



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruelas, 2022 ONCA 262

DATE: 20220331

DOCKET: C69691

Simmons, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ruelas

Appellant

Marianne Salih and Jeffery Couse, for
    the appellant

Molly Flanagan, for the respondent

Heard: in writing

On appeal from the sentence imposed on December
    18, 2020 by Justice Gisele M. Miller of the Superior Court of Justice, with
    reasons reported at 2020 ONSC 7973.

REASONS FOR DECISION


[1]

Following a judge alone trial, the appellant was
    convicted of sexual assault, but acquitted of the offence of choking to assist
    in committing a sexual assault.

[2]

The appellant and the victim were long time
    acquaintances. After an evening of partying and consuming alcohol at a friends
    place, the victim awoke on a couch to find the appellant having sexual
    intercourse with her. When she protested, the appellant told her to shut up,
    ripped her tank top and at one point had his hand on her throat with sufficient
    force to cause bruising. The trial judge was not however satisfied beyond a
    reasonable doubt that the appellant was attempting to render the victim
    insensible, unconscious or incapable of resistance.

[3]

After reviewing the material placed before her
    for sentencing, the trial judge sentenced the appellant to three years, six
    months imprisonment less six days credit for pre-sentence custody.

[4]

The appellant raises three issues on appeal.

[5]

First, the appellant argues that the trial judge
    erred in failing to give effect to the mitigating factors present. The trial
    judge noted the several letters filed in support of the appellant, his efforts
    at rehabilitation through an in-patient alcohol rehabilitation program, the
    further counselling he had undertaken and the low‑to‑moderate risk
    assessment his counsellor had provided. However, the trial judge expressed
    uneasiness at the fact that none
[1]
of the letters of support post‑dated his arrest and detention on new
    charges prior to the date of sentencing.

[6]

The appellant submits that the trial judge erred
    in failing to raise her concerns at the sentencing hearing and give the
    appellant an opportunity to respond and submits that this error led her to
    ignore or de-emphasize the mitigating factors present.

[7]

Second, the appellant argues that the trial
    judge erred in failing to apply the principle of restraint. While the appellant
    had a prior record, it was unrelated. The appellant was 31 years-old at the
    time of sentencing, had never previously been sentenced to the penitentiary and
    had good rehabilitation prospects. In the circumstances, he submits that a
    sentence of three years, six months' incarceration did not properly recognize his
    potential for rehabilitation or apply the principle of restraint.

[8]

Finally, the appellant argues that the trial
    judge erred in failing to give the appellant credit for pre-sentence custody
    arising from the unrelated charges he was facing at the time of sentencing. The
    trial judge calculated that, by the date of sentencing, the appellant would
    have spent 70 days in custody on the charges he was facing. Fresh evidence
    demonstrates that the appellant received credit for only 45 days of
    pre-sentence custody when sentenced for those charges.
The
    appellant submits that his detention on the additional charges was sufficiently
    related to his conviction for this offence that the additional time served
    should have been credited as pre-sentence custody for this offence.

[9]

We would not give effect to the first and second
    grounds of appeal.

[10]

Although we agree that it would have been
    preferable had the trial judge raised her concerns about the letters of support
    at the sentencing hearing and given trial counsel an opportunity to respond, we
    are not satisfied she was obliged to do so. Such letters are not the equivalent
    of a pre-sentence report ordered by the court. A trial judge is entitled to
    assume that parties have filed all available material in support of their
    position.

[11]

Further, based on our review of the trial judge's
    reasons, we are satisfied that she fully considered the appellant's
    circumstances and the relevant sentencing principles. As we have said, she
    reviewed all the material placed in front of her for the purposes of
    sentencing. We see no error in principle that affected the sentence imposed.

[12]

Finally, even if we had identified any error in
    the trial judges reasons, we are satisfied that a sentence of three years, six
    months incarceration was entirely fit having regard to the circumstances of
    the offender, and the offence, and all relevant sentencing principles. As
    observed by the trial judge, this was a sexual attack involving full
    penetration on an incapacitated victim who trusted the appellant as a friend.
    During the attack, the appellant placed his hand on the victims throat with
    sufficient force to cause bruising. The impact on the victim has been severe.

[13]

As
    for the third ground of appeal, we conclude that the appellant should be given
    credit for the pre-sentence custody served that was not credited to him on the charges
    for which he was detained at the time of sentencing by the trial judge. The
    trial judge calculated that the appellant would have served a total of 70 days
    in custody prior to the date of sentencing. She gave credit on a 1.5:1 basis
    for four days of pre-sentence custody, resulting in six days credit. We would
    allow credit for an additional 21 days of pre-sentence custody (70 days minus 4
    days credited by the trial judge minus 45 days credited on other charges) on a
    1.5:1 basis, resulting in additional credit of 32 days.

[14]

Based on the foregoing reasons, leave to appeal
    sentence is granted, the appeal is allowed in part by increasing the credit for
    pre-sentence custody from six days to 38 days, resulting in a sentence of three
    years and six months imprisonment less credit for 38 days of pre-sentence
    custody. The sentence appeal is otherwise dismissed and all other terms of the
    sentence imposed by the trial judge shall remain in full force and effect.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.





[1]

The trial judge did note that one of the letters was
    undated.


