COURT FILE NO.: CR-17-6155
DATE: 20201021
CORRIGENDA: 20201026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
F.I. and E.M.
Defendants
C. Pakosh, for the Crown
P. Lam, for the Defendant, F.I.
H. Bassi, for the Defendant, E.M.
HEARD: October 15-18, 21-25, 28-30, 2019 and February 18, 2020
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.
REASONS FOR SENTENCE
(TEXT OF ORIGINAL DECISION HAS BEEN AMENDED – CHANGE APPENDED)
CHARNEY J.:
[1] On October 30, 2019, F.I. was found guilty by a jury of one count of committing a sexual assault contrary to s. 271 of the Criminal Code.
[2] On October 30, 2019, E.M. was found guilty by a jury of one count of being a party to the offence of sexual assault with Mr. F.I. contrary to s. 272(2) of the Criminal Code.
[3] Both counts relate to the sexual assault of the complainant, M.S., on September 23, 2012.
[4] A sentencing hearing was set for February 18, 2020.
Application for Mistrial
[5] At the outset of the sentencing hearing, counsel for the defendants brought an application for a mistrial on the basis of the jury selection process that was used when the jury was chosen on October 15, 2019.
[6] After hearing submissions from counsel, I gave brief oral reasons dismissing the application for a mistrial, and indicated that I would provide written reasons with my sentencing decision. The sentencing decision was originally scheduled for April 21, 2020, but due to the public health crisis caused by COVID 19, was adjourned to June 3, 2020 by Order of the Chief Justice dated March 15, 2020. That adjournment was further extended by Order of the Chief Justice dated May 5, 2020. Given these adjournments, I released my reasons for dismissing the application for a mistrial on May 7, 2020: R. v. E.M., 2020 ONSC 2874.
Circumstance of the Offence
[7] Just after midnight on September 23, 2012, the complainant, M.S., attended the Las Brisas Nightclub in Toronto with a friend. The complainant was 20 years old at the time. They met a second friend at the club. While at the nightclub the complainant consumed alcoholic beverages, although she could not recall how much alcohol she had consumed that night.
[8] The complainant ran into Mr. E.M. at the nightclub. He is the cousin of one of her friends, and she had met him before. Mr. E.M. was 28 years old, and was at the club with his friend, Mr. F.I., then aged 32. The complainant had never met Mr. F.I. before.
[9] The complainant spent some time with Mr. E.M. and Mr. F.I. near and on the dance floor. The nightclub had video surveillance cameras mounted in several locations, and Mr. F.I. can be seen pouring Bacardi rum directly into the complainant’s mouth while she danced.
[10] The complainant has no memory of the events at the nightclub, and believes that she was “blacked out” even though she was conscious. The video surveillance does indicate that she was sometimes unsteady on her feet, and at one point she fell down.
[11] At 2:05 a.m., the complainant and Mr. E.M. can be seen leaving the club together. Mr. E.M. had his arm around the complainant as they walked, and it looks as though he is helping her balance. The complainant has no recollection of leaving the club and does not know where they went. Mr. E.M. testified that the complainant walked with him to his car.
[12] At 2:37 a.m., surveillance video shows Mr. E.M. getting out of his car after pulling up in front of the club. The complainant was in the back seat of the vehicle.
[13] Mr. E.M. returned to the club to get Mr. F.I. and another friend. The three men returned to the vehicle. Mr. F.I. entered the front passenger side of the car, and Mr. E.M. returned to the driver’s seat.
[14] The complainant’s next memory is waking up in the backseat of Mr. E.M.’s vehicle, completely disoriented. She was laying down in the back seat, her dress pulled up, her underwear off and her legs open. She was naked from the waist down. Mr. F.I. was sitting beside her, also naked from the waist down. He tried to kiss her and she pulled away. She recalled being turned onto her front and being on all fours in the back seat of the car, and remembers that it felt like Mr. F.I. was trying to anally penetrate her, but that he pulled away when she said “ow”. He tried again and she said “stop”. She remembers that Mr. F.I. and Mr. E.M. were laughing at this.
[15] She remembered gagging on something, but could not recall what it was.
[16] Mr. E.M. was driving the car when the sexual activity occurred. By this point the third man in the car had been dropped off at an after-hours club, and only Mr. E.M. and Mr. F.I. were in the car with the complainant.
