Reasons for Sentence

Court File No.: CR-24-500000520-0000
Date: 2025-05-30
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Mauricio Aguirre

Appearances:
Simon King, for the Attorney General of Ontario
Juan Lopez, Counsel for Mauricio Aguirre

Heard: February 13 and April 22, 2025
Released: May 30, 2025
Judge: Wendy L. Himel

Introduction

Mauricio Aguirre entered pleas of guilty to the following charges: utter a threat to cause death contrary to s. 264.1(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and mischief to property under $5,000 contrary to s. 430(4)(a) of the Code. He had elected to be tried by a judge sitting alone.

The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Aguirre confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Counsel have made their submissions on sentence. The following are my reasons for sentence.

Factual Background

The facts were admitted pursuant to s. 655 of the Criminal Code. Mr. Aguirre and Paulina Lopez had been in a dating type relationship from June 2017 to November 2021. During the relationship and even after the relationship, they broke up and got together numerous times. Mr. Aguirre and Ms. Lopez do not have any children together, but each have children from previous relationships.

On November 4, 2021, Mr. Aguirre and Ms. Lopez were at their residence at 33 Hearst Circle in the City of Toronto. A verbal argument ensued about the state of the relationship and Mr. Aguirre threatened to hurt her if she kept talking back to him. On November 5, 2021, Ms. Lopez told Mr. Aguirre their relationship was over and changed the locks to the residence at 33 Hearst Circle. Mr. Aguirre attended the residence and punched a window located on the side of the house. This caused the window to shatter.

On the basis of these facts and the admission of the defence, I found Mr. Aguirre guilty of threatening bodily harm and mischief to property under $5,000.

Evidence on the Sentencing Hearing

Counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Crown counsel, Mr. King, also submitted a Victim Impact Statement from the complainant in which she described the emotional, mental, physical, and financial impact on her from the events which occurred with Mr. Aguirre.

Counsel for Mr. Aguirre submitted a letter from Pablo Munoz, Registered Psychotherapist, dated January 26, 2025, in which he stated that he provided treatment in the Spanish language to Mr. Aguirre during seven sessions from November 2024 to January 2025. He said that Mr. Aguirre expressed remorse for his actions and that he now understands his behaviour and is learning different techniques to process and handle emotions especially under stress.

Mr. Lopez also submitted a copy of the release order dated October 21, 2023, where Mr. Aguirre was released on a $2,500 recognizance with his niece as his surety and with terms that he reside with her each and every night, not contact the complainant or be within 100 metres of her except for court appearances, not possess weapons or apply for an authorization or licence. Counsel advised that Mr. Aguirre has complied with all these terms over the last 18 months.

Mr. Aguirre apologized to the court and expressed regret for his actions.

Positions of the Parties

The Crown advises the court that Mr. Aguirre has no criminal record and no other outstanding charges. Mr. King submits that an appropriate sentence is a suspended sentence and probation with terms that Mr. Aguirre have no contact with the complainant except through legal counsel. Mr. King acknowledges that Mr. Aguirre has taken steps by attending with a therapist to address his problems and to develop other techniques for dealing with stress. Crown counsel also seeks an order that a sample of Mr. Aguirre’s DNA be taken pursuant to s. 487.051.

Counsel for the defence, Mr. Lopez, submits to the court that an appropriate sentence is a conditional discharge and three years of probation with terms that Mr. Aguirre continue counselling in the discretion of his probation officer, have no contact with the complainant and not be within 100 metres of her except through legal counsel for the purposes of a civil action brought by the complainant. Mr. Lopez advised the court of Mr. Aguirre’s background. He has been in Canada since 1991 and is a Canadian citizen. He has a high school education and has been working during the past 12 years in the waterproofing and concrete industry. Counsel advised that he has complied with all terms of release requiring him to reside with his niece and which have also prevented him from travelling to see his 8-year-old son and his sister who is ill and reside in Columbia. However, he did not seek a variation of the term to permit him to leave the country.

Defence counsel does not oppose the ancillary order sought by the Crown.

Analysis and the Law

Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

Decision

Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, para 44. The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Aguirre.

