R. v. Laz-Martinez, 2011 ONCJ 115

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. Laz-Martinez , 2011 ONCJ 115 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BIRON LAZ-MARTINEZ Before Justice D.P. Cole Heard on October 25, November 16, 2010, January 28, 2011 Reasons for Judgment released on March 2, 2011 E. Moore .................................................................................................................... for the Crown R. McDonald ............................................................................................................ for the accused

COLE J.: ISSUE [ 1 ] What is the appropriate custodial sentence to be imposed on an offender who has intercourse with an unconscious woman? FACTS [ 2 ] After hearing the evidence adduced by the Crown at a preliminary inquiry, the offender entered a plea of guilty before me to a charge that on July 1, 2008, he sexually assaulted M.H.

Counsel agreed that the facts described by the Crown witnesses could be applied to support the plea of guilty. [ 3 ] By way of background, the complainant described that on April 18, 2008 – some 2 ½ months before the date of the offence under consideration here - she, the accused and other friends had gone to a club to celebrate her birthday; at the end of the evening, all had returned to her apartment, whereupon she went to sleep. She awoke a little while later to find the accused kissing her and trying “to pull my shirt up”. She screamed at him and ordered him to stop and to leave her apartment.

She did not see him again until the evening of June 30-July 1, 2008. [ 4 ] On the evening of June 30, 2008 the complainant and several of her friends went to a nightclub. While enjoying themselves there, the complainant coincidentally met the accused. He approached her to apologize for his behaviour a few weeks before. He blamed his alcohol consumption for his improper advances to her. [ 5 ] Apparently the complainant forgave the offender, because she invited him and several of her friends to accompany her back to her apartment after the nightclub closed.

The friends continued to drink, listen to music and “hang out” at the apartment. Though the complainant said that she was “sober” when she left the nightclub, she agreed that she consumed several drinks at the apartment, to the point where – though she has little memory of this – her friends put her in her bed and left her “to sleep it off”. She had no memory of anything else that happened to her until she woke up the next morning. [ 6 ] Because of the complainant’s lack of memory about what happened in the apartment, the remaining evidence came from some of her friends.

They testified that after they put her in her bed, and closed her bedroom door, they checked on her from time to time. At one point one of the witnesses noticed that the offender was not in the living room, so he checked to see if he was in the bathroom. When he could not find him he decided to check the complainant’s bedroom. He opened the door to find the offender in her bed, on top of the complainant, apparently having intercourse. He told the offender to stop, which he refused to do; in fact, he asked the witness if he “wanted some too”. The offender only desisted after he climaxed.

He then got dressed and left the apartment. [ 7 ] All witnesses agreed that the offender had consumed alcohol both at the club and at the apartment, though some said that he did not seem particularly intoxicated. (Through counsel, the offender also claimed that he had ingested cocaine at some point that evening). By his plea, the offender conceded that when he was discovered in the bedroom, he had penetrated the complainant; he also admitted through counsel that he was not wearing a condom during intercourse. POSITIONS OF THE PARTIES [ 8 ] Counsel were in agreement that a custodial sentence should be imposed.

Where they differed was on the length of the custodial term. Crown counsel proposed that a sentence of either two years or two years less a day should be imposed. Defence counsel argued that a sentence of eight months would adequately address the various principles of sentencing I must balance. [ 9 ] Both counsel were in agreement that a term of probation should be imposed, to commence on the expiry of the custodial sentence.

They also agreed that I should make a series of ancillary orders - a “weapons prohibition”, an order for the provision of a DNA sample, and registration of the offender on the federal sex offender registry (SOIRA). BACKGROUND OF THE OFFENDER [ 10 ] Before describing the contents of the Pre-Sentence Report (PSR) prepared for my assistance, there are two matters that I consider appropriate to dispose of from the outset. [ 11 ] The first is that while the offence date was July 1, 2008, the guilty plea was not entered until some 28 ½ months later.

Crown counsel says that this disentitles the offender to make any claim for a reduction in sentence on the basis of an early guilty plea. While I entirely agree with Crown counsel that this would normally be the case, the reasons for the delay require some further explanation. By coincidence, I happened to be presiding many months ago in a court to which apparently delinquent accused are referred when they seem to be taking an inordinate amount of time to retain counsel. Mr. Laz-Martinez was referred to my court for that reason.

When I queried him, he indicated that because his financial situation was fluid as he went in and out of a series of part-time jobs, Legal Aid Ontario was refusing to grant him a legal aid certificate. He produced documentation to this effect. I decided to seize myself with that aspect of his case to monitor his progress. I soon satisfied myself through his presentation of documents that he was not malingering in his efforts to obtain counsel. While it took a very long time for him to get matters straightened around with Legal Aid Ontario, defence counsel came “on board” as soon as a certificate was granted.

