Crown: M. Bloch, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Toronto Criminal Defence Lawyer, Toronto
¶ 1 CROWN: Your Honour, this matter has been carefully considered and reviewed by the Crown including through the judicial pre-trial process which Your Honour was obviously involved in. There's currently an information alleging one count of sexual assault. The Crown is asking to amend that to simple assault...
¶ 2 THE COURT: Thank you. All right. And, Mr. Penney, can you assist me? Is this an informed plea with respect to the amended count?
¶ 3 MR PENNEY: Yes, it is, Your Honour. It's a fully informed plea.
¶ 4 THE COURT: If we could have Mr. P. arraigned please...
¶ 5 CLERK: X.P., you, you stand charged between the 1st day of August in the year 2017 and the 1st day of December in the year 2017, at the City of Toronto in the Toronto Region, did commit an assault on [the complainant], contrary to s. 266 of the Criminal Code of Canada. And how does the Crown elect to proceed?
¶ 6 CROWN: Summarily.
¶ 7 CLERK: Thank you. And to the charges read, how do you plead; guilty or not guilty?
¶ 8 X.P.: Guilty, Your Honour.
¶ 9 THE COURT: All right. Mr. P., listen to these facts, please. You can sit.
¶ 10 CROWN: Between August and December 2017, the - Mr. X.P., the accused before the court provided math tutoring services in his home to the victim. The sessions were approximately 1.5 hours twice a week. Mr. P. would sit next to the victim while tutoring her. At times, the victim struggled with the subject matter. When she was having with the material, Mr. P. would touch the victim with his hand on her thigh, sometimes squeezing and other times shaking her. On at least one occasion, Mr. P. touched the victim on her face and also on her waist area.
¶ In her statement to the police on 10 December 2017, the victim indicated that he quote, "like he kind of shakes me", end quote, that, quote, "he was moving me in the chair", end quote and that the touchings, quote, "usually happens when I don't get like the answer and then he would say oh, it's all - why didn't you get this," end quote. The touchings made the victim feel, quote, "very uncomfortable". She told the police, quote, "Like he would shake me and I was very scared after that", end quote.
¶ One time when the victim was leaving his home, Mr. P. told the victim, quote, "You're skinny, you should eat more", end quote. Mr. P. agrees - this is essentially an agreed statement of fact, I'm reading verbatim from an agreed statement. Mr. P. agrees that the touchings violated a boundary that it was his duty to maintain and, accordingly, the Crown proceeded to a simply assault.
¶ 11 THE COURT: Okay. Thank you. Are those facts agreed?
¶ 12 MR PENNEY: Yes. Those facts are agreed and we agree that there was a, a touching, a violation of a boundary in which there's no legal justification or, or other good purpose for the touching, and he should be found guilty of a simple assault.
¶ 13 THE COURT: All right. Thank you, sir. I find you guilty of the offence of assault simplicitor.
¶ 14 CROWN: The - I will provide a reason for the disposition in a moment, but I'll set out just the position...
¶ 15 THE COURT: Yeah.
¶ 16 CROWN: ...is an absolute discharge with a common-law peace bond, 12 months without surety, without deposit, nominal stated amount of $500, keep the peace and be of good behaviour, no contact, and no, no, no contact or communication with the complainant and not to be within 100 metres of anywhere she lives, works, is known to be, and such. So that's the position...
[The Crown and Defence then made submissions]
¶ 17 THE COURT: Okay. Thank you, Mr. Penney. Mr. P., is there anything you would like to say to me before I sentence?
¶ 18 X.P.: No. No, thank you, Your Honour.
¶ 19 THE COURT: Okay. Thank you. Mr. P., this is has been a long process for you. The matter has been judicially pre-tried a number of times. I'm well aware of the efforts that your counsel has made to provide the Crown with the full context of your medical issues, your family situation, and the counselling that you've undertaken on your own initiative.
¶ It's fair to say that initially this matter was the cause of great concern to the police who acted upon it appropriately. And I also find that the Crown has appropriately exercised his discretion in the recommended penalty to the court taking into account all of the circumstances.
¶ This is a joint submission from experienced counsel. The report from [Counsellor] Quek is a meaningful report. You've acknowledged the acts of touching without consent, and you've engaged in meaningful boundary counselling with respect to your physical contact with persons outside your family.
¶ There is apparently no connection between your brain injury from the accident, and your conduct. Although anxiety seems to be a present by-product of that accident, given the report, what you have learned about yourself and your conduct, and the tools that the counsellor has provided you with in terms of future conduct with other people outside of your family, I'm of the view that you're at a very low risk to reoffend.
¶ I'm of the view that a discharge is in your best interest, not contrary to the public interest. Two days of pre-trial custody will be noted for the record, but you'll be absolutely discharged with respect to the assault simplicitor charge.
¶ Mr. Penney, I understand that your client does not intend to show cause why he should be on a peace bond with respect to contact with the complainant?
¶ 20 MR PENNEY: That is correct, Your Honour. He does not wish to show cause. We agree that the Queen's peace would be better maintained with a peace bond issues primarily because it's going to bring a measure of comfort to the complainant.
¶ 21 THE COURT: Thank you. So, Mr. P., I am going to place you on a 12-month probation - sorry, common-law peace bond. The terms of which are as follows: you're to have no contact, directly or indirectly, with [the complainant]; you're not to be within 100 metres of any place you know [the complainant] lives, works, goes to school, worships, or happens to be. So if you see her in public, sir, just turn around and walk away. The penal sum will be $500 without deposit or surety. Do you understand the terms of that peace bond?
¶ 22 X.P.: Yes. ...
¶ 23 THE COURT: So there is a victim fine surcharge in this matter in the amount of $100. How much time would you like to pay that?
¶ 24 MR PENNEY: I'm asking for six months for that, Your Honour.
¶ 25 THE COURT: Okay. All right. Sir, if you want to have a seat, we're going to prepare the documents for you to sign.
¶ 26 CROWN: And the other count withdrawn, please.
¶ 27 THE COURT: Okay.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
