Non-Publication and Non-Broadcast Order Warning

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 01 11 Court File No.: Toronto 21-75005495, 21-75003776

Between:

His Majesty The King

— AND —

Aziz Karem Hocaoglu

Before: Justice Rose Heard on: December 20, 2023 Reasons for Judgment released on: January 11, 2024

Counsel: Mr. G. Ho............................................................................................... counsel for the Crown Mr. A. McKay, Menchynski, A......................... counsel for the accused Aziz Hocaoglu

Rose J.:

[1] Mr. Hocaoglu was found guilty of sexual assault after a multi day trial. Judgment was delivered on September 7, 2023. The trial heard evidence from the complainant V.P. and Mr. Hocaoglu. Text messages and emails between the two were found to be admissible on June 8 as a result of an earlier Application by the defence under s. 278.92. Photographs of V.P. alone, and the two together were also admitted at trial.

[2] V.P. was in an intimate relationship with Mr. Hocaoglu. They were neighbours in the same apartment building in downtown Toronto and their intimacy became exclusive in the spring of 2021. She was 20 years old at the time and Mr. Hocaoglu was 29. According to V.P. that exclusivity was formalized the day after the assault, June 7, but she testified that they had been exclusive for some weeks before that. June 7 was an arbitrary date picked in advance. V.P. worked at a local restaurant, and was studying at U of T.

[3] On the evening of June 6 the two were in Mr. Hocaoglu’s apartment around 5pm. They were lying on his bed V.P. was feeling the effects of sunburn and did not want intimacy, and told Mr. Hocaoglu that. At one point Mr. Hocaoglu grabbed V.P., turned her over onto her stomach and had forced vaginal intercourse with her from behind. This also involved Mr. Hocaoglu whipping V.P. about the buttocks, which left several visible linear purple welts on each buttock. Pictures of those injuries were put into evidence. They are difficult to look at. Violence to V.P. during the assault was therefore elevated beyond vaginal penetration.

[4] On June 8 I gave a ruling under s. 278.92 permitting the Defence to use email and text messages between Mr. Hocaoglu and V.P. at this trial. With that ruling in hand, the Defence agreed that the Crown could put emails and text messages to the complainant in chief, rather than wait until re-examination.

[5] Mr. Hocaoglu filed a s. 11(b) Application on November 26 2023 but abandoned it on December 20 before it was perfected.

[6] I ordered a pre-sentence report to assist with sentencing. When the report was delivered to the Court on November 14 Mr. MacKay objected to certain language said to be Mr. Hocaoglu’s statements to the Pre-Sentence Report writer. The case was adjourned to December 20 to permit Mr. Ho to call viva voce evidence from the PSR author to prove that utterance. When the case was called on December 20 Mr. MacKay had further objections to the PSR. The defence wanted to cross-examine the PSR writer so that it could explore a potential inconsistency between what V.P. said to the PSR writer and her testimony at trial with a view to laying the groundwork for a mistrial. I denied that request because the purpose of the PSR is to assist with sentencing as opposed to a continuation of the trial on its merits. The result was that Mr. Ho agreed that the Crown would not rely on the language objected to by the Crown so that sentencing could complete that day.

[7] The result is that the second sentence of the first full paragraph of Page 5 of the PSR is excised from the report. I will not rely on it. The victim declined to provide a Victim Input Statement.

[8] Mr. Hocaoglu has no criminal record.

[9] I would not describe the PSR as entirely positive. The positive aspects include Mr. Hocaoglu’s respect shown to the PSR writer, availability and assistance with that process. He arrived in Canada from Turkey when he was 15 and appears to have either been in school or worked since then. He appears to have had a stable upbringing in Turkey. His family apparently is a jeweller with multiple businesses. From this I infer that his upbringing was not difficult.

