Crown: F. Hawthorn, Office of the Crown Attorney, Lindsay
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: Okay. All right. So perhaps Mr. M.H. could just formally indicate the change of plea then. Mr. M.H., I understand that you now wish to change your plea on the sexual assault count to one of guilty.
¶ 2 CLIENT: Correct.
¶ 3 THE COURT: Okay. So we'll make that change on the Information.
¶ 4 CROWN: Thank you, Your Honour. The facts are as follows. On Friday July the 11th, 2014 Detective Constable Carmichael was assigned to investigate an incident. During that investigation the officer received information regarding a sexual assault. The officer spoke with the victim, [the complainant], and her mother. On Saturday July the 26th, 2014 Detective Constable Carmichael attended the Ontario Provincial Police Kanata detachment and conducted a video with the victim [the complainant], and her mother. The facts that emerge were as follows. Sometime between June the 1st 2010 and September the 30th 2010, the victim, [the complainant], attended her aunt and uncle's residence, which is located in [our Region]. Her aunt is D.H., who's the sister of [the complainant]'s mother, and her husband, the accused, M.H. At approximately 11:00 p.m. the victim was sitting on the couch in the living room at the residence, watching TV with the accused, M.H. While sitting on the couch together, the accused asked the victim if he could give her a foot massage. The victim said yes and the accused removed the victim's socks. While giving the victim a foot massage, the accused reached over and touched the victim's right breast and began to slide his hand down the victim's chest and stomach area. At this time the victim stood up and left the room, stating that she was going to bed. The following morning, the victim was sleeping in a bedroom on the second floor of the residence when the accused entered the room with a coffee and two to three chocolates. The victim woke up as the accused entered the room.
¶ 5 However, she continued to keep her eyes closed and pretended to be asleep. While the accused was in the room, he bent down and kissed the victim on the lips. The victim stated that the accused had never kissed her on the lips before, and that the victim viewed the kiss as not being something one would give to a relative, but not as passionate as a make-out kiss. The accused approached the victim later on in the day and stated — and he apologized to her, and stated that his behaviour was inappropriate. [The complainant] did tell her mother, K.C., about the incident, but no steps were taken at that time. It wasn't until the second incident arose that this was fully investigated, and statements taken and so forth. Those are the facts.
¶ 6 THE COURT: Those facts, Mr. Penney?
¶ 7 MR PENNEY: Yes, Your Honour, we'd like to admit those facts as being substantially correct, but I'd like to supplement them a little. Your Honour, on March the 24th 2015, he entered a plea before Your Honour of course, and admitted facts then. Your Honour will recall that alcohol was a significant factor. Alcohol was also a factor, I understand, with respect to the events regarding [the complainant]. With respect to the victim, [the complainant's brother], Your Honour, on March 24th, 2015, M.H. made it clear from — he made admissions almost immediately to both his wife and his adult son, as well as to the police officer, "Yes I did it. I'm sorry, but I had no sexual intent." And this time as well, Your Honour, he indicates to me that he did not have a sexual intent. He doesn't have a good recollection of what happened on the couch, but accepts what the complainant says, and that there was a touching and that his hand did come into contact with her breast. More importantly, the kiss in the morning, Your Honour, which my position is more problematic in terms of his behaviour, because alcohol wasn't a factor. I reviewed [the complainant]'s statement last night.
¶ 8 I understand she was on her side, and M.H. does say he kissed her, and that their lips did come into contact. So with respect to both incidents, but particularly with respect to the kissing incident, there's no question, in my submission, that the behaviour — his behaviour falls outside appropriate parental conduct for a minor that is in his care, in his home at that time. And number two — that's the first thing — so it being inappropriate, it's assaultive. And then secondly, these are actions that affected the victim's sexual integrity, and more than justify Your Honour finding him guilty of sexual assault. Could you just stand up, M.H., and indicate if those facts as I've corrected them are correct?
¶ 9 CLIENT: Yes sir.
¶ 10 THE COURT: Mr. M.H., just stand for a moment please then. Based on everything that I've been told about what took place, I will find you guilty of the offence of sexual assault on [the complainant].
¶ 11 Mr. M.H., I am sure if you didn't realize this already, it is abundantly clear now that this is a serious matter. This may have been a brief event in physical terms, but that's not the worst of the offence. Clearly the worst of it is the psychological impact, and that is, I would say, usually the case in similar types of crimes. It would be reasonable to expect that in any of a number of similar situations that might come before the court, that there is considerable psychological impact for the person involved and for the family and extended family. And that is just what happened here, as [the complainant] described very well in her victim impact statement. This has had a terrible impact on her. And as hurtful to her, I'm hearing, is how it's affected the family, because of how family members have behaved towards her, as it turned out just because she spoke the truth, but a truth that's very difficult for people to accept. This matter was set for trial today. A resolution was reached, through continuing discussions with experienced counsel. So although it is a plea on the day of trial, your acknowledgement at this stage does achieve some things that are important and significant to this process. One of them is that [the complainant] didn't have to testify, which is a difficult and unpleasant task. The other thing is your acknowledgement of what happened is very important. It has been my experience that that acknowledgement of the offence is very important to the victim, and also to everyone else — family members, friends, in them being able to process this whole situation as well.
