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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(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.
ONTARIO COURT OF JUSTICE
COURT FILE# 23-40000522
BETWEEN:
HIS MAJESTY THE KING
— AND —
ALYSSA CELLUPICA
Sentencing Judgment
Before Justice Brock Jones
Heard on January 27 and March 12, 2026
Written Reasons for Judgment released on March 24, 2026
P. Kaur counsel for the Crown
J. Mann counsel for A. Cellupica
Jones J.:
Introduction
1After a trial, I found Alyssa Cellupica guilty of two counts of sexual assault. The offences occurred in the context of an intimate partner relationship. She met F.A., the victim of the offences, while they were both residing in a shelter. F.A. is transgender and uses the pronouns he/they.
2The parties agreed that a sentence of 22-24 months was appropriate. However, they disagreed on whether a jail sentence was necessary or whether a conditional sentence order (“CSO”) would meet the applicable sentencing principles.
3At the conclusion of the hearing, I reserved my decision. These are my reasons.
Findings of Fact At Trial
4F.A. was a refugee claimant from Saudi Arabia. In their home country, F.A. engaged in online activism advocating for human rights. Fearing for their safety due to this activism, F.A. sought asylum in Canada.
5After arriving here, F.A. was able to stay at a shelter in downtown Toronto. They met Ms. Cellupica and started a relationship. F.A. was transitioning from male to female. F.A. shared with Ms. Cellupica details about their background, refugee status, and decision to come to Canada in search of a better, safer life.
6F.A. stayed in a separate room from Ms. Cellupica at the shelter. One day in April 2022, Ms. Cellupica visited them in their room. She kissed and touched F.A., which initially was with F.A.’s consent. Ms. Cellupica then touched F.A.’s breasts both over and under their clothing, without clear consent from F.A. Instead, she believed she had implied consent based on their previous interactions.
7Ms. Cellupica moved one of her hands to F.A.’s lower body and ultimately inserted her fingers into F.A.’s vagina. F.A. told Ms. Cellupica, “No” and to “stop”, and said they were “not interested” in that degree of intimacy at the time. Ms. Cellupica persisted. F.A. stated that they “froze” and was unsure of how to respond to what was happening. F.A. pushed Ms. Cellupica’s hand away, but only after some time had passed.
8About a week later, F.A., Ms. Cellupica, and a third person were in F.A.’s room. They were listening to music. Ms. Cellupica touched F.A.’s breasts for at least 30 seconds. F.A. believed that Ms. Cellupica was touching them as a “joke”, and not with malice, but still could not believe this was happening, especially only one week after the first incident.
9By the summer, F.A. ceased all communication with Ms. Cellupica. Near the end of the year, they exchanged text messages. F.A. accused Ms. Cellupica of sexual assault. Ms. Cellupica sent a message to F.A., asking, “How does deportation sound?” F.A. interpreted this as a threat, believing that Ms. Cellupica was implying she would somehow orchestrate F.A.’s deportation. During the trial, Ms. Cellupica claimed she did not write this message. I rejected that evidence, and for clarity, I find that she did author it, and it was intended to intimidate F.A. from contacting anyone about what had occurred between them.
Victim Impact Information
10During her trial testimony, F.A. explained that when the assaults occurred, they were going through a very difficult time emotionally. The first incident was quite hard to process. The second incident also left F.A. feeling “disassociated.” For a time, they tried to convince themselves that what happened was not that serious and that they could move on. Sadly, later that year, the assaults triggered a mental breakdown in F.A. They attempted suicide, and they were hospitalized.
11F.A. declined to provide a formal victim impact statement for the sentencing hearing.
Background of Ms. Cellupica
12Ms. Cellupica is 25 years old. She was born in Toronto. Her parents were never married and separated when she was six weeks old. She grew up mainly with her mother, while her father visited every other weekend.
13Her childhood was challenging, as her mother lacked financial stability and they frequently moved. Her mother sometimes left Ms. Cellupica in the care of strangers. She struggled with alcohol and her father had substance abuse issues as well.
14At the age of 15, her relationship with her mother improved when her stepfather entered their lives. She moved in with him, which brought some stability. Her mother had three more children with him. However, by the age of 16, her mother asked her to leave home. She spent nights on the streets and at community centres. When her teachers discovered her living situation, she was able to return home. But when she turned 18, her mother told her to leave again.
15She moved in with her father, but it proved to be a terrible experience. She became pregnant by a boyfriend, and her father responded negatively. She experienced a miscarriage and ended her relationship with her boyfriend at the time. Her father refused to have her in the house. She then moved in with her grandfather, though that placement lasted only about six months. In 2019, Ms. Cellupica returned to live with her mother. In her words, the situation became “intolerable”, particularly due to her mother’s disapproval of her queer identity.
