SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-10000827-0000

DATE: 20211021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ENZO DE JESUS-CARRASCO

R. Nathanson and P. Santora,

for the Crown

H. Aly, for Mr. De Jesus-Carrasco

HEARD: 8 September 2021

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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.

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Facts of the Offence

1Enzo DeJesus-Carrasco was convicted of one count of sexual assault in a judge alone trial.

2At the time of the offences, Mr. DeJesus-Carrasco was working at the College Street Bar (the Bar), a cocktail bar and restaurant under the proprietorship of Gavin MacMillan. The victim in this case, J.M. was a work colleague of Mr. DeJesus-Carrasco, who began her employment with Mr. MacMillan as an instructor at a bartending school that he also owned. J.M. and Mr. DeJesus-Carrasco first met at the school when he attended as a student. Later, both would be employed as servers at the Bar.

3On 8 December 2015, J.M. ended her shift and volunteered to drive a group of fellow employees home. Mr. DeJesus-Carrasco was one of three who accepted her offer. After dropping off the other passengers, only Mr. DeJesus-Carrasco and J.M. remained in the car. Mr. DeJesus-Carrasco asked J.M. to take him to his house near the intersection of Broadview Avenue and Gerrard Street.

4En route, Mr. DeJesus-Carrasco began to utter flirtatious comments and make sexual advances towards J.M.. She did not reciprocate and sought to deflect his remarks with compliments and humour.

5When they arrived at Gerrard Street, Mr. DeJesus-Carrasco asked J.M. to pull over. After she did, Mr. DeJesus-Carrasco told her that he wanted a kiss. When J.M. refused, Mr. DeJesus-Carrasco pulled her towards him. In a placatory effort, J.M. kissed Mr. DeJesus-Carrasco on the cheek. However, this was not enough: Mr. DeJesus-Carrasco demanded a “real kiss”. Wanting him to get out of her car, J.M. planted a brief kiss on his lips.

6Without warning, Mr. DeJesus-Carrasco pushed J.M. back and put his hand on her leg. He kissed her and told her that everything would be “okay”. J.M. tried to resist but Mr. DeJesus-Carrasco was, in her words, “too strong”. Mr. DeJesus-Carrasco put his hands down J.M.’s pants and inserted his fingers into her vagina.

7Despite repeated protests, Mr. DeJesus-Carrasco continued his assault, kissing J.M. and telling her to “sit back and enjoy”. According to J.M., Mr. DeJesus-Carrasco had his hands in her pants for approximately three to five minutes.

8When Mr. DeJesus-Carrasco finally stopped, he sat back and asked J.M. to accompany him to his home. She declined and Mr. DeJesus-Carrasco exited the car, which had been left running throughout the sexual assault.

9J.M. returned to work at the Bar a few days later on 12 December 2015. She found Mr. DeJesus-Carrasco to be present.

10J.M. disclosed the details of the sexual assault to Mr. MacMillan. In response, he asked J.M. what she wanted him to do. Eventually Mr. MacMillan told her that he would “take care of it” and that she should go home.

11Later Mr. MacMillan told J.M. that he had spoken to Mr. DeJesus-Carrasco who had indicated that there had been a “misunderstanding”. Mr. MacMillan separated J.M. and Mr. DeJesus-Carrasco in their work shifts: Mr. DeJesus would continue to be employed at the bar whilst J.M. taught at Bartender One.

12Although J.M. thought Mr. MacMillan would help her, that was not the case. J.M. came to believe that Mr. DeJesus-Carrasco and Mr. MacMillan had become the best of friends. Moreover, by losing her shifts at the Bar, J.M. suffered financially because of the difference in remuneration.

13J.M. would later return to working at the Bar with Mr. DeJesus-Carrasco who had, by then, assumed a managerial role. She never spoke to him about the incident although he sent her a text message which she perceived to be an apology.

The Prior Convictions relating to the Bar

14This conviction is the accused’s third emanating from activities at the Bar. He, along with Mr. MacMillan, was convicted by a jury of sexual assault, gang sexual assault and administering a stupefying drug with intent to commit an indictable offence. These convictions were committed upon a woman who attended the Bar to meet a friend employed there as a bartender. On 28 May 2020, Dambrot J. imposed a global sentence of 9 years imprisonment.

15Subsequently, Mr. DeJesus-Carrasco was found guilty of sexually assaulting another employee at the Bar and filming the assault. On 4 September 2020, my colleague Goldstein J. sentenced Mr. DeJesus-Carrasco to an additional 18 months in prison set to run consecutively to the sentence imposed by Dambrot J.

Position of the Parties

16The Crown seeks a sentence of imprisonment of a period of 2 years along with a probationary period of 3 years. It also argues for Mr. DeJesus-Carrasco to be subject to a lifetime order under the Sex Offender Information Registration Act, S.C. 2004, c. 10, and provide a DNA sample as a result of his conviction for a primary designated offence under the Criminal Code, R.S.C. 1985, c. C-46. The Crown argues that this sentence would take into account the totality principle for all three sets of offences for which Mr. DeJesus is now convicted.

