Court File and Parties
COURT FILE NO.: CR-18-30000083-0000 DATE: 2019-05-06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KENNETH IGNACIO
Counsel: A. Kocula, for the Crown R. Luccisano, for Mr. Ignacio
HEARD: May 2, 2019
Reasons for Sentence
SCHRECK J.:
[1] Choices have consequences. On April 30, 2017, Kenneth Ignacio made a choice to ignore the wishes of a woman with whom he was engaging in sexual activity. He chose to have intercourse with her despite being told that she did not want to. That choice had and will continue to have severe and longstanding consequences for both of them. Some of those consequences are now beyond anybody’s control. Some have yet to be determined.
[2] Following a trial in this court without a jury, Mr. Ignacio was convicted of one count of sexual assault. This court must now determine the legal consequences of the offence he committed by imposing a sentence that is just and proportionate to its gravity and to Mr. Ignacio’s moral culpability. Determining what that sentence should be requires the court to balance different and sometimes competing objectives. The crime Mr. Ignacio committed has had devastating consequences for the victim and is of a type that occurs far too frequently. The sentencing objectives of denunciation and deterrence must therefore be given prominence. At the same time, Mr. Ignacio is a youthful first offender with positive antecedents and strong family support. The sentence that is imposed must also have regard for his prospects for rehabilitation.
[3] The following reasons explain the sentence that is being imposed.
I. FACTS
A. The Offence
[4] The facts of this offence are described in detail in my reasons for judgment: R. v. Ignacio, 2019 ONSC 1511. Briefly, Mr. Ignacio and the victim, S.H., who are both in their early 20s, met at a concert in April 2017. They developed an interest in each other and exchanged “flirty” text messages over the next few days. On April 30, 2017, Mr. Ignacio invited S.H. to a barbecue at the home of his cousins. When she arrived there, Mr. Ignacio was heavily intoxicated. When it was time to leave, S.H. offered to drive him home.
[5] Mr. Ignacio and S.H. stopped in a parking lot on the way to Mr. Ignacio’s home and both of them sat in the back seat of the car. They kissed, then Mr. Ignacio performed oral sex on S.H. and she performed oral sex on him. Up to this point, all of the sexual activity was consensual.
[6] When S.H. performed oral sex on Mr. Ignacio, he told her that it was “not working” and that he wanted to have intercourse with her. She replied that she would not have sex with him and that things had “already gone too far”. He attempted to persuade her by promising that he would not “come inside her”. She replied “I am not having sex with you, not now, not tonight, not ever”.
[7] At this point, S.H. was sitting with her back to the car door and her legs in front of her. Mr. Ignacio pulled her towards him by grabbing her knees, which caused her head to hit the arm rest on the door. Mr. Ignacio then began to forcefully penetrate her vagina with his penis, causing her pain. She told him to stop and hit him on the chest. He reacted by grabbing her hands and pushing them down beside her. She stopped resisting. Mr. Ignacio ejaculated inside her and then got up. Afterwards, Mr. Ignacio said “S., you didn’t really want that. I raped you.”
[8] S.H. immediately went to a pharmacy to purchase a “morning after pill”. Mr. Ignacio insisted on coming with her. Afterwards, she dropped him off and went home. The following day, she went to a hospital and contacted the police.
B. Victim Impact
[9] S.H. prepared a Victim Impact Statement (“VIS”), which she read aloud in court. In it, she described significant emotional trauma as a result of having been sexually assaulted. She became irritable and short-tempered with those around her. She developed fear and anxiety in her relationships with men. She had difficulty sleeping and suffered from depression. Fortunately, she was able to obtain therapy which assisted her in dealing with the trauma she had endured.
[10] It is clear to me from reading the VIS and observing S.H. in court that she is a strong and brave woman. She seems to have started the process of recovery and I am hopeful that she can continue.
C. The Offender
[11] A pre-sentence report (“PSR”) was prepared. Mr. Ignacio is currently 24 years old. He was born and grew up in the Philippines. He never had any contact with his biological father. His mother worked in other countries to support her family and Mr. Ignacio was primarily raised by his aunt and uncle. His family has always been and remains supportive of him.
[12] Mr. Ignacio completed high school and attended university in the Philippines. When he was 19 years old, he immigrated to Canada to join his mother and two cousins who had come here earlier. He is a permanent resident but not a citizen of Canada.
[13] Mr. Ignacio attended college in Canada and has a consistent work history. He is currently employed as a forklift driver but has an opportunity to move into a management position with his employer.
