Warning and Non-Publication Order
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2025-04-15
Court Files: Oshawa 23-28108665-00, 24-28104554-00, 24-28108637-00
Between:
His Majesty the King
— and —
S.T.
Before Justice Joseph Hanna
Reasons for Judgment released April 15, 2025
Counsel:
T. Jackson — counsel for the Crown
M. Mistry — for the defendant
Introduction
1I found S.T. guilty after a trial of sexually assaulting his spouse. He subsequently pleaded guilty before me to violating two court orders.
2The Crown seeks a sentence of 15 months jail on the sexual assault charge and 60 days consecutive on the breach offences. The Crown also requests two years probation, a DNA order, a s. 109 weapons prohibition, and a SOIRA order.
3The defence requests a suspended sentence given S.T.’s 79 days time served. If imprisonment is required, the defence submits I should allow S.T. to serve it in the community. The defence recommends a period of probation between 12 and 18 months. S.T. does not oppose the requests for a DNA order and s. 109 order, but he contests the imposition of a SOIRA order.
4These are my reasons for sentence.
The Circumstances of the Offences
5At the time of the sexual assault, S.T. and the victim were living together, though their relationship had been unravelling for a while. I found that S.T. pushed the victim down on a bed, kissed her repeatedly while pressing down on her arms, thrust his body into her while he had an erection, and covered her face with his chest. While this was occurring, the victim told S.T., “No” and “stop”.
6Between February and May 2024, S.T. texted the victim multiple times contrary to his undertaking. On September 11, 2024, contrary to his release order, he sent a friend to the victim’s residence who provided the victim a clipboard with notes written by S.T. S.T. also admits that in November 2023 he sent messages to the victim while bound by an undertaking prohibiting him from doing so. None of these communications by S.T. were threatening or intimidating.
The Circumstances of the Offender
7S.T. is 60 years old. He has no criminal record.
8He grew up in the Toronto area and had a stable upbringing. He attended school until grade 11.
9He has had steady employment working in the field of Heating, Ventilation, and Air Conditioning. He is an HVAC and Electrical Contractor.
10He and the victim own five properties together. He reported to the pre-sentence report author that he was financially stable, though he has some debts in addition to the mortgages on his various properties.
11He reports that he developed some difficulties with alcohol about 3 - 4 years ago. It appears he has resolved that issue. He denied that alcohol played any role in the offence before the court.
12S.T. told the pre-sentence report author that he was overall in good health. He reported that he has taken ADHD medication and believes he may suffer from PTSD and anxiety.
13I received letters of support for S.T. from his friends and family. His sister, L.A., describes S.T. as a hardworking and kind man who has always been committed to supporting his family. She indicates that S.T. has struggled with his marital difficulties, financial instability, and mental health challenges. She states that she and her family are committed to supporting S.T. with his rehabilitation. His niece and nephew, J.A. and N.H., describe him as fun and humorous. Their letter indicates that S.T.’s struggles have impacted his emotional and mental wellbeing, and that S.T. is motivated to make amends and rebuild his life. S.T.’s brother-in-law, J.A., speaks to S.T.’s work ethic and advises that S.T., while incarcerated, has expressed a desire to reflect on his past decisions and work on becoming a better person.
14S.T.’s friend, D.B., described S.T. to the pre-sentence report author as a “stand up guy.”
15S.T. has been in custody since January 28, 2025. He reported to the pre-sentence report author that his anxiety has increased while he has been in custody.
16While in custody he has experienced numerous lockdowns. As of April 2, 2025, the total lockdown time was calculated as 102 hours. He has also been triple bunked during most of his time spent in custody. S.T. filed an affidavit at his sentencing hearing. In it, he describes the impact the lockdowns and overcrowding have had on him. He refers to his inability to use the phone, meet visitors, use the range, and enjoy recreational activities. He also mentions that he has had restricted use of the showers, and that he has been provided with insufficient clean clothing and basic hygiene products. The affidavit also states that while incarcerated his stress levels have raised and his debts have accumulated.
17In the pre-sentence report, S.T. referred to his business as being at a standstill. During submissions I asked Mr. Mistry regarding the status of S.T.’s business. He replied that the business was still running, and that S.T.’s friend had been managing it while S.T. has been incarcerated.
