ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
WAYLON SHERK
PUBLICATION BAN
S.486.4
Before Justice Angela L. McLeod
Trial November 7, 2024, and January 30, 2025
Sentencing hearing January 27, 2026.
Carolyn Bell counsel for the Crown
David Wilcox counsel for the Offender
SUMMARY OF THE FACTS
1Mr. Sherk sexually assaulted C.M. on July 2, 2023. He was convicted at trial.
2She was the only witness for the Crown. Mr. Sherk was the only witness for the defence.
3On the night in question, she was 19 years old and living with her mother. Mr. Sherk was 37 years old. He knew that C.M. was only 19 years old.
4Prior to midnight, she had been out with friends, celebrating Canada Day. They were at a local bar. She had been consuming alcohol. After midnight, around 230am, she was introduced to Mr. Sherk by some friends. He was in his truck in a parking lot near to the bar. The friends told her that he was “a really nice guy”, a “good guy”. At his request, she exchanged phone numbers with him and went back inside the bar. Their interaction lasted less than 2 minutes.
5C.M. left the bar at 315am and went to an after party, sharing a cab with a friend. Within the first 10 minutes after arriving, she wanted to leave. She had no money for a cab. She needed a ride home and remembered that she had exchanged numbers with Mr. Sherk and that he had a truck. She told him that she was at the after party and didn’t want to be there. He offered to come and pick her up. He came immediately.
6She felt comfortable taking a ride home with Mr. Sherk because her friends had said that he was a “good guy”.
7She was staying with a friend for the night and the residence was about a 5-minute drive from the after party. She gave Mr. Sherk the address and mapped it out on GPS. Clearly showing her intent to drive straight home. She had contemplated walking but decided that it would not be safe to undertake the approximate 20-minute walk at that hour of the morning. She testified that she was afraid to walk on the street by herself, her cell phone battery was down to 10% and she wasn’t familiar with the area of the city.
8Within minutes of departing, Mr. Sherk suddenly and unexpectedly turned into the parking lot of a church. C.M. was immediately uncomfortable. Mr. Sherk said, “What, it’s not like I am going to rape you!”. He parked in the far, dark, secluded corner of the back parking lot. She asked him, “what are we doing?”, he replied, “we are going to talk”.
9She testified that she did not walk away because she felt that doing so would have put her at risk, walking in the middle of the night, the fear that she was attempting to alleviate by calling upon Mr. Sherk in the first place.
10He told her that he was going to stretch his legs and got out of the truck. He walked around the truck and was talking to her through her window. She then got out of the truck and was smoking a cigarette.
11C.M. had her back against the side of the truck. Mr. Sherk put his arm on the truck and leaned into her and started kissing her neck. She immediately said, “No, I am good, I don’t want this”. He stopped, backed up, threw his hands in the air and said, “Why do women always have to go and ruin the mood”.
12In his trial evidence, ignoring this clear statement by the victim, he proceeded to ask her if he could just put his penis onto her clitoris and he testified that she agreed. He claimed that his penis then slipped inside her vagina. C.M. was unshaken at trial and testified that the request had never been made and she had never agreed.
13I accepted the evidence of C.M. who described the assault progressing to Mr. Sherk pushing her face down onto the passenger seat with her legs remaining outside of the vehicle. He pulled down her pants and inserted his penis directly into her vagina. Mr. Sherk withdrew his penis and masturbated. C.M. pulled up her pants. She got back into the truck, and he drove her to the residence. Once home she called her friend on the phone and reported the incident.
14The next day he sent her a text asking if “this is the part where you ghost me”. She never responded.
CIRCUMSTANCES OF THE OFFENDER
15At trial, Mr. Sherk testified that he had Aspergers and was given medication when he was a young child. He did not recall when he stopped taking medication and did not have any follow up treatment since. He works with heavy equipment operations in a family business and recently started working at a night club restaurant during the day.
16At trial, Mr. Sherk testified that he had no doubt in his mind “whatsoever” that C.M. was consenting to the sexual activity. At no time during his evidence did Mr. Sherk raise any issues about his Aspergers or ability to interpret social cues or understand verbal communications. He was not confused, nor required clarification.
17A presentence report was ordered at the request of the defence. The report dated January 30, 2025, was filed. The salient points are summarized below:
(1) He is close to his mother. He has one sister.
(2) His parents are not together. His father was an alcoholic and abusive.
(3) He has a gambling addiction, spending $300 - $600 per week. This issue caused problems in the relationship with his children’s mother. He claims to no longer gamble. That relationship ended and he co-parents the children. He has the children every other weekend.
(4) He works and does so on the weekends when he has the children. His mother helps look after the children.
(5) He told the author that in addition to Aspergers he also has been diagnosed with ADHD and OCD.
(6) He works seasonally to supplement his income by ODSP. He claims to sometimes struggle with following direction and needs clear and simplified explanations.
