R. v. Casilimas, 2013 ONCJ 211

COURT FILE No.: Toronto DATE: April 3, 2013 Citation: R. v. Casilimas, 2013 ONCJ 211 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANDRES CASILIMAS Before Justice Leslie Pringle Heard on September 17, 19, 26, 2012 and January 23, 2013 Reasons for Sentence released on April 3, 2013 Ms. S. Cressman ............................................................................................... for the Crown Mr. R. Covre .................................................................. for the accused Andres Casilimas PRINGLE J.: [1] In this unusual case, I found that Mr.

Casilimas had sexual intercourse with a woman on the ground outside M[…] Avewhen she was too drunk to consent. I found that at the time of intercourse, Mr. Casilimas was wilfully blind to her irrational andintoxicated state, and had sex with her in any event. The reasons for my decision are set out in my judgement released in court onNovember 21, 2012. [2] For the purpose of sentence, the relevant facts are that on May 28, 2011, M.L. had just learned that her boyfriend wasengaged to be married to someone else.

She decided to go out drinking and get drunk, and she remembered virtually nothing of whathappened after her first few drinks. She did not recognize Mr Casilimas at trial, nor remember meeting him at the Comfort Zone on May 28th. At trial, she candidly admitted that she may have consented to sexual contact with him that night, she just didn’t remember. [3] In the circumstances, I am prepared to accept Mr Casilimas’ evidence that he literally bumped into M.L. at the bar, andthat they engaged in some consensual kissing.

He said that she told him she wanted to have sex with him, and it seems reasonable toinfer that it was M.L. who suggested their destination when they left together, since the taxi took them to her home neighbourhood. [4] However, once in the neighbourhood I found that M.L. was disoriented and off balance, and when she lay down in thewet grass and purportedly wanted to have sex with him right there, Mr. Casilimas was wilfully blind to what he really knew: that shewas behaving far too irrationally to be in any state to consent to sex. Indeed, even on Mr.

Casilimas’ evidence, M.L. passed out duringintercourse moments later. [5] Mr. Casilimas said the police arrived just around the time M.L. passed out. According to the police, she wasunconscious and catatonic, with her pants at her ankles and her shirt pushed up to her shoulders. She was lying on the ground notmoving, although her eyes were open. Mr. Casilimas was with her, and his pants were also down. At first, Sgt. Minor thought that M.L.was dead. It took some time to revive her, and she couldn’t stand initially.

She was confused, crying and whimpering, and didn’t appearto be aware of the circumstances that the police found her in. [6] The Crown submits that a sentence of 3 years is appropriate. The defence asks me to consider a sentence in the mid toupper range reformatory. In Wells, 2000 SCC 10 , 2000 S.C.C. 10, the Supreme Court upheld a sentence of 20 months in jail for an aboriginal man whosexually assaulted an 18 year old woman in her bedroom while she was either asleep or unconscious from the effects of alcohol.

Thecourt found that the trial judge’s conclusion that a conditional sentence would not meet the needs of denunciation and deterrence wasreasonable. In Rand, 2012 ONCA 731, the Ontario Court of Appeal upheld a 4 year sentence where the appellant and his companion each had

intercourse with a 17 year old girl who had been drinking and was intoxicated at an open air concert. Notwithstanding that the girl said“no” repeatedly to the appellant, he engaged in vaginal and anal intercourse with her, as well as oral sex. After he had finished, hiscompanion then had intercourse with her after she also said “no” to him. In J.W.M., [2004] O.J. No. 1295 (S.C.J.), Justice Hill affirmed an 18 month sentence where the appellant took advantage of a young andnaïve employee by having intercourse with her while she was unconscious and in his care due to extreme intoxication and vomiting.

