Court File and Parties

Court File No.: CR-17-10000701-000 and CR-17-10000826-0000 Date: 2020-05-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Gavin MacMillan – and – Enzo DeJesus Carrasco

Counsel: Rick Nathanson and Pamela Santora, for the Crown Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan Uma Kancharla, for Enzo DeJesus Carrasco

Heard: January 29, 2020

Before: M. Dambrot J.

1Gavin MacMillan and Enzo Carrasco were each found guilty by a jury of one count of sexual assault to which the other was a party, an offence generally referred to as gang sexual assault (count 1 for Mr. MacMillan and count 2 for Mr. Carrasco), and one count of administering a stupefying or overpowering drug with intent to assist themselves to commit the indictable offence of sexual assault (count 5 for both offenders). The jury was unable to reach a verdict on two other counts, one of which was unlawful confinement, and found Mr. Carrasco not guilty of one additional count of sexual assault.

2I heard the submissions of counsel on January 29, 2020, and imposed sentence on February 12, 2020. On the count of gang sexual assault, I imposed a sentence of 7 years on each offender, less, in the case of Mr. MacMillan, 41 days as a result of 27 days of pre-sentence custody, and, in the case of Mr. Carrasco, 177 days as a result of 118 days of pre-trial custody plus an additional 5 days for 19 days of lock-down for a total of 182 days. I did not consider that any additional credit should be given to either offender in this case in relation to the time they spent on judicial interim release.

3On the count of administering a stupefying substance, I imposed a sentence of 2 years to be served consecutively.

4In addition, I made the following orders in respect of both offenders:

• A primary DNA order pursuant to s. 487.051 of the Criminal Code
• A prohibition order pursuant to s. 109 of the Criminal Code for life
• A SOIRA order pursuant to s. 490.012 and s. 490.013(2)(b) of the Criminal Code for 20 years
• A non-communication order with the victim and all members of her family pursuant to s. 743.21 of the Criminal Code.

5At the time I heard the sentencing submissions, and on the day I imposed sentence, I was presiding over a first degree murder trial, and it proved to be impossible for me to give full reasons for sentence without further adjourning this case. As a result, I explained briefly some of the findings of fact that I had made for purposes of sentencing and imposed the sentence that I considered appropriate, with full reasons to follow. These are those reasons.

The Offences

6In December 2016, Mr. MacMillan was the owner of the College Street Bar in Toronto. Mr. Carrasco was employed by Mr. MacMillan as the general manager of the bar. Mr. MacMillan also ran BartenderOne, a bartender training program. On Wednesday December 14, 2016, Mr. MacMillan was hosting a “Blazers” event at the College Street Bar. A Blazers event was a regular Wednesday evening event that allowed BartenderOne students to get experience behind a real bar.

7The complainant attended the bar that evening to meet a friend who was employed at the bar. While waiting for her friend, she sat at the bar, spoke with Mr. Carrasco, and consumed alcohol. When the Blazer’s event ended, only the two offenders, the complainant and her friend remained in the bar. Ultimately, the complainant’s friend left, and the complainant remained. The offenders and the complainant consumed additional alcohol. At 11:21 p.m., Mr. MacMillan left for the Orbit, another bar on College Street. By the time that Mr. MacMillan left the bar, the complainant had been served seven alcoholic beverages over a two-and-a-half-hour period.

8I note that the complainant had very little recollection of the events of the evening after Mr. MacMillan left the bar. Based on the evidence of Rachelle Wallage, a forensic toxicologist who examined a sample of the complainant’s blood taken the day following the events in question, I am satisfied that this memory loss is real. It is attributable to the complainant’s consumption of alcohol, which can be observed on the video, together with the presence of four other central nervous system depressants in her system, specifically three anti-epileptic drugs that she was required to take daily and oxazepam.

