R. v. Contreras Ramirez Date:, 2017 BCPC 278

Citation: R. v. Contreras Ramirez Date: 20170719 2017 BCPC 0278 File No: 167271-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARTIN CONTRERAS RAMIREZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI BAN ON PUBLICATION s.486.4 C.C.C. Counsel for the Crown: C. Fisher Counsel for the Defendant: R. Alberto Place of Hearing: Victoria , B.C. Date of Hearing: July 19, 2017

Date of Sentence: July 19, 2017 [ 1 ] THE COURT: Mr. Martin Contreras Ramirez, you are here today being sentenced on one count of sexual assault, contrary to s. 271 of the Criminal Code . Before proceeding with my reasons for sentence, I want to note that there is a publication ban in place pursuant so 486.4(2) of the Criminal Code , which prohibits the publication of any information that could identify the victim in this case. [ 2 ] Mr. Contreras Ramirez, at the trial of this matter I found you guilty of the charge of sexual assault on N.M.

I found, as N.M. testified, that she attended at your home/office massage therapy clinic for massage treatment. As is typical in such cases, N.M. removed most of her clothing and lay covered by a sheet on a massage table. The therapy began normally enough. N.M. found it so relaxing, she fell asleep. She awoke and, to her horror, realized that you were fondling her breast and digitally penetrating her vagina. [ 3 ] Later in these reasons, I will discuss in more detail the effect of this assault on the victim N.M.

At this juncture, I note that a critical factor in this sentencing is that at the material time N.M. was in a particularly vulnerable position; she was alone with you in your home/office; she was barely clothed, but covered with a sheet; she was asleep; and you were, by virtue of your role as a massage therapist, in a position where your client N.M. had placed a great deal of trust in you. [ 4 ] It was because N.M. trusted you as a qualified massage therapist that she consented to being alone with you in that state of undress and that she felt comfortable enough and relaxed enough and trusting enough to allow herself to fall asleep.

This I do not doubt is typical in the industry. It means that, in addition to the assault and the impact that it has on a victim, which is by no means insignificant, there is the added fact that the victim loses an ability to trust not only other persons, but her own judgment. The fact that this assault involves a breach of trust makes it an aggravating factor in the sentencing and it is the reason the Crown seeks a period of custody in a custodial institution. [ 5 ] Mr.

Alberto, on your behalf, concedes that a custodial sentence is called for but submits that the sentence should be served in the community by way of a Conditional Sentence Order (“CSO”). Mr. Alberto also seeks a substantial period of probation with counselling provisions. At issue in this sentence, then, clearly, is whether a Conditional Sentence Order is an appropriate disposition in all of the circumstances. [ 6 ] Whichever type of sentence is imposed, I am also called upon to consider the length of sentence as Mr.

Alberto, on your behalf, seeks a Conditional Sentence Order of 6 months duration or, alternatively, a custodial sentence of 90 days to be served intermittently. The Crown seeks a sentence of 12 to 18 months followed by a probation order solely for the purpose of prohibiting your contact or communication with N.M. [ 7 ] Other ancillary orders that must be made include a DNA order as this is a primary designated offence. Because you are now convicted of this offence, the Crown also seeks a SOIRA order pursuant to s. 490.012 of the Criminal Code for 10 years.

These are significant consequences for what is a significant and serious offence. The Crown has proceeded summarily in this case such that the maximum sentence is 18 months. That, too, is a reflection of the seriousness that Parliament takes of this offence. [ 8 ] Mr. Contreras Ramirez, you are now 54 years of age and the father of an 18-year-old child. You came to Canada from Mexico in 1994 and have been a Canadian citizen for quite some time. You do speak English, but, as I understand it, your first language and your preferred language continues to be Spanish.

It is a language that you are most comfortable in and, of course, an interpreter has been made available to you for your trial and for this sentencing. I have not been advised of any difficulty you have had in understanding what has taken place solely as a result of the language barrier. [ 9 ] On your behalf, Mr. Alberto has filed a book of supporting documents for this sentencing and in that book, aside from the many community testimonials as to your character and commitment to the Latino community here on the Island, are several psychological reports, one is dated as 1999 prepared by Dr.

Malcolm (the “Malcolm Report”). [ 10 ] The Malcolm report appears to have been prepared to address concerns around your memory function. In the end, the report concludes that your ability to learn has been demonstrated to be impaired largely because of poor visual-spatial reasoning and impaired working memory skills. The report is slightly compromised in that these results were arrived at using only non-verbal testing because of the language barrier. Much of what was done was done through translation by your then wife. [ 11 ] Your cognitive abilities were the subject of a more recent psychological assessment.