Unfortunately, all of this further delayed the process of setting a date for a preliminary inquiry. Notwithstanding these very regrettable delays, in a matter as serious as this, I am certainly not going to penalize an accused person who experiences difficulty in retaining counsel.

I thus disagree with Crown counsel that this fact alone disentitles the offender to consideration for a reduction in sentence because of his failure to enter a guilty plea early in the proceedings. [ 12 ] Crown counsel’s second argument was that it was not until after the evidence had been heard at the preliminary inquiry that the accused decided to change his plea to guilty. She said that this further disqualifies the offender from any sentence reduction, on two

bases. She first asked me to keep in mind that the offender’s insistence on his right to hear the evidence tendered against him at a preliminary inquiry further delayed the “day of reckoning”. Defence counsel responded to this argument by suggesting that because his client’s position was that he had consumed considerable quantities of both alcohol and drugs, he was not at all clear as to what had happened that evening, and he therefore needed to hear the evidence of the Crown witnesses before he could make an informed decision about changing his plea to guilty.

As soon as he satisfied himself that the evidence given under oath confirmed what he anticipated would be forthcoming from the disclosure, he instructed counsel that he withed to enter a plea of guilty to the charge. [ 13 ] I think both counsel have some support for their positions on this branch of Crown counsel’s argument.

Unless there were quite unexpected differences between what the defence received by way of disclosure of witness statements and their actual evidence – and I have not heard anything on point – the evidence of the various witnesses who testified could easily have been anticipated by the accused. The witnesses who were called to testify seemed to have no particular animus towards the accused; from what I was able to tell, they gave their evidence fairly and objectively.

Having said this, of course any accused person is fully entitled to hear the case against him before entering a plea of guilty; after all, this is one of the purposes of a preliminary inquiry. While I am prepared to allow the offender some reduction of sentence by way of recognition of the importance of his plea of guilty, in my judgment, he loses some entitlement to a further reduction for an “early” plea. [ 14 ] Crown counsel also argued that the position taken by the accused meant that the complainant was required to testify, which likely added to her trauma.

I did not call on defence counsel to respond to this argument. Given that the complainant testified that she had no recollection of the sexual assault – which was presumably known to Crown counsel before she testified - I have little idea what she added to the Crown’s case when she was called as a witness for the Crown at the preliminary inquiry. If Crown counsel called her as a witness to confirm that fact, it was something that the Crown felt she needed to do to buttress her case; with respect, unless there was something I was not told, it seemed unnecessary to call the witness for any other purpose.

In any event, it was clear that the defence did not insist that this witness be called. The defence has no control over which witnesses the Crown elects to call. [ 15 ] The Pre-Sentence Report (PSR) discloses that offender is 32 years of age. He has a very minor record – one conviction in 2002 for failing to comply with the terms of a bail order – which seems irrelevant for current purposes. Born in Guatemala, he was raised in Canada, and appears to have lived in the Toronto area since he was a young child. He was not successful at school, and joined the workforce in his late teens.

He was employed as a welder for several years, and now works as a self-employed sub-contractor for renovation work. [ 16 ] The laying of this criminal charge seems to have had a salutary effect, in that it seems to be one of the factors that has persuaded the offender that he needs to moderate his pattern of alcohol consumption. His mother reported to the writer of the PSR that she and other family members urged the offender for many years to reduce or cease his excessive drinking, but that he was not very receptive to this advice.

The offender conceded that in the past “he would go out on weekends with friends on a regular basis and that he would often consume significant amounts of alcohol and that this use would lead to his ‘passing out and not remembering much later’”. His mother notes that since (

a) the offender has been diagnosed with Type 2 diabetes (

b) he has changed his pattern of friendships and his circle of friends (

c) he has become involved in a serious romantic relationship, and (

d) he has been charged with this offence, he has significantly reduced his alcohol consumption. [ 17 ] The offender has been romantically involved and living with Ms Sonia Marroquin for about the past two years. She reported to the writer of the PSR that she agrees with the offender’s mother that the offender’s alcohol consumption has “subsided considerably” since he has distanced himself from his previous peer group.

However, she remains convinced that he could benefit from alcohol abuse counselling because she has seen occasions when he has either become angry or sexually inappropriate while intoxicated. (The victim of this offence reported to the writer of the PSR that she too has seen instances where the offender would get into fights at bars or clubs while intoxicated). [ 18 ] As previously indicated, as part of his guilty plea, the offender admitted through counsel that he had consumed cocaine on the night he violated the victim. (Interestingly, he told the writer of the PSR that he had also consumed marijuana).