(7) He does not consume alcohol.
(8) He states that he has had over 50 sexual partners.
(9) He has no prior criminal record.
18The sentencing hearing was significantly delayed at the request of the defence who engaged the services of Dr. Monik Kalia, a clinical and forensic psychologist. A psychological assessment was conducted and a reported dated September 10, 2025, was filed. The salient points are summarized below:
(1) The assessment took more than 18 hours over 6 sessions.
(2) The doctor had access to a large volume of documents, personal and court related.
(3) He was prescribed Ritalin as a child and took that drug until he was approximately age 14.
(4) He has worked for his brother-in-law for 12 years doing landscaping, excavation and junk removal.
(5) His ODSP cheque is deposited directly into his mother’s account, and she assists him with online banking. His mother had a gambling addiction but stopped when the casinos were closed during COVID. He started gambling 8-9 years ago and would spend $200 to $400 per week. Recently, he has been gambling online using the Betty website. He uses money from a credit line and has a debt of $6000. He wants to stop but still enjoys the activity. He last attended a casino a month ago.
(6) He recently started seeing a counsellor named Rob (note that no details were provided during the sentencing hearing, nor was any letter filed in this regard. It is unknown what the counselling is for, how many sessions have been taken etc.)
(7) From age 20 to 25, he worked as a promoter for night clubs and bars. During this period, he had several one-night stands and flings. He said it was easy for him to meet females.
(8) He has two daughters, aged 7 and 6 years. Gambling caused problems in the relationship with their mother as he was gambling a lot and not spending much time at home. After the end of that relationship, he moved in with his mother.
(9) His next relationship started when he met the woman in a parking lot. He asked for her number and then texted her in the evening and they agreed to hang out. He had sex with her in the truck. They lived together for 8 months.
(10) He claims to prefer relationships with “more mature and older women” typically in the age range of 40 to 60 years.
(11) Regarding the matter before the court, he said:
On being asked what signs he relied on to believe that the victim wanted to have sex with him, he said she agreed to meet with him very late at night. She was smiling when she exchanged phone numbers. “I got that vibe” he added. He said she texted him around 3am, with a blushing face emoji. He thought that she believed he was hot and good looking. He said she was moaning when they were kissing. He said he did not check in with her verbally as he thought that things were going fine in the moment. He noted that he did not notice that she felt pressured at that time. He said he used to go by body language in the past more than talking. “But now I learn that talking is important”, he said.
He said he could have communicated more and asked her if she was comfortable with it. “This has been a learning process for me,” he added.
He believes that if someone agrees to hangout late at night, it probably means that they want sex. Some females have told him that he moves to fast. “but I always stop when they say so,” he said. “If someone said yes to kissing but did not want to go further, it meant that they are not comfortable with sex. “But I always used to feel confused if they stopped, “ he said.
When asked what consent means to him, he said “when the other person agrees to it and is okay with it, when she does not say no or push him away. If they put their arms around me, give me that look that they are interested”. He said “sometimes females say no but seem unsure”. He said that “they might be shy, they want it but do not say it”. He said “in the past, he sometimes would ask them if they are comfortable with him coming on to them. If they say no, he would stop”. He said sometimes “they would say that I was ruining the moment by asking and would just tell him to go for it".
(12) He lives with his mother and is dependent upon her for housing and most of his food. He is not good at managing money. He requires reminders to complete basic tasks, such as changing his bedding and doing his laundry. He does not contribute financially. He does not seem to comprehend the cost of running a house.
(13) As an older teenager and young adult, he and no difficulty forming romantic relationships as he was quite charming, according to his mother. She also added that he sometimes makes things up to feel more included or liked. His stories may contain things that likely did not happen but that he believes people want to hear. She noted that he is currently banned from the casino.
(14) His sister asserts that he has never been able to maintain proper employment. He works for her husband ploughing snow and doing junk removal. She states that he requires support in all aspects of his life from his family. He requires support financially, emotionally, mentally, self care, etc. Since becoming adults, Mr. Sherk and his sister have shared the same friend groups. They spend a lot of time together, going to parties and clubs. She states that, “often women would take the initiative to have sex with him and pursuing sexual relations with him. At no time has Waylon ever been aggressive toward women or forced them to engage in sex”.
(15) The results of the assessment were:
(a) He is currently functioning at a grade 7.6 in word reading, grade 7.5 in spelling, grade 3.2 in math computation and grade 5 in sentence comprehension.
(b) His verbal reasoning abilities are in the extremely low range at the 0.4th percentile. The index is the ability to use language for thinking and problem solving. It indicates how well Mr. Sherk did on tasks that required him to listen to questions and give spoken answers to them.
(c) His perceptual reasoning abilities are in the average range. The index measures fluid reasoning in the perceptual domain with tasks that assess nonverbal concept formation, visual perception and organization, visual motor coordinator, learning, and the ability to separate figure and ground in visual stimuli.
