Court File and Parties

DATE: March 16, 2021 2811-998-18-45370-00 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. ALEX JOSEPH RAMOS

S E N T E N C E

BEFORE THE HONOURABLE MR. JUSTICE G. R. WAKEFIELD On March 16th, 2021, at Oshawa, Ontario Courtroom 104

APPEARANCES F. Stephens, Esq. Counsel for the Crown J. Kalina, Esq. Counsel for the Accused

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO PUBLICATION BAN UNDER SECTION 517.1 OF THE CRIMINAL CODE BY ORDER OF JUSTICE SOLOMON, ONTARIO COURT OF JUSTICE, OSHAWA, ONTARIO.

Endorsement

Wakefield, J. (Orally) :

Mr. Ramos has previously been convicted by me of a sexual assault, two counts of common assault and one count of breach of officer in charge undertaking, all with respect to the same victim.

The sexual assault is the most egregious which arose from an incident in a hotel room in London, when the victim was far away from her family and neighbourhood with increased sense of vulnerability when Mr. Ramos forced her into an act of fellatio including ejaculation. The first assault occurred when the defendant returned from a trip to New York and hitting the victim resulting in two chipped teeth. The second assault occurred when he twisted the victim's nose while it was still healing from it being broken. The breach resulted from continued contact with each other after being released on the original charge.

The Crown is seeking a sentence of 12 months on the sexual assault, 30 days consecutive on each of the assaults, and a further consecutive 30 days on the breach of undertaking, followed by two years' probation, SOIRA for 10 years, a DNA order, and a section 110 order for 10 years.

The defendant's counsel is seeking a conditional sentence. The defendant has already completed a PARS program in circumstances of unrelated proceedings of which I am unaware and now disabuse myself of knowledge other than the successful completion of PARS, which is a credit to the defendant.

The defendant has also become involved with charitable efforts resulting in the completion of 117 hours of community service in advance of today's sentencing hearing.

He has undergone lengthy period of counselling with a report which gives insight as to the challenges Mr. Ramos faces with a provisional diagnosis of ADD/ADHD and a learning disability. Overall, the report asserts a very low risk to re-offend, other than might be resulting from his impulsivity, hyperactivity, and inattention, which in those circumstances would increase his risk into the high/moderate range.

Mr. Ramos does have stable employment in landscaping and snow removal, as well as demonstrating an entrepreneurial drive in setting up his own clothing line. He has donated some of the clothing to charity during the pandemic.

Mr. Ramos was 19 at the time of the offence and is now 23 years old. He is reportedly in a new relationship which is going well. While the assessment gives insight into how the defendant communicates, I note that in addition to the manner of his testimony, the probation officer reports the defendant using negative language about the victim and denying responsibility.

That lack of insight was replicated in Mr. Ramos' final statement before sentencing today in which he started off apologizing but immediately veered into the impact the charges and trial have had on him and his family, which I do accept are quite intrusive. However, I do note that he articulated in an improved manner compared to the trial and demonstrated some insight as to the consequences of his choices when describing the impact and effect on his family and friends.

While I accept that a conditional sentence would be preferable to the defendant, it is simply inappropriate for this offence and lacks sufficient deterrence and denunciatory effect. Additionally, the breach of undertaking in my view undermines the public confidence in conditional sentences, were I to impose one, given the risk of breaches, especially in light of the reported impulsivity, hyperactivity and inattention challenging the defendant.

Sentencing is not an exact science. The result is a balancing of the criteria in section 718 of the Criminal Code, of the circumstances of the offence and the subjective circumstances of the defendant. His life experiences include, as a person of colour, there are reports of his being subjected to racialized conduct towards him. He is hardworking and ambitious to improve his life with his efforts in starting up his own business while successfully supporting himself. He has the support of a large family and a circle of friends which denote a very different side to Mr. Ramos than his actions demonstrated in the assaults on the victim.

Mr. Ramos has a short period of pre-sentence custody of two days for the equivalent of three days. I also note the pandemic has created harsher conditions in all the jails due to the attempts to control infection rates. I understand that the Central East Correctional Institute has instituted some form of quarantine for the initial entry into that facility of at least a few days for test results to be returned, but which will be a further barrier to all incoming inmates to properly utilize the facility.

Of the offences, the sexual assault is the most serious. It demonstrated selfishness as well as a contempt and objectification of the victim. It was a breach of the trust implicit in all domestic relationships. While the Crown position is not incorrect, when taking into account the circumstances of the defendant and the insights of the assessment, as well as the current pandemic impact on custodial facilities, I am indeed imposing a sentence of nine months incarceration, and while not noting it, I have taken into account the pre-sentence custody of the equivalent of three days. That is the minimum possible sentence when balancing the defendant as a first offender, his psychological challenges, and the overarching need for both deterrence and denunciation as a message, not just to Mr. Ramos, but to the community at large, how flagrant his actions were to the victim.

On the first assault with the chipped teeth, again as a first offender, where some harm was done to the victim there is a sentence of a consecutive 15 days.

On the second assault, the twisting of an already broken nose, there is an element of cruelty and contempt which calls out for no less than 30 days consecutive to all other counts.

