Court File and Parties
COURT FILE NO.: CR-15-10000518-0000 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JONATHAN VASQUEZ CLASE Defendant
Counsel: S. Fericean, for the Crown J. Lopez, for the Defendant
HEARD: April 7, 2017
REASONS FOR SENTENCE
B. P. O’MARRA J.
1The accused pleaded not guilty to the following two counts arising out of the same events:
(1) Jonathan Vasquez Clase stands charged that he, on or about the 16th day of June in the year 2014, at the City of Toronto, in the Toronto Region, with intent to assist himself to commit the indictable offence of sexual assault, did attempt to choke M.G. by applying pressure on her neck, contrary to s. 246(a) of the Criminal Code.
(2) Jonathan Vasquez Clase stands further charged that he, on or about the 16th day of June in the year 2014, at the City of Toronto, in the Toronto Region, did commit a sexual assault on M.G., contrary to s. 271 of the Criminal Code.
2The trial proceeded over five days in November 2016. The accused testified and denied the offences. In Reasons for Judgment reported at 2017 ONSC 45, I found him guilty of both counts.
SUMMARY OF THE FACTS
Summary of the Facts
3The Reasons for Judgment dated January 9, 2017 contain a thorough review of the evidence at trial and my findings of fact. A brief summary of the salient facts is as follows:
The accused and the victim had never met before the late night/early morning in question. The accused and a male friend were at a bar. The victim and the accused’s friend were attracted to each other and danced while the accused was nearby. The accused was attracted to the victim and described her as “very pretty.” The three of them decided to go to the accused’s apartment. She had been consuming alcohol throughout the evening. The accused had very little to drink since he was driving. After they were in his apartment, the three of them drank some rum, smoked marijuana and listened to music. The accused told her that they were making too much noise and should go into another room. She was reluctant to do so but decided to go in, puff some marijuana and then leave.
Shortly thereafter the accused left the room and then returned wearing only a towel. The victim was pushed onto the bed and felt her pants being “ripped off” her legs. She was on her period and had a pad on. The accused weighed close to 300 pounds. He is taller and much heavier than the victim. The victim felt as if she was being choked and could not breathe. She cried and begged the accused to stop. She thought her life might be over if the choking continued so she said “do whatever you need to do, just let me go after.” After a hard struggle he raped her. It lasted 15-20 minutes. He did not stop until he had vaginally penetrated her twice.
After the accused finally let her get up, the victim was in such a rush to leave that she put her pants on backwards.
The victim was later examined by staff at the Women’s College Hospital. They observed and photographed bruising on both of the victim’s wrists and small bruises on both sides of her neck.
In a post-arrest interview by the police, the accused denied that he even touched her. At trial he testified that in fact they had sexual intercourse but it was consensual. He claimed that he lied to the police about the alleged consensual sex since he hoped to reconcile with his wife. In the Reasons for Judgment I detailed why I rejected his evidence and that his evidence did not leave me with a reasonable doubt as to his guilt. I was satisfied based on the complainant’s evidence that I did accept that he was in fact guilty.
POSITION OF THE PARTIES
Position of the Parties
4The positions of counsel are not far apart on the appropriate range of sentence. The Crown submits that the upper end of 3.5 to 5 years is appropriate. The defence submits the lower end of that range is appropriate. Part of the defence’s position relates to collateral consequences that will flow from this sentence. The accused will likely be deported based on his permanent resident status and the finding of serious criminality referred to in The Immigration and Refugee Protection Act of Canada.
BACKGROUND OF THE OFFENDER
Background of the Offender
5The accused is a thirty-six-year-old first offender. He was born in the Dominican Republic. He is the father of two children ages six and seven from a relationship in that country. His paternal grandmother has full custody of both children. The accused maintains regular contact with his children and assists financially by sending $200.00 bi-weekly for their support.
6The accused is currently married to a woman he met while she was on vacation in the Dominican Republic. They were married in 2007 and in 2010 she sponsored him to emigrate to Canada. His current status is a permanent resident. They separated in 2014 but are working to possibly reconcile. His wife is aware of the current charges. She described the accused as a “gentle giant and good person.” She has never witnessed any violent behaviour or any issues with drugs or alcohol.
7The accused has been gainfully employed in construction for four years. His employer has attended court in support of the accused and described him as “a nice person and a good, reliable worker.”