Justice Hill noted that “conditional sentences of imprisonment have, on occasion, been imposed for sexual assaults committed uponunconscious or semi-conscious complainants”. However, in the circumstances of that case he found the trial judge was correct to imposethe maximum jail sentence available where the Crown had proceeded summarily. In Laz-Martinez, 2011 ONCJ 115 , [2011] O.J. No. 1190 (O.C.J.), Cole J. sentenced the accused to 2 years in jail for havingintercourse with an unconscious woman who had been a long time acquaintance.

A friend had come into the room and witnessed the actand told the accused to stop, but the accused responded by asking him if he “wanted some too”; the accused only desisted after he hadclimaxed. A few weeks before the offence, he had attempted to kiss the complainant and undress her as she slept, and she had rebuffedhim and told him to leave. Cole J. found that the history of sexual rejection, the unconscious state of the complainant, and the fact thatthe sexual assault took place in her own bed were aggravating factors. In the unreported case of Gladstone Ferguson, released September 12, 2012, I sentenced Mr.

Ferguson to 16 months jail, less pre-trialcustody. The Crown sought the maximum sentence of 18 months for a

summary conviction proceeding, and the defence submitted that9-12 months was appropriate. Mr. Ferguson pleaded guilty to sexually assaulting his former common law partner on numerousoccasions when she was sleeping and unresponsive, and took videos of the incidents. The offences did not involve intercourse but were agross breach of trust and an egregious intrusion into the victim’s privacy and bodily integrity, as Mr. Ferguson touched and manipulatedher with his fingers for the camera. Mr. Ferguson had a prior record, including an assault on his partner.

On the mitigating side, heturned himself in, pleaded guilty to avoid his former partner having to testify, and appeared to have some genuine insight into thebaseness of his own conduct. In San Salvador, [2007] O.J. No. 3352, (C.J.), the accused had sexual intercourse with a friend who was so intoxicated that she could notresist or speak. There was no planning to speak of, no gratuitous violence, no confinement or drugging and no lasting injury.

Harris J.proposed a sentence of 10 months in what appear to have been exceptional circumstances because the accused was the sole custodialparent for an 11 year old child who could become a ward of the state if his father were to be incarcerated for a lengthy period. (In thealternative, Harris J. suggested an intermittent sentence followed by probation with house arrest, but I agree with Cole J. in Las Martinez,that subsequent case law from the Court of Appeal suggests that this kind of probation might not be available if were to be seen as a“disguised conditional sentence”) In R. v. White, [2008] Y.K.

No.126 (S.C.), Glower J. undertook a comprehensive review of sentencing cases involving non-consensualintercourse with a sleeping or unconscious victim from various provinces. In the Yukon, he found a range of 12 months to 30 months,with the majority of cases imposing 12-16 months in jail. In Alberta, Saskatchewan and Manitoba, where the “starting point approach”to sentencing is often used, the courts generally imposed sentences in the 2-3 year range.

In B.C. and Ontario where he noted that judgesare less willing to embrace the “starting point approach”, Glower J. found that nonetheless, the courts often imposed lengthy jail termsfor these offences. In White, Justice Glower imposed a sentence of 26 months on an aboriginal man who had assured the intoxicatedvictim that she could trust him not be act inappropriately if she fell asleep in his bed. However, once she did, he attempted to have sexwith her and refused to stop when she said no, causing an injury to her perinea region. Mr.

White had a serious substance abuse problem,had no remorse, and was at high risk for further offences. [7] In this case, I have found that M.L. was not actually unconscious at the time of intercourse began. However, for thepurpose of sentence, the distinction is not of much moment, because the level of her intoxication was so great that she actually passed outduring the act, and was in fact unconscious when the police arrived moments later. [8] There are a number of obvious aggravating factors that dictate the need for denunciation and deterrence in sentencinghere.

Even though M.L. had consented to sexual activity earlier, had proposed sex at a hotel, and had taken Mr. Casilimas in a taxi to herneighbourhood, I found that at least once they got there, he was wilfully blind to the fact that her behaviour was obviously irrational andintoxicated. He took advantage of her and had intercourse with her when she was vulnerable and unable to make a voluntary andinformed decision whether to have intercourse or not. Moreover, the act took place outside, on the ground, and in a humiliating situationwhere M.L. was exposed to public view with her pants down and her shirt up.

