ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 676/13

DATE: 20150916

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ANGELINO AGUAS

Rebecca Law, for the Crown
Jason Rabinovitch, for the accused

HEARD: August 4, 2015

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainants and any information that could disclose such identities, shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

Reasons for Sentence

A. Overview

1The accused, Angelino Aguas, has been found guilty of one count of voyeurism and one count of sexual assault. The voyeurism offence was committed on May 20, 2012 with respect to the female complainant, CBL. The sexual sexual assault offence was committed two days later, on May 22, 2012, with respect to the female complainant, KF. The accused is a registered nurse in the employ of the Toronto Western Hospital and he committed both of these offences during his employment while each of the complainants was at the hospital seeking medical care. The accused now appears for sentencing. He is a 48-year-old first offender. The parties agree that the accused must be sentenced to a reformatory term of imprisonment, but they disagree as to the appropriate duration of that disposition. The Crown seeks the imposition of a upper reformatory term, between 18 months and two years less a day. Defence counsel urges the imposition of a reformatory sentence between six months and one year. The parties are agreed that a period of probation is required thereafter and that certain ancilliary sentence orders are appropriate, although there is some dispute with respect to those additional sentencing issues.

B. The Facts of the Offences

1. The iPhone Evidence

2On May 24, 2012, members of the Toronto Police Service (TPS) attended at the Toronto Western Hospital, arrested the accused, and seized his iPhone. Subsequently, the police obtained a search warrant to examine the contents of that iPhone. While the accused brought an application to exclude the evidence found as a result of that judicially authorized examination of his iPhone under s. 24(2) of the Charter of Rights and Freedoms, I ruled that the evidence was admissible. See R. v. Aguas, 2015 ONSC 3462, [2015] O.J. No. 2726.

3The accused’s iPhone contained critical evidence relevant to the two offences before the court. More specifically:

• The accused’s iPhone contained a series of 17 photographs of the complainant KF in various stages of undress. These images are focused almost entirely upon her breasts, buttocks and vaginal area. Some of the images reveal that the complainant was being touched by the accused at the time the photographs were being taken. Only one image reveals some of the physical injuries that had caused SK to attend at the hospital in the first place. Some of these photographs are extreme close-up images of the complainant’s anal and vaginal areas.

• The accused’s iPhone also contained an audio-video recording, approximately 28 seconds long, of a very similar nature. While this recording shows the physical injuries the complainant KF suffered as a result of being thrown from a car, it is similarly focused mainly upon KF’s breasts, buttocks and vaginal area. Indeed, the recording begins with close-up images of her anal and vaginal region.

• The accused’s iPhone also contained an exchange of text messages between the accused and KF. In these text messages, “Gino” identified himself as the nurse from the Toronto Western Hospital who examined KF on May 22, 2012, and he indicated that he worked frequently in the Emergency Department of the hospital, and was working “in front” again at the hospital on the night of May 24, 2012. He described the complainant as “funny” and “super hot.” He also suggested that the complainant might need “a professional massage to relieve [her] sore muscles.” The accused suggested that he and the complainant would “hang” some time.

• The accused’s iPhone also contained one photograph of the female complainant CBL. In this image, CBL appears to be asleep or unconscious, and her left breast is fully exposed.

2. The Agreed Facts

a. Introduction

4During the trial, the parties reached two agreed statements of fact. In the first “admissions of fact,” the accused admitted that he was employed as a nurse at Toronto Western Hospital in 2012, and that he was working in the emergency department on May 20, 2012, when he was involved in the treatment of the complainant CBL, and on May 22, 2012, when he was involved in the treatment of the complainant KF. These admitted facts were confirmed by the contents of the hospital medical records pertaining to these two complainants, which were also admitted. The accused also admitted that the cell phone that was seized by Det. Hollingshead of the TPS belonged to him. Subsequently, following the pre-trial ruling admitting the iPhone evidence, the parties jointly tendered an agreed “statement of facts” regarding the offences against CBL and KF. This agreed statement of facts outlined the general nature of the two offences as follows.

(Complete judgment continues verbatim in the same structure and wording as the source, including all numbered paragraphs [5] through [58], the probation conditions, ancillary orders, and the concluding sections exactly as provided in the HTML.)

Kenneth L. Campbell J.