CITATION: R. v. Solorzano Sanclemente, 2019 ONSC 695

COURT FILE NO.: CR-17-3-632

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUAN SOLORZANO SANCLEMENTE

Defendant

Rob Fried, for the Crown

Zaire Puil, for the Defendant

HEARD: November 13, 2018 and December 6, 2018

REASONS FOR JUDGMENT

SENTENCING

FAIETA J

1The Defendant, Juan Solorzano Sanclemente, was convicted by a jury of having committed a sexual assault on M.C. (the “Victim”), contrary to s. 271 of Criminal Code, R.S.C 1985, c. C-46.

2Pursuant to s. 724 of the Criminal Code, I find the following background facts for purposes of determining the Defendant’s sentence.

3The Victim was a university student and an acquaintance of the Defendant, a club promoter and drug dealer, at the time relevant times. She had met the Defendant in the summer of 2015 at a dance club at the invitation of her female friend. She met the Defendant on two more occasions, for only a few minutes, while her same friend purchased cocaine from the Defendant in public locations. The Victim testified that on February 27, 2016, at about 3 pm in the afternoon, she contacted the Defendant to purchase $80 worth of cocaine for herself and another friend for their use later that evening. The Victim had obtained the Defendant’s cell phone number that afternoon through a mutual friend. The Defendant asked the Victim to come to his apartment to purchase and pick up the cocaine, and she did so within an hour or so.

4Upon her arrival, the Defendant buzzed the Victim into the building and greeted her at the entrance door to his apartment by hugging her. The Defendant invited the Victim into his apartment, told her to take off her shoes and offered her a cup of tea. In walking into the apartment the Victim noticed that the Defendant had a single marijuana joint on his coffee table. He invited the Victim to join him on the balcony to look at the skyline.

5When he returned inside, the Defendant sat on the couch and told the Victim to give him a back massage. She told him that she did not want to do so, but she did so after the Defendant told her, “just do it, just do it”. Once the Victim returned to the couch, they smoked the marijuana joint that had been on the coffee table. The Defendant pulled the Victim’s head towards him and tried to kiss her. She said “no” and giggled. The Defendant kissed her and put his tongue into her mouth. She kissed him back because she was scared. She thought about biting his tongue but did not do so. After the kissing, which lasted about one minute, the Defendant put the Victim’s hand on his pants atop his erect penis. The Defendant told her to “squeeze it”. The Victim said “no” a few times. The Defendant took the Victim’s hand and put it under the waist band of his track pants and onto his penis. The Defendant was not wearing underwear. The Defendant repeatedly told the Victim to squeeze his penis as she was not doing anything to his penis while her hand touched it. The Victim said “no” again. The Defendant continued to tell the Victim to squeeze his penis and she finally did so because she was afraid of physically resisting him because he was not responding to the fact that she had said no.

6The Victim explained that she was fearful of physically resisting the Defendant because she had never been to his apartment, had never been alone with him, and she feared that he might have weapons in the apartment because he sold drugs. The Victim said that she refrained from expressing the full extent of her discomfort during this period because it became evident to her that despite saying “no”, the Defendant was going to do what he wanted no matter what she wanted.

7The Victim’s evidence is that after the Defendant stood up, she removed her hand from his pants, and the Defendant stood with his erect penis exposed and told the Victim to “suck my cock”. The Victim said “no”.

8The Defendant’s voice was not loud when he first told the Defendant to “suck my cock”, but the Victim stated it got louder until he began “barking” at her to do so. After the fourth or fifth time he commanded her to “suck my cock”, the Victim leaned in and commenced fellatio as she was afraid of the consequences of not doing what the Defendant wanted her to do. She states that the Defendant’s hands then thrusted her face over her penis for about 60-90 seconds.

9Despite having said “no”, the Victim agreed with Defence counsel’s submission she was laughing or giggling because she was nervous and thinking “what the fuck is happening?” and was not laughing not in the way someone would when something is funny. In any event, by the point that the Defendant told her to “suck my cock”, she was laughing or giggling less than she had earlier. At about this point, the Victim decided to “play along” because she was scared.

