R. v. DeJesus Carrasco, 2020 ONSC 5308

COURT FILE NO.: CR-19-10000069-0000

DATE: 20200904

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ENZO DARIO DE JESUS CARRASCO

Defendant

Rick Nathanson and Pamela Santora, for the Crown

Hussein Aly, for the Defendant

HEARD: August 13, 2020

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

REASONS FOR SENTENCE

R.F. GOLDSTEIN, J.:

1On August 6, 2020 I convicted Enzo DeJesus of one count of sexual assault and one count of voyeurism. He now comes before the court for sentencing.

1. THE FACTS

(a) Circumstances Of The Offence

2In the fall of 2016 Mr. DeJesus was the manager of the College Street Bar. V.B. was working as a hostess. Mr. DeJesus was her supervisor.

3The bar had a digital video recording system, or DVR. The DVR kept recordings for two weeks. Mr. DeJesus and the bar owner, Gavin MacMillan, had access to the recordings. There was a basement office. The basement office consisted of some furniture, including a desk where computer monitors showed live feeds of cameras that were part of the DVR system.

4V.B. was aware of the cameras. She was also aware of monitors in the basement. She was not, however, aware that there was a camera in the basement office.

5During the evening of November 24 V.B. was working. Mr. DeJesus invited V.B. to the basement office. Mr. DeJesus started massaging her, and she simply froze. He put her up against the wall, and touched her vagina both inside and out. She told him to stop. He did not.

6In my trial judgment I found that Mr. DeJesus touched V.B. for a sexual purpose. V.B. had not mentioned in any of her other statements that Mr. DeJesus had digitally penetrated her. Although I agreed that it was a contradiction, I found that it did not affect V.B.’s overall credibility or reliability. I did not have to resolve the question of whether digital penetration occurred.

7I do have a reasonable doubt about digital penetration. I think it probably happened and I wish to be clear that I believe V.B. and that I found her to be an honest witness. That said, however, V.B. herself admitted that she froze during the assault. It is understandable that a victim might not remember all the significant details. I have no doubt whatsoever that Mr. DeJesus touched V.B. for a sexual purpose, and that he purposefully violated her sexual integrity, but I cannot be sure he penetrated her digitally. That means I cannot make that finding as an aggravating factor on sentencing. I do agree with Crown counsel, however, that it matters little in the circumstances of this case for the purpose of sentence whether the sexual touching involved digital penetration or not.

8Ordinarily, digital penetration is considered more serious than touching and sentences can reflect that. Sentencing policy in sexual assault cases, however, does not simply require that a particular sexual act be classified for a mechanical application of a range of sentence. Rather, sentencing policy in sexual assault cases is concerned with the seriousness of the violation of sexual integrity. Although more intrusive acts generally involve a greater violation of the victim’s sexual integrity, that is not always the case. Here, the violation of V.B.’s sexual integrity was quite serious because of the nefarious purpose, the surreptitious filming, and the exploitation of the employer-employee relationship.

9I will describe in more detail when I discuss aggravating and mitigating factors, that Mr. DeJesus engaged in a a predatory assault for a voyeuristic purpose.

(b) Circumstances Of The Offender

10Mr. DeJesus is 35 years old. He was born and raised in the Dominican Republic, where he went to university. Mr. DeJesus came to Canada in 2012. He has worked steadily in the restaurant industry. Prior to committing this offence he had no criminal record. He has been convicted of sexual assault and gang sexual assault. Dambrot J. sentenced him to 9 years imprisonment on those charges. That sentence is currently under appeal. MacPherson J.A. granted Mr. DeJesus bail pending appeal. I have read MacPherson J.A.’s bail decision. It is clear that bail pending appeal was granted solely because of alleged flaws in the jury selection process – not because MacPherson J.A. thought there was any doubt about the reasonableness of the verdict or errors in the jury instructions.

11According to his counsel, Mr. Aly, Mr. DeJesus will almost certainly be deported to the Dominican Republic at the conclusion of his sentence.

(c) Impact On The Victim And The Community

12V.B. filed a victim-impact statement. She described how the assault caused her to lose her job. She had difficulty finding work. She had difficulty coping physically and emotionally. It was not simply the assault that impacted her, but the filming without her knowledge that was so troubling. V.B. described how she spent time in and out of the hospital, with severe stress-induced pain. She has had anxious flashbacks. She has also felt guilty and at fault – although I want to stress, again for the record, that none of this was her fault. The assault also affected her ability to trust people, especially men.

13That trust issue also affects the broader community. People – and especially women – are entitled to work environments that are physically safe. They are entitled to be able to trust that their supervisors will not lure them into a basement and film them without their knowledge. Offences like this erode that sense of trust, to the detriment of all.

2. CASE LAW

14Crown and defence counsel provided several cases to me, attempting to establish the range of sentence. I will review some of them:

15The Crown relies on R. v. Berry, 2015 BCCA 210. The offender was in a relationship with T.P. He digitally penetrated her and filmed it while she was asleep. He also surreptitiously filmed consensual sex between them. After their relationship ended he assaulted her. He further filmed another woman, R.A., in the toilet at his sister’s house. The offender was sentenced to two years for sexual assault, one day for the common assault, nine months consecutive for voyeurism in relation to T.P. and two months concurrent for voyeurism in relation to R.A. The British Columbia Court of Appeal upheld the total sentence of two years and nine months. The Court noted the prolonged, invasive nature of the digital penetration while T.P. slept. The Court also found that the consecutive sentences were appropriate, despite the inevitable overlap between the criminal activity.

16The Crown also relies on R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163. The offender assaulted an employee and digitally penetrated her. He also committed two common assaults. The main issue for the Supreme Court of Canada was the applicability of amendments to the conditional sentencing provisions of the Criminal Code on appeal. Of relevance to this case is that the Court upheld a one-year custodial sentence for the sexual assaults.

17R. v. Boudreau, [1996] N.W.T.J. No. 107 is a case cited by the Court in R.A.R. The offender was the victim’s boss. He invited her to his house to watch a movie, and then sexually assaulted her. The Court sentenced him to three years imprisonment, noting that his position as an employer was an aggravating factor. In R.A.R., the Supreme Court relied Boudreau, noting that abusing a position as an employer is significantly aggravating.

18In R. v. Aguas, 2015 ONSC 5732, K. Campbell J. considered a fact situation with some similarities to this one. The offender was a nurse. The victim came in for treatment for injuries from a car accident. The offender touched her sexually and filmed it, ostensibly for the purpose of documenting her injuries but in reality for his own sexual gratification. He was aware of the professional consequences of his actions. The victim took her phone to the police at about the same time that the offender sent her a series of text messages. He asked her not to report the assault as he could lose his job. The police eventually seized his phone and found a surreptitious photograph taken of another woman at the hospital. K. Campbell J. imposed a sentence of 14 months concurrent on all offences, less credit. He called the offences a “shocking breach of trust” by a nurse in a hospital setting.

19In R. v. E.M., 2018 ONSC 6951, the accused was a friend of the victim. The victim became ill after a party and was not capable of consent. The accused sexually assaulted the victim and filmed it. Gareau J. of this Court sentenced the offender to 4 years imprisonment on the sexual assault, 6 months concurrent on a count of unlawful confinement, and 6 months concurrent on the voyeurism count.

20Mr. Aly, for Mr. DeJesus, cited R. v. Jarvis, 2019 ONSC 4938, in relation to the voyeurism count. Jarvis was originally convicted of voyeurism. He was a teacher at a high school. He surreptitiously filmed female high school students, concentrating on their breasts. Mr. Jarvis was convicted at trial. His convictions were overturned by the Court of Appeal but restored by the Supreme Court of Canada. Goodman J., the trial judge, imposed a sentence of six months imprisonment on Mr. Jarvis.

21Mr. Aly also relied on several cases to argue that the range of sentence is lower than that proposed by Crown counsel. Again I will review some of them:

22Mr. Aly argued that R. v. Nwaiku, 2012 ONSC 21 set the range for this type of offence at 5-6 months. In that case, the victim, the offender, and others had been out at a downtown club. They went back to the apartment of a friend. She felt ill due to alcohol consumption and went to sleep in the friend’s bed. The friend went to sleep on the couch. When the victim awoke, the offender was lying behind her and penetrating her vagina with his fingers. She ordered him out of the apartment and he left. The trial judge sentenced the offender to 5 months imprisonment. That sentence was upheld by my colleague MacDonnell J.

23In R. v Berseth, 2019 ONSC 888 the offender pleaded guilty to one count of sexual assault. The victim had been dancing with her boyfriend at a University of Toronto athletic banquet. The offender came up to the couple on the dance floor and attempted to digitally penetrate the victim’s vagina through her clothing. He could be seen laughing with a friend after. The trial judge granted the offender a conditional discharge. The Crown appealed on the basis that a discharge was demonstrably unfit. Durno J., sitting as a summary conviction appeal judge, found that the sentence was low, but he was not prepared to interfere with the trial judge’s discretion and dismissed the appeal.

24In R. v. Burton, 2012 ONSC 5920, the offender pleaded guilty to one count of sexual assault. He had no criminal record and the assault appeared to be out of character for him. The victim was riding the bus. The offender got on the bus and sat next to the victim. He opened a newspaper, which partially covered him and partial covered her leg. He then proceeded to touch her leg. The victim immediately alerted the bus driver, who called the police. The trial judge granted an absolute discharge. Maranger J., sitting as a summary conviction appeal judge, indicated that although he might not have imposed the same sentence, he did not think it was unreasonable or manifestly unfit.

25In R. v. D.C., 2013 ONSC 5778, the offender was a high school custodian and the victim was a librarian. There were three separate incidents of touching leading to three convictions by the trial judge. On appeal, the Crown conceded that two of the incidents were outside the limitation period and the convictions were set aside by Trotter J. (as he then was). The surviving sexual assault conviction involved touching the victim’s breast and attempting to kiss her. The trial judge imposed a suspended sentence and probation. On appeal, Trotter J. refused to substitute an absolute discharge, noting that the suspended sentence was already a low sentence.

26I note that in Nwaiku, Berseth, Burton, and D.C. the Crown chose to proceed summarily. The maximum penalty was, therefore, 18 months. I also note that Berseth and Burton both pleaded guilty. I would characterize the circumstances of the assault in this case as considerably more serious than the assaults in those cases.

27In R. v. Casciaro, 2006 ONCJ 422, the offender was a caretaker at Seneca College. The victim was an 18-year old woman who suffered from “a disability that affects both her mobility and, to some degree, her cognitive and communicative functioning” as the trial judge stated. The offender brought her into a deserted room where he touched her breasts and tried to kiss her. Counsel agreed that imprisonment was required but disagreed whether the sentence should be served in the community or in jail. The trial judge, M. Greene J., imposed a six month conditional sentence. He found that the offender was not in a position of trust. He also stated that it was one of those rare cases involving a vulnerable victim where a sentence in the community was appropriate.

28In R. v. Giovanelli, 2017 ONCJ 408, the offender owned a restaurant. The victim had been working there as a waitress for one week. At a work party he kissed her, touched her breasts, and digitally penetrated her vagina without her consent as she left the woman’s bathroom. The trial judge, MacKay J. rejected a suspended sentence and a conditional sentence as inappropriate and sentenced the offender to 90 days intermittent, on the basis that he needed to actually run his restaurant.

29In R. v. Hilan, 2015 ONCA 338, the offender “touched the complainant and raised her skirt while seated beside her on a public bus.” The trial judge sentenced him to six months imprisonment. The Court of Appeal found that this jail sentence was disproportionate to the offence. The Court varied the sentence to a suspended sentence and probation.

30With respect, I am not persuaded that the cases cited by the defence set out the appropriate range of sentence for a sexual assault similar to the circumstances of this case. None except Giovanelli involved an employee/employer relationship; and even then it did not involve the kind of coercion present in this case. None of the cases involved a sexual assault for a voyeuristic purpose.

31I am hesitant to set out a range of sentence for a case of this nature. It is clear that in a case of a highly intrusive sexual assault combined with voyeurism, that significant penitentiary sentences can be imposed. Less intrusive assaults involving touching only under brief, non-coercive circumstances can attract even a discharge. In my respectful view, this case is much closer to the circumstances in Boudreau, R.A.R., and Aguas than it is to the circumstances of cases like Giovanelli.

3. MITIGATING AND AGGRAVATING FACTORS

32Mr. DeJesus’s lack of a criminal record is a mitigating factor. The fact that he lived in Canada and worked successfully is also mitigating.

33The nature of the crime itself is highly aggravating. Mr. DeJesus used his position as a supervisor to lure V.B. into the basement, where he sexually assaulted her. He then filmed her (or attempted to film her) without her knowledge (the gravamen of the crime) for the sexual gratification of himself and Mr. MacMillan. This behaviour can only be described as predatory and misogynistic, as revealed by the text messages between Mr. DeJesus and Mr. MacMillan. They engaged in this scheme for sport.

34There was also a coercive and breach of trust element to this case that is aggravating. Mr. DeJesus was V.B.’s boss. I am satisfied beyond a reasonable doubt that he used his power to compel V.B. to come to the basement office so that he could assault her. V.B. testified that during the winter jobs in the hospitality industry are hard to come by. I accept her evidence. No doubt if V.B. knew that, Mr. DeJesus knew that. I accept that she did not want to jeopardize her employment by refusing to come to the basement office when summoned. I have little difficulty inferring that Mr. DeJesus knew that, and exploited it.

35When I asked Mr. DeJesus if he had anything to say before I passed sentence, he told me that he simply wished to do his time and go back to the Dominican Republic. He said that he was painted by the Crown as the orchestrator of the scheme, but that it was Mr. MacMillan’s bar and Mr. MacMillan’s scheme. He stated that “it was not for the public” which I took to mean that he and Mr. MacMillan did not intend to, for example, upload the videos to some kind of pornography site. He was not, he insisted, the mastermind of the scheme. In other words, Mr. DeJesus attempted to minimize his role. He did not attempt to apologize to V.B., or show any insight into his crime.

36I wish to be clear that Mr. DeJesus’s lack of remorse is not an aggravating factor. I also wish to be clear that his attempt to shift responsibility from himself to Mr. MacMillan is also not an aggravating factor. It does show, however, that he has little or no insight into his actions. It also well illustrates the point that for him, women are simply toys. It points to the lack of mitigating factors.

37I find beyond a reasonable doubt that the assault and filming of V.B. was part of a pattern. It is clear from a series of text messages between Mr. DeJesus and Mr. MacMillan filed both at trial and on sentencing that V.B. was filmed for the sexual gratification of both men. It formed part of a pattern of abusive behaviour. It is clear that both men watched video footage of the other with different women.

38For example, on November 27, 2016 at 4:31:23 am Mr. DeJesus texted Mr. MacMillan and said: “You better fucking make it happen”, to which Mr. MacMillan replied at 5:30:32 am: “Just tits. On camera. Bleeding bitch.” At 5:53:52 am Mr. DeJesus asked “what time and camera should I check?” Mr. MacMillan responded: “4:30 AM, camera three”.

39On November 29, 2016 at 12:31:57 pm Mr. DeJesus texted Mr. MacMillan and said: “I thought u were sendingme pics feom last night”. Mr. MacMillan replied at 12:32:54 pm: “Just on camera at the bar”.

40On December 11, 2016 at 1:31:01 am Mr. DeJesus texted Mr. MacMillan and said: “I am 90% sure im not going anywhere, not my cup of tee also the super hot portugues we are supposed to meet today”. Mr. MacMillan responded in two separate texts: “Sweet. Enjoy that!” and then “I want video”.

41On December 12, 2016 at 10:22:58 pm Mr. MacMillan texted several pictures of a woman to Mr. DeJesus. Mr. DeJesus responded at 10:24:15 pm: “Whos that one?” Mr. MacMillan then responded in two separate texts: “Lucy” followed by “Lucy Victim”. At 10:25:45 pm Mr. DeJesus texted: “For today?” Mr. MacMillan responded with a smiley face symbol.

42On December 13, 2016 at 6:57:39 pm Mr. DeJesus texted a photograph of a woman to Mr. MacMillan. Mr. Macmillan responded at 7:01:57 pm: “She is stunning” followed by “Great tits and a big mouth is a good combination”. Mr. DeJesus then responded to Mr. MacMillan at 7:02:30 pm: “Ill try tge vid of her tits in the ice machine room”.

43In my opinion, this pattern of behaviour is highly aggravating. Whether or not he was the instigator or organizer of the scheme is irrelevant. What is relevant is that he was an enthusiastic participant.

4. PURPOSES AND PRINCIPLES OF SENTENCING

44The purposes and principles of sentencing are set out in s. 718, 718.2 and 718.2 of the Criminal Code. I need not repeat them. Suffice it to say that in cases of this nature the key principles are denunciation and deterrence. The Court must strongly denounce this misogynistic, predatory behaviour. Rehabilitation, of course, always plays a role. In my view, however, it would be a mistake to place too much emphasis on rehabilitation in the circumstances of this case. Mr. DeJesus is certainly capable of making a contribution to society – after all, he has worked steadily in the restaurant industry since he arrived in this country. That said, he will be permanently separated from Canadian society when he is deported. More importantly, the societal interest in the rehabilitation of this offender is less compelling than the societal interest in denouncing this offence, and deterring like-minded offenders.

5. ANCILLARY ORDERS

45I make the following orders:

• A 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; and

• A non-communication order with V.B. and all members of V.B.’s family pursuant to s. 743.21 of the Criminal Code.

6. SENTENCE TO BE IMPOSED

46The Crown’s position is that I should impose a global sentence of two years less a day followed by three years of probation. The sentence should consist of 15 months on the sexual assault count, followed by a 9 month consecutive sentence on the voyeurism count. The sentence should be consecutive to any other sentence being served.

47The defence position is that I should impose a sentence of 120 days on the sexual assault, and a suspended sentence with probation on the voyeurism count. Mr. Aly further argued that I must consider the principle of totality. Mr. Aly faces a 9-year sentence on the gang sexual assault conviction (although that case is under appeal and he may receive a new trial). Any extra amount of time, he argues, would be crushing.

48How should I treat Mr. DeJesus’s other conviction? The offence happened after the offence in this case, but the trial and sentencing was concluded before this case began. Mr. Aly argues that I should apply Lord Coke’s Rule and not take into account Mr. DeJesus’s conviction for sexual assault and gang sexual assault in sentencing him. That is because he committed this offence before committing the other offence. The rule was described by Robertson J.A. of the New Brunswick Court of Appeal in R. v. Andrade, 2010 NBCA 62, 260 C.C.C. (3d) 353 at para. 14: “The essence of the Coke principle is that a harsher sentence with respect to a second offence cannot be imposed unless the offender was convicted for the first offence prior to the commission of the second.”

49As I concluded in R. v. Shaikh, 2020 ONSC 438, following Andrade, Lord Coke’s rule is not absolute. It is best understood as a rule of statutory construction where the Criminal Code mandated higher penalties for subsequent offences: R. v. Skolnik, 1982 54 (SCC), [1982] 2 S.C.R. 47.

50Sentencing is an individual process. The character of the offender is irrelevant at trial, but important in crafting an appropriate sentence. A subsequent offence tells a sentencing judge something about an offender’s character, his prospects for rehabilitation, and the need for specific deterrence. In Shaikh, I quoted and relied on the following passage from Andrade at para. 20:

In my view, the notion that the prior conviction should not be treated as part of the offender's criminal record for sentencing purposes, because he or she was not properly forewarned before committing the second or subsequence offence, is a theoretical construct too far removed from the realities of what is in the minds of repeat offenders and the purpose underlying the Coke rule. What is or is not an aggravating factor and how one should deal with the offender's prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration.

51In my respectful view, I can take into account Mr. DeJesus’s other conviction when evaluating his character and the need for specific deterrence. As Robertson J.A. pointed out in Andrade, the jump or step principle still applies to moderate the potential harshness of subsequent sentences.

52An appropriate global sentence in this case is 18 months imprisonment. I find that the sentence urged by Mr. Aly of 120 days for the sexual assault and a suspended sentence for the voyeurism simply does not properly denounce this criminal activity. This 18-month global sentence takes into account the other conviction but does not offend the totality principle. That is because a higher sentence could have been imposed given the aggravating factors present in this case. This 18-month global sentence also balances the need for denunciation and deterrence with Mr. DeJesus’s prospects for rehabilitation, limited as they are.

53Mr. DeJesus has now been in custody for a day shy of one month. I will credit him at 1.5:1, meaning 1 ½ months, and reduce the time on Count 2 by that amount. Accordingly, from today he will serve a global sentence of 16.5 months, apportioned as follows: 12 months on count 1, and 6 months on count 2, with 4.5 months to serve in light of pre-sentence custody. His sentence will be served consecutively to any other sentence he is now serving.

54There will also be a period of probation of three years. The terms of the probation order, in addition to the statutory terms, are as follows:

• Mr. DeJesus is to have no contact, directly or indirectly, with V.B. or any member of her family;

• Mr. DeJesus is to have no contact, directly or indirectly, with Gavin MacMillan except in the presence of counsel for the purposes of preparing for an appeal or new trial;

• Mr. DeJesus is not to take any photographs or videos of any females under any circumstances without first obtaining their explicit permission;

• If Mr. DeJesus takes any photographs or videos of any females he must forthwith inform his probation officer, and produce his phone or other device on demand to his probation officer along with any passcodes required for the probation officer to access those photographs or videos;

• If Mr. DeJesus takes any photographs or videos of any females he must not post any of those photographs or videos to any social media platform or share them by text, email, snapchat, or other application; and,

• If Mr. DeJesus works as a manager in the hospitality industry, he is not to be alone with any females under his supervision.