Court File and Parties

Court File No.: Toronto

Date: April 3, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andres Casilimas

Before: Justice Leslie Pringle

Heard on: September 17, 19, 26, 2012 and January 23, 2013

Reasons for Sentence released on: April 3, 2013

Counsel:

Ms. S. Cressman for the Crown

Mr. R. Covre for the accused Andres Casilimas

PRINGLE J.:

Conviction and Factual Background

[1] In this unusual case, I found that Mr. Casilimas had sexual intercourse with a woman on the ground outside M[…] Ave when she was too drunk to consent. I found that at the time of intercourse, Mr. Casilimas was wilfully blind to her irrational and intoxicated state, and had sex with her in any event. The reasons for my decision are set out in my judgement released in court on November 21, 2012.

[2] For the purpose of sentence, the relevant facts are that on May 28, 2011, M.L. had just learned that her boyfriend was engaged to be married to someone else. She decided to go out drinking and get drunk, and she remembered virtually nothing of what happened after her first few drinks. She did not recognize Mr Casilimas at trial, nor remember meeting him at the Comfort Zone on May 28th. At trial, she candidly admitted that she may have consented to sexual contact with him that night, she just didn't remember.

[3] In the circumstances, I am prepared to accept Mr Casilimas' evidence that he literally bumped into M.L. at the bar, and that they engaged in some consensual kissing. He said that she told him she wanted to have sex with him, and it seems reasonable to infer that it was M.L. who suggested their destination when they left together, since the taxi took them to her home neighbourhood.

[4] However, once in the neighbourhood I found that M.L. was disoriented and off balance, and when she lay down in the wet grass and purportedly wanted to have sex with him right there, Mr. Casilimas was wilfully blind to what he really knew: that she was behaving far too irrationally to be in any state to consent to sex. Indeed, even on Mr. Casilimas' evidence, M.L. passed out during intercourse moments later.

[5] Mr. Casilimas said the police arrived just around the time M.L. passed out. According to the police, she was unconscious and catatonic, with her pants at her ankles and her shirt pushed up to her shoulders. She was lying on the ground not moving, although her eyes were open. Mr. Casilimas was with her, and his pants were also down. At first, Sgt. Minor thought that M.L. was dead. It took some time to revive her, and she couldn't stand initially. She was confused, crying and whimpering, and didn't appear to be aware of the circumstances that the police found her in.

Sentencing Submissions and Comparative Jurisprudence

[6] The Crown submits that a sentence of 3 years is appropriate. The defence asks me to consider a sentence in the mid to upper range reformatory.

In R. v. Wells, 2000 SCC 10, the Supreme Court upheld a sentence of 20 months in jail for an aboriginal man who sexually assaulted an 18 year old woman in her bedroom while she was either asleep or unconscious from the effects of alcohol. The court found that the trial judge's conclusion that a conditional sentence would not meet the needs of denunciation and deterrence was reasonable.

In R. v. Rand, 2012 ONCA 731, the Ontario Court of Appeal upheld a 4 year sentence where the appellant and his companion each had intercourse with a 17 year old girl who had been drinking and was intoxicated at an open air concert. Notwithstanding that the girl said "no" repeatedly to the appellant, he engaged in vaginal and anal intercourse with her, as well as oral sex. After he had finished, his companion then had intercourse with her after she also said "no" to him.

In R. v. J.W.M., [2004] O.J. No. 1295 (S.C.J.), Justice Hill affirmed an 18 month sentence where the appellant took advantage of a young and naïve employee by having intercourse with her while she was unconscious and in his care due to extreme intoxication and vomiting. Justice Hill noted that "conditional sentences of imprisonment have, on occasion, been imposed for sexual assaults committed upon unconscious or semi-conscious complainants". However, in the circumstances of that case he found the trial judge was correct to impose the maximum jail sentence available where the Crown had proceeded summarily.

