Crown: B. Jones, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: Mr. M.G. is charged that on the 10th day of June in the year 2006 he committed a sexual assault on [the complainant]. He is further charged that on the same day he being in a position of trust or authority towards [the complainant], a young person, did for a sexual purpose touch directly the body of [the complainant] with a part of his body to wit; his hands. The following is a brief summary of the evidence. [The complainant] was the sole crown witness. She testified on June 10th 2006. She attended at the home of the accused, Mr. G., her great uncle who lived there with her great aunt, Mr. G.'s wife. In the evening, she had a conversation with Mr. G. in the kitchen while they had a drink seated on stools around the island. At one point, Mr. G. told [the complainant] that she was an intelligent and beautiful woman, grabbed her face with both hands, kissed her, and touched her breast. [the complainant] stood up, shocked at what transpired. She moved around the island, and picked up a cell phone to call her mother. Mr. G. turned off the lights followed her, and touched her breasts and buttocks despite [the complainant]'s protests. [The complainant] got away, and went upstairs. Mr. G. testified, and denied ever sexually touching [the complainant]. Rather, when he returned from the bathroom, he accidentally touched, [the complainant] while trying to navigate to his seat. [The complainant] then accused him of trying to kiss her. He vehemently denied it. She stated she was going to call her mother later Mr. G. trying to get the phone from her. The incident ended with Mr. G. putting his glass in the dishwasher. [The complainant] gave him her glass to put in the dishwasher as well. Mr. G. turned off the lights while [the complainant] remained in the kitchen, and went to sleep on the couch. [The complainant] then ran upstairs. Mr. G.'s wife also testified for the defence. She gave no evidence with respect to the alleged sexual assault and sexual touching. Rather, it was her evidence that the morning after she detected nothing unusual about [the complainant]'s behaviour. Mr. G. had gone to play tennis. On his return, [the complainant] left the house. When she did, Mr. G.'s wife testified that she had to remind [the complainant] say good-bye to Mr. G.
¶ 2 Credibility is the focus of the submissions of the parties. Mr Jones for the Crown submits that I should reject the evidence of Mr. G. and accept the evidence of [the complainant]. It is Mr Jones's position that the evidence of Mr. G.'s wife goes to a collateral issue and in any event should not effect the proof of the Crown's case beyond a reasonable doubt.
¶ 3 Mr Penney firstly submits that I should accept the defence evidence and acquit. Even if I do not accept that evidence, in accordance with the analysis established in W.D. I should have a reasonable doubt on that evidence. Finally, regardless it is his position that given the inconsistencies and frailties in the testimony of [the complainant] the Crown has not proven its case beyond a reasonable doubt.
¶ 4 Credibility is a key issue in this case. I instruct myself in line with the well known case of R. v. W.D., (1991), 63 C.C.C. (3d) 397. If I believe Mr. G., I must acquit. If I disbelieve him I may yet be left in reasonable doubt as to his guilt, after considering it in the context of the evidence as a whole. Finally, even if I am not left with a reasonable doubt by it, I must consider the evidence as a whole in determining whether the Crown has proven Mr. G. guilt beyond a reasonable doubt.
¶ 5 In addition, I must give careful scrutiny to all the evidence. A mere positive finding of credibility on the part of the complainant is not always sufficient to support a conviction in a case, especially if there are significant contradictory evidence or frailties in that evidence. The standard of proof in a criminal case is a rigorous one. Although [the complainant] is not an adult, her testimony must be subjected to the same standard of proof.