Neither the offender nor family members nor Ms Marroquin consider this to be an ongoing problem. [ 19 ] Ms Marroquin submitted a letter to the court in which she described the offender as a good provider, a good influence in her life (and that of her 10 year-old son), and that “he has become a good role model as a parent, husband and friend”. [ 20 ] I have carefully read all of the materials submitted. The overall picture presented is that the offender is finally growing up. Nevertheless, the writer of the PSR expressed concern about some of the offender’s general attitudes towards women.

The writer quoted the offender as follows: “[W]omen will sometimes say things just to get men in trouble and that ‘they add to the story, they have that gift’.

The subject also indicated that there are times when a woman may say no and resists sexual advances but may still want a man to continue…the woman may do that because ‘they may not want to seem easy’”. [ 21 ] The writer also expressed concern about the offender’s attitude towards the victim of the offence (who had apparently been his friend for about 15 years prior to the incident): “When questioned about the impact that the offence might have had on the victim, the subject indicated that she likely feels hurt and angry because of his actions and also felt that he had betrayed their friendship.

The subject also noted that he felt ‘bad and embarrassed about what I did’. However, he also took the opportunity to describe the victim as ‘a good woman but a party woman who is constantly going out and leaving her kid, she did drugs and drank and would pass out. She got into a lot of fights”. [ 22 ] The writer concluded: “Although [the offender] accepts responsibility and expressed regret for the harm caused to the victim, both were tempered with caveats and explanation. In discussing the offence, the subject repeatedly offered his intoxication as the reason that he acted out sexually.

There are also concerns noted with attitudes that appear hostile towards women as well as his use of sex as a coping mechanism” (emphasis added). [ 23 ] Not surprisingly Crown counsel requested that I pay particular attention to the quotes from the offender and the PSR writer’s concerns. She suggested that the offender’s attitude to women generally and to the victim specifically clearly indicate that the offender is

in considerable need of exposure to programming that will show him how wrong and dangerous his attitudes are. While Ms Moore didnot go so far as to say that the offender’s likelihood of recidivating is clearly and obviously heightened as reflected by these totallyinappropriate comments and attitudes, she argued that he needs ongoing institutional and community programs that may help himaddress these issues.

She explained that this was why in her submissions Crown counsel restricted herself to seeking a maximum of twoyears incarceration, as any custodial sentence in excess of two years would remove my jurisdiction to impose a period of probation. Withthis I agree. The offender needs to think and learn about and completely revise his attitudes towards women, at the very least because heis now acting as a father figure to a boy who will soon be entering puberty.

THE VICTIM IMPACT STATEMENT [24] In addition to consenting to be interviewed by the writer of the PSR, the victim filed a written Victim Impact Statement (VIS).Its brevity made it accurate and powerful, so I will quote from it directly, rather than summarizing it. She wrote: “It is hard to trustpeople. It prevents me from wanting to make friends. It still puts me in a state of shock. I sometimes break down and think of thesituation and feel stressed out. It makes me mad at myself for allowing this to happen to me. It makes me feel low to know that myfamily had to find out what happened to me.

I feel embarrassed to think that my son might find out about this in the future. It makes mesad, mad and I stress when I think I ever trusted someone like you”. [25] I pause in the narrative to comment about the last sentence of this VIS. As I have previously indicated in para. 3 of thesereasons, a few weeks before the incident for which I am about to sentence the offender, he had attempted to take advantage of the victimin very similar circumstances, in that he had sexually assaulted her while she was asleep in her own apartment.

Against this backdrop, Ifind that the complainant’s express reference to the offender’s breach of trust is a particularly aggravating factor on sentence. I shallreturn to this later in these reasons. [26] The written VIS was of course prepared before the date set for oral submissions in this case. The victim was in court when Iheard the arguments of counsel. It turned out that her friends – no doubt out of delicacy – had not given her full details of the extent ofthe offender’s sexual assault on her.

I gather from Crown counsel that it was not until the victim heard the lawyers talk about it in courtthat she realized for the first time that the offender had both penetrated her and ejaculated while not wearing a condom. Not only mustthis have been a dreadful shock to her, but she must also now be concerned about the possibility of sexually transmitted diseases (STDs).While this is beyond my powers, I do hope some way can be found to allay concerns the victim may have about the offender’s physicalcondition – if any. CASE LAW CITED BY COUNSEL [27] Crown counsel began her review of case law by referring to R. v.