18S.T. maintained his innocence to the pre-sentence report author regarding the sexual assault charge. He described the victim as being obsessed with his inheritance and said that she would not be happy until he was “broke, homeless, and in jail.”
19S.T. chose to address me at the end of his sentencing hearing. He said he wished to apologize for everything. He said this was embarrassing and wasting everyone’s time. He mentioned that during the incident with the victim he jumped off and that it was not the case that the victim needed to kick him off. He told me he would be an idiot to try and contact the victim now. He stated his life was a mess and that he needed medical care. He apologized to the court, to the victim, and to his family for anything that was done. He said he would never do it again.
Victim Input
20The victim provided a victim impact statement. It describes the profound emotional, physical, and psychological effects this offence has had on her. She mentions feeling fearful in her own home and that she is still struggling to deal with anxiety and other negative emotions because of what happened. She also described feeling betrayed.
General Principles
21In determining the appropriate sentence, I am required to weigh the mitigating and aggravating factors and balance the sentencing objectives mentioned in s. 718(a) – (f) of the Criminal Code.
22Various principles such as parity, totality, and restraint must also be considered: Criminal Code, ss. 718.2(b)-(e).
23Ultimately, it is necessary that the sentence I impose be proportionate having regard to the seriousness of the offences and the degree of responsibility of the offender: Criminal Code, s. 718.2(a).
The Aggravating Factors
24There are multiple aggravating factors relating to the sexual assault offence:
i) While S.T. and the complainant were no longer intimate partners at the time of this offence, they were married. He, accordingly, violated a position of trust.
ii) The psychological impact on the victim has been significant.
iii) The victim experienced some bruising as a result of the offence and some physical discomfort for a period following the incident.
iv) While all sexual assaults are violent, there were some particularly serious aspects to the conduct in this case. It involved holding the victim down, repeated kissing, the offender’s chest being on the complainant’s face, and the offender thrusting his body into the victim. The victim testified that she was unable to breathe while S.T. was on top of her. While I do not find that S.T. intentionally attempted to interfere with the victim’s breathing, his conduct reveals some indifference to the reasonably foreseeable consequences of his actions.
v) There was a level of persistence to the sexual assault. While it was a short interaction, it did not end immediately when the complainant said “no” and “stop.” It was interrupted, rather, by the dog jumping on S.T. and the victim kicking him off.
vi) The offence took place in the victim’s own bed, a place where she was entitled to feel safe.
25Regarding the breach offences, it is an aggravating fact that S.T. also communicated with the victim in November 2023 contrary to his undertaking. Furthermore, the breach offence for the period between February and May 2024 involved multiple incidents of contact.
The Mitigating Factors
26The mitigating factors in this case are as follows:
i) S.T. has no criminal record.
ii) Regarding the breach offences, he has pleaded guilty and expressed remorse for his conduct.
iii) He has been gainfully employed for most of his life.
iv) The harsh jail conditions he experienced while in pre-sentence custody, including restricted access to showers and yard, numerous lockdowns, and frequent triple bunking: R. v. Marshall, 2021 ONCA 344, at paras. 50–53.
v) He still has employment opportunities.
vi) He has support in the community, as is particularly evident from the letters of support filed by the defence.
27While S.T. apologized to the victim for “anything he had done”, his comments in the pre-sentence report leave me skeptical that he has any remorse regarding the sexual assault offence. I cannot find that he has gained any real insight regarding the gravity of his offence and the impact it has had on the victim. Any lack of remorse or insight on his part is not an aggravating factor: R. v. Reeve, 2020 ONCA 381, at para. 12; R. v. Fraser, 2016 ONCA 745, at para. 13; R. v. Valentini, at paras. 80–85.
Collateral Consequences
28S.T.’s incarceration has had and will have a financial impact on him. I note, however, that it appears he at least has a friend assisting with the business while he has been in jail. While he has debts, he co-owns multiple properties. It is reasonable to infer he will have the ability to mitigate his financial situation upon his eventual release. I appreciate that S.T.’s anxiety has increased while in jail and that his incarceration will carry an emotional toll on his family and friends. I have taken all these collateral consequences into consideration while keeping in mind that sentence I impose must remain consistent with the fundamental principle of proportionality: R. v. Suter, 2018 SCC 34, at para. 56; R. v. L.C., 2022 ONCA 863, at para. 24.