¶ 6 I cannot accept the evidence of Mr. G. regarding the events of June 10th 2006. The essential difficulty I have with his evidence is the implausibility of it and the manner in which he testified to it. Mr. G. testified in detail with a purported clear recollection of what happened. In the kitchen he testified that upon returning from the washroom and while in the process of trying to sit down, given the tight quarters, he might have hit [the complainant]'s knee with his and may have lightly touched or brushed [the complainant]'s face or perhaps shoulder It is at this point completely out of the blue Mr. G. testified that [the complainant] accused him of trying to kiss her. I do not find this believable. Nothing in Mr. G.'s description of [the complainant] or her behaviour that night could have provided any reason for her to suddenly make this accusation. It was a pleasant and uneventful night up until then. Further, this was not said by [the complainant] in a timid joking or uncertain way. Mr. G. verbally mimicked her reaction in his testimony describing it as strong and outspoken. However, the physical contact between the two could not have reasonably led anyone to even think Mr. G. was trying to kiss her. At the most it was a slight touching of the knee and a brush of the face and shoulder. How could that have led [the complainant]'s or anyone to think he was trying to kiss her? To any observer, the statement of [the complainant], if one accepted Mr. G.'s testimony would be bizarre. Interestingly, however, the purported exclamation of [the complainant] parallels the charge before the court.
¶ 8 Further, [the complainant] is said to have gotten so upset about the slight physical contact or belief that there would be a kiss easily explained as accidental that she was going to call her mother on a cellphone. As described, this is strange behaviour to a minor incident. Again, Mr. G.'s purported reaction was out of proportion with the incident. He tried to take the phone away from her, and she tried to hide it on her body. This entire interaction as described by Mr. G. is not believable given the incidental nature of what is said to have occurred.
¶ 9 I have given due consideration to whether perhaps [the complainant] did react out of proportion or bizarrely to an accidental touch. However, I cannot accept that proposition given the unrealistic nature of the incident as described in its entirety. Nothing in the evidence or by reasonable inference would support that type of bizarre reaction by her.
¶ 10 Mr. G. goes on and describes how after this upsetting incident all he did was tidy up, and put the glasses away into the dishwasher. While doing that, aside from moving the glass from one hand to another, Mr Mr. G. states that [the complainant] cooperated by handing the glass to him. This is not consistent with what he earlier described as her reaction, and the fact that nothing had been resolved. Mr. G. then turned off the light switch leaving [the complainant] in the dark, and he went to sleep in the living room. Mr. G. did nothing further. He did not speak to [the complainant]'s mother or his own wife or try to resolve anything.
¶ 11 Indeed, his action is inconsistent with his previous conduct which only moments earlier went so far as him trying to grab the phone from her. Had he been that concerned, it does not make sense that he would simply just leave and go to sleep. The only explanation he provided for not doing anything further was that he did not think about doing it. None of this description has a ring of truth.
¶ 12 Some of it seems designed to just trap part of what [the complainant] had said occurred. For example, the turning off of the light, but there does not appear to be a good reason for it as given by Mr. G. For instance, why would he simply turn off the light on [the complainant] leaving her upset in the dark, a grand niece who had just acted if one believed him in a totally irrational way? In short, viewed through the lens of common sense Mr. G.'s evidence does not withstand that scrutiny and I reject it.
¶ 13 Even if not accepted, does his testimony raise a reasonable doubt? I do not find his rejected testimony to raise a reasonable doubt in this case. In some cases, even if not accepted, the accused's testimony alone or the evidence relied upon the defence can raise a reasonable doubt. This is not one of those cases. Specifically in this case it is not a matter of whether I believe the defence or the complainant. The Crown must prove its case beyond a reasonable doubt at all times. I do not find Mr. G.'s testimony in the context of the whole of the evidence leaves me with such a doubt.
¶ 14 I say that with appreciation of the testimony of Mr. G.'s wife. Of course his wife gave no evidence with respect to the allegations on the evening of June 10th. She is not a material witness in that regard. She did testify to events of the morning of June 11th. If believed, her testimony would a) contradict certain parts of [the complainant]'s testimony, and thus would be relevant to [the complainant]'s credibility, b) would support Mr. G.'s testimony in that respect, and c) is material to the issue of [the complainant]'s demeanour on the morning after. For the reasons I will give below when I assess this evidence, I do not find the evidence of Mr. G. in the context of his wife's evidence such that it would raise a reasonable doubt.