(d) His working memory abilities are in the low – average range.
(e) His processing speed abilities are in the borderline range. The index measures how well he can quickly scan symbols and make judgments about them.
(f) His overall full scale IQ is in the borderline range reflecting global intellectual functioning well below the population average.
(g) His assessment suggests the presence of an autism spectrum disorder in the mild range. It indicates deficiencies in reciprocal social behaviour that are clinically significant and may lead to mild to moderate interference with everyday social interactions.
(16) He had no major difficulty comprehending questions, following simple commands or understanding test instructions. He would stop and clarify if he did not understand an instruction or a word.
(17) Although his verbal reasoning scores fall in the extremely low range, this deficit may not be obvious in casual conversation. He can speak without much difficulty and is able to recall familiar words. Initially, he may come across as an individual without any cognitive deficits, particularly in family or routine interactions. However, his history and test results show that when language demands involve abstract reasoning, complex instructions, or interpreting subtle meanings, his comprehension and expression breaks down. This makes it difficult for him to process nuanced social exchanges. These limitations increase the likelihood of misinterpretation and poor judgment.
(18) Limited social understanding affects his ability to interpret social cues, understand boundaries, and respond appropriately to subtle signals or interest or disinterest.
(19) Mr. Sherk must participate in offense specific counselling to address the cognitive, emotional and behavioural vulnerabilities that have contributed to his difficulties leading to his legal involvement. A key goal would be to help him in appreciating the impact of sexual abuse on the victim with practical skills for recognizing sexual consent and navigating ambiguous situations thereby reducing the risk of future boundary violation.
[emphasis added]
19Several letters of support were also filed, all of which conclude that Mr. Sherk is a socially engaging, positive person.
VICTIM IMPACT
20The Crown has been unable to connect with C.M. and as such no impact statement was filed.
21I take note, nonetheless, that at trial the victim required a support person, a support dog and testified via CCTV. Furthermore, she testified that after the assault had completed, she was “just in shock”.
22Once home, she “felt sick and puked”. She was crying. She brushed her teeth several times. She testified that the experience was “pretty traumatizing”.
POSITION OF THE PARTIES
23The Crown seeks a penitentiary sentence of 4 years, a DNA order, a s. 109 order for 10 years, and a SOIRA order for 20 years. The Crown submitted that the range for penetrative intercourse is 3-5 years.
24The defence seeks a conditional sentence order of less than 2 years, submitting that Mr. Sherk’s moral culpability is greatly reduced by his neurodivergence and psychological abilities and that those rise to an exceptional level that would put him at risk should he be incarcerated.
AGGRAVATING AND MITIGATING FACTORS
25In R. v. Day, 2025 BCPC 123, the court identified a number of factors that could be considered aggravating in sexual assault matters. The Court noted,
Legal Principles relating to Sentencing for Sexual Assault
3 In R. v. Maslehati , the British Columbia Court of Appeal stated that it is inapt to describe some sexual assaults as "serious" and others, something else. The better approach is to focus on the circumstances of the offence. Considerations include the nature of the sexual contact, its duration, the overall context, and the actual and reasonably foreseeable harms that resulted. Unsurprisingly, the more aggravating the circumstances, the objectively graver the offence. The Court identified a number of factors that are aggravating:
highly invasive, violative and/or demeaning sexual conduct;
prolonged duration and/or repeated occurrences;
additional physical violence and/or physical injury;
administering drugs or alcohol to incapacitate the victim, or taking advantage of incapacity;
threats and/or the use of a weapon;
persistence in the face of communicated non-consent, or acts intended to overcome resistance;
more than one offender involved;
sexual assault in the presence of children;
the violation occurs in the victim's home;
planning and/or steps taken to facilitate the offence;
attempts to prevent disclosure or avoid detection;
age of the victim;
a particularly vulnerable victim;
actual and reasonably foreseeable harms that flowed from the offence, including significant impact on the victim; and,
breach of trust.
4 The Court also signalled that, as with sexual assaults of children, sentences for sexual assault against adults should generally increase to reflect our current understanding of how harmful, and therefore wrong, sexual violence is. That harm and wrong impact the gravity of the offence and the offender's personal responsibility. Accordingly, the Court stated that "a penitentiary term of at least two years' imprisonment will generally be required for an adult sexual assault that is prosecuted by indictment and involves aggravating circumstances, even where that assault is committed by a first-time offender and does not involve penile penetration", and where there is no diminished moral blameworthiness or other compelling mitigation . The Court also stated that a conditional sentence will usually not be a fit sentence unless there is significant diminished moral blameworthiness or other compelling mitigation.
26I find the following to be aggravating factors for consideration on sentence:
(1) The sexual assault was an act of forced vaginal intercourse which is highly invasive.