In R. v. Laz-Martinez, 2011 ONCJ 115, Cole J. sentenced the accused to 2 years in jail for having intercourse with an unconscious woman who had been a long time acquaintance. A friend had come into the room and witnessed the act and told the accused to stop, but the accused responded by asking him if he "wanted some too"; the accused only desisted after he had climaxed. A few weeks before the offence, he had attempted to kiss the complainant and undress her as she slept, and she had rebuffed him and told him to leave. Cole J. found that the history of sexual rejection, the unconscious state of the complainant, and the fact that the sexual assault took place in her own bed were aggravating factors.

In the unreported case of Gladstone Ferguson, released September 12, 2012, I sentenced Mr. Ferguson to 16 months jail, less pre-trial custody. The Crown sought the maximum sentence of 18 months for a summary conviction proceeding, and the defence submitted that 9-12 months was appropriate. Mr. Ferguson pleaded guilty to sexually assaulting his former common law partner on numerous occasions when she was sleeping and unresponsive, and took videos of the incidents. The offences did not involve intercourse but were a gross breach of trust and an egregious intrusion into the victim's privacy and bodily integrity, as Mr. Ferguson touched and manipulated her with his fingers for the camera. Mr. Ferguson had a prior record, including an assault on his partner. On the mitigating side, he turned himself in, pleaded guilty to avoid his former partner having to testify, and appeared to have some genuine insight into the baseness of his own conduct.

In R. v. San Salvador, [2007] O.J. No. 3352 (C.J.), the accused had sexual intercourse with a friend who was so intoxicated that she could not resist or speak. There was no planning to speak of, no gratuitous violence, no confinement or drugging and no lasting injury. Harris J. proposed a sentence of 10 months in what appear to have been exceptional circumstances because the accused was the sole custodial parent for an 11 year old child who could become a ward of the state if his father were to be incarcerated for a lengthy period. (In the alternative, Harris J. suggested an intermittent sentence followed by probation with house arrest, but I agree with Cole J. in Las Martinez, that subsequent case law from the Court of Appeal suggests that this kind of probation might not be available if were to be seen as a "disguised conditional sentence".)

In R. v. White, [2008] Y.K. No. 126 (S.C.), Glower J. undertook a comprehensive review of sentencing cases involving non-consensual intercourse with a sleeping or unconscious victim from various provinces. In the Yukon, he found a range of 12 months to 30 months, with the majority of cases imposing 12-16 months in jail. In Alberta, Saskatchewan and Manitoba, where the "starting point approach" to sentencing is often used, the courts generally imposed sentences in the 2-3 year range. In B.C. and Ontario where he noted that judges are less willing to embrace the "starting point approach", Glower J. found that nonetheless, the courts often imposed lengthy jail terms for these offences. In White, Justice Glower imposed a sentence of 26 months on an aboriginal man who had assured the intoxicated victim that she could trust him not be act inappropriately if she fell asleep in his bed. However, once she did, he attempted to have sex with her and refused to stop when she said no, causing an injury to her perinea region. Mr. White had a serious substance abuse problem, had no remorse, and was at high risk for further offences.

Analysis of Sentencing Factors

[7] In this case, I have found that M.L. was not actually unconscious at the time of intercourse began. However, for the purpose of sentence, the distinction is not of much moment, because the level of her intoxication was so great that she actually passed out during the act, and was in fact unconscious when the police arrived moments later.

[8] There are a number of obvious aggravating factors that dictate the need for denunciation and deterrence in sentencing here. Even though M.L. had consented to sexual activity earlier, had proposed sex at a hotel, and had taken Mr. Casilimas in a taxi to her neighbourhood, I found that at least once they got there, he was wilfully blind to the fact that her behaviour was obviously irrational and intoxicated. He took advantage of her and had intercourse with her when she was vulnerable and unable to make a voluntary and informed decision whether to have intercourse or not. Moreover, the act took place outside, on the ground, and in a humiliating situation where M.L. was exposed to public view with her pants down and her shirt up. Although Mr. Casilimas testified that he did not ejaculate during intercourse and pulled out as soon as M.L. passed out, he admitted that he did not use a condom.

