R. v. Benitez, 2018 ONCJ 701

WARNING The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

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

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. Benitez , 2018 ONCJ 701 DATE: 2018 10 12 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — JORGE BENITEZ Before Justice S. Chapman Heard on October 9 and 11, 2018

Reasons for Judgment released on October 12, 2018 Vogel, T. ................................................................................................ counsel for the Crown Lopez, J. ................................................................. counsel for the accused Jorge Benitez Chapman J.: Overview [ 1 ] Mr. Benitez stands charged with a number of offences arising out of his interactions with the complainant on the evening of October 31, 2017. At the conclusion of the trial the Crown sought convictions on the counts alleging: assault with a weapon, sexual assault and forcible confinement.

A number of items of evidence were properly conceded by the defence as admissible at the trial. The issues for me to decide were very professionally presented by both counsel. At the conclusion of the evidence, the submissions of counsel focused on two main issues, namely, whether or not the Crown has proven beyond a reasonable doubt: • That the accused committed a sexual assault upon Ms. A.B.; and, • That the accused committed the crime of forcible confinement. [ 2 ] These issues require careful consideration of the evidence. The Facts [ 3 ] The facts are mostly not in dispute.

On October 31, 2017 the residential condominium building at […] Road was preparing to hold a Halloween party. Ms. A.B., the 30 year old complainant, was a resident of the building at the time and had volunteered to help with the festivities as she had done the year before. She dressed up as the character P[…] from the Batman comics that evening and proceeded to the lobby of the building, as pre-arranged, in order to meet up with Andrea, the President of the Board and Condominium Social Coordinator, who she would be assisting with the party that evening. [ 4 ] Mr.

Benitez worked as a custodian in the building, including on the day of October 31, 2017. However, his shift ended at 6:30 pm. After getting off shift, but before leaving the building that night, Mr. Benitez was – according to Ms. AB.’s evidence which I accept completely – staring at her for perhaps 4 or 5 seconds while she sat on a couch in the lobby of the building waiting for Andrea. She did not know him or recognize him and thought it was strange at the time. However, because she was wearing a Halloween costume she assumed that this could be the explanation for his attentions. Mr.

Benitez then departed the building only to return a few minutes later to engage in the conduct that is the subject of the criminal charges. [ 5 ] Video surveillance shows Mr. Benitez re-entering the busy lobby of the building and walking past the complainant while making a sweeping gesture with his arm which she righty understood to be a signal that she should accompany him. Ms. A.B. assumed that Mr. Benitez had also volunteered to help with the party and therefore innocently followed him.

As she did so she asked him whether he knew Andrea and he nodded in the affirmative, which she took as confirmation that he was sent on behalf of Andrea to find her. They got onto the elevator along with one other individual that Ms. A.B. recognized as a neighbor of hers living on the same floor. When she got on the elevator Mr. Benitez pushed the button for floor 36, which she knew to be the floor that Andrea lived on, and she took this as further confirmation of her belief that he too was working with Andrea to put the party on that evening. [ 6 ] Ms.

A.B.’s neighbor got off the elevator on the 13 th floor and then she and Mr. Benitez travelled up to the 36 th floor together in silence. She followed him off of the elevator, down the hallway and into the stair well. Though she wasn’t clear as to what he was doing, she assumed that he was taking her to the storage area in the building to get decorations or some such thing. [ 7 ] She testified that once she and the accused got into the stairwell she asked him “what’s going on?” and “where is Andrea?” It was at that point that the accused gestured for her to sit down on the steps and she did.

At this point she assumed that he wanted to take her picture because she frequently gets dressed up for events, such as Fan Expo or Comicon, and people, including adults, often ask to take her picture when she is in costume. Apparently this is referred to as “Cosplay”. Some adults are shy about making such a request and she assumed in the moment that this was Mr. Benitez’s situation. [ 8 ] Ms. A.B. took her purse off of her shoulder and placed it on the step beside her. She then looked up and the first thing she saw was Mr.

Benitez, who had walked down several steps and was now standing in front of her, holding a knife. She started to scream. He told her to shut up. She tried to grab for the knife. She then realized that he had positioned his body such that his crotch was very close to her face, perhaps one foot away. He held it there for several seconds. She wasn’t sure exactly how long but she did testify that it was long enough that she thought he was waiting for her to do something, such as touch him. She remembered him shifting even closer to her. He continued to tell her to “shhh” as she continued to scream and struggle.