16As a result, she moved out. Around this time, she reported an escalation in substance use. Ms. Cellupica entered “a very dark place” and attempted suicide. She was hospitalized for several months. She was diagnosed with depression, anxiety, and a personality disorder.
17Ms. Cellupica has a documented history of substance abuse. She began consuming alcohol during the daytime at approximately age 12, often placing alcohol in her water bottle to cope with distress related to her home environment and school. During high school, her alcohol use continued and expanded to weekend drinking at social gatherings with peers. In 2019-2020, she characterized her alcohol intake as “excessive”, and she reported consuming up to 26 ounces of vodka daily for several months. She subsequently attempted to reduce her alcohol intake but experienced withdrawal symptoms. Approximately 1.5 years ago, she increased her alcohol use, consuming up to one bottle of wine per day in response to loneliness after moving into her own apartment. She sought addiction services. She was prescribed Gabapentin to manage acute withdrawal symptoms.
18Ms. Cellupica used marijuana as a teenager beginning at age 14. In 2023, she began using crack cocaine, having been introduced to it by a former abusive partner. She consumed it several days per week, often in binge patterns. She described both herself and her partner as addicted, spending all available funds and selling personal belongings to support their use. During this same period, she also experimented with crystal methamphetamine, using it approximately 2–3 times per month when crack cocaine was not financially accessible. She discontinued use of both substances in April 2024 for personal reasons.
19Regarding her past intimate partners, Ms. Cellupica described multiple abusive relationships with men. Most of these relationships occurred while she was unhoused and residing within the shelter system. She reported experiencing both physical and emotional abuse from past partners. After turning 20, she met a 40-year-old boyfriend who lived at the same shelter. They started a relationship that quickly became very unhealthy for her. He was often under the influence of multiple drugs.
20At 22, she entered a different shelter and began therapy. She has since achieved sobriety. She has attended outpatient substance rehabilitation programs and medical withdrawal services. She attends Narcotics Anonymous approximately once per month.
21Andrew Crawford, a social worker at Covenant House, met Ms. Cellupica in 2023. He has provided weekly one-on-one counselling and psychotherapy sessions to support her recovery and personal growth. He finds her to be “compassionate, caring and highly engaging.” He focuses part of the therapeutic sessions on establishing healthy boundaries in relationships.
22Regarding her education and employment, Ms. Cellupica finished high school and currently supports herself through the Ontario Disability Support Program.
Mental Health Act Report
23Ms. Cellupica was examined by Dr. Benassi of CAMH pursuant to an order I issued under section 21 of the Mental Health Act. Dr. Benassi diagnosed Ms. Cellupica with a trauma-related psychiatric profile most consistent with Complex Post-Traumatic Stress Disorder (C-PTSD) and Substance Use Disorder, with overlapping features of DSM-5 Post-Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD). In his opinion, this reflects “the cumulative impact of chronic interpersonal trauma beginning in childhood and continuing into adulthood, compounded by periods of psychosocial instability, substance use, and disrupted attachment relationships.”
24Ms. Cellupica informed Dr. Benassi that she estimated she has experienced approximately 30–40 psychiatric emergency department visits and admissions at multiple hospitals, including CAMH, Mount Sinai, St. Michael’s, and Michael Garron. These were typically precipitated by emotional distress, suicidal ideation, or substance-related difficulties, and ranged from brief emergency department assessments to extended inpatient admissions. Her most recent psychiatric admission occurred over one year ago, following a medication overdose and wrist cutting, at which time she was detained under the Mental Health Act. She disclosed approximately 20 lifetime suicide attempts.
25Ms. Cellupica has seen multiple psychiatrists through shelter-based services. She has been under the care of Dr. Agarwal for the past three years. Dr. Agarwal has suggested possible features of Dissociative Identity Disorder. Ms. Cellupica has received occupational therapy through Covenant House, focusing on organizational skills and management of ADHD-related symptoms. She was also connected with a family and natural support worker through Covenant House for approximately two years. As previously mentioned, their work focused on healthy relationship boundaries, trauma processing, and emotional coping.
26Dr. Benassi concluded that Ms. Cellupica exhibited features overlapping with Borderline Personality Disorder, including emotional instability, a history of recurrent self-harm, unstable interpersonal relationships, identity disturbance, and chronic feelings of emptiness. However, these traits appear contextual, trauma-linked, and state-dependent, rather than fixed or pervasive. Notably, he concluded that her symptoms fluctuate with the availability of safety and support mechanisms. She has demonstrated meaningful improvement in emotional regulation and self-harm behaviour over the past year. Dr. Benassi further concluded that “this pattern supports a formulation of trauma-driven personality functioning, rather than a primary personality disorder.”