VICTIM IMPACT
Victim Impact
8The victim is now twenty-four years old. She provided a detailed statement that was filed on the sentence hearing. She was affected in many ways by what happened to her. She suffered physical and emotional injuries. She became depressed and anxious. She found it very difficult to focus. Before this incident she was more trustful of strangers but is now much less so. Despite the grave negative impact on her life, she is more concerned that the accused be “fully educated on how bad raping someone is. How it impacts someone, if it was his daughter, or his wife” that it happened to. She forgives him but does not forget the pain these events have brought to her.
APPLICABLE SENTENCING PRINCIPLES
Applicable Sentencing Principles
9I have considered the purpose and principles of sentencing referred to in sections 718, 718.1 and 718.2 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.
10In R. v. Smith, [2016] ONSC 5261, Justice Fregeau at paras. 47-54 stated that Parliament’s recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of another offence is reflected by the maximum prescribed penalty of life imprisonment. It is an inherently dangerous act. The primary consideration should be given to the objectives of deterrence and denunciation.
11Since the accused is not a Canadian citizen, he faces collateral consequences related to his immigration status that may be relevant in fashioning an appropriate sentence. However, the sentence must be fit having regard to the particular crimes and the particular offender. The sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences of the offender: see R. v. Pham, 2013 SCC 15 at paras. 13-23.
12In mitigation of sentence, I have considered that the accused is a first-time offender. He has been gainfully employed. His estranged wife and employer describe him as a good person who has not exhibited violent behaviour in their presence.
13In his testimony at trial and input provided for the Pre-Sentence Report, the accused continued to assert his denial of the charges. He had a constitutional right to plead not guilty and proceed to trial. It is difficult for a person who pleads not guilty to express remorse. The absence of remorse in this case is simply the absence of what would otherwise be a mitigating factor on sentence. A trial judge’s conclusion that an accused’s testimony that he did not commit an offence was a lie cannot be regarded as an aggravating circumstance on sentence. See R. v. Bradley, 2008 ONCA 179, [2008] O.J. No. 955, at paras. 15 and 16; R. v. Kozy, [1990] O.J. No. 1586 (C.A.) at paras. 4-6; R. v. Bani-Naiem, 2010 ONSC 1890, [2010] O.J. No. 1234, at para. 13. It is an error in principle to treat an accused’s continued protestation of innocence as an aggravating factor on sentence. An increased sentence is not justified because the accused has pleaded not guilty, put in motion a full trial, and maintained his innocence. See R. v. K.A., [1999] O.J. No. 2640 (C.A.) at paras. 48 and 49.
14There are serious aggravating features on this sentencing. The victim was isolated and sexually attacked by the accused in predatory circumstances from which she could not escape or seek help. The accused is significantly bigger and stronger than the victim. He overpowered her and proceeded to inflict vaginal intercourse on her while she was menstruating. The choking aspect in the course of this egregious and protracted conduct made the victim reasonably fear for her life. These crimes have had a significant and long-lasting negative impact on the victim.
15The range of sentence submitted by the Crown and defence is appropriate. In my view, the particular facts, the mitigating and aggravating features and the impact on the victim require a total sentence in the very upper-end of the range submitted.
16The accused was released on bail within a few days of his arrest. Counsel for the accused advises that there were relatively strict terms of bail. The Crown points out that there were no requests to vary bail. Based on R. v. Downes, 79 O.R. (3d) 321 (Ont. C.A.), I am prepared to credit two months on sentence related to the length and terms of bail.
ANCILLARY ORDERS
Ancillary Orders
Pursuant to s. 109 of the Criminal Code, the accused is prohibited for life from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance, any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life;
Pursuant to s. 487.051 of the Criminal Code, the accused is to provide a sample of bodily substances for the purpose of forensic DNA analysis. Both counts are primary designated offences as defined in s. 487.04 of the Criminal Code;
Pursuant to s. 490.013 of the Criminal Code, the accused must comply with the Sexual Offender Information Registration Act for life.
Pursuant to s. 743.21 of the Criminal Code, the accused is prohibited from communicating, directly or indirectly, with the victim M.G. during the custodial period of his sentence.
Pursuant to s. 737(2)(b)(ii) of the Criminal Code, the accused is to pay the victim surcharge of $200.00 for each count for a total of $400.00
Disposition
17RESULT: The sentence on each of counts one and two will be five years in prison, less two months’ credit related to his bail terms, concurrent on each count. Therefore, the total sentence going forward is four years and ten months.
B. P. O’Marra J.
Released: April 28, 2017