TORONTO — Ontario’s top court has ruled that the conviction and 15-month jail sentence handed a man who raped a passed-out woman should stand even though it means automatic deportation to his native Ecuador.
Fernando Crespo, a permanent resident of Canada, was convicted in December 2013 of sexually assaulting a woman who had passed out on her bed after a night of heavy drinking.
The woman, who cannot be identified, testified she woke up with Crespo on top of her engaging in sexual intercourse.
Crespo appealed, arguing Ontario court judge Michael Epstein was wrong to discount his assertion the woman had consented to the sex.
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He also claimed the judge was wrong to disregard his claim that he honestly, if mistakenly, believed she had agreed. Among other things, he argued she had tried to seduce him earlier in the evening.
The Court of Appeal was having none of it.
“The insurmountable obstacle to this submission is the trial judge’s finding that (the woman) was asleep when the appellant commenced intercourse, and thus lacked the capacity to consent at that time,” the Appeal Court said in its decision .
“Her prior conduct is therefore irrelevant to the question of whether she consented. She could not have consented.”
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In addition, the Appeal Court sided with the judge that Crespo took no reasonable steps to obtain consent, noting Epstein’s comments that the accused was “an extremely poor witness” who was “almost comically evasive” in his testimony.
Crespo argued the 15-month term was too harsh in light of its immigration consequences – a sentence of six months or more renders foreigners inadmissible to Canada – saying Epstein should have considered a conditional sentence.
“A custodial sentence of less than six months, or a conditional sentence, would be manifestly unfit for the circumstances of this offender and this offence,” the Appeal Court ruled.
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“Consideration of immigration consequences cannot justify an otherwise inadequate sentence.”
The Ontario court’s decision contrasts sharply with the case of swimmer Brock Turner in California, which has sparked widespread outrage. Turner, 20, a Stanford University student, was handed a six-month sentence for sexually assaulting an unconscious woman outside a fraternity party in 2015. Turner had also tried to argue the activity was consensual.
The judge in the case, Aaron Persky, imposed what many considered to be a far too lenient sentence on the grounds that a longer one would have a “severe impact” on Turner. Critics are now trying to have Persky removed from the bench.
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