(2) The intercourse was unprotected, putting the victim at further risk. Indeed, the victim testified that she “had to get tested”, because of the assault.
(3) The victim was vulnerable, taken in the offender’s vehicle, that he was driving. He controlled where they went. She was half his age, and I found her to be rather naïve. She still lived at home with her mother. She had only known Mr. Sherk for minutes and had blindly trusted him to get her home safe. Indeed, she testified that after the assault, being in shock, she just wanted to get home, but didn’t think she could walk and so got back into the truck not knowing “what kind of threat he could have been [to her]”.
(4) The offender’s persistent efforts in the face of a clear, expressed lack of consent. She testified that in addition to telling him no, she also attempted to push him off her but he “was a very big man”.
(5) The element of planning or steps taken to facilitate the offence, that is driving to the back of a dark parking lot in order to affect the assault and minimize discovery or avoid detection.
(6) Mr. Sherk’s lack of insight into his offending behaviour, commenting to the court at the sentencing hearing that he has “learned his lesson”; that lesson being that he will be more careful who he associates with, rather than learning to ensure that sexual partners are truly consenting rather than making assumptions based on inappropriate ideologies. This conclusion is supported by the psychologist’s recommendation that he undergo counselling that includes understanding the impact of the offence on the victim.
(7) Mr. Sherk lied to the presentence report author saying in January 2025 that he no longer gambled. He told the psychologist that he continues to gamble, incurring debt and was last at the casino a month ago, which would be August 2025. This further supports a lack of insight into the issues that he has and needs to address. It also supports his mother’s assertion that he will say what he believes others want to hear.
27I find that the following to be mitigating factors for consideration on sentence:
(1) The lack of a prior criminal record.
28I find the following to be limited or neutral factors for consideration on sentence:
(1) Familial and community support. In doing so I rely upon the Court of Appeal decision of R. v. Ruthowsky, 2024 ONCA 432, wherein the court held:
161 The appellant argues that the trial judge erred in principle in his treatment of some evidence relevant to mitigating factors on sentence.
162 The appellant argues that the trial judge erred in his treatment of evidence from members of the appellant's community — family and friends — attesting to his good character by discounting the weight to be given to this evidence.
163 I disagree. Absent error in principle, the trial judge was entitled to assess the weight to be given to the good character evidence tendered at sentencing. I see no error in principle in the trial judge's treatment of the good character evidence.
164 The sentencing reasons are clear that the trial judge accorded limited weight to the character letters for two reasons, neither of which discloses error.
165 First, some of the witnesses who wrote good character references for the appellant clearly did not accept that the appellant had committed the offences the jury found him guilty of committing. I see no error in the trial judge moderating the weight to be given to good character evidence in these circumstances.
166 The starting point in terms of relevant facts when a judge is considering sentence is that the offender committed the offences of which they have been convicted. Where a witness providing evidence about an offender's good character does not accept that the offence or offences occurred, it demonstrates that the witness has formed their opinion on the character of the offender without consideration for a factor relevant to character that a sentencing judge cannot ignore — that they committed the offence or offences at issue. A sentencing judge is entitled to be cautious with the weight to be given to evidence of good character in these circumstances.
167 This is not to say that evidence of a good character witness should always be given less weight because the witness does not accept that the offender committed the offence or offences. It is no doubt often hard for friends or family of an offender to accept that they committed an offence. Good character in other aspects of an offender's life may, depending on the whole picture, still be a mitigating factor in sentencing even where the witness attesting to the good character does not accept that the offence was committed. But absent error in principle, deference is owed to the weight that a sentencing judge assigns to evidence of prior good character.
168 In this case, the reasons for sentence are clear that the trial judge did not wholly disregard the good character evidence; rather, he gave the good character letters limited weight in the face of the serious offences committed by the appellant, which were inconsistent with the character described in the letters. There was no error in his approach.
169 The trial judge also limited the weight he gave to the good character evidence because the appellant used his outward good character and his position as a police officer to breach the public trust placed in him and perpetrate the offences. Again, I see no error in this approach.
170 In sum, I am not persuaded that the trial judge erred in principle in the weight he gave to the evidence of prior good character as a mitigating factor in sentencing.
(2) It must not be forgotten that C.M. called upon Mr. Sherk for a ride home because he had been described as a good guy, thus someone who could be trusted. It was his reputation the community that enabled him to commit the offence.
(3) His sister’s comments both to the author of the presentence report and the psychologist are troubling. She flatly asserts that her brother has never been aggressive or sexually abusive to any woman. How could she possibly know what her brother has or has not done while engaged in private, sexual relations? Furthermore, she stated that it was women who sought after her brother and not the other way around. Her comments sought to undermine the seriousness of the offence and to minimize her brother’s actions while, in essence, blaming the victim.