¶ 15 This brings me to the important analysis of the evidence of [the complainant]. The Crown relies upon her evidence to prove its case beyond a reasonable doubt. It is important to scrutinize her evidence carefully. There is no doubt in my mind that she testified in a collected and responsive manner. She is an articulate and intelligent young woman. The manner in which she testified was impressive.
¶ 16 However, it is clear it would be wrong to simply accept her testimony on the basis of demeanour. A criminal trial cannot be determined on the basis of a witnesses superficial performance in the witness box.
¶ 17 Mr Penney has submitted that there are significant contradictions and improbabilities in her evidence. I will assess these carefully. Mr Penney submits that there was some inconsistency in the nature of the relationship between [the complainant] and Mr. G. as described by her. In-chief in response to a leading question, she said that she saw Mr. G. every two months. While in her statement to the police she said that they were not very close. In my view, this was a very minor inconsistency if an inconsistency at all. In-chief, she did not try and make the relationship close. It was her experience that she was unsure when she had previously saw them, and it was likely on a holiday or at her grandmother's place. Even before her statement to the police was put to her in cross-examination she testified she was not really close to them.
¶ 18 I do not find there to be a real inconsistency here. She has, indeed, been pretty consistent. She was not close to Mr. G., and did not see him often.
¶ 19 Secondly, Mr Penney submits that in cross-examination, when asked about the first incident involving the kiss whether there was any other contact at all, [the complainant] was inconsistent by replying no. When it was put to her that there was, in fact, a touch to the breast [the complainant] explained that she had interpreted the question to include that contact as she had previously mentioned the touching to the breast. I accept that explanation. It is obvious that [the complainant], both in-chief and cross, had testified that Mr. G. did touch her breast in the first incident. Her less than fully accurate response to Mr Penney's question was a result of her not understanding the need for the exactness of her answer to that question. It was not a result of carelessness with the truth, that could lead to a diminishing of her credibility.
¶ 20 Thirdly, the defence puts a great deal of weight in the contradiction about the nature of the kiss. In-chief and in cross she testified that Mr. G.'s mouth was closed when he kissed her. In her statement to the police she described his mouth as open. In addition, there is said to be some inconsistency between her testimony and the statement as to whether Mr. G. pulled her closer or not.
¶ 21 [The complainant] did not have a good recollection of whether she said these statements to the police. It is submitted that these are material inconsistencies that an honest witness is unlikely to be mistaken about and as such demonstrates a carelessness with the truth.
¶ 22 In my view they are not. First of all, the context of the incident and her reaction to it must be recalled. It happened suddenly, quickly, and left her stunned. These details are the type of details that an honest witness may not fully impress upon his or her memory given how it happened. Further, the inconsistencies are not major ones. For instance, whether the mouth is open or closed, or the degree to which the lips are apart is a minor inconsistency and a subjective description that can vary even with honest recollection.
¶ 23 It is not as if [the complainant] was inconsistent about the number of times Mr. G. tried to kiss her or had greatly exaggerated his amorousness.
¶ 24 Finally, they are the type of detail that an honest witness can be mistaken about given the passage of time between the event and testimony. At bottom, [the complainant] been consistent about the description of the incident and was not shaken in cross.
¶ 25 Fourthly, with respect to the second incident where [the complainant] described how Mr. G. fondled her in front of the stove, Mr Penney argues that this is improbable. He argues that it does not make sense after, according to [the complainant], Mr. G. was begging her not to tell her mother, and apologizing that he would suddenly switch gears, and try and grope her again. I have given this submission careful consideration subjecting it to the scrutiny of common sense. I find that it does not diminish her credibility. It must be remembered that Mr. G. was also commenting at the time that [the complainant] was beautiful and she was tempting him. It was not all one way in terms of contriteness nor would I characterize his behaviour as truly begging.
¶ 26 Further, [the complainant]'s description of the comments of Mr. G. that he was sorry, and asking her not to tell anyone does not logically preclude him from trying again. Particularly in light of the fact that [the complainant], in fact, did not use the phone then to call her mother. This could reasonably have led Mr. G. to believe she was following his comments.