9Although the complainant was unable to recall much of what happened that night, Mr. MacMillan had a multi-camera surveillance system in his bar, and most of the events were video recorded, albeit with no audio. The police were able to seize these videos before Mr. MacMillan had the opportunity to erase or destroy them, and they were played for the jury. Without the videos, the Crown could not have proved its case. The times displayed on the videos were not accurate – they were off by about an hour. I will refer to the times on the videos throughout these reasons for ease of reference.

10Mr. Carrasco and the complainant remained in the bar together during the period from 11:21 to 11:49 p.m. During that time, they engaged in flirtatious activity, and Mr. Carrasco put his hands into the complainant’s pants. He testified that he placed his hands in her vagina in an effort, in his words, to make her “do squirt.” This activity was the subject of a separate count in the indictment. The jury acquitted Mr. Carrasco on this count.

11At about 11:50 p.m., Mr. Carrasco and the complainant left the bar. According to Mr. Carrasco, they went to another bar across the street called Pour Boy. At 12:02 a.m., Mr. Carrasco texted Mr. MacMillan and said, “this bitch is out of control”. At 12:31 a.m., Mr. Carrasco texted Eddo, his cocaine dealer, and said “yoo, i have a girl pass out, how longg.”

12I pause to note that Ms. Wallage testified that cocaine is a central nervous system stimulant. It is abused for its euphoric and energizing effect. She said that if alcohol and cocaine are both taken at the same time, the sedating effect of alcohol may be balanced out to some degree by the alertness effect of cocaine, and the individual may be less sleepy. It is apparent that the offenders were aware of this and administered cocaine to the complainant for this reason, which in turn would make her “available” to them for sex. But, importantly, Ms. Wallage went on to say that where alcohol and cocaine are both consumed, the individual may still feel the sedating effects of alcohol to some degree, and some of the other effects of alcohol may still be present, such as its effect on fine and gross motor coordination. In addition, Dr. Kari Sampsel, a medical clinician with expertise in the impact of alcohol and drugs, testified that while cocaine increases activity level and alertness, it does not necessarily change executive function.

13Returning to the narrative, in response to Mr. Carrasco’s question about how long he would be in delivering the cocaine, Eddo responded, “10 minutes.” Mr. MacMillan then sent Mr. Carrasco a text in which he said “ETA”. Mr. Carrasco replied, “12, just asked.” At 12:34 a.m., the complainant and Mr. Carrasco re-entered the College Street Bar. By this time, the combination of drugs and alcohol in the complainant’s system that I have already described had had a significant sedating effect on the complainant and caused a significant loss of motor coordination. She was visibly and unmistakably highly intoxicated. In fact, her level of intoxication was so high that she lost consciousness for a period of time.

14At 12:36 a.m., Mr. MacMillan sent a text to Mr. Carrasco asking if “she” is coming with him, obviously meaning to the Orbit, where Mr. Carrasco had said in an earlier text that he was going to meet Mr. MacMillan. Mr. Carrasco replied, “Shes dead dead dead, im dealing with it” by which he obviously meant she had passed out.

15These text messages (together with the video) tell the story of the complainant’s deterioration from drunk to drunker to passed out, followed by Mr. Carrasco’s determination to acquire cocaine as quickly as possible in order to make the complainant alert enough for what he had decided was to follow. At one point, Mr. Carrasco went over to the complainant and slapped her, trying to keep her awake.

16At 12:41 a.m., Mr. Carrasco took delivery of his cocaine from Eddo. He put it through a strainer, placed it on a plate and made it into one big line using credit cards. He then divided the big line into smaller lines for snorting. At 12:46 a.m., he administered cocaine to the complainant with a straw. At 12:47 a.m., she got up and stumbled to the front of the bar and went out. At 12:49 a.m., she stumbled back in, looking a little worse for wear, and Mr. Carrasco administered cocaine to her again.

17At 12:50 a.m., Mr. MacMillan came in. At 12:59 a.m., the complainant had her head on the bar, and Mr. MacMillan told her to lift her head up. She kept saying that she was tired, so Mr. Carrasco hit the bar and told her to lift her head.

