COURT FILE NO.: CR-19-40000439-0000
DATE: 20190911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEEN
– and –
JAN SANCHEZ
Brad Burgess for the Crown
Adam Newman for Mr. Sanchez
HEARD: August 9 and September 4, 2019
REASONS FOR SENTENCE
B. Davies J.
A. Overview
[1] Mr. Sanchez went to a party with partner, Romana Baltazar, on January 5, 2019. They had been dating for a number of months by that point in time but were not living together. At the end of the evening, Ms. Baltazar agreed to drive Mr. Sanchez part way home. In the car, Mr. Sanchez told Ms. Baltazar that he wanted to spend the night at her apartment. Ms. Baltazar eventually agreed but made it clear she was going to sleep in her room and Mr. Sanchez could sleep on the couch.
[2] After Ms. Baltazar went to bed, Mr. Sanchez banged on the door to her bedroom, which was locked. Ms. Baltazar refused to let him. Mr. Sanchez forced the door open. He grabbed Ms. Baltazar by the hair and threw her to the ground. He punched and kicked her in the face, fracturing her orbital bone and causing a cut under her eye. Mr. Sanchez then threatened Ms. Baltazar with a kitchen knife. Mr. Sanchez cut Ms. Baltazar’s arm with the knife as she tried to protect herself from his attack.
[3] Ms. Baltazar was taken to the hospital. She required nine stitches to close the cut under her eye. She had surgery several months later to repair her orbital bone.
[4] Mr. Sanchez was arrested on January 6, 2019 and granted bail on January 7, 2019. As a condition of his bail, he was not allowed to contact Ms. Baltazar. Nonetheless, Mr. Sanchez called Ms. Baltazar three times on January 8, 2019. During one of those calls Ms. Baltazar described her injuries to Mr. Sanchez. He responded by saying “I didn’t think it was that hard.”
[5] Mr. Sanchez pled guilty to aggravated assault, assault with a weapon and breaching his bail.
[6] The Crown and defence agree that a custodial sentence is required in this case to achieve the goals of denunciations and deterrence. They disagree on the appropriate length of that sentence: the Crown sought a sentence of two years less a day followed by 2 years of probation; the defence argued that a 12-month sentence would be appropriate.
[7] The Crown and defence also agree that Mr. Sanchez is entitled to credit at a rate of one and a half days for each day he spent in pre-sentence custody. They also agree that Mr. Sanchez is entitled to some credit for the time he spent on house arrest bail and some enhanced credit to reflect the harsh conditions he experienced while in pre-trial custody at the Toronto South Detention Centre (“TDSC”) but they disagree on the amount of credit Mr. Sanchez should be given.
[8] There are, therefore, three issues for me to determine:
(i) What is the appropriate length of detention in this case having regard to the aggravating and mitigating factors?
(ii) How much credit is Mr. Sanchez entitled to for the time he spent on house arrest bail?
(iii) How much enhanced credit is Mr. Sanchez entitled to for the harsh pre‑sentence conditions of detention?
B. WHAT IS THE APPROPRIATE LENGTH OF DETENTION?
[9] The range of sentences imposed for aggravated assault is very broad. While non‑custodial sentences have been granted in exceptional cases, jail sentences are typically imposed: R. v. Peters, 2010 ONCA 30; R. v. Grayer, 2018 ONCJ 642; R. v. Pulido, 2010 ONSC 3143. Custodial sentences for aggravated assault can range from 12 to 24 months on the low end to 4 to 8 years on the high end depending on the mitigating and aggravating factors in a given case: R. v. Tourville, 2011 ONSC 1677 at paras. 27-30; R. v. Byford, 2016 ONSC 3973 at para. 29; R. v. Seerattan, 2019 ONSC 4340 at para. 36.
[10] Sentencing ranges are helpful insofar as they provide guidance on what sentences have been seen to satisfy the principles and objectives of sentencing in similar cases in the past. Nonetheless, sentencing remains a highly individualized process that requires the court to consider the unique constellation of aggravating and mitigating factors: R. v. Lacasse, 2015 SCC 64 at paras. 56 - 58.
[11] This is not an exceptional case that would justify a non-custodial sentence. Having regard to the aggravating and mitigating factors, I find that it falls at the low end of the range of custodial sentences.
a. Aggravating Factors
[12] There are a number of significant aggravating factors in this case. First, this was a very violent, unprovoked attack on Ms. Baltazar.