¶ 27 Finally, it does not strike me as all that unusual or bizarre that a person who is making a sexual advance might persist in their conduct despite reluctance from the object of their attention.
¶ 28 The final major issue worth consideration are the events of the morning of June 11th. [The complainant] testified though she could not recall everything that morning, she had called her mother to tell her what happened, and arranged to meet. She showered thinking Mr. G. had left for tennis. Aunt B. was upstairs as well, and when she came out she saw Mr. G. around her room who asked if she was okay. [The complainant] just walked away. Then prior to leaving Aunt B. told her to say goodbye to Mr. G. Mr. G. gave her a hug and a kiss on the cheek, and said something to the effect that she behave, and he would try, and he let out a giggle. Miss R. testified that she acted as normally as she could to maintain appearances as she did not want her aunt to know. She testified that while Mr. G. had gone to tennis he had returned.
¶ 29 Mr. G. and his wife testified to a different version of events. Mr. G. testified that he went to tennis as is his normal routine. He left at 8:45 a.m., returned around 12:15 and [the complainant] was still present. He went to the living room to watch the French Open tennis final. As she was leaving Mr. G.'s wife told her to say goodbye to her uncle. [The complainant] said goodbye and Mr. G. said goodbye from the couch. [The complainant] then left. Mr. G.'s wife testified and confirmed this stating that her husband left at 8:45. She laid down and watched her favourite t.v. program Coronation Street. Her sister, [the complainant]'s mother, called after ten to arrange a pick-up of [the complainant]. [The complainant] showered, and Mr. G.'s wife did not notice anything wrong in her behaviour. She testified Mr. G. returned after 12, because she told him the tennis was still on. They said goodbye and [the complainant] left.
¶ 30 With respect to the demeanour of [the complainant], the impact of the evidence is neutral since [the complainant] agreed she was trying to act as normally as she could. In assessing this aspect of the evidence I accept the evidence of [the complainant] as to what transpired on that morning. I do not accept the accuracy and reliability of the evidence of the G.'s regarding what occurred that morning.
¶ 31 First of all, it is apparent to me Mr. G.'s wife is supportive of her husband. I find her testimony and her recollection is affected to a degree by that perspective. Secondly the timing of Mr. G.'s return could be mistaken. Mr. G.'s wife relied upon the general routine of her Sunday morning in estimating her time. I find that Mr. G.'s wife could be mistaken about when her husband returned, and the circumstances of [the complainant] leaving. Mr. G.'s wife for sure watches t.v. until 10:00 a.m. because her favourite show Coronation Street is on until then.
¶ 32 However, she did not testify that she continued watching t.v. thereafter, but testified how she interacted with [the complainant] around the time, and after she showered. She testified that she told Mr. G. on his return that the tennis final was on. It is unclear to me that she was still in fact watching t.v. some two hours after Coronation Street finished if he returned after 12:00 p.m. Mr. G.'s wife testified that she was conversing with [the complainant]. Indeed, if the final of the French Open started at 9:00 a.m. as Mr. G.'s wife testified it did, how could she say with any certainty that the game was still on over three hours later. It may well be that on this Sunday Mr. G. returned early from tennis concerned about what had transpired the night before, and while the final was still playing.
¶ 33 Further, [the complainant]'s account of seeing Mr. G. is clear, and makes sense. Even when counsel put to her a suggestion that Mr. G. was away at tennis when she left, and that both Mr. G. and his wife was going to testify to that affect, a suggestion which counsel agreed was not based upon fact, a suggestion that was in that sense unfair to [the complainant], although Mr Penney apologized and later admitted his mistake, [the complainant] steadfastly maintained her testimony.
¶ 34 The final aspect of this evidence is that I do not find it to have the type of impact on the case that the defence counsel submits. I do not find the wait of this part of the evidence regarding what transpired on the next day to be that significant to the issue of whether the sexual assaults took place the evening before. Even if there were reason to doubt [the complainant]'s version about exactly what occurred the next morning, and it must be remembered she admitted her recollection is not complete. I find that this does not substantially diminish her testimony about what happened the night before. Equally, I do not find that were there corroboration of Mr. G.'s testimony about the morning of June 11th this rehabilitates his testimony regarding the sexual assault.
