Court File and Parties

COURT FILE NO.: CR-16-40000599-0000 DATE: 2021-03-26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.T.

Counsel: Arian Khader, lawyer for the Crown Michelle Biddulth, lawyer for J.T.

HEARD: February 24, 2021

Reasons for Judgment on Sentencing

DIAMOND J.:

Overview

[1] On April 12, 2018, following a one day trial before me, I convicted J.T. [1] for failing to attend court on October 10, 2013 contrary to section 145(2)(b) of the Criminal Code.

[2] Some of the facts relevant to this conviction are set out in my Reasons for Decision reported at 2018 ONSC 2217. Certain additional facts were set out in an Agreed Statement of Facts filed at the sentencing hearing which proceeded before me on February 24, 2021.

[3] At the conclusion of the sentencing hearing, I took my decision under reserve.

Circumstances of the Offence

[4] After a successful appeal of his first trial wherein J.T. was convicted of several offences relating to the sexual abuse and exploitation of his step-daughters, the Court of Appeal for Ontario ordered a new trial and J.T. was released on bail pending that second trial.

[5] The second trial proceeded in October 2013 before Mr. Justice Dambrot. On October 10, 2013, the 13th day of the second trial, and after the victims had already testified, J.T. absconded the jurisdiction of Ontario.

[6] J.T. fled to British Columbia and subsequently began a relationship with a woman named Josephine Castor. He resided with Ms. Castor for approximately one and a half years.

[7] During their relationship, Ms. Castor knew J.T. by an assumed alias ‘Walter Gonzales’.

[8] On April 7, 2015, J.T. got into an argument with Ms. Castor over money. An altercation occurred, which led Ms. Castor to call a friend. The police were then contacted. PC Gravengard and PC Parsons were dispatched to the call.

[9] While discussing her complaint with police, Ms. Castor showed PC Gravengard a picture of ‘Walter Gonzales’ and told him that ‘Walter Gonzales’ works at the West Coast Pool Company in Vancouver. She provided him an address. PC Gravengard attended that address and spoke to ‘Maude’ who told PC Gravengard that ‘Walter Gonzales’ was indeed working there.

[10] J.T., posing as Mr. Gonzales, came down and spoke to PC Gravengard. PC Gravengard recognized him from the picture that Ms. Castor had shown him earlier. PC Gravengard arrested J.T.

[11] PC Gravengard asked J.T. for his full name and date of birth. J.T. said that his name was Walter Gonzales with a birthdate of October 12, 1971. J.T. presented an Ontario driver’s license for Walter Justo Gonzales Parra which had a date of birth of August 12, 1971. J.T. did not know the address on the driver’s license he presented. The photograph in the driver’s license was not J.T.

[12] J.T. also had a ‘Be Active Pass’ from the City of Burnaby, which was a pass for parks and recreation activities. The pass had J.T.’s picture on it with Walter Gonzales’ name.

[13] On April 8, 2015, J.T.’s true identity came to light and nine criminal charges against him were filed in which Ms. Castor was the named complainant: four counts of assault, three counts of sexual assault, one count of uttering threats, and one count of secretly recording sexual activity.

[14] On June 21, 2017 J.T. entered into a section 810 recognizance in Vancouver, British Columbia and all the charges involving Ms. Castor were stayed.

[15] J.T. chose not to show cause as to why he should not enter into the recognizance, which alleged that Ms. Castor had reasonable grounds to fear, and did fear, that J.T. would cause her personal injury as a result of an incident from April 7, 2015.

The Position of the Parties

[16] The Crown submits that an 18 month sentence for the failure to attend conviction is both fit and appropriate.

[17] Counsel for J.T. suggests a term of no more than six months less a day as the relevant jurisprudence (discussed hereinafter) shows a range of three to six months.

[18] Both parties agree that J.T. is to be granted pre-trial custody credit on a 2:1 basis.