18At 1:02 a.m., the complainant was talking to Mr. MacMillan, and he was telling her that she couldn’t rest her head on the bar. Mr. Carrasco then lifted her up and said to her that she had to get up. He said, “I’m talking to you” and she said “Okay”. He told her that her response to him should be, “Yes sir.”

19At 1:05 a.m., Mr. MacMillan cut up some lines of cocaine at the bar and directly presented some of it to the complainant, placing the tray under her nose. She consumed two more lines in a one-minute period. A few minutes later the complainant did another line of cocaine at the bar and then Mr. Carrasco cleaned off the little cocaine left on the tray and rubbed it on her gums.

20From about 1:20 a.m., and continuing until about 6:30 a.m., there was an almost continuous sequence of sexual activity involving the offenders and the complainant, beginning upstairs, continuing in the basement, then back upstairs, and so on, often involving both offenders together, sometimes involving only one or the other. There was no question that this sexual activity took place – in view of the existence of the video, there could not be. But the offenders took the position that all the sexual activity was consensual, and to the extent that any of it was not, they honestly believed that it was. The jury rejected these positions, but, as will be seen, the offenders have tried to contain the jury’s finding. They argued that in sentencing the offenders, I should find that only a small part of the activity was non-consensual. As I will explain, I do not reach that conclusion. On the contrary, I find as a fact, beyond a reasonable doubt, not only that none of the activity that took place between 1:20 a.m. and 6:30 a.m. was consensual, but also that the offenders did not believe that any of it was. Before explaining my reasoning, I will describe some of the evidence of what took place during that time period.

21Over the first two hours of this period, the complainant floated in and out of consciousness and awareness as Mr. MacMillan and Mr. Carrasco continuously penetrated her mouth and vagina with their penises and hands while in the main floor level of the bar. She was their plaything. Their actions were entirely at their own discretion and for their own pleasure. There are dozens of moments in this initial upstairs segment alone when it is beyond dispute that the complainant was either unconscious, incapable of consenting, or factually not consenting to the sexual activity that was taking place.

22In addition, any time the complainant showed signs of resisting the desires of Mr. MacMillan or Mr. Carrasco, she was overpowered. When her resistance grew too strong for their enjoyment, she was offered more cocaine to induce a deeper sense of euphoria and compliance. And any time she attempted to put on clothing it was removed – that was simply not her choice to make.

23The offenders testified that this was consensual BDSM role playing, but it clearly was not. The complainant was unconscious at times, and when she was not, her efforts at resistance were genuine, and her executive functioning was significantly impaired by the alcohol, cocaine, and other central nervous system depressants in her body. She was so affected by these substances that she could no longer appreciate the nature of the sexual acts, the identities of the persons committing them, or her right to say no. In other words, she was incapable of consenting, even at those times when it might have appeared otherwise. By way of illustration, I will describe in greater detail only a little of what took place.

24At around 1:20 a.m., at the beginning of the sexual activity on this count, the complainant was held from behind by Mr. MacMillan while Mr. Carrasco penetrated her vagina vigorously with his hand.

25At around 1:33 a.m., the complainant, after stumbling toward a stool, had her torso placed on a stool, with her face toward Mr. MacMillan, and Mr. Carrasco again penetrated her digitally from behind. The complainant appeared to be significantly intoxicated and unable to stand. She was being held up by both offenders and being repositioned by them. Her legs moved as they moved her. After Mr. Carrasco put the complainant over his shoulder, turned her and placed her over a stool, and the two men positioned themselves in front and behind her, they appeared to be holding her up. When they let go of an arm, for example, it dropped, and her legs simply slid outward. When Mr. Carrasco tried to move her, she lurched and displayed what Dr. Sampsel described as severe ataxia. She was not using her own muscle tone to hold herself upright. Dr. Sampsel testified, and I accept, that she did not have cognitive ability and executive function at this point.