(4) Additionally, his sister asserts that he cannot work independently and only works when her husband gives him work. This is contradicted by Mr. Sherk himself who states that he used to work for 5 years as a club promoter and recently returned to club work during the day. Furthermore, his letter of employment, written by her husband, states that he “often completes quotes [for contracts] and is exemplary at advertising and obtaining new customers”. This is in stark contrast to the sister’s assertion that he is employed essentially as a matter of pity.
SENTENCING PRINCIPLES AND CASELAW
29Absent a victim impact statement, the court can take judicial notice. As noted in R. v. A.G., 2023 ONSC 3049:
9 It is difficult to generalize when discussing the motivation behind the crime of sexual assault. There are many different causes depending very much on the particular accused's psychology and other circumstances. One thing can safely be said. A sexual assault is always about dominance over the victim. That element is ever present underlying the crime. A sexual assault is all about the accused, a profoundly and thoroughly selfish act. Sexual assault objectifies the victim and robs her of autonomy, dignity and her very identity as a person: R. v. Mabior 2012 SCC 47 (S.C.C.) at para. 45. An attack against sexual integrity is a profound denigration of personhood.
10 The consequences to a victim are in most cases profound and, unfortunately, long lasting. The road to recovery from the trauma can be long and painstaking.
14 The consequences to the victim are a major factor on sentencing for sexual offences: Friesen , at para. 74; R. v. Woodward 2011 ONCA 610, 107 O.R. (3d) 81 (Ont. C.A.) at para. 76. And see R. v. Stuckless, [1998] O.J. No. 3177 (Ont. C.A.) at para. 44 in which the devastating psychological impact of sexual assault offences is considered. The consequences to D.H. were very serious.
30In A.G. , supra, the court held that a CSO was not an appropriate sentence, writing:
33 A sentence of under two years to be served on house arrest as a conditional sentence as argued for by defence counsel is plainly insufficient to accomplish the denunciatory objective of sentencing and is disproportionate to the seriousness of the offences and A.G.'s moral culpability. On the other hand, the Crown position of 7 years fails to give sufficient weight to A.G.'s youth and the time that has passed since the offences.
31See also Day, supra, holding that a CSO is an inappropriate sentence for offences of this nature.
32The leading case in Ontario for sexual assault involving forced intercourse with a spouse, intimate partner, or former intimate partner is R. v. A.J.K., 2022 ONCA 487. While the case at bar is not an IPV case, the following is nonetheless appropriate herein:
68 One need look no further than this court's decision in R. v. Bradley 2008 ONCA 179, 234 O.A.C. 363, which is often cited as support for a three-to-five-year sentencing range involving non-intimate partners. This court stated, at para. 18: "We accept the Crown's submission that, in the circumstances, the appropriate range of sentence was three to five years." Numerous decisions from this court and others have reinforced a range of three to five years, and in some cases even higher, in the context of sexual assaults of non-intimate partners involving forced oral, vaginal, or anal penetration: see e.g., R. v. U.A., 2019 ONCA 946, at para. 11; R. v. T.W., 2019 ONSC 5596, at paras. 33, 42; R. v. McCaw, 2019 ONSC 3906, at para. 59; R. v. Johnson, 2018 ONSC 5153, at para. 34;.R. v. Mitrovic, 2017 ONSC 1829, [2017] O.J. No. 1523, at para. 38; R. v. L., 2016 ONSC 733, at paras. 46, 50;R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 60; R. v. S.A., 2014 ONCA 266, at para. 1; R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64, at para. 19; R. v. Richards, 2010 ONCA 728, at para. 6; and R. v. Myers [2000] O.J. No. 1787 (Sup. Ct.), aff'd (2002), 156 O.A.C.157.1
71 The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
72 In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into "harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders": Friesen, at para. 35. See also: R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so.
73 A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate: see R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 82.
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.
75 As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened" and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: "Without a doubt, eliminating ... sexual violence against women is one of the more pressing challenges we face as a society" and "we can — and must — do better" (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.
78 The trial judge was under no obligation to cite the actual range for this type of offence in order to invite deference in. Quite simply, there is no magic to citing the correct range of sentencing; the task is to arrive at a fit sentence through the employment of proper sentencing principles.
80 When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto , at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen , at para. 30; Parranto , at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the "[f]undamental principle" of sentencing.
81 The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen , at para. 31; Parranto , at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen , at para. 33; Parranto , at para. 11.
82 The principle of individualization is yet another tool designed to help calibrate proportionate sentences. Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: Parranto , at para. 12; Lacasse , at para. 58.
85 I see no error in how the trial judge proceeded. Sentencing is a highly subjective process and trial judges are in the best position to determine what is fit in all of the circumstances: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46. As noted by Moldaver J.A. (as he then was) in R. v. D.(D.)(2002), 58 O.R. (3d) 788 (C.A.), at para. 33: "[J]udges must retain the flexibility needed to do justice in individual cases." They must be left in a position to individualize the sentence to the offender before the court. What is critical is that the trial judge imposed a sentence that is fit, in other words one that is not clearly unreasonable, and properly applied the principles of sentencing in exercise of his discretion: Shropshire , at para. 46; Friesen , at para. 162.
