R. v. Pestano, 2020 ONCJ 669

ONTARIO COURT OF JUSTICE CITATION: R. v. Pestano , 2020 ONCJ 669 DATE: 2020 09 17 COURT FILE No.: Brampton 3111 998 18 4739 BETWEEN: HER MAJESTY THE QUEEN — AND — EDGAR ALAN PESTANO Before Justice G.P. Renwick Sentencing Submissions Received 08 May in Writing and Orally on 19 August 2020 Reasons for Sentence released on 17 September 2020 E. Norman............................................................................................. counsel for the Crown R. Covre.................................................. counsel for the defendant Edgar Alan Pestano Restriction on Publication Pursuant to

section 486.4 of the Criminal Code , there is a continuing Order in place making it an offence for any person to publish, broadcast, or transmit in any way any information that could identify the complainant. This decision does not refer to the complainant by name. This decision may be published . RENWICK J.: INTRODUCTION [ 1 ] The Defendant was charged with one count of sexual assault. The prosecutor proceeded by Indictment.

After a trial which lasted approximately nine hours of court time, I found the Defendant guilty of sexual assault upon the complainant, X.F. [1] [ 2 ] The sentencing hearing was adjourned to permit time to prepare submissions and to order a Pre-Sentence Report (“PSR”).

Unfortunately, prior to the sentencing hearing, the World Health Organisation declared a global pandemic on 11 March 2020. [2] By Order of the Chief Justice of this Court, the regular sittings of the Ontario Court of Justice were suspended on 16 March 2020. [ 3 ] For this reason, the parties initially agreed to provide written sentencing submissions. The prosecution submitted its submissions on 08 May 2020. Given that a penitentiary sentence was sought, the Defendant requested to provide oral submissions.

On 19 August the sentencing hearing was completed. [ 4 ] The prosecution seeks a sentence of two to three years of imprisonment in a penitentiary or a reformatory prison sentence followed by three years of probation, and ancillary orders. The Defendant seeks an intermittent jail sentence and probation for one year. The probationary terms suggested by the prosecutor are acceptable to the Defendant and he takes no issue with the ancillary orders sought.

[ 5 ] I will set out my reasons for sentence using the following headings: • Circumstances of the Offence; • The Complainant; • The Offender; and • Analysis CIRCUMSTANCES OF THE OFFENCE [ 6 ] The Defendant and the complainant were acquainted through their attendance at car shows. The complainant needed a place to take photographs of herself for posters. The Defendant offered to show the complainant his house to determine if it would be suitable. The Defendant picked up the complainant at her home and after a stop at a store, he brought the complainant to his residence.

At the store, the Defendant had held the complainant around the waist and he had touched her buttocks. Though the complainant did not expect or welcome this touching, she said nothing about it to the Defendant. [ 7 ] Once at the home, the Defendant’s house-mate offered them some marihuana. The Defendant also offered the complainant wine. The two laid together on a bed, they watched shows on Netflix, and the Defendant twice blew marihuana smoke into the complainant’s mouth. After he blew smoke into her mouth the second time, the Defendant kissed the complainant.

He then apologized for what he thought was an awkward kiss. She said it was “fine.” The complainant then described that the Defendant became, “horny,” “excited,” “touchy,” and “hands on.” At one point, the Defendant took the complainant’s keys from the waistband of her tights and he positioned her on top of him. The complainant did not resist or object, as she felt “safer,” on top. [ 8 ] They spoke about prior relationships. The complainant began to cry. She retreated to an ensuite bathroom. The Defendant entered uninvited, and tried to console the complainant. He lifted her up and sat her on the sink.

He carried her to the bed and laid on top of her. She held onto the waistband of her tights and made it clear that her “pants are staying on” and that they would not “bang” or “have sex.” The Defendant told her that he wanted to “make love.” She gave him a choice: if he persisted, the Defendant would never see the complainant again. [ 9 ] The Defendant took off the complainant’s “pants” and put his penis inside her vagina. This took place without any consent or attempts to ascertain consent.

As with every other touching that evening, the Defendant took the complainant’s acquiescence and silence as consent. [ 10 ] The complainant closed her eyes, hoping this was not happening, and wept. After a few minutes, when the Defendant saw that the complainant “wasn’t into it too much” he stopped. They dressed, and he took her home. [ 11 ] On the basis of the evidence received during the trial, I find beyond a reasonable doubt that the following additional facts exist: i. The Defendant offered alcohol to the complainant to lower her inhibitions.