10The Victim testified that, at about this point, she decided to pretend that she enjoyed and wanted the sexual activity in the hope that the Defendant would ejaculate and she could leave his apartment. She stated:

I didn’t do anything to communicate that I wanted it until after he didn’t like listen to me say no. That is when I said ok, he is not going to stop, all I have to do is just, like, do what I have to do and get the fuck out of here.

11After performing fellatio, the Victim stood up. The Defendant told her “You are not used to a man touching you like that”. She states that the Defendant, using his arms, pushed her against a wall so that her back was facing the Defendant. The Defendant pulled her tights but not her underwear down. He began digitally penetrating the Victim’s vagina in a “pretty rough” manner. She arched her back so that the Defendant could penetrate her more easily. The Defendant told her “you are a freak and you love it”.

12The Defendant then pushed and bent the Victim over the arm of the couch which was only a step away from the wall. The Defendant tried to take her top off but she stopped him as she felt, in her own words, “fat” and “embarrassed”. The Defendant put his penis into the Victim’s vagina and started thrusting and moaning. The Victim said she “put on a show” and also moaned in the hope that the Defendant would ejaculate more quickly. The Defendant was not wearing a condom. After a few minutes he announced that he was going to ejaculate. The Defendant turned around and the Victim got onto her knees because she “wanted to be done with it” and the Defendant ejaculated into her mouth.

13The Victim explained her state of mind:

When you’re in that situation it’s frightening and I was scared. I did not know what would happen if I bolted out. I was in that mental space, like ok, I’m almost out of here, I’m almost out, you’re like keep going and then you can get out of here. ….

14After the sexual activity ended, they completed the cocaine transaction. After leaving the apartment, the Victim states that she was stunned by what had just happened in the apartment and contacted their mutual friend to tell her what had happened. The Victim reported the sexual assault to police three days later.

IMPACT ON THE VICTIM

15The Crown tendered a letter written by the Victim. It is addressed to the Defendant.

16The Defence submits that this letter should be disregarded because it is not in Form 34.2 as required by ss. 722(1) and (4) of the Criminal Code: R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 58 O.R. (3d) 593 (C.A.) paras. 49-57. However, this is clearly not the result intended by Parliament given its recent enactment of the Victims Bill of Rights Act (S.C. 2015, c. 13) which added the Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2) (see particularly, section 14 and 15 of that statute) as well as s. 25 of the Victims Bill of Rights Act which amended s. 722 of the Criminal Code to include s. 722(9), which provides as follows:

Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730. [Emphasis added]

17Given the statutory mandate to consider the impacts that an offence has had on a victim when sentencing an offender, it makes little sense to allow form rather than substance to govern whether a statement is admissible at a sentencing hearing.

18It is my view that any statement delivered by a victim on sentencing may be considered by a court so long as its subject matter is limited to “describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim” in accordance with s. 722(1). Other matters found in a victim’s statement, such as a sentencing recommendation, criticism of the offender, assertions as to the facts of the offences, statements directed to the offender and descriptions of other offences committed by the offender, are not properly included within a statement delivered under s. 722 of the Criminal Code and must be disregarded in accordance with s. 722(8) of the Criminal Code.

19I agree with the Defence’s submission that the Victim’s letter goes beyond describing the impacts that she has suffered as a result of the offence and, as a result, I disregard those parts of the letter that go beyond its permissible scope.

20The essence of the impacts of this sexual assault upon the Victim are captured in the following paragraphs of her letter:

… I’ll have to live with this for the rest of my life. That I had to have my vagina pried opened and swabbed, that I gave my dirty underwear to strangers for them to inspect, that I have to relive this each time I talk about it in therapy, that I was and am judged for buying and using drugs in the first place, or “putting myself in the situation”… you severely threw my education off course, forget for a moment my life hereafter, …

…these disgusting memories and my continuation through therapy is a huge burden on me. Having to get a rape kit done, get treated for STDs, and get tested for HIV weeks later was a burden on me. Having to recount these memories again and again to the police and in court in front of a jury, in front of your family who had to picture you doing those things to me, is a burden on me. Having to tell my family about it was a burden on me. Being interrogated on the on the stand was a burden for me. Being paranoid about seeing you in public, whether you would ever try to retaliate somehow is a burden on me. Having this incident permanently recorded in the newspaper where I can search your name … is a burden on me – seeing it then felt like my stomach would burst. Writing this now is a burden on me, two years later still dealing with this. …

... having to drop courses and defer my exams, costing me time, energy and money that is already precarious to me as someone with mental health issues.