[13] Second, Ms. Baltazar was in an intimate relationship with Mr. Sanchez and had been for some time before the assault. In cases of violence against an intimate partner, denunciation and deterrence have the greatest influence on the length of the sentence; however, the sentence imposed should also promote a sense of responsibility and an acknowledgement by the offender of the harm caused to the victim and the community at large; R. v. Ibrahim, 2011 ONCA 611 at para. 15.
[14] Third, this assault took place in Ms. Baltazar’s own home, a place where she should feel safe and secure, not threatened and attacked.
[15] Finally, Ms. Baltazar was seriously injured in the attack. She required immediate medical attention and eventual surgery to repair her orbital bone.
[16] Ms. Baltazar did not prepare a victim impact statement in this case so I have no information, other than the medical records, about any lasting effects of the attack on her. I am not being critical of Ms. Baltazar. She was given the opportunity to prepare a victim impact statement and she had every right to choose not to do so.
[17] Counsel for Mr. Sanchez filed a video that captured Ms. Baltazar interacting with Mr. Sanchez in the hallway of the Provincial Court on February 20, 2019, approximately six weeks after the attack. Mr. Sanchez is sitting outside a courtroom with his mother. Ms. Baltazar walks around Mr. Sanchez, stopping behind him a couple of times. Ms. Baltazar is smiling in the video. At one point, she touches the back of Mr. Sanchez’s head and then walks away. Mr. Sanchez does not appear to acknowledge Ms. Baltazar or respond to her touch.
[18] Defence counsel argues that the video proves that Ms. Baltazar is not afraid of Mr. Sanchez and from that I should infer that she was not suffering any ongoing trauma from the attack. The Crown opposed the admissibility of the video, arguing that it is not relevant to any issue on sentencing. I agree with the Crown.
[19] Ongoing psychological or physical suffering can be an aggravating factor on sentencing in a case like this, involving significant violence. However, the absence of ongoing harm is not a mitigating factor. The fact that the victim of a violent assault has recovered from her injuries suffered or has not suffered lasting psychological harm does not diminish the seriousness of the injuries sustained or the degree of violence used. Had the Crown attempted to rely on some ongoing physical or psychological harm as an aggravating factor in this case, the video would have been relevant on that issue. However, in the absence of a victim impact statement or other evidence that Ms. Baltazar continues to suffer physically or psychologically, the Crown cannot rely on that as an aggravating factor and the video is not relevant.
b. Mitigating Factors
[20] There are also a number of important mitigating factors in this case.
[21] First, Mr. Sanchez was just 19 years old when this offence was committed and he has no criminal record. In the ordinary course, the primary objectives in sentencing a first offender are individual deterrence and rehabilitation: R. v. Priest (1990), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.) at pp. 543-544. When a youthful first offender commits an extremely serious offence of violence, like Mr. Sanchez, the objectives of denunciation and general deterrence do take on greater importance; R.v. Thurairajah, 2008 ONCA 91 at paras. 41 and 42. However, if the Court finds that a custodial sentence is required, the shortest term of imprisonment that is proportionate to the crime and the responsibility of the offender should be imposed when sentencing a youthful first offender: R. v. Brown, 2015 ONCA 361 at para. 7; R. v. Dirie, 2018 ONSC 5536.
[22] Second, Mr. Sanchez pled guilty to these offences and by doing so has taken responsibility for his actions. Mr. Sanchez also wrote a letter of apology to Ms. Baltazar and the court in which he expresses his remorse for his actions. I accept that Mr. Sanchez is genuinely sorry for the trauma he caused to Ms. Baltazar. It is important to note that Mr. Sanchez had a preliminary inquiry and Ms. Baltazar testified at the preliminary inquiry. While Mr. Sanchez’s guilty plea has saved the resources associated with a trial and has saved Ms. Baltazar from testifying a second time, he is not entitled to the same credit he would have received if he pled guilty before his preliminary inquiry.
[23] Third, the attack on Ms. Baltazar appears to be out of character. I received a number of letters of support from Mr. Sanchez’s family and friends who describe him as hardworking, dedicated, supportive, helpful and caring. They were all shocked to learn that Mr. Sanchez seriously assaulted Ms. Baltazar. The letters also confirm that Mr. Sanchez is remorseful for his actions and committed to addressing the personal issues that lead to his violent behavior. Of course, the letters do not take away from the seriousness of the attack on Ms. Baltazar or the injuries she suffered as a result. They do, however, suggest that there is another, positive side to Mr. Sanchez and this offence, albeit very serious, was out of character.
