Simon's Case — Mischief Under $5000 — Sentenced

Between
Her Majesty the Queen, and
Simon M.

Ontario Court of Justice
Toronto, Ontario
Judge R. Libman

Conditional Discharge:  21 February 2006
(48 paras.)

¶ 1     LIBMAN J. (orally):  Mr. Simon M., you have entered pleas of guilty to three counts of mischief. Property offences are sometimes thought to be in a different category of offences, because they do not involve often, as in your case, a direct confrontation between a victim and the individual responsible, like yourself. But vandalism can be a very mean-spirited crime, which your offences, I think, really were. They can bring a real sense of fear because of the unknown. Anyone who has their possessions disturbed in the course say of a home entry, feels terribly violated to have their own personal items of property looked at by a stranger and although no one is suggesting that that is what you did here, I do want you to understand that from the point of the victims, they very understandably would feel very concerned at the fear of the unknown, that someone would target them, would destroy their property and give them a real sense of unease. So crimes like vandalism carry their own special type of stigma.

¶ 2     Your acceptance of responsibility for your conduct and actions goes a long measure to bringing a peace of mind to these victims. Your reimbursing them financially is also an important aspect of the sentence that I am about to impose. It is most important to convey to you that on account of the Order that I am about to impose, as well, that your continued conduct will be subject to a Court Order, that is monitoring by the Court to both protect the victims over a further period of time — I am going to place you on probation for a two year period — but also to assist you so that you can continue making the good progress that you have made.

¶ 3     I accept that there are a number of very aggravating factors here, which I have referred to, but one must also be mindful that you are a first offender, now 44 years old. You are entitled to be treated as a first offender who has accepted responsibility for your actions. In measuring your blameworthiness, the Court also must take into account that you have embarked on conduct to assist you in gaining insights for your unlawful conduct. Your having attended 18 counselling sessions will go a long way to ensuring that there is no repetition of this behaviour, which I have noted from Dr. Quek's report was very much brought on from conditions of depression and anxiety that you have suffered.

¶ 4     You have been subject to a restrictive bail. You have spent two days of pre-trial custody. Importantly, you have not re-offended since being subject to a Court Order.

¶ 5     Balancing all of these factors into account, I have concluded that it would not be contrary to your interest to impose a discharge. Having regard to the public interest, I am confident that I can impose a sentence that will take into account aspects of deterrence and that I should permit you to be sentenced as a first offender with 44 years of good credit to your name and to allow you to receive a discharge from the Court.

¶ 6     The sentence that I am going to impose then will be a conditional discharge. I am going to place you on probation for a two-year period, as I have indicated. That is a lengthier period for a first offender, but it will provide protection to the victims here, as well as giving you continued supervision. I have already ordered forfeiture of the weapon. Why don't you take a seat next to your lawyer while I indicate to you what the terms of the probation Order are and then I wish to review them with you and your lawyer and Mr. Kenny, to ensure that the terms are appropriate.

¶ 7     I have already indicated the length of probation being two years. You need to understand, as I am sure your lawyer would have told you, that probation being a binding Order of the Court, you must abide by each and every term that I impose. Failing to do so would render you liable to the Criminal Code charge of breach of probation, punishable by a fine and/or period of jail.

¶ 8     Mr. Simon M., all probation Orders carry three mandatory terms, that you keep the peace and be of good behaviour; attend Court when required; notify the Court in advance of any change of name or address, employment or occupation.

¶ 9     The following terms are additional, but equally binding terms, the only difference being that you, the probation officer, and the Crown Attorney's office have the right to seek a variation of any of these additional but binding terms over the next two-year period. Subject of our reviewing of them together, I think they should include the following.

¶ 10     You will report within two working days of today to your probation officer and thereafter whenever required to do so.

¶ 11     You will have no contact directly or indirectly with any of the five named individuals, the three individuals from your former place of work, along with Mr. Donald M. and Ms Annie P., I believe. We have the proper spelling of their names. Meaning that in relation to these five people, who include Danny and Kim C. and Mr. David C., neither you nor anyone on your behalf can have any contact with them. Do you understand that?

¶ 12     MR. SIMON M.:  Yes.

¶ 13     THE COURT:  That is a very important term of the probation period. I want you to live at an address approved by your probation officer.

¶ 14     Continue to seek and maintain gainful employment, as clearly you are able to do.

¶ 15     In terms of the attendance terms, I am going to deal with them in the following way. You are not to attend at all any address of the five named individuals, where they would either live, work, attend school or otherwise be to your knowledge. So no attendance at any of the five individuals by virtue of any of the addresses they would be.

¶ 16     I am going to also impose these terms, that you not attend within a 100 metres radius of Big Truck Line at 101 Speedy Street in Toronto.

