Non-Publication and Non-Broadcast Order Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2023 11 30 COURT FILE No.: Chatham 21-999

BETWEEN:

HIS MAJESTY THE KING

— AND —

NEETAHWIS SHOGNOSH-DIAZ

Before: Justice R. B. Horton

Heard on: November 24, 2022, February 2, 2023, and February 22, 2023

Reasons for Sentencing released: November 30 2023

Counsel: Mr. J. Boonstra................................................................................... counsel for the Crown Mr. Y. Obouhov............................ counsel for the accused Neetahwis Shognosh-Diaz

HORTON J.:

1Mr. Neetahwis Shognosh-Diaz was found guilty, following trial, of having sexually assaulted A.B.C. who did not consent to the sexual activity and was restricted in her ability to respond as she was impaired by alcohol to some extent. There was vaginal and anal penetration.

2In these reasons I seek to explain the imposition of a sentence that may be viewed as falling outside the usual range imposed.

The Offence

3There was significant consensus by all parties and witnesses as to the narrative of what occurred on the evening of June 26, 2021, and the early morning hours of June 27, 2021.

4Ms. A.B.C., planned a celebration for her 19th birthday, intending to go drinking. Anticipating, correctly it may be observed, that significant alcohol would be consumed she arranged to rent a hotel room close to this bar.

5The Offender, together with three other individuals, were invited to attend and advised they could also utilize the hotel room to avoid anyone driving. These individuals agreed to pick up Ms. A.B.C. and proceeded to the hotel.

6At the hotel the group engaged in some pre-drinks in advance of going to the bar.

7At the bar the group consumed alcohol in varying levels. Throughout the night they socialized with other individuals they knew, A.B.C. and the Offender spent considerable time sitting and talking together. At or about closing time, the group began to walk back to the hotel, there is agreement that all were impaired.

8Upon their return to the hotel further alcohol was consumed, again in varying degrees.

9The hotel room was laid out on two floors with a bedroom and bathroom on each floor. A.B.C. and Mr. Jeffs intended to share the one bed on the main floor, while Mr. Renaud and Mr. Shognosh-Diaz were to shared the second level bedroom.

10Mr. Jeffs quickly laid down and, in his words, “passed out” while A.B.C. stayed up to have a further beverage. A.B.C. went upstairs and had a single drink with the Offender and Mr. Renaud. On heading back down the stairs she sat down on the stairs due to her intoxication. The Offender sat behind her and spoke of wanting to sleep with her. This was rebuffed by A.B.C. who then proceeded to bed.

11With A.B.C. now in her bed, Mr. Shognosh-Diaz and Mr. Renaud came downstairs and jumped on the bed. Eventually Renaud proceeded back upstairs, and Mr. Shognosh-Diaz remained downstairs.

12It is at this time that A.B.C. testified the Offender began to kiss and fondle her. It is alleged that the Accused attempted oral sex and engaged in both vaginal and anal sex with the Complainant.

13The Complainant testified she had dismissed the Offender’s advances of sleeping together earlier and at the time the Offender began touching her she was too drunk to move and was scared. She testified that while the Offender was engaged in these unwanted acts, she woke Mr. Jeffs by biting his shoulder and asked him to stop the Offender. Mr. Jeffs, in his testimony, confirmed that this is indeed what occurred with his telling the Offender to stop, which he did.

14A.B.C. testified that Mr. Jeffs characterized the Offender as having raped her.

15A.B.C. went into the bathroom and observed a hickey and other bruising on her body. She testified that she had no memory of what had occurred when she initially awoke.

16A.B.C. and the three men left the hotel. A.B.C. began to regain her memory of what occurred over the next few hours. She recalled the events of the previous night and early morning and testified that the Offender had begun kissing her, touching her and attempted oral sex. She testified of his penetrating her anally and vaginally. She recounted her inability to move due to her impairment by alcohol. She was very clear in her testimony that she did not consent to these acts with the Offender.

17Later that day, or shortly thereafter, A.B.C. received a social media message from the Offender in which he wrote,

“listen jarad just told me everything and believe me when I tell you it was a slap in the face. I literally have no memory of anything after a certain point at river rock and when he told me it made my stomach turn. I’m absolutely disgusted in what happened. I know this won’t mean anything to u but I sincerely apologize I was blacked out lk that’s no excuse, there is no excuse, I can never do anything to take back my actions”

A.B.C. responded,

“you Fucken raped me…”

18A.B.C. contacted the police. The Offender was charged with the offence of sexual assault.