17Mr. Aly, counsel for Mr. DeJesus-Carrasco, responds that the Crown position would offend the totality principle set out in appellate jurisprudence. He asks that this court impose a shortened sentence of 5 months 21 days, a figure that would round up Mr. DeJesus’ total sentence to 11 years and avoid the implications of a sentence that would be crushing in its effects.

Mr. DeJesus’ Personal Circumstances

18Mr. DeJesus is now 36 years old and arrived in Canada in June 2012 from the Dominican Republic.

19He was raised primarily by his mother, a psychologist who worked at a school. His father was a politician who did not feature in his life.

20He finished High School in the Dominican Republic before attending university to study hotel management, but switched to a culinary programme which provided the skills to be a chef. He came to Canada on a work visa and was employed in different jobs, including telemarketing and as a chef, before eventually becoming a manager at the Bar.

21At the time of this offence, he had no prior criminal record. However, as previously noted, he was subsequently convicted of separate sexual assaults on two different victims who, like in this case, were women associated with the Bar. Nevertheless, for the purposes of sentencing this offence, I do not intend to use those convictions as an aggravating feature.

Aggravating and Mitigating Features

22I find the most relevant aggravating feature in this case to be the breach of trust committed by Mr. DeJesus-Carrasco.

23J.M. was a co-worker at the Bar. On the night in question, she was gracious enough to offer Mr. DeJesus-Carrasco a ride home at the end of their shifts.

24That offer was based on a position of trust: when J.M. invited Mr.DeJesus-Carrasco into her car, she was entitled to expect her work colleague, to behave in a manner which accorded her respect and safety. He shattered that trust by sexually abusing her in the confines of her vehicle.

25Mr. DeJesus-Carrasco’s actions were not a brief opportunistic act. It is clear from J.M.’s evidence that the offence was prefaced with suggestive comments which began en route to the car’s stop on Gerrard Street after the other occupants had been dropped off.

26When J.M. refused to agree to a kiss, Mr. DeJesus-Carrasco persisted in his demands before placing his hands down J.M.’s pants and digitally penetrating her. His hands were in her vaginal region for three to five minutes.

27There can be no doubt that what happened on 8 December 2015 left J.M. emotionally and psychologically scarred, having suffered a humiliating and degrading attack on a public street.

28I have already stated that I do not intend to use Mr. DeJesus-Carrasco’s other convictions as aggravating features in sentencing. The so-called “Coke principle” means that any conviction relied upon as an aggravating factor must have existed prior to the offence for which an offender is being sentenced: R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47; R. v. Andrade, 2010 NBCA 62, 363 N.B.R. (2d) 159, at para. 14.

29Although I do not use the fact of Mr. DeJesus-Carrasco’s subsequent convictions as an aggravating factor, I do take account of his attitudinal lack of respect for women which is reflected in the circumstances which led to his convictions.

30In mitigation, I repeat that, at the time of the offences, Mr. DeJesus had no criminal record. He had a solid employment background, including working in Canada after his arrival and continuing to do so whilst on bail. He has strong family support and once released from prison will be deported to the Dominican Republic. He intends to reconcile with his family and restart work in the hotel industry.

The Sentencing Precedents

31In pronouncing sentence, I am guided by the principles set out in s. 718 of the Criminal Code which requires the court to balance denunciation and deterrence with the prospects of rehabilitation and the promotion of responsibility.

32Here, I find that denunciation and deterrence are key principles which factor into sentencing. There is no evidence of rehabilitative steps taken by Mr. DeJesus-Carrasco since his convictions although I am advised that he intends to take advantage of the programmes at the correctional facilities.

33I reject Mr. Aly’s contention that Mr. DeJesus-Carrasco’s criminal-free conduct whilst on bail amounts to evidence of rehabilitation. Court ordered conditions and the threat of re-incarceration provide sufficient incentive to stay trouble-free whilst criminal proceedings are afoot. Abiding by these restrictions does not constitute a positive step in the rehabilitation roadmap.

34As to the length of sentence, the Crown and the defence agree that there is a wide range of sentences in sexual assault cases of this nature.

35With great respect, I find the cases cites by Mr. Aly are of limited application in this case.

36For example, R. v. Vallada, 2016 ONSC 887, involved brief touching of genitals by a pastor on two church attendees during a cleansing ceremony, and lead to a suspended sentence. In R. v. Sharma, 2007 CanLII 37896 (Ont. S.C.), the accused pleaded guilty to kissing the victim’s neck and face and received a suspended sentence. In R. v. Casciaro, 2006 ONCJ 422, the offender touched the victim’s breasts under her shirt and tried to kiss her. He received a six month conditional sentence. In R. v. Burton, 2012 ONSC 5920, a Summary Conviction Appeal court upheld an absolute discharge where the offender, a passenger on a bus, put his hand up a fellow passenger’s skirt and onto her leg when seated alongside her.