¶ 12 Part of the job of sentencing is to try and find the right balance of a number of factors. Some of them would weigh in your favour and some against. The fact that this matter has been resolved is quite significant. Your lack of record, save and except for the matter I dealt with earlier this year, is also of some importance. And I think that the principles of sentence can be achieved in the way that is suggested by counsel. I certainly rely on their experience in assessing this case, and the trial issues that may have been involved.
¶ 13 The main principles involved in dealing with a case such as this are deterrence and denunciation. The sentence is meant to send a message to both you and the community at large about just how wrong this type of behaviour is. And in understanding that message, people need to take into account your circumstances as well as the nature of the offence. And there have been some considerable personal consequences already for you, as well as others. And I think in light of everything that's taken place, what is being suggested is a reasonable approach to the situation and one that allows for both [the complainant] and you to move forward in a more positive fashion. I think the conditions that are being suggested are appropriate, but I also recognize that in practical terms they are onerous. The impact of those conditions is something that I take into account in assessing whether or not the sentence proposed is a reasonable one, and one that is a significant enough consequence to properly reflect the seriousness of the offence. The counselling condition that's being suggested is one that is intended to address the possibility of any future risk factors, which is important, whether it's to do with sexual offending or the difficulties that you've had with alcohol, which clearly creates a risk factor for you, and increases the possibility of you behaving in a way that is wrong, and harmful to others. So I see that as an important part of this sentence. I am prepared to include the exception that's been suggested by Mr. Penney with respect to the no contact condition. I want [the complainant] to understand that she's never required to have contact with you, either because of the existence of this court order or because in the future when the order has expired she simply chooses not to. She always has that right. However, people's views do sometimes change, and sometimes people find that they — for their own well-being and their own healing processes, it's helpful to have some kind of contact, even if it's confrontational, with the person that was involved in harming them. So to that extent I think an exception, should [the complainant] wish to pursue it, would be appropriate.
¶ 14 A conditional discharge has been recommended to me by counsel, which is on the lenient end of the scale of possible sentences. It is certainly one of the realistic possibilities in this matter, and I agree for all the reasons already mentioned that it is appropriate in this situation. The main significance of it to you is that you will not formally have a criminal record. Obviously this is a public process. It is a public finding of guilt. But a criminal record is created by convictions, and there will not formally be one in this case. That is significant because convictions in this day and age are a significant impediment to employment and to reasonable commonplace travel. And I don't feel that some of the factors that would weigh against imposing a conditional discharge are present here.
¶ 15 So that will be the disposition — conditional discharge with a period of probation for three years. You will get a copy of the probation order before you leave. The written version will be more detailed than what I'm going to say right now in the courtroom, and you are bound by that written version. There will be the mandatory conditions, which are to keep the peace and be of good behaviour, and keep your probation officer up to date about where you're living and what you're doing. There will also be a condition that you cooperate with your probation officer, and that includes signing release of information forms, to allow them to be in touch with other people involved with implementing your probation order. There will be a condition that you report to the probation officer for the first time within two business days, and thereafter as directed. And I'll just indicate on the record — although it statutorily would be the case — that this order is meant to run concurrently with the existing order. There will be a condition for counselling, and that will be as directed by your probation officer, and the issues will be for alcohol or substance abuse, and sexual offending, and any other issue identified by the probation officer. Certainly if you feel there is an issue for which some assistance would be helpful, you can identify that yourself to the probation officer, and this order would allow them to pursue additional counselling for you. There will be the conditions as recommended by counsel for no contact with [the complainant], a condition that you remain a hundred meters away from her and any place of residence, education, employment or worship for [the complainant]. There are a number of exceptions contemplated — sorry — there's one exception contemplated to that, and that is with her written revocable consent on file with the probation office. And as I indicated, she's not required to provide that. She may or may not choose to do so in the next three years. You are not to have any contact with persons under the age of 16, unless you are in the direct and continuous presence of another adult. And there will be an order, as you heard read out, restricting your attendance at parks, public places, etc., where young people are normally expected to be, similar to the wording in section 161 of the Criminal Code. It's I believe one of the pre-authored conditions on the e-orders, Madam Clerk. Again, there will be an exception for that, unless you are in the direct and continuous presence of an adult. There will also be a condition that you're not to seek or obtain or continue any form of employment, remunerated or not, or any type of volunteer work that puts you in a position of trust or authority towards a person under the age of 16. And Madam Clerk, I believe that again is one of the pre-authored conditions. I will make an order for DNA. This is a primary designated offence. There will be a firearms prohibition order under section 110 of the Criminal Code for a period of three years, given the risk factors identified for me in this matter. And to be clear, that order will run concurrently to the existing section 110 order. And there is an automatic surcharge in this matter in the amount of one hundred dollars. The default time to pay is 30 days. Is that sufficient? Any questions from counsel? And Ms Hawthorn, perhaps you could just check with [the complainant] in case she has any questions.
¶ 16 MR PENNEY: No questions.
¶ 17 CROWN: She has nothing to add. I just clarified a point for her.
¶ 18 THE COURT: Okay, good. Thank you.