R. v. Correa, 2011 ONCJ 409

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. COURT FILE No.: Toronto 12004012 DATE: 2011·07·15 Citation: R. v. Correa , 2011 ONCJ 409 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RAFAEL CORREA Before Justice K. Caldwell Heard on June 15, 2011 Reasons for Judgment released on July 15, 2011 Ms. Danielle Carbonneau ....................................................................................... for the Crown

No one appearing for Mr. Correa – sentenced in abstention ........................................................ K. Caldwell J.: [ 1 ] On July 21, 2010, I found Mr. Correa guilty of two counts of sexual assaulting Ms. A.P.. I made this finding after a lengthy trial. The matter then was remanded for sentencing. I ordered a pre-sentence report (“PSR”). Mr. Correa failed to appear for his interview with the probation officer and has not been in contact with either his lawyer or the authorities for almost one year. The Crown now applies to have Mr.

Correa sentenced in his absence. [ 2 ] On the last court date, I granted his then-counsel Ms. Cremer’s application to be removed from the record; I will not reiterate my reasons in this judgment. [ 3 ] I am granting Ms. Carbonneau’s application on behalf of the Crown to continue with the sentencing in Mr. Correa’s absence. Further, I find that the appropriate sentence is the sixteen month sentence suggested by the Crown. My reasons for both of these findings are outlined below. Has Mr. Correa Absconded? [ 4 ]

Section 475 of the Criminal Code governs. This

section provides that when an accused person absconds during his trial, the accused is deemed to have elected not to be present for the trial. The Court then has two options. The first is to continue with the trial, including the imposition of sentence. The second is to issue a warrant for the accused’s arrest and wait for his apprehension. [ 5 ] I must decide two issues. First, I must determine if Mr. Correa has absconded.

If I find in the affirmative, I must then determine if it is more appropriate to await his re-attendance, presumably as a result of his arrest on the outstanding bench warrant, or if I should proceed with the sentencing in his absence. [ 6 ] I heard submissions from the Crown about the attempts that were made to locate Mr. Correa over the past year. I accepted the Crown’s rendition of the events as it was inherently reliable and given that Ms. Cremer had spoken with the Crown and indicated that it was not controversial. [ 7 ] Two uniformed officers attended at Mr. Correa’s parents’ home in January of this year.

They described Mr. Correa’s father as “uncooperative”. He informed the officers that his son was in Brazil. [ 8 ] The officers then contacted the parents’ neighbours and were told that Mr. Correa hadn’t been seen for months. Neighbours at Mr. Correa’s own last known address also hadn’t seen him for months. [ 9 ] Another officer then contacted several government agencies and found no record of Mr. Correa. His last known employer said that he had been terminated in 2007. [ 10 ] At the time of the return date of the PSR in the fall of 2010, his counsel, Ms.

Cremer, also said that she hadn’t heard from him in some time and that situation had not changed as of June, 2011. [ 11 ] On the basis of these uncontested facts, I find that Mr. Correa has absconded. Should Mr. Correa be Sentenced in his Absence? [ 12 ] I find that Mr. Correa should be sentenced in his absence. Given that he has absconded, he has clearly waived his right to be present at his trial, including at his sentencing hearing. [ 13 ] Further, the sexual assaults were very serious. Ms.

Carbonneau submits that that the complainant should have some sense of finality at the end of these proceedings, and I agree. [ 14 ] For these reasons, and given that there is no indication as to whether Mr. Correa will ever be apprehended to face a sentencing hearing, I find that it is appropriate to proceed in his absence. What is the Appropriate Sentence? [ 15 ] The Crown submits that the appropriate sentence is one of sixteen months, plus two years probation. I agree. [ 16 ] Unlike the usual sentencing, I am forced by Mr. Correa’s absence to sentence him with very little knowledge of his antecedents.

He did not testify at the trial, as was his right, and, of course, he did not make any submissions to me at the sentencing hearing nor did he have a counsel making submissions on his behalf. [ 17 ] I have heard during the course of the trial that he lost his mother in recent years. Though this was hearsay evidence, I have no reason to question it. No doubt that was extremely difficult for him. I know little else about his personal circumstances. [ 18 ] The offences were extremely serious, and had a profound effect on the Ms. P.. The victim impact statement reveals a

very troubled young woman who indicates that she has been seriously impacted by this event. She speaks of suffering post-traumatic stress disorder, anxiety, panic attacks, and states that she has become addicted to drugs, though she has since been through drug rehab. [ 19 ] Both the human psyche and mind are extremely complex. It is impossible for me to determine if all of these challenges which she faces have flowed strictly from Mr. Correa’s actions on July 22, 2007. That may be the only cause, or it may be a constellation of factors that have led her to the place in which she currently finds herself.

It would be logical to conclude, however, that these events have contributed significantly to her emotional and drug issues. [ 20 ] Further, I have had the benefit of seeing Ms. P.’s emotional state through observing her testimony in court. That testimony was far more powerful than a victim impact statement as I watched her re-live these events. There is no question in my mind that the impact was profound and fit the severity of the facts. [ 21 ] It is clear that Ms. P. trusted Mr. Correa. He was a friend of a friend of her older brother. Mr.

Correa used her sexually while she was essentially unconscious due to alcohol, drugs, exhaustion or a combination of all three. It is impossible to determine the full degree of the violation but it is clear that she woke up naked, with her vagina feeling like a raw sore, to find Mr. Correa masturbating while rubbing her vaginal area. His reaction and comments after the fact, both to her and to their mutual friend, Mr. Sikorski, were both crude and callous. [ 22 ] I must consider all of the principles of sentencing to the best of my ability in these particular circumstances. I must also consider both Mr.

Correa’s lack of remorse and lack of a prior criminal record. Given my lack of knowledge of Mr. Correa’s particulars, it is difficult to determine a sentence which is tailored to meet the needs of his rehabilitation and that addresses effective specific deterrence. The nature of the offences, however, requires that a strong emphasis be placed on both general deterrence and denunciation. [ 23 ] I find that sixteen months followed by two years probation is the fit sentence in the circumstances. The sentence is concurrent on both counts of sexual assault.

The terms of probation are the mandatory statutory terms, plus reporting, no contact directly or indirectly with Ms. P., not to be within 100 m of any place Mr. Correa knows her to live, work or be, to take sex offender counselling or any other counselling recommended by the probation officer and to sign any releases that allow the probation officer to monitor such counselling. [ 24 ] Further, there will be an order for DNA analysis, and an order in Form 52 that Mr. Correa comply with the Sex Offender Information Registration Act for a period of ten years. Released: July 15, 2011 Signed: “Justice K. Caldwell”