[24] Finally, Mr. Sanchez has taken what limited steps he can while in custody to address what he perceives to be the underlying cause of his violent behaviour towards Ms. Baltazar. In his apology letter, he describes how alcohol was a contributing factor in the attack on Ms. Baltazar. He wrote, “I have recognized my poor decision making when I am consuming alcohol…irresponsibly. Drinking has changed my life for the worst.” He also wrote that he is committed to attending Alcoholics Anonymous when he is released. More importantly, Mr. Sanchez completed 11 educational programs while in custody, including “substance use”, “changing habits”, “anger management”, “understanding feelings”, and “recognizing healthy relationships.” I take this all as a strong sign that Mr. Sanchez is taking responsibility for his violent behaviour and is committed to his own rehabilitation.
c. Conclusion
[25] As set out above, the sentence in this case must focus on denunciation and deterrence. Because Mr. Sanchez is a youthful first offender, rehabilitation is also important.
[26] I am satisfied that the time Mr. Sanchez has already spent in pre‑sentence detention has had a deterrent effect on him and no further time in custody is required to satisfy that principle of sentencing. The affidavit he filed on sentencing makes it clear that his time in custody has been particularly difficult for him. Similarly, in his apology letter, he wrote “I’ve thought a lot to myself in my cell to think where my life is going and where it will lead if I keep going down this dark road.” I am satisfied that Mr. Sanchez does not want to repeat the mistakes he has made in the past and his time in custody has reinforced that desire in him.
[27] The real issue then is what sentence is required to adequately denounce Mr. Sanchez’s conduct. That is not an easy determination in this case. On the one hand he committed a very violent, unprovoked attack on his intimate partner that caused serious injuries. On the other hand, Mr. Sanchez is a very young, first time offender with good rehabilitative prospects who has pled guilty and thereby demonstrated true remorse for his offence.
[28] As set out above, I am required to impose the shortest term of imprisonment that will satisfy the competing principles in this case: R. v. Brown, 2015 ONCA 361 at para. 7. I find that the shortest sentence that will adequately denounce Mr. Sanchez’s violent behavior is 12 months in custody and that is the sentence that will be imposed in relation to the aggravated assault charge. The final issue to decide is what credit Mr. Sanchez is entitled to for his pre‑sentence detention and house arrest bail.
C. CREDIT FOR PRE-SENTENCE DETENTION AND HOUSE ARREST BAIL
[29] Mr. Sanchez was arrested on January 6, 2019 and released on bail on January 7, 2019. He was not allowed to leave his house unless he was with his surety or at work.
[30] Mr. Sanchez was re-arrested for breaching his bail by communicating with Ms. Baltazar on January 8, 2019. He was released on bail a second time on January 18, 2019. This time, he was not allowed to leave his house for any reasons unless in the presence of his surety. He was also not allowed to possess a cell phone or consume alcohol.
[31] Mr. Sanchez remained on bail and subject to house arrest conditions from January 18, 2019 until March 16, 2019 when he was taken back into custody.
[32] Mr. Sanchez has been at the TSDC since March 16, 2019.
a. Credit for pre-sentence detention
[33] As set out above, counsel agree that Mr. Sanchez is entitled to one and a half days credit for each day he spent in pre‑sentence custody.
[34] In total, Mr. Sanchez has been in pre‑sentence detention for 193 days. I have included in this calculation the entire period from January 6 to January 18, 2019. Although he was briefly released on bail during that time, he spent some portion of each of those days in custody. I have, therefore, included them in the calculation of pre‑sentence detention and excluded them from the calculation of the time he spent on house arrest bail.
[35] Mr. Sanchez is therefore entitled to 290 days of credit for the time he spent in pre‑sentence detention.
b. Credit for house arrest bail
[36] Mr. Sanchez spent 56 days subject to strict house arrest conditions.
[37] I am required to consider the time Mr. Sanchez spent under stringent bail conditions in determining the appropriate sentence. There is no formula for calculating the appropriate credit to be given; rather, the amount of credit will depend on the length of time spent on house arrest bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activities while subject to house arrest bail; R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 at para. 37.
[38] The Crown argued that little credit should be given to Mr. Sanchez because he was only subject to house arrest for 56 days. While 56 days may be a short period of time relative to other people in the criminal justice system, that will be reflected in the amount of credit granted. It does not mitigate the impact of the conditions on him.
[39] The conditions imposed on Mr. Sanchez were extremely restrictive, particularly when considered in the context of his age and lack of prior involvement in the criminal justice system. He was only 19 years old. He had never been charged before. Despite this, he was not allowed out of his house for any reason unless in the presence of his surety. He could not work or go to school. He was not permitted to use a cell phone. These are among the most restrictive release conditions that can be imposed by the court.