26At 1:42 a.m., the complainant was on her knees giving oral sex to Mr. MacMillan. She was being held up or suspended by the hair by Mr. MacMillan and moved by Mr. Carrasco. When Mr. MacMillan readjusted his grip on her hair, her body dropped downwards like dead weight, and she was not able to hold her head up or suspend herself on her own. The complainant was held up by Mr. MacMillan by her hair while Mr. Carrasco penetrated her vagina with his fingers from behind. When Mr. Carrasco did this, one of her arms swayed with Mr. Carrasco’s movement, and her hand was held in a position of passive relaxation as happens when we are asleep or unconscious and our muscles are flaccid – neither stretched out nor in a fist. Dr. Sampsel also observed the flaccidity of the complainant’s abdominal and thigh muscles, which she said were rippling to a quite significant degree with Mr. Carrasco’s movement. Dr. Sampsel said that it is very difficult to relax oneself to this extent unless one is very incapacitated or unconscious. All of this led her to the opinion, which again I accept, that the complainant was quite intoxicated at this time. If she was not entirely unconscious, she was very close to it.

27At 2:01 a.m., the complainant was lying supine on the floor. Mr. MacMillan encouraged her to sit up with a little push and she was able to sit up. She appeared to be trying to put on her underwear in a seated position and exhibited ataxia. She then stood up and tried to pull her pants back on. Her feet were wide apart, she was weaving, exhibiting truncal ataxia and had little difficulty getting her pants up. Mr. MacMillan held her up and slapped her on the face. She appeared to be significantly intoxicated. She pushed away from him with a wide sweeping motion, then staggered away.

28I do not propose to describe the remainder of the sexual activity except to mention a few obviously non-consensual moments. I note that throughout this period of time, the administration of lines of cocaine to the complainant continued, including at 2:53 a.m., 4:01 a.m., 5:09 a.m. and 5:23 a.m.

29At around 3:53 a.m., now in the basement storage room, Mr. MacMillan slapped the complainant repeatedly in the face with his penis until she slapped at his arm and pushed him away, while Mr. Carrasco stood by.

30At around 4:12 a.m., the complainant was held by the arms by Mr. Carrasco while her mouth was over Mr. MacMillan’s penis.

31At around 4:14 a.m., back upstairs in the bar, the complainant was placed on a table, her arms were restrained by Mr. MacMillan, and she was penetrated again by Mr. Carrasco while her arms and legs were in motion.

32At 6:04 a.m., in the basement office, the complainant was put down on a blanket on the floor, and Mr. Carrasco then pried her legs open and began to digitally penetrate her. The complainant struggled and tried to pull his arm away, but Mr. MacMillan then came over and pinned her arms to her chest.

33I said earlier in these reasons that the offenders argued that in sentencing the offenders, I should find that only a small part of this activity was non-consensual. As I will explain, I do not reach that conclusion. On the contrary, I find as a fact, beyond a reasonable doubt, not only that none of the activity that took place between 1:20 a.m. and 6:30 a.m. was consensual, but also that the offenders did not believe that any of it was. I explained my reasoning when I imposed sentence on the offenders but will repeat that explanation now.

34I begin with the earliest period of time covered by this count. That period of time began when the victim and Mr. Carrasco returned to the bar. In this initial period of time, before the sexual activity began, the victim was visibly and significantly impaired, stumbling, crashing into tables, and ultimately was either asleep or unconscious seated at a table. To repeat the words of Mr. Carrasco once again, she was “dead dead dead”. When the sexual activity commenced, her condition was little changed. She was unconscious or virtually unconscious while being subjected to one or another form of penetration of her mouth and vagina by the offenders, often simultaneously. Before the jury, the offenders took the position that, in reality, the victim was pretending to be unconscious, but was actually directing the sexual activity, and they were simply obeying her commands. I reject their characterization of these events in its entirety. No reasonable person who views the video of these events could conceivably do otherwise. The offenders now say that the jury must have been satisfied that the complainant lacked the capacity to consent at that time, but the remainder of the activity, they argue, was consensual. I reject this position.