[14] Mr. Ignacio has no criminal record and there is no evidence of him having engaged in any conduct in the past similar to the offence he has been convicted of. He is currently involved in a romantic relationship with a woman who is aware of his conviction and who remains supportive of him.
[15] As his right, Mr. Ignacio continues to deny that he is guilty of the offence he was convicted of.
[16] According to the PSR, Mr. Ignacio does not believe that he has any substance abuse issues. He lacks insight in this regard. Mr. Ignacio is before the court because he became intoxicated to the point of blacking out and while in that state committed a serious criminal offence. It is unlikely that he would have made the choices that he did if he had not been drinking. Mr. Ignacio admitted as much during his cross-examination at trial. This is clear evidence that the consumption of alcohol has created significant problems in Mr. Ignacio’s life. He should seriously consider addressing this issue before it causes greater problems for him.
II. POSITIONS OF THE PARTIES
[17] As explained below, the Crown submits that the appropriate range in cases of this nature, even involving a youthful first offender, is a penitentiary sentence of two to three years. The Crown submits that there is nothing about this case that would take it outside that range and that a sentence within that range ought to be imposed.
[18] Counsel for Mr. Ignacio submits that the range is somewhat more flexible. While he accepts that a sentence that would be low enough to avoid any immigration consequences would be unfit, he submits that the immigration consequences must nonetheless be taken into account and that an 18-month sentence is appropriate.
[19] Counsel agree that there should be a number of ancillary orders, which are set out below.
III. ANALYSIS
A. General Principles
[20] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. Section 718.1 provides that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[21] The various sentencing objectives are often in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be inimical to the rehabilitation of the offender and vice versa. In such cases, the competing objectives must be balanced in a way that respects the principle of proportionality. There is ultimately no one correct way to achieve this balance, which is why sentencing judges are usually given a wide latitude in determining the appropriate sentence in any given case: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
B. Aggravating and Mitigating Factors
(i) Aggravating Factors
[22] While all sexual assault offences are serious, courts have traditionally viewed those which involve penetration of the victim as especially serious.
[23] The fact that Mr. Ignacio did not wear a condom is a significant aggravating factor. In addition to the trauma caused by the sexual violation, the victim had the additional trauma of the fear of becoming pregnant or contracting a sexually transmitted disease. In this case, it is only because of S.H.’s quick thinking in immediately obtaining the morning after pill that she was able to minimize some of this additional impact.
(ii) Mitigating Factors
[24] Mr. Ignacio is a youthful first offender. This is a significant mitigating factor: R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at paras. 2-5. As well, Mr. Ignacio has a supportive family, which also bodes well for his prospects for rehabilitation.
[25] Mr. Ignacio pleaded not guilty and continues to deny responsibility for the offence. The mitigating factor of remorse is therefore all but completely absent in this case. His denial of guilt is, of course, not an aggravating factor.
[26] I refer to remorse being almost completely absent in this case because it would seem that immediately after the sexual assault, Mr. Ignacio demonstrated some limited recognition of the wrongness of his actions. According to S.H., immediately after sexually assaulting her, Mr. Ignacio said “S., you didn’t really want that. I raped you.” In his testimony at trial, Mr. Ignacio denied saying this, but I accept that he did so. However, the mitigative effect of this, if any, is minimal.
C. Collateral Consequences
[27] Mr. Ignacio is a permanent resident of Canada. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) provides that if he is convicted of an offence for which the maximum penalty is greater than 10 years or if he is sentenced to a term of imprisonment of six months or more, he will be “inadmissible on grounds of serious criminality.” Mr. Ignacio’s counsel acknowledges that a sentence of less than six months would not be appropriate in this case. As a result, Mr. Ignacio is likely to be found to be inadmissible. Sections 64(1) and (2) of the IRPA provide that if he is found to be inadmissible, he is not entitled to appeal that finding to the Immigration Appeal Division on humanitarian and compassionate grounds.
[28] While it may be appropriate in some cases to adjust a sentence to avoid the impact of collateral immigration consequences, a court may not do so if the resulting sentence would be unfit in the circumstances: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 13-19. Counsel for Mr. Ignacio acknowledges that this is not a case in which the immigration consequences can be avoided. It does not follow from this, however, that the immigration consequences are irrelevant.
[29] How collateral consequences should factor into the sentencing calculus was explained by Moldaver J. in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:
Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.
Earlier, Moldaver J. had defined “collateral consequence” as “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”: Suter, at para. 47. This would include immigration consequences such as the deportation faced by Mr. Ignacio.