37These authorities and others cited by Mr. Aly do not approach the seriousness of Mr. DeJesus-Carrasco’s actions in this case.

38I agree the facts in R. v. Finelli, [2008] O.J. No. 2537 (S.C.), are more serious. There, the offender received a one year sentence after pleading guilty to digitally penetrating an 11 year old whilst staying at a guest at her family’s cottage. However, this case pre-dates the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, where the Court indicated that past precedents dealing with sexual assault on children would need to be revisited in light of Parliament’s intention to increase maximum sentences.

39During the course of submissions, there was some discussion of the distinction between digital penetration and rape cases where penile penetration occurred. I find that this distinction, which treats digital penetration as a significantly “lesser” offence, cannot be justified. As stated by Durno J. in R. v. P.R., 2013 ONSC 1517, at para. 92, the “nature of the assault” impacts the length of sentence.

40Digital penetration results in the same or similar level of degradation, humiliation and defiling of a woman’s sexual integrity as a rape. It is hard to understand why vaginal penetration by one part of the body should be treated more or less seriously than penetration by another part: the effect on the dignity and sexual integrity of the victim is the same.

41I note that the Court of Appeal of Ontario has taken the same view. In R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 68, Huscroft J.A. wrote that he did not “accept that fellatio and digital penetration are somehow lesser forms of sexual abuse than intercourse”. In the same case, Pepall J.A., at para. 125, observed that “the impact on the physical and psychological integrity of the victims is often no different simply because the penetration is found to be digital rather than penile.”

42A more recent case, R. v. Case, 2021 ONSC 908, involved a sexual assault against a nineteen-year-old complainant who the two accused met at her workplace, where they were regular customers. In imposing a 16 month sentence, Hennessy J. rejected the proposition that other sentencing cases were distinguishable in that they involved penile penetration. At para. 58, Hennessy J. explained: “Digital penetration is still highly invasive not only of the human dignity of a person but also of their sexual integrity.”

43In R. v. Berry, 2015 BCCA 210, 371 B.C.A.C. 306, the court upheld a sentence of two years, imposed as part of a global sentence, where the offender filmed himself sexually assaulting the victim by digitally penetrating her whilst she slept.

44Other courts have taken a stringent view with regards to sentencing even when the sexual touching has not involved penetration. In R. v. Thiara, 2004 CanLII 5090 (Ont. S.C.), the offender, a 32 year old restaurant manager, sexually assaulted a 16 year old high school student working part time at his restaurant. He asked the victim to watch a pornographic movie with him and felt the victim’s penis over his clothes before asking the victim to touch his own penis. When the victim refused and made to leave, the offender grabbed him and kissed him on the neck. The court imposed an eight month sentence which was upheld on appeal.

45It is also worth noting that when Mr. DeJesus-Carrasco was sentenced by Goldstein J. for sexually assaulting another of the Bar’s employees he received an 18 month prison sentence. In that case, Mr. DeJesus-Carrasco lured the victim to his office, pushed her against a wall and touched her vaginal area inside and outside of her clothing. However, Goldstein J. found a reasonable doubt as to whether digital penetration had occurred and sentenced on that basis.

The Sentence

46I have already noted that in determining sentence I am obliged to keep in mind the principle of totality. This requires a sentencing judge to ensure a cumulative sentence does not exceed the overall culpability of the offender: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; R. v. Marshall, 2021 ONCA 28, 153 O.R. (3d) 623, at para. 8.

47The principle applies equally to Mr. DeJesus-Carrasco as he currently serves two consecutive sentences for the offences for which he was convicted: Marshall, at para. 9.

48There is no doubt that the sentence must be consecutive to those other sentences. As I have already found, this was a serious offence which degraded J.M.’s dignity and humanity. The fact that it was committed by a person she knew as a work colleague and that she trusted enough to offer a ride home adds to the seriousness of the crime.

49I agree with the Crown that the sentence imposed cannot ignore the totality principle and needs to be reduced on that basis. Were this case standing alone, it would warrant a penitentiary sentence closer to three years.

50However, acknowledging the fact that Mr. DeJesus is currently serving a 10 and half year sentence, I am imposing a further sentence of 15 months. Mr. DeJesus-Carrasco should be under no illusion that this would have been a far lengthier term of imprisonment but for his other sentences.

51I would also impose a period of probation of 3 years with the following conditions:

1. Report within 48 hours of release and thereafter at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision;

2. Promptly notify your probation officer of any change in your address, occupation or employment;

3. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer;

4. Sign any releases necessary for your probation officer to monitor your participation in assessment, counselling and rehabilitation programs; and,

5. Have no contact, directly or indirectly, with J.M.

52I would, in addition impose a SOIRA order for life and order that Mr. DeJesus-Carrasco provide a sample of his DNA.

53Finally, I would like to commend all counsel in this case for their efforts, advocacy and co-operation which ensured an efficient and expeditious trial.

S.A.Q. Akhtar J.