His tone of voice lacked emotion. He then used his other arm to subdue her by placing his forearm against her chest and pushing her down. She was trying to get up but could not. She was not able to assault her attacker. She considered kicking him but new it would have to be forceful if she did so and was concerned that her long legs were too confined to leverage for that purpose. She did try to get the knife out of his hands and felt that she was not even safe

to run until she had taken control of it. The struggle continued for approximately one or two minutes. [ 9 ] In cross-examination Ms. A.B. readily agreed that Mr. Benitez did not grope her breasts or other body parts. Further, she did not observe him to have an erection and/ or any of his clothing removed or even re-arranged. He did not strike her or take her purse. Ms. A.B. testified that it was her belief that Mr.

Benitez was trying to force her to participate in a sexual act, namely forced fellatio, and that when he got ahold of the knife handle, he overpowered her, using his forearm to pin her down on her chest, as she continued to struggle and scream for help. [ 10 ] Another resident of the building heard her scream and took action. After satisfying himself that the repeated screams for help were coming from the stairwell, Mr. Gagnon, a helicopter pilot with the armed forces, entered the stairwell on the 35 th floor. Mr. Gagnon briefly observed what was going on and shouted at Mr.

Benitez that he knew who he was, that he recognized him as a custodian working in the building. This distracted Mr. Benitez and provided Ms. A.B. with an opportunity to escape. She grabbed her purse and ran down the stairs and out the door on the 35 th floor where she proceeded to the elevators. Mr. Benitez fled through the door closest to him on the 36 th floor and as he did so he said to Mr. Gagnon “fuck you”. [ 11 ] Mr. Gagnon’s observations of the attack lasted approximately 5 seconds. He saw Mr.

Benitez holding the complainant down with one hand while holding a knife in the other hand at about the same height. Thought he knife was not being held to any specific body part he estimated that it was about 6 to 12 inches from Ms. A.B.’s face. He observed the accused standing to the right of the woman while she was sitting down by the wall. It was his impression that she was leaning her head towards the wall and away from the accused. Mr. Gagnon estimated that he got within 5 metres of the accused and did not smell alcohol or detect other signs of impairment. [ 12 ] Mr. Gagnon joined Ms.

A.B. at the elevator on the 35 th floor where he found her shaking and distraught. He offered to, and at her request did, accompany her down to the security desk in the lobby of the building to report the incident. On the way through the lobby they saw Andrea and she accompanied them. [ 13 ] Upon receiving information, security personnel contacted Mr. Benitez’s employer, Mr. Werek, and told him of the incident, and asked him to attend the building which he did shortly thereafter. After providing certain information to the police, Mr. Werek and Andrea came up with a plan for immediately locating Mr. Benitez.

It was decided by them, and without police input, that the employer would call Mr. Benitez and ask him to meet up at Tim Horton’s coffee shop to discuss a job that urgently needed to be done that night. Mr. Werek eventually got ahold of the accused and it was arranged for them, and another one of the accused’s Spanish speaking employers, Mr. Garcia, to meet to discuss the job. When Mr. Benitez arrived at the Tim Horton’s Mr. Werek notified Andrea who in turn called the police. The police attended and arrested the accused at approximately 11:00. [ 14 ] Mr. Werek testified that at Tim Horton’s he and Mr.

Garcia did not discuss the allegations with Mr. Benitez. However, when he was arrested in their presence he did say to them “I fucked up”. He appeared to have been drinking as he smelled of alcohol and was unsteady on his feet. Mr. Werek testified that he has never had a complaint about Mr. Benitez drinking at the work place. [ 15 ] It was admitted by the defence from the outset of trial that Mr. Benitez was the individual that had interactions with the complainant, Ms. A.B., between approximately 6:55 pm and 7:01 pm at a condominium building that evening. Certain items seized from Mr.

Benitez upon his arrest at approximately 11:02 pm that same evening, namely an exacto knife and two other knives, were admitted into evidence on consent as were certain photographs and surveillance video taken from the scene. Both Ms. A.B. and Mr. Gagnon identified the exacto knife as very possibly the knife used during the attack. [ 16 ] As outlined above, the complainant testified at trial. Though she is 30 years old she appears younger. She testified that she was nervous but thought it important to report the offence and tell the truth in court. I found her to be a very precise and thoughtful witness.

