Court File and Parties
Court File No.: CR-17-40000821-0000 Date: 2019-06-26 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Eduardo Bohorquez – and – Qasim Siddiqi
Counsel: P. Leishman and G. McLoughlin, for the Crown P. Mergler, for Eduardo Bohorquez J. Weisz and D. Paton, for Qasim Siddiqi
Heard: February 4, March 18, May 24 and May 28, 2019
Before: M. Dambrot J.
Reasons for Sentence
1In the summer of 2016, Eduardo Bohorquez and Qasim Siddiqi were sexual predators in their early 30’s who were actively seeking out vulnerable women in order to engage in sexual threesomes, preferably rough sex. Their modus operandi was to befriend a victim, get her into the basement of Mr. Bohorquez’s home, and have their way with her, totally indifferent to consent, all the while video recording their conquest for their own future sexual pleasure. They succeeded in this endeavour with the 19-year-old complainant on July 20, 2016, without her consent. Fortunately, the police seized the video that the offenders made of their “conquest” before there was an opportunity for it to be disseminated. They were each found guilty by a jury of being a party to the offence of sexual assault on the complainant with another person contrary to s. 272(1)(d) of the Criminal Code. I am now called upon to impose sentence.
2Before I begin, I take note of the fact that the offenders both maintained the position that they took at trial, that the complainant consented to some of the sexual encounter, and that they honestly believed that she consented to some of the sexual encounter. The jury’s verdict says only that at least some of the encounter was non-consensual, and that neither offender believed that all of the encounter was consensual. It is, of course, open to me to make findings of fact on a criminal standard of proof about consent and honest belief in consent in relation to this sexual encounter, and provided that it is consistent with the jury’s verdict. I have heard the evidence of the complainant and both accused, and there is no additional evidence that could be adduced that would bear on these issues. As will be seen, I am satisfied beyond a reasonable doubt that the complainant did not consent to any of the sexual activity in question, and that neither accused honestly believed otherwise.
The Offence
The Encounter on York Campus
3On July 17, 2016, the two offenders were walking on the York University campus when they met the complainant, whom I will refer to as “S.”. She was going into her second year of studies at York University, was living off-campus for the summer and was working at Canada’s Wonderland. She was on campus after work to buy dinner at a Popeyes Restaurant. She walked out of the restaurant with her food and was playing Pokémon Go, a popular cellphone game that had just been released, when she encountered the offenders.
4The offenders were good friends who lived on opposite sides of campus. They testified that they had been shopping for clothes, took the bus to York University and were cutting through the campus on the way to Bohorquez’s home. While they claimed that their presence on campus was innocent, I am satisfied that they were trolling for women to have sex with. The offenders sent text messages to each other around that time that clearly exhibited their preoccupation with finding women to have sex with, that they considered the campus to be a place that was convenient to their homes and where the prospect of encountering vulnerable young women was good.
5The two men asked S. what she was playing, and when she told them, they said that they had heard of it and were curious about it. They asked if they could walk with her a little to see how it worked. She agreed. The three of them then walked and played the game. The two men told her that they had graduated from York, but they didn’t say when, or tell her their ages. She told them that she was going into second year in Fine Arts, Dance, but not specifically her age. They also spoke a bit about eczema, with which both she and Mr. Bohorquez suffered.
6Mr. Bohorquez testified that as they walked, he asked S. if her nipples were pierced, and that she replied that they were, and laughed. He complimented her forward manner, told her that she was hot, and specifically that her ass was “hot” and “fat”, for which she thanked him. Mr. Siddiqi testified that Mr. Bohorquez and S. became a little flirtatious, and that he told her that she was attractive and had a nice ass, and she thanked him. Mr. Bohorquez also complimented her for not wearing a bra, and asked if it hurt when she had her nipples pierced. She said no, and laughed it off.
7S., whose evidence I accept, denied that there was any discussion about her not wearing a bra, or having pierced nipples. She said that she found neither of the men attractive, felt no sparks, and was not sexually interested in either of them, but was interested in them as friends. She was living 1½ hours away from home by bus at the time, had no high school friends at York, no university friends on campus during the summer and no boyfriend at the time. She testified that she felt kind of lonely, and was interested in meeting new people.
8Mr. Siddiqi testified that Mr. Bohorquez told her that he had over $100,000 of recording equipment in his studio and invited her to come over that evening, but she declined. However Mr. Bohorquez testified that he asked her if they could hang out as friends some time, without being specific, and she said yes, maybe, leaving it open ended. She was interested in hanging out, seeing a movie, having a drink or relaxing. In any case, Mr. Bohorquez asked for her cell number and she gave it to him. He checked it, and then they went their separate ways. They had spent no more than 15 or 20 minutes together.
9S. was not really thinking about the two men after their meeting ended, but Mr. Bohorquez texted her that night and she replied the next day. When Mr. Bohorquez first asked her to get together with him, she was not too interested. But ultimately, on July 20, 2016, he convinced her to go to his place to sit and relax. She agreed to be picked up at her home at 8:00 p.m. and go to his basement for a while, so long as he agreed to drive her home afterwards. He mentioned that his friend, Mr. Siddiqi, would be there too.
The Drive to Mr. Bohorquez’s House
10On the 20th, Mr. Bohorquez picked S. up at her home in his sister’s car and drove to the Eglinton West subway station with her. S. testified that when she got into his car, he mentioned that he was picking up Mr. Siddiqi on the way to his place. She had typical concerns about being with a stranger, and thought it would be safer to be with his friend as well, rather than just the two of them being alone together. She expected that they would spend a little time in the basement, watch a movie or something, and then she would go home.
11Mr. Bohorquez testified that on the short ride to the subway station to pick up Mr. Siddiqi, he had some chitchat with S. to make her comfortable in a stranger’s car. Then, as he drove, he brushed her hair behind her ear and told her she was beautiful. He said that she liked this. On the way, they spoke about sex. The discussion about sex lasted longer than the chitchat. He brought the subject up, and asked her what her favourite sexual position was. He described this as a go to question to start a discussion. Mr. Bohorquez testified that she said she was shy, and didn’t want to say, but he told her he really wanted to know, wouldn’t tell anyone, and that she could tell him anything. She then said that her favourite position was “from behind”. He said that this was a fairly interesting response, and he was excited about it. He pried further, and she told him what she liked. This made him even more excited.
