Crown: E. Meijers, Assistant Crown Attorney, Barrie
Defence: C. Penney, Sexual Assault Defence Lawyer, Toronto
¶ 1 THE COURT: The defendant, Mr. C., has entered pleas of guilty to two counts of assault on his estranged wife, [the complainant], relating to events on October 29 and November 18th, 2008. The Crown submits that I should consider a period of custody of 90 days followed by probation. Counsel for the defendant takes the position that the Court should grant a conditional discharge with probation.
¶ 2 The defendant and [the complainant] were married in 1997. They have two children. At the time of the offences they were separated but living together in the same house. The defendant was living in an apartment in the basement. On October 29, 2008, [the complainant] was on the phone with her boyfriend in her part of the house. The defendant entered her room. He was naked. He mounted and straddled her. He began to masturbate and ejaculated on her. This offence was not reported to the police until after the second incident.
¶ 3 On November 18th, [the complainant] was once again in her room speaking on the phone. The defendant came into her room. She left and went into the defendant's apartment and locked the door. He returned to his apartment and [the complainant] let him into the apartment. The defendant was naked. He placed some pornographic material on his computer and he masturbated. [The complainant] wanted to leave, but the defendant grabbed her arm for a short period of time before he let it go and allowed [the complainant] to leave.
¶ 4 It is agreed as part of the factual underpinnings of these offences that the defendant's actions had no effect on [the complainant]'s sexual integrity, and that the defendant's actions were only for the purpose of trying to control her and were not done for a sexual purpose.
¶ 5 In this sentencing I must, of course, consider the sentencing principles set out in section 718 of the Criminal Code, and balance the various mitigating and aggravating factors. The aggravating factors in this matter include the following:
¶ 6 First, the defendant has committed two offences involving domestic violence. The defendant's actions were motivated by a desire to gain control and power over his spouse and her actions. The defendant's actions, although not done with a sexual purpose, were repulsive.
¶ 7 Second, the defendant's illegal actions occurred on two separate occasions.
¶ 8 Third, in her victim impact statement, [the complainant] sets out how she has been adversely affected by the defendant's actions. She indicates, for example, and I quote:
¶ 9 "I worry about my safety, and I am now very concerned about ensuring that my house is secure. I am basically less trusting of people, and noises startle me much more than they used to, especially when I'm in my house."
¶ 10 The mitigating factors that I must be cognizant of include first, the defendant has entered a plea of guilty to both counts and appears to be generally remorseful for his actions.
¶ 11 Second, the defendant, who is a few days short of his 49 birthday, is a first offender.
¶ 12 Third, an impressive array of character letters relating to the defendant have been filed. These letters highlight that the defendant is otherwise a good person, and has been a contributing member of his community. These letters illustrate that the defendant's actions which give rise to these charges appear to be completely out of character.
¶ 13 Four, the defendant has sought professional help to assist him in understanding and rectifying his criminal behaviour.
¶ 14 The defendant sought an assessment and psychotherapy from Mr. Timothy Quek, and a report has been filed. After a number of psychotherapy sessions with the defendant, Mr. Quek opined, and I quote:
¶ 15 "Mr. C.'s behaviours appear to be related to a strong need to bring control over what he perceived to be a loss of his relationship with his wife, particularly when [the complainant] began a serious dating relationship in September, 2008. Mr. C.'s inability to express himself emotionally under situations of stress, and his desire to express his confusion and hurt to his wife, who he assumed would not listen to him, likely precipitated in his inappropriate behaviour."
¶ 16 Mr. Quek indicated that Mr. C. has made progress in therapy, and that he should continue counselling. In addition, the defendant has become involved in the PARS program and intends to complete the program. In a letter from the PARS counsellor, Mr. C. was described as "appearing to be attentive and participating in most groups."
¶ 17 Five, the defendant has been employed as a school teacher for many years, and his peers speak highly of him.
¶ 18 Six, the defendant spent two days in pre-trial custody, and it can be inferred that this has had a deterrent effect upon him.
¶ 19 Seven, the defendant has formed a new relationship with Sally V., who is aware of the defendant's plight before this court and she is supportive of him.