35It is entirely incredible to imagine, as the offenders would have it, that a woman being violently sexually assaulted by two men while she was unconscious or virtually unconscious, would awake from her unconsciousness, find herself being abused in this horrific way, and would not only immediately consent to it continuing, and in fact continuing for many hours, but more than that, would take over as the director of the activity, requiring it to continue even when the offenders were prepared to end it. That, of course, is not what happened.

36It is true that, viewed in isolation, the victim might appear in the video at times to be engaging in some of this subsequent sexual activity voluntarily. But that would be to ignore reality, to ignore not only the context, but to ignore as well the implications of the second offence that the offenders were convicted of – administering a stupefying or overpowering drug with intent to assist themselves to commit the indictable offence of sexual assault. That is precisely what happened throughout this part of the sexual assault. The offenders continually administered cocaine to the victim in order to keep her awake and to keep her available for their sexual gratification. Consistent with the evidence of Dr. Sampsel, I find that while the cocaine kept the victim awake and active, it did not restore her full cognitive function. She was not consenting, and the accused could not have imagined that she was.

37Counsel for the offenders suggested that I was precluded from finding that the later sexual activity was non-consensual because the jury was hung on the count of unlawful confinement. They say that if they were sexually assaulting the victim at that time, they were necessarily unlawfully confining her. I do not disagree with them that the victim was being unlawfully confined during the sexual assault, but in my view, this was true from start to finish, including during the initial period of the offence. But I do disagree with them about the implications of the jury being unable to reach a verdict on the count of unlawful confinement. It cannot be the case that the jury being hung on that count constrains my fact finding in any way whatsoever. A jury being hung on a count in an indictment results in a mistrial on that count. It is not a verdict. The accused can be tried again on the count. It is not tantamount to an acquittal, as counsel for the offenders effectively would have it. I must not and do not speculate on why the jury might have been hung, but I am in no way precluded from making findings of fact that are consistent with the verdicts actually reached by the jury.

38In all of the circumstances, I find as a fact, beyond a reasonable doubt, that the complainant’s cognitive ability was never fully restored, that she never consented to any of the sexual activity at the College Street Bar that was the subject matter of counts 1 and 2, and that that was exactly what the two predators who kept her that way intended. They had no mistaken belief that she was not consenting.

The Impact of the Offences Committed by the Offenders

39These crimes have had a profound impact not only on the victim, but also on her friends and family. The victim’s testimony at trial revealed that she suffered both psychological and physical injuries as a result of this horrific night at the hands of the offenders. She suffered extensive physical injuries at the time, including bruising all over her body, and external and internal vaginal injuries. She has also suffered from depression, fear and anxiety, has endured physical pain and is often sick. These events had a catastrophic and on-going impact on her life and the lives of her entire family.

40In addition, I received a victim impact statement from the mother of the victim. She poignantly described the happy, loving, creative and trusting individual her daughter was, and the crippling physical and emotional damage done to her by the offenders. She described her daughter waking up screaming repeatedly as a result of horrible nightmares, flinching from efforts to comfort her or hug her, and crying with knee, back and jaw pain. She described how she could barely leave the couch, far less the house for the first three months after the crimes, and how she would sleep for hours and stay in bed for days. She also described how heart-wrenchingly painful it has been for her and the rest of her family to witness the victim’s suffering and the changes in her as a result of these offences. At the same time, her family is proud of her, and sees her as their “hero, and one hell of a fighter.”

The Offenders

Mr. MacMillan

41Mr. MacMillan is 45 years of age. He has no criminal record. His father died when he was young, and he played the role of big brother for six siblings. He has the benefit of the continued support of his family. He has a five-year-old son who lives with his mother, but Mr. MacMillan is close to his son and is a caring and supportive father.