12Mr. Bohorquez further testified that S. told him that she liked to be dominated. She liked men to be strong, take what they want and not ask permission. Mr. Bohorquez probed further, asking her to tell him more about what else she liked and her history. She mentioned rough sex, light slapping, spitting, torture and abuse. He added, in cross-examination, that she also said that she liked light bruising and red marks all over her body to remember her sexual experiences. Before they got to the subway, they spoke about having sex, and discussed what they would do. He then told her that he was going to fuck her really hard. She said, “oh yeah.” Later in his examination-in-chief, he was asked if there was a discussion of boundaries in the car on the way to the subway. He said that there was. He said that he and S. discussed boundaries and that there were no boundaries. She said, “Don’t stop fucking me if I say stop.” She also said that he could do what he wanted with her. He testified that he was amazed and happy that this was what she wanted.
13Mr. Bohorquez conceded in cross-examination that he didn’t actually recall the word “boundaries” being used, but insisted that they made an agreement. Before Mr. Siddiqi got into the car, and again after, she listed what she liked to do, and then they moved to a discussion of what they were going to do together. He said that an agreement was made about what they would do before Mr. Siddiqi was in the car, and reiterated after he was in the car.
14S. did not remember much of the conversation in the car during the short drive to the subway station, but she said that it was mostly about Pokémon, eczema and Mr. Bohorquez’s studio. She didn’t recall there being a sex-themed conversation in the car before they got to the subway. She didn’t recall telling Mr. Bohorquez what she was into sexually; she didn’t recall telling him she liked to be dominated; she didn’t recall telling him she was embarrassed about the discussion, and she didn’t recall him saying not to be shy. She said that she would remember if there had been such a discussion because it would have been so significant.
15Before picking S. up that evening, Mr. Bohorquez sent a text to Mr. Siddiqi in which he said, “This better happen tonight”. He acknowledged in cross-examination that he was talking about bringing S. to his studio for three-way sex with himself and Mr. Siddiqi. These exchanges were before Mr. Bohorquez claimed to have had a conversation with S. in his car about participating in three-way sex, or any sort of sex at all, and so, obviously, before there was any opportunity for her to consent. But by complete good fortune, according to Mr. Bohorquez, S., a 19-year-old student who hardly knew Mr. Bohorquez and Mr. Siddiqi, was eager to do exactly what he had hoped. Mr. Bohorquez acknowledged that on July 20, between 3:00 and 7:00 p.m., in addition to communicating with S., he had communicated with Mr. Siddiqi about Frenchie, another potential conquest with whom Mr. Siddiqi had spent time that day, and he was in communication with six other women, inviting them back to his place for some form of sexual encounter.
16Mr. Bohorquez’s evidence that S. openly discussed with him a predilection for violent sexual debauchery and enthusiastically endorsed participating in an evening of sexual abandon with him and Mr. Siddiqi in this brief car ride to the subway beggars the imagination. This evidence is nothing more than a contrivance to justify what followed. I reject it utterly.
17At the subway station, as Mr. Siddiqi approached, Mr. Bohorquez asked her to get out of the car to show Mr. Siddiqi that she was there, and made her do a little turn. In cross-examination she said that she did this without complaint, but she felt a little like she was being paraded as an object. Mr. Bohorquez then put his arm around her waist in what seemed like a platonic manner, and the two men talked about how good she looked as a blonde.
18When the three of them got into the car, Mr. Bohorquez sat in the driver’s seat, S. sat in the front passenger seat and Mr. Siddiqi sat behind her in the back. Mr. Bohorquez and Mr. Siddiqi talked about how good she looked. They commented on her hair again, saying that she looked good as a brunette, but even better as a blonde. They used words like “hot” and “babe”. The talk about her looks made her feel a little uncomfortable, but she didn’t think much of it. She said she might have been naïve, but she didn’t expect that they would try to have sex with her just because they complimented her looks.
19S. testified that at one point Mr. Bohorquez asked her what kind of sex she liked, and she replied that she liked rough sex. She did not define what she meant by rough sex, and they did not ask her to elaborate. They seemed to like hearing this. She said, once again, that it now seems naïve of her, but she didn’t think anything of being asked about her sexual preferences at the time. She said that she would talk about this sort of thing with her friends, and didn’t expect that it would lead anywhere. She answered Mr. Bohorquez honestly because otherwise she thought they would keep pushing for an answer. She didn’t remember any further discussion about sex. She never consented to having rough sex with either of them in the car or at any other time.
20Mr. Bohorquez gave an entirely different account of the discussion in the car on the way from the subway to his residence. He said that when they got into the car, he told Mr. Siddiqi, “You’re not going to believe it bro. She likes it from behind. You’re going to get in too.” In cross-examination he testified that when Mr. Siddiqi got into the car, he said, “You’ll never guess,” and then words to the effect that S. liked rough sex and was into light slapping, torture and abuse. He was not sure if he also mentioned spitting. When he said all of this, S. laughed, smirked and giggled.
21He and Mr. Siddiqi then talked about S.’s body, objectifying her. Mr. Bohorquez testified that he told Mr. Siddiqi that she also said that she liked her “horses” strong, and had her repeat the list of things she told him she liked earlier: anal, blowjobs, threesomes, sex from behind, sex from the front, other women and orgies. I note that blowjobs, threesomes, other women and orgies were additions to his earlier testimony of what she said before they got to the subway.
22Mr. Bohorquez also added, in cross-examination, that in the discussion in the car after they left the subway station, he and S. set the boundaries, and there were no boundaries. He went on to say that he didn’t remember the word “boundaries” being used, but insisted that they made an agreement. In further cross-examination about boundaries, Mr. Bohorquez said that he and S. discussed what they were going to do sexually together, and she said something to the effect of: don’t stop even if I ask you to. She also said that she didn’t like it when men stopped fucking her, there was no need for permission, and to give her light bruises and marks. He testified that he was amazed and happy that this was what she wanted. She also told him to give her light bruises and marks, and not to stop even if she asked.
23Mr. Siddiqi’s version of the car ride was quite different. He said that once they were all in the car, Mr. Bohorquez made a comment about her having her hair done, and complimented her hair. Siddiqi said that it looked good, and S. thanked him. Mr. Bohorquez mentioned that S. had had a long day, and that Mr. Siddiqi was very good at massages, and suggested that he give her a shoulder rub. Mr. Siddiqi said that he massaged her, on the shoulders only, and she seemed to enjoy it.