¶ 17     I am going to simply indicate you are not to attend at all Tim Horton's property on Speedy Street. What I am intending to do is to indicate that should it be in the course of your employment that you happen to drive by, but certainly you are not to attend on that property at all. You are not to stop there and if you do find yourself driving by that portion of Speedy Street, you may do so. It may well be advisable and it would certainly be my suggestion to you, that to the extent that you can, given that you cannot go within 100 metres of 101 Speedy Street, that you simply stay off that block. But I do not want to impose an Order that will result in an unintended way with your breaching it.

¶ 18     You will not possess any weapons as defined by the Criminal Code while on probation.

¶ 19     Finally, the counselling that you have undertaken with Dr. Quek has obviously been very helpful, sir.

¶ 20     I do think that it would be helpful for you to be assessed in area of depression and anxiety or any other stress management area. In the event that your probation officer recommends to you that you undertake any course of counselling, I want you to be agreeable to doing so, through your family, through your family doctor, through a referral from Dr. Quek. It is certainly open to you to continue with any course of counselling, quite apart from my Order and I think quite clearly you have benefited from that.

¶ 21     Mr. Kenny, I think I have gone through the terms that were recommended to me, but may I begin with you to see if there is anything you would like to additionally recommend?

¶ 22     MR. KENNY:  No, you've covered the Crown's terms. The only thing I'd be asking is if the pre-trial custody can be marked on the Information, please. Yes, I thought I had indicated that, but if not, that is to be noted, along with the forfeiture of the awl. Thank you.

¶ 23     MR. PENNEY:  Yes. Your Honour, just in terms of the wording of the term for the counselling ...

¶ 24     THE COURT:  Yes.

¶ 25     MR. PENNEY:  ... Your Honour is imposing, take such counselling as recommended by the probation officer?

¶ 26     THE COURT:  As may be recommended.

¶ 27     MR. PENNEY:  Yeah, that's — I'm content with that. I just didn't want Dr. Quek named. I'd ask Your Honour that we delete the condition that restitution be made. I've given the undertaking. I've run into all sorts of problems when that's part of the probation and I have to get back to the probation officer. Either I'm serious about my undertaking or I'm not. I am very serious. It will be made. The letter will be sent in 48 hours. I actually have the cash on me today. I offered to pay cash. My friend prefers me to send a cheque out of my trust account. I'm very happy to that. I would just like the probation Order to be as clean as possible.

¶ 28     THE COURT:  Mr. Kenny, any comments about that?

¶ 29     MR. KENNY:  Perhaps if I could just speak to the complainants, to see whether or not cash is an issue or not and then ...

¶ 30     THE COURT:  All right.

¶ 31     MR. KENNY:  They will take cash on today's date and we can deal with it all on that basis.

¶ 32     THE COURT:  Great.

¶ 33     MR. KENNY:  Well, we'll deal with it today then.

¶ 34     THE COURT:  All right. I appreciate your point. I'm aware that the issue of restitution can also be dealt with in a freestanding way, not necessarily through the Order and I take your point that a term shouldn't be imposed, to merely be redundant. So upon your undertaking, upon the complainant having indicated in Court that he will accept restitution today, let's not impose that ...

¶ 35     MR. PENNEY:  Yes.

¶ 36     THE COURT:  ... as a term of probation.

¶ 37     MR. PENNEY:  I would simply ask the Detective to join me when I do that, that's all.

¶ 38     THE COURT:  Of course.

¶ 39     MR. PENNEY:  Thank you.

¶ 40     THE COURT:  Are there any other terms that you would like to go over?

¶ 41     MR. PENNEY:  Not from my point of view, Your Honour. Everything is very clear.

¶ 42     THE COURT:  Do you want to take a minute with Mr. Simon M. and just make sure there aren't any questions he has?

¶ 43     MR. PENNEY:  No, everything is fine, Your Honour. We've discussed everything here and Your Honour has addressed his concerns — his one concern about driving on Speedy Street, which may never come to pass. It's been addressed.

¶ 44     THE COURT:  All right, thank you. Thank you, gentlemen. Mr. Simon M., when you leave Court, you're going to have to attend at the administrative office and probation office to start the process. Mr. Kenny, are the remaining charges to be withdrawn then?

¶ 45     MR. KENNY:  The remaining — I believe it is 15 charges on the Information — are to be withdrawn at the request of the Crown, please.

¶ 46     THE COURT:  All right. The remaining 15 counts then are being withdrawn against you, so that that will bring to a conclusion the matter. Let me indicate then by final word, gentlemen, to the two of you, I'm very grateful for the hard work and thought that you have obviously put in through the assistance of the witnesses, investigating officers, and family members to ensure that it would be a fair-minded resolution today, which I am very confident you have worked diligently on.

¶ 47     Mr. Simon M., may I say to you that while this will bring to an end your involvement in the Court, of course, the hard and good work that you have done must continue, so that you can continue to ensure that you gain insights into your conduct and that you never come back before a Court again. You're all free to leave. Thank you very much, gentlemen.

¶ 48     MR. PENNEY:  Thank you so much, Your Honour.

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