21The Victim provided a further Victim Impact Statement, dated November 24, 2018, in Form 34.2. The Defence had no objection to its form or content. It states:

Emotional Impact

Any confidence I had about myself previous to this incident is shattered. I feel violated. I have recurring flashbacks about the incident and it’s very difficult for me to keep repeating what has happened throughout this process. My ability to regulate my emotions has been incredibly hard, there have been many times where I’ve spontaneously burst into tears because this is a very painful experience to recall and the memories of the incident will suddenly all come rushing back. The location where the offence occurred is somewhere I pass on a regular basis and it is continuously triggering for me to think about and experience. I feel disgusted with myself and the fact that I will have to live with this for the rest of my life.

I have virtually disconnected from the friend group I used to hang out with prior to this offence. My ability to socialize is greatly limited due to an increased anxiety and discomfort about being in my own body which I experience on a daily and constant basis. My self-hatred greatly increased after this incidence and it continues to this day every time I recall this incident. I feel ashamed every time I think about it and like everything that occurred is my fault, and most of all that I deserved and deserve it.

At the time of the incident I was (and still am) attending university and I have had to defer multiple exams due to mental breakdowns and the process of which was also an extremely exhaustive and difficult process mentally, emotionally and physically. My ability to focus on my school work has greatly suffered and I have had to drop multiple courses due to the compounded stress of going through this and trying to finish school. I have had to visit the emergency room at CAMH both voluntarily and involuntarily due to my mental instability as a result of this traumatic impact on my life. I live with my father who has made multiple comments about how much this has changed my demeanor.

Physical Impact

As a result of this offence I had to have a rape kit done as well as be treated for multiple STDs (as I disclosed to the nurse treating me the offender’s sexual activity). Three weeks later I had to be tested for HIV as well, and received two years of psychotherapy for sexual trauma. I have plans to receive further treatment for sexual trauma as I have an extensive therapy program set up in the upcoming summer.

Economic Impact

My mental and emotional instability has been incredibly high for the past couple years through this entire process. Holding down jobs has been very difficult and my income is very precarious. I am financially dependent on student loans and my father.

Fears for Security

I am fearful that there will eventually be some kind of retaliation, due to how the assault occurred. I am pretty certain the offender does not know where I or my family members live, but with the saturation of social media it is fairly easy to locate people.

I am concerned that the decision to come forward will eventually come back to haunt me, and I often regret coming forward for that reason.

CIRCUMSTANCES OF THE OFFENDER

22A pre-sentence report, dated September 6, 2018, as well as a supplemental pre-sentence report, dated October 2, 2018, were delivered. These reports indicate that:

• The Defendant was born in Colombia in 1991;

• His family moved to Houston, Texas in 1995;

• After his father abandoned his family in 1996, Mr, Solorzano Sanclemente, his mother and three other siblings returned to Colombia. He remains estranged from his father, and states that he suffers from depression due to having no father or male role model; however, he has provided no proof of diagnosis or treatment;

• In 2000, his family claimed refugee status in Miami, Florida;

• In 2005, his family migrated to Canada;

• He dropped out of high school in Grade 11 to pursue his music career with his brothers;

• He worked in sales, manufacturing, construction and demolition;

• He started using alcohol and illicit drugs at the age of 21, such as marijuana, cocaine and MDMA. He states that his use of drugs never affected his behavior negatively; however, he confirms that he trafficked drugs to his friends;

• He obtained employment as a club promoter and he worked in this field at the time of his arrest in this case. He states that he was a “drug addict” while working in clubs;

• He moved out of his family’s home in 2015 to experience living with his current girlfriend. His girlfriend confirmed that their relationship is very loving with no trust issues. She states that they both enjoy art and being creative, and that he has turned his life around. She states that she was completely in shock when she found out about the charges;