24At some point, according to Mr. Siddiqi, Mr. Bohorquez asked S. plain out if she was into rough sex. She said “Yeah.” He asked, “Like what?” She said being dominated, humiliated and being controlled by men. Mr. Bohorquez got really excited and Mr. Siddiqi went along with being excited. Mr. Bohorquez made other sexual comments, but Mr. Siddiqi said nothing other than echoing him in saying that S. had great hair and a great body.
25Again, Mr. Bohorquez’s version of events in the car, this time from the subway to his residence, is a contrived fantasy. It finds virtually no support even from Mr. Siddiqi. To the limited extent that it does, I reject Mr. Siddiqi’s evidence as well. I believe S., and totally reject the evidence of Mr. Bohorquez about the events in the car. There was no conversation about the sexual things S. liked and didn’t like beyond the simple reference to rough sex. There was no discussion about limits or boundaries and S. did not know nor suspect that sex was on the agenda. She thought that she was just going to hang out with Mr. Bohorquez and Mr. Siddiqi. And when they got to Mr. Bohorquez’s residence, she still thought that they were going to watch a movie or something, and then she would go home. She testified that she was not attracted to either man.
26I conclude that S. was a naïve, open and trusting young woman who was oblivious to the risk of being with Mr. Bohorquez and Mr. Siddiqi. She did not want to engage in sex with either man, and did not have any conversation with them that could be interpreted otherwise.
The Basement
27When the offenders and S. got to the basement of Mr. Bohorquez’s residence, there was no real discussion about what they were going to do. They went into the basement and sat on the couch. S. was asked if she wanted to help the two men record a song. She was not interested, and giggled it off. She was offered a drink, but took only a sip. She was offered hash oil, but declined. She said in examination-in-chief that Mr. Bohorquez told her that if she ever needed guns or drugs, he could provide them. This made her feel a little uncomfortable. She was a little worried, and didn’t feel safe. She was reminded in cross-examination that in her first statement to police, she said that the guns and drugs offer was made in the car. She agreed that that must be correct, and that it was said after the comment about rough sex, but that she thought that it was repeated in the basement. In any event, she testified that she certainly thought of it again in the basement.
28She told the two men that she was tired and couldn’t stay too long. She considered leaving but had no way home, didn’t know exactly where she was and didn’t think she had a choice. She considered asking the two men to take her home, but was too uneasy, and didn’t want to escalate things. Given the mention of guns and drugs, she thought the two men could have been more dangerous than they appeared. This comment started to make her feel uncomfortable, caused her to be afraid and made her not want to say what she was thinking. She never said she wanted to have sex with them, and they never said they wanted to have sex with her. Nor was she ever of two minds about any of the sex.
29After the drink, Mr. Siddiqi began rubbing her shoulders. While she was not initially opposed to him rubbing her shoulders, she said that she was not really okay with any of it, although neither she nor Siddiqi said anything about it. Nor was there any mention of any video recording. She undid her cropped shirt or bandeau to permit him to massage her back, and he did so. She was uneasy at the time, and didn’t want anything more than the massage.
30S. continued that while she was lying on her front being massaged by Mr. Siddiqi, Mr. Bohorquez slid the straps of her bandeau off her shoulders and pulled it out from under her. She was not okay with her top being removed, and from that point on was no longer okay with the back rub. Mr. Bohorquez then took her pants off, and as she lay on the couch face down, the two men started massaging her butt and vaginal region. They did not ask if they could remove her pants, and she did not say anything because she remembered the guns and drugs comment, and she was scared and felt trapped. She felt taken advantage of and abused, and was worried that she would not be able to get home safely. She testified that, in her past experience, men who were interested in her would often just blow up and get angry with her if she said that she didn’t like them or that she didn’t want to do something. She didn’t object because she felt that violence might be occasioned on her.
31Mr. Bohorquez and Mr. Siddiqi testified to somewhat different versions of these events. I will not summarize them, but will simply say that I accept the totality of S.’s evidence about this part of the evening. There was an obvious and overwhelming power imbalance at play. S. was alone in a basement with two older men who were bigger and undoubtedly stronger than her, certainly collectively, and who simply proceeded to touch her sexually without pausing to ask permission.
32Initially, unbeknownst to S., and obviously entirely without her consent, much of the remaining events of the evening were video recorded by Mr. Bohorquez and Mr. Siddiqi, so that they could have a souvenir of the events to use for masturbation. As a result, what took place from this point forward is largely not in dispute, except for some of the words spoken, and some of what Mr. Siddiqi in particular said he did not hear.
33After a while the men directed her to get up and dance. Although she didn’t want to, she did what she was told to do. Mr. Bohorquez then bent her over a table and began hitting her on the buttocks with a belt. She felt sick and frantic. She was in fear and said nothing. She felt that they were doing something worse than sexually assaulting her – they were physically hurting her. She remembered Mr. Bohorquez licking her vagina, while she performed oral sex on Mr. Siddiqi.
34S. didn’t want to do any of this, or have any of this sexual contact, but what went through her mind was to try to get through it as quickly as possible. She tried to get them to ejaculate quickly so that she could get out of there. For example, she began to moan, trying to make it seem that she was enjoying herself. She smiled and tried to show passion for the same reason.
35After this, she remembered lying on her back on the couch, while one of them penetrated her vaginally, and the other penetrated her orally. She was being held down, and one of the men held her throat and spit in her mouth while the other man’s penis was inside her. At this point, she was losing her strength and started to give up on getting away. She testified that she felt like she was becoming “a crumpled mess on the ground” because she couldn’t take what was happening any more. She testified that, at one point, she was asked to say hi to Ivan. She had no idea who Ivan was. It turns out that Ivan is one of Mr. Bohorquez’s cousins.
36When S. was shown the video clips, she said that she was never asked if she wanted to do what was being done to her, and never wanted it. She was never asked if she wanted to be slapped in the face or have Mr. Bohorquez spit in her face, and she never wanted it. To the contrary, she felt humiliated by this conduct. While she initially hoped that if she went along with them she would eventually get out, she lost that hope, and began to care less about what would happen to her. She also said that when Bohorquez performed anal sex on her, he penetrated her “all the way.” Mr. Bohorquez never asked her if he could perform anal sex on her, and she did not want him to.
