Court of Appeal for Ontario
Date: 2025-07-28
Docket: COA-24-CR-0486
Coram: Fairburn A.C.J.O., MacPherson and Gillese JJ.A.
Between:
His Majesty the King, Appellant
and
Nimal Ranatunga, Respondent
Appearances:
Justin Reid, for the appellant
Brendan Monk, for the respondent
Heard: 2025-05-14
On appeal from the sentence imposed on April 15, 2024, by Justice Alison R. Mackay of the Ontario Court of Justice.
I. Overview
[1] The respondent was found guilty of sexual assault because of non-consensual condom removal during sexual intercourse. The offence caused the victim to suffer profound physical, psychological, and social harm. The trial judge sentenced the respondent to a conditional sentence of two years less a day.[2]
[2] The Crown appeals against sentence. It submits that the sentence was manifestly unfit and the product of errors in principle that had an impact on it.
[3] I accept the Crown’s submission and would allow the appeal. A conditional sentence is generally inappropriate in sexual assault cases involving forced penetration given the gravity of the offence, the high risk of serious harm that it poses, and the need to denounce such conduct. In my view, the sentence in this case was demonstrably unfit given those considerations, the respondent’s high degree of moral culpability, and the severity of the harm the victim suffered as a result of the offence. I would substitute a penitentiary sentence of three years for the conditional sentence.
II. Background
[4] The respondent and M.F. met on an online dating site and dated for a couple of months before March 27, 2022, when the assault occurred.[3] Their relationship only became more romantic in the few weeks prior to the offence.
[5] Before the night in question, M.F. and the respondent had several discussions about condom use and birth control. M.F. was in her mid-thirties and had a professional career in banking. She explained to the respondent that condom use was vitally important to her because she was not taking the birth control pill and she wanted to be protected from an unwanted pregnancy.
[6] On the night in question, after being out together, the respondent and M.F. returned to the respondent’s condo where they shared a pizza and a drink. They again explicitly discussed condom use. After some kissing and foreplay but before engaging in vaginal intercourse, M.F. told the respondent he had to use a condom. She asked him if he had one and he answered “yes”. He asked if they could have sex without a condom and she said “no”. She made it abundantly clear that wearing a condom was a prerequisite for sex that evening. M.F. then watched the respondent put on a condom and they proceeded to have protected vaginal intercourse.
[7] The respondent and M.F. gave similar testimony about the vaginal intercourse. It began with the respondent on top of M.F., then M.F. was on top of the respondent, and it ended when the respondent was on top of M.F. and ejaculated inside of her. During the changing of their positions, the respondent would briefly remove his penis.
[8] There was no dispute at trial that the respondent took off the condom as the sexual intercourse continued and that he had unprotected intercourse with M.F. until he ejaculated inside of her.
[9] M.F. testified that the respondent never told her he was going to take off the condom nor did she see him take it off. She said she learned for the first time that he had removed the condom during intercourse when he told her, after ejaculating inside her, that she would “need to take a ‘Plan B’ in the morning”, by which he meant that she should take an emergency contraceptive pill.
[10] The respondent testified that when he was on top of M.F. for the final time, he propped himself up, came out of M.F., and told her loudly and clearly that he was taking the condom off. He then kissed her and she kissed him back, which he took to mean that M.F. was agreeing to have sex without the condom. He acknowledged that M.F. did not verbally agree he could take off the condom. He also acknowledged telling her after ejaculation that “since we had sex without a condom, you need to go on the Plan B”.
[11] In the morning, the respondent ended their romantic relationship. He told M.F. it was best they remain only as friends because he was not interested in her romantically. When M.F. confronted the respondent about removing the condom and ejaculating inside her, he reiterated that he hoped she would take an emergency contraceptive pill.
[12] The trial judge made the following findings:
- M.F. never heard the respondent say he was going to remove the condom;
- it was silent in the bedroom in which they were having sexual relations and there was no ambient noise;
- M.F. never indicated in any way that she agreed to the respondent removing the condom;
- even if the trial judge were to accept that the respondent said he was taking off the condom, the respondent took no steps to make sure M.F. heard him and consented to him removing the condom;
- the respondent ejaculated inside M.F. without permission, despite knowing that condom usage was vitally important to M.F. because it was her only form of birth control; and
- after the unprotected sexual intercourse, the respondent told M.F. to take an emergency contraceptive pill.