The Defendant knew that the complainant had consumed 2-3 glasses of wine and some marihuana as he had consumed similar amounts; ii. The Defendant did not use a condom when he penetrated the complainant; iii. Although I am not satisfied beyond a reasonable doubt that the Defendant ejaculated on or inside the complainant, the Defendant left traces of semen (containing his DNA) on the complainant’s vagina; and iv. The complainant was visibly upset during and after the sexual assault, and she remained so until the next morning when she spoke with her mother.

THE COMPLAINANT [ 12 ] The complainant’s testimony and the Victim Impact Statements of the complainant and her mother satisfy me beyond a reasonable doubt that the sexual assault left a significant emotional and psychological scar upon the complainant. [ 13 ] Prior to the offence, the complainant attended high school. Both the complainant and her mother detail that she had to leave school as a result of the sexual assault. Essentially, the complainant became a shell of person: she could not maintain regular hygiene and self-care routines. She became suicidal. She self-isolated in her bedroom.

Eventually, the complainant was diagnosed with post-traumatic stress disorder. [ 14 ] Medication and therapy have helped the complainant. The complainant eventually attended an alternative high school. The complainant continues to deal with fears that the Defendant will harm her. THE OFFENDER [ 15 ] The Defendant has been a certified Personal Support Worker, employed in that position, since 2018. Prior to becoming qualified, the Defendant had worked at that hospital since 2012. He has no criminal record. The Defendant was born in Brampton, and he remains close with his parents, who also work in the same hospital.

He is a role-model to his younger sister and to the children for whom he coaches basketball. [ 16 ] The Defendant is affable, good-looking, hard-working, and athletic. He does not appear to have any substance abuse issues or negative behaviours. On the basis of the character letters submitted, the Defendant has much love and support from his friends, co-

workers, and family. By all accounts, this offence is out of character for the Defendant. [17] The PSR is mostly positive and corroborates much of the information about the Defendant gleaned from the characterreferences. However, as is his right, it is obvious that the Defendant does not accept any responsibility for the offence and he intends toappeal his finding of guilt. [18] In terms of insight into the offence, the Defendant has some. The letter of Steve Rosal asserts, “Alan has expressed a deep senseof remorse in making such a serious mistake…”.

I am prepared to accept that this is accurate, and it bodes well for the Defendant’srehabilitation. ANALYSIS General Principles [19] The fundamental purpose of sentencing as expressed in

section 718 of the Criminal Code is to contribute to respect for the lawand to maintain a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation,deterring the offender and other persons from committing offences, separating offenders from society (where necessary), assisting inrehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility inoffenders, while acknowledging the harm done to victims and to the community. [20] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

The punishment should fit the crime. There is no single fit sentence for any particular offence.The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[3] [21] In R. v.

Hamilton, Doherty J.A. of the Ontario Court of Appeal stated that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed byParliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm tothe community occasioned by the offence… The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of theoffence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[4] [22] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v.

Priest: The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particularoffender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harmoccasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[5] [23]

Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is notthe sole principle to be considered.

A sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances.[6] As well, subsection 718.2(a)(iii.1) requires that a sentence should be increased if it is establishedas an aggravating circumstance that the offence had a significant impact upon the victim. [24] As a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and thebackground of the perpetrator.[7] The principle of restraint requires that the shortest period of incarceration that will meet thepenological aims in a given case is the appropriate length for a prison sentence.[8] [25] In R. v.

Proulx, 2000 SCC 5 , [2000] S.C.J. No. 6, the Supreme Court spoke about restraint at paragraph 17: Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactmentof s. 718.2(

d) and (e).

Section 718.2(

d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances", while s. 718.2(

e) provides that "all available sanctions other than imprisonment that are reasonable inthe circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Furtherevidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(

c) qualifies thesentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercisedin sentencing offenders to prison... [26] Our Supreme Court has instructed that

section 718 requires a sentencing judge to consider more than simply denunciation,deterrence, and rehabilitation.

The court must also consider the restorative goals of repairing the harms suffered by individual victimsand by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[9] [27] The Ontario Court of Appeal has held that where an offender "has not previously been to penitentiary or served a long adultsentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives."[10] Aggravating and Mitigating Factors [28] This sexual assault was brief, it did not cause physical injury, and it did not involve force or violence, beyond the act itself.

It ismitigating that the Defendant stopped having intercourse, on his own, after only a few minutes.