19A.B.C. attended the Chatham-Kent Health Alliance and completed a sexual assault examination. The Centre of Forensic Science (“CFS”) prepared a report dated October 5, 2021 (report one) which confirmed that semen was present pursuant to a vaginal swab. A further report (report two) was prepared by CFS dated October 5, 2022, which confirmed that the semen verified to be present was estimated to be greater than 1 trillion times more likely to be that of the Offender in comparison to any other male. I found that in fact it was the Offender’s semen. The Crown and defence confirmed the fact that the Offender and A.B.C. had sexual relations. I accepted this as fact.

The Impact on the Victim

20A.B.C. filed a victim impact statement (VIS) that set out the significant emotional toll that this offence has had on her.

21Mr. Shognosh-Diaz was a friend and betrayed the trust she had placed in him. Understandably, the sexual assault has negatively impacted her ability to trust or be intimate with people, inclusive of her current partner and her own father.

22A.B.C. invited Mr. Shognosh-Diaz together with friends to celebrate her birthday. She arranged for a hotel room to ensure that she and her friends were safe. This had the opposite effect in providing a forum for Mr. Shognosh-Diaz to take advantage of A.B.C. while in a state that she could not defend herself.

23Despite the time which is passed since the sexual assault A.B.C. continues to struggle with the trauma caused by this offence against her person.

The Circumstances of the Offender

24Counsel, on behalf of Mr. Shognosh-Diaz, acknowledges the severity of the offence for which Mr. Shognosh-Diaz was found guilty but in doing so directs my attention to his individual circumstances. This inquiry was greatly aided by the Gladue Report received by this Court. This report details the significant historical involvement that this Offender’s extended family endured, including the legacy of residential schools. The impact was in no way limited to only family members who attended the schools but extended to their children and grandchildren, and the greater community.

25Notwithstanding the far-reaching inter-generational effects of this trauma, Mr. Shognosh-Diaz was among the more fortunate in the sense that by all accounts he enjoyed an affectionate and safe upbringing within his family. It was noted by the author of the report that in many ways Mr. Shognosh-Diaz was raised in a home that was opposite his own father’s traumatic upbringing.

26I accept the evidence contained within the Gladue report of the state sanctioned abuse endured by Mr. Shognosh-Diaz’ extended family and the existence of many indirect challenges for him, because of this legacy.

27Mr. Shognosh-Diaz can be said to have had, overall, a positive upbringing. His parents and grandparents were and continue to be positive factors in his life. He obtained post secondary education while some concerns exist with respect to consumption of alcohol it appears from the evidence that this was largely a result of social outings with friends and that consumption has decreased with maturity.

28Mr. Shognosh-Diaz is of overall good health though suffers from impaired eyesight due to a condition which is led to deterioration of his retina.

29Mr. Shognosh-Diaz is 23 years of age and without a previous criminal record.

Legal Framework – Sexual Assault Sentencing Principles

Sentencing Ranges

30Counsel have submitted somewhat different lines of jurisprudence as to the appropriate range of custodial sentences for sexual assault involving full intercourse. While both acknowledged that the usual range is between 36 months and five years, Defence relies upon the fact that sentences, both below and above the usual range, have been ordered based upon the circumstances of both the offence and the Offender.

31Defence counsel seeks a custodial sentence of 18 months and submits that a conditional sentence is appropriate for this Offender. Crown counsel proposes a sentence of 36-48 months. The difference affects whether his sentence will be carried out within a provincial institution or as Defence agues through a Conditional Sentence, or whether a federal penitentiary term is required.

Defence Position

32The Defence submits that a sentence of 18 months, to be served as a conditional sentence, is an appropriate and fit sentence, together with an extended probationary period of 2-3 years. They submit such a sentence would satisfy the principles of sentencing given the exceptional mitigating factors present. They highlight for the Court the fact that the Offender has abided by all conditions placed upon him following his release.

33The Defence submits the following factors should be considered:

(i) the Offender is a youthful, first-time Offender; (ii) the Offender has completed two years on conditions of release without any history of noncompliance. (iii) the use of a conditional sentence order addresses aboriginal overpopulation within correctional institutions; (iv) letters of character filed with this court are indicative of support from friends family and employers; (v) the offence is notably out of character for this Offender and was likely promoted by a high volume of alcohol consumption.

34Defence counsel submits that the presentence report is positive and indicates that the Offender could be properly supervised within the community on specific conditions.

Crown Position

35the Crown submits that the appropriate custodial range of sentences for sexual assault in which penetration has occurred is 3 to 5 years. They argue for a sentence of 36-48 months, following with in low to mid range of this Offender in the circumstances.