Letters of Support
27Ms. M. Sanchez-Ceccarelli wrote a letter of support for Ms. Cellupica, describing her as “exceptionally kind, loyal and dependable.” They met through the shelter system. Ms. Cellupica has offered emotional support and encouragement when needed, and never hesitates to “drop everything to come check on [Ms. Sanchez-Ceccarelli] when she was struggling’. She has a “kind heart” and is a “valuable member of our community’.
28Andrew Crawford, a supervisor at Covenant House Toronto, wrote a letter describing his ongoing psychotherapeutic sessions with Ms. Cellupica. He has known her since 2023 and worked closely with her until October 31, 2025. They focused particularly on emotional regulation skills during their sessions. Through therapy, Ms. Cellupica has become much more knowledgeable about what constitutes a healthy relationship. Her well-being has improved significantly over the past two years, thanks to the considerable effort she has put into her personal growth and the support network she now has, which includes stable housing.
Right of Allocution
29Ms. Cellupica addressed the court at the conclusion of submissions on March 12, 2026. She stated that while she did not believe she was guilty at the commencement of the trial, she now knows what she did was unforgivable. She hurt F.A. and was “truly sorry” for her actions. She has come a long way in the last few years, trying to improve her life, and has asked the court to give her a chance to prove that she can be a positive, functioning member of society.
30I found her apology heartfelt and sincere.
Position of the Parties
I. Crown
31On behalf of the Crown, Ms. Kaur seeks a combined jail sentence of 22 months for the two offences, followed by two years of probation, a DNA order, and a SOIRA order for 10 years. Ms. Kaur submitted that the maximum penalty of 18 months jail for the first incident was in keeping with the case law for sexual assaults involving digital penetration, and a four-month jail sentence was appropriate for the second sexual assault that involved unwanted touching of F.A.’s breasts.
32Ms. Kaur presented me with several authorities supporting her position. In R. v. Lyons, 2024 ONSC 969, the offender was convicted after a jury trial of sexual assault. He undressed the victim, kissed her stomach, and inserted his fingers into her vagina. This happened in front of the victim’s two-year-old son. The victim did not consent and actively objected to the sexual assault: see para. 5. The offender showed no remorse for his actions: see para. 17. He had a minor prior criminal record, including for violent crimes. Justice Bloom sentenced him to 18 months in jail.
33In R. v. Wicker, 2025 ONSC 930, the offender was convicted of one count of sexual assault against his spouse. He sexually assaulted her in their pool by digitally penetrating her vagina with his finger or thumb. He told her, “See how easy it would be to violate you?”: see para. 2. He maintained his innocence despite the conviction. Although he had no criminal record, Justice Hilliard determined that an appropriate sentence would be at least three years, but he imposed a two-year sentence at the Crown’s request: see para. 38.
34R. v. Ka Vay is an unreported decision by Justice Berg of the O.C.J., dated November 8, 2024. The accused was 40 years old. He and the victim were living together in a boarding house. He sat beside the victim, began to massage her thigh, and then put his hand inside her shirt and bra to massage her breast. The victim left to use the washroom, and when she returned, he repeated the assaultive behaviour. Despite the accused being a first-time offender and a series of character letters supporting him, Justice Berg imposed a six-month jail sentence.
35Regarding the SOIRA order, Ms. Kaur referred me to the Court of Appeal’s decision of R. v. Eldon, 2025 ONCA 348. This decision, she submits, stands for the proposition that, absent specific evidence provided by the offender to demonstrate how the test for an exemption order can be met, a SOIRA order must be imposed.
II. Defence
36Ms. Mann submits that a combined 24-month CSO (less one day) and a three-year probation order would meet the applicable sentencing principles. She does not dispute that a DNA order must be granted, but does oppose the imposition of the SOIRA order sought by the Crown.
37Ms. Mann agrees that F.A. suffered significant harm due to her client’s assaults and that F.A. was a highly vulnerable person. However, she also asks me to consider that Ms. Cellupica was equally vulnerable. She endured a very difficult life marked by abuse, unstable housing, and mental health issues. There are many important mitigating factors, including that Ms. Cellupica has shown genuine remorse for her actions, even if she did not fully understand at the time that what she did was wrong. The trial and F.A.'s testimony made her realize how her actions affected F.A.
38Ms. Cellupica has an extensive history of engagement with psychiatric services. Over the last few years, Ms. Cellupica has done much to steady herself, engaged with therapy, taken steps to meaningfully address what led her to offend, and now has stable housing. If she were to be imprisoned, she would lose that housing and access to Dr. Agarwal and Mr. Crawford. That would set her back immeasurably. These collateral consequences must be considered.
39A CSO can meet the sentencing principles of deterrence and denunciation in some cases of sexual assault, even if they are unusual for a sexual assault involving digital penetration. This is one such case. For a first-time youthful offender, she submits that the principle of rehabilitation should be given great weight.
