Court File and Parties

Court File No.: CR-15-1270-00 Date: 2017-03-23

Ontario

Superior Court of Justice

Between:

Her Majesty The Queen R. Levan, for the Crown

- and -

Jose Diaz D. Robitaille, for the defence

Heard: March 6, 2017, at Brampton

Reasons for Sentence

André J.

[1] A jury convicted Mr. Diaz on January 17, 2017 of the offence of sexual assault. Crown counsel seeks a sentence of three and a half years imprisonment while defence counsel seeks one of eighteen months imprisonment. I must now decide, pursuant to s. 718.1 of the Criminal Code, what a proportionate sentence would be in this case, having regard to the gravity of the offence and the moral blameworthiness of Mr. Diaz.

Facts

[2] Mr. Diaz met S.M. on a dating site called Seeking Arrangement. The site offers young women the prospect of meeting older men who are seeking a relationship with a younger woman.

[3] Mr. Diaz and Ms. S.M. met after exchanging text messages and arranged to go out for dinner one evening following which Ms. S.M. would spend the night at Mr. Diaz’s Mississauga condominium. During the meeting, Ms. S.M. agreed to have sex on their first date. Mr. Diaz agreed to pay Ms. S.M. a sum of money for that encounter but the two did not discuss how much.

[4] Mr. Diaz picked up Ms. S.M. in his car and drove her to his residence. The two got undressed and Ms. S.M. performed fellatio on Mr. Diaz. The two then had consensual sex following which Mr. Diaz partially inserted his penis in Ms. S.M.’s anus. During the trial, the evidence of the two diverged significantly on this point. Ms. S.M. testified that she repeatedly told Mr. Diaz to stop but he continued to have anal intercourse with her. Mr. Diaz testified that he asked Ms. S.M. if it was okay after he placed his penis partially inside Ms. S.M.’s anus and that she told him that it was fine. The jury evidently accepted Ms. S.M.’s version of events and convicted Mr. Diaz of sexual assault.

Victim Impact Statement

[5] Ms. S.M. stated that the incident has had a profound impact on her. She continues to experience the emotional effects of the incident. It has made her withdrawn and distrustful of members of the opposite sex. The incident adversely affected her sense of dignity and self-respect. She has not been able to have a romantic relationship since. She lost a significant amount of time from work and was forced to withdraw from school a month before the trial.

Guiding Principles

[6] Section 718 sets out the fundamental purpose and objectives of sentencing.

[7] Section 718.1 states that a sentence should be proportionate to the gravity of the offence and the personal circumstances of the offender.

[8] Section 718.2 sets out a number of principles that should be assessed in determining what a proportionate sentence should be in the circumstances of a particular case. Both counsel concede that the central sentencing principles in this case are deterrence and denunciation, both specific and general. However, given Mr. Diaz’s lack of criminal antecedents, rehabilitation is a factor I must consider in fashioning a sentence that can be considered just and proportionate in this case.

Analysis

[9] The determination of a proportionate sentence necessarily involves an assessment of the aggravating and mitigating factors. It also involves an examination of the cases on which both counsel rely in support of their respective positions on sentencing.

Aggravating Factors

[10] Crown counsel submits that the 22-year-old victim’s youth and naiveté are aggravating factors. Defence counsel however, counters that far from being naïve and vulnerable, Ms. S.M. is a relatively sophisticated young woman who consciously sought a sexual relationship with an older man in exchange for money.

[11] Undoubtedly, Ms. S.M. placed her profile on the website, Seeking Arrangement, for the purpose of obtaining an intimate relationship with an older male. However, this does not negate the fact that she was relatively unsophisticated and naïve about the potential pitfalls of such a relationship. For example, while she told Mr. Diaz that she expected to be paid for her time with him, she never stipulated the amount of money she wanted for her services. Second, while she agreed to having sex during their first meeting, she never set any boundaries regarding the sexual acts which she would be agreeable to. Third, despite having Mr. Diaz take her home after having had dinner with him, she never requested any payment from him. Neither did Mr. Diaz offer to pay her. Indeed, he testified that he forgot to do so.

[12] Additionally, the fact that Ms. S.M. told Mr. Diaz to stop and he did not is an aggravating factor given that his failure constitutes demeaning behaviour: see R. v. Garrett, 2014 ONCA 734, at para. 19; R. v. Stankovic, 2015 ONSC 6246, at para. 50.

[13] Another aggravating factor is the impact which the incident has had on Ms. S.M.. It has had a significant psychological impact on her and has clearly exacerbated whatever insecurities or sense of inadequacy that she had. She has become distrustful of men and required counselling to help her overcome the psychological fallout from the sexual assault.

[14] Furthermore, Mr. Diaz did not live up to his end of the bargain by paying Ms. S.M. as he had agreed to do.

Mitigating Factors

[15] Mr. Diaz has an impressive past.

[16] He earned a Bachelor of Science degree in Colombia; a Master of Science in Management Engineering and a Master in Business Administration from the University of Toronto. He is also fluent in Italian and Spanish. He has been gainfully employed since his migration to Canada in 2012 and has worked as an Operations Manager at the Amazon Company since July 2014. Mr. Diaz has therefore been a productive member of the community since his arrival in Canada.

[17] Mr. Diaz also enjoys the support of his family and his community. His wife has written a glowing report about him and described him as “an exceptionally loving, caring and loyal husband”. His sister has described him as generous, caring and a loving brother, uncle and brother-in-law. Finally, Mr. Diaz’s brother-in-law described him as “a person of intelligence, high moral standing and good character.”