She was very consistent in her account of events. I accept her evidence without reservation and rely upon it in making my findings. [ 17 ] In cross-examination it was suggested to Ms. A.B. that initially she did not identify this as a sexual assault. It was suggested that perhaps it was during her interview with the police that she came to this conclusion. To be clear, defence counsel was not suggesting anything nefarious about her interactions with the police. He was properly probing her recollection and

interpretation of events. In any event, she rejected these suggestions and provided cogent reasons for doing so. She agreed that it did take some time to process what had happened to her and to admit to herself that what had happened to her was a sexual assault. Again, her police interview was shortly after the attack. She testified that even during the attack she believed it to be sexual in nature. She testified that there is no doubt, at least in her mind, that had the attack not been interrupted, Mr. Benitez would have forced her to have oral sex with him.

She also thought that he might kill her to prevent her from reporting the assault. [ 18 ] Ms. A.B. was clear in her evidence that she observed no signs that the accused had been consuming alcohol before the attack. She was very close to him for a protracted period of time and she did not smell alcohol or see him stumble or slur his words. He didn’t take anything from her and nor did he try to. Nor did she believe mental health issues explained the events.

She considered but did not accept the suggestion put to her in cross-examination that she had leaned into the accused’s crotch during the struggle and that was how his crotch ended up where it did. When her evidence is viewed as a whole it is clear that, based on the acts described, Mr. Benitez intentionally put his crotch in front of her face for some period of time. Sexual Assault [ 19 ] It is essentially agreed that Mr. Benitez led the complainant to a secluded place in the condominium building, brandished a knife and threatened and intimidated her.

What is in dispute is whether the Crown has also proven beyond reasonable doubt that Mr. Benitez committed a sexual assault on Ms. A.B. The Crown argues that this is not an attempted sexual assault but an actual sexual assault. She points to the definition of assault in the Criminal Code and the definition of sexual assault as defined by the case law.

[20]

Section 265 of the Criminal Code provides a definition of assault that applies to all forms of assault including sexual assault. Itprovides that:

(1) A person commits an assault when (

a) Without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) He attempts to or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeupon reasonable grounds that he has, present ability to effect his purpose; or (

c) While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [21] In 1987 the Supreme Court of Canada decided in R v. Chase, (SCC), [1987] 2 SCR 293, that the externalelements of the offence of sexual assault require proof of a touching of a sexual nature in the absence of consent. The sexual naturecomponent requires that the assault violate the sexual integrity of the complainant.

The test of whether the touching was of a sexualnature is objective, though the intent or purpose of the assault may also be factors in considering whether the assault was sexual innature. To determine whether or not an assault is a sexual assault, the court must consider the part of the body touched, the nature of thecontact, the situation in which the contact occurred, the words or gestures that accompanied the contact, and all the surroundingcircumstances: see Chase supra, at para. 11 and R. v. Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont.C.A.).

It can be seen from this definition of assault that it does not necessarily require actual touching: see 265(1) (

b) and (c). [22] Mr. Benitez saw Ms. A.B. waiting in the lobby as he was leaving work at the end of shift. He stopped to stare at her for severalseconds before leaving the building. He was off duty. But he turned to the lobby minutes later and gestured for her to come with himwhich she did. He directed her to the stairwell on the top floor of the building. This was a secluded location. He told her to sit on thesteps. He went around her and positioned himself in front of her on the steps below her. He then put his crotch near her face for severalseconds after brandishing a knife.

Unexpectedly, she resisted him and tried to grab the knife. In the struggle it became necessary forhim to use his other arm to hold her down and subdue her. Fortuitously the sexual assault was interrupted by a good Samaritan andtherefore did not progress further. [23] Defence counsel brought to my attention the very helpful judgment of Justice J. Deluca in R. v. Riccardi , [2017] O.J. No. 4844. In that case, the trial judge had to consider issues similar to those raised in this case concerning the alleged sexual nature of the assault. But the facts are distinguishable.

In the Riccardi case, the accused was charged with attempted sexual assault of three women. Theaccused had actually robbed one of the women in the past. There was nothing inherently sexual in the acts or words used by the accusedduring the assault. For these reasons, and others, Justice Deluca found that though the assaults were probably sexually motivated hecould not find so beyond a reasonable doubt. Though there were clearly very nasty assaults committed, there was insufficient evidencein that case that the attacks were sexual in nature.

In contrast, in the case at bar, the accused moved his crotch near the face of thecomplainant during the course of the assault and held it there for some time while brandishing a knife. This was not an attempt at sexualassault. It was an actual sexual assault. [24] In Riccardi, Justice Deluca quite properly warns against essentially reversing the burden of proof in the application of theinference drawing process. However, I find that in this case there is a singular inference to draw from the conduct in question. It was asexually motivated attack on the complainant and it was overt.