On the breach, again as a first offender, with the circumstances of the nature of the charges released upon, I sentence the defendant to a further consecutive 15 days incarceration. I would disagree with the Crown, that such breaches always result in jail but here such an entry on the defendant's record is mandated by the need to again send a message to the community as to the importance of protecting victims when released on conditions.

The totality of sentence is 11 months taking into account as well the principle of totality and of rehabilitation.

The Crown's position as to permitting the defendant to return for the imposition of the custodial component in, approximately, a week’s time?

MR. STEPHENS: I'd be opposed, Your Honour.

THE COURT: Sorry, I can't hear you.

MR. STEPHENS: Sorry, I would be opposed, Your Honour. I appreciate that it is only a week but then the next thing we know there's some sort of risk that prevents him from coming into the courtroom to be formally sentenced. It has happened in other cases, in fact, that is why I was in Justice Green's court this morning, because of a repeated inability for the defendant to get back into the building to be properly sentenced. It has been two years since the -- actually, two and half years since the offence and a year since found guilty. I would be of the view that we ought not delay any longer, though I am sympathetic to what he needs to do, he'll simply have to make those arrangements through counsel or through his family members electronically where he can use the phone, in my submission.

THE COURT: And anything further from Mr. Kalina?

MR. KALINA: No, thank you, Your Honour.

THE COURT: Sympathetic is the right word, I think, here. Mr. Ramos has demonstrated initiative in setting up business in terms of supporting himself but the suggested reason for the delay in sentencing is one in which to sign certain documents and frankly that can be accommodated. A little more complicated process delaying with the jail. I acknowledge that, Mr. Kalina, and I am also putting another burden, I think, on counsel as well to assist Mr. Ramos in facilitating getting those documents signed and returned to the family so that there is access to the bank accounts and financial sources, but in all the circumstances today and the nature of the charges, I am not prepared to defer the imposition of the custodial sentence, it will be imposed today.

In any event, that incarceration is followed by a two year probation order on the following terms. You will keep the peace and be of good behaviour. Appear before the court when required to do so by the court. Notify the court or probation officer of any change in your address, and promptly notify the court or the probation officer of any change of employment or occupation. You will report in person, or remotely if so directed, to a probation officer within two working days of your release from custody, and after that all times and places as directed by the probation officer or any person authorized by a probation officer, to assist in your supervision.

Is there any need to keep the reporting condition past any counseling component from the Crown's perspective?

MR. STEPHENS: No, sir.

THE COURT: That reporting requirement ends when you have satisfied your probation officer that you have completed all of our counselling. You will not contact or communicate in any way, directly or indirectly, by physical, electronic or other means, with Ms. Brooklynn Walsh. The only exception I can think possibly being a situation is in the presence of or through legal counsel. There may be other avenues that Ms. Walsh is going to pursue, I do not know, but I cannot think of any other exceptions to the order, subject to any thoughts from either counsel.

MR. STEPHENS: No practical need known.

THE COURT: Anything from Mr. Kalina?

MR. KALINA: No, Your Honour.

THE COURT: So just that one exception. And as well, you are not to be within 100 meters of any place where you know the person named above to live, work, go to school, frequent, or anything place you know the person to be except for required court attendances. And as I said, the one exception would be through the -- in the presence of or through legal counsel, should that scenario arise.

Paragraph 11, you will attend and actively participate in all assessment, counseling or rehabilitative programs directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to, domestic violence. And I appreciate you have already done the PAR Program. They may not require you to do it again but I am leaving that option open. Domestic violence, which may include Partners Assault Response, PAR Program.

Psychiatric and psychological issues because I think that that report gives me a better insight to some of the challenges you have and the work you have actually already started to do to try to tackle those challenges. That should continue to be monitored. And any other counselling to assist in rehabilitation. You should sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative program as directed.

I am not making a community service order. I was, actually, quite impressed with the amount of community service already conducted. That also played a factor in my ultimate sentence as to the duration of the incarceration.

Any other terms of probation the Crown is seeking?

MR. STEPHENS: No, sir.

THE COURT: Any comment about the wording from defence?

MR. KALINA: No, Your Honour.

THE COURT: The defendant will provide a sample of his DNA, as despite no prior record, the circumstances of these offences and the minimal physical impact on the defendant, I find that it is indeed in the best interest to the administration of justice to do so, to make that order. It is not an imposition of a sentence but an investigative tool justified by the defendant's conduct. It will apply to each conviction.

There will as well be a SOIRA order for a 10 year duration, and as well an order pursuant to section 110 of the Criminal Code for 10 years. You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, prepared by me today, ending 10 years from release from prison. There will also be an order pursuant to section 743.21 prohibiting any communication between yourself and Ms. Brooklynn Walsh during the tenure of your incarceration. Any other aspects of sentencing from the Crown's perspective?

MR. STEPHENS: No, Your Honour.

MR. KALINA: No, Your Honour.

THE COURT: Mr. Ramos, I accept that you have the strength to get through the next while. Intend, as I think as you put it, to put it behind you and move on. I trust you do have that strength. I trust that Ms. Walsh has the strength to move on as well. This matter is now completed. You are under sentence, sir. Go with the officers.