Governing Legal Principles

[19] Before assessing what the appropriate sentence should be in this case, I will briefly consider and address the relevant sentencing principles and objectives. I adopt and rely upon the following passage from my colleague Justice McArthur in her recent decision in R. v. V.K. 2020 ONSC 7453:

“The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, 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.”

The fixing of a fit sentence must always take into account the combined effects of the circumstances of the offence with the unique attributes of the specific offender: R. v. Hamilton, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.), at para. 87. This is reflected in the proportionality requirement, described in s. 718.1 of the Criminal Code as the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b) and provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Given the highly individualised sentencing process, however, sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, para. 17; Lacasse, at para. 58.

The totality principle is addressed in s. 718.2(c). A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unjust. The cumulative sentence imposed must not exceed the overall culpability of the offender: R. v. C.A.M., 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 42.

The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal confirmed in Hamilton, at para. 96, the principle of restraint means that the sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction: see also R. v. Sharma, 2019 ONCA 274, at para. 23.

Pursuant to s. 718.2(a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.”

Aggravating Factors

[20] The Crown submits that absconding in the middle of a jury trial is a rare event. While J.T.’s second trail before Justice Dambrot ultimately culminated in a hung jury (requiring a third trial before Justice McArthur at which J.T. was ultimately convicted of three counts of sexual assault, three counts of sexual interference and two counts of sexual exploitation resulting in a 16 year jail sentence), as previously stated all of the victims were required to testify anew at the second trial before J.T. fled the jurisdiction.

[21] J.T. was given the privilege of being released on bail pending his second trial, and still wilfully breached those release terms by ceasing to attend his second trial and absconding to British Columbia.

[22] J.T. assumed a new identity, and a new life in British Columbia, presumably never looking back.

Mitigating Factors

[23] J.T. is 50 years old. He initially immigrated to Canada from Peru, and his counsel submits that most, if not all, of his family currently reside in Ontario. This is a permanent residence in Canada.

[24] Following his convictions at the third trial before Justice McArthur, there is presently a deportation order against J.T., and he is at some point in the future set to be deported back to Peru.

[25] The Crown submits there are no mitigating factors in the case before me.

[26] While a lack of guilty plea and the absence of remorse are not to be considered as aggravating factors, such factors, if present, can be considered in mitigation of sentence.

[27] J.T. is entitled to maintain his innocence and pursue any appeal route he chooses. However, he has shown no remorse and did not plead guilty. As such, he cannot benefit from a guilty plea or remorse as a mitigating factor in sentencing.

Conclusion on Fit Sentence

[28] Pursuant to section 145(2) of the Criminal Code, the maximum sentence for a failure to attend is an imprisonment term not exceeding two years.

[29] The Crown argues in favour of a demonstrative sentence, commensurate with the gravity of the offence and J.T.’s moral culpability. The Crown submits that a sentence of 18 months’ imprisonment is just, fit and proper. The Crown relies upon the decision of the Alberta Court of Appeal in R. v. Shaw 2017 ABCA 203. The entire text of that decision is as follows:

“The appellant appeals the 18 month sentence he received for failing to appear at his murder trial, along with two concurrent sentences of four months for breaching other release conditions.

We are of the view that this appeal is not moot. We are also satisfied that the sentencing judge gave fair consideration to the factors set out in the Gladue report.

The appellant argues that the sentence is too harsh. The appellant stopped reporting to his bail supervisor, his third counsel lost contact with him and withdrew, the appellant failed to appear at his third scheduled murder trial, he moved to British Columbia, lived there for about 18 months under a pseudonym, and initially denied his identity when he was ultimately arrested. In those circumstances, the sentence cannot be said to be demonstrably unfit.

No reviewable error has been shown, and the appeal is dismissed.”

[30] While there are no Gladue considerations in the case before me, the original sentencing decision in Shaw is unavailable online. Counsel for J.T. pointed out that there were, apparently, no immigration concerns in Shaw.