Law and Analysis
I. Sentencing For Sexual Assault – General Principles
40Sentencing decisions for sexual assault must prioritize the principles of general deterrence and denunciation. Addressing sexual violence remains one of the most pressing goals of our time: see R. v. Barton, 2019 SCC 33, at para. 1.
41Furthermore, appreciating the extent of the harm caused by sexual assault is essential to crafting a fit and appropriate sentence. In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada noted that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” over the years: see para. 118. In R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal wrote the following about the harm caused by sexual assault at para. 74:
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
42Other provincial courts of appeal have emphasized that sexual assault, in all its forms, is often a profoundly traumatic offence for victims. In R. v. Merasty, 2023 SKCA 33, the Saskatchewan Court of Appeal stated at para. 23 that “[n]o matter what form it takes, a sexual assault is a forceful subjection of the victim to their assailant’s sexual desires.” In R. v. Maslehati, 2024 BCCA 207, the British Columbia Court of Appeal held at para. 83 that:
…the penalties imposed for sexual assault against adults must reflect society’s contemporary understanding of the harmfulness and the wrongfulness of sexual violence, generally. It is not enough to simply acknowledge these harms. The sentences must actually take them into account, recognizing that the harmfulness and the wrongfulness of sexual assault impact both the gravity of the offence and the offender’s personal responsibility.
43Nevertheless, while all sexual assaults must be taken seriously, determining the severity of a particular case of sexual assault “requires an individualized and contextual assessment”: Maslehati at para. 75.
II. Gravity of the Offences, Aggravating Factors and Moral Culpability
44There are several serious aggravating factors in this case. First, it is an aggravating factor that the offender, when committing an offence, abuses their intimate partner, as outlined in Criminal Code section 718.2(a)(ii). In R. v. Cunningham, 2023 ONCA 36, the Court of Appeal emphasized the importance of courts prioritizing general deterrence and denunciation in sentencing for crimes of intimate partner violence: see para. 26. Sentencing courts must also deem it an aggravating factor that those who harm their intimate partners abuse a position of trust concerning their victims, who are vulnerable within the relationship: see Cunningham at para. 27.
45Indeed, the Criminal Code explicitly states that when an offence involves the abuse of a vulnerable victim due to their personal circumstances, a sentencing court “shall give primary consideration to the objectives of denunciation and deterrence”: see section 718.04. F.A. was an extremely vulnerable individual when they were assaulted. They had to leave Saudi Arabia and sought asylum in Canada. They feared for their life and safety in their home country, simply because of their gender identity and their online activism. Once in Canada, they found themselves in a shelter with virtually no community support network. They lacked the security of a safe, stable home environment, amplifying their vulnerability: see R. v. J.D., 2015 ONSC 5857, at para. 31.
46As I found in my trial judgment, the sexual assaults deeply affected F.A. and were devastating to endure. They were hospitalized at the end of 2022 as they struggled with the impact of what had occurred to them. Section 718.2(a)(iii.1) of the Criminal Code states that “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … shall be deemed to be aggravating circumstances”. In R. v. Hills, 2023 SCC 2, the Supreme Court of Canada held that the seriousness of an offence “should be measured by taking into account the consequences of the offender’s actions on victims… and the physical and psychological harms that flowed from the offence”: see para. 58.
47F.A.’s status as a transgender individual seeking safety in Canada thus holds particular importance in this case with respect to assessing the gravity of these offences. In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada observed that “the transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in our country has been marked by discrimination and disadvantage”: see para. 84. Transgender people face an “increased risk of violence, and report higher rates of poor mental health, suicidal ideation, and substance abuse as a means to cope with abuse or violence they have experienced (see Experiences of violent victimization and unwanted sexual behaviours among gay, lesbian, bisexual and other sexual minority people, and the transgender population, in Canada, 2018 (September 2020))”: para. 86.
48Ms. Cellupica’s degree of moral culpability is also directly tied to F.A.’s inherently vulnerable status. She not only committed the assaults while she was in a relationship with F.A., but she also knew of F.A.’s status as a refugee claimant from Saudi Arabia and that they were alone and isolated in Canada. Despite this knowledge, she used F.A. for sexual gratification without taking any steps to obtain communicated consent or considering the likely impact her actions would have on F.A.
49The details of the first sexual assault are quite troubling. Ms. Cellupica approached F.A., assuming she could initiate any sexual contact she wanted, without even trying to obtain F.A.’s affirmative consent. Eventually, F.A. said “No” to Ms. Cellupica, but Ms. Cellupica continued.