[9] Mr. Casilimas has a prior criminal record which includes an offence of assault causing bodily harm approximately 13 years ago in 2000, and an assault some 10 years ago in 2003. Although the offences are dated, I agree with the Crown that his record demonstrates he is not of previously good character and had a record for violence in his twenties as a younger man.

[10] At the same time, the defence points out that there is a gap of 7 years from Mr. Casilimas' last entry in 2006. Since being released on bail in late 2011, he has been living with his father, (who is his surety), and there has been no suggestion of any breach. Mr. Casilimas now has full time employment as a framer, working in the construction industry. He is described by his co-workers as "honest, hard-working and trustworthy". He has a 12 year old son for whom he provides financial support.

[11] In these circumstances, I do not believe that Mr. Casilimas poses a danger to M.L. or to the public at large. Even at trial he seemed to have some insight into the wrongfulness of his actions, and agreed that there were logical questions he could have asked her about why they didn't go to a hotel as she had originally suggested, and testified that he regretted not doing so. On sentence, he apologized to M.L. for what had happened, and in my view, his remorse was genuine. I find there is real potential for rehabilitation here, and little likelihood of recidivism. In this case the charge and trial process seem to have had a very sobering and salutary effect on Mr. Casilimas.

[12] Luckily, there were no physical injuries to M.L.. She chose not to provide a victim impact statement, and advised the Crown that she just wants to get on with her life.

[13] This case does not have some of the more serious aggravating factors of aspects of breach of trust that were present in J.W.M., Ferguson or White, or the callous indifference of persisting with intercourse in the face of obvious protest as in Rand or a previous rejection as in Las Martinez. Unlike in Wells or White, I find that despite having a trial, Mr. Casilimas has shown remorse for his actions. Notwithstanding the record, there is a significant gap and current stability in his life, which diminish the concern of this factor.

[14] Therefore, taking into account these factors, I agree with the defence that the appropriate range of sentence for Mr. Casilimas is in the mid/upper reformatory range of approximately 15 to 18 months in jail.

Pre-Trial Custody Credit

[15] Mr. Casilimas was not granted bail on this charge initially, and spent approximately 6 months in pre-trial custody. He was released on strict conditions of bail in November 2011 with a $50,000 surety. During the time that he was on bail, he was then arrested for arrears of child support, including non-payment during the time that he was in pre-trial custody. The credit (or lack of credit) to be attributed to these pre-trial conditions is disputed. I will deal briefly with each.

[16] While in pre-trial custody at Maplehurst Detention Centre, Mr. Casilimas was held in protective custody due to the nature of the charge against him. This is a factor that can be taken into account in relation to the appropriate credit for pre-trial custody: see R. v. Barton, [2002] O.J. No. 4105 (C.A.) at para. 16; R. v. C.O.L., [2010] O.J. No. 2820 (S.C.J.) at para. 28; and R. v. Peterkin, [2003] O.J. No. 4403 (S.C.J.) at para. 41.

[17] Normally, I believe that protective custody or segregation would be a circumstance that would justify enhanced credit of 1.5:1 in accordance with s. 719(3.1) of the Criminal Code. Here, however, the evidentiary record regarding the conditions of Mr. Casilimas' incarceration was extremely sparse, and the Crown submitted that there was no information before the court to differentiate between the conditions of protective custody and general population custody. Indeed, the record showed that Mr. Casilimas got access to the same yard time each day as the general population, as well as access to a common area for over 8 hours a day. In the circumstances it's hard to find much support for enhanced credit. However, taking into account that there was some evidence of lockdowns and some additional hardship associated with his incarceration, I will give Mr. Casilimas credit for a slight enhancement for the time spent in protective custody.