Although Mr. Casilimas testified that he did not ejaculateduring intercourse and pulled out as soon as M.L. passed out, he admitted that he did not use a condom. [9] Mr. Casilimas has a prior criminal record which includes an offence of assault causing bodily harm approximately 13years ago in 2000, and an assault some 10 years ago in 2003. Although the offences are dated, I agree with the Crown that his recorddemonstrates he is not of previously good character and had a record for violence in his twenties as a younger man. [10] At the same time, the defence points out that there is a gap of 7 years from Mr.

Casilimas’ last entry in 2006. Since beingreleased on bail in late 2011, he has been living with his father, (who is his surety), and there has been no suggestion of any breach. Mr.Casilimas now has full time employment as a framer, working in the construction industry. He is described by his co-workers as“honest, hard-working and trustworthy”. He has a 12 year old son for whom he provides financial support.

[11] In these circumstances, I do not believe that Mr. Casilimas poses a danger to M.L. or to the public at large. Even at trialhe seemed to have some insight into the wrongfulness of his actions, and agreed that there were logical questions he could have askedher about why they didn’t go to a hotel as she had originally suggested, and testified that he regretted not doing so. On sentence, heapologized to M.L. for what had happened, and in my view, his remorse was genuine. I find there is real potential for rehabilitation here,and little likelihood of recidivism.

In this case the charge and trial process seem to have had a very sobering and salutary effect on Mr.Casilimas. [12] Luckily, there were no physical injuries to M.L.. She chose not to provide a victim impact statement, and advised theCrown that she just wants to get on with her life. [13] This case does not have some of the more serious aggravating factors of aspects of breach of trust that were present inJ.W.M., Ferguson or White, or the callous indifference of persisting with intercourse in the face of obvious protest as in Rand or aprevious rejection as in Las Martinez.

Unlike in Wells or White, I find that despite having a trial, Mr. Casilimas has shown remorse forhis actions. Notwithstanding the record, there is a significant gap and current stability in his life, which diminish the concern of thisfactor. [14] Therefore, taking into account these factors, I agree with the defence that the appropriate range of sentence for Mr.Casilamas is in the mid/upper reformatory range of approximately 15 to 18 months in jail. [15] Mr. Casilimas was not granted bail on this charge initially, and spent approximately 6 months in pre-trial custody.

Hewas released on strict conditions of bail in November 2011 with a $50,000 surety. During the time that he was on bail, he was thenarrested for arrears of child support, including non-payment during the time that he was in pre-trial custody. The credit (or lack of credit)to be attributed to these pre-trial conditions is disputed. I will deal briefly with each. [16] While in pre-trial custody at Maplehurst Detention Centre, Mr. Casilimas was held in protective custody due to the natureof the charge against him.

This is a factor that can be taken into account in relation to the appropriate credit for pre-trial custody: see R.v. Barton,[2002] O.J. No. 4105 (C.A.) at para.16; R. v. C.O.L., [2010] O.J. No. 2820 (S.C.J.) at para. 28; and R. v. Peterkin, [2003]O.J. No. 4403 (S.C.J.) at para. 41. [17] Normally, I believe that protective custody or segregation would be a circumstance that would justify enhanced credit of1.5:1 in accordance with s.719(3.1) of the Criminal Code.

Here, however, the evidentiary record regarding the conditions of Mr.Casilimas’ incarceration was extremely sparse, and the Crown submitted that there was no information before the court to differentiatebetween the conditions of protective custody and general population custody. Indeed, the record showed that Mr. Casilimas got accessto the same yard time each day as the general population, as well as access to a common area for over 8 hours a day. In thecircumstances it’s hard to find much support for enhanced credit.