37After being penetrated anally by Mr. Bohorquez while Mr. Siddiqi’s penis was in her mouth, she was told by Mr. Bohorquez to “suck my fucking dick … you don’t need time to recover … suck that ass off”. Mr. Bohorquez forced her face onto his penis to perform fellatio while his hand was on her head, and S. started gagging. Mr. Bohorquez then slapped her face and said that he wanted to make her mascara run more. She turned her head away, and Mr. Bohorquez spit in her face and rubbed his saliva all over her face. Mr. Siddiqi began to massage her vagina while Mr. Bohorquez rubbed his penis on her chin. All of this happened in about a two-minute period, after which S. testified that she had almost given up, felt terrible, horrified and totally humiliated. The things being done were not her idea whatsoever, and she said she felt she was being used as an object for the pleasure of Mr. Bohorquez and Mr. Siddiqi, with no say in anything.
38I do not propose to go much further with this graphic description of the sexual assault, but it is important to note that while S. did not actively resist the sexual onslaught of Mr. Bohorquez and Mr. Siddiqi for much of the time, things changed at the point when, as she explained, she had almost given up. At one point, when S. had been placed on top of Mr. Bohorquez and he was penetrating her, she said, “No, please take me home right now.” She repeated this several times, to no avail. Mr. Bohorquez testified that he took these words to be an invitation to try harder. The onslaught continued despite S.’s words and tears, ending only when both men had ejaculated on her face.
39In his defence, Mr. Bohorquez asserted that most of the sex with S. was consensual, in accordance with their prior agreement, and while it appears that some of the sex near the end of the events was non-consensual, he believed that it was consensual because of their agreement that there were no boundaries and “no” meant “yes.” I reject this assertion in its entirety. I am satisfied that there was never any consent to sex, and that Mr. Bohorquez never believed there was. To be clear, there was never an agreement between Mr. Bohorquez and S. that no means yes, and in any event such an agreement could never be meaningful without a safe word – a means for the apparently protesting party to withdraw from the deal. Mr. Bohorquez never thought of this problem when he concocted his explanation. He was, as I have said, a sexual predator who felt entitled to sex with women, rough sex, and sex perpetrated with a male friend joining in, completely indifferent to whether or not consent was given.
40Mr. Siddiqi, for his part, testified that S. was consenting to sex up to the point when she said no, and in any event he honestly believed that she was consenting. He said that he never heard her say no, and so continued to believe that she was consenting even when she was not. I confess that I found Mr. Siddiqi’s position puzzling. He did not claim that S. ever consented to sex with either man in the car, or at any other time. There was no verbal consent when he fondled her breasts, or to any of the escalating sexual activity. He could point only to her speaking openly about sex in the car, her permitting him to rub her shoulders in the car, her unbuckling her top to permit him to rub her back in the basement, the fact that she didn’t protest or resist when he did various sexual acts to her and that he thought that she appeared to be enjoying some of the sexual acts.
41This last position flowed from some particularly humiliating cross-examination of the complainant by Mr. Siddiqi’s counsel. S. had to endure being present in a courtroom while a video was played depicting her being sexually assaulted by two men. Worse, she had to relive this experience while the men who assaulted her and a courtroom full of people watched the video. Worse still, she was forced to answer questions about what was taking place at specific moments as segments of the video were played repeatedly, sometimes freeze-framed. Worst of all, she was asked several times if she was having an orgasm at certain points in time in the video, all in support of Mr. Siddiqi’s claim to having an honest belief in consent. I am content to say that absolutely nothing in the video undermines my certainty that S. never consented to any sexual activity with the offenders.
42Mr. Siddiqi also testified that in the latter parts of the video, when no observer could imagine that what was taking place was consensual, he was unaware of the absence of consent because he somehow didn’t hear S.’s words that can plainly be heard on the video that belie any possibility of consent, and did not observe the obvious signs that S. was not consenting. He also said that S. agreed to have the video end with the offenders ejaculating on her face. Even Mr. Bohorquez did not make such a disingenuous claim. Mr. Bohorquez testified that the two offenders agreed to end the video in this fashion, but that S. was not part of this agreement. I disbelieve Mr. Siddiqi’s evidence about not hearing S’s protestations, about not observing that S. was clearly not consenting to sexual activity and about her agreeing to the offenders ejaculating on her face.
43To be clear, I have made all of the above findings of fact that are either explicit or implicit in my discussion of the evidence on a beyond a reasonable doubt standard. To be even clearer, I am satisfied beyond a reasonable doubt that S. never consented to sexual relations of any sort with either Mr. Bohorquez or Mr. Siddiqi, and that neither offender ever had an honest belief that she did consent to any or all of the sexual activity with either of them.
44I would have reached this last conclusion without reference to the recent decision of the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, which was released months after the jury’s verdict in this case. But the decision in Barton confirms me in this view. In Barton, the Court clarified that in order to make out the defence of honest mistaken belief in consent, which should now be referred to as the defence of honest but mistaken belief in communicated consent, the accused must have an honest but mistaken belief that the complainant actually communicated, whether by words or conduct, her agreement to engage in the sexual activity with the accused. The question becomes whether the accused honestly believed the complainant effectively said “yes” through her words and actions.
45Both offenders advanced the position on sentencing that while the jury was necessarily satisfied beyond a reasonable doubt that at certain times the offenders did not have an honest belief that she was consenting, that did not preclude the possibility that at other times, most logically before the last part of the encounter, they did have an honest belief in consent, and that I should not be satisfied beyond a reasonable doubt that they did not.
46Recognizing the constraints of Barton, counsel for Mr. Bohorquez reminded me that S. testified that as the sexual assault progressed, in an effort to get the encounter over with as quickly as possible, as can be seen in the video, she began to moan in an effort to make it seem that she was enjoying herself. Counsel argued that in observing this play-acting, Mr. Bohorquez could have had an honest belief at this particular point that S. was consenting. This echoes the rather distasteful argument made to the jury by counsel for Mr. Siddiqi in respect of both consent and honest belief in consent that “the body does not lie.” The fatal flaw in this argument is that these supposed badges of consent arose well after the sexual assault had commenced. I reject the argument in its totality.