33Additionally, the recent decision of R .v Towel, 2025 ONCJ 607, wherein the jurist noted the following:
104 Similarly, In R. v. Kelly, 2022 ONSC 5500 at paras. 35 and 36, the Court cautioned that:
The Supreme Court of Canada has emphasized that usual ranges of sentence are neither "straitjackets" nor hard and fast rules. Rather, they are properly understood as "historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64at paras. 56-60. There is no requirement for exceptional circumstances for a sentencing judge to impose a sentence outside the usual range: Friesen, at paras. 36-39; 111-112.
Thus, while ranges are relevant to the analysis, sentencing is best understood as an exercise of judicial discretion to individualize the sentence for a particular offender who committed particular offences, in a particular community. Proportionality remains the overarching objective.
105 The applicable sentence range of 3 to 5 years represents an appropriate upward trend in sentences for sexual violence. This range may increase over time as crowns advocate for longer sentences and our courts benefit from a growing awareness of the lasting personal and societal harms of sexual violence. Trial judges will also have further guidance from more recent appellate decisions upholding higher sentences.
34I am guided by the principles summarized in R. v. Wardlaw, 2023 ONSC 649:
19 Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and,
f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
20 Further, s. 718.1 of the Criminal Code provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
22 In sexual offences, the moral blameworthiness of the offender is high. As stated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 89:
All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48).
23 Sentencing in sexual assault cases must denounce this conduct and deter likeminded individuals from committing such offences. "Sexual assault is still among the most highly gendered and underreported crimes." Sentencing decisions must reflect the harm that sexual offences have done to the complainant and our community at large. As stated by the Supreme Court of Canada in R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37:
...As time passes, our understanding of the profound impact sexual violence can have on a victim's physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault. Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors' medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society's biased reactions to that harm, are not relics of a bygone Victorian era.
[emphasis added]
REDUCED MORAL BLAMEWORTHINESS
35In R. v. Nystrom, 2023 BCCA 232, the court addressed cognitive impairment as a mitigating factor, writing:
21 A medically recognized mental disorder such as cognitive impairment, which has caused or contributed to the commission of an offence, may be a mitigating factor that reduces an offender's moral culpability and thereby warrants a reduction in sentence. In these circumstances, both general and specific deterrence will necessarily play a diminished role in determining a fit sentence: R. v. Badhesa, 2019 BCCA 70 at para. 42; R. v. Penttila, 2020 BCCA 63 at paras. 68-69.
22 Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offending conduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient: Badhesa at para. 43; R. v. Botticelli, 2022 BCCA 344 at paras. 21-22; see also R. v. Scofield, 2019 BCCA 3; R. v. Okemow, 2017 MBCA 59 at para. 73.
23 The assessment of an offender's moral culpability, and more particularly how a disorder impacts this, is a question of fact. Absent palpable and overriding error, this finding is entitled to deference on appeal: Badhesa at para. 26; Botticelli at para. 19; Penttila at para. 70; Scofield at paras. 48, 56.
24 The Crown submits that the judge erred in finding the respondent's cognitive impairment reduced his moral blameworthiness in the absence of any evidence of a nexus to the sexual assaults. In finding that the risk factors identified in the psychiatric assessment "played a role" in the commission of the offences, the judge relied only on risk factors for future offending. The Crown says it was not open to the judge to extrapolate backwards absent evidence that these risk factors played any role in the respondent's offending conduct.
25 The respondent submits that the sentencing judge viewed these risk factors "as providing the necessary context to meter out an appropriate sentence" and made no palpable and overriding error in doing so. He says the fact that he is an offender who needs assistance with basic life skills is sufficient in itself to ground a connection between his cognitive impairment and offending conduct.
26 In my opinion, the sentencing judge erred by treating the respondent's cognitive impairment as a contributing factor in the commission of these offences. This impairment was a relevant contextual factor, but there was no evidence that it played any part in the respondent's offending.
27 The only evidence about this was a reference in the psychiatric report to a 2017 psycho-educational assessment that found the respondent met the B.C. Ministry of Education criteria to be identified as a student with "Mild Intellectual Disabilities" and evidence that the respondent had been receiving services from Community Living B.C. The intellectual disability was one of numerous factors that the psychologist considered in assessing the respondent's risk of future sexual re-offending. That assessment applied the "Risk for Sexual Violence Protocol", a structured professional guide that assesses risk factors under five domains, one of which is "Mental Disorder". Specifically, the respondent's "limited intellectual power" and diagnosis of a learning disability was one of two risk markers in that domain, about which the psychologist explained:
The Mental Disorder domain comprises five factors which reflect significant psychopathology. Mr. Nystrom exhibits two of the five risk markers in this domain. Specifically, he has limited intellectual power and he has also long been diagnosed with a learning disability. These indicate neurodevelopmental disorder serious enough to have implications for independent adjustment in the community at large. Second, Mr. Nystrom has serious substance use problems, including current problems with methamphetamine and alcohol. These areas of difficulty would both have very high relevance for risk mitigation efforts.