However, taking into account that there was some evidence oflockdowns and some additional hardship associated with his incarceration, I will give Mr. Casilimas credit for a slight enhancement forthe time spent in protective custody. [18] Since he was released on bail in late November 2011, Mr. Casilimas has been under strict conditions of bail where he hashad to live with his father, consume no alcohol and obey a curfew of 7.30 pm. As Mr. Covre put it, Mr.

Casilimas has spent his time onbail either working or at home. (His time on bail amounts to a total of approximately 16 months less 3 months incarceration for non-payment of child support from January 26, 2012 to April 24, 2012, see below). These 13 months on strict bail must be considered, andcan be taken into account in the final sentence: R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488, (Ont. C.A.). While there is no exact formula for crediting strict conditions of pre-trial bail, I am prepared to give Mr. Casilimas some credit for thistime. [19] Finally, Mr.

Covre submits that I should take into account the fact that while on bail, Mr. Casilimas was arrested for non-payment of support during the time he had been denied bail, and spent an additional 3 months in jail. Section 719(3) of the Code statesthat a judge may take into account time spent in custody “as a result of the offence”, however, credit can still be recognized for timespent in custody that was indirectly related to the offence. For example, in the case of R. v. Reid, (ON CA), [2005]O.J.

No. 1790 (C.A.), the accused received bail on one charge, but was later detained on others that were subsequently withdrawn. Onsentencing, the court recognized that strictly speaking, the detention was not time “as a result of the offence”, but found that enhancedcredit was appropriate on the basis that the pre-trial custody on the other charges was “relevant information” that should be taken intoaccount pursuant to 726.1 of the Code. [20] Here, I am prepared to give some, but not full, credit for Mr. Casilimas’ time in custody for his default of supportpayments. Mr. Covre fairly acknowledged Mr.

Casilimas already owed a substantial amount in support arrears in addition to the moneythat he failed to pay while he was held in custody on this charge. Moreover, it appears that the default judgement was rendered after Mr.Casilimas failed to attend for his hearing because he misdiarized the date, leading to the inference that the default time might well havebeen shorter if he had attended and explained the fact that some of the non-payment arose during a time that he was in custody on thismatter. These factors militate against credit for this period in jail.

However, I am prepared to take into account that there is an indirectlink to this charge arising from his inability to pay at least some of his child support while in jail, and to recognize that this timeunderscores in a general way the hardship of Mr. Casilimas’ circumstances while awaiting trial on the charge before me. Accordingly, Iwill give him partial credit for this time. [21] In determining the final sentence, the defence submits that any additional time in custody should be made intermittent topermit Mr. Casilimas to keep his employment and continue supporting his son.

I agree that this is an appropriate consideration sincekeeping his job will benefit not only Mr. Casilimas, but also his son, as well as society in the long run. [22] Calculating credit for the time already served at 7 months, time served for non-payment of child support at 1 month, andtime on strict bail at 4 months, the maximum intermittent period of 3 months jail would bring the total sentence to one of 15 months. While at the lower end of the appropriate range, it’s my view that this is a substantial jail term. In addition, Mr.

Casilimas will be subjectto the provisions of the Sex Offender Registry for the next 20 years, which is an aspect of sentence with considerable stigma and

deterrent value. This is also a primary designated offence for DNA and I will make an order to this effect. All these factors speak loudly to deterrence and denunciation where advantage is taken of someone who is too drunk to consent. [ 23 ] Therefore, taking into account the pre-trial credit, the sentence on April 3, 2013 will be one of 90 days intermittent. In addition, I will impose probation for 3 years, which will extend the reach of court ordered supervision for a substantial additional period of time. The conditions will be that Mr.

Casilimas report to probation as required, reside at an address approved of by probation, have no contact nor be within 100 m of M.L., possess no weapons as defined by the Criminal Code , and take any sexual behaviour counselling recommended by his probation officer . He shall possess no firearms or other weapons as set out in s.109 for a period of 10 years. Released: to the parties on March 8, 2013; in court on April 3, 2013 Signed: “Justice Leslie Pringle”