47Of course, a woman can change her mind about consent. Without question a woman can initially consent to sex, and in the course of a sexual encounter, withdraw her consent. But counsel here are advancing the opposite – that in the course of a non-consensual sexual encounter, a criminal sexual assault, a woman can change her mind and give consent, or at any rate an accused can honestly believe that she has. The proposition that in the course of being sexually assaulted, a woman can change her mind and consent, cannot be accepted. The notion that the law might permit the conduct of a man who is committing a sexual assault to become lawful because of an honest but mistaken belief that the victim has changed her mind and communicated her consent is too far a stretch. Having removed S.’s clothing and proceeded to penetrate her sexually in a variety of ways without her consent, and without an honest belief that she had communicated consent, the offenders forfeited any right to subsequently acquire an honest belief in consent that cleanses their subsequent sexual activity with her. But in any event, I am satisfied beyond a reasonable doubt that neither offender ever had an honest belief that S. was consenting.
48I conclude by saying that Mr. Bohorquez was clearly the leader in this crime and the more aggressive and active predator. Counsel for Mr. Siddiqi argued that but for his involvement with Mr. Bohorquez, Mr. Siddiqi would never have done this. I think that it is more accurate to say that but for his involvement with Bohorquez, Siddiqi might never have had the courage to do it. The fact is that Mr. Siddiqi was an enthusiastic participant who blindly sought to emulate Mr. Bohorquez.
The Impact of the Offence on S. and her Family
49S. was very brave to come to court, face the offenders, and endure the humiliation of living through their sexual assault of her recorded on video. She was even braver to return, stand in the well of the court, face the offenders once again and describe the impact of this crime on her. That impact has been devastating. It has changed her life. I also heard from S.’s mother and her mother’s partner, and have read the Victim Impact Statement of S.’s father.
50S. said that following the sexual assault, she did her best to cope with heavy emotional trauma, but she became mentally and physically tired, had physical symptoms of depression, lost her appetite and lost weight. She moved out of her apartment and back home to live with her mother in Oshawa out of fear of the offenders, who knew where she lived. She lost her job when she took time off. When she returned to university for her second year, she suffered uncontrollable, realistic flashbacks. She tried to supress these thoughts and feelings but she missed a lot of classes due to an inability to motivate herself.
51She remains wary of men she doesn’t know and groups of strangers. She has been forced to re-evaluate her feminist stance that women are equal to men in every way, particularly in terms of self-expression, including being able to dress as they like without it being seen as indicative of sexual experience. She is now extra cautious when walking by herself, even in daytime, and she feels that she should not have to live her life this way.
52As this trial approached, she fell into a deep depression, and felt that life was unbearable. She dropped out of school, quit her job and had to be dragged out of bed. She isolated herself, cried constantly, had anxiety-driven panic attacks and attempted to commit suicide. She has recently been diagnosed with post-traumatic stress disorder and has a long journey to recovery ahead.
53S.’s mother described her daughter as formerly being young and innocent, with the idea that she could change the world by giving everyone a chance. She lived in a world of hope, and believed in hard work, reward and justice. These dreams and visions have been ripped from her, leaving her shattered. She has re-evaluated how she sees people and the world. Her family has done its best to help her to stand again. Her mother and her mother’s partner spoke eloquently of their commitment to supporting S., but also the toll this has had on them.
54S.’s mother’s partner described the nights when S. would come into her bedroom in the middle of the night to tell her about her worries for her safety. She would take her back to her bedroom and spend time talking, hugging and crying with her until S. was able to get back to sleep. She observed that S. was cutting herself and was seriously contemplating suicide. After S. returned to school, she called home one night to say that she had overdosed on her antidepressant medication because it wasn’t working. She was taken to the hospital by ambulance where she recovered.
The Offenders
Mr. Bohorquez
55Mr. Bohorquez is now 32 years old. He is a Canadian citizen and was born and raised in Toronto. He has no criminal record, although he was found guilty of possession under and obstructing justice in 2009, but was granted a conditional discharge and placed on probation for one year.
56Mr. Bohorquez was the eldest of three children, one of whom is deceased. His father was a Vietnam War veteran who drank heavily, yelled a lot and took his stress and anger out on his children. In particular, he physically abused Mr. Bohorquez when he was growing up. His parents divorced when he was 16. He is very close with his mother, sister and his nephew.
57Mr. Bohorquez graduated from high school, completed a two-year college programme in one year and attempted to complete a university economics programme over a seven-year period, but didn’t finish it. He says that he struggled in school with a learning disability. Prior to being taken into custody, Mr. Bohorquez lived with his mother and his pregnant fiancée, whom he has been with for two years. Both his mother and fiancée strongly support him, as do other members of his family. Unfortunately, based on their comments to the author of Mr. Bohorquez’s Pre-Sentence Report (“PSR”), neither of them appears to fully recognize his criminal responsibility. Mr. Bohorquez has successfully completed several life skills programs while in custody.
58Mr. Bohorquez worked as a mechanic before entering college, as a bouncer at a nightclub and subsequently as an acting extra. The offender has a recording studio in his mother’s basement where he brings artists to record music, but he has never been able to make a living from this, and does it as a hobby. He has been employed as a bank teller since July 2016, but has been on a leave of absence because of a house arrest bail condition. No explanation has been given for his not seeking to review the bail order to permit him to work. His employer does not know about this offence, and his fiancée believes that he has quit his job.
59Mr. Bohorquez told the author of his PSR that he never stops thinking about the pain he has caused to S., that he should have been more sensitive to her and that he had no idea that he had “crossed a line.” However, the PSR author concluded that Mr. Bohorquez does not accept responsibility for this offence, and provided numerous explanations for his actions.
60Mr. Bohorquez disclosed that on the day of the offence, he spoke to seven or eight women, including S., by cellphone in an effort to have sex with “someone,” or more than one person if they were willing. He said that he would actively seek out women to engage in sexual activity with him and Mr. Siddiqi while on public transit, driving or at a bar. While this conduct is not of itself illegal, it exemplifies the sort of aggressive sense of entitlement exhibited by him in the commission of this offence.
61Mr. Bohorquez said that he began objectifying women when he was in grade 12, and treated them poorly, thinking that this would attract women. He said that he began to resent women after a bad break up in his early 20’s, and began engaging in reckless sex. This made him feel like a man and gave him a sense of accomplishment. Mr. Bohorquez said that he was attracted to younger females of legal age, and enjoys engaging in rough sex and dominating his partner. At the time of the offence, Mr. Bohorquez was interested in pornography depicting rough sex, threesomes, orgies and “swinging”, and watched it daily. He thought about and wanted sex all of the time.