42Mr. MacMillan has a strong work ethic. At the time of the offence he was the owner of a bar and of a company that had trained over 33,000 bartenders. He was a promoter of safe alcohol consumption. He has now lost everything. As a result of a social media campaign after his arrest, his licence was suspended and he was compelled to sell his business to repay his debts.

43When arrested, he was detained in custody. While in custody, he suffered an injury that required surgery and caused him permanent damage. He was granted judicial interim release and spent two years on house arrest. In January 2017, he was re-arrested for allegedly breaching his recognizance. The charge was withdrawn after he spent 27 days in custody. The restrictions on his liberty became more lenient in December 2018. Thereafter he was subject to a curfew.

44A number of letters of support were filed on Mr. MacMillan’s behalf attesting to his positive qualities. I accept them without reservation, save with respect to one matter. Several writers pointed to Mr. MacMillan’s respectfulness, and conveyed their opinion that these offences are out of character. I do not doubt that Mr. MacMillan is respectful in most circumstances, but I do not for a second accept that these offences are out of character. Mr. MacMillan engaged in a prolonged, violent and degrading sexual assault, displaying a deep sense of entitlement and a profound disrespect for the personal integrity of a young woman. No one of good character slips into such conduct. It is a part of who Mr. MacMillan is.

45If confirmation is needed, it is to be found in the thoroughly misogynistic attitude toward women revealed in other sexual encounters with women that he engaged in at the bar, video recorded and retained. In addition, his text messages underscore this attitude toward women. He sees them as disposable instruments for his sexual gratification. His communications bespeak a hormonal teenager at best, not an adult in his 40s who owns a business. He is clearly a man with two personas – one public and one private.

46I note that counsel for the offender objected to the Crown relying on recordings and text messages created by Mr. MacMillan that are not directly related to the offences. I see no reason why they cannot be relied on in relation to sentencing in general, but in any event, in this case, the evidence is available to refute the assertion that the offence is inconsistent with Mr. MacMillan’s character. To be clear, whatever use I might be permitted to make of this evidence, I choose not to refer to the videos and texts as matters that aggravate sentence. I reference them only to explain why I take the letters attesting to Mr. MacMillan’s good character and respectfulness that were tendered as evidence that mitigates sentence with a grain of salt.

Mr. Carrasco

47Mr. Carrasco is 31 years of age. He was born in the Dominican Republic and is not a Canadian citizen. He and his two sisters were raised by his mother. His father is not in his life. He is very close to his sisters, and is described by them and his mother in letters provided to the court as supportive, caring, a guiding angel, hard-working, responsible, empathetic, tolerant, considerate, kind and understanding, and above all a man who respects women. His sisters said that he is a person who instilled values of honesty, responsibility and respect toward others in them. One of his sisters said that he taught them from a very young age that “women were like a rose that man should take care and protect at all times.” In addition, he is seen as generous, hard-working and considerate by his girlfriend

48Again, I do not doubt most of what was said about Mr. Carrasco, but like Mr. MacMillan, he is a man with two personas. When it comes to satisfying his own sexual gratification, he strays very far from the ideal he taught his sisters. Like Mr. MacMillan, he sees women, or at least some women, as disposable instruments for his sexual gratification. Again, I take this good character evidence with a grain of salt.

49Mr. Carrasco has been released on bail at times since his arrest on these charges. Some of the time he was subject to house arrest; some of the time he was subject to a curfew. However, he has spent a total of 118 days in pre-trial custody including 19 days of lock-down.

