R. v. Torres, 2012 ABQB 4

Court of Queen ’ s Bench of Alberta Citation: R. v. Torres, 2012 ABQB 4 Date: 20120106 Docket: 090119173Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Alwyn Sanchez Torres Accused Restriction on Publication: By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4. _______________________________________________________ Reasons for Sentencing of the Honourable Mr. Justice R.G. Stevens _______________________________________________________ FACTS [ 1 ] On June 10, 2011, at the conclusion of the trial, Alwyn Sanchez Torres entered a guilty plea to Count 4 on Indictment 090119173Q1, a charge that he did: Between the 23rd day of January, 2009 and the 25th day of January, 2009, both dates inclusive, at or near Calgary, Alberta, did unlawfully commit a sexual assault upon ( the complainant ) contrary to

Section 271 of the Criminal Code of Canada .

[2] The circumstances of the offence are detailed in the filed Statement of Facts. [3] A Forensic Assessment and Outpatient Services (FAOS) report on Mr. Torres dated October 31, 2011 was filed with theCourt. POSITIONS OF THE CROWN AND THE DEFENCE [4] The Crown submits that: (

a) the case involves sexual assaults on a 13-year-old child on two occasions; (

b) the complainantwas unable to consent to the sexual activity; (

c) the acts constitute major sexual assaults; and (

d) a sentence of four years’ incarceration isappropriate. [5] The Defence submits that: (

a) while the crime is a serious one, it falls short of a major sexual assault; (

b) while thecomplainant was unable at law to consent to the sexual activity, he initiated sexual contact; (

c) there is information the complainant is ofthe view that there has been virtually no impact upon him; and (

d) a sentence of 90 days’ incarceration to be served intermittently,followed by 2 years of probation is appropriate. SENTENCING PRINCIPLES [6] There is no dispute among counsel as to the sentencing principles which apply in this case. Rather the issue is the applicationof the principles to the facts of the case. [7] The Crown outlined comprehensively the sentencing principles in its written brief. I have borrowed extensively from thatbrief. (

a) General Principles [8] The guiding principles of sentencing in Canada are set out in ss. 718 to 718.2 of the Criminal Code. As stated by theSupreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 82: In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a“just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [9] In accordance with

section 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect forthe law and the maintenance of a just, peaceful and safe society and suppress future crimes by imposing just sanctions. The objectives ofsentencing are: - To denounce unlawful conduct; - To deter the offender and other persons from committing offences; - To separate offenders from society, where necessary; - To assist in rehabilitating offenders; - To provide reparations for harm done to victims or to the community; and

- To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [ 10 ]

Section 718.01 sets out the sentencing objectives for offences involving the abuse of persons under the age of 18 years. It mandates that when imposing a sentence a court “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” (

b) Proportionality Principle [ 11 ]

Section 718.1 of the Criminal Code refers to the proportionality principle. “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In R. v. Arcand , 2010 ABCA 363 , 499 A.R. 1 the Alberta Court of Appeal analyzed the meaning of this principle at paras. 49-55. (

c) Relationship Between the Proportionality Principle and Other Sentencing Principles and Objectives [ 12 ] The majority of the Court in Arcand , in examining the integrated framework provided by Parliament for determining a proper sentence, considered the meaning of “gravity of the offence” and “degree of responsibility of the offender”: [57] What is meant by “gravity of the offence”? This concept is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values.

What influences that analysis apart from the degree of injuriousness inherent in the crime itself? The answer lies in s. 718.2 . Before exploring that section, though, we turn to the other half of the proportionality principle, the degree of responsibility of the offender, because it too leads to s. 718.2 . [58] The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles.

The greater the harm intended or the greater the degree of recklessness or willful blindness, the greater the moral culpability. However, the reference in s. 718.1 is not simply to the “ mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime.

Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2 . [59]

Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of the proportionality principle or properly influence its

interpretation and application. Either way, all are relevant in determining a just sanction that satisfies the proportionality principle. [ 13 ]

Section 718.2 (

a) of the Criminal Code states that a sentence should be reduced or increased to account for aggravating or mitigating factors. In its analysis of this section, the majority of the Court in Arcand held: [60] The requirement under s. 718.2(

a) that the court consider both aggravating and mitigating circumstances of the offence of the offender goes directly to either or both the gravity of the offence and degree of responsibility of the offender . [. . .] [Emphasis in original] [ 14 ]

Section 718.2 (

b) of the Criminal Code requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In the context of a sentencing for heroin trafficking, the court noted that parity or the principle of equality of treatment before the law is composed of two components. Writing for the Court in R. v.