J.R.& J.D. 2008 ONCA 200 , [2008] O.J. No. 1054,where the Ontario Court of Appeal considered the appropriate sentence to be imposed in a fact pattern somewhat similar to the case atbar. In that case the complainant and the two accused were among several young persons who had attended a small party in a hotel room.The complainant drank liquor and ingested some drugs. She fell asleep sometime after 3:30 a.m. She awoke the following morning alonein the hotel room, lying naked on the bathroom floor. She had no memory of engaging in sexual intercourse.

In the weeks following theparty she began to ask her friends what they knew or heard had happened, and she came to believe that the two accused had sexuallyassaulted her. This was confirmed by a DNA sample taken from her vagina during the afternoon following the party; it indicated thepresence of semen from each of the two accused, together with that of an unknown third party. At trial the accused were acquitted ofgang sexual assault but were convicted of sexual assault.

Crown counsel asked for and the trial judge imposed custodial sentences of twoyears (supplemented by DNA and SOIRA orders). [28] On appeal the Crown consented to a reduction of J.R.’s sentence on the basis of a ground not argued before the trial judge,namely that such a reduction would allow the offender to launch an immigration appeal against a deportation made consequent upon thesentence being imposed for this offence (para.22). However, in the absence of Crown consent, the Court of Appeal refused to reduce thetwo-year sentence imposed on J.D., despite the fact that he was a first offender.

The court wrote: “in the circumstances of this case,where each man took advantage of the complainant when she was incapacitated, leaving her in a state where she woke up naked, helplessand alone on the bathroom floor of the hotel room, the two-year sentence is at the low end of the appropriate range of sentence” (para.25; emphasis added).

The court further noted that part of what was “reprehensible” in the conduct of J.D. was that he was “her goodfriend”, who took advantage of her friendship to commit “a significant breach of their long-standing friendship…[to] treat K.P. as anobject and [to violate] her body solely for [his] sexual gratification” (Reasons for Sentence of Ducharme J. (ON SC),[2006] O.J. No. 4777, para. 5). [29] I note one further point from a comparison of that case to the case at bar. J.D. was 23.8 years old at the time of the commissionof the offence for which he was ultimately sentenced, while Mr.

Laz-Martinez was 29.8 years old. Both levels of court in R. v. J.D.commented positively on the relatively youthful age of that offender. In my judgment, Mr. Laz-Martinez’ age works against him here;though he is (essentially) a first offender, he can in no way be classified as a youthful offender. [30] Crown counsel next referred to R. v. H.H. (ON CA), [2002] O.J. No. 1509, where the offender tookadvantage of an 18 year-old employee. Under the pretext of insisting that she come to his home during lunch hour, he plied her withalcohol, ignored her request to return to work, and waited until she passed out.

He undressed her and had intercourse with her in histeenage daughter’s bed, during the course of which she awoke and demanded that he stop, which he ignored. The Court of Appeal heldthat, “[h]aving regard to the gravity and seriousness of the offence and the respondent’s degree of moral blameworthiness, including hisabuse of a position of authority, the fact that he took advantage of the complainant while she was unconscious and his failure to heed herplea to ‘stop’ when she realized what was happening…a penitentiary term was appropriate” (para. 5; emphasis added).

However, mainlybecause by the time the appeal was heard the offender had already served most of the conditional sentence that the trial judge haderroneously imposed, the court varied the sentence to one of 18 months incarceration. Crown counsel argues that, substituting theoffender’s breach of trust (described supra) for H.H.’s abuse of a position of trust, either a maximum reformatory term or a minimumpenitentiary term is an appropriate sentence. Defence counsel replies to this by quite properly reminding me (

a) that H.H. was convictedfollowing a trial, while Mr. Laz-Martinez entered a plea of guilty, and (

b) the complainant in the case at bar was never awake enough toplead that the offender should stop, which he suggests was an extra aggravating factor that obviously influenced the Court of Appeal in

that case (see para. 5). [ 31 ] In support of her submission that generally sentences of more than two years should be imposed for assaults on unconscious victims, Crown counsel then referred to the by now somewhat hoary [1] authority of R. v. Glassford [1988] O.J. No. 359 . The complainant in the case had gone drinking with her boyfriend and other friends at a bar. When they left she remained at the hotel and continued to drink until she was quite intoxicated. On her way to retrieve her bicycle she met three men, one of whom was the accused.

