principle of general deterrence that I have just ever so briefly reviewed.
¶ 13 In terms of this being an exceptional case, one would look first to the facts. It strikes me that this was an impulsive act. I am dealing only with one count; within that count I'm dealing with a single touch. And in terms of the facts, an additional touch has been admitted with respect to the complainant's girlfriend. It was a plea in the face of a weak case and it seems to me that this is different than even the low end of cases that typically come before the court with respect to other sexual assaults involving children within the home. More typical, for example, are the defendants who choose to slide into bed with sleeping children. More typical, as well, is a repetition of behaviour. It is not uncommon for all of this activity to have somewhat of a seductive approach towards the children, which makes them feel complicit in the activity. Obviously, just using the example I used, one does not slide into bed with a child and do these sort of things without some type of forethought and as I have indicated, I think what I am dealing with here is a single impulsive act at the lowest end of the scale in terms of what that act involved.
¶ 14 In addition, in terms of things to be considered on sentencing, the defendant has gone to extraordinary efforts to support his own rehabilitation, the rehabilitation of his daughter, and to reunite his family. What has been done in this regard is very exceptional when compared to other cases.
¶ 15 I see no purpose in custody, either from the point of view of specific or general deterrence on these facts. On the issue of whether or not a discharge is appropriate, the main concern of course, is whether or not it is contrary to the public interest. On this aspect I would once again return to the defendant's rehabilitative efforts with respect to himself, the complainant, and his family. As I have already mentioned, I consider them to be exceptional. Many people come before the courts promising what they will do, he has come before the court illustrating that he has done it and a continuing willingness to do anything that is necessary.
¶ 16 It seems to me as well, that to the extent that a criminal record has the potential to upset his ability to continue to be a productive member of society and to support his family, it is not in the public interest to do that.
¶ 17 So with respect to this matter, there will be a conditional discharge. There is a period of probation for 18 months. He is to report today and thereafter as required. He is to give to his probation officer the three reports from Timothy Quek and the report from Dr. Gojer. He is to take any further counselling with these individuals or their designates as directed by the probation officer and provide proof upon request that he has done so. He is not to have contact directly or indirectly, with [the complainant], except with the written consent of [the complainant's mother] given to his probation officer or to the intake office today. He is not to live in the same residence as [the complainant] without the written consent of [the complainant's mother] and without seven day's written notice to the C.A.S. [The complainant's mother]'s consent must be given to the probation officer and the defendant must provide proof to his probation officer that he has given written notice to the C.A.S. That last point may be somewhat overcautious, but I think, given the position of the C.A.S., it is not going to cause a problem in that their position seems to be no position, but I think they should be put on notice nonetheless. And if they do not take any action in seven days, then the defendant is free to return to the residence with [the complainant's mother]'s consent. I think I forgot to mention with respect to that consent, that it is revocable by [the complainant's mother] in the same manner. And the next term is that once living in the same residence as the complainant is established, if it is interrupted by the lack of consent of [the complainant's mother] or the C.A.S., the defendant will have to go through the same procedure in order to resume being in the same residence as [the complainant]. In other words, he will have to have the written consent of [the complainant's mother] given to the probation officer in writing, and he will have to give seven day's notice to the C.A.S., as he had to do in the first instance. The victim fine surcharge is waived.