This one was prepared by Dr. Stein, found at Tab 18 of the book of documents and entered as Exhibit 2 in this sentencing hearing. [ 12 ] There, particularly at page 16, Dr. Stein confirms that you are significantly disabled by an inability to plan, organize or carefully monitor your own actions, and that you find it very challenging to adapt to changing environments. In the end, Dr. Stein urges the court to impose a Conditional Sentence Order as jail would be stressful. Dr.

Stein finds you to be a low risk to re-offend based, among other things, a finding that you have "no prior history of criminal or inappropriate behaviour." It is, I think, important to note that this risk assessment is not one that takes into account the accused's insight into his offending behaviour. There is, here, no admission of the offence. [ 13 ] Crown points to paragraph 8 of Dr. Stein's conclusions that you would likely comply with the court order by noting that Dr. Stein does not appear to have considered the allegations of breach.

Those are, however, referred to in the report, and I think that not much turns on this. This is not a case, I find, where the court need be overly concerned about your ability to serve a Conditional Sentence Order safely in the community. That is not where the difficult decision point lies in this sentencing. [ 14 ] I mentioned the many letters of support that have been provided by community members. Many of those letters have come from past clients who attest to their great satisfaction with your work.

I agree with the Crown, and it is notable, that most of the writers simply do not believe you are guilty of this offence. Even if they did, I suspect many would still write letters of support. I think it clear from all of the materials that you are a welcome and valued member of your community. You have had a great deal of personal support

in your community over these past many months, and I have no doubt that that support will continue in whatever disposition I arrive at today. [ 15 ] Mr. Contreras Ramirez, you are, as I say, a 54-year-old man with no criminal record, employed for these last many years as a massage therapist. You had, up to November 14, 2015, the day of the assault on N.M., established with a partner a robust massage therapy practice.

You were making good money, and you were supporting your son and other family members, including your mother. [ 16 ] It is most unfortunate that in that moment when N.M. lay asleep on the massage table in the room in which you were alone with her that you chose to assault her. This act, perhaps one of momentary madness, certainly, as Mr. Alberto stated, one of opportunity, has destroyed all of that.

I suspect, though I cannot know, that this process, the charge, the bail order, the time spent in custody, the knowledge in your community of these charges, your conviction, and the destruction of your life as you knew it on the morning of November 14, 2015, would have a significant personal deterrent effect on you. It may be that this experience would be enough to dissuade you from ever engaging in this egregious behaviour should the opportunity ever again present itself. [ 17 ] As I say, I cannot know this.

I can only surmise that, as an otherwise law-abiding member of the community, at least someone who is 54 years of age with no record, that this would have a personal deterrent effect. Still, I must address other sentencing objectives in these reasons given the nature of the offence, the nature of the offender, and, the topic I will turn to now is, the impact on the victim. [ 18 ] N.M. testified that she came to you after seeing your ad in a popular web-based business known as Groupon. Your company was soliciting business by offering low rates.

N.M. was [deleted for publication] of massage therapists as she suffered from a [deleted for publication] . She did her due diligence and researched your business. Upon entering your premises, she was satisfied it conformed with her experiences at such therapy appointments. She filled out a form, as Crown mentioned in this sentencing, giving her personal information, including her address.

Because she trusted you and the situation, she disrobed, consented to being alone with you in a room, consented to your massaging her and, as I have said, she fell asleep, which is not unusual in the circumstances. [ 19 ] None of this would have occurred if you were not able to trade on the trust endemic in your industry. Without that trust, you and other members of your profession would have many fewer clients. Even fewer would consent to disrobing, as seems to be necessary for the process to work, or be alone with any one person.

I do not think it an exaggeration to say that the industry really operates on this trust. [ 20 ] N.M. gave a victim impact statement in which she described ultimately being diagnosed with depression after this incident. She has described persistent difficulties sleeping and she says she has gained weight, has lost time from work, and continues to see a psychologist for counselling as a result of the offence. I think few would disagree that this is a heavy price to pay for seeking a basic quasi-medical service. [ 21 ] I previously alluded to the sentencing position of the parties.