They invited her to another hotel, where she was ultimately propositioned by at least two of these men. She refused and left the hotel. The accused followed her, dragged her into a garden, pulled down her pants, and when she resisted he punched her several times until she “blacked out”. When she regained consciousness her pants were down and her pantyhose was ripped. She did not know whether he had had sexual intercourse with her; the medical and other evidence on this point was inconclusive. Following a Crown election to proceed by indictment, the offender was convicted at trial of assault causing bodily harm.

The trial judge imposed a sentence of 90 days intermittent, followed by probation. [ 32 ] Upon hearing a Crown appeal against the sentence imposed, the Court of Appeal was quite clear that “[t]he brutality of the attack on the complainant’s person and the callousness of leaving her beaten unconscious and partly clothed required a sentence which was a substantial term of imprisonment.

We think that a penitentiary term of more than two years would have been a fit one notwithstanding that the respondent had no previous record and a not unfavourable pre-sentence report” (emphasis added). (Because the offender had already served part of his intermittent sentence by the time the appeal was heard, in result the court increased the sentence to two years less one day). [ 33 ] Defence counsel correctly stressed that the facts of R. v. Glassford involved considerably more violence than in the case at bar. Seen in this light, he argued that that case was properly decided.

But counsel went on to suggest that because there was no additional violence to the complainant in the case at bar (other than the sexual assault itself), the sentence I should impose should be considerably reduced. With respect, I think this is a slippery slope argument, unfortunately very capable of perpetuating the very stereotypes that the reforms to Canada’s sexual assault legislation and practice were in large measure designed to halt.

As the Alberta Court of Appeal aptly commented in its firm rejection of a trial judge’s “indefensible...interpretations” of why a fact pattern involving “forced intercourse…on a passed out complainant” in R. v. Arcand, discussed infra , merited only a 90-day custodial sentence: 269 Another

interpretation rests on a familiar rape myth. That is the notion that non-consensual sexual intercourse is only a "real" major sexual assault if the complainant has been violated by a stranger who has, for example, broken into her home or pulled her off the street. On this theory, if the unlawful act is not in this category - if the complainant has drunk too much or was imprudent as to her safety - it does not qualify as a major sexual assault. But even where a complainant has done either, this does not offer the slightest mitigation in sentence.

This thinking perpetuates pernicious rape myths that the courts have repeatedly sought to eradicate. It has no place in sentencing for sexual assault in this country. 270 Further, the suggestion that this is "not the ordinary scenario" for a sexual assault also reflects flawed reasoning. Even if it were not the "ordinary scenario", whatever that might mean, it remains a major sexual assault. More important, though, this suggestion also ignores reality. Sexual assault does not come calling only in the form of a masked intruder.

As many women and men in this country have found to their everlasting regret, sexual assaults can be perpetrated - and often are - by offenders known to their victiMs Therefore, we reject the notion that because the complainant knew the offender, and she invited him to her family home and they sat on a bed together, that this makes the non-consensual sexual intercourse something other than a major sexual assault. 271 The purpose of sentencing is to contribute to the maintenance of a just, peaceful and safe society. A just society is one which rejects improper myths and stereotypes about people.

A peaceful society is one in which the criminal law adequately controls those whose actions violate the security of others. A safe society is one in which people can fall asleep in their home without being sexually molested; and if they are, where the criminal law responds effectively with just sanctions. 272 Non-consensual sexual intercourse under any circumstances constitutes a profound violation of a person's dignity, equality, security of the person and sexual autonomy.

It bears emphasizing that this complainant had passed out fully clothed while she and the offender were sitting up talking before she was sexually assaulted. There was no consent to the sexual intercourse. Nor was any sought. In

summary, this offence ought to have been sentenced as a major sexual assault. It was not.

This had serious negative implications for the adequacy of the sentence imposed. (footnotes omitted). [ 34 ] I completely agree with the Alberta Court of Appeal that arguing that a sexual assault is somehow less serious where an offender takes advantage of an unconscious victim who is incapable of putting up resistance than a sexual assault where an offender overcomes a victim’s active physical resistance seems to me to ignore the social reality of where so many sexual assaults take place – in a complainant’s bedroom, the very place where she should feel most safe at home. Of course the lustful bully such as Mr.

Glassford must be severely punished, as the Court of Appeal stressed by its emphasis on the need for sentences of “more than two years” in such cases. However, in my view it does not at all follow that the “moral blameworthiness” of an offender who sneaks into a complainant’s bedroom to take advantage of her unconsciousness state is much lower. As pithily noted by Ducharme J. in his reasons for sentence in R. v. J.D., supra, the lack of an aggravating factor does not turn its absence into a mitigating factor (para. 27).