62Mr. Bohorquez thinks that he may have been addicted to sex in the past, but now views sex as sacred and wants to have it only with his current partner. He claims to no longer watch any pornography. Although he is still interested in threesomes and rough sex, he claims that he no longer engages in these types of sexual practices.
63When asked about his willingness to attend for Phallometric Testing and for counselling at the Centre for Addiction and Mental Health (“CAMH”) Sexual Behaviour Clinic, he replied that he doesn’t feel that he needs this type of treatment or counselling at present. He feels that he previously had concerns regarding sexual behaviours, but he is doing fine now. The offender did say that the court proceedings have had a negative effect on him, and he has had a hard time sleeping. His family doctor has prescribed medication to help him sleep, and has also referred him to a psychiatrist in relation to other aspects of his life, but not in relation to his sexual conduct.
64After a period of delay occasioned by a health issue in relation to counsel for Mr. Siddiqi, a sentencing hearing was scheduled for March 18, 2019. At 6:41 a.m. on that date, counsel for Mr. Bohorquez forwarded to me and to Crown counsel a psychiatric report prepared for Mr. Bohorquez by Dr. Carolina Vidal. His counsel had only received the report late the night prior to the scheduled sentence hearing. Crown counsel asserted their right to cross-examine the psychiatrist, and the hearing had to be adjourned.
65I admit to having been troubled by the report when I first read it, for several reasons. First, the report is focussed on Mr. Bohorquez’s assertion of a history of depression. I had not heard previously that he has a history of depression. The PSR discloses that he experienced trauma as a result of suffering abuse at the hands of his father, and that he struggles with the loss of his brother who died from a drug overdose in January 2017. However Mr. Bohorquez told Dr. Vidal that he had felt sad all of his life, and has had a severe history of trauma as a result of childhood physical abuse, bullying in school, sexual trauma at 14, which I have not previously heard about, as well as the effect of severe eczema as a teenager.
66Second, Dr. Vidal appeared to view this offence as attributable to substance abuse. She reported that he coped with his depression and trauma by using marihuana daily for 14 years, in addition to mushrooms, hash oil, “Molly,” alcohol and, lately, cocaine. He told Dr. Vidal that he experiences paranoia and grandiose ideation after using cocaine. She said that he reported heavily using substances, including cocaine, in the six-month period prior to this offence, and described symptoms of mania and psychosis at the time of the incident, as well as being hypersexual. For example, he was frantically texting women for the purpose of having sex and right after the incident he went looking for more women to have sex with. She said that he had only used cocaine three times prior to the offence, but, he told her, his judgment was completely impaired, as was his insight into his symptoms.
67While the description of Mr. Bohorquez’s hypersexuality, as Dr. Vidal labelled it, aligns with his activities on the day of the offence, I was very skeptical of Dr. Vidal’s suggestion that he was suffering from mania and psychosis, and that this was attributable to drug use.
68I note, first of all, that what Mr. Bohorquez told Dr. Vidal seems inconsistent with his evidence at trial. The subject of drug use arose at trial because of the evidence that Mr. Bohorquez offered hash oil to S. when they arrived at his residence. He said that he got it from his brother, who was a drug abuser and used cocaine as well as marihuana. Mr. Bohorquez said that he tried to discourage his brother from his life style, didn’t know who provided drugs to his brother and didn’t know who sold drugs in his neighbourhood. Mr. Bohorquez denied using drugs other than marihuana, and attributed his interest in reckless sex largely to the bad break up he had been through.
69What Mr. Bohorquez told Dr. Vidal about his drug use is also inconsistent with what he told the author of his PSR. When asked about substance use by the author of his PSR, he told her that he used to smoke marihuana more frequently in 2016, but denied use of illicit substances at present. He thought that he used marihuana as a result of peer pressure, but was not sure that it had a negative impact on his life at the time. He made no mention of ever using cocaine. Nor was drug use one of the several explanations he gave for committing this offence to the author of his PSR. On the contrary, he told her that he engaged in reckless sex because of a bad break up with a woman, wanting to feel like a man, giving him a sense of accomplishment and perhaps having an addiction to sex in the past. Mr. Bohorquez’s description of substance use to the PSR author is a far cry from the paranoia, grandiose ideation, mania, psychosis and hypersexuality that he described to Dr. Vidal.
70This brings me to my third concern about the psychiatric report. The circumstances of the offence and the PSR each give rise to concerns about Mr. Bohorquez’s attitudes towards women and sex, at the very least. While Dr. Vidal made recommendations for the treatment of Mr. Bohorquez’s depression, she had nothing at all to say about sexual issues.
71Considerable light was shed on the concerns I had with the psychiatric report when Dr. Vidal testified. I will say immediately that I was impressed with her professionalism and her candour. Dr. Vidal is a highly qualified psychiatrist. She has been a staff psychiatrist at St. Joseph Health Care Centre as well as at several other institutions and is a clinical lecturer at the University of Toronto and other universities. She is currently a sole practitioner in private practice. The offender was referred to her by his family doctor after he was found guilty, but before his sentencing, for a psychiatric assessment and recommendations for treatment. She had four one-hour sessions with him.
72Unfortunately, the referring physician did not tell Dr. Vidal anything about this sexual assault, or that Mr. Bohorquez had been convicted of it. Dr. Vidal was unable to establish a rapport with Mr. Bohorquez during their first two sessions, and Mr. Bohorquez did not disclose the sexual assault conviction to her until the end of the second session. He elaborated a bit more in the third session. Dr. Vidal was only given a synopsis of the Crown’s case after the fourth session. During her sessions with Mr. Bohorquez, he only told her that he hurt someone and felt guilty about it. He told her that he and a friend had sex with a woman at his house and that in the course of the sex, she didn’t want it to continue and he failed to ask her consent to continue. That was the entire information that Dr. Vidal was given about the offence and the circumstances leading up to it.
73Dr. Vidal reiterated that Mr. Bohorquez told her about his history of drug use, which resulted in him becoming hypersexual during the six-month period prior to this offence, and having impaired judgment and insight.