50Ms. Mann referenced during submissions that Ms. Cellupica’s actions, although wrong, were based on a misunderstanding of appropriate boundaries in relationships and the law of consent. Ms. Cellupica now understands why what she did was not acceptable. She has learned. During the trial, Ms. Cellupica testified that she believed she had “implied consent” to touch F.A. I accept that this was a genuine belief that explained why and how she approached F.A. initially during the first incident. She did not set out to violate F.A.’s sexual integrity.
51An offender’s failure to understand what constitutes lawful consent may, depending on the circumstances, somewhat reduce their moral culpability, even if it does not fully constitute a defence. For example, in Simard c. R., 2025 QCCA 1062, the appellant was in an intimate partner relationship with a woman. He touched her over her clothes on a dozen occasions while she was asleep to “initiate” sexual relations with her. He believed he was permitted to do so based on his assessment of their relationship, despite her inability to provide consent at that time. The Quebec Court of Appeal held that the appellant’s acknowledgment that his actions were based on a misunderstanding of the concept of consent, and that he had shown remorse and demonstrated a commitment to therapy, were important considerations: see paras. 36-8. The trial judge’s sentence of eight months' jail was overturned, and a conditional discharge was substituted.
52Ms. Cellupica’s actions, however, differ from those of the appellant in Simard. Even if I accept that her mistaken belief in “implied consent” could reduce her moral blameworthiness for part of her conduct underlying the first charge of sexual assault, I found as a fact that F.A. told her “No.” Despite hearing this, Ms. Cellupica continued touching F.A., including by digitally penetrating them. As Ms. Kaur correctly noted, that is a very serious aggravating factor, and nothing that happened before that moment diminishes her subsequent moral guilt: see R. v. Shawdover, 2023 ONSC 3986, at para. 86; R. v. Solorzano Sanclemente, 2019 ONSC 695, at para. 49. It is well-established and widely recognized by all citizens of this country that “no means no.” Failure to respect this fundamental principle of our law regarding consent to sexual activity will usually result in significant punishment. The courts must, through their decisions, communicate to all Canadians the vital importance of respecting everyone’s personal autonomy and their right to choose with whom they will, or will not, engage in sexual activity.
53Furthermore, when confronted by F.A. many months later about the sexual assault, Ms. Cellupica threatened them with deportation. Ms. Cellupica could not actually influence F.A.’s immigration status or their ability to stay in Canada, but that does not lessen her moral culpability for this decision. She knew why F.A. had come to Canada and what they feared in her home country of Saudi Arabia. To suggest they did not belong in Canada, or that F.A. would face removal if they continued with their accusations, was cruel. It was meant to intimidate them, given her “vulnerable and precarious circumstances” as a refugee claimant: see Quebec (Attorney General) v. Kanyinda, 2026 SCC 7, at para. 13.
54Regarding the second act of sexual assault, although it was not as objectively serious as the first, it occurred only a week later, perpetuating the abuse. It was also callous to touch F.A.’s breasts for over thirty seconds in front of a third party. Importantly, Ms. Cellupica knew F.A. had said “No” and felt uncomfortable during the initial incident.
55I acknowledge there are also several mitigating factors in this case, along with considerable evidence of Ms. Cellupica’s rehabilitative potential. However, the severity of an offence is assessed on the basis of the harm and wrongfulness of the conduct involved, both to the victim and to society at large. It does not depend on the personal characteristics of the offender: R. v. Ellis, 2022 BCCA 278, at paras. 130–131. I conclude that the sexual assaults, taken together, were objectively quite serious and inflicted significant psychological harm on F.A.
III. Mitigating Factors, Efforts at Rehabilitation and Collateral Consequences
56The core principle of sentencing is proportionality. A sentence must be proportional to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1.
57An assessment of Ms. Cellupica’s moral culpability must take into account that she is a first-time, youthful offender. In Quebec (Attorney General) v. Senneville, 2025 SCC 33, the Supreme Court of Canada outlined the sentencing principles and mitigating factors that must be considered in these cases at paras. 95-6:
An offender’s youth is generally a mitigating factor, and “when sentencing youthful first‑time adult offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity, which may mitigate culpability even when it does not excuse the offence” (R. v. Wesley, 2025 ONCA 51, 175 O.R. (3d) 166, at para. 100, citing R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 31; see also C. C. Ruby, Sentencing (10th ed. 2020), at §5.187).
The principle of restraint, embodied in s. 718.2(d) and (e) Cr. C. (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 100), is of increased importance in the case of a youthful first offender (Marien Frenette v. R., 2024 QCCA 207, at para. 38; Bérubé‑Gagnon v. R., 2020 QCCA 1382, quoting R. v. Brisson, 2014 QCCA 1655, at paras. 22‑23). In enacting these provisions, Parliament [translation] “introduced a hierarchy in the choice of sentencing measures and positioned imprisonment as a measure of last resort” (H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (4th ed. 2024), at p. 574).