With all due respect to defence counsel, what he wishes to have me do is exactly that – to rule that the absence of actual violence should somehow morph into being conceptualized as a mitigating factor. As the Ontario Court of Appeal case law amply demonstrates, that was wrong before Arcand , and it is even more wrong now. [ 35 ] If anything, the facts in the case at bar are more aggravated than in R. v. Arcand . Clearly M.H. was not in any position to give any consent to have the accused enter her bedroom, let alone to consent to sexual activity.

Furthermore, I again stress when his pawing of her on a previous occasion had recently resulted in his ejection from her apartment, he certainly was on notice (

a) that he was not welcome in her bedroom and (

b) that she was not interested in him as a sexual partner. [ 36 ] While this case was on remand pending the preparation of the PSR, the Alberta Court of Appeal released its very lengthy

judgment in R. v. Arcand 2010 ABCA 363 , [2010] A.J. No. 1383. Because of the factual similarity between that case and thecase at bar, I drew R. v. Arcand to the attention of counsel; however, given the Ontario Court of Appeal’s explicit rejection of the“starting point” methodology in R. v.

Glassford and subsequent cases, I stressed to them that I was not interested in hearing argument asto the correctness of the “starting point” methodology reinvigorated by the Alberta Court of Appeal, but that I was rather interested inhearing their views as to the Court’s analysis of aggravating and mitigating factors in a case involving intercourse with a sleeping orunconscious complainant. [37] Crown counsel directed my attention to one paragraph of the judgment that she says captures the way I should conceptualizethe “moral blameworthiness” of the offender in the case at bar: Sexually assaulting an unconscious victim elevates an offender's degree of responsibility for the crime beyond the norm contemplated bythe three year starting point.

An offender who sexually assaults a person who is asleep or passed out is treating that person as if theperson were an object to be used - and abused - at will. Since the offender knows full well that the person is not consenting, this revealsan enhanced degree of calculation and deliberateness by the offender. Further, at that point, the person is at their most vulnerable, unableto defend themselves in any way and unable to call for help from others. The offender knows this too, adding further to the high level ofmoral blameworthiness for the illegal conduct.

The place people most expect to enjoy security of their person is in their home. Thiscomplainant was entitled to assume that she could sleep in a bed in her family home without having her clothes removed while in avulnerable state and penetrated sexually without her consent. For these reasons, sexually assaulting an unconscious victim is anaggravating circumstance (para. 283, footnotes omitted). [38] For his part defence counsel made no express reference to R. v. Arcand beyond reminding me that the “three year startingpoint” originally articulated by the Alberta Court of Appeal in R. v.

Sandercock (1985) 1985 ABCA 218 , 22 C.C.C. (3d) 79,now repeated in R. v. Arcand, is not and has never been the law in Ontario. He cited several Ontario cases which he says should inclineme to imposing the eight-month custodial sentence that he says is appropriate here. [39] Before turning to those cases, I wish to refer briefly to two other Ontario cases cited by Crown counsel. R. v. J.W.M. [2004]O.J. No. 1295 (Sup. Ct.) was a

summary conviction appeal in which an eighteen-month sentence had been imposed following a trial. Thefacts were that the victim had become extremely intoxicated at an office Christmas party, and had “passed out”. She awoke the nextmorning to find herself in the offender’s bed. A defence based on consent was rejected on the basis that the complainant was incapableof consenting to sexual activity due to the extreme effects of alcohol. The trial judge had found as a fact that the offender found thecomplainant “passed out” and had taken advantage of this to have intercourse with “a young and naïve employee”. In upholding thesentence imposed a trial, the

Summary Conviction Appeal Judge characterized the offence as “a gross abuse of trust…[by violating] anextremely intoxicated 20 year-old at a time when she was in his charge because she could not look after herself” (para. 69). Crowncounsel suggests that, even though that case was prosecuted by way of

summary conviction, the trial and appellate decisions support thekind of range of sentence she seeks here. Defence counsel invites me to distinguish this case on two bases: (

a) that unlike the case at bar,J.W.M. insisted on a trial and continued to minimize his responsibility for the offence even after a finding of guilt had been made, and(

b) unlike the case at bar, J.W.M. had two previous offences for which he had “fared poorly under community supervision”. I agree withdefence counsel that those were aggravating factors that are not present in the case at bar. [40] Crown counsel’s final Ontario sentencing case was R. v. P.G. [1994] O.J. No. 4079 (Sup. Ct.), where a sentence of 27 monthswas imposed on an offender who had no previous adult record and a positive pre-sentence report.

