Her Majesty The Queen v. Juan Tejeda-Rosario, 2010 ONCA 367

W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

486.6 (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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.

CITATION: R. v. Tejeda-Rosario, 2010 ONCA 367

DATE: 20100518

DOCKET: C51464

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Watt JJ.A.

BETWEEN:

Her Majesty The Queen

Applicant/Appellant

and

Juan Tejeda-Rosario

Respondent

Susan Magotiaux, for the appellant

David Humphrey and Jill Makepeace, for the respondent

Heard: May 6, 2010

On appeal from sentence imposed by Justice Roydon J. Kealey of the Superior Court of Justice, dated December 4, 2009.

By the Court:

1This a Crown appeal from the conditional sentence imposed by Kealey J. following a trial on two counts of sexual assault. For the following reasons, leave to appeal the sentence is granted, the appeal is allowed and the sentence varied to two years imprisonment.

THE FACTS

2In 1988, the 27 year old complainant became a patient of the respondent, a psychiatrist. This relationship continued until 2004, when the complainant complained to the College of Physicians and Surgeons. The complainant had sought out psychiatric help from the respondent because of various social and emotional issues including alcoholism and questions of sexual identity. The complainant was in a heterosexual relationship but had had homosexual experiences in the past while intoxicated and was struggling with his sexual identity. A short time into the professional relationship, the respondent began to see the complainant socially.

3The first sexual encounter occurred in late 1990 or early 1991 when the respondent was driving the complainant home from his athletic club. After a brief conversation of a sexual nature which led to some mutual fondling, the complainant performed fellatio on the respondent. This first encounter formed the basis of the first count of sexual assault. Over the next nine or ten years, until 1999, the complainant and the respondent had numerous sexual encounters. These encounters formed the basis for the second count. The typical pattern involved the complainant calling the respondent when the complainant had been drinking. The complainant would ask the respondent to bring him alcohol. The respondent would do so and they would then engage in acts of fellatio and masturbation. There were also two acts of attempted anal intercourse and one completed act of anal intercourse.

4In 1999, the complainant attempted suicide. While he was hospitalized he disclosed to a friend, Mr. K., that he had had a sexual relationship with the respondent. K. disclosed the information to another physician and to the complainant’s girlfriend, Ms. N. Both K. and N. were also patients of the respondent. N. told the complainant that he should report the incident to the authorities, but the complainant declined to do so.

5The complainant also told the respondent about the disclosure and apologized to him. The respondent and the complainant then devised a plan to ensure that K. and N. would not disclose to the authorities. The plan involved the complainant faking another suicide attempt and, when admitted to the hospital, telling the treating physician that on a previous occasion he had made false allegations against the respondent. He was also to write a letter to the hospital recanting the earlier allegations and leave messages on the respondent’s telephone voice mail recanting the disclosure and apologizing. The complainant carried out the plan. When Ms. N. continued to insist that the complainant go to the authorities, the respondent paid her $3,000 and had him sign an agreement not to disclose the sexual activity.

6The complainant continued to see the respondent in a therapeutic relationship for six more years until he made the disclosure to the College. After the complainant made the disclosure to the College, he filed a civil suit against the respondent.

7At trial, the respondent denied that he had any improper dealings with the complainant. The trial judge disbelieved the respondent and found him guilty of the two counts of sexual assault.

8The trial judge sentenced the respondent to two years less one day imprisonment to be served in the community. The terms of the conditional sentence included house arrest for most of the sentence and required the respondent to complete 240 hours of community service.

9The respondent is 66 years of age, is married and has three children. As a result of the offences, the respondent gave up his licence to practise psychiatry, thereby losing his source of income. The respondent filed numerous letters of support from family members, members of the community and fellow practitioners. The letters attest to the respondent’s good character, his community activities and his dedication as a physician. The respondent suffers from a number of medical conditions: diabetes, hypertension, hyperthyroidism, back pain, anaemia and anxiety.

10The complainant read a victim impact statement that described the devastating psychological impact of the offences. He also stated that he suffered from Chronic Pain Syndrome, which he attributed to the offences. The Crown did not, however, seek to prove that the chronic pain was related to the offences.

ANALYSIS

11In our view, the trial judge made two errors in principle that require our intervention. First, he held that the civil suit “neutralizes the effect of [the complainant’s] victim impact statement for the purpose of determining an appropriate sentence”. The fact that the respondent had launched a civil suit had little or nothing to do with the trial judge’s role in imposing sentence in the criminal proceedings. The serious psychological and emotional impacts of this kind of offence were matters that had to be reflected in the sentence.

12Second, the trial judge held that since it was breach of trust that made the otherwise consensual sexual activities crimes, it was “debatable whether in such a case it is also proper to consider breach of trust as an aggravating circumstance”. Parliament has expressly legislated that abuse of a position of trust is an aggravating factor on sentencing, pursuant to s. 718.2(a)(iii) of the Criminal Code. Moreover, this was a particularly serious breach of trust in several respects. It was not simply that the respondent and complainant were in a physician/patient relationship. The complainant sought the respondent out for counselling in relation to questions of alcoholism and sexual identity. The respondent took advantage of the complainant’s vulnerabilities in those very areas by supplying him with alcohol and then engaging in sexual acts. Further, after the complainant made the disclosure in 1999, the respondent engaged in an elaborate scheme to cover-up the disclosure. He was then able to continue in the therapeutic relationship with the complainant for another six years, thus depriving the complainant of professional assistance with his serious problems and especially the impact of the abuse by the respondent.

13This court in R. v. Gaukrodger, 2006 CanLII 31292 (ON CA), [2006] O.J. No. 3614 has expressly rejected the theory that the facts that constitute the essential elements of an offence are somehow exhausted and are not available for consideration at the time of sentencing. In this case, the nature of the abuse of trust was the defining aggravating factor and should have been given substantial weight by the trial judge in imposing sentence.

14Finally, we are of the view that the sentence imposed was manifestly inadequate and that the trial judge should have imposed a penitentiary sentence. Given the number of aggravating factors, including the extreme nature of the breach of trust and the lengthy period over which the offences continued, it is our view that a penitentiary sentence in the range of three to four years ought to have been imposed.

15At this stage, however, we must take into consideration the respondent’s age, his many health problems, that he has served five months of the conditional sentence (under house arrest), and the additional hardship of incarcerating him after he had received a conditional sentence. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence varied to two years imprisonment. A warrant may issue if necessary.

Signed: “M. Rosenberg J.A.”