• He reports being sober for the last 2 years and 4 months, which roughly coincides with the period following his arrest in this case. He states that he quit alcohol and drug use “cold turkey”;

• Once he was charged with sexual assault, he decided to return to school to complete his high school diploma. He obtained this diploma in June, 2017 from the Scarborough Centre for Alternative Studies. A letter from one teacher described him as very focused on rebuilding his life and staying his course, and that he was well liked and positive;

• He also completed five one-day courses in jewelry making in 2017 and 2018;

• He is waiting for acceptance into a community college to pursue a career in fashion;

• Collateral contacts indicated that Mr Solorzano Sanclemente is very dedicated to school;

• He is currently unemployed and receives Ontario Works benefits;

• He currently resides in Scarborough with his mother, brother, sister and uncle and has done so since April 2016;

• He has volunteered at a church in Scarborough for 64 hours between April 2017 and January 2018. Pastor Lisa Outar states that he is turning his life around;

• He states that he does not have a significant social circle and that God is his friend;

• He states that he is a completely changed man;

• He likes to write poetry, paint and make jewelry in his free time;

• He denies that he sexually assaulted the Victim and expresses no remorse towards her;

• On February 21 ,2018, he was sentenced to 90 days of intermittent custody for trafficking in cocaine and possession of proceeds of property obtained by crime under $5,000. He was bound by a 90 day probation order while serving this sentence and successfully completed this sentence; and

• On October 12, 2018, he pleaded guilty to assault and was given a suspended sentence and nine months’ probation.

23The Defence provided the Court with the following documents:

(1) A letter dated February 2, 2018 from Liberty Catbagan, East Metro Youth Services, which states that the Defendant “… attended a counselling session at our What’s Up Walk In clinic …” on ten occasions in 2016, 14 occasions in 2017, and two occasions in 2018. The What’s Up Walk In counselling clinic is described as “… a six day a week, no fee, no appointment needed service for youth and families dealing with mental health issues such as depression, bullying, sexual identity issues, behavioural concerns and addictions”. No further detail of the service provided to the Defendant is provided in the letter;

(2) A schedule from George Brown demonstrating that the Defendant is enrolled from November 19, 2018 to January 18, 2019 to take various clothing design courses;

(3) Seven letters that speak in positive terms of the Defendant, including a letter from his girlfriend, Colleen Kenny, who cohabited with the Defendant at the time of this sexual assault. Ms. Kenny states that she has known the Defendant since February 2015 and that:

He has always treated me respectfully and I have always felt safe around him. I see him treat other women with respect and kindness as well. He is very family oriented and cares deeply about those around him. He wants to create a better life for himself and his family and proves this every day in his actions. I know that this has been a tough couple of years for him but he doesn’t let his difficulties stop him from improving and doing what he needs to do to advance. He has love and support from his family and friends and I know that he will continue to become a better person each day.

24The Defence also provided the Court with the following bail documents:

(1) Bail Recognizance dated April 15, 2016, in relation to this charge of sexual assault. It was a curfew recognizance that required the Defendant to reside with his sureties and required him to remain in his residence between 8 am and 6 pm unless in the presence of his surety or brother, and to seek employment and to attend counselling;

(2) Bail Recognizance dated May 17, 2016, in relation to two other charges of sexual assault in December 2014 and December 2015. It was a house arrest recognizance with conditions that required him to remain in his residence except while in the presence of his surety, while at counselling, or for medical emergencies;

(3) Bail Recognizance dated August 5, 2016 in relation to another charge of sexual assault in December, 2014. It was also a house arrest recognizance with conditions that required him to remain in his residence with the same exceptions as described above;

(4) The bail conditions were amended on November 24, 2016 by adding another exception to the residence requirement that allowed the Defendant to travel to and from educational pursuits so that he could attend school.

POSITION OF THE CROWN

25The Crown seeks a custodial term of between 2 and 2 ½ years, less credit for pre-trial custody and stringent bail conditions, as well as the following ancillary orders:

(1) a DNA Order pursuant to s. 487.051 of the Criminal Code;

(2) an Order requiring the Defendant to comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to s. 490.012 of the Criminal Code;

(3) a weapons prohibition order pursuant to s. 109 of the Criminal Code for a period of ten years.