74Dr. Vidal accepted Mr. Bohorquez’s assertion that his hypersexuality existed only for a six-month period and was the result of his drug abuse. She was not aware that he told the author of his PSR that he openly used marihuana. Dr. Vidal was not aware that, in his evidence at trial, Mr. Bohorquez did not mention using any drugs before committing this offence, and in fact said that he did not know any cocaine dealers. Nor did he tell her what is plain from his text messages over an extensive period of time before the offence – that he had been hypersexual for much longer than six months.
75During cross-examination of Dr. Vidal, Crown counsel read text messages Mr. Bohorquez had sent to various women over an extended period of time, beginning in June 2015, and ending even after this offence in July 2016, when he was arrested. Counsel for Mr. Bohorquez admitted that these text messages were authentic. They disclose endless and frantic efforts to share his sexual desires with women and convince them to participate in them with him. Without going into any detail about them, they disclose an intense interest in extreme, rough and coercive sex, sexual slavery and the like. There is nothing in them that would prove that he was actually engaging in any unlawful sexual activity, but they clearly showed that he had an intense interest in violent sex. They also demonstrated that he had been untruthful with Dr. Vidal about the nature and extent of his hypersexuality, and the cause of it.
76Dr. Vidal said that if she had been aware of these texts and the other information read to her by Crown counsel, she would have recognized a reliability issue with Mr. Bohorquez. She would have questioned everything he told her, and would have reached an entirely different conclusion about him. She now realizes that his grandiosity and hypersexuality had gone on for years, and might have had nothing to do with drugs. She said that the information that she had now been made aware of raised concerns about a preference for coercive sexual conduct. She still would have diagnosed him as clinically depressed and suffering from trauma as a result of his father, but she would have recognized the need to look for other diagnoses. Sexual deviance was outside her expertise, but she said that he needed to be assessed by an expert in sexual disorders, and would have referred him to the Sexual Disorder Clinic at CAMH.
77When asked whether he wished to address the Court before being sentenced, Mr. Bohorquez expressed regret at what he did to the complainant and her family, and acknowledged that he had lived life wrong, driven by his ego and allowing his lower nature to take over. He engaged in reckless acts and made the biggest mistake of his life. He said he is sick to his stomach when he thinks of the man he was becoming. He said he had squandered his potential and deluded himself with drugs. He now sees clearly and yearns to repair himself. He has found a better life with his fiancée, and looks forward to that life. He thanked Dr. Vidal for helping him understand himself better. He hopes his pain and suffering is some sort of restitution for the victim. He said that he is so sorry, doesn’t deserve forgiveness and knows that the sentence imposed on him has to be effective.
78While I acknowledge the importance of Mr. Bohorquez’s apology and expression of regret, there was something missing in this speech. He acknowledges that he did wrong, and hopes to do better, but exhibits no insight into why he became engaged in his dangerous behaviour and has no plans to address any underlying causes. He imagines that Dr. Vidal helped him understand himself, but she acknowledged that she did no such thing. He needs to accept that he needs help, and open himself to receiving it.
Mr. Siddiqi
79Mr. Siddiqi is now 36 years old, and is a Canadian citizen. He was born in Pakistan, and is the younger of two siblings. His father and mother separated before he was born, and he immigrated to Canada with his mother and sister at the age of five. He describes his childhood as a happy one, but one involving financial challenges and frequent moves in search of affordable accommodation and an absence of emotional support at times as a result of the employment and educational challenges of a single mother. Nonetheless, Mr. Siddiqi felt loved and supported by his mother.
80Mr. Siddiqi’s teenage years were emotionally difficult. He had feelings of loneliness and says that he likely battled depression, but did not understand his emotional state. He was tormented by his abusive older sister who caused him emotional damage. He says that he left school after completing grade 11 due to the impact of feeling anxious and depressed and having low self-esteem. He held employment as an usher, janitor and life guard until he was accepted into the Fine Arts programme at York University in 2007 as a mature student. He gave up his studies in third year due to financial and educational difficulties.
81Mr. Siddiqi began tutoring at private music schools in about 2005, but gave up this employment in 2016 as a result of these charges. He currently receives social assistance. Prior to being taken into custody, he resided with his mother, who provided financial support to him, while he maintained the household and provided care to her. He is estranged from his sister, who now lives in Pakistan.
82Mr. Siddiqi was assessed with possible PTSD and a possible anxiety disorder in 2016 at CAMH. His recommended plan of treatment involved a medication regime and Cognitive Behavioural Therapy under the direction of a psychologist. He declined medication, and, after submitting to five assessment sessions, has failed to pursue further assessment or counselling.
83Several letters of support were filed on behalf of Mr. Siddiqi. He has the strong support of his mother, of a woman with whom he is in a committed relationship, and of several friends and associates, who speak of a gentle, sensitive, compassionate and supportive individual, a description quite at odds with his participation in this offence.
84Mr. Siddiqi has shown little insight into his behaviour. He told the author of his PSR that he regrets his involvement in this offence and its impact on S., but essentially maintains his innocence. He continues to justify his behaviour on the basis that, according to him, S. initially did not indicate an aversion to participating in sex, and later he did not hear her protests because of the loud music. He apologizes for not being perceptive enough, and accepts that masturbating while watching Bohorquez “take” S. against her will was shameful.
85When asked whether he wished to address the Court before being sentenced, he expressed tremendous remorse and shame for his actions, and shame and sadness for the pain he has caused to so many lives. He apologized for the resources and time “wasted” on his trial. He has used the time he has recently spent in custody to evaluate himself as a person. He has sought out resources to upgrade his skills, better himself and to be a positive contributor to society. He has taken courses, spoken to social workers and other inmates, and been inspired to seek a purpose-driven life, to learn where he went wrong and to go deeper into himself. He is actively seeking programs to repair the damage he has caused and permit him to “give back”. He has learned his lesson well, will never make this sort of mistake again, and has hope. He feels he deserves what he is going through, and is taking steps to be accountable. He hopes one day to be able to educate young people.
86I was impressed by these remarks. While I am still unconvinced that Mr. Siddiqi has insight into what he did wrong, or has taken the steps necessary to gain that insight and confront his underlying issues, I am convinced that he is genuinely determined to do better. His positive attitude to self-improvement and helping others is admirable. He has very real prospects for rehabilitation.
The Positions of the Parties
87Crown counsel recommended a sentence of eight to nine years for each offender, less credit for pre-sentence custody, as well as certain ancillary orders.