Crown counsel concedes that it wasimplicit in the jury verdict in that case that the offender’s “moral blameworthiness” was higher than in the case at bar, because there wasclear evidence that he “was stalking [the unconscious victim]…and it is evident that his exploitation of [the victim] was not aspontaneous or spur of the moment impulse, but rather something that had been contemplated over the span of several hours and wasexecuted with ruthless dispatch when the occasion presented itself” (para. 6).

She nevertheless argues that this case is within the rangewhich she seeks once that aggravating factor is discounted. Defence counsel again reminds me that there was no guilty plea in that case. [41] In addition to seeking to distinguish the cases cited by Crown counsel on their facts, defence counsel drew my attention to threerecent Ontario trial judgments. In R. v. San Salvador [2007] O.J. No. 3352 there is unfortunately not much detail about the offencecontained in the reasons of the trial judge, no doubt because it was an oral judgment.

From what I can discern, it appears that theoffender had sexual intercourse with a friend who was so intoxicated that she could neither resist nor even speak. P.A. Harris J. found asa fact that there was “no gratuitous violence, no lasting injury, no planning to speak of…no confinement or drugging” (para. 5). Defencecounsel therefore suggests that this is quite factually similar to the case at bar; however, he reminds me that the offender in that caseinsisted on a trial, and that the trial judge was right to find that “[t]here is no demonstration of remorse” (para. 6). Mr.

McDonald ofcourse contrasts that with the plea of guilty entered here. [42] Though the Crown in R. v. San Salvador sought the maximum custodial sentence (18 months) for a

summary convictionoffence, Harris J. was not prepared to go that far. Given that one of His Honour’s principal concerns was that the offender was the soleparent of an 11 year-old child, and that it seemed entirely possible that the child would become a ward of the Crown if his father were tobe incarcerated, he offered the offender a choice between (a) “a ten-month straight imprisonment sentence with probation for one year”,or (b) “a 90-day intermittent sentence during which Mr. San Salvador will be on probation for 12 months.

For the first six months, therewill be a strict confinement to the home [during the week]…for the remaining six months, he will be subject to a relatively early curfewof about 6:00 p.m. at night [subject to certain exceptions]” (paras. 55-56). [43] This case was decided before the very recent Court of Appeal decision in R. v. Bankay 2010 ONCA 799 , [2010] O.

J.No. 5074, where the court struck down a probation condition that amounted to what the court called a “disguised conditional sentence”(para. 2) expressly imposed by the sentencing judge to get around the fact that in that case a conditional sentence was not available as amatter of law. While probation conditions containing curfews have been found to be lawful where they are intended to contribute to theoffender’s rehabilitation, I doubt that Harris J. could today have proposed the second choice of sentence in the face of R. v.

Bankay. [44] Nevertheless, defence counsel’s point that in slightly more aggravating circumstances a maximum sentence of 10 monthscustody was proposed by a very experienced judge of this court remains valid. Crown counsel replies by first noting that Harris J.expressly found (para. 18) that the offender in that case presented neither a danger to the victim nor to society at large. Ms Moore

contrasts this to the offender here. Not only has he in fact committed two sexual assaults on this victim[2], but she also reminds me of thepotential danger he presents to other women given the tenor and content of some of his statements to the writer of the PSR. While Iwould not go as far as Crown counsel, at the very least I am far from being as certain about Mr. Laz-Martinez’ rehabilitative potential asHarris J. was about Mr. San Salvador’s lack of dangerousness. [45] Crown counsel also sought to distinguish R. v.

San Salvador on the basis that it was entirely clear on the evidence before him(see paras. 58 ff.) that Harris J. was significantly influenced by the fact the apparent unavailability of someone to look after his child(except perhaps on a limited basis on weekends). In the case at bar, it is clear that Ms Marroquin will look after her child when Mr. Laz-Martinez is incarcerated; thus, the dilemma of which Harris J. was well aware simply does not exist in this case. [46] I would also distinguish R. v. San Salvador on one other basis.

At paragraph 43 of his reasons Harris J. says that had the Crownin that case elected to proceed by indictment, that would have “change[d] the equation immeasurably”. Here the Crown has elected toproceed by indictment, and while that election does not in any way fetter my sentencing discretion – except of course in a proceduralsense – it is something that I am entitled to take into account in considering range of sentence. In this case, I do take that into account. [47] Defence counsel next referred to R. v. Dahouky (ON SC), [2008] O. J.