[18] Third, Mr. Diaz has no criminal record nor does he have any outstanding charges.

[19] Defence counsel submits that another mitigating factor is the certainty that Mr. Diaz will be deported after serving his sentence.

[20] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14, the Supreme Court of Canada noted the following:

… [A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] In R. v. McKenzie, 2017 ONCA 128, at para. 35, Trotter J.A. noted that sentencing judges should give the issue of the immigration consequences of a sentence “serious consideration in determining a fit sentence”. That said, a sentence should not be reduced solely for the purpose of avoiding the immigration consequences of a sentence: see Pham, at para. 15; McKenzie, at para. 36.

[22] It may be suggested that the absence of gratuitous violence in this case is a mitigating factor. However, the sexual assault of which Mr. Diaz has been found guilty is inherently an act of violence perpetrated on a defenceless victim. In any event, the absence of gratuitous violence is not a mitigating factor deserving of more lenient punishment: see R. v. Stuckless.

Appropriate Range of Sentence

[23] Crown counsel relies on the following cases in support of its position:

[24] In R. v. Gadam, 2016 ONSC 4664, [2016] O.J. No. 4316, a first-time offender who had been convicted of multiple acts of sexual assault against an acquaintance was sentenced to three years imprisonment. The trial judge found that the accused had non-consensual sexual intercourse with the victim eight times within a three month period and had repeatedly threatened her.

[25] In R. v. Rand, 2012 ONCA 731, [2012] O.J. No. 5061, the accused had unprotected, non-consensual sex with an intoxicated person he met at an open-air rock concert. He also engaged in oral sex with her and then anal intercourse. Mr. Rand was sentenced to four years imprisonment for the sexual assault, a sentence which was upheld on appeal.

[26] In R. v. Stankovic, above, the accused had non-consensual vaginal and anal intercourse with a complainant. He had a criminal record for impaired driving and uttering threats. A jury convicted the accused of the offence of sexual intercourse and the trial judge sentenced the 39-year-old recidivist to three years imprisonment.

[27] Defence counsel relies on a number of cases in support of her position regarding the appropriate sentence for Mr. Diaz, including the following:

[28] In McKenzie, above, the Court of Appeal upheld a nine month jail sentence for an accused who had been convicted of a sexual assault. The accused had taken his co-worker into a washroom during a Christmas party, and had partially penetrated her anus. The complainant repeatedly told him no and the penetration lasted 20 to 35 seconds. The trial judge held that the impact on the complainant fell “lower down on the scale than in many other cases”: at para. 5.

[29] In R. v. B.M., 2008 ONCA 645, the trial judge sentenced an offender who had engaged in non-consensual anal intercourse with his developmentally delayed wife to nine months imprisonment and two years’ probation. On appeal, the sentence was increased to two years less a day imprisonment.

[30] In R. v. Garrett, above, the accused had non-consensual vaginal intercourse with an acquaintance at her home after they had gone for dinner. The trial judge sentenced the accused to a three month intermittent sentence.

[31] On appeal, the Court of Appeal set aside the sentence and imposed an eighteen-month jail sentence. Of the accused’s action after repeatedly being told to stop by the complainant, the Court of Appeal stated at para. 19 that:

This, in itself, constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence.

[32] The British Columbia Court of Appeal in R. v. G.M., 2015 BCCA 165 increased a three-month intermittent jail sentence imposed on an accused who had sexually assaulted his former boyfriend to 18 months incarceration and 18 months’ probation. The victim had attended the accused’s residence at the latter’s invitation. After having consensual sex, the accused forced himself upon the victim and anally penetrated him. The victim repeatedly told him to stop. The victim ran from the house naked, carrying his clothes with him. The Court of Appeal noted at para. 33 that “the range for this offence usually starts at two years…”

[33] What is the appropriate range of sentence in this case, having regard to the gravity of the offence and applicable case law? In my view, the cases relied upon by the Crown do not support his position that the appropriate sentence range is three and a half years to four years imprisonment. The facts in Gadam, Rand and Stankovic are more egregious than that in the instant case. In Stankovic the offender was a recidivist, unlike Mr. Diaz.

[34] That said, the facts in McKenzie are not as serious as that in this case. The impugned act in the McKenzie case lasted 20 to 35 seconds compared to approximately five minutes in this case. Furthermore, the impact of the sexual act on the complainant does not appear to have been as significant or long lasting as it had in the case of Ms. S.M..

[35] Similarly in B.M., the impugned act was more reprehensible than in this case given that the victim was the offender’s wife and second, she was developmentally delayed. In Garrett, the accused not only violated the sexual integrity of the complainant; he also violated the sanctity of her home. Finally, in G.M., the facts are similar to those in the instant case. Although the Court of Appeal increased the sentence to eighteen months incarceration, it nevertheless held that the sentence range for that type of offence usually starts at two years’ incarceration.

[36] In my view, the appropriate sentence range for this offence is an upper reformatory sentence to three years’ incarceration.

[37] The mitigating factors justifying a sentence towards the lower end of the range of sentence are that Mr. Diaz has an exemplary education and employment history, enjoys a significant amount of support in the community and faces deportation upon completion of his sentence.

[38] In all the circumstances of this case, I sentence Mr. Diaz to a term of imprisonment of twenty months.

Ancillary Orders

(1) There will be a DNA order (primary designated offence). (2) There will be a SOIRA order for 20 years. (3) There will be a s. 109 order for life.

André J.

Released: March 23, 2017