Sentencing Precedents
29Sentencing ranges cannot be treated as straightjackets because each offender is unique, and each crime has its own unique circumstances. That said, parity plays an important role in sentencing. Comparison with sentences imposed in other cases assists in respecting proportionality: R. v. Reeve, 2020 ONCA 381, at para. 31; R. v. Lacasse, 2015 SCC 64, at paras. 58, 60–61; R. v. Friesen, 2020 SCC 9, at paras. 32, 33, 37, 108.
30Defence counsel referred me to several cases involving sexual assaults where discharges, suspended sentences, and conditional sentences had been imposed. It is significant to note that most of these decisions pre-date the Supreme Court of Canada’s decision in Friesen.
31While Friesen indicates that sentences for sexual offences involving children should be higher than in cases involving adults, the general principles emphasized in Friesen regarding recognizing the harmfulness and wrongfulness of sexual assault apply to cases involving adult victims as well: R. v. R.S., 2023 ONCA 608, at para. 28; R. v. Brown, 2020 ONCA 657, at para. 59; R. v. Bunn, 2022 MBCA 34, at paras. 69–80.
32To be sure, conditional sentences – and indeed less restrictive sentences – are still legally available sentences for sexual assaults. That said, “proportionality remains key to sentencing”: R.S., at para. 4.
33Mr. Mistry also provided me with the recent decision R. v. Wong, 2024 ONSC 7122, where Justice Goldstein imposed a conditional sentence in a case involving non-consensual sexual intercourse. I observe that in that case Justice Goldstein placed substantial weight on the fact that the offender pleaded guilty, stating that “in the absence of Mr. Wong ‘manning up’ and taking responsibility he would undoubtedly be going to jail”: see paragraphs 8, 37–38. Justice Goldstein also noted that there was no evidence that Mr. Wong had ever been non-compliant with his bail.
34In R. v. Einollahi, 2021 ONSC 6048, the court allowed a crown sentence appeal of a 60-day conditional sentence in a case involving an Uber driver who forcefully kissed the victim without her consent, then persisted and forcibly touched the victim's breast over her clothes and told her that she was "hot". After reviewing numerous decisions, the court described a range of 6–9 months jail for sexual assaults of that nature. Given the mitigating factors present in that case the court imposed a 6-month jail sentence.
35In R. v. Kullab, 2024 ONCJ 548, Justice Monahan described a range of 6–18 months jail in cases involving Uber or Taxi drivers that did not involve intercourse. Mr. Kullab had touched the victim’s breasts over her clothing, and tried to touch her breasts under her clothing. He also touched her leg over her clothing near her groin area, asked her if she wanted to have sex, and she said "no" a number of times. The victim ultimately pushed him off her. The interaction lasted a couple of minutes. Mr. Kullab had five children. He also suffered from an apparent psychotic disorder which the sentencing judge found would make his time spent in custody more difficult. Justice Monahan considered the potential immigration consequences to be severe. He imposed a 6 month less one day sentence, which he referred to as “generous.”
36The case before me of course does not involve a driver-passenger scenario. However, offences involving strangers are not to be treated as more serious than those committed in the domestic context.
37In R. v. A.J.K., 2022 ONCA 487 (C.A.) that Court stated at para. 76:
There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C. 1985, c. C-46, s. 718.2 (a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.
38In R. v. Butt, 2012 ONSC 4326, a decision decided prior to Friesen, Justice Code held that six to twelve months jail was the appropriate range of sentence for sexual assaults "in the mid-range of gravity". See also R. v. M.L., 2018 ONSC 7355, at para. 29.
39The Crown referred me to the decision in R. v. Wicker, 2025 ONSC 930 where the offender was sentenced to 2 years. In that case the offence involved digital penetration accompanied by a threat.
40The Crown also relied on the decision in R. v. B.W.S., 2020 ONSC 3916. In that case the offender told the victim he was going to have sex with her despite her telling him no. He groped the victim, pushed her, and made threats. The offender had a terrible criminal record and showed no remorse. The court imposed a sentence of 22 months jail.
The Appropriate Sentences in this Case
41S.T. has no prior record, has employment available to him, has support in the community, and has expressed a willingness to engage in counselling. He committed a serious violent offence within a domestic context which has had a significant impact on the victim. He also breached the conditions of his release on multiple occasions. The objectives of rehabilitation, specific deterrence, denunciation, and general deterrence all play a significant role in this case. The principles of parity and restraint are also important.