[10] Mr. Hocaoglu has support in the community. The PSR provides that from the perspective of his current romantic partner, and one of his employers, who describes him as “extremely smart, dedicated, focused and can `multitask”. He is a team player. Mr. Hocaoglu told the PSR writer that he is also employed as a project coordinator for a developer with, what appears to be, significant responsibility. He did not provide proof of that employment during the PSR process – unlike his other jobs. His third job was as a bartender. He provided the name of that employer who was contacted by the PSR writer and confirmed that in the last two years Mr. Hocaoglu is an excellent employee and works well with others. It is a deficit that Mr. Hocaoglu self described as working full time as a project coordinator in building development but did not furnish details as he did with his other work.

[11] His work ethic is therefore to his credit. That, and his age, supports a finding that he has prospects for rehabilitation.

[12] The PSR also says that:

“The subject continued to express an unwillingness to partake in any counselling or rehabilitation as he believes that there was a “misunderstanding in culture and language”. He further noted that he didn’t understand the cultural dynamics of the relationship within the courts. He believes it is “unfair” but that he must “deal with the consequences”.

And later the PSR said,

…the subject denies any form of responsibility and maintains the court process was “unfair” towards him. The subject also stated that he does not believe that he needs to attend any counselling for sexually related behaviours should this be required.

[13] Mr. Hocaoglu’s denial of culpability to the PSR writer is consistent with his evidence at trial. With that said, his comments about the unfairness of the court process and reluctance to take counselling lead me to find that he has no insight into his conduct.

[14] In submissions Mr. MacKay advised me that Mr. Hocaoglu was in Canada on a work permit which is no longer valid. He now has no immigration status, and so subject to removal from Canada. Apparently that took effect before sentencing, from which it appears that his immigration status is independent of this ruling.

[15] Mr. Hocaoglu filed several character letters at sentencing. They are unsigned and undated but I would not reduce their weight because of that. They uniformly speak of his fidelity as a friend, high personal standards, professionalism and real connection with those around him. Two of the letters are from persons who have known him for 10 years. Others are from those who have known him since 2017 or 2018. The references are therefore from long standing friends, a fellow student, and a colleague. All but two have provided their contact information.

[16] One of the reference letters says:

Aziz is a generous individual who has always shown a deep respect for the law. The conviction he is facing is entirely out of character, which has left him, and those who know him well, deeply upset. Despite the circumstances, Aziz has shown remorse, further demonstrating his strong moral character.

[17] I tend to agree with the Crown that the remorse apparent to Hopeton Hyatt is inconsistent with the balance of the evidence, and would reduce its weight.

Sentencing Positions

[18] Mr. Ho seeks a sentence of 4 years in jail, and ancillary orders in the form of: a DNA databanking order; a weapons prohibition under s. 109 for 10 years; and a SOIRA for 20 years.

[19] Mr. MacKay argues for a conditional sentence of imprisonment, in other words an order under s. 742 of 18 months to 2 years less a day. He argued that no SOIRA order should be issued.

Discussion

[20] Mr. Ho provided several authorities, but placed considerable reliance on three Court of Appeal decisions which support a range of sentence of 3 – 5 years, where the sexual offence involving violent vaginal penetration, see R. v. R.S. 2023 ONCA 608, R. v. A.J.K. 2022 ONCA 487, and R. v. Bradley 2008 ONCA 179. R. v. Garrett 2014 ONCA 734 suggests that the range is 2 – 3 years but appears to have been overtaken by R.S. and A.J.K. As the Court of Appeal in R.S. found at par. 27, the crime of sexual assault includes a wide spectrum of wrongful conduct. Violent vaginal penetration is at the upper end of that spectrum, and therefore attracts sentences which reflect that as a matter of proportionality.

[21] The court in A.J.K. at par 74, and R.S. at par 29 gave clear direction to trial courts that sexual assaults are “serious acts of violence” which cause its victims “…profound emotional and physical harm and their lives can be forever altered”. Such offences must be sentenced on that basis. It is erroneous to minimize the gravity of sexual assault, particularly where the level of violation and accompanying violence is extreme.

[22] For these reasons the Court of Appeal has found that denunciation and deterrence are primary considerations in sentencing serious sexual assault cases, see R. v. R.S. at par 39, R. v. A.J.K. at par. 83.