[30] The IRPA provides that as a result of the sentence that will be imposed on Mr. Ignacio, he is “inadmissible” and subject to deportation without a right of appeal on humanitarian and compassionate grounds. This means that the sentence imposed on him would have “a more significant impact” than would the same sentence imposed on a Canadian citizen. In my view, in these circumstances the principle of parity requires that this be taken into account in determining the appropriate sentence. This is not to avoid the immigration consequences, but to account for them.
D. The Range
[31] While counsel referred to several cases in their submissions, both agree that the case bearing the greatest factual similarity to this case is R. v. Garrett, 2014 ONCA 734, which was described as “a classic date-rape scenario” (at para. 16). As in this case, the offender and the victim knew each other. They engaged in consensual sexual activity which the victim indicated she did not want progressing to intercourse. As in this case, the offender ignored the victim’s wishes, forced her down and had intercourse with her against her will. The Court of Appeal set aside the 90-day intermittent sentence imposed at trial and imposed a sentence of 18 months, which was what the Crown had requested at trial. The Court stated that the 18-month sentence “should not be taken as a sentence within the appropriate or usual range”, noting that it was constrained by the Crown’s position at trial (at para. 23).
[32] The Crown relies on Garrett and other cases, including R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99; R. v. Lamure, 2019 ONSC 2144 and R. v. Stankovic, 2015 ONSC 6246 in support of its submission that a range of two to three years is applicable in this case.
[33] While I accept that the cases cited by the Crown are of assistance, I do not agree that they create a range that is dispositive of the result in this case. I come to this conclusion for three reasons. The first is that there are cases in addition to those cited by the Crown which suggest that the bottom end of the range may be somewhat lower: R. v. McKenzie, 2017 ONCA 128, 136 O.R. (3d) 614; R. v. Gordon, 2018 ONSC 6217; R. v. Diaz, 2017 ONSC 1883.
[34] The second reason can be found in the caution expressed with respect to ranges by Wagner J. (as he then was) in Lacasse, at para. 57:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.
See also R. v. C.S., 2018 ONSC 1141, 44 C.R. (7th) 341, at para. 83; R. v. Zachar, 2018 ONCJ 631, 366 C.C.C. (3d) 450, at paras. 19-24.
[35] The third reason is that while sentencing ranges take common aggravating and mitigating factors into account, they do not take collateral immigration consequences into account. This was made clear by Trotter J.A. in McKenzie, at para. 32:
The immigration status of an offender, a highly individualized circumstance, is not embedded or reflected in the sentencing ranges for various offences that have developed in this province over time. As Wagner J. noted in R. v. Pham, at para. 11, immigration consequences of a given sentence are neither aggravating nor mitigating factors. As such, immigration consequences are unlike other individualized factors that are generally considered when applying sentencing ranges.
In my view, it follows from this that the range must be adjusted when applied to offenders for whom there are significant collateral immigration consequences.
E. The Appropriate Sentence
(i) Period of Imprisonment
[36] In cases involving serious crimes of violence, and particularly sexual assaults, the objectives of general deterrence and denunciation must be given some prominence. However, other objectives, including rehabilitation, must nonetheless be taken into account: Thurairajah, at para. 41.
[37] There can be no doubt that this was a serious sexual assault requiring a substantial sentence of imprisonment. However, Mr. Ignacio is a youthful first offender. In my view, this brings him within the lower end of the usual sentencing range for “date-rape” sexual assaults. However, for the reasons expressed earlier, that range must be adjusted to account for the significant collateral immigration consequences Mr. Ignacio is facing.
[38] Having carefully considered the relevant sentencing objectives and the aggravating and mitigating factors, I have concluded that the appropriate sentence in this case is one of imprisonment in a reformatory for 20 months.
[39] As neither counsel has requested a period of probation, none is imposed.
(ii) Ancillary Orders
[40] As required by ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, Mr. Ignacio is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for a period of 20 years.
[41] In accordance with s. 487.051(2) of the Criminal Code, Mr. Ignacio is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.
[42] There will also be an order pursuant to s. 743.21(1) of the Code prohibiting Mr. Ignacio from communicating, directly or indirectly, with S.H. during the custodial portion of his sentence.
IV. DISPOSITION
[43] For the foregoing reasons, Mr. Ignacio is sentenced to imprisonment for 20 months. He is ordered to comply with the SOIRA for a period of 20 years, to provide a DNA sample, and to abstain from any direct or indirect communication with the victim while in custody.
Justice P.A. Schreck