26The Crown submits that the Defendant should receive 14 days credit for pre-trial custody. The Crown also submits that five months credit should be granted for the effect of stringent bail conditions imposed on the Defendant.

POSITION OF THE DEFENCE

27The Defence does not oppose the ancillary orders sought by the Crown. She also agrees that the Defendant should receive 14 days credit for pre-trial custody.

28However, the Defence seeks a custodial term of between 12 and 15 months and credit for 10 months credit to compensate for the effect of stringent bail conditions. The Defendant also contests the recommendation made in the Pre-Sentence Report that the Defendant be ordered to not communicate, in any way, with the Victim.

PRINCIPLES OF SENTENCING

29Section 718 of the Criminal Code states that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added]

30Determining a fit and proper sentence requires the court to assess which sentencing objectives figure most prominently in the factual circumstances of a case: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 113.

31Proportionality is the “cardinal principle” in determining whether a sentence is fit. A sentence must be proportionate to the gravity of the offence (how serious the crime and its consequences were) and the degree of the responsibility of the offender (their moral blameworthiness): Criminal Code, s. 718.1; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, para. 12.

32Other sentencing principles that a court must take into consideration when deciding what constitutes a fit sentence are as follows:

• Any aggravating or mitigating circumstances relating to the offence or the offender: s. Criminal Code, s. 718.2(a);

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (the “parity principle”): Criminal Code, s. 718.2(b);

• When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (the “totality principle”): Criminal Code, s. 718.2(c);

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (the “principle of restraint”): Criminal Code, s. 718.2(d); and

• All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention in the circumstances of Aboriginal offenders: Criminal Code, s. 718.2(e).

33Time spent in custody as a result of an offence may be taken into account in determining a sentence: Criminal Code, s. 719(3). In addition, a sentencing judge may take into account, as a relevant mitigating circumstance on sentencing, time spent under stringent bail conditions, especially house arrest: R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 106. The amount of credit to be given, if any, is a function of several factors including the period of time spent under house arrest; 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 activity: R. v. Adamson, paras. 106-107.

34The collateral consequences of a sentence – namely, any consequences of the impact of the sentence on the particular offender – may be taken into account in sentencing, so long as doing so does not violate the principle of proportionality: R. v Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-15.

35Courts have also developed principles to moderate the range of sentences for offenders with prior criminal records: R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346 at para. 10 (the “jump principle”); R. v. Oxford, 2010 NLCA 45, 257 C.C.C. (3d) 484, at para. 22 (the “gap principle”); R. v. Chudley, 2016 BCCA 90, 385 B.C.A.C. 64, at para. 26 (the “step principle”).

36The above principles dictate that sentencing is an individualized process as no two cases are alike.

Range of Sentence

37The maximum sentence for sexual assault under s. 271 of the Criminal Code is ten years; however, s. 271 carries no mandatory minimum sentence.

38The Crown submits that the appropriate or usual range for a sexual assault conviction is between 18 months and three years. However, in R. v. Garrett, 2014 ONCA 734, the Ontario Court of Appeal has indicated that the lower end of the range is something more than 18 months. In that case, the court overturned a 90 day intermittent sentence and imposed a term of imprisonment of 18 months; however, the court was careful to note that this sentence should not be taken as one “within the appropriate or usual range,” as the court was constrained by the Crown’s position at trial that a sentence of 18 months was appropriate (para. 22).

39A sentencing range is a guideline, not a hard and fast rule: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, para. 44. As stated by Wagner J. (as he then was) in Lacasse, paras. 57-58:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. …

Past Sentences for Sexual Assault

40The Crown relied on the following three cases: Garrett, R. v. J.F., 2015 ONSC 5763, R.v. Cubillan, 2015 ONSC 2747, rev’d on other grounds, 2018 ONCA 811.