No. 1665, a case in which,following a trial, the offender was sentenced to nine months in custody in circumstances somewhat similar to those in the case at bar.Both the victim and the offender had been drinking together earlier in the evening. She permitted him to remain in her home on conditionthat he slept on the couch. She went to her bedroom, closed the door and went to sleep. She woke to find the offender lying on top of herattempting to penetrate her with his penis.

She pushed him off, whereupon he left immediately. [48] To my mind this case can be very easily distinguished on the basis of lack of penetration. Concurrent with these reasons I amtoday releasing reasons for sentence in R. v. G. (D.), a case involving digital penetration by a father on his teenage daughter. In thatdecision I trace a line of authority from the Supreme Court of Canada and the Ontario Court of Appeal in which I find consistent recentsupport for the notion that actual penetration is considered by appellate courts to be a significantly aggravating factor.

I shall not repeat inthese reasons what I said in that case; I have extra copies of that decision for counsel. With that in mind, I view R. v. Dahouky to beirrelevant to the seriousness of the matter I am dealing with here. [49] Similar comments may be made about the

summary conviction appeal decision of Baltman J. in R. v. Wahid [2008] O.J. No.2213 (Sup. Ct.), the final case cited by defence counsel. This was a Crown appeal against fines totalling $3,000 in circumstances where,under a pretext, the offender invited the victim into his friend’s home, where she consumed both alcohol and marijuana. She describedher condition as “woozy but not drunk”. The offender “pushed himself on top of her, trying to remove her shirt and bra. He pulled her braup and touched her breasts. She told him to stop but he continued.

He tried unsuccessfully to kiss her and remove her pants” (para. 7).The Crown appeal was allowed, and on the sexual assault charge a sentence of 90 days custody was substituted. Baltman J. characterizedthe sexual assault as “not a momentary lapse in judgment but a fairly serious sexual assault” (para. 34). Once again, I see this case assimply irrelevant given the lack of penetration – or, for that matter, even attempted penetration. [50] After considering the arguments and case law presented by both counsel, in my judgment, what this case ultimately comesdown to is this: the suggestion in R. v.

Priest (1996) (ON CA), 110 C.C.C.(3d) 289 (Ont. C.A.) to the effect that “theprimary objectives in sentencing a first offender are individual deterrence and rehabilitation” must be read against the very next words inthe judgment “[e]xcept for very serious offences and offences involving violence” (pp. 294-5). The offender here is essentially a firstoffender, but the offence is both very serious and quite violent.

When one examines both prongs of the proportionality test set out in s.718.1 of the Code, there can be no doubt that both the gravity of the offence and the degree of responsibility of the offender are veryelevated, particularly given the history of sexual rejection, the unconscious state of the complainant and the location where the sexualassault took place. Thus, in my judgment a sentence with a significantly denunciatory component must be imposed. A reformatory term,even close to or at the maximum level, would not adequately express societal denunciation for the offender’s act.

He is sentenced to twoyears in the penitentiary. I will endorse on the Warrant of Committal that I recommend that he be exposed to sex offender and substanceabuse treatment programming while incarcerated. [51] I should also say that I have given serious consideration to imposing a sentence higher than that sought by Crown counsel, inthe range of about three years (after making allowances for the offender’s lack of previous record and his plea of guilty).

However, Ithink that Ms Moore has it right when she suggests that the offender’s rehabilitation will likely be assisted if there is a period ofprobation following the expiration of his penitentiary sentence. He is therefore placed on probation for a period of three years.

Theoptional conditions of probation will be as follows: - he will report to his probation officer within 48 hours of the commencement of his probationary period and thereafter as directed; - he will take such sex offender and substance abuse counselling as may be rec- ommended by his probation officer and will notdiscontinue such counselling unless discharged by his therapist or counsellor; - he will sign such releases as are necessary to authorize his probation officer to communicate with his treating therapist or counsellor; - he will abstain from the purchase, possession or consumption of any non- medically prescribed medication or intoxicatingsubstances; - he will have no contact directly or indirectly with M.H.

He will not knowingly be within 100 metres of any place he knows her tolive, work or be. I have considered, but reject, the PSR writer’s recommendation that he “abstain from the purchase, possession or consumption of anyalcohol”. I believe that alcoholism is largely a medical problem, which should be dealt with by medical practitioner and/or mental healthprofessionals, rather than by court ordered prohibition. [52] The offender is subject to a “weapons prohibition” as proscribed by s. 110 of the Code for a period of 10 years.

[ 53 ] There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Code . [ 54 ] The offender will be designated as a person convicted of a designated offence pursuant to s. 490.011(1)(

a) of the Code for a period of 20 years. Released: March 2, 2011 Signed: “Justice D.P. Cole”