A man broke into a London, Ont., girl's room. After deal on a lower plea, her mom says there's been no justice

The girl was 13 years old in September 2022 when she awoke in the middle of the night in herfamily's London, Ont., home to discover her 27-year-old neighbour near her bed, rubbing her back.

Terrified, she didn't call out for help, but told him to leave. He did through the second-storey window he'd initially climbed through,scaling along a roof overhang that links their two townhouse units.

The girlwaited until later in the morning to tell her mom, scared she'd get in trouble because she'd left her window open. There were cuts in the window screen, according to a police report filed that morning.

"It's a nightmare," the girl's mother told CBCrecently. "I couldn't keep my kid safe."

But because of a deal the Crown prosecutor's office made with the man's defence lawyer, he won't have a criminal record if he stays out of trouble and will be allowed to move back next door early in the new year.

We have a very under-resourced criminal justice system relative to the number of charges that come through the door, and the reality is that the system would collapse under its own weight if we didn't have a large percentage of criminal charges resolved by guilty plea.- Palma Paccico, Osgoode Hall Law School associate prof

The family's story is an example of parts of the justice system working well for victims, and other parts being woefully inadequate, said Jessie Rodger, executive director of Anova, London's agency for survivors of gender-based violence.

"This family should have an outcome that not only responds to the violation that happened but also makes them feel as though it was taken seriously by the justice system," Rodger said.

Mom says teen afraid to be home

By all accounts, police investigated the 13-year-old's accusation appropriately, her mom said. Officers interviewed the twoas well as others. They took fingerprints and pictures of cuts in the window screen. The man was charged that same day with sexual assault and break and enter.

But inFebruary 2024, after a deal between prosecutors and the defence, the man pleaded guilty in the Ontario Court of Justice to the lesser charge of being unlawfully ina dwelling house. His punishment is what's called a conditional discharge probation for a year, during which timehe's not allowed to be near the girl's home or anywhere she might be.

In four months, when the one-year conditions of his sentence expire,the man will be allowed to move back next door to the girl and her family. If he doesn't get intofurtherlegal trouble by February 2027, he won't have a criminal record.

"I feel like I've lost my child and like the system failed us. It failed my daughter," her mother, whose identity is protected by a publication ban so not to identify the girl, told CBC. "It's been hell. She questions everything. She's scared of everything. She lived like a prisoner."

The girl is so scared thatshe has moved in with a relative. The window to her bedroom has been bolted shut. The family say they live in fear for when the man can return to the unit next door. His family continues to live there.

The girl's mother is now trying to get a peace bond against the man, which would prevent him from moving back into the home next door.

The girl's mom saidthe two had prepared victim impact statements to read aloud in court at the man's sentencing,but they were told the wrong court date. The man's guilty plea and sentencing date came and went without them getting the chance.

"We were told we could make victim impact statements, and we actually left court and had lunch to celebrate," the mother said. "Then we found out he'd already been sentenced and we didn't get time to do the statements. She wasn't able to have her voice heard."

The Ministry of the Attorney General would not answer specific questions about the case, including why the family was not able to deliver victim impact statements.

'A huge miss'

Victim impact statements can be an important part of the healing process, said Rodger.

"It's a huge miss," they said.

"As much as our legal system wants to talk about how we are thinking about victims and survivors and centring them, stuff like this actively goes against their healing. Victim impact statements are a really important moment for people to speak to power and speak to the person who harmed you. You can't control how they feel about it, but you can control what you say and that it becomes a part of the legal record."

With the accused's name also under a publication ban, CBC and the girl's mother were able to obtain notes taken by police officers who responded to the initial call, as well as transcripts of the two court dates Feb. 14, 2023, when hepleaded guilty, and Feb. 15, 2024, when he was sentenced.

CBCasked to speak to the Crown prosecutor inthe case about why he made a deal with the accused, but the ministrydeclined the request, saying that in general,"the Crown considers the individual facts and circumstances, including the strength of the available evidence and the likely outcome of a prosecution."

Plea bargains are used first and foremost for efficiency,said Palma Paccico, an associate professor at Osgoode Hall Law School at York University in Toronto.

"We have a very under-resourced criminal justice system relative to the number of charges that come through the door, and the reality is that the system would collapse under its own weight if we didn't have a large percentage of criminal charges resolved by guilty plea. In other words, we simply cannot afford to have everybody who is charged with a crime go to trial."

Crown attorneys have "tremendous discretionary authority and power" when it comes to plea bargains, Paccico said.

Why victims aren't always consulted

There are no enforceable legal obligations to include victims in plea bargains, said Maria Manikis, an associate law professor at Montreal's McGill Universitywho researches how victims' participation, prosecutorial discretionand sentencing collide.

"Some prosecutors, in certain contexts, will inform and consult victims prior to reaching an agreement, but others may not," she said.

A federal bill of rights for victimssuggests that victims'views should be considered at every stage, but provincial prosecutors are under no obligation to follow those rules, Manikis added.

A prosecutor has to weigh what's in the public interest as well as whether there is a reasonable prospect of conviction on a particular charge, Paccicosaid.

"I suggest that when thinking of the public interest, Crowns should look at whether the crime they're considering for a plea deal is an accurate fit for what the accused is alleged to have done."

Plea bargains where sexual assaults are pleaded down to non-sexual charges, as happened in the 2022 Londoncase, are rare, Paccico said.

"One of the challenging things about prosecuting sexual assaults right now is that there are a lot of procedures that have been introduced to protect victims or complainants, for very good reason, but the result is that there are risks of trial delays. That's a dynamic that Crowns have to struggle with."

According to numbers released by the Ontario Court of Justice, the trial rate how many cases actually go to proceedings between July 2023 and June 2024 for all cases is 3.6 per cent for all cases, but almost 32 per cent for sexual assaults.