¶ 20 Clearly denunciation and deterrence, both general and specific, are important principles that must be considered in all domestic assault situations. As well, because the defendant is a first offender, rehabilitation is an equally important factor.
¶ 21 On a balance of the aggravating and mitigating factors that I have referred to, and considering the mandated sentencing principles, it is clear to me that a period of custody is not necessary in this matter. The significant consideration here is whether the defendant should be granted a conditional discharge or rather a suspended sentence and probation.
¶ 22 In my assessment, this is a close call. There is a very real risk that the defendant will lose his employment as a result of these matters before the Court. The board of directors of his private school will be considering his future after this criminal matter is completed. As well, the College of Teachers may consider whether his licence to teach in Ontario should be revoked.
¶ 23 I accept Mr. Penney's assertion that Mr. C.'s odds of maintaining his employment at his current school, and his licence to teach with the college, will be increased if he is granted a conditional discharge and does not have a criminal record. Of course it is important for Mr. C. to continue to be gainfully employed so that he can maintain his support payments for his children.
¶ 24 There is no doubt that the granting of a conditional discharge will be in the defendant's best interests. The bigger issue is whether it would be contrary to the public interest to grant him one. The public interest requires that must be a deterrent and denunciatory aspect to this sentence to send a message to others who may be minded to commit a domestic assault. Deterrence here can be achieved by the recognition that the defendant has been arrested and gone through the Court process. He also spent two days in custody. Deterrent value can also be exhibited through a lengthy period of probation with significant terms.
¶ 25 Despite the nasty aspects of these assaults, it is my view that the defendant should be granted a conditional discharge. As part of the discharge you will be placed on probation for a period of two years with these conditions.
¶ 26 Mr. C., please stand up.
¶ 27 The terms of the probation order will be as follows:
¶ 28 You will report in person within two working days and thereafter as required by your probation officer.
¶ 29 You will attend and actively participate in any rehabilitative counselling for domestic assault issues, anger management, and other matters as recommended by your probation. You will provide any information and confirmation of your involvement in such programs upon request to your probation officer.
¶ 30 The next term is that you will continue counselling with Mr. Quek, and you will not terminate that counselling without the permission of your probation officer and Mr. Quek. You will also provide any information concerning your progress in that program upon request to your probation officer.
¶ 31 You will complete the PARS program to the satisfaction of the director of that program, and you will provide any information concerning your progress in that program upon request to your probation officer.
¶ 32 You will not have in your possession any weapons as defined by the Criminal Code of Canada.
¶ 33 You will not associate directly or indirectly with C***.
¶ 34 The next term is that you will not associate or communicate directly or indirectly with [the complainant], or attend within 100 metres of any known place of residence, place of employment or place of education except as follows:
¶ 35 The first exception is as permitted by a family Court order relating to access to the children of the relationship, or except as permitted by a written separation agreement relating to access to the children of the relationship, or as permitted by a written separation agreement relating to access to the children of the relationship, or except through legal counsel, or except by telephone or in writing relating to have access issues, or accept in the presence of an adult third-party mutually agreed upon for the purposes of exercising access.
¶ 36 I'm also going to require that you complete 50 hours, that's five-zero hours, of community service work. That's to commence within 45 days at the rate of five hours per month in consecutive months, and that shall be completed within the first eight months of the probation order.
¶ 37 I will just pause there. Are there any other terms or conditions or clarifications sought with respect to the terms of the probation order?
[Submissions are made at this time.]
¶ 38 THE COURT: ... So that will read "or except in writing relating to access." And then I had "or except in the presence of an adult third-party mutually agreed upon for the purpose of exercising access."
¶ 39 MR PENNEY: Yes.
¶ 40 THE COURT: Now I'm going to add "except by telephone if [the complainant] provides written revocable consent to your probation officer in advance authorizing telephone contact." Okay? Is that satisfactory?
¶ 41 MR PENNEY: Yes. Yes, sir, I think so.
¶ 42 THE COURT: Is that satisfactory to you, Mr. Meijers?
¶ 43 CROWN: Thank you very much, Your Honour.