[40] Mr. Sanchez filed an affidavit setting out how the house arrest affected him. He was not cross‑examined on his affidavit. I accept his evidence that being subject to strict house arrest bail was extremely difficult for him and placed a significant strain on his sureties. I also accept that Mr. Sanchez suffered psychological harm as a result of the strict bail conditions. He was unable to contribute to his family and that had a negative effect on his sense of self-worth. I find that the bail conditions represented a profound restriction on his liberty.
[41] Considering the factors set out in Downes, I find that Mr. Sanchez is entitled to 14 days credit for the time he spent on house arrest bail. This is one day credit for every four days he spent on house arrest.
c. Credit for harsh conditions of pre-sentence detention
[42] Counsel for Mr. Sanchez argues that he should be entitled to enhanced credit because of the harsh conditions at the TSDC, including the number of lockdowns and the inability of Mr. Sanchez to speak to his family.
[43] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal held that in appropriate circumstances, “particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).” In deciding whether to grant additional credit beyond the statutory maximum, I am required to consider both the conditions of pre‑sentence detention and the impact of those conditions on Mr. Sanchez.
[44] Mr. Sanchez’s affidavit addresses how the conditions of detention affected him. He was not cross‑examined on his affidavit and the Crown did not call any evidence in response to his affidavit.
i. Lockdowns
[45] In R. v. Fermah, 2019 ONSC 3597 at para. 36, Molloy J. noted that “a typical situation in which an enhanced credit can be given is where a considerable portion of the pretrial custody has been spent under full or partial lockdown.”
[46] As with credit for house arrest bail, there is no formula for calculating the amount of enhanced credit to be given for unacceptably harsh conditions in pre‑sentence detention. The nature of the conditions (including any time spent in segregation), the amount of time the accused was subject to unacceptable conditions, the impact of those conditions on the accused and any evidence of institutional indifference to the rights of individuals detained in pre‑trial custody will all be relevant to an assessment of the amount of credit to be awarded in any particular case.
[47] Mr. Sanchez was detained at the TSDC between January 8 and January 18, 2019. He has also been there since March 16, 2019.
[48] According to TSDC records, Mr. Sanchez was subject to a full or partial lockdown 49 times between January 8 and August 18, 2019. Counsel for Mr. Sanchez subpoenaed records from the TSDC about lockdowns since August 18, 2019. TSDC did not respond to that subpoena.
[49] Mr. Sanchez kept a record of the lockdowns he experienced between August 9 and September 1, 2019. Mr. Sanchez recorded a partial lockdown on August 16, 2019 that is not recorded on the TSCD records. Otherwise, Mr. Sanchez’s records are the same as the TSDC information for the period between August 9 and August 18, 2019. He recorded an additional 11 lockdowns between August 19 and September 4, 2019.
[50] I accept that Mr. Sanchez accurately recorded the lockdowns he experienced despite the one discrepancy with the TDSC records. In Fermah, the court received evidence from Sgt. Travis Williamson at the TSDC, who also provided the lockdown information in this case. Sgt. Williamson testified in Fermah (at para.40) that when there are lockdowns for something other than operation reasons, such as an isolated search or security incident, that is not recorded in the institutional records as a lockdown. It would, of course, be experienced by the inmates as a lockdown. This could explain why Mr. Sanchez has one extra lockdown in his notes than are reflected in the institutional records.
[51] If I add the lockdowns from Mr. Sanchez’s records to those on the TDSC records, he experienced a partial or complete lockdown on 61 days, or more than 31% of his time. What is more troubling, however, is that there were only 6 days in August when there was no lockdown. And there were 14 lockdowns in July. During the last two months of Mr. Sanchez’s pre‑sentence custody, he was subject to a lockdown more than 61% of the time.
[52] I accept Mr. Sanchez’s evidence that he experienced depression and anxiety as a result of the repeated lockdowns.
[53] The TSDC provided information about the reason for the lockdowns. Virtually every lockdown was caused by “staff shortage.” It is unacceptable for people in pre‑sentence custody to be subject 25 lockdowns in a single month because of inadequate staffing. This suggests that resources are not be properly allocated or managed to ensure individuals in pre‑sentence custody, who are presumed innocent, are housed in humane conditions. The pattern of inadequate staffing over an extended period of time is particularly concerning and seems to reflect a level of indifference on the part of the institution or the government to the rights of individuals detained in pre‑trial custody.