58Since the trial verdict, Ms. Cellupica has shown insight into her behaviour and expressed remorse for her actions. That is to her credit and highlights her ability to change. She experienced a difficult childhood and endured abuse by an older man in a previous relationship, which may have influenced her understanding of healthy relationships. Since her arrest, she has attended regular therapeutic counselling sessions at Covenant House. Evidence of a positive change in an offender’s life and a sincere commitment to address the root causes of their behaviour should be given significant weight: R. v. Sauvé, 2023 ONCA 310, at para. 9. Sentencing courts should aim to encourage offenders to take their rehabilitation seriously and, where possible, incorporate meaningful efforts of this kind into their final decisions.
59I find Ms. Cellupica has demonstrated a significant degree of introspection. I further conclude she has strong rehabilitative potential, has learned from these events, takes seriously the need to obtain informed consent in future intimate partner relationships, and is at a low risk of re-offending. Where there is evidence of an offender’s genuine commitment to their self-improvement, which will reduce their risk of re-offending, rehabilitation remains an important sentencing principle even when the primary principles to be applied must be general deterrence and denunciation: see R. v. Lazzaro, 2025 ABCA 410, at para. 30.
60Importantly, it has been four years since the offences were committed. Ms. Cellupica has not re-offended in that period, nor has she violated the conditions of her release order. This demonstrates she can be safely managed in the community.
61Ms. Mann brought to my attention the significant negative collateral consequences that would accompany a jail sentence for her client. In R. v. Suter, 2018 SCC 34, the Supreme Court of Canada held that sentencing courts must consider the collateral consequences of a sentencing decision on the offender where they are established on the evidence: see para. 46. A collateral consequence includes any consequence arising from the sentence imposed for an offence. In R. v. D.B., 2025 ONCA 577, the Ontario Court of Appeal clarified that courts must consider the “heightened impact of collateral consequences on people who already face marginalization and disadvantage, including due to financial insecurity, [and] mental health challenges”: see para. 12.
62An offender’s mental health challenges, depending on their nature, may therefore constitute “relevant collateral consequences because they increase the severity of incarceration and intensify the impact of other collateral consequences, which favours a sentence reduction to achieve proportionality, promote rehabilitation, and protect the public in the long-term”: see D.B. at para. 38.[1] Health concerns can take on greater prominence in a sentencing decision where there is evidence that they would not be treated properly during incarceration: R. v. Kulatheeswaran, 2026 ONCA 128, at para. 24. While no evidence was led of the inability of the correctional authorities to treat Ms. Cellupica adequately if she were incarcerated, in my experience, provincial jails do not provide anywhere near the same level of medical care that is available to offenders serving community-based dispositions. Courts may take judicial notice of “well-known barriers to accessing mental health services” for inmates and that incarceration can “induce or augment disordered symptoms” and sometimes “exacerbate mental health issues in offenders”: see Kulatheeswaran, supra, and R. v. Bertrand Marchand, 2023 SCC 26, at para. 149.
63There are real concerns for Ms. Cellupica’s well-being in this regard. I conclude that a prolonged period in custody would be particularly difficult for her, given her mental health diagnoses and especially her history of attempts at suicide. Furthermore, she would lose contact with her current psychiatrist and her subsidized housing, removing sources of stability that will be essential to her future success. These factors must be given appropriate weight in my ultimate decision, although I agree with Ms. Kaur that they cannot be permitted to take on undue significance and displace the need for a fit and proportionate sentence.
IV. Prior Sentencing Authorities
64In addition to the authorities provided by counsel, I have reviewed other court decisions which provide guidance on an appropriate sentence in this case.
65In A.J.K., the Ontario Court of Appeal established a sentencing range of three to five years for sexual assaults involving penetration. This does not only apply to acts of penile penetration. In R. v. Morgan, 2024 ONCA 937, the 18-year-old victim visited a hotel room and met with other young adults, including the appellant, who was a friend’s boyfriend. Although she went to sleep fully clothed, she awoke to find the appellant using his fingers to penetrate her vagina. He was convicted of sexual assault. The Court of Appeal rejected the idea that sexual offences involving digital penetration should warrant a lesser sentence than those involving penile penetration, and confirmed the three to five-year sentencing range, unless there are significant mitigating factors: see paras. 7-10. The trial judge’s sentence of three years' imprisonment was upheld: see para. 14.
66In R. v. N.D., 2024 ONCA 777, the appellant was convicted of two counts of sexual assault. He was only 18, and the victim was 17. They were in a dating relationship. For the first offence, while in a car, he kissed the victim’s breasts and neck and then proceeded to lick and kiss her vaginal area. Throughout this experience, the victim said nothing because she was unsure what to do. As he continued, she pushed herself away from him and tried to keep her legs together. For the second offence, the parties were located in the victim’s bedroom. He reached over and undid her pants, and she tried to move away. He was able to reach into her pants and digitally penetrate her vagina. He stood up to undo his pants, and when she said “No”, he did not continue with the assault.