41In Garrett, the accused returned to the Complainant’s apartment following a date. There was consensual kissing on the complainant’s couch. However, the accused became more aggressive and the complainant injured her back as she slid out from under the Defendant onto the floor. The accused had vaginal intercourse with the complainant without her consent while she was on the floor. The accused ignored her repeated requests that he stop. In imposing an 18 month sentence, the Ontario Court of Appeal stated this case involved a classic “date-rape” scenario where the accused ignored the complainant’s request to stop and thus the Ontario Court of Appeal found that the accused’s “… demeaning behavior and contemptuous disregard for the personal integrity of the complainant engages the predominant sentencing objectives of denunciation and deterrence” (para. 19). Counsel for Mr. Solorzano Sanclemente submitted that Garrett is distinguishable on two grounds: first, in Garrett the complainant sustained visible injury; and second, unlike Mr. Solorzano Sanclemente, the accused had not made “substantial efforts” at rehabilitation. However, I note that in Garrett, the visible injuries sustained were relatively minor. Further, the accused’s long life of “exemplary conduct” and reputation in the community is more, not less, significant than Mr. Solorzano Sanclemente’s recent efforts at self-improvement.

42In R. v. J.F., the 25 year-old accused was remorseful, had no prior criminal record, was employed with the same company for six years, and had good prospects for the future. He was sentenced to 18 months imprisonment after having sexual intercourse with the complainant, a co-worker, while intoxicated; the incident occurred after a night of drinking alcohol at a Christmas party, while the complainant was sleeping in the hotel room that they shared. Counsel for Mr. Solorzano Sanclemente submits that this case is distinguishable as it involved a breach of trust as opposed to “a failure to discharge a duty to inquire”. In my view, this is a distinction without a difference.

43In R.v. Cubillan, 2015 ONSC 2747, rev’d on other grounds, 2018 ONCA 811, the accused, a 56 year-old electrician with no prior criminal record, had unprotected sexual intercourse with the complainant while she was intoxicated, intermittently conscious, and incapable of providing her consent to the sexual activity. There was no apparent remorse. The accused was sentenced to two years imprisonment less one day. Unlike Cubillian, in the case at bar, the Victim was not intoxicated or intermittently conscious throughout the sexual assault.

44The Defence relied on the following three cases: R. v. Smith, 2015 ONSC 4304, R. v. Scinocco, 2017 ONCJ 359, and R. v. D.D., 2015 ONSC 1312.

45In two of the three cases, Smith and Scinocco, the Crown proceeded by way of summary conviction rather than by indictment. This is a significant distinction on sentencing given that s. 271(b) of the Criminal Code provides that the maximum sentence available for sexual assault where the Crown proceeds by summary conviction is 18 months imprisonment.

46In Smith, the accused, 25 years old, had sexual intercourse with the complainant while she was asleep. The accused’s submission that this sexual activity had been consensual was rejected; he was convicted of sexual assault and a 16-month conditional sentence was imposed. On appeal, Justice K.L. Campbell found that the trial judge had failed to emphasize the importance of denunciation and had overemphasized the significance of rehabilitation. Counsel for Mr. Solorzano Sanclemente submits that Smith is similar to the case at bar because in Smith, the accused gave evidence that the complainant was an enthusiastic and active participant in the sexual activity. However, I infer that the accused’s evidence was not accepted as he was convicted of sexual assault, thus diminishing the factual similarities between the two cases.

47In Scinocco, after an evening of drinking, the accused, 39 years old, attempted to have sexual contact with the complainant before and after she fell asleep. There was partial vaginal penetration for a brief period while the complainant slept. The accused, having been treated as a having no criminal record, and a supportive family and employer, showed no remorse. He was sentenced to 12 months imprisonment.

48In D.D., the accused, age 26, had sexual intercourse with a sleeping university student. The sexual assault had a significant emotional impact on the complainant. The accused, who was employed and had no prior record, expressed remorse and acknowledged the harm that he had done to the complainant. He was sentenced to 12 months imprisonment.

Aggravating Factors

49There are a number of aggravating factors in this case:

• The Victim repeatedly said “no” to the Defendant’s unwanted sexual touching;

• The sexual assault included vaginal intercourse and fellatio;

• The Defendant had unprotected sexual intercourse with the Victim; and

• As described above, the sexual assault has had profound impacts on the Victim.