The Crown seeks a custodial sentence in the range of 12 to 18 months. Your counsel, Mr. Alberto, suggests a Conditional Sentence Order of some 6 months in duration, followed by a period of probation. [ 22 ] In support of its position, the Crown has provided a number of cases, some of which are similar factually, in which virtually every offender has been sentenced to a period of custody ranging from 6 to 18 months to be served in a custodial facility rather than in the community by way of a CSO. On your behalf, Mr.

Alberto has provided the court with three cases in which accused persons convicted of sexual assaults involving a breach of trust have been granted a Conditional Sentence Order. The Criminal Code does provide that a Conditional Sentence Order is available on sentencing for this offence, and it is urged on your behalf that I impose that sentence. [ 23 ] I will say at the outset that there are several criteria that must be in place before such a sentence can be imposed. The first is that the sentence must be less than two years.

In this case, that criterion is not in issue; your sentence will be less than two years. Secondly, the court must be satisfied that the offender can safely serve the sentence in the community. As a first time offender, even taking into account the breach charge, I have no concerns that you could not serve a CSO safely in the community were one to be granted. That leaves the last consideration with respect to the granting of a Conditional Sentence Order, which is whether in all the circumstances such an order would be consistent with the purposes and principles of sentencing.

These are set out in s. 718 and s. 718.2 of the Criminal Code . [ 24 ]

Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute, along with other crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) To denounce unlawful conduct;

b) To deter the offender and other personals from committing offences;

c) To separate the offender from society where necessary;

d) To assist in rehabilitating offenders;

e) To provide reparations for harm done to victims or the community; and

f) To promote a sense of responsibility in the offender and acknowledgment of the harm done to the victims and the community. [ 25 ] How much emphasis the court places on each of these options varies, and that varies according to the nature of the offence and the circumstances of the offender. However, for certain offences, the courts are required by the law as well as the Code to emphasize certain objectives.

[ 26 ] In this case, there is no question that the sentencing objectives necessary to uphold the purpose of sentencing under the Criminal Code are those that serve as both specific and general deterrence and denunciation. I have mentioned specific deterrence before in these reasons. As I say, it seems probable that it is not, given what has occurred, a significant factor in the sentencing even despite your continued denial of having committed the offence in the first instance.

A sampling of the cases provided by the Crown indicate clearly that deterrence, general and specific, as well as denunciation, are and must be primary considerations in this sentence. [ 27 ] In R. v. Ashley-Pryce , 2004 BCCA 531 , the offender was sentenced to 18 months in custody for masturbating over the bed of an elderly Alzheimer's patient in his care. At paragraph 10 of that decision, the court wrote: Indeed, Ms. De Witt-Van Oosten notes the comment in Proulx concerning the particular effectiveness of deterrence in the particular community of which the person being sentenced may be a part.

In this case, that is the community of caregivers, persons who are usually law-abiding and who are entrusted with the care of vulnerable persons. Obviously, the breach of trust committed by Mr. Ashley- Pryce engages the principle of deterrence and denunciation and the sentence he receives is likely to be noted by that community to a greater extent than many sentences are noted by the general public. Society must be able to trust that such persons will not commit serious breaches of this kind. [ 28 ] In R. v.

Aguas , 2015 ONSC 5732 , the accused was sentenced to 14 months in custody for taking photographs of an unclothed hospital patient who assumed she was being cared for, and that the photographs were for medical or legal reasons. In considering whether to impose a Conditional Sentence Order rather than a custodial sentence, the court wrote at paragraph 51: Nevertheless, in the circumstances of this case, I am not satisfied that a conditional sentence, served in the community, would be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 ” of the Criminal Code .

Defence counsel did not suggest otherwise. As Lamer C.J.C. noted in R. v. Proulx ... at para. 22, a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence.” However, in this case, I am not satisfied that even a punitive and restrictive conditional sentence (even one longer than that sought by the parties), would proportionally reflect the gravity of the offences, and provide the necessary elements of denunciation and deterrence in all of the circumstances.

As the court also observed in Proulx , at para. 114, where the sentencing principles of “denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction,” and this may be so “notwithstanding the fact that restorative goals might be achieved by a conditional sentence.” [ 29 ] In R. v. Collins , 2007 NBQB 169 , the accused, a massage therapist, who inappropriately massaged his client's breasts over a space of five treatments, was sentenced to 12 months in custody.

In deciding not to sentence the accused to a Conditional Sentence Order, the court said this at paragraphs 25 and 26: In my view however, the imposition of a conditional sentence for this offence would not be consistent with the fundamental purpose and principles of sentencing and particularly the primary considerations of deterrence and denunciation that I believe must apply to this case. The abuse of trust by treating specialists or therapists who sexually assault their patients must be denounced categorically.