67The trial judge imposed a total jail sentence of 18 months, which was upheld on appeal: see para. 44. It is not clear from the reported decision whether the Crown sought a higher sentence during the original sentencing hearing.
68Concerning the second count of sexual assault, I have considered the following additional authorities. In R. v. A.R., 2024 ONSC 3786, the offender was convicted of four counts of assault and one count of sexual assault against his intimate partner. The facts supporting the sexual assault charge were that the offender touched his partner on her chest, and she told him to stop. He pushed her towards the wall in their kitchen and continued to touch her breasts, groping her. Justice Barnes imposed a five-month custodial sentence: see paras. 5 and 10. The offender had no prior criminal record.
69In R. v. Hurst, 2023 ONSC 6448, the offender was convicted of sexually assaulting two female co-workers (A.A. and C.C.) in their workplace after a trial by jury. The incidents included unwanted touching of legs, breasts, and buttocks, and grinding his penis against one of the victims. The assaults occurred over a period of time and involved multiple incidents per victim. While some of the assaults may have been opportunistic as opposed to planned, Justice Petersen held that the fact that the offender “appears to have acted impulsively does not render them any less serious or harmful”: see para. 93. He did not have a prior criminal record. A global sentence of six months jail, followed by 18 months probation, was imposed.
70In R. v. Kowba, 2020 ONSC 6890, the offender was convicted of sexually assaulting two women (K.K. and S.G.) in separate incidents after a jury trial. Both victims were asleep when the assaults occurred. With respect to K.K., he digitally penetrated her while she was sleeping on the floor of his apartment. With respect to S.G., he touched her breast while she was asleep on his couch. Both victims were the offender’s close friends and trusted him.
71The sexual assaults had a profound and long-lasting impact on each victim. However, the offender was relatively young (29) and had no prior criminal record. Justice Broad imposed a sentence of 15 months' incarceration, followed by 2 years' probation. The period of incarceration was comprised of 12 months for the sexual assaults on K.K. and 3 months in respect of the sexual assaults on S.G. This sentence recognized “the primary objectives of denunciation and deterrence, while recognizing the prospects for [the offender’s] rehabilitation, and the principles of parity and restraint”: see para. 62.
72As an alternative to a jail sentence, Ms. Mann submits that the maximum CSO is the appropriate sentence. Section 742.1 of the Criminal Code outlines the criteria a court must consider before imposing a CSO. The sentence length must be less than two years, the community's safety must not be at risk from the offender serving a sentence in the community, and a conditional sentence must align with the fundamental purpose and principles of sentencing outlined in sections 718 to 718.2. In this case, the Crown proceeded summarily, and therefore, the maximum sentence for each count of sexual assault is 18 months' jail: Criminal Code section 271(2).
73In R. v. R.S., 2023 ONCA 608, a majority of the Ontario Court of Appeal clarified that while a conditional sentence may be suitable for sexual assaults considered at the “lowest end of the range of wrongful conduct," custodial sentences generally remain appropriate, especially for conduct at the higher end of that range: see para. 27. The objective gravity of Ms. Cellupica’s offences falls somewhere between these two extremes. Ms. Mann has presented a strong argument that her client qualifies for a conditional sentence. The safety of the community would not be endangered by Ms. Cellupica serving her sentence in a non-custodial setting. Furthermore, a conditional sentence should not be dismissed in a sexual assault case "based solely on the kind of sexual intrusion that has occurred”: see Justice Paciocco’s concurring reasons in R.S., at para. 78.
74This is a challenging decision for Ms. Cellupica. While the appellate authorities in this province are generally against the imposition of a CSO based on the objective gravity of the offences, I note that another provincial appellate decision issued last year supports Ms. Mann’s position. In M.L. c. R., 2025 QCCA 1035, the Quebec Court of Appeal reversed a trial judge’s decision to impose a jail sentence and instead ordered a conditional sentence of approximately two years. The appellant was convicted of sexual assault and assault by strangulation. He met the victim online, and they began a sexual relationship. On the day of the offence, they met in the early evening in the appellant's vehicle. He told her that he would not let her leave until she had made him come. He then grabbed her by the throat and held her back. He ultimately forced anal penetration on her despite her clear objections. During the assault, he held her arms, preventing her from adjusting her body to prevent him from penetrating her.