[18] Since he was released on bail in late November 2011, Mr. Casilimas has been under strict conditions of bail where he has had to live with his father, consume no alcohol and obey a curfew of 7.30 pm. As Mr. Covre put it, Mr. Casilimas has spent his time on bail either working or at home. (His time on bail amounts to a total of approximately 16 months less 3 months incarceration for non-payment of child support from January 26, 2012 to April 24, 2012, see below). These 13 months on strict bail must be considered, and can be taken into account in the final sentence: R. v. Downes (2006), 205 C.C.C. (3d) 488, (Ont. C.A.). While there is no exact formula for crediting strict conditions of pre-trial bail, I am prepared to give Mr. Casilimas some credit for this time.

[19] Finally, Mr. Covre submits that I should take into account the fact that while on bail, Mr. Casilimas was arrested for non-payment of support during the time he had been denied bail, and spent an additional 3 months in jail. Section 719(3) of the Code states that a judge may take into account time spent in custody "as a result of the offence", however, credit can still be recognized for time spent in custody that was indirectly related to the offence. For example, in the case of R. v. Reid, [2005] O.J. No. 1790 (C.A.), the accused received bail on one charge, but was later detained on others that were subsequently withdrawn. On sentencing, the court recognized that strictly speaking, the detention was not time "as a result of the offence", but found that enhanced credit was appropriate on the basis that the pre-trial custody on the other charges was "relevant information" that should be taken into account pursuant to 726.1 of the Code.

[20] Here, I am prepared to give some, but not full, credit for Mr. Casilimas' time in custody for his default of support payments. Mr. Covre fairly acknowledged Mr. Casilimas already owed a substantial amount in support arrears in addition to the money that he failed to pay while he was held in custody on this charge. Moreover, it appears that the default judgement was rendered after Mr. Casilimas failed to attend for his hearing because he misdiarized the date, leading to the inference that the default time might well have been shorter if he had attended and explained the fact that some of the non-payment arose during a time that he was in custody on this matter. These factors militate against credit for this period in jail. However, I am prepared to take into account that there is an indirect link to this charge arising from his inability to pay at least some of his child support while in jail, and to recognize that this time underscores in a general way the hardship of Mr. Casilimas' circumstances while awaiting trial on the charge before me. Accordingly, I will give him partial credit for this time.

Final Sentence

[21] In determining the final sentence, the defence submits that any additional time in custody should be made intermittent to permit Mr. Casilimas to keep his employment and continue supporting his son. I agree that this is an appropriate consideration since keeping his job will benefit not only Mr. Casilimas, but also his son, as well as society in the long run.

[22] Calculating credit for the time already served at 7 months, time served for non-payment of child support at 1 month, and time on strict bail at 4 months, the maximum intermittent period of 3 months jail would bring the total sentence to one of 15 months. While at the lower end of the appropriate range, it's my view that this is a substantial jail term. In addition, Mr. Casilimas will be subject to the provisions of the Sex Offender Registry for the next 20 years, which is an aspect of sentence with considerable stigma and deterrent value. This is also a primary designated offence for DNA and I will make an order to this effect. All these factors speak loudly to deterrence and denunciation where advantage is taken of someone who is too drunk to consent.

[23] Therefore, taking into account the pre-trial credit, the sentence on April 3, 2013 will be one of 90 days intermittent. In addition, I will impose probation for 3 years, which will extend the reach of court ordered supervision for a substantial additional period of time. The conditions will be that Mr. Casilimas report to probation as required, reside at an address approved of by probation, have no contact nor be within 100 m of M.L., possess no weapons as defined by the Criminal Code, and take any sexual behaviour counselling recommended by his probation officer. He shall possess no firearms or other weapons as set out in s. 109 for a period of 10 years.

Released: to the parties on March 8, 2013; in court on April 3, 2013

Signed: "Justice Leslie Pringle"