[31] As held by the Supreme Court of Canada in R. v. Pham 2013 SCC 15, the collateral consequences of a sentence (including immigration consequences) may be taken into account by the Court as personal circumstances of the offender during the sentencing process. Such immigration consequences are not aggravating or mitigating factors, but still relevant to the application of the principles of individualization and parity in sentencing.

[32] Counsel for J.T. argues that the relevant jurisprudence supports a sentence of between three to six months. I have reviewed the cases submitted on behalf of J.T., and find them to be of general assistance, but not apposite to the facts before me. None of those cases dealt with a situation where an individual fled the jurisdiction in the middle of a trial, let alone a second trial ordered by an appellate court. In the case before me, J.T. absconded as the Crown was about to close its case during the second trial, and the reasonable inference from such actions is that J.T. believed that he stood a good chance of being convicted.

[33] I do not consider the immigration consequences upon J.T. to be compelling in my disposition of a fit sentence. Counsel for J.T. pointed to her client’s roots in Ontario, and any sentence greater than six months less a day would result in another deportation order (over and above J.T.’s current deportation order as a result of his 16 year sentence pronounced by Justice McArthur). In my view, J.T.’s roots in Ontario did not seem to play much of a role in his decision to assume a new identity and relocate to British Columbia.

[34] Failing to attend in court in the manner carried out by J.T. warrants a sentence that emphasizes deterrence, denunciation and respect for the law. While the second trial before Justice Dambrot resulted in a hung jury, even if J.T. had been convicted at that second trial, absconding to British Columbia would have nevertheless delayed the administration of justice because police officers (likely in both provinces) would have had to carry out similar efforts to locate him.

[35] In R. v. Yusuf 2012 ONSC 21, the accused pleaded guilty to manslaughter and failing to attend court. The accused had failed to appear in respect of his second degree murder charge prior to the trial being scheduled, or at least before it began. A bench warrant for his arrest was issued, and he was located in Alberta approximately 2 ½ months later with a false Alberta driver’s license. As in the case before me, the accused had been released on bail pending trial (although the charge was second degree murder).

[36] Mr. Yusuf was given a total sentence of 6 ½ years for manslaughter and one year (consecutive) for failing to attend. I find such a sentence to be instructive and applicable in the case before me, and like the court in Yusuf, a one year sentence for failing to attend is a “just an appropriate sentence which reflects the gravity of the offence committed and the moral blame worthiness of the offender”.

Sentence

[37] I will now pronounce sentence.

[38] J.T., you have been convicted on one count of failing to attend. I sentence you to 12 months (less 126 days credit for pre-sentence custody) for that offence.

[39] While the Crown did not make any formal request for ancillary orders, as J.T. has been convicted of a secondary designated offence under section 487.04(c) of the Criminal Code, the Court has a discretion to make certain ancillary orders.

[40] J.T. you are hereby placed on probation for three years with the following terms:

i) you must keep the peace and be of good behaviour; ii) you must appear before the Court when required to do so; iii) you must notify the Court or your probation officer in advance of any change of name or address and promptly notify the probation officer if there is any change of employment or occupation; iv) you must report to your probation officer within two working days after the making of the probation order and thereafter when directed by the probation officer in the manner directed by the probation officer; v) you must cooperate with the probation officer, and sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to the probation officer on request. vi) you must not possess any firearms or weapons; vii) your reporting requirements set out above shall end if and when you are deported from Canada; viii) you must advise the Canada Border Services Agency (“CBSA”) of your address within 48 hours of your release from custody and advise the CBSA of any change of address within 24 hours of any change of address; and, ix) you must report as directed by the CBSA.

Released: March 26, 2021 Diamond J.

Notes

[1] Anonymizing J.T. is due to the fact that there are orders under section 486.4(1) of the Criminal Code made in the other criminal proceedings against J.T. as described in these Reasons.