Ostertag , 2000 ABCA 232 , 266 A.R. 57 at para. 11 , Veit J. described these components as follows: A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on others who are similarly situated; the community has the right to expect that a person convicted of an offence will not receive a more favourable sanction than others who are similarly situated and have committed similar offences.

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d) Individualized Approach to Sentencing [ 15 ] As noted by the majority of the Court of Appeal in Arcand at paras. 66-70 , the process is not exclusively about the offender, but properly incorporates consideration of the harm to the victim and community: 3. What Does an Individualized Process Mean? [. . .] [67] First, though individualized to the case, the sentencing process is not exclusively about the offender. The process is also about the harm to the victim and the community from the crime.

Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence. [68] Second, in the absence of any appellate guidance, the range of possible sentence for most crimes is theoretically broad and thus the margin for potential unwarranted disparity great. [69] Third, there continues to be a wide divergence of judicial views in sentencing for serious sexual assaults.

For many years, the extent of the harm caused by serious sexual assaults and the vulnerability of some members of society may not always have been fully recognized, leading therefore to an underestimation in the gravity of the offence. That ought not to be the case today since the extent of the harms caused have been widely studied and publicized.

And yet, the invisible hand of myths and stereotypes about victims of sexual assault still sometimes finds its way on to the sentencing scales, inappropriately diminishing the gravity of the offence or the offender’s culpability, and tipping those scales against those victims. All courts have an affirmative duty to ensure that invalid considerations no longer affect sentencing in this area. [70] Fourth, to maintain confidence in the criminal justice system, an offender’s sentence should be based on the facts of the case - and what he or she did - and not on the philosophy or preferences of the sentencing judge.

Parliament has accepted that some differences in sentences will arise from the human factor. But wide disparities in sentencing untethered to valid distinctions between cases cause serious problems for the criminal justice system - and understandably so. Such disparities undermine the public’s trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law. (

e) Paramount Consideration in Sexual Assault Offences: Deterrence and Denunciation [ 16 ] The importance of deterrence as an objective of sentencing in cases of sexual assault was reaffirmed in Arcand : [274] Although major sexual assaults are serious crimes, they still sometimes continue to be viewed as comparatively small crimes, especially where there is no evident physical injury. “No real harm done” seems to be the assumption. This could not be more wrong. We have shown the error of this view.

Accordingly, this Court has repeatedly stressed that denunciation and deterrence must be given considerable weight in sentencing for major sexual assaults. Sandercock is one of many decisions of this Court which emphasizes the priority of these sentencing objectives in cases of major sexual assaults. As a consequence presumably of disregarding the Sandercock starting point, the sentencing judge failed to give adequate weight to denunciation and deterrence in sentencing. [275] Denunciation, the first sentencing objective set out in s. 718(

a) of the Code , is very much connected to the proportionality principle. One of the reasons denunciation is so important in sentencing for major sexual assaults is that it affirms community values concerning the magnitude of this crime. Denunciation also serves the objective of maintaining the morale of the law-abiding. So too does the second objective set out in the Code , s. 718(b), “to deter the offender and other persons from committing offences”. Parliament recognized that deterrence had application to both the offender and others who might be similarly inclined.

By its nature, sexual assault is volitional conduct. It is not accidental. Therefore, deterrence is an important objective for such offences. Its aim is to make the consequences of the offence sufficiently less desirable than the offence that potential offenders refrain from unlawful conduct.

[17] The paramount consideration of deterrence and denunciation in cases of sexual abuse of children is in fact codified in s.718.01 of the Criminal Code. (

f) Major Sexual Assault [18] The starting point sentence for offences that constitute a serious or major sexual assault committed on an adult is three years’incarceration. The starting point assumes a mature accused with previous good character and no criminal record: R. v. Sandercock(1985), 1985 ABCA 218 , 62 A.R. 382 (C.A.); R. v. W.B.S. (1992), (AB CA), 127 A.R. 65 (C.A.). [19] The starting point sentence for one single major sexual assault on a child with whom there was a relationship of trust is fouryears: R. v.

D.M.B. (1993), (AB CA), 141 A.R. 307 (C.A.) at para. 16. [20] The definition of “major sexual assault” was restated in Arcand as follows: [171] A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person couldforesee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might comefrom the force threatened or used or from the sexual aspect of the situation or from any combination of the two.

A major sexual assaultincludes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. We are satisfied thatassessing whether a sexual assault is a major sexual assault is well within the capacity of sentencing judges. [172] We find it unnecessary to include in the definition of major sexual assault an express reference to violence or threat of violence inperpetrating the sexual assault. It goes without saying that a major sexual assault is

an act of violence. The three year starting pointassumes that this is so. Therefore, including this language would be redundant. It is surplusage for another reason. Under the present law,a sexual assault requires that force be applied or threatened without consent. Consent in this context means the voluntary agreement ofthe complainant to engage in the sexual activity in question. The focus is not on whether the complainant was overcome by force butrather whether the complainant consented to the sexual activity.

In other words, the absence of consent is definitive regardless ofwhether overt force was threatened or used. [. . .] [176] While these comments were made in the context of rape, that is non-consensual vaginal intercourse, they apply with equal forceto other major sexual assaults. When an offender commits a major sexual assault, including rape, against a person, this act of violencecauses harm. It is harm to both the victim and society. A major sexual assault constitutes a serious violation of a person’s body and anequally serious violation of their sexual autonomy and freedom of choice.

These breaches of one’s physical integrity and privacy areindisputable and undeniable. That harm, and it is substantial, is inferred from the very nature of the assault. Add to this the seriousbreach of a person’s human dignity and the gravity of a major sexual assault perpetrated on a victim becomes readily apparent. [177] In addition to this very grave harm, there is also intrinsic to major sexual assaults the likelihood of other very real psychologicalor emotional harm.

That includes fear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment,inability to trust, inability to form personal or intimate relationships in adulthood with other socialization problems and the risk of self-harm or even suicide. While these effects fall into the psychological or emotional harm category, they may be equally or even moreserious than the physical ones but much less obvious, indeed even unascertainable at sentencing. [. . .] [181] It all comes down to this.

The Supreme Court has never endorsed the concept of a harmless rape or other major sexual assault.And this Court is certainly not prepared to do so. For these reasons, in sentencing for sexual assaults under s. 271, the sentencing judgemust take into account the likelihood of serious psychological or emotional harm to victims flowing from a major sexual assault. Indeed,we are bound to say that, given what is now known about the nature and extent of the harm inherent in major sexual assaults, it would beirresponsible to do otherwise. [Footnotes omitted; Emphasis in original]

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g) Vulnerability of Children [ 21 ] Children are vulnerable to exploitation and abuse and as such “society has recognized the legitimate need to safeguard all children[. . .]from exploitative conduct”; R. v. Hewlett (J.J.) , 2002 ABCA 179 , 312 A.R. 165 at para. 24 . [ 22 ] In the context of sexual exploitation offences, the Alberta Court of Appeal has rejected arguments “minimizing the seriousness of the offence” where the complainant “consented” or was a willing participant in the activity: R. v. J.B.S. , 2009 ABCA 347 , 464 A.R. 353 at para. 4 ; see also R. v.

Pritchard , 2005 ABCA 240 , 371 A.R. 27 at para. 7 . [ 23 ] The majority of the Court in R. v. Revet , 2010 SKCA 71 , 350 Sask.R. 292 at paras. 9 , 12 and 14 addresses this issue as follows: The next ground of appeal relates to the fact that the victim was 14 years of age at the time of the offence. Under s. 150.1(1) of the Criminal Code , when a person is charged with an offence under s. 271 of the Criminal Code in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject matter of the charge.

Accordingly consent was not an issue with respect to the conviction. However, the appellant argues that although consent is not a defence to the charge, consent should still be considered a mitigating factor with respect to sentence. He further contends that the sentencing judge wrongly failed to do so. [. . .] There is certainly a difference between an assault against a child that involves force, violence, intimidation, or trickery and an assault against a child where the child actually consents to the activity or simply does not resist it.

That being said, the whole purpose of the legislation is to protect children, who are not sufficiently mature to appreciate all of the consequences of sexual activities. We agree that a child’s willing participation is not, per se , a mitigating factor in the imposition of a sentence for sexual assault upon that child. It means nothing more than an absence of aggravating factors such as the use of force, violence, intimidation or trickery. [. . .] [. . .]The purpose of the legislation is to protect children, something readily understandable by the general public.

To allow a claim for reduced responsibility on the basis of ignorance of the law, in the case of a 39 year old man having sex with a 14 year old girl, would be contrary to that purpose. (

h) Absence of a victim impact statement [ 24 ] The complainant did not prepare a victim impact statement. [ 25 ] In his sentencing submissions, defence counsel indicated that the complainant refused to provide a victim impact statement. It was reported that the complainant in doing so stated that “the situation did not impact him very much”. Apparently this information came to light as a result of the Crown’s last disclosure. [ 26 ] Defence counsel submitted that I should consider this information in sentencing Mr. Torres.

The Crown took no position on whether it was appropriate for me to consider such information presented in this manner. Rather the Crown submitted that there was no context to the question put to the complainant that gave rise to this response. As such, it should not be considered or if considered, bear little weight. [ 27 ]

Section 722 of the Criminal Code provides the procedure for a victim impact statement: It is to be in writing, in an approved form and filed with the Court. Here, there is no victim impact statement, there is nothing in writing filed with the Court. At best there is a hearsay statement attributed to the complainant as to why a victim impact statement was not filed. The complainant was not examined on

this point. [ 28 ] In my view, a victim impact statement could indicate a range of impacts from severe to minor and from many to none. The Criminal Code provides a process and that process ought to be followed if the Court is to consider an impact (or lack thereof) attributed to the complainant. As the Criminal Code process was not followed, I will not consider the hearsay statement attributed to the complainant. If I am wrong about this, then I agree with the Crown that without context for the statement, no weight should be given to it. (

i) A Forensic Assessment and Outpatient Services (FAOS) Report on Mr. Torres dated October 31, 2011 [ 29 ] Following Mr. Torres’ guilty plea, a FAOS report was ordered. The report contains some helpful observations as follows: Personal history, psychological test data, and clinical observation failed to identify major mental illness (i.e., psychosis or significant mode disorder). . . . With respect to the index offence, Mr. Torres presented as accepting full responsibility for his behaviour, admitting to all facts as outlined in the agreed statement of facts. Moreover, although Mr.

Torres presented the victim as assenting (and as is detailed in the official version, it appears this is the case), he acknowledged that the boy was unable to consent, thus accepted blame for having engaged in sexual activity with him, without having confirmed his age.

Contributing factors to his involvement in the offence include: his own level of maturity and reported lack of sexual experience; unsure of his own sexuality, but curious to experiment, which contributed to him being dismissive of the other person’s age; possible feelings of discomfort with respect to experimenting with someone older and/or more sexually experienced; and, thinking errors that contributed to him believing someone was mature enough to engage in sexual activity by the way they spoke about sex. Notably, it does not appear that Mr.

Torres was actively targeting the victim because he was a young boy, but rather, that he was not cautious in his approach to accessing a sexual partner by ensuring that the person was old enough to consent to sexual activity with him. With respect to therapy involvement, it is likely that Mr. Torres would benefit from involvement in a specialized sexual offender program, such as is offered through FAOS and in individual therapy to address personal issues. Given that Mr.

Torres has complied with all Recognizance Order stipulations since his arrest in 2009, it is likely he would continue to comply with treatment recommendations if he were sentenced to the community. Risk assessment tools (PCL-R; STATIC-99R, and RSVP) were utilized in determining Mr. Torres’ risk for re-offence. According to static factors, Mr. Torres’ risk for re-offence is Moderate-High; however, when examining both static and dynamic factors, his risk appears to be Low-Moderate as compared to other male sexual offenders. In relation to relevant dynamic variables, Mr.

Torres’ ability to manage his risk would be considered decreased if he failed to participate in and complete a specialized sexual offender therapy program, inclusive of both an educational and relapse prevention components; and, if he failed to challenge thinking errors related to determining an appropriate partner. In light, of the above-mentioned factors, I respectfully recommend that as part of the overall sentence in this case, Mr. Torres: - Participate in and successfully complete specialized Sexual Offender Treatment.

Should he be sentenced to the community, a sexual offender program is offered through FAOS; and, - Participate in individual therapy addressing personal issues (depressive symptoms, gender orientation). (

j) Application of Sentencing Principles to Mr. Torres (

i) Is this a major sexual assault? [ 30 ] This case involves a 22-year-old male engaging in sexual activity with a 13-year-old male on two separate occasions.

[ 31 ] It is useful to revisit the Alberta Court of Appeal’s comments on what major sexual assault is in Arcand particularly at paragraphs 176 and 177 (quoted previously). [ 32 ] The Defence submits that while the offence is serious, there was no force, no oppression, no luring, no trickery, no grooming and the complainant was a willing participant. The Defence submits that this context should compel a finding that the offence was not a major sexual assault. The Defence also submits that there is information the assault had little impact on the complainant.

As outlined previously I have rejected this information. [ 33 ] There was a nine year differential between Mr. Torres and the complainant. The complainant at law could not consent to the sexual activity. [ 34 ] While Mr. Torres presents himself as naive, he should have understood that the complainant was under the age of consent. Like other Courts have concluded on many occasions, I infer “the likelihood of other very real psychological or emotional harm” attendant upon the complainant. In my view Mr. Torres committed a major sexual assault upon the complainant. (

k) Aggravating and Mitigating Factors [ 35 ] There is one aggravating factor: the sexual assault occurred on two separate occasions and ended only as a result of Mr. Torres’ arrest by the police. [ 36 ] The mitigating factors include: - Mr. Torres admitted his sexual activity with the complainant to the police at the outset of the investigation; - Mr. Torres plead guilty following the trial (the issue at trial was whether Mr. Torres had a defence of mistaken age under s. 150.1(6) of the Criminal Code ); - Mr. Torres has accepted full responsibility for his behaviour; - Mr.

Torres is of previous good character; - The expert opinion (FAOS Report) of Mr. Torres indicates he is a low-moderate risk to re-offend. [ 37 ] The Defence also submitted that the “context” factors outlined above at paragraph 32 should mitigate Mr. Torres’ sentence. They do not. They are neutral in effect. [ 38 ] In my view, the aggravating and mitigating factors are offsetting. (

l) Starting Point Sentence [ 39 ] The starting point sentence for an offence constituting a major sexual assault is three years of incarceration: Sandercock , and W.B.S.

[ 40 ] The defence submitted a paucity of Alberta cases to support the submissions that this offence was not a major sexual assault and warranted minimal incarceration. I found the cases from other jurisdictions generally to be unhelpful. CONCLUSION [ 41 ] Bearing in mind the sentencing principles applicable to cases of major sexual assault involving children and the circumstances of this case, I find that an appropriate sentence is 36 months of incarceration. Additionally, I order the following: - Forfeiture of sealed exhibit.

The sealed exhibit will be returned and forfeited to the Crown upon the expiration of the Appeal period and then may be disposed of as the Attorney General directs; - Pursuant to

section 487.051(2) of the Criminal Code , an order requiring Mr. Torres provide a sample of his DNA for inclusion in the DNA data bank; - Pursuant to s. 490.012 and s. 490.013(2)(b), Mr. Torres is to comply with a SOIRA order pursuant for a period of 20 years; - Pursuant to s. 743.21, an order prohibiting Mr. Torres from communicating, directly or indirectly, with the complainant; - A

section 109 Prohibition Order; - The victim fine surcharge is waived; - Mr. Torres is to participate in and successfully complete specialized Sexual Offender Treatment as recommended in the FAOS Report; and - Mr. Torres is to participate in individual therapy addressing personal issues (depressive symptoms, gender orientation) as recommended in the FAOS Report. Heard on the 23rd day of December, 2011 Dated at the City of Calgary, Alberta this 6th day of January, 2012. R.G. Stevens J.C.Q.B.A. Appearances:

Ivanna Perozak for the Crown Norm Kelly for the Accused