75The Quebec Court of Appeal found that the appellant demonstrated clear signs of rehabilitation, had successfully completed therapy to address his substance issues, and was employed. He was in a new relationship with someone who supported him. He had no criminal record for a similar offence. Additionally, he expressed willingness to participate in further court-ordered counselling in the future: see paras. 32 and 63.
Conclusion
76Sentencing ranges aim to reflect both the seriousness of the offences and society’s condemnation. However, they can and should be adjusted when appropriate to “… individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability”: R. v. Parranto, 2021 SCC 46, at para. 44.
77In R. v. Proulx, 2000 SCC 5, at paras. 102-107, the Supreme Court held that a conditional sentence will often provide a “significant amount of denunciation” and “significant deterrence” for an offender’s conduct. Properly structured, such a sentence can also place serious restrictions on an offender’s liberty, and the threat of reincarceration always hangs over an offender who is caught breaching the strict terms placed upon them. The sentence can have teeth, as it must.
78My ultimate conclusion is that a lengthy CSO is entirely in keeping with the need to deter and denounce sexual violence against vulnerable victims while respecting Ms. Cellupica’s status as a first-time offender and factoring in the known collateral consequences that would accompany a decision to incarcerate her. Without question, every sexual assault is a violent offence, and the mental anguish that befell F.A. from these acts of abuse was tremendous. A CSO for sexual assaults involving penetration should be rarely imposed. But there are compelling mitigating factors here, including Ms. Cellupica’s youth and the rehabilitative programming she has already commenced. Imprisonment is not the only sentencing option, and one of Parliament’s aims in enacting the conditional sentencing regime was to reduce the incarceration rate for low-risk offenders: see R. v. Proulx, 2000 SCC 5, at para. 56; M.L. v. R., 2025 QCCA 1035, at para. 64. For a first-time offender, jail must always be seen as a measure of last resort: Senneville, supra.
79There is great public interest in deterring sexual offences through meaningful punishments. But there is also a strong public interest in recognizing offenders who demonstrate a commitment to their rehabilitation and a willingness to abide by court orders in the community. By acknowledging those efforts and reflecting them in our sentencing decisions, courts will ensure the long-term protection of the public is far better served. The objective gravity of the offence, however serious, forms only one part of the proportionality analysis. Understanding the offender’s personal history, lived experiences, and future potential is essential to crafting an individualized sentence that is just and proportionate. This is a cornerstone of Canadian sentencing law: see Lajoie c. R., 2023 QCCA 1595, at para. 36.
80As stated by C.J. Tulloch, “sentencing must be proportionate, but it must also be humane”: Kulatheeswaran at para. 32.
81When the Crown opts to proceed by way of summary conviction, imposing a sentence at or near the maximum for a first-time offender is uncommon. However, when the maximum sentence is otherwise suitable, considering the relevant sentencing principles, the seriousness of the offences, and the moral culpability of the offender, the Crown’s decision to proceed summarily does not prevent such an outcome: see R. v. Solowan, 2008 SCC 62, at paras. 3, 10, 15-16.
82I impose an 18-month CSO on count 1, and a 6-month CSO (less a day) on the second count of sexual assault, consecutive. That totals 24 months of a CSO (minus a day).
83The CSO will include one year of house arrest, with certain exceptions. That will be followed by six months with a strict curfew, and then six months with certain other conditions. The conditions are attached as an appendix to this ruling. They include that Ms. Cellupica will have no contact with F.A., stay 100m away from them at all times, take appropriate counselling and programming, and complete 100 hours of community service.
84Following the conditional sentence order, Ms. Cellupica will be placed on probation for two years. The terms of the probation order will also be included in the appendix.
85Regarding the Crown’s request for a SOIRA order, I agree with Ms. Kaur that in the absence of an application by the defence for an exemption order, supported by relevant evidence, the order must be imposed: see Eldon at para. 65; R. v. McLeod, 2025 BCCA 364, at para. 76. Any evidence presented in support of a request for an exemption order must permit the trial judge to make a factual finding that the public interest associated with including a convicted sexual offender in the national database is “clearly and substantially” outweighed by the impact of the order on them, “including on [their] privacy or liberty” interest.
86No such evidence was presented in this case. While Dr. Benassi’s report addresses Ms. Cellupica’s vulnerabilities and I accept its contents, it does not directly address this issue. I am not prepared to draw the inferences requested by Ms. Mann that would be necessary to displace the presumptively appropriate nature of the order according to Parliament. No doubt, complying with the order will present difficulties for a marginalized offender such as Ms. Cellupica. But the evidence I have from the sentencing hearing does not rise to the required level.
87I impose the order for 10 years.
88I furthermore impose a DNA order as sexual assault is a primary designated offence.
89I waive the victim fine surcharges, as it would cause Ms. Cellupica undue hardship to pay them.
V. Released: March 24, 2026
Signed: Justice Brock Jones