¶ 35 I caution myself that [the complainant]'s testimony is unconfirmed by other evidence. However, based upon the analysis of her evidence, and the whole of the evidence in the case I find that I can, and I do accept the credibility and reliability of her testimony.
¶ 36 No issue arises with respect to consent. It is undisputed that [the complainant] did not. I find that the Crown has proven beyond a reasonable doubt that Mr. G. sexually assault [the complainant] on June 10th, 2006.
¶ 37 I am mindful of the position taken by the parties on whether Mr. G. was in a position of trust or authority towards [the complainant]. Particularly the concession of the defence. However, it remains incumbent upon me to ensure that Mr. G. only be convicted of offenses that I am satisfied there is a reasonable doubt, but that there is proof beyond a reasonable doubt.
¶ 38 For the following reasons I find that I have a reasonable doubt that Mr. G. was in such a position of trust or authority within the meaning of s. 153.
¶ 39 The issue is whether the Crown has proven beyond a reasonable doubt the position of trust or authority. This relationship is not one that is presumed to exist as a matter of law based upon the status of the relationship, but remains a question of fact. Mr. G.'s status visa vie [the complainant] is that of a non-biological great uncle. The leading authority on the definition is R. v. Audet, (1996) 2 S.C.R. 171 at paragraph 33 where the majority decision of Mr Justice La Forest approved of the following explanations.
¶ 40 "The courts have had little to say on a theoretical level about the scope of these expressions, which are nowhere defined in the Criminal Code."
¶ 41 Proulx J.A. wrote the following about the "position of trust" concept in Leon, supra, at p. 483:
¶ 42 "In its primary meaning, the notion of authority stems from the adult's role in relation to the young person, but it will be agreed that in the context of this statutory provision, to be in a "position of authority" does not necessarily entail just the exercise of a legal right over the young person, but also a lawful or unlawful power to command which the adult may acquire in the circumstances."
¶ 43 For his part, Blair J. made the following comment in P.S., supra: "[a position of authority] invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority."
¶ 44 Finally Blair J. also in P.S. wrote the following about the term position of trust One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts or reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.
¶ 45 Also at paragraph 38 of the judgment Justice La Forest concludes, "It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases."
¶ 46 Not every family member, however distant or however sporadic the contact will be said to hold the position of trust or authority. Parliament did not elect to prohibit sexual contact with a young person by referring to the status of the accused in relation to the young person. So this factor cannot be decisive.
¶ 47 In this case Mr. G. is the great uncle of [the complainant]. [The complainant] testified that the contact was not regular. It occurred in generally group settings on a holiday or while at her grandmother's house. On a leading question by the Crown, at best her evidence was that they would see each other every few months. To the police it was at longer intervals.
¶ 48 She described to the police they were not close, and that she never really saw them. In her testimony she testified that she was not close to Mr. G. His testimony is also consistent with a distant relationship.
¶ 49 In addition [the complainant] at the time of the offence, although a young person, appeared to be a mature, sophisticated and articulate individual. While Mr. G. was a great deal older than [the complainant] there was little evidence led with respect to the evolution or nature of the relationship such that I can safely conclude beyond a reasonable doubt at the relevant time Mr. G. exercised a power over her that he was in a position of trust over her.
¶ 50 In addition, the circumstances of her staying that night was not such that I can infer that this trust relationship existed since her Aunt B. was present and [the complainant] indicated she was there to use the computer with Aunt B. to whom she was much closer. No other evidence or witness was called by the Crown to establish the nature and evolution of the relationship. Without doubt, there is a body of evidence supporting the proposition Mr. G. was in a position of trust, but based on the evidence and the absence of evidence I am prepared to give Mr. G. the benefit of the doubt on this point.
¶ 51 As a result he will be found guilty of count one. He will be acquitted of count two, and this count will be dismissed. Are the parties prepared for sentencing today?
