Publication Ban Warning

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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. 2005, c. 32, s. 15.

Court File and Parties

Court of Appeal for Ontario

Date: 2022-03-31 Docket: C69691

Simmons, Miller and Nordheimer JJ.A.

Between: Her Majesty the Queen Respondent

And: David Ruelas Appellant

Counsel: Marianne Salih and Jeffery Couse, for the appellant Molly Flanagan, for the respondent

Heard: In writing

On appeal from the sentence imposed on December 18, 2020 by Justice Gisele M. Miller of the Superior Court of Justice, with reasons reported at 2020 ONSC 7973.

Reasons for Decision

[1] Following a judge alone trial, the appellant was convicted of sexual assault, but acquitted of the offence of choking to assist in committing a sexual assault.

[2] The appellant and the victim were long time acquaintances. After an evening of partying and consuming alcohol at a friend’s place, the victim awoke on a couch to find the appellant having sexual intercourse with her. When she protested, the appellant told her to shut up, ripped her tank top and at one point had his hand on her throat with sufficient force to cause bruising. The trial judge was not however satisfied beyond a reasonable doubt that the appellant was attempting to render the victim insensible, unconscious or incapable of resistance.

[3] After reviewing the material placed before her for sentencing, the trial judge sentenced the appellant to three years, six months’ imprisonment less six days credit for pre-sentence custody.

[4] The appellant raises three issues on appeal.

[5] First, the appellant argues that the trial judge erred in failing to give effect to the mitigating factors present. The trial judge noted the several letters filed in support of the appellant, his efforts at rehabilitation through an in-patient alcohol rehabilitation program, the further counselling he had undertaken and the low‑to‑moderate risk assessment his counsellor had provided. However, the trial judge expressed uneasiness at the fact that none [1] of the letters of support post‑dated his arrest and detention on new charges prior to the date of sentencing.

[6] The appellant submits that the trial judge erred in failing to raise her concerns at the sentencing hearing and give the appellant an opportunity to respond and submits that this error led her to ignore or de-emphasize the mitigating factors present.

[7] Second, the appellant argues that the trial judge erred in failing to apply the principle of restraint. While the appellant had a prior record, it was unrelated. The appellant was 31 years-old at the time of sentencing, had never previously been sentenced to the penitentiary and had good rehabilitation prospects. In the circumstances, he submits that a sentence of three years, six months' incarceration did not properly recognize his potential for rehabilitation or apply the principle of restraint.

[8] Finally, the appellant argues that the trial judge erred in failing to give the appellant credit for pre-sentence custody arising from the unrelated charges he was facing at the time of sentencing. The trial judge calculated that, by the date of sentencing, the appellant would have spent 70 days in custody on the charges he was facing. Fresh evidence demonstrates that the appellant received credit for only 45 days of pre-sentence custody when sentenced for those charges. The appellant submits that his detention on the additional charges was sufficiently related to his conviction for this offence that the additional time served should have been credited as pre-sentence custody for this offence.

[9] We would not give effect to the first and second grounds of appeal.

[10] Although we agree that it would have been preferable had the trial judge raised her concerns about the letters of support at the sentencing hearing and given trial counsel an opportunity to respond, we are not satisfied she was obliged to do so. Such letters are not the equivalent of a pre-sentence report ordered by the court. A trial judge is entitled to assume that parties have filed all available material in support of their position.

[11] Further, based on our review of the trial judge's reasons, we are satisfied that she fully considered the appellant's circumstances and the relevant sentencing principles. As we have said, she reviewed all the material placed in front of her for the purposes of sentencing. We see no error in principle that affected the sentence imposed.

[12] Finally, even if we had identified any error in the trial judge’s reasons, we are satisfied that a sentence of three years, six months’ incarceration was entirely fit having regard to the circumstances of the offender, and the offence, and all relevant sentencing principles. As observed by the trial judge, this was a sexual attack involving full penetration on an incapacitated victim who trusted the appellant as a friend. During the attack, the appellant placed his hand on the victim’s throat with sufficient force to cause bruising. The impact on the victim has been severe.

[13] As for the third ground of appeal, we conclude that the appellant should be given credit for the pre-sentence custody served that was not credited to him on the charges for which he was detained at the time of sentencing by the trial judge. The trial judge calculated that the appellant would have served a total of 70 days in custody prior to the date of sentencing. She gave credit on a 1.5:1 basis for four days of pre-sentence custody, resulting in six days credit. We would allow credit for an additional 21 days of pre-sentence custody (70 days minus 4 days credited by the trial judge minus 45 days credited on other charges) on a 1.5:1 basis, resulting in additional credit of 32 days.

[14] Based on the foregoing reasons, leave to appeal sentence is granted, the appeal is allowed in part by increasing the credit for pre-sentence custody from six days to 38 days, resulting in a sentence of three years and six months’ imprisonment less credit for 38 days of pre-sentence custody. The sentence appeal is otherwise dismissed and all other terms of the sentence imposed by the trial judge shall remain in full force and effect.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”

Footnotes

[1] The trial judge did note that one of the letters was undated.