[Emphasis added.]
28 As the underlined passages indicate, the cognitive impairment was one of two factors relevant to future risk mitigation. Nothing in the report explained the nature and extent of the impairment or provided support for any causal link or contribution to the commission of the offences.
29 The judge's reasoning that if the cognitive impairment was an "innate" risk factor that predisposed the respondent to offend in the future, it "surely must have also predisposed him in the past to offend", is based on nothing more than a mere assumption that the cognitive impairment contributed to the offending conduct. This was not a case like Scofield or Badhesa , where there was detailed expert evidence that established a connection between the offending conduct and the mental disorder in question. Rather, it is more akin to cases like Botticelli and R. v. P.R.J., 2023 BCCA 169, where there was no evidence on which to base a finding that the offender suffered from a mental disorder that was linked to the commission of the offences.
30 I do not accept the respondent's submission that his need for assistance with basic life skills is sufficient to establish a causal link or contribution. While full-scale psychiatric evidence may not be required in every case, there must be some evidence about the nature and extent of a cognitive impairment and its relationship to the offending conduct. Such evidence is essential to a proper understanding of the impact of such a disorder on the offender's moral blameworthiness. I agree with the Crown that such evidence was absent in this case.
36Whatever a court determines to be the moral blameworthiness of an offender, it must be balanced, nonetheless, against the principle of proportionality.
105 In R. v. Lacasse 2015 SCC 64, the Supreme Court of Canada determined that the "cardinal principle" of sentencing law is the principle of proportionality; that is, the more serious the crime and the greater the degree of responsibility, the more severe the sentence will be. This must be balanced against the moral blameworthiness of the offender.
PRINCIPLE OF RESTRAINT AND FIRST TIME OFFENDERS
37The Ontario Court of Appeal, in the recent decision of R. v. Celenk, 2026 ONCA 60, held that the consideration of first-time offender status must be balanced with other factors, noting:
21However, as this court held in R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, even when dealing with serious offences that require a sentence that emphasizes denunciation and deterrence, it is nevertheless an error in principle to lose sight of the principle of restraint when dealing with a youthful first-time offender. In Habib, at paras. 30-32, Tulloch C.J.O. explained the challenging, but necessary, balance courts must strive for when sentencing youthful first-time offenders for convictions for serious offences, including offences that endanger the public:
The courts respect the need to hold young adults accountable for serious crimes that, like the ones the appellant committed, involve significant personal violence. The courts must denounce the actions of young adults who commit these offences and impose sentences that, to the extent possible, adequately deter them from reoffending. General deterrence also gains importance. Due to these offences’ gravity and public safety risks, significant prison terms may be necessary. It is not always possible to avoid incarceration, impose only a very short prison term, or select a sentence at the low end of the range. These principles may help prevent older, more sophisticated perpetrators and organized criminal groups from preying on and recruiting young adults to commit violent crimes on the theory that those young adults will not be imprisoned if apprehended.
Sentencing judges must also respect several other settled principles when sentencing youthful offenders for their first criminal offence. First, they must practice restraint. This requires them to avoid imprisoning young adults when possible. When imprisonment is necessary, it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing. Second, they must prioritize rehabilitation as the paramount sentencing objective. Where necessary, they must also prioritize specific deterrence. Third, they cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence. Fourth, they must consider young adults’ reduced moral culpability and the harsher impact that incarceration causes them due to their stage of life.
Sentencing judges must always give serious and sufficient consideration to all these principles. Merely referring to them as relevant is not always sufficient to show their proper application. Failing to apply or unreasonably underemphasizing them is an error in principle.
[emphasis added]
38Mr. Sherk is not a young adult, he is a middle-aged man, with significant experience in intimate matters. As noted above, his actions and reactions were not as a result of youthful inexperience, but rather as a result of well established and long held patriarchal notions about women and consent.
ANALYSIS AND CONCLUSION
39On a balance of probabilities, I do not find that Mr. Sherk’s moral blameworthiness is reduced by his autism in the mild range. The psychological report did not provide any support for a causal link to his offending behaviour. He has a great amount of sexual experience and has navigated many relationships and sexual encounters. He agreed to pick up C.M. believing that due to the late hour of the night, she was interested in sex. I find that he intentional drove to the dark, unoccupied, back parking lot of the church in order to facilitate his assumption of a sexual encounter.