[29] At the time of this offence, the Defendant was a youthful, 28 year old, first-offender who had no prior involvement with thejustice system. He is a well-regarded, hard-working member of our community who enjoys a strong and supportive family and socialcircle. These are significant mitigating factors.[11] [30] Lastly, it is a mitigating factor that the Defendant has expressed some remorse to his friend, for having made a “serious mistake.” [31] It is aggravating, however, that the Defendant gave the complainant (who he knew was only 18 years old) alcohol.

I find that thiswas deliberate on his part, in order to lower her inhibitions. It is also aggravating that the Defendant did not wear a condom and theassault involved vaginal penetration for several minutes. In addition to the sexual violation, the complainant has and continues to suffersignificant psychological trauma as a result of the Defendant’s actions. Her recovery is slow and her injuries are likely to be long-lasting.This also makes the offence more serious. [32] It is also aggravating that the complainant gave the Defendant the choice to end the sexual interaction if he ever wanted to seeher again.

I accept her evidence on this point and I am satisfied that this is the only rational explanation for the Defendant’s textmessage: …I’m sorry apart of my mind was all over, I didn’t know what was in your head, last time a girl gave me this choice and I didn’t fuck herI still didn’t end up seeing her… [Emphasis added].

This factor is aggravating because the Defendant did not act in the heat of the moment with a momentary lapse of judgment, rather, hemade a conscious decision to take advantage of a much smaller, much younger woman because she had not rebuffed his earlier advances. [33] Selfishly, the Defendant chose to pursue his desires and in doing so, he committed a sexual assault.

As is obvious by the findingof guilt, had the Defendant simply listened to the clear words of the complainant, he would have “know[n] what was in [her] head.” Collateral Consequences [34] Several Ontario courts have already considered what, if any, effect the global pandemic should have in fixing a fair sentence: R.v. Dakin, [2020] O.J. No. 1749 (C.J.) per C. Applegate J.; R. v. Hearns, 2020 ONSC 2365 , [2020] O.J. No. 1648 (S.C.J.) perR. Pomerance J.; R. v. O.K., [2020] O.J. No. 1600 (C.J.) per L.C. Pringle J.; R. v. Kandhai, 2020 ONSC 1611 , [2020] O.J. No.1254 (S.C.J.) per D.E. Harris J.; R. v.

Laurin, [2020] O.J. No. 1266 (C.J.) per K. Crosbie J.; R. v. McConnell, [2020] O.J. No. 1514(C.J.) per R.F. Kwolek J.; R. v. McGrath, [2020] O.J. No. 1630 (C.J.) per D. Berg J.; and R. v. Wilson, [2020] O.J. No. 1515 (C.J.) perR.F.

Kwolek J. [35] Obviously, a balance must be struck between the potential risk to the community of releasing offenders who pose a safety threat,for whom custody is generally appropriate, and the risk of spreading this potentially lethal virus by ordering people into confines whichundermine all public health interventions to maintain social distance and reduce the spread of infection. [36] Neither party adduced any evidence of known COVID-19 cases in custodial populations or any evidence respecting theDefendant’s overall health or risk of infection. [37] Nonetheless, I accept that the current crisis in long-term care facilities in Ontario serves as an appropriate proxy for the potentialof this virus to harm the inmates of custodial facilities given the reliance on staff who move freely about an institution, the use of centralnutritional facilities, the use of communal recreational spaces (and communal bathing areas in jails), and the physical inability to employsocial-distancing.

If anything, custodial facilities may be worse as inmates are required to share sleeping spaces and bathrooms, andthere is likely a far greater flux of admissions and discharges than within long-term care homes. [38] There can be little debate that congregate living is a potential timber box which can quickly ignite if introduced to a spark. [39] The Ontario Court of Appeal has recently held that the impact of the Covid-19 pandemic represents a collateral consequencewhich may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in thecircumstances.[12] [40] I am prepared to accept that the offender’s risk of contracting the coronavirus in prison and the likelihood that he will sufferincreased stress as a result of this reality mean that his sentence will be more difficult to endure during the current pandemic than wouldotherwise be the case.

Consequently, it will be appropriate to give some discount to the offender’s sentence to account for this collateralconsequence. Sentence Ranges [41] In seeking a two to three year penitentiary sentence, the prosecution relied upon two sentencing decisions: R. v. Ignacio, [2019]O.J. No. 2392 (S.C.J.) and R. v.

Garrett, [2014] ONCA 734.[13] [42] While these decisions are helpful, they do not establish that a penitentiary sentence will always be the starting point for assaultsinvolving sexual intercourse.[14] [43] I am also aware that our highest court has confirmed that starting points and ranges “are guidelines, not hard and fast rules.”[15] The Appropriate Sentence [44] A just sentence involves taking into account both the seriousness of the offence and the moral culpability of the offender, whilebalancing the principles of sentencing that are implicated in the particular case. [45] The Defendant’s relative youth and first-offender status dominate the analysis.