[23] Mr. MacKay offered cases where a conditional sentence was imposed. Two are noteworthy.

[24] R. v. Dickson 2023 ONSC 2776 was the most recent. In that case Mme. Justice Himel imposed a conditional sentence on facts similar to the case at bar insofar as it was a violent sexual assault involving vaginal penetration within the context of a relationship. Dickson involved a guilty plea, and was decided before the Court of Appeal delivered R.S. R.S. was therefore not available to Himel J. The victim in Dickson apparently asked that the offender remain out of custody and told the Court that she was reliant on his financial support.

[25] R. v. Browne 2021 ONSC 6097 was a sentencing after a trial for violent sexual assault involving violent vaginal penetration. He received a conditional sentence of two years less a day. Notably, Justice McArthur took guidance from the trial court from R.S. (supra) where a conditional sentence was imposed. It is not clear to me that McArthur J would have imposed a conditional sentence if she had the benefit of the Court of Appeal’s ruling in R.S., see Browne at par. 106.

[26] Having reviewed the authorities I find that the range of sentences for this case is 3 – 5 years, see R. v. R.S. (supra) at par. 40. That range permits departure but is intended to reflect “…societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders”, see A.J.K at par. 72. The previous range for this type of offence which started in the upper reformatory but still went up to 4 years was discarded. As ACJO Fairburn said, “…it is time to leave this sentencing artefact behind”, see A.J.K. at par. 70.

[27] I find that deterrence and denunciation are the dominant principles which animate this sentencing decision. Rehabilitation is important but is less dominant than denunciation and deterrence.

[28] I identify the aggravating factors in this case as:

1. The violence involved in this sexual assault. V.P. asked Mr. Hocaoglu to stop the assault but he continued. The welts suffered by V.P during the assault reflect an added level of violence which inflicted visible injuries and reflect a gratuitous element of humiliation. The welts were many, and spread over both sides of her buttocks. The colouration of the welts is evidence that V.P. was being hit hard during the sexual assault. This is a seriously aggravating factor.
2. It is aggravating that Mr. Hocaoglu was in a relationship with V.P. That relationship was the reason they were lying in bed that day, and the reason V.P. had every reason to expect that her bodily integrity would be respected in the circumstances. This is statutorily aggravating factor under s. 718.2(a)(ii).

[29] There are numerous mitigating factors.

1. Mr. Hocaoglu is a young man with no criminal record. This appears to be his first offence;
2. He appears to be hard working, and so has promise for rehabilitation;
3. He has significant support in the community.
4. Mr. Hocaoglu has never been to jail. This is his first custodial sentence, and the sentencing range suggests that his first jail sentence will be served in the penitentiary. This is mitigating.

[30] It is not aggravating that Mr. Hocaoglu ran a trial. He does not have the mitigating effect of a guilty plea. I also find that there is a lack of remorse and insight.

[31] What is the appropriate sentence?

[32] In this case I reject a conditional sentence as inappropriate. A sentence which is less than 2 years simply does not reflect the responsibility of Mr. Hocaoglu. It would be disproportionate. It would not reflect Mr. Hocaoglu’s “moral agency”, see R.S. at par 35.

[33] It would be all too easy to impose the sentence requested by the Crown. 4 years reflects the level of violence in this case and lack of insight. But with that said I have concern about the length of a penitentiary sentence on Mr. Hocaoglu. He is relatively young, and his first conviction will place him in the penitentiary. That leads me to impose restraint on the sentence.

[34] Sentencing is not an exercise in precision, but I find that a 3 year 6 month jail sentence is appropriate. From that Mr. Hocaoglu’s pre-sentence custody of 5 real days will be credited to 8 days and deducted from the sentence. The net sentence will therefore be 3 years, 5 months and 22 days, or 1,267 days.

[35] There will be a DNA Databanking Order, s. 109 order for 10 years and a SOIRA Order under s. 490.012 for 20 years.

[36] Given the sentence I waive the victim fine surcharge.

Released: January 11, 2024 Signed: Justice D. Rose