[The sentencing was adjourned to 23 May 2007.]
¶ 52 THE COURT: Under s. 730 of the Criminal Code a conditional discharge can be imposed if I consider it to be in the best interest of the accused and not contrary to the public interest. There is no dispute a discharge will be in Mr. G.'s best interest. The real issue is whether it would be contrary to the public interest to grant one. The Ontario Court of Appeal made the following germane remarks in R. v. Sanchez-Pino: "The granting of some form or discharge must be in the best interest of the accused. I take this to mean that deterrence of the offender himself is not a relevant consideration in the circumstances, except to the extent required by the conditions of a probation order, nor is his rehabilitation through correctional treatment centres except to the same extent. Normally, he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be contrary to the public interest to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence, a standard part of the criteria for sentencing. The granting of a discharge is not confined to only minor cases, nor does the fact that deterrence as a consideration preclude the use of a discharge. The principles of sentencing as set out in s. 718 must be carefully considered in determining whether a discharge is an appropriate disposition in any individual case."
¶ 53 Before I turn to those considerations, I would like to deal with Mr Jones' written submission that is an aggravating factor that Mr. G. was in a position of trust, vis-a-vis, [the complainant]. I must reject that submission. In acquitting Mr. G. of the offence under s. 153 I gave him the benefit of the doubt he was in a position of authority or trust. This is, in my view, determinative. The Crown has failed to prove a breach of that trust beyond a reasonable doubt, and I do not intend to consider that as an aggravating circumstance. This is not to say the context of the offence is to be ignored. The context in this case being that the sexual assault took place in a familial setting, although not a close family relationship and that Mr. G. was the complainant's great uncle, someone who was considerably older and more mature than she was.
¶ 54 Let me turn now to the consideration of the relevant factors. Mr. G. is a mature individual, 69 years of age without a criminal record. He has been throughout his life apparently responsible and a person of integrity. He has formed stable relationships. In short, this offence is out of character for him. The charge when laid, no doubt, has caused Mr. G. considerable punishment. The finding of guilt has only furthered that. The impact upon him by way of social stigma and the damaging of familial ties cannot be underestimated. He has suffered. Especially, at the stage of his life when anyone would have wanted to spend what is often referred to as the Golden Years surrounded by warmth and family.
¶ 55 In my view, specific deterrence is not a particular consideration. I do not think it likely that Mr. G. would ever find himself acting in this fashion gain. Rehabilitation is also an important consideration. Certainly, if one looked at that factor alone, a discharge would only further this goal. Having said all this, Mr. G. while perhaps remorseful about the impact this all has had on others did not plead guilty and demonstrate his remorse in that fashion. He denied his guilt and his niece had to testify. While Mr. G. is not to be punished for exercising his constitutional right to a trial, I cannot find that there exists true remorse as a mitigating circumstance in this case. This fact alone distinguishes many of the cases cited by and relied upon by the defence.
¶ 56 I turn now to the offence itself. Mr. G. was found guilty of sexual assault. The actual physical assaults themselves were not on the most serious end of the spectrum. They amounted to unwanted and clumsy sexual advances by a much older man committed impulsively, probably under the influence of alcohol. They involved a kiss and some fondling of the breasts and buttocks. On the other hand, there was demonstrated persistence by Mr. G. even after [the complainant] moved away the first time; and, when she made as if to call her mother, Mr. G. pleaded for her not to and fondled her a second time by the stove. In my view, there are two important factors in this case that weigh against the granting of a discharge.
¶ 57 The first is that the assault was sexual in the nature. It was at the hands of a much more mature man upon a much younger woman. A man whose life experiences are such that undoubtedly he should have known better. Finally, [the complainant] was his great-niece, a member of his extended family. A person he has seen grown up and with whom he had more than a passing acquaintance. The crime of sexual assault is by definition a crime of violence. As such, it is always a serious transgression on a victim's physical, emotional, and psychological integrity. On this point I agree with the remarks of Justice Bovard in R. v. Liu,  O.J. No. 2908. However, I do disagree with respect to any comments made by Justice Bovard that could be interpreted to mean that a finding of guilt for any sexual assault should automatically disentitle the offender to a discharge. However, of course, the nature of the offence remains a significant factor against the granting of a discharge.