88Counsel for Mr. Bohorquez recommended a sentence of four years less credit for pre-sentence custody.
89Counsel for Mr. Siddiqi recommended a sentence of 30 months, less credit for pre-sentence custody and for time on strict judicial interim release terms, followed by three years of probation.
Analysis
90In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm which criminal activity brings to our community. In this case, I must emphasize denunciation and deterrence, both general and specific.
91I must also take into consideration the sentencing principles found in s. 718.1 and s. 718.2 of the Criminal Code. Section 718.1 of the Criminal Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, I note that Parliament has seen fit, appropriately in my view, to create separate offences for certain, particularly serious categories of sexual assault, and to provide for enhanced punishment for these offences. As a result, while the maximum punishment for most sexual assaults contrary to s. 271 of the Criminal Code, if prosecuted by indictment, is 10 years, the offence of sexual assault with another person contrary to s. 272(1)(d) of the Criminal Code is exclusively an indictable offence, and carries a maximum punishment of 14 years. This makes the offence of sexual assault with another person an inherently more serious offence than sexual assault, and diminishes the precedential value of sentences imposed in most other sexual assault cases.
92As for the degree of responsibility of the two offenders, it is very high in each case. They were each adults who participated of their own free will in an egregious offence. That said, Mr. Bohorquez was clearly the instigator, planner and facilitator of the offence, took the lead in bringing it about, and participated more aggressively for a more prolonged period than did Mr. Siddiqi, albeit in part because Mr. Siddiqi ejaculated prematurely and, despite his best efforts, it took quite a while for him to be physically capable of re-engaging in the crime.
93Moving to s.718.2, it enumerates aggravating and mitigating circumstances that increase or decrease the appropriate sentence, some of which have application here, and sets out some additional sentencing principles.
94By way of mitigation, both offenders are effectively first offenders, both have come from difficult backgrounds and both have expressed remorse, although I don’t place too much emphasis on their expressions of remorse in either case.
95In respect of Mr. Bohorquez, his apology seemed more about self-pity than anything else. He lacks insight into his offence, he lacks insight into himself and he has not shown any inclination to seek the help he needs to deal with his problems. His totally unreliable reporting of his problems to Dr. Vidal is most troublesome. All of this leaves me uncertain about his prospects of rehabilitation, although his being in a committed relationship provides me with a ray of hope.
96In respect of Mr. Siddiqi, I don’t place too much emphasis on his expression of remorse because he continues to lack insight into the offence he so clearly committed. That said, I consider him to be sincere in his positive attitude about the future and his desire to understand himself better and give back to the community. I sincerely hope he is able to maintain this. I doubt that he would ever be involved in an offence like this one again, provided he is able to keep himself free of negative influences. His desire to emulate Mr. Bohorquez at the time of this offence reveals a character weakness that he must take pains to overcome.
97As for aggravating circumstances, there are many in the commission of this offence. The fact that on the day of the offence the offenders were making concerted efforts to lure a victim for sex with the two of them, regardless of consent, is one such aggravating circumstance. The on-going similar efforts of Mr. Bohorquez, in particular, over a lengthy period of time is another. The horror for S. of being sexually assaulted by two older, bigger and stronger men in a basement with loud and pounding music playing and in an area unfamiliar to her is highly aggravating. The prolonged period of time that the offenders exposed S. to abuse, abuse that escalated in its ugliness, including, as it did, forced fellatio that induced choking and gagging, as well as vaginal, anal and digital penetration, with no time for recovery between sexual acts, and culminating in both men ejaculating on her face, with an obvious dramatic impact on the deteriorating victim, is a particularly aggravating circumstance. Their failure to use condoms is still another. Their video recording of the offence, which the offenders planned to keep for the purpose of masturbation is another – raising fear in the victim that she might, and indeed did have to relive the degradation and humiliation of the sexual assault. The terrible impact of the conduct of the offenders on the life and mental and physical well-being of the victim and her family is heartbreaking and highly aggravating.
98Counsel placed before me a host of sentencing decisions in an effort to persuade me that they had identified the appropriate length of sentence for these offenders. These decisions are often difficult to reconcile, with sentences falling everywhere from two years to ten years. As is not unusual, these decisions are limited in their helpfulness, particularly because many of them were imposed for the offence of sexual assault, and not the “aggravated” sexual assault offence committed by these offenders. Nevertheless, I conclude from them that nothing short of significant penitentiary sentences are appropriate for the offenders in this case.
Disposition
99In my view, the appropriate sentence for Mr. Bohorquez is 7 years imprisonment, and for Siddiqi, 4 years imprisonment.
100Mr. Bohorquez’s imprisonment must be reduced by 186 days for 124 days of pre-sentence custody, and an additional 40 days for his lengthy period on judicial interim release for a total of 226 days, which I will round up to 8 months, resulting in a sentence of 6 years and 4 months.
101In my view, an appropriate sentence for Mr. Siddiqi is 4 years, less 161 days for 107 days of pre-sentence custody, and an additional 40 days for his lengthy period on judicial interim release for a total of 147 days, which I will round up to 5 months, resulting in a sentence of 3 years and 7 months.
102In addition I make the following orders in respect of both offenders:
- A primary DNA order pursuant to s. 487.051 of the Criminal Code
- A prohibition order pursuant to s. 109 of the Criminal Code for life
- A SOIRA order pursuant to s. 490.12 and s. 490.013(b) of the Criminal Code for 20 years
- A non-communication order with S. and with each other pursuant to s. 743.31 of the Criminal Code.
M. DAMBROT J.
Released: June 26, 2019
Court File No.: CR-18-10000033-0000 Date: 2019-06-26 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Eduardo Bohorquez – and – Qasim Siddiqi
Reasons for Sentence Dambrot J.
Released: June 26, 2019
1In finalizing these reasons, I realized that I made a mathematical error in this paragraph. It should have read, “In my view, an appropriate sentence for Mr. Siddiqi is 4 years, less 161 days for 107 days of pre-sentence custody, and an additional 40 days for his lengthy period on judicial interim release for a total of 201 days, which I will round up to 7 months, resulting in a sentence of 3 years and 5 months.” Unfortunately, I have already signed the warrant of committal. As a result, I am functus, and cannot correct the error. I have drawn it to the attention of the parties.