[54] A number of decisions from this court have granted additional credit to individuals held at the TSDC because of the number of lockdowns at the institution. In R. v. Ward-Jackson, 2018 ONSC 178, Kelly J. gave an additional 480 days of credit because Mr. Ward-Jackson had been subject to full or partial lockdowns on 488 days (or 40% of his time) in pre‑sentence detention. In her reasons in Ward-Jackson, Kelly J. refers to R. v. Dibben, a decision of McMahon J. in which he granted 420 days credit for 383 days of lockdowns at the TSDC. In R. v. Jama, 2018 ONSC 1252 Goldstein J. gave an additional 120 days credit for 175 days of lockdown at the TSDC.
[55] The Crown points to the fact that Mr. Sanchez completed a number of education sessions while in custody as evidence that the conditions have not been unacceptably harsh. In support of this position, the Crown relied on R. v. Duncan, 2016 ONCA 754, in which the court declined to grant enhanced credit because there was no evidence Mr. Duncan suffered any adverse effects from the lockdowns and there was evidence that he made “positive rehabilitative steps during his pre‑sentence detention.”
[56] Mr. Sanchez has completed 11 one-hour educational sessions at the TSDC, which show that there were times when Mr. Sanchez had access to programming. The fact that Mr. Sanchez took advantage of opportunities that were available to him when there were no lockdowns does not detract from the fact that for 61 days he was denied access to programming that should have been available to him.
[57] In light of the number of lockdowns, particularly in July and August, the inadequate explanation for the lockdowns and the impact they had on Mr. Sanchez, I am prepared to grant him an extra 61 days credit for the lockdowns he experienced.
ii. Isolation from family
[58] The evidence I received that Mr. Sanchez was unable to contact his mother for the first 40 days of his detention also troubles me. The phones in the institution are set up so the inmates can make collect calls, which cannot be made to a cell phone number. Mr. Sanchez’s mother does not have a “land line”. Mr. Sanchez had to put in a request to see a social worker or a sergeant at the institution who could arrange a call to his mother’s cell phone. As a result, Mr. Sanchez was wholly dependent on the institution to facilitate his contact with his family.
[59] Mr. Sanchez made at least two requests to call him mother. It took more than a week for the institution to respond to his first request. If the institution is experiencing regular lockdowns because of staff shortages, it is not surprising that inmate phone calls are not prioritized. Nonetheless, it is completely unacceptable that a 19 year old who had never been in custody before was unable to contact his family for 40 days.
[60] I accept Mr. Sanchez’s evidence that the isolation from his family for the first 40 days caused him significant stress and anxiety. I am prepared to give Mr. Sanchez an additional 10 days credit to account for the isolation he experienced.
d. Total Credit
[61] In total, Mr. Sanchez is entitled to 375 days of credit: 290 days for pre‑sentence detention plus an additional 71 days for the unacceptably harsh conditions and 14 days for house arrest bail.
D. CONCLUSON
[62] I sentence Mr. Sanchez to 12 months on the aggravated assault charge. I further sentence him to 6 months on the assault with a weapon charge to be served concurrently to the sentence on the aggravated assault. I sentence him to 30 days on the breach of recognizance charge to be served concurrently to the other sentences.
[63] When the credit is applied, Mr. Sanchez has served more than the 12-month sentence imposed. I, therefore, sentence Mr. Sanchez to 1 day in jail to be followed by 24-months of probation. In addition to the mandatory conditions, the following will be conditions of Mr. Sanchez’s probation:
a. Report to a probation officer within 48 hours of your release and thereafter as required;
b. Advise your probation officer of your address;
c. Advise your probation officer of any change in your address within 24 hours;
d. Do not contact Romana Baltazar directly or indirectly by any means;
e. Do not go within 200 metres of Romana Baltazar, or anywhere you know her to live, work, go to school, or anywhere you know her to be;
f. Attend counseling as directed by your probation officer to address addiction issues, anger management, maintaining healthy relationships and any other issue identified by your probation officer;
g. Do not possess any weapons as defined in the Criminal Code
h. Do not apply for any firearms acquisition certificate;
i. Seek and maintain employment or education; and
j. Sign any releases required to allow your probation officer to monitor your attendance at counselling.
B. Davies J.
Released: September 11, 2019
COURT FILE NO.: CR-19-40000439-0000
DATE: 20190911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
and
JAN SANCHEZ
REASONS FOR SENTENCE
B. Davies J.
Released: September 11, 2019