¶ 58 The second factor is, the fact that it was committed upon a person under the age of 18. Section 718.2(2.1) reflects Parliament's intention that abuse of a person under the age of 18 years be considered an aggravating factor, and I do so consider. Parliament has drawn the line at those under 18 and those over 18. The offence here was perpetrated on an individual who has been recognized due to the relative immaturity and vulnerability as a result of their age to be considered worthy of special protection. In these circumstances, the concept of denunciation and general deterrence attracts more and not less weight. Of course, the weight to be given to this factor must vary according to the circumstances of each case. Age of the victim is a variable factor and so must the balancing of this aggravating factor. Here [the complainant] was 17 years of age, almost 18. In addition, she struck me as a mature individual. While abuse of any child is intolerable, the case before me is significantly different from the sexual touching of a much younger child. In this regard I have some difficulty with the decision of Justice Hawke in Perry's Case, unreported October 31st, 2006, Ontario Court of Justice. In reconciling the facts of that case and the conditional discharge imposed, it is worth mentioning that now, given the amendments, any conviction under s. 151(a) would be punished by a minimal term of imprisonment of 45 days. Fortunately, we are not dealing with such a situation today.
¶ 59 Having regard to these two factors that I have just mentioned, I was minded to conclude that a conditional discharge would not be appropriate in this case.
¶ 60 I have, however, been persuaded by counsel and the materials filed that it is on the facts of this case. First of all, I have been impressed by [the complainant]. I'm impressed by her maturity and as a person, although I only had a glimpse into what her life was like when she testified. I do harken back to some of the evidence that I heard about the conversation that she had with Mr. G. before the assaults where she described how she had helped her mother and how saddened she was by the physical distance of her father. In her letter to me, [the complainant] writes, and I will quote the entire letter. "I just wanted to be believed. I do not want anything bad to happen to him. From the beginning, all I wanted was an apology. I am glad it is all over now and I am getting on with my life." In my opinion, this short letter speaks volumes about the kind of person [the complainant] is. Her generosity and her character. It also reflects the fact that she has not been particularly traumatized by the assault. In these circumstances, given her age, maturity, and attitude, there is less force or need for deterrence and denunciation.
¶ 61 Finally, her short letter demonstrates a desire to move on. A desire to heal herself and perhaps her family. It is this healing process that I have given considerable weight to. It is easy to understand why any person in the shoes of Mr. G. would want to deny having committed a sexual assault, but to his credit even before trial, he was assessed by Dr. Quek on June 29th, 2006. In addition, he underwent some 18 sessions of therapy with Dr. Quek. While the therapy did not include obviously any admission or treatment of the offence by Mr. G., Dr. Quek was provided with a great amount of information regarding the offence and was therefore not "in the dark" about what took place. Mr. G.'s willingness to undergo therapy to deal with his symptoms augers well for the potential to reunify the family. He has no personality or sexual disorders. While criminal conviction is not unwarranted on these facts, in my opinion a conditional discharge would further the prospect that there will or there might be some healing within the family. I have heard from Mr. G.'s wife as well. I quote: "The events of the last 11 months have torn apart our family and we hope that there will now be some kind of closure. While nothing will ever be quite the same, we hope that life may get back to some form of normalcy. Everyone involved has been punished and all of us in the family have suffered."
¶ 62 In my final view, to allow this healing process a better chance to succeed, not just for Mr. G., but for [the complainant], her mother, the other family members, this would be in the public interest. More than lip service should be paid to the concept of restorative justice. In this case, what needs to be restored is some sense of balance and help in this family and their larger community. A conditional discharge would further this and therefore, in my opinion, meet the concept for the requirements of s. 718. And, for Mr. G. you will be placed on probation for a period of 18 months. A conditional discharge is granted.