40I find that his response to C.M.’s questioning, upon pulling into the parking lot, of “what, it’s not like I am going to rape you”, was telling of his true intentions. He testified that she said no that she did not want to have sex with him. He told the psychologist that sometimes women say no but are really just shy and truly do want to have sex. He did not misread or misunderstand her social cues or actions or inactions because of his mild autism; he operated on preconceived, antiquated, patriarchal and misogynistic ideologies. Whether C.M. said yes or no, Mr. Sherk was going to proceed with his intentions.
41His moral blameworthiness is high.
42He sexually assaulted a stranger, a young woman, barely an adult, in a dark, secluded corner of a church parking lot. He knew that she had said no, and when she did, his response was not to clarify, or to discuss, his response was to say, “why do women always have to go and ruin the mood”.
43I do not have a joint submission on sentence. I am considering exceeding the Crown’s position and ask the parties to make submissions in that regard. I am concerned that the sentence of 4 years proposed by the Crown is not proportional to the moral blameworthiness of the offender and does not address the gravity of the offence sufficiently. Furthermore, I am concerned that the principles of denunciation and deterrence would not be met should this court impose a 4-year sentence. I believe that the Crown has erred in submitting that the ‘range’ of sentence appropriate in this matter is 3-5 years, and had misinterpreted A.J.K, supra.
44As I understand A.J.K., and Justice Fairburn’s decision in R. v. Ranatunga, 2025 ONCA 557, A.J.K. does not simply set a book end range of 3-5 years for sexual assault by way of penetrative intercourse, instead, the case holds that sexual assault by way of penetrative intercourse inside the confines of IPV is no less serious than between strangers. As Justice Fairburn wrote:
65First, under the heading “Sentencing Principles Specific to Sexual Offences,” the sentencing judge noted that this court in A.J.K. has “made it clear that sexual assault cases involving forced penetration will incur a similar range of three to five years jail, regardless of whether the victim was an intimate partner or a stranger.”
66Second, in her analysis of whether a conditional sentence order was appropriate, the sentencing judge again underscored that “the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5 year range for such offences”, citing A.J.K.
67Between the two references to the correct range from A.J.K., the sentencing judge addressed three specific cases to determine what she referred to as the “appropriate range”. While the sentencing judge used the term “range” as a descriptor, I do not read the impugned passage as suggesting that she was trying to locate a range for a penetrative sexual assault. I come to this conclusion for two reasons.
68First, the reference was made after the A.J.K. discussion where the sentencing judge correctly identified the range as three to five years.
69Second, courts cannot determine a proportionate sentence by relying on first principles. Rather, they must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: Friesen, at para. 31; A.J.K., at para. 81; and Parranto, at paras. 10-11. This calibration is often achieved by considering comparable sentencing decisions. I read her reasons as doing precisely that: considering and applying the principle of parity – a principle that promotes proportionality by ensuring that similar offenders who commit similar offences in similar circumstances are treated similarly. Indeed, the impugned statement about the “range” appeared under the heading “Related Cases”, indicating that the sentencing judge was reviewing precedents to aid in crafting a sentence with a view to parity.
78The search for a just sanction is always guided by a proper blending of the objectives of sentencing as reflected in the fundamental principle of proportionality. In pursuit of a fair, fit, and principled sanction, the “loadstar” of proportionality leads us to consider, not only the gravity of the offence, but also the degree of moral responsibility of the individual offender: Parranto, at para. 10; Friesen, at para. 30; and A.J.K., at para. 80.
45In this regard, see also R. v. J.S. 2025 ONSC 3501. Additionally, the Court in R. v. Morgan, 2024 ONCA 937, found that A.J.K. held that a sexual assault on a young vulnerable woman attracts at least a three year penitentiary sentence. I understand A.J.K to hold that in similar circumstances, with similar offenders, absent extenuating and mitigating circumstances, sentencing judges should impose a sentence of at least 3 years and that parity would, absent aggravating factors, cause a jurist to likely find the appropriate sentence for sexual assault by way of penetrative intercourse to be 3, 4 or 5 years custody. The sentence is not capped at 5 years, suggesting that higher number be reserved for the worst offenders in the worst circumstances. See R. v. Wicker, 2025 ONSC 930, para. 8
46Indeed, Justice Fairburn, in A.J.K. wrote:
77 The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non-intimate partner sexual violence. To the extent that Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.
[emphasis added]
47This is a sentencing after conviction at trial, there is no mitigating guilty plea which might make the lower end of the starting range appropriate. The victim is young and was vulnerable. She trusted Mr. Sherk to get her home safely, relying upon the recommendations of her friends. The comments made by Mr. Sherk were and are very telling as to his intentions on that evening and the underlying ideologies that he subscribed to.
48I sentence Mr. Sherk to 6 years in the penitentiary, a s. 109 order for 10 years, a DNA order and a SOIRA order for 20 years1.
Released: February 11, 2026.
Signed: Justice Angela L. McLeod