Mitigating Factors

50There are a number of mitigating factors:

• The Defendant had no criminal record at the time that he sexually assaulted the Victim;

• The Defendant was 25 years old at the time that he committed this sexual assault;

• The Defendant is trying to turn his life around. He has abstained from alcohol and drugs for over two years, since obtained his high school diploma, and has enrolled in a community college;

• The Defence submits that the Defendant should receive 10 months credit for stringent bail conditions for the period since May 17, 2016 being one-third of the time spent on stringent bail conditions. The Defendant sought, and was granted, a variation so that he could pursue his education. He was also granted a variation to permit him to travel to, and from, his intermittent sentence without being accompanied by a surety. The Crown noted that there is no evidence as to how the bail conditions impacted the Defendant. There is no evidence that the Defendant sought, and was denied, a variation so that he could work or that he sought and was denied any other variation. The following statement of the Ontario Court of Appeal in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 44, is apt:

… we actually know very little about how the appellant spent his time while on house arrest. It is unclear, for example, whether the condition that his surety always accompany the appellant, interfered with any realistic employment prospects. … It is also unclear whether the house arrest severely constrained the appellant's ability to move around. As the Crown fairly points out, there were no limits on the appellant's ability to leave the house for any purpose, provided he was accompanied by his surety.

• I also question the extent to which the stringent bail conditions were “as a result” of the sexual assault offence that is the subject of this sentencing. Given that the initial “curfew recognizance” was granted in April 2016 in relation to this sexual assault offence, and given that two subsequent sexual assault charges each resulted in a “house arrest recognizance” in May 2016 and August 2016, it is my view that the bail granted in August 2016 would have resulted in “house arrest recognizance” had the sexual assault offence charge in this case not been laid. Accordingly, this limits the connection between this sexual assault offence and the Defendant’s bail conditions after August 5, 2016;

• I accept the Crown’s submission five months credit be granted for stringent bail conditions;

• I reject the Defendant’s submission that it is a mitigating circumstance that there was “no violence beyond the inherent violence of the act”. Sexual assault is an act of violence: R. v. Osolin, [1993] 4 S.C.R. No. 595, at para. 33; R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103 (C.A.), at para. 44. The fact that the Defendant did not also strike the Victim and commit a further act of violence is not a mitigating factor, although it could have been an aggravating factor or could have led to a charge and conviction for sexual assault causing bodily harm under s. 272, rather than s. 271, of the Criminal Code;

• I reject the Defendant’s submission that there was no premeditation by the Defendant in committing this sexual assault as there is no basis to infer that conclusion from the jury’s decision to convict the Defendant. As set out in R. v. Nelson, 2014 ONCA 853, 325 O.A.C. 381, a sentencing judge “must accept as proven all facts that are essential to the jury’s guilty verdict, and may find other relevant facts disclosed by evidence at trial”: para. 56. The findings of fact need not represent the minimum facts on which the jury could possibly have reached a guilty verdict: Nelson, para. 57. I find that several circumstances, support the view that this sexual assault was premeditated. These include the fact that the Defendant asked the Victim, an acquaintance, to come inside his apartment to purchase cocaine; asked her to take her shoes off; offered her a cup of tea; and invited her to come onto his balcony to look at the skyline; and

• I reject the Defendant’s submission that the Defendant suffered slight bruising to his head as a result of being arrested on a subsequent charge of possession for the purpose of trafficking. No such evidence was led at trial. Even if such bruising was a result of his arrest, I found in another ruling released today, related to the admissibility of a video statement given by the Defendant to police, that the single blow to the Defendant’s head at the time of his arrest following his failure to comply with a police officer’s command to lie on the ground with his hands behind his back was not an excessive use of force in the circumstances.

Lack of Remorse

51Mr. Solorzano Sanclemente has expressed no remorse for this sexual assault or the impacts that it has had on the Victim. Further, the Pre-Sentence Report states that the Defendant takes no responsibility for this sexual assault and states the Victim consented to the sexual activity.