The Positions of the Parties

50Crown counsel submits that I should impose a twelve year global sentence of imprisonment on each offender, consisting of a nine year sentence for gang sexual assault, and three years consecutive for administering a stupefying drug, less an appropriate reduction for time served in pre-sentence custody, together with certain ancillary orders. He submitted that this lengthy sentence of imprisonment was justified having regard to the prolonged sexual assault consisting of multiple degrading and invasive acts that the offenders jointly inflicted on a smaller, vulnerable victim, particularly having regard to their legal and moral responsibility for the well-being of any person who attended their bar, and particularly one who, to their knowledge, was at times at the edge of unconsciousness, but whom, instead, they kept awake in order to prolong their sexual assault with the frequent administration of cocaine.

51Counsel for Mr. MacMillan submitted that a total sentence of two years less credit for 27 days of pre-sentence custody was appropriate if I found that all of the sexual activity was non-consensual, but a total sentence of twelve months less credit for 27 days of pre-sentence custody was appropriate if I found that only a small part of the activity was non-consensual.

52Counsel for Mr. Carrasco submitted that a total sentence of 5 months and 29 days, taking into account pre-sentence custody was appropriate, having regard to the fact that a sentence of six months or more would result in the offender’s deportation without appeal.

Analysis

53I begin by noting that ordinarily, sexual assault is a hybrid offence, and when prosecuted by indictment, the maximum punishment is imprisonment for ten years (s. 271(a) of the Criminal Code). However, when sexual assault is committed with another person, the offence may be prosecuted only by indictment, and the maximum punishment is fourteen years (s. 272(1)(d) and s. 272(2)(b) of the Code). Section 272 of the Code was enacted in 2003. The increased punishment made available by s. 272(1)(d) and s. 272(2)(b) was obviously intended to reflect the greater seriousness with which Parliament viewed the offence of sexual assault when committed jointly by more than one person, and accordingly to ensure that this greater seriousness is reflected in sentences imposed for this offence.

54In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and to promote a just, peaceful and safe society by imposing just sanctions. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include denunciation of unlawful conduct and the harm done to victims, general and specific deterrence, separation of offenders from society where necessary, rehabilitation, provision of reparations for the harm done to victims or the community, and the promotion of responsibility in offenders and acknowledgement of the harm done to victims and the community.

55I must also take into consideration the sentencing principles found in s. 718.1 and s. 718.2 of the Criminal Code. Section 718.1 of the Criminal Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, I take into account, as I have already noted, that Parliament has seen fit to create a separate offence and enhanced punishment for committing a sexual assault jointly with another person. This makes the offence of sexual assault with another person an inherently more serious offence than sexual assault contrary to s. 271 of the Code and diminishes the precedential value of sentences imposed in most other sexual assault cases.

56As for the degree of responsibility of the two offenders, it is very high in each case. They were both mature adults who participated of their own free will in horrifying offences. While Mr. Carrasco was the initiator of the crimes, that was only because the opportunity was first available to him. Mr. MacMillan became an equally avid participant as soon as the opportunity was made available to him. I note that while this crime might be described, initially, as a crime of opportunity, clearly, as the hours passed, to adopt the words of Crown counsel, it became “chillingly deliberate” for both offenders, involving repeated administration of cocaine to keep the victim from losing consciousness in order to keep the sexual assault going, and gratuitous acts of humiliation such as forced fellatio involving the violent pulling of the victim’s hair and head, coordinated digital penetration on a dog blanket, wiping of a hand on the victim’s face after removing it from her vagina, placing a helmet on the victim’s head and many others.

57Moving to s. 718.2, that section provides that a sentence should be increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the offence or the offenders, enumerates certain aggravating circumstances, including abuse of a position of trust, and enshrines certain other sentencing principles including principles concerning disparity, totality and restraint.

58In this case, in respect of mitigation, I note that both offenders are first offenders and have the support of close friends and family, who think highly of them. Mr. Carrasco has made his way in life with some obstacles, and Mr. MacMillan has run a successful business and has been a supportive father. He also suffered a serious injury while in custody.

59In respect of aggravation, as I have explained in detail, the circumstances of this offence were highly aggravating. This was, as I have said, a prolonged, violent, degrading and humiliating offence by two mature men who were larger and stronger than the victim, and who took advantage of her severe intoxication to the point of unconsciousness to commit this offence, kept her awake enough to continue the offence for many hours by administering cocaine to her and made a recording of their sexual assault for their future use. While they were not, strictly speaking, in positions of trust in relation to the victim, the offences took place in licenced premises of which they had full control and had responsibility for the well-being of their customers.

60I have said that the sexual assault offence is particularly heinous because it was committed jointly by two men on a single vulnerable victim, but I must be careful not to punish the offenders doubly because of this: the joint nature of the offence cannot both increase the penalty by increasing the maximum period of imprisonment, resulting in the sentences imposed being situated at a higher point in the enlarged range, and then increase the penalty again by treating the joint nature of the offence as an aggravating circumstance a second time. Accordingly, I do not treat this consideration as an aggravating circumstance in the ordinary way.

61Having regard to the nature of this offence, the prolonged, violent and degrading manner that it was committed by these offenders, to their personal circumstances and the aggravating and mitigating considerations, I conclude that denunciation, general and specific deterrence and the separation of the offenders from society for a significant period of time must be the predominant considerations in determining the appropriate sentence. At the same time, I will not lose sight of the potential that each offender has for rehabilitation. I further note that despite some differences in their circumstances, I see no basis to distinguish between the offenders for the purpose of sentence.

62I had occasion last year to sentence two offenders who were found guilty by a jury of gang sexual assault in circumstances that were not entirely unlike the circumstances here, even including the video recording of the crime by the offenders: see R. v. Bohorquez, 2019 ONSC 1643. There were, of course, differences. For one, the crime there was planned. For another, the duration of the crime there, albeit lengthy, was much shorter than here. For still another, one of the offenders there was clearly the instigator and architect of the crime, while the other was more of a follower, resulting in sentences of different lengths for the two offenders.

63In considering the length of the sentences I would impose in Bohorquez, I noted that a great many sentencing decisions were provided to me to guide me in determining the appropriate length of sentence. In response, I said the following, at para. 98:

Counsel placed before me a host of sentencing decisions in an effort to persuade me that they had identified the appropriate length of sentence for these offenders. These decisions are often difficult to reconcile, with sentences falling everywhere from two years to ten years. As is not unusual, these decisions are limited in their helpfulness, particularly because many of them were imposed for the offence of sexual assault, and not the “aggravated” sexual assault offence committed by these offenders. Nevertheless, I conclude from them that nothing short of significant penitentiary sentences are appropriate for the offenders in this case.

64I reached the same conclusion here. The sentencing submissions made on behalf of the offenders were quite unrealistic. Sentences of the nature imposed in Bohorquez must also be imposed here. Doing the best I could in this case to give effect to the pertinent objectives of sentencing and to balance the considerations I have outlined, I imposed the sentences I mentioned at the outset of these reasons.

Disposition

65To repeat, on the count of gang sexual assault, I imposed a sentence of 7 years on each offender less, in the case of Mr. MacMillan, 41 days as a result of 27 days of pre-sentence custody, and, in the case of Mr. Carrasco, 177 days as a result of 118 days of pre-trial custody plus an additional 5 days for 19 days of lock-down for a total of 182 days. I did not consider that any additional credit should be given to either offender in this case in relation to the time they spent on judicial interim release.

66On the count of administering a stupefying substance, I imposed a sentence of 2 years to be served consecutively.

67In addition, I made the following orders in respect of both offenders:

• A primary DNA order pursuant to s. 487.051 of the Criminal Code
• A prohibition order pursuant to s. 109 of the Criminal Code for life
• A SOIRA order pursuant to s. 490.012 and s. 490.013(2)(b) of the Criminal Code for 20 years
• A non-communication order with the victim and all members of her family pursuant to s. 743.21 of the Criminal Code.

M. Dambrot J.