[13] M.F. reported the offence to the police later on the day of the offence. She testified that it was the worst day in the 35 years of her life – she felt “violated” and disgusted with herself.
[14] After reporting the offence to the police, she felt “utterly broken”. She considered self-harm and suicide. She called the suicide prevention line and said that the person who answered her call was her “saving grace” and got her through the night.
[15] M.F. then underwent a series of medical interventions. She was swabbed to test for sexually transmitted infections and had blood work done to test for HIV/AIDS. She undertook a course of medication to prevent HIV/AIDS. This required M.F. to have blood work done weekly to ensure the medication was not affecting her liver or kidneys. Near the end of the course of treatment, the bloodwork revealed that the medication was adversely impacting M.F.’s liver. She completed the course of treatment, despite the risk of increased harm. She had to wait a further four months before she finally learned that she did not have HIV/AIDS.
[16] M.F. was severely traumatized by the sexual assault in other ways as well, including:
- she became withdrawn and very distant from family and friends, including her father, brothers, nephews, and niece, with whom she had had a very close relationship;
- she stays home and isolates because she does not feel safe;
- she now experiences depression, anxiety, panic attacks, and sleeping issues, which have resulted in her requiring several types of medication to treat these conditions;
- her work performance has been impacted;
- she feels she will never be able to trust a man again;
- she believes she can no longer protect herself despite working hard at doing so in her adult years; and
- despite continual counselling, she continues to experience an impact on her energy, confidence, intimacy, and safety.
[17] Following a two-day trial, the trial judge rejected the respondent’s claim that M.F. had consented to unprotected sex. She found M.F. to be credible and reliable and that M.F. made it clear she would consent to sex with the respondent only if he wore a condom.
[18] The trial judge also rejected the respondent’s alternative defence that he had an honest but mistaken belief that M.F. had consented to sexual intercourse without a condom. She stated that in light of M.F.’s express refusal to engage in sexual intercourse without a condom, the respondent had to make certain M.F. had truly changed her mind before proceeding with unprotected sexual intercourse. He could not rely on the mere lapse of time, silence, or equivocal conduct as indicating consent. He had to take reasonable steps to confirm that M.F. consented to the change in sexual activity. An attempt to “test the waters” by recklessly and knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step.
[19] At the sentencing hearing, the Crown sought a three-year penitentiary sentence. The defence submitted that a conditional sentence of 18 months to two years less a day was appropriate or a sentence of imprisonment of between 12 and 18 months to be served in a reformatory.
III. The Reasons for Sentence
[20] The trial judge set out the principles and objectives governing sentencing generally. She then referred to R. v. Kirkpatrick, 2022 SCC 33, noting that in Kirkpatrick the Supreme Court held that removal of a condom when a person consents to sexual intercourse only with a condom is a sexual assault. She described that as a change in the law and said it was a factor to be considered in determining sentence because the respondent committed the offence some four months before Kirkpatrick was released. The trial judge said that, at the time of the offence, there was “some uncertainty in the law” as to the circumstances in which an individual would be committing sexual assault when they removed a condom against the wishes of a complainant.
[21] The trial judge noted that in R. v. A.J.K., 2022 ONCA 487, this court made it clear that sexual assault cases involving forced penetration will result in sentences ranging from three to five years’ imprisonment, regardless of whether the victim is an intimate partner or a stranger. However, immediately thereafter, the trial judge said she had been given only three cases from which she could “determine what the appropriate range would be. A range is usually established from a review of a collection of cases with [a] similar fact situation for a similar offence.” She then reviewed the three cases, all of which pre-date A.J.K.
[22] The trial judge found the trauma M.F. suffered as a result of the offence was the most aggravating factor in this case. She briefly referred to the fact that M.F. suffers from depression, anxiety, and struggles to maintain social connections with her family since the offence. The trial judge also said that the respondent breached M.F.’s trust because he committed the offence while they were dating and after she and the respondent had become friends.