52In R. v. Shah, 2017 ONCA 872, at para. 8, the Ontario Court of Appeal stated:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251 (Ont. C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220 (Ont. C.A.), at para. 84, (2011),105 O.R. (3d) 161 (Ont. C.A.); aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565 (S.C.C.). Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. P.(B.) (2004), 2004 CanLII 33468 (ON CA), 190 O.A.C. 354 (Ont. C.A.), at para. 2. [Emphasis added]

CONCLUSIONS

55Mr. Solorzano Sanclemente brazenly ignored the Victim’s wishes when she repeatedly told him that she did not want to participate in sexual activity. His failure to do so, and the disrespect for the Victim inherent in such failure, constitute “demeaning behavior and contemptuous disregard for the personal integrity of the complainant” that engage the predominant sentencing principles of denunciation and deterrence: Garrett, para. 19.

53The Defence makes too much of the fact that the Defendant no longer uses alcohol or drugs and is focused on moving forward with his education and career as evidence that he will not commit another sexual assault. The Defendant was not intoxicated at the time of this sexual assault and the positive steps that he has taken are not directly connected to the criminal behavior that resulted in this sexual assault conviction. The Defendant’s prospects for rehabilitation turn on “whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse”: Proulx, para. 113. There is no evidence that the Defendant has received any counselling directly related to obtaining any insight into his own behaviour that led to this sexual assault. The Defence indicated that the Defendant would not support a referral to the CAMH Sexual Behaviours Clinic as recommended in the PSR as it is not an “appropriate recommendation” as this was a case of “misjudgment and a failure to discharge a duty”. The Defence submits that the Defendant’s mental health issues (namely, depression, for there is no clinical evidence) have been explored through counselling at East Metro Youth Services. There is no evidence that such counselling provides insight into the Defendant’s attitudes and beliefs that led to this sexual assault. Further, as already noted, the Defendant does not express remorse and maintains that the sexual activity was consensual. As a result, the Defendant has not demonstrated that he is rehabilitated nor even that he is a strong prospect for rehabilitation.

54In all of the circumstances, I find that a fit sentence is 26 months incarceration, followed by three years of probation. Against this sentence, the Defendant shall be given 14 days credit for time served in pre-trial custody and a credit of five months for stringent bail conditions.

55The probation order shall include the conditions found in s. 732.1(2) of the Criminal Code as well as the following additional conditions made pursuant to s. 732.1(3) of the Criminal Code:

• Keep the peace and be of good behavior;

• Report to a probation officer within two working days from the Defendant’s release from custody and thereafter, when required by the probation officer and in the manner directed by the probation officer;

• Remain within the jurisdiction of the Court unless prior written permission to go outside that jurisdiction is obtained from the Court or the probation officer;

• Abstain from communicating, directly or indirectly, with the Victim;

• Refrain from going within 100 metres of any place where you know the Victim to live, work, attend school, frequent or any place you know her to be;

• Appear before the Court when required to do so by the Court;

• Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation;

• Attend and actively participate in the CAMH Sexual Behaviours Clinic within 90 days of release from custody and comply with all treatment recommendations made by CAMH in relation to this program and provide proof of compliance of this condition to a probation officer within 30 days of demand by a probation officer;

• Attend and actively participate in any assessment, counselling or rehabilitative program(s) as directed by a probation officer and complete them to the satisfaction of a probation officer;

• Sign any release of information forms, as directed by a probation officer, to allow a probation and parole officer to monitor your attendance, participation and completion of any assessments, counselling or rehabilitative programs as directed.

56Despite the Defendant’s opposition to a condition that prevents him from contacting the Victim on the basis that it is unnecessary, given the profound impact that this sexual assault has had on the Victim, including the fear of the Defendant that she has expressed, I also order, pursuant to s. 743.21 of the Criminal Code, that the Defendant not communicate, directly or indirectly, with the Victim during the custodial period of his sentence.

57I also order that the Defendant:

• Provide DNA samples pursuant to s. 487.051 of the Criminal Code; and

• Comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to s. 490.012 of the Criminal Code.

58I also order that a weapons prohibition order be issued against the Defendant for a period of 10 years pursuant to s. 109 of the Criminal Code.

FAIETA J.

Released: January 28, 2019

CITATION: R. v. Solorzano Sanclemente, 2019 ONSC 695

COURT FILE NO.: CR-17-3-632

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE