Simon's Case — Mischief Under $5000 — Guilty Plea

Between
Her Majesty the Queen, and
Simon M.

Ontario Court of Justice
Toronto , Ontario
Judge R. Libman

Guilty Plea & Admitted Facts:  21 February 2006
(39 paras.)

¶ 1     MR. PENNEY:  Can you come forward, please, Mr. Simon M.? If you could just have a seat or stand right there.

¶ 2     MR. KENNY:  I've spoken to my friend Mr. Penney this morning. I believe we're actually at this point in a position where we can propose a resolution in this matter to Your Honour. It's a matter that was set for trial today. Indeed, the complainants are in the body of the Court today. However, after reviewing the matter both with the complainants and with my friend, I believe we are now in a position where we can resolve the matter before Your Honour today. What we are proposing is a plea to counts five, six and seven on the Information.

¶ 3     THE COURT:  Madam Clerk — and that would be at this time?

¶ 4     MR. KENNY:  That would be at this time, correct.

¶ 5     THE COURT:  Mr. Penney, is that agreeable to you?

¶ 6     MR. PENNEY:  Yes, Your Honour, that is agreeable. I discussed this at length with Mr. Simon M.. The plea is voluntary, Your Honour. It is informed. I can say from the outset that the Crown's evidence on these three counts is as strong as any case I've seen in my 13 years of practice, and there's been no issue with respect to his guilt on these three counts from the very beginning. And he understands that he's waiving his right to a trial. We're certainly prepared to have a trial today. Mr. Simon M. does not want to have a trial, certainly not on these three counts. If the trial had proceeded, Your Honour, it would have proceeded with a plea of guilty on these three counts, and a trial on the other counts. So in that sense it's not a late plea. His plea on these two counts was always going to be guilty.

¶ 7     THE COURT:  I understand. Mr. Simon M., did you understand what your lawyer said?

¶ 8     MR. SIMON M.:  Exactly. Yes, I do.

¶ 9     THE COURT:  I want to just confirm that you know, as I said very accurately, that if you go ahead and plead guilty, you're going to give up your right to have a trial and not make the Crown prove the case against you, which you do have the right in law to do — understand?

¶ 10     MR. SIMON M.:  I understand.

¶ 11     THE COURT:  May I ensure that you further understand, as again, I'm sure your lawyer would have told you, when it comes time to determining the appropriate sentence or disposition or penalty, whether we do that today or another date, I will be obliged to listen very carefully to what the Crown will recommend and your lawyer and you have the right to address the Court, too, but at the end of the day, only the judge can determine what sentence to impose. Do you understand that?

¶ 12     MR. SIMON M.:  I understand.

¶ 13     THE COURT:  Knowing that, do you wish to go ahead and plea guilty to the three counts?

¶ 14     MR. SIMON M.:  I do.

¶ 15     THE COURT:  Very well. Listen carefully to our Clerk.

¶ 16     CLERK OF THE COURT:  Simon M., on or about the 10th day of May, in the year 2005, in the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging without legal justification or excuse and without colour of right, property, to wit: the automobile of Randy C., the value of which did not exceed $5,000, contrary to the Criminal Code.

¶ 17     And further, that Simon M., on or about the 11th day of May, in the year 2005, at the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging, without legal justification or excuse and without colour of right, property, to wit: the automobile of Randy C., the value of which did not exceed $5,000, contrary to the Criminal Code.

¶ 18     And further, that Simon M., on or about the 16th day of May, in the year 2005, in the City of Toronto, in the Toronto Region, did commit mischief by wilfully damaging, without legal justification or excuse and without colour of right, property, to wit: the automobile of Randy C., the value of which did not exceed $5,000, contrary to the Criminal Code. How does the Crown elect to proceed?

¶ 19     MR. KENNY:  Summarily, please.

¶ 20     CLERK OF THE COURT:  And how do you plead to these three charges, sir, guilty or not guilty?

¶ 21     MR. PENNEY:  Guilty, Your Honour.

¶ 21     CLERK OF THE COURT:  Thank you. Please be seated and listen to the facts, sir. Listen carefully though.