Mr. Aguirre is 58 years of age and was born on January 3, 1967 in Columbia. He immigrated to Canada in 1991 and became a Canadian citizen in 1996. He has a high school education. He has worked during the previous 12 years in waterproofing and concrete construction. Mr. Aguirre was arrested on October 21, 2023, and was released on a recognizance to live with his niece who is his surety, with terms that he not have contact with the complainant and that he be in the house each night. His sister, who has a heart condition, lives in Columbia and his son lives there as well. He has not been able to visit them. There have been no issues with the terms of his release. That he has complied with the terms of release and there is no suggestion of any breach is a mitigating factor that is considered when deciding whether a period of community supervision is appropriate.

Mr. Aguirre has pleaded guilty to the charges and is taking responsibility for his actions. In pleading guilty, he has saved valuable court resources at a time when resources are scarce.

The letter filed from the psychotherapist demonstrates that Mr. Aguirre has already made efforts to change his ways. The letter references that he has expressed remorse and regret for his actions and has shown a commitment to change. I am satisfied that Mr. Aguirre has good rehabilitative potential as demonstrated by his efforts to take counselling. He has apologized to the court and says he regrets his actions. Mr. Aguirre has some family support with his nieces who reside in Toronto.

The aggravating factors include the nature of the offences and the impact upon the complainant.

Crown counsel has fairly submitted that an appropriate sentence is a suspended sentence and probation. Defence counsel has submitted that this is a suitable case for a conditional discharge, particularly given the time spent on judicial interim release without incident and the impact of a criminal conviction regarding future employment (there may be potential contracts with government) and his ability to travel to Columbia to visit his family.

Where the statutory provisions are met under s. 730, the court may consider imposing a discharge on sentence. In the case of R. v. Sanchez-Pino, the court provided some guidance on when a discharge is indicated:

…The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally, he will be a person of good character or at least of such character that the entry of a conviction against him may have some significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence—a standard part of the criteria for sentencing.

The case of R. v. Fallofield further provides direction as to the appropriateness of a discharge which is available for any offence other than one for which a minimum punishment is prescribed by law, or the offence is punishable by imprisonment for 14 years or for life or by death.

I arrive at the conclusion that it is not contrary to the public interest, and it is in the best interests of Mr. Aguirre to impose a discharge. Fortunately, the offences to which Mr. Aguirre pleaded guilty did not amount to physical violence to the complainant. The threat and mischief charges are serious and have caused her emotional and other consequences. However, Mr. Aguirre has taken steps to address anger management issues. He has complied with terms to stay away from the complainant for the last 18 months. He is working and contributing to society. He has demonstrated strong rehabilitative potential. Thus, I conclude that it is in his best interests that he receive a discharge subject to conditions and I deem it to be not contrary to the public interest to discharge the offender with conditions.

Result

Mr. Aguirre shall be sentenced as follows:

For the offence of threaten to cause death contrary to s. 264.1 of the Code, in that he has been found guilty of an offence other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, and in that I consider it to be in the best interests of Mr. Aguirre and not contrary to the public interest, I direct that he shall be discharged on conditions prescribed below:

• He shall be placed on probation for a period of three years;
• He shall reside at 15 Kenora Crescent, Toronto, Ontario or such place approved by his probation officer;
• He shall advise his probation officer of his place of work;
• He shall attend any counselling recommended by his probation officer and sign any necessary releases;
• He shall report within 5 business days and thereafter as often as required by his probation officer;
• He shall not have any contact with the complainant and not be within 100 metres of where she works, lives or is known to be, except with respect to outstanding legal proceedings and in the presence of his counsel;
• He shall not possess any weapons or apply for a firearm acquisition licence or certificate.

For the offence of mischief to property under $5,000, Mr. Aguirre shall be discharged on conditions which are the same as outlined above. This sentence is served concurrently to the sentence for uttering threats.

Further, I order that Mr. Aguirre provide a sample of his DNA in accordance with s. 487.051 of the Code. The Victim Fine Surcharge shall be paid within 30 days.

Wendy L. Himel
Released: May 30, 2025