42In my view, a time served disposition would clearly be an unfit sentence given the aggravating factors present.
43A conditional sentence is a legally available sentence for the offence of sexual assault. There is no presumption either in favour or against imposing a conditional sentence. S.T. is not facing a sentence of more than 2 years. Given that S.T. breached his non-communication condition on multiple occasions I have concerns that he would not comply with the terms of a conditional sentence. More importantly, I do not find that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.
44I recognize that a conditional sentence can accomplish both deterrence and denunciation. In R. v. R.S. the court explained that sexual assault covers a wide spectrum of conduct. The appropriateness of a conditional sentence will necessarily be influenced by where the offence falls on that spectrum: R.S., at para. 27. While all sexual assaults are serious, this case involves significant aggravating features.
45Having balanced the aggravating and mitigating factors, and considered the relevant sentencing objectives and principles, I have determined that a conditional sentence would not be a proportionate sentence. It would fail to adequately address the seriousness of the offence and S.T.’s moral blameworthiness.
46Given all the circumstances, I consider the range of sentence proposed by the Crown for the sexual assault offence to be higher than is necessary to address the principles of sentencing. I have concluded that the appropriate sentence for the sexual assault charge is 8 months jail. The Crown’s position of 60 days jail consecutive for the breaches is not unreasonable. Keeping in mind the principles of restraint and totality, I have decided to impose an additional total of 15 days for these offences.
47S.T. has served 79 days of pre-sentence custody for which he is entitled to 119 days credit. His sentence will be broken down as follows:
Sexual assault: 240 days before credit for pre-sentence custody. S.T. will receive 119 days of Summers1 credit for 79 days time served, resulting in 121 days left to serve on this count.
Fail to comply with undertaking: 15 days consecutive.
Fail to comply release order: 15 days concurrent.
48The total remaining time to serve is therefore 136 days.
49Following his release from custody he will be on probation for a period of 18 months.
50The terms of the probation will be as follows:
In addition to the statutory terms, you will report to your probation officer within 2 days of your release and thereafter as directed.
Cooperate with your probation officer. You must 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 your probation officer on request.
Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with W.T. except:
With her prior written consent filed in advance with the probation intake or the assigned probation officer. This may be cancelled by W.T. in any manner at any time.
In the presence of or through legal counsel.
For required Court appearances.
Do not be within 100 metres of any place where you know W.T. to live, work, go to school, frequent or any place you know her to be except:
With her prior written consent filed in advance with the probation intake or the assigned probation officer. This may be cancelled by W.T. in any manner at any time.
In the presence of or through legal counsel.
For required Court appearances.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including, but not limited to:
anger management;
sexual offending;
substance abuse issues;
psychological issues.
Sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Do not possess any weapons as defined by the Criminal Code.
51While in custody, pursuant to s. 743.21 you will be prohibited from contacting W.T. except through legal counsel.
52There will be a s. 109 Criminal Code weapons prohibition for 10 years.
53A DNA order shall be issued on all offences, whether they are primary or secondary designated offences.
54The defence opposes the imposition of a SOIRA order.
55Pursuant to s. 490.012(3) of the Criminal Code I am required to impose the order, unless:
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
56In determining whether to make the order I am required to consider the following factors listed in subsection (4):
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
57Having considered these factors, I do not find that the offender has met his onus under either s. 490.012(3)(a) or (b). I find that I have insufficient evidence to make an assessment regarding his risk to recidivate. I appreciate that S.T. is 60 years old with no prior record. However, this was a serious offence which substantially interfered with the victim’s sexual integrity. I do not have evidence regarding insight into his behaviour. While not necessary, no expert evidence was presented, nor do I have any evidence that S.T. has completed counselling which might demonstrate a low risk to re-offend. Ultimately, I find there is a lack of evidence regarding S.T.’s likelihood of reoffending.
58With respect to the impact on S.T. of making an order, defence counsel suggested that a SOIRA order might impact potential business travel. I was not presented anything concrete in that regard or with respect to any other impact on the offender.
59Given the record before me, I do not find that S.T. has met his burden to show that the order should not be made.
60I accordingly also make a SOIRA order for a period of 10 years.
Released: April 15, 2025
Signed: Justice Joseph Hanna