[23] The trial judge described the following as mitigating circumstances. The respondent was 40 years old at the time of the offence and a first offender with good rehabilitative prospects, a supportive family, and a willingness to take counselling. As well, he lived close to his family, had lived a prosocial life, and had always worked. Further, his family and friends said the offence was completely out of character for him. She noted that “while it came late”, the respondent showed remorse at his sentencing hearing and insight into the trauma his actions had caused M.F.
[24] The trial judge then considered whether a conditional sentence was appropriate in this case. She observed that removing a condom when the victim does not consent is a form of violence and an “extremely serious violation”. However, she said, removing a condom is “qualitatively different in nature than a sexual assault which involves physically holding a person down against their will and penetrating them or penetrating them when they are in a state where they could not resist; for example, sleeping or intoxicated”.
[25] The trial judge found that a conditional sentence was available because the appropriate range of sentence in this case was “mid to upper reformatory”. She said a conditional sentence was consistent with fundamental sentencing principles because such a sentence can provide deterrence and denunciation.
[26] The trial judge sentenced the respondent to a conditional sentence of two years less a day, structured as follows: for the first ten months the respondent would be on house arrest, for the following eight months he would be on a curfew, and for the remaining six months he would “abide by the statutory terms”.
IV. The Issues
[27] The Crown submits: (1) the sentence is manifestly unfit; (2) the trial judge erred in her consideration of the inherently violent nature of the offence; and (3) the trial judge erred in principle by considering the uncertainty in the law at the time the offence was committed.
V. Analysis
(1) The sentence is demonstrably unfit
[28] An appellate court can intervene to vary a sentence only if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, at para. 26. In my view, intervention by this court is warranted on both grounds. Accordingly, it falls to this court to perform its own sentencing analysis to determine a fit sentence: Friesen, at para. 27.
[29] In the analysis that follows, I first explain why the sentence is demonstrably unfit. In the course of that analysis, I also explain why I accept the Crown’s submission that the trial judge erred both in her treatment of the inherently violent nature of the offence and her treatment of Kirkpatrick.
[30] In the section that follows, I explain why the trial judge erred in principle in finding that a conditional sentence was available, an error that had an obvious impact on the sentence.
[31] A sentence is demonstrably unfit where it is clearly excessive or inadequate, or where it represents a “substantial and marked departure” from sentences imposed in similar situations: R. v. Lacasse, 2015 SCC 64, at para. 52. The conditional sentence in this case is clearly inadequate and, therefore, demonstrably unfit.
[32] The trial judge acknowledged both that this offence involved non-consensual penetrative sex and that A.J.K. establishes that a penitentiary sentence in the range of three to five years was warranted. Nonetheless, the trial judge found that a range of mid to upper reformatory time was appropriate.
[33] While a sentencing judge may depart from an established range of sentence, they must give reasons for so doing: Lacasse, at para. 67. I see no such reasons on the part of the trial judge. The trial judge gave two reasons for what she viewed as the appropriate range in this case. She did not suggest that either were justifications for departing from the A.J.K. range. In any event, both reasons demonstrate errors in principle so cannot amount to a justification for departing from the established range of sentence for this type of offence.
[34] It will be recalled that the trial judge gave these two reasons for her determination of the appropriate sentencing range in this case: (1) the offence in this case was “qualitatively different in nature” from other penetrative sexual assaults because it did not involve the same level of violence as acts of forced penetration when the victim was held down against their will or was sleeping at the time of the sexual assault; and (2) the offence took place before the “changes in the law” resulting from the Supreme Court judgment in Kirkpatrick.
[35] In terms of the first reason, there is no principled basis to distinguish penetration following non-consensual condom removal from other forms of penetrative sexual assault nor is there any principled basis for creating a much lower sentencing range for non-consensual condom removal sexual assault than that for other forms of penetrative sexual assault. Such conclusions are inconsistent with the reasoning in Friesen and A.J.K.
