Crown: S. Olver, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Toronto Sexual Assault Lawyer
¶ 1 CROWN: Good afternoon, Your Honour. Your Honour, I notice that you have all the excellent materials that Mr Penney did send to the Crown's office, as well as to yourself. This is a matter that was set for a four-day trial. Mr Penney did speak to me, considerably, in fact, prior to even sending that material. And I had to look at that material, and I had to meet with [the complainant] Unfortunately, she was not able to meet with me until just yesterday. After I met with her, and certainly went over the evidence with her, including the particulars that were listed quite clearly by Mr Penney in his section-276 application, which in my respectful submission, is definitely relevant to the case, I can say this, Your Honour. That there is no question that there is no reasonable prospect of conviction in this matter. And I made a point of informing Mr Penney right away after I met with the complainant. We came to a joint resolution that Mr. C. will enter a Section 810 peace bond for a period of 12 months, $500, no deposit, no surety, with only one condition, other than the statutory condition of keeping the peace and being of good behaviour, and that is as follows: "not to have any contact with [the complainant], or Martin T., who is her husband, unless that contact is initiated by either or both of them, or except as may be required by or incidental to your employment."
¶ 2 THE COURT: Do you have that written out?
¶ 3   CROWN: Yes, I do.
¶ 4 MR PENNEY: Perhaps you can pass it to the Court Clerk.
¶ 5 THE COURT: Right here, Your Honour.
¶ 6 CROWN: Mr Penney was gracious enough to supply that.
¶ 7 THE COURT: I anticipated that both of you might have turned your mind to putting it in writing.
¶ 8 CROWN: I can say this. Mr. C. was employed at [a mall] when this particular allegation arose. [The complainant] also is employed there presently. When I spoke to her yesterday, she is aware, and she, in fact, was quite content that this matter get resolved via a peace bond. The issue with the residence is that Mr. C., in fact, lives in the same apartment building, only about three doors down, and he has already paid a significant amount of rent for the next 11 or 12 months. That was explained to [the complainant] yesterday. And I did indicate to her that he will have to return, but for her to stay away from him, just like he knows he has to stay away from her and her husband. She understands the circumstances and she is content. Most probably, Your Honour, you had an opportunity to at least peruse the transcript of the DVD of [the complainant] I can say even prior to the 276 application sent by Mr Penney I had concerns in terms of the elements of the offence. And yesterday, [the complainant] also gave more information that questions whether sexual assault should have been even laid, Your Honour. So, hopefully, you will allow Mr Penney and I to certainly proceed in this fashion of the section 810.
¶ 9 THE COURT: Yes. May I see the section-810 allegation, please. Thank you. Mr Penney, it is my practice to endorse any express waiver of the passage of the statutory limitation period on the section-810 Information itself. In order for me to have jurisdiction, obviously, to proceed in the manner contemplated by counsel, such a waiver would be necessary. I am inferring that Mr. C. does consent to the waiver.
¶ 10 MR PENNEY: Yes, we do consent.
¶ 11 THE COURT: All right. I am going to pass the Information down. You will see a hand-written notation and a place for Mr. C's signature on the face of the Information.
¶ 12 MR PENNEY: Yes. I will just speak loudly as to what we are doing. Mr. C., we are just indicating that because this is over 12 months old that we are consenting to this occurring with respect to the peace bond.
¶ 13 THE COURT: All right. Mr. C. needs to sign personally.
¶ 14 MR PENNEY: Yes.
¶ 15 THE COURT: Thank you. Mr. C. has signed, indicating that he waives the limitation period. Is it necessary, Ms Olver or Mr Penney, that the section 810 allegation be formally read to Mr. C.?
¶ 16 MR PENNEY: No, it is not, Your Honour. I have explained it to Mr. C. in some detail because this was arranged in advance. And I can indicate that we are consenting to Your Honour having jurisdiction, of course. And unless Your Honour wants to hear further from me, I think Ms Olver has put sufficient circumstances on the record. And of course, Your Honour has the materials, as well, to inform you of some of the background.
¶ 17 THE COURT: Thank you. I have reviewed the materials briefly, and I have listened to the submissions of Crown counsel, supplemented by those of Mr Penney. In all of the circumstances, I am satisfied that the resolution proposed by both counsel is a fit and appropriate in all of the circumstances. I commend counsel for applying their minds to the matters at an early juncture, once all of the information was available for consideration and the complainant could be re-interviewed. In the circumstances then, Mr. C. not wishing to show cause, he is ordered to enter into a recognizance in the amount of $500, without deposit, without surety, valid for a period of 12 months. The terms of that recognizance are that he shall keep the peace and be of good behaviour and he shall have no contact or communication directly or indirectly with [the complainant] or [her friend], unless that contact is initiated by either or both of them, or except as may be required by or is incidental to your employment. I have signed the recognizance to that effect. Mr Penney, if you would like to review it with your client. If he agrees with its terms, would he sign at the bottom using a ballpoint pen, please.
¶ 18 MR PENNEY: Your Honour, I don't wish to be fussy, but with respect — I prefer the language be maintained because it says, "no contact or communication," and then it says, "unless that contact." I would suggest the language be the same. "Unless that contact or communication."
¶ 19 THE COURT: Well, if you pass it back up, I will simply add that in.
¶ 20 MR PENNEY: I just worry what might be in the mind of some police officer. Just for the record, while Your Honour is doing that, pursuant to my undertaking, I did return the three DVDs that I received as disclosure in this matter.
¶ 21 THE COURT: Thank you.
¶ 22 MR PENNEY: Mr. C., if you can come forward. The bond has been executed, Your Honour.
¶ 23 THE COURT: Thank you. Mr. C. will be provided with a copy of the recognizance for his own records. And I take, in light of all that I have heard, that the Crown is asking that the criminal charge be marked withdrawn.
¶ 24 CROWN: That's correct.
¶ 25 THE COURT: So marked.