In cases such as this, general deterrence anddenunciation should not eclipse concerns for the offender’s rehabilitation.

[ 46 ] That said, I am mindful that in this case, the consequences of the offending behaviour (significant psychological trauma suffered by the complainant) and a lack of insight on the part of the Defendant increase the seriousness of the crime and the Defendant’s blameworthiness. [ 47 ] Also noteworthy, and demonstrative of the Defendant’s attitudes and likelihood to re-offend, [16] is the current of implied consent, which coursed through the entirety of the Defendant’s evidence.

He repeatedly said things like, “the vibe felt right,” “she didn’t object,” “the timing was right,” “she was comfortable,” and “it takes two to tango.” Such attitudes concerning sexual consent are antiquated and clearly reveal how the Defendant ran afoul of the law. [ 48 ] Lastly, though the Defendant emphasized that he was “nice” and “gentle” and the complainant was “comfortable” throughout his testimony, it must be stressed that sexual assault is

an act of violence. Sentences must reflect the level of sexual violence and the far- reaching and ongoing harm that it causes to victims and society at large. [17] [ 49 ] This was a serious sexual assault with significant consequences for the complainant. The violation of her sexual and bodily integrity was significant and her emotional scars have not completely healed. All of the circumstances suggest that this offence requires a sentence above the middle of the range suggested by the prosecutor.

No shorter sentence can adequately address the level of violence and trespass upon the complainant’s sexual and bodily integrity while remaining commensurate with the degree of harm she has suffered. I find that a penitentiary sentence of 32 months reflects the gravity of the offence, while recognizing the Defendant’s prior good character and overall culpability. [ 50 ] I am also mindful that the Defendant has never before been imprisoned, much less has he been sent to the penitentiary.

A fit sentence must also take this into account in order to avoid crushing the Defendant’s spirit or jeopardizing his rehabilitation. I am prepared to reduce the sentence from 32 months to 28 months to account for the Defendant’s youth, his prospects for rehabilitation, and the fact that this is his first prison sentence.

A penitentiary sentence of 28 months adequately addresses all of the circumstances of the offence, the offender, and the applicable sentencing principles. [ 51 ] Taking into account the collateral consequence of imprisonment during a global pandemic, I am satisfied that a sentence of imprisonment will have a greater impact upon the Defendant than a similar sentence would otherwise have during “normal” times.

The principle of parity requires that this be taken into account to determine a fit sentence. [18] [ 52 ] In my view, only a small reduction of sentence will properly account for the collateral consequence of imprisonment during the pandemic without risking disproportionality to the offence and its consequences. Accordingly, I am prepared to reduce what is otherwise an appropriate sentence in this case (28 months) to a sentence of imprisonment for two years less one day, followed by probation.

CONCLUSION [ 53 ] Edgar Alan Pestano is sentenced to imprisonment within a provincial reformatory for two years less one day and 18 months probation for the sexual assault of X.F. [ 54 ] The terms of probation are: i. Keep the peace and be of good behaviour; ii. Attend court when required; iii. Notify your probation officer of any change of name, address, or occupation; iv. Within 5 days of your release from prison, you must report to a probation officer and continue to report thereafter as directed; v. You are prohibited from having direct or indirect contact with X.F. [19] or any member of her family; vi.

You are not to attend or remain at any place where you know or find X.F. [20] to be; vii. You may not possess any weapons; viii. You must take any counselling directed by your probation officer for sexual boundaries; and ix. You must complete releases of information in favour of your probation officer to monitor your attendance and completion of any counselling you are directed to take. [ 55 ] The Defendant will also be subject to the following ancillary orders: i. While imprisoned, the Defendant is prohibited from having any contact with X.F., [21] pursuant to s. 743.21(1) of the Criminal Code ; ii.

The Defendant is bound to comply with the terms of a s. 109 prohibition order for 10 years; iii. Pursuant to s. 487.051(1), the Defendant must provide such samples of bodily substances as may be required for forensic DNA analysis, the results of which shall be included in the national databank. This Order shall be carried out in circumstances which protect the health and safety of the Defendant, with as little interference with his bodily integrity as the circumstances permit; and iv.

The Defendant must comply with the provisions of the Sex Offender Information and Registration Act for 20 years (s. 490.013(2)(b)).

Released: 17 September 2020 Justice G. Paul Renwick