[17] Mr. E.M. testified that Mr. F.I. went from the front seat of the car to the back seat, and that Mr. F.I. and Ms. M.S. began kissing. He then saw Ms. M.S. on top of Mr. F.I. performing oral sex on him. At 4:07 a.m. he took a 22 second video of this at a stop sign. Finally, Mr. E.M. stopped the car in the park near Ms. M.S.’s house, and, after making a phone call at 4:36 a.m., he opened the car door and saw Ms. M.S. on top of Mr. F.I., straddling him. Mr. E.M. took three photographs of this.
[18] Mr. F.I. admitted to being in the car with Ms. M.S., and admitted to engaging in sexual activity with her in the early morning of September 23, 2012. He joined Ms. M.S. in the back seat of the car while they were in the parking lot of the after-hours club. They began kissing and he touched her breast and inserted his fingers in her vagina. He told Mr. E.M. to drive out of the parking lot. Mr. F.I. took off his trousers and underwear, and as he lay back in the car the complainant performed oral sex on him. This continued for about 10 to 15 minutes.
[19] Later they drove to the park near the complainant’s home, where Mr. F.I. had sexual intercourse with the complainant in the back seat of the car. He did not use a condom. He denied having anal intercourse with her or attempting to have anal intercourse.
[20] Mr. E.M. took the video and photographs of Mr. F.I. having sex with the complainant. There was, however, no evidence that Mr. E.M. engaged in any sexual activity with the complainant, and Mr. E.M. denied doing so.
[21] At approximately 6:00 a.m. on September 23, 2012, the complainant was dropped off at a mailbox close to her house in Vaughan. The complainant walked home from where she was dropped off.
[22] The primary issue in this case was whether the complainant consented to the sexual activity or had the capacity to consent.
[23] The complainant testified that she did not consent to any of the sexual activity that evening. She testified that she was “blacked-out” and does not remember anything in the club after Mr. F.I., who she identified as “the man in the white dress shirt”, pointed to a bottle of clear alcohol in the nightclub at around 1:45 a.m. She believes that the black out was caused by alcohol consumption that night.
[24] Her next memory was waking up naked from the waist down in the back seat of the car, with Mr. F.I. sitting beside her, also naked from the waist down.
[25] Central to this case was a two minute long audio recording of the complainant made by Mr. E.M. at 3:05 a.m. while the complainant was alone in the back seat of the car. The complainant had no recollection of the conversation or that the conversation was being recorded.
[26] Mr. E.M. and Mr. F.I. can be heard in the audio. They are initially in the front seat of the car. Mr. E.M. repeatedly asks the complainant whether she is willing to have sex or a “gangbang”. Throughout the audio there are gaps of silence when the complainant is unresponsive: one gap is 17 seconds, another is 23 seconds, and Mr. E.M. calls her name three times in order to elicit a response.
[27] At one point Mr. F.I. states: “I am about to jump in the back and have my way with this girl.” He can be heard leaving the front seat of the car and getting into the back seat.
[28] Listening to the recording, the complainant sounds sleepy and intoxicated; she is slurring her words and sounds confused. Mr. E.M. is speaking to her slowly, as if she were a child or a person who does not understand English. While the complainant finally answers “yes” to the persistent questions, she sounds like a person answering “yes” to someone who is pestering her while she is trying to go back to sleep. It would be clear to anyone listening to the audio recording that the complainant did not have the capacity to consent.
[29] I also accept the Crown’s position that Mr. E.M. made the recording because he knew that the complainant was drunk and disoriented, and he wanted to protect himself and Mr. F.I. in case she later complained.
[30] The sexual activity continued for a prolonged period of time. The complainant was in the car for approximately four hours, and the sexual activity began sometime after 3:05 a.m. when the recording was made, and ended sometime before 6:00 a.m. when the complainant was dropped off near her home. This is not a case where there is a single instance of touching. There is no dispute that there were several sexual activities while Mr. F.I. was in the back seat of the car, including sexual intercourse, digital penetration and oral sex. Some of these activities may have occurred while the complainant was unconscious. To the extent that she was conscious, the complainant did not have the capacity to consent to the sexual activity. The jury’s verdict is consistent with both of these scenarios.
[31] Throughout the evening Mr. E.M. engaged in several actions that qualified as aiding or abetting the sexual assault. These actions included:
• Mr. E.M. took the complainant from the nightclub to his car, where the alleged sexual assault occurred.
• Mr. E.M. made the audio recording to ask the complainant whether she consented to sexual relations with “us” before the alleged sexual assault occurred.
• Mr. E.M. drove Mr. F.I. and the complainant around while the alleged sexual assault was occurring.
• Mr. E.M. parked the car and then waited outside while an alleged sexual assault occurred.
• Mr. E.M. took a video of the oral sex in the back seat of his car.
• Mr. E.M. took photographs of the complainant straddling Mr. F.I.
Facts Relating to the Offenders
[32] Mr. F.I. is now 39 years of age. He is married with 4 children, ages 14 to 18 years of age. He was born in El Salvador. He has a grade 10 education, and has worked in the demolition and hazardous waste disposal business since he was 15 years of age. He is the main breadwinner for his family.
[33] Mr. E.M. is 36 years of age. He was born in the Dominican Republic. His mother was a single mother who came to Canada when Mr. E.M. was 12 years old. He has a high school education, and a diploma from Humber College in computer technology. He is married and has two young children with his current wife, and two older children from an earlier relationship. He is also the breadwinner for his family.
[34] Neither have a criminal record. This offence took place in 2012, and neither has been in trouble with the law since that date. By all accounts they are hard working men and good fathers and sons who have worked hard to support their families. Mr. E.M. has filed a number of letters from members of his family attesting to his good character, kindness and generosity, and asking that he be given a second chance.
Victim Impact Statement
[35] The complainant has filed a victim impact statement, describing the impact that the sexual assault has had on her life.
[36] She described the feeling of being violated, confused and scared when she woke up the next morning, and how she went from being an outgoing and happy 20-year-old full time student to being frightened and angry. She was afraid to go to school and was unable to graduate from her program. Over the next several years she kept the nightmares, fear, anger and trauma buried inside so that nobody would worry about her. She described how the defendants stole her self-worth, privacy, sense of safety, intimacy and confidence in her voice.
Position of the Parties
[37] Counsel for the Crown sought a sentence of 7 years for both Mr. E.M. and Mr. F.I.
[38] Counsel for Mr. E.M. submitted that a sentence of 6 months would be appropriate for his client.
[39] Counsel for Mr. F.I. submitted that a sentence of 12 to 18 months would be appropriate for his client.
Analysis
[40] Section 718 of the Criminal Code sets out the purposes and principles of sentencing. It provides:
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.
[41] Also relevant to this case is s. 718.04, which provides:
When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
[42] In the present case, the complainant was a vulnerable person at the time of the offence. The complainant was intoxicated to the point that she was unable to consent to the sexual activities imposed upon her. There were likely times when she was not conscious. Both accused took advantage of this vulnerability. This was very much a crime of opportunity. The accused came across a lone female who was clearly intoxicated. Rather than driving her home, they subjected her to three hours of sexual humiliation, including the photos and videos taken by Mr. E.M. while the complainant’s sexual integrity was being violated. Their conduct did enormous psychological damage to the complainant.
[43] The vulnerability of the complainant and the impact of the offence on her are relevant factors that will be considered in the sentencing analysis.
Aggravating and Mitigating Factors
Mr. F.I.
[44] Mr. F.I. was charged with sexual assault under s. 271 of the Criminal Code. The maximum penalty for this offence is 10 years in custody.
[45] In this case, the aggravating factors are that the sexual assault involved a prolonged assault that included intercourse, oral sex and digital penetration. The sex was unprotected. There was also a significant gap in age between Mr. F.I. and the complainant.
[46] The Crown argues that there was also attempted anal penetration. Given the complainant’s confusion and difficulty remembering the details of the night, however, I am unable to conclude beyond a reasonable doubt that this specific act occurred. In any event, given the other sexual acts that did occur, I do not believe that the addition of an act of attempted anal penetration would be a significant factor in this case.
[47] The Crown relies on a number of other aggravating factors that I do not accept. Neither accused was in a relationship of trust with the complaint. Mr. F.I. had never met her before, and Mr. E.M. was just an acquaintance. This was a crime of opportunity – there was no planning. Nor, in my view, does the evidence support the Crown’s contention that Mr. E.M.’s repeated questions to the complainant constituted threats or intimidation.
[48] The Crown also argues that there were additional acts of violence evidenced by the bruising on the complainant’s knee and thighs, and a scratch on her knee. The complainant could not, however, recall how this bruising and scratch occurred, and it may have occurred when the complainant fell on the ground in the nightclub.
[49] Mr. F.I.’s lack of a criminal record is a mitigating factor. In addition, he appears to have very good prospects for rehabilitation. He is unlikely to reoffend. This offence took place in 2012, and he has not been in trouble with the law since that date. This crime of opportunity appears to be an anomaly. He has maintained steady employment throughout his life.
Mr. E.M.
[50] Mr. E.M. is charged with being a party to a sexual assault with Mr. F.I. The Crown could have charged Mr. E.M. under s. 21 and 271 of the Criminal Code, but chose to proceed under s. 272(1)(d) of the Code. Section 272 (1)(d) applies to a sexual assault when the person charged is “a party to the offence with any other person”. This is colloquially referred to as “gang sexual assault”, and generally occurs when more than one accused engages in the sexual activity as part of the assault. Gang sexual assault under s. 272(1)(d) carries a higher maximum term of imprisonment (14 years) than sexual assault under s. 271.
[51] The Crown argues that joint participation in a sexual assault is an aggravating factor, and the sentencing decisions under s. 272(1)(d) are applicable to Mr. E.M. in this case: R v. Edmondson, 2005 SKCA 51, at para 68; R v. Badger, 2019 ABQB 551, at paras. 25 and 45.
[52] While the Crown is technically correct, and s. 272(1)(d) can also apply to a person who is a party to sexual assault by aiding and abetting, the aggravating features in s. 272(1)(d) do not apply in this case, because only Mr. F.I. actually engaged in sexual activities with the complainant. It is unusual that the primary assailant who engaged in the sexual activity is charged with “sexual assault”, but the person who aided and abetted the assaulter is charged with “gang sexual assault”. It is also unusual that Mr. E.M., who did not actually touch the complainant, would be subject to a higher penalty than Mr. F.I.
[53] In my view, the Crown’s use of the term “gang sexual assault” in this case is a misnomer, and I find that the sentencing cases under s. 272(1)(d) of the Code relied on by the Crown are not helpful with respect to the sentencing of Mr. E.M.
[54] This is not meant to diminish the significance of Mr. E.M.’s participation in the sexual assault, but nor is it accurate to describe the event as a “gang sexual assault” as that term is colloquially understood.
[55] That said, a person who is a party to an offence by aiding and abetting the primary offender is also morally culpable and subject to the same sentencing range as the primary offender. Mr. E.M. was not just a passive observer, but was very much the “enabler” in this case. He assisted, encouraged and facilitated Mr. F.I. in the sexual assault. He took photographs and videos of the sexual assault. He led the complainant to his vehicle, and recorded her ostensible consent to the proposed “gangbang”.
[56] I do not agree, however, that Mr. E.M. is equally culpable. In this case there remains a difference between actually engaging in the sexual assault and aiding and abetting the sexual assault. Mr. E.M. did not touch the complainant or direct Mr. F.I. in his actions.
[57] The same mitigating factors apply to Mr. E.M.: he has no criminal record, and appears to have very good prospects for rehabilitation. He has not been in trouble with the law since this offence took place in 2012. This conduct was out of character for Mr. E.M., and I do not believe there is a risk of him reoffending. He has maintained steady employment throughout his life.
[58] Thus, for both offenders, I must find a period of incarceration that is sufficient to achieve the objective of denunciation and deterrence, recognizing that they are both first time offenders who are not likely to reoffend.
Sentencing Range
[59] The cases relied on by the Crown to support a sentence of seven years all include aggravating factors not present in this case. In particular, the sexual offences in those cases were often planned, and/or accompanied by other crimes or additional acts of violence, or a prior record for sexual assault (eg. R. v. L.G., 2007 ONCA 654; R. v. S.A., 2014 ONCA 266).
[60] I also reject the sentencing range proposed by the defendants. Those cases dealt with defendants who were youthful first offenders (R. v. H.L., 2018 ONSC 1026), or there was no penetration (R. v. Scinocco, [2017] ONCJ 359) or do not reflect the current range of sentencing for these offences.
[61] In R. v. McCaw, 2019 ONSC 3906, Spies J. provided a thorough review of a number of recent cases dealing with sexual assault, and concluded, at paras. 60 – 61:
I turn then to what is an appropriate sentence in this case. The first question is what range of sentence for this type of behaviour has been established by the Court of Appeal. In my view, given this was a single offence of sexual assault that was a completed act of unprotected vaginal intercourse the range of sentence as established by the Court of Appeal in Bradley is three to five years and this was reaffirmed at least in A.(S.), supra. I agree however that this is a guideline and sentences outside this range may be fit, depending on the circumstances. The sentencing of an offender is a highly individualized exercise.
In my view the sentence proposed by [defence counsel] of one year would be manifestly unfit and well outside the guideline established by the Court of Appeal. Given this was a serious sexual assault, given the direction stated by Doherty J.A. in Thurairajah, supra at para. 42, in light of the aggravating circumstances and in particular the high degree of Mr. McCaw’s moral blameworthiness, there is a need for a strong denunciatory sentence. I must ensure that there is a strong message of general deterrence to express society’s abhorrence of this despicable conduct by Mr. McCaw of taking advantage of a very young woman who was passed out and incapable of even knowing at first that he was sexually assaulting her.
[62] In that case, Spies J. concluded that a fit sentence was 40 months. She specifically took into account the fact that the assault was out of character for the accused and she did not believe that there was a risk of his reoffending. In my view, the same factors apply in this case.
[63] Boswell J. suggested a somewhat lower range in R. v. M.R., 2018 ONSC 583. In that case he indicated, at para. 24, that the cases provided to him by counsel suggested:
[T]he range of sentencing in circumstances where a first time offender has sexually assaulted a sleeping or unconscious victim is nine months to three years in custody. I am hard-pressed to think of a case where a sentence of less than nine months’ imprisonment would be appropriate where an unconscious victim is sexually assaulted. On the other hand, the presence of significant aggravating features might well support a sentence above three years.
[64] In M.R., Boswell J. imposed a sentence of 14 months in custody, but noted that the case before him “was not a sustained instance of vaginal or anal intercourse as many of the cases referred to by the Crown were. It was, for the most part, an intrusive fondling”.
[65] My own review of the cases suggests that the range proposed by Spies J. is closer to the mark.
Conclusion
[66] I have considered the various cases reviewed above in coming to my conclusion regarding the appropriate sentence in this case. I have also considered the various aggravating and mitigating factors reviewed above.
[67] Mr. F.I., will you please stand.
[68] With respect to your conviction for sexual assault I sentence you to a term of imprisonment of 32 months.
[69] Mr. E.M., will you please stand.
[70] With respect to your conviction for being a party to the offence of sexual assault contrary to s. 272(2) of the Criminal Code, I sentence you to a term of imprisonment of two years.
[71] In addition, Mr. E.M. will be subject to a period of probation for one year. A term of that probation, in addition to the statutory terms, is that you are to have no contact with the complainant.
[72] In addition, both of you will be subject to a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for ten years and a mandatory DNA order pursuant to s. 487.051(1) authorizing the taking of a DNA sample.
[73] In addition, pursuant to ss. 490.011, 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that both your names be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years. My reason for making this order is that you have been convicted of sexual assault which is a designated offence under s. 490.011(1)(a)(xvi).
[74] Finally, you are both prohibited from communicating directly or indirectly with the complainant during the custodial period of your sentence in accordance with s. 743.21 of the Criminal Code.
Justice R.E. Charney
Released: October 21, 2020
Amendment
Paragraph [71] has been amended from its original text: In addition, both of you will be subject to a period of probation for one year. A term of that probation, in addition to the statutory terms, is that you are to have no contact with the complainant.
To new Paragraph [71]: In addition, Mr. E.M. will be subject to a period of probation for one year. A term of that probation, in addition to the statutory terms, is that you are to have no contact with the complainant.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
F.I. and E.M.
Defendants
REASONS FOR SENTENCE
Justice R.E. Charney
Released: October 21, 2020