If this case was about theft or robbery there were plenty of people aroundin the lobby of the building and elsewhere. If this was a robbery the accused could have very easily taken the complainant’s purse off ofher at any time in the elevator, the hallway, or the stairwell, particularly when she removed it from her shoulder and placed it beside heras he stood behind her and close to the door. Nothing was stolen and no attempt to steal was made. [25] Defence counsel suggests that there may be other explanations for the behavior, such as a desire to hurt or terrorize her, and thatthese cannot be ruled out.

He also points to two other pieces of evidence that, it is argued, raise a doubt as to Mr. Benitez’s intentions. [26] First, the complainant testified that at one point during the events she was wondering whether there was a mental health issue. Ihave already addressed the evidence on this point. The complainant’s evidence in this regard, when seen in context, was part of her verycareful thought process during the events themselves when she was trying to make sense of what was happening to her and why. It wasby no means an explanation that she ultimately adopted. It was a mere query in her mind.

I also observed that the complainant is a verycareful thoughtful person that is not prone to exaggeration. On the contrary, she was hoping for innocent explanations but unable to findany. She did not think that mental health concerns explained the events and there is no other evidence whatsoever in support of such aspeculative theory.

The photo taken of the accused following his arrest that evening shows him smiling, which seems strange but isagain not evidence of a mental health issue. [27] Secondly, there was some evidence of alcohol consumption, albeit four hours after the events and at the time of the arrest(11:02 pm). It is posited that this may explain the accused’s conduct and intentions. However, the evidence of both the complainant andMr. Gagnon is clear: the accused had not been drinking prior to the assault and showed no signs of impairment during the attack.

Thedrinking started after the attack was complete and prior to the accused’s arrest. [28] There was some effort in cross-examination, and submissions, to suggest that perhaps Ms. A.B. leaned into the accused’s crotchas they struggled for the knife. However, it was her evidence ultimately that this was not the case. Though they were both moving tosome extent during the attack, it was her clear evidence that the placement of the crotch near her face was deliberate.

He took out theknife, he pins her down, he hovered his crotch around her face and he does so with the intention of violating her sexual integrity. [29] Ms. A.B. was 100 percent sure that this was a sexual assault. However, her characterization of the attack is largely beside thepoint. It is her description of the acts done to her that dictate whether or not, on an objective basis, a sexual assault occurred. It is true,as defence argue, that there was no evidence that Mr. Benitez undid his pants, lowered his zipper or had an erection. He did not sayanything to her that was overtly sexual.

He did not actually touch her in a sexual manner. These are important facts. But they do not, in

the overall context of this case, raise a doubt as to what his intentions were when he isolated her, threatened her, and hovered his crotchin her face in a secluded stair well. [30] The complainant provides a very detailed and precise account of the events. I accept both the credibility and reliability of herevidence completely. I find that, all apart from her own characterization of the events, the events themselves as described by her, andaccepted by me, clearly lead to the only logical conclusion on the evidence, namely that this was a sexual assault underway that gotinterrupted.

The Unlawful Confinement Allegation [31] Under section 279(2) of the Criminal Code it is an offence to unlawfully confine, imprison or forcibly seize another person. InR. v. Luxton (1990), (SCC), 58 C.C.C. (3d) 449 (SCC), the highest court endorsed the following definition of unlawfulconfinement: the use of physical restraint contrary to the wishes of the person restrained, but to which the victim submits unwillingly,thereby depriving the person of his or her liberty to move from one place to another. The element of confinement requires a restrictionof liberty for some period of time.

The amount of time must be significant but need not be substantial: see R. v. White, 2014 ONCA 64, and R. v. Mullings, (ONSC). The Crown is not required to establish that the confinement occurred for thatentire time that the parties are together, or that there was total physical restraint: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.). [32] In this case, the accused not only threatened the complainant with a knife. When she resisted him, perhaps unexpectedly, itbecame necessary for him to use his other arm to force her down. She was struggling and screaming.

For this reason, he put his forearmacross her chest and pushed her back so as to prevent her from moving. He intentionally restricted her liberty and he did so for asufficient period of time such as to amount to a separate offence apart from the assault. Conclusions [33] I have no doubt but that this was a sexual assault. I also have no doubt that the accused forcibly confined Ms. A.B. Given theother admissions and concessions I find beyond a reasonable doubt that Mr. Benitez is guilty on all three counts: assault with a weapon,sexual assault, and forcible confinement.

I will hear submissions on the application of the Kienapple principle at sentencing. Released: October 12, 2018 Signed: Justice S. Chapman