A strong clear message must be sent to those who are inclined to abuse such trust that such conduct carries with it severe consequences, including incarceration. Obviously, the circumstances of each case and each offender have to be considered on their own merits and there may be cases where a conditional sentence would be appropriate. In my view, however, in the circumstances of this case, the sentence must be one of imprisonment. The objectives of denunciation and deterrence must take priority. [ 30 ] In R. v.

Ngoddy , 2016 ONCJ 178 , a conditional sentence was similarly rejected in the case of an accused who sexually assaulted a disabled resident of a group home. As with the other cases relied on by the Crown, the court was convinced that in cases where the sentencing principles of denunciation and deterrence are particularly pressing, such as in cases where there are aggravating circumstances, incarceration is generally the preferable sanction. [ 31 ] Finally, in R. v. Khan , 2016 ONCJ 282 , the court sentenced a message therapist to 6 months in custody.

As in this case, in the course of a massage, the accused touched the victim's breast and brushed up against the inside of her vagina. Again, for reasons similar to the other cases relied on by the Crown, the court in Khan rejected the imposition of a Conditional Sentence Order (at paragraph 25). [ 32 ] Mr. Alberto has, as I mentioned, provided the court with three cases in which a victim was sexually assaulted in instances involving a breach of trust. [ 33 ] In the first, R. v. Haugo , 2006 BCPC 319 , the accused used his position as a track coach to assault several female athletes.

In so doing, the accused engaged in planning. The victims were young, one as young as 14. The impact of the assault was, for them, devastating. Still, the court granted a Conditional Sentence Order. At paragraph 81, the court explained that the accused was 69 and was an extremely low risk to re-offend. He had expressed profound remorse for his actions, pled guilty, and thus saved the victims from having to testify. He had worked as a psychiatric nurse without incident, had no criminal record, and had the support of family and friends. [ 34 ] In R. v.

Gavrilko , 2007 BCSC 1473 , Justice Tysoe, as he then was, sentenced the accused, a dentist who had touched his victim's breast as she attended for dental treatment on approximately 10 occasions, to a 12-month Conditional Sentence Order. There is no discussion in the judgment as to how the court arrived at that decision. [ 35 ] Finally, in R. v. Toupin , 2005 SKPC 31 , the court sentenced the accused, a Justice of the Peace, to a 9-month Conditional Sentence Order for the offence of sexual assault.

The accused had, in the course of his duties at the courthouse, taken a clerk's hand and placed it on his private parts. Toupin sets out lengthy reasons for the sentencing decision. Mr. Alberto directs me particularly to paragraphs 8 to 10 on page 6, which summarize the reasons in Proulx , [2001] 1 SCR 61 .

There it is stated that a Conditional Sentence Order can provide significant denunciation and deterrence, though, as other courts have also noted, Proulx provides that there are instances where denunciation and deterrence are so pressing that incarceration will be the only suitable way to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[ 36 ] It is noted that, in general, a Conditional Sentence Order is better than incarceration to achieve the restorative objectives of rehabilitation and reparation to the victim. However, as the Crown notes, this is not a case in which the sentence must focus on rehabilitation. Mr. Contreras Ramirez, you deny having committed the offence for which you are convicted.

I do not find that a CSO would achieve any sort of reparation to the victim in the circumstances of this case. [ 37 ] Finally, as the court in Proulx notes, even where the restorative and punitive sentencing objectives can be achieved by a Conditional Sentence Order, one may not be appropriate where the objective of deterrence and denunciation are particularly pressing. [ 38 ] This, then, is a brief

summary of the case law provided to the court on this sentencing. Overall, as the cases indicate, a Conditional Sentence Order is generally not appropriate or suitable in cases involving a breach of trust, though there are exceptions. Certainly all sentences are individualistic exercises. [ 39 ] In this case, though I am entirely mindful of the impact a custodial sentence will have on you, Mr. Contreras Ramirez. With regret, I have concluded that a custodial sentence is necessary to meet the sentencing principles of deterrence and denunciation.

I am convinced that a Conditional Sentence Order in this instance will not send the message that must be sent to the community of massage therapists and, frankly, other persons having the opportunity to engage in close intimate contact with persons in their care who are virtual strangers. Those who put their trust and faith in such persons, who place themselves in such vulnerable positions based on that trust, must know that when that trust is gainsaid, it will be met with significant consequences.

More importantly, people who abuse that trust who find themselves presented with opportunities, no matter how fleeting, because they are in a position of trust, must know that that abuse will be met with significant consequences. [ 40 ] A Conditional Sentence Order does not, in my view, address the fundamental purpose of sentencing in this case. For these reasons, I have determined that I will, in this sentence, impose a period of incarceration. [ 41 ] It now falls on me to determine the length of sentence. In this regard, the parties are far apart.

I have noted the Crown seeks a sentence in the range of 12 to 18 months, while Mr. Alberto seeks something in the range of 90 days. I can say at the outset, with the greatest of respect, that 90 days falls far short of what would be an appropriate sentence in this case for this offence. [ 42 ] Length of sentence is informed by, among other things, a consideration of mitigating and aggravating factors. In this case, one aggravating factor is, of course, that this offence involves a breach of trust, as I had emphasized. N.M. was also in a very vulnerable position when this occurred. As the court in R. v.

Khan notes at paragraph 14 , this observation is somewhat related to the breach of trust, but it should be noted that N.M., like the victim in Khan , was in a small room, alone with you, Mr. Contreras Ramirez, and nearly completely disrobed. Moreover, she was asleep. [ 43 ] Other aggravating factors include the impact on the victim. This offence has taken a terrible toll on N.M., who must work her way back from this with the aid of therapy for some time to come. In addition, the assault involved digital penetration. It had a physical impact on N.M.

She reported discomfort and redness was noted during her hospital exam. [ 44 ] Mitigating factors in this case include that you have no criminal record and that you have support in the community. When you are released, Mr. Contreras Ramirez, I am confident that support will continue to be available to you.

Nothing I do today will change that. [ 45 ] As s. 718.2 of the Criminal Code provides, in imposing a sentence, I must take into consideration, aside from aggravating and mitigating factors, the fact that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. My previous discussion concerning the appropriateness of a Conditional Sentence Order addresses the other considerations in ss. 718.2(

d) and (e). [ 46 ] In this case, I have been presented with a broad range of sentencing options for similar offences in somewhat similar conditions, though none are exactly similar. As I have noted in these reasons, in some instances, courts have issued a Conditional Sentence Order; in other instances, courts have issued sentences of incarceration for periods ranging from 6 to 18 months. The higher sentences have, at least in the cases before me, involved in some instances more than one victim; in other instances, the assaults have occurred over a period of time. Still, Mr.

Ashley-Pryce was sentenced to 18 months for a one time assault in which the patient was not physically touched. The breach of trust was, however, egregious. [ 47 ] When I consider all of the cases and the aggravating and mitigating circumstances, I have concluded that a custodial sentence of 12 months is the appropriate sentence in this case. [ 48 ] Mr. Contreras Ramirez, I must ask you at this time to please stand. Mr. Contreras Ramirez, for the offence of sexual assault contrary to s. 271 of the Criminal Code , I sentence you to 12 months in custody. You have served, I find, 132 days in custody on this matter.

When you are given credit for time served at the rate of a day and a half for each day, you are entitled to credit in the amount of 198 days. That time will be attributed to my sentence, leaving you with 167 days to serve. [ 49 ] In addition to this sentence, I make the following ancillary orders.

Section 271 of the Criminal Code is a primary designated DNA offence. Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 503 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. The samples are to be taken from you while you are in jail, and you must submit to the samples. [ 50 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Registration Act for 10 years.

You must also pay a victim impact surcharge in the amount of $100 payable within 60 days of the date of your release from custody. [ 51 ] In addition to the foregoing, I will impose a probation order to take effect for a period of 12 months immediately upon your release. The mandatory conditions of the order are: That you must keep the peace and be of good behaviour, attend at court when required to do so by the court, and you are not to change your name, address, employment or occupation during the period of probation without notifying the court or a probation officer.

[ 52 ] You will report to a probation officer within two business days after your release from custody at 836 Courtenay Street in Victoria unless prior to your release you have obtained written permission from your probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 53 ] The other conditions are that you have no contact or communication, directly or indirectly, with N.M., and there is an order that you not attend at any residence, school or workplace of N.M. [ 54 ] And, finally, pursuant to s. 743.21(1) of the Criminal Code , I order also that you have no contact or communication, directly or indirectly, with N.M. while you are in custody except if necessary through counsel. [ 55 ] That concludes the reasons for sentence. [REASONS FOR SENTENCE CONCLUDED]