36In support of this position, the Crown submits that the following facts constitute aggravating factors of this offence:

(i) the Offender engaged in vaginal and anal intercourse, each being highly invasive acts; (ii) the victim was asleep and impaired by alcohol in some way, thereby being in a vulnerable state; (iii) the sexual assault occurred in a hotel room provided by the victim in her effort to promote hers and her friends safety; (iv) the victim impact statement of the victim speaks to the profound and traumatizing impact she has suffered including being constantly on guard, her inability to trust males inclusive of her own father and spouse, night terrors and lost employment income.

37The Crown acknowledges that this Offender is a youthful first-time Offender.

38The Crown acknowledges this Offender’s aboriginal heritage and the effect of this is had directly and indirectly on the Offender.

39The Crown, quite fairly, submits that the Offender’s lack of criminal record and age should not mitigate to the point of reducing the appropriate range further. Equally they argue that the presence of Gladue factors by themselves do not reduce an otherwise fit an appropriate sentence. They submit that the principle of restraint must be viewed as having been “built into” the ranges outlined by the Appeal Courts.

ANALYSIS AND DISPOSITION

40The Crown argues that the appropriate range of sentence is that set forth with in R. v. Bradley 2008 ONCA 179, [2008] ONCA 179, 234 O.A.C. 363, in which the Ontario Court of Appeal accepted that the 3 to 5 years is the appropriate sentencing range for sexual assault with sexual intercourse. It is difficult to accept that this case establishes the range for the offence of sexual assault. The facts in Bradley are seriously aggravating, involving a police officer who sexually assaulted the Complainant, a young indigenous woman, vaginally and anally, demanded oral sex from her and made degrading comments. While similar acts occurred the serious aggravating factors contained in Bradley cannot be said to exist in the present case.

41What can be established from R. v. Bradley is support for, what I believe to be an appropriate proposition that, the nature of the sexual assault is more important than the relationship or lack of relationship between an accused and the victim. I do not differentiate between a victim who had a prior relationship with an assailant and one who did not, though certainly the existence of a trust relationship can be viewed as a further aggravating feature of such an assault.

42In this case, as in Bradley, the imposition of a sentence that is necessary to achieve the principles of deterrence and denunciation must be satisfied. This was a highly invasive offence against a woman in a vulnerable state. Rehabilitation, while certainly a consideration for sentencing of a person in the circumstances of this Offender, it cannot be viewed as a primary consideration.

43The range of sentence accepted in R. v Bradley has been accepted and supported in later decisions including, R. v. A.J.K. [2022] ONCA 487. Again, it is noteworthy, both Bradley and A.J.K. contained facts which I find more aggravating than in this particular offence.

44The primary goals of sentencing in cases such as this must be denunciation and deterrence. The gravity of the offence requires the imposition of a proportional sentence that effectively denounces the criminal conduct in a way that is proportionate to the Offender’s level of moral blameworthiness for this highly invasive offence against a woman in a vulnerable condition. In addition, I must also consider that as stated within R. v. Priest, [1996] 110 C.C.C. (3d) 289, a “first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”.

45All sentencing decisions must consider the unique circumstances of the particular offence and Offender. There is no question that the sentence required in this case must send a strong message of denunciation to deter others and to express society’s abhorrence of Mr. Shognosh-Diaz’s selfish and degrading conduct of taking advantage of a woman in a condition unable to resist his assault. An assault which clearly has left A.B.C. with ongoing trauma.

46I accept the Defence’s submissions that the pre-sentence report may be viewed as positive and supports that this conduct is out of character for Mr. Shognosh-Diaz, that he has a strong network of support and that there is no suggestion that this Offender is likely to reoffend.

47Having taken all of this into consideration and the particular facts present in this case, specific to this Offender, I conclude that a fit custodial sentence for Mr. Shognosh-Diaz is two years less a day together with a probationary term for a period of 36 months. I find that a conditional sentence, while available given the period of custody ordered, having considered the nature of the offence and all circumstances of the Offender, can not be supported. In addition to the statutory terms of probation, Mr. Shognosh-Diaz shall:

(i) seek and maintain full-time employment or education; (ii) fully participate in any and all rehabilitative programs as may be directed by his probation officer and shall execute any releases that are necessary in order to permit his probation officer to monitor his progress in these programs; (iii) abstain absolutely from the possession and consumption of alcohol; (iv) not communicate directly or indirectly by any physical electronic or other means with the Complainant; (v) not be within 100 m of the Complainant, her residence, school, or place of employment or anywhere he knows her to be; (vi) leave any place where he finds the Complainant to be.

48The following ancillary orders are granted:

(i) a section 109 weapons prohibition for 10 years; (ii) DNA primary order shall issue; (iii) SOIRA for 20 years; (iv) S. 743.21 non-communication order with Complainant while in custody.

Released: November 30, 2023 Signed: Justice R. B. Horton