¶ 23     MR. KENNY:  The facts alleged are as follows, three individuals, one Randy C., who is the vice president of operations at Big Truck Line, as well as Danny C., who is the president of Big Truck Line, as well as Donald M., who is the manager of operations with Big Truck Line, at — after April the 11th, in the year 2005 up until May the 11th, in the year 2005 — experienced the repeat vandalization of the car tires of the automobiles they were driving, as well as the automobiles that members of their family were driving. This affected five separate individuals, the three I've mentioned, as well as one Kim C. and one Annie P. Because this occurred on approximately 15 separate dates over the two-month period, the individuals with Big Truck Line hired a private investigator to observe their vehicles and to try and put an end to this matter.

¶ 24     As a result of hiring this private investigation company that goes by the name of P.I. Firm, on May the 10th, in the year 2005, at approximately 4:30 p.m., the complainant, Mr. Randy C., parked his car at the Tim Horton's that is located on Speedy Street, as P.I. Firm staff conducted surveillance on his car. When Mr. Randy C. did this, he entered the store to get a coffee. At that point, the accused before the Court, Mr. Simon M., was observed parked in an area of the parking lot, where he was observing the car of Mr. Randy C. He then approached Mr. Randy C.'s car and pulled out a five inch long awl and punctured both tires on the passenger side.

¶ 25     As I said, both passenger side tires were punctured and part of this event was captured on video by the surveillance team. The accused, Mr. Simon M., was then observed to hide behind a van and a dumpster until Mr. Randy C. left the area. Mr. Randy C. was notified by P.I. Firm that his tires had been punctured and the cost to replace those tires at that point was, I believe, $90.

¶ 26     On May the 11th, 2005, in the afternoon, the complainant again attended the same Tim Horton's. The accused was parked in a spot where, again, he could observe this parking lot. He once again punctured one of the tires with the same awl. This entire event was recorded on video. The tire was replaced at the cost of $45.

¶ 27     Finally, on May the 16th, in the afternoon, Mr. Randy C. again attended the Tim Horton's on Speedy Street. The accused, Mr. Simon M., was again parked in a location where he was observing this area. He was oblivious to several P.I. Firm investigators, as well as two plain clothes members of the Toronto Police Service. When Mr. Randy C. parked outside of the Tim Horton's, the accused, Mr. Simon M., exited his vehicle and punctured a tire.

¶ 28     The accused was arrested by police as he was returning to his own vehicle. He had the awl that was seen on all three days in his left pocket. This whole event was again recorded on video.

¶ 29     In the end, the total amount to replace the tires on the three occasions was $524.17.

¶ 30     The accused was read his rights, he was transported to 23 Division for further investigation. He was charged accordingly and held for a show-cause hearing. And I can inform the Court there have been no so such attacks since this ended — or since this arrest. Those are the facts alleged by the Crown.

¶ 31     THE COURT:  Thank you. Mr. Penney, are the facts substantially accurate?

¶ 32     MR. PENNEY:  Yes, Your Honour. Those facts have been reviewed in some detail with Mr. Simon M., Your Honour. The facts are admitted, Your Honour, subject to the qualification that Mr. Simon M. had no knowledge or participation in anything that occurred with respect to what was going on in those other people's homes or at their addresses. He does, of course, admit to the conduct which has been admitted to with respect to the May 10th count, the May 11th count, and the May 16th count.

¶ 33     THE COURT:  Thank you. Subject to that, there will be findings of guilt. Mr. Kenny, Mr. Penney, did you wish to proceed to sentence then?

¶ 34     MR. KENNY:  I believe on behalf of the Crown, the Crown is ready to proceed on sentence today.

¶ 35     THE COURT:  Yes.

¶ 36     MR. PENNEY:  I'm ready to proceed, as well, Your Honour. I do have two detailed reports from a psychotherapist that Mr. Simon M. has been seeing since shortly after his arrest. He had 18 sessions since May 24th. It's a circumstance where Your Honour might want a pre-sentence report, but it would be my submission that, once Your Honour sees these two reports, Your Honour will have more than a sufficient basis to impose an appropriate sentence today.

¶ 37     THE COURT:  All right, thank you. Why don't we go ahead and see where we are then. Go ahead.

¶ 38     MR. KENNY:  Would Your Honour like to take the morning break to see those reports or would you like me to proceed at this time?

¶ 39     THE COURT:  May I ask that the two of you begin your submissions and then perhaps over the break I'll have an opportunity to look at them. It may be that you'll cover some of the material in the course of your comments in any event.

[REPORTER’S NOTE:  At this time, submissions were made by counsel. The Crown asked for a suspended sentence. The Defence asked for a conditional discharge.]

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