[36] All sexual assaults are serious acts of violence. Penetrative sexual assault is a violation of the victim’s bodily integrity and sexual integrity, and presents a risk of physical harm in all cases: Friesen, at paras. 138-39; A.J.K., at para. 74. In particular, “penile penetration … when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy”: Friesen, at para. 139. While added violence may justify a sentence at the higher end of the three to five year range, the offence need not involve any additional physical violence beyond that inherent in non-consensual penetrative sexual assault to fall within the range.
[37] In terms of the second reason, the trial judge erred in principle in her treatment of Kirkpatrick when determining sentence.
[38] Assuming there was uncertainty in the law as to when non-consensual condom removal would constitute a sexual assault at the time the respondent committed the offence, the trial judge gave undue weight to that matter for two reasons. First, the respondent did not claim any reliance on the state of the law at the time of the offence. Rather, his defence was based on the myth that consent can be inferred from passivity, a myth which the courts had firmly rejected long before the offence was committed. Second, Kirkpatrick did not provide any direct guidance on sentencing. It clarified that when condom use is a condition of the complainant’s consent, its use is part of the “sexual activity in question” under s. 273.1(1) because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. Having clarified the wrongfulness of non-consensual condom removal, the respondent’s sentencing should have been informed by that improved appreciation: see R. v. De Flores Bermudez, 2024 ONCA 433, at paras. 26-28.
[39] In sum, the caselaw establishes that sentences for penetrative sexual assault are to be in the range of three to five years’ imprisonment. The trial judge gave no principled reason for departing from that range. The factors that she considered in establishing what she viewed to be as the appropriate range are errors in principle and contributed to a manifestly unfit sentence. In the circumstances of this case, given the gravity of the offence, the degree of the respondent’s responsibility, and the harm M.F. suffered, the conditional sentence was clearly inadequate. It is, therefore, demonstrably unfit.
(2) A conditional sentence was not available
[40] A conditional sentence under s. 742.1 of the Criminal Code, RSC 1985, c C-46, may be imposed only if, among other things: (1) the appropriate sentence of imprisonment is less than two years; and (2) it would be consistent with the fundamental purpose and principles of sentencing. In my view, neither condition is met in this case and the trial judge erred in finding to the contrary.
[41] In terms of the first condition, two points demonstrate that an appropriate sentence for this offence was not less than two years in custody.
[42] First, as explained above, the caselaw is clear that a forced penetrative sexual assault typically calls for a penitentiary sentence of between three and five years.
[43] Second, the non-consensual condom removal sexual assault in this case featured a high degree of invasiveness – unprotected vaginal intercourse to the point of full ejaculation inside of M.F. The wrongfulness of the offence was compounded by the degree of the respondent’s responsibility, the victim’s vulnerability, and the severe harm she suffered. The respondent knew that M.F. only consented to vaginal intercourse if he wore a condom. He was M.F.’s friend and agreed to wear a condom, knowing it was her sole form of birth control. The offence was an abuse of an intimate partner and the exploitation of a vulnerable person, which the court was required to consider pursuant to s. 718.201 of the Criminal Code. The actual harm M.F. suffered was severe and life-altering.
[44] As for the second condition in s. 742.1, again, the jurisprudence is clear: conditional sentences are rarely proportionate in sexual assault cases because they are inconsistent with the primary sentencing objectives of deterrence and denunciation which such offences warrant: A.J.K., at para. 83. Those sentencing objectives are firmly engaged in this case, given its high degree of invasiveness and the severe harm it caused the victim. The trial judge erred in failing to give effect to the primary sentencing objectives of denunciation and deterrence, instead giving undue weight to rehabilitative potential.
[45] In conclusion, the trial judge erred in principle in her application of the conditional sentence provisions and those errors had an obvious impact on sentencing. For this reason as well, intervention by this court is warranted.
VI. A Fit Sentence
[46] In my view, in light of all the circumstances, a fit sentence is one of three years’ imprisonment. While the circumstances of the offence and the respondent do not justify a departure from the three to five year range for a sexual assault of this nature, a sentence at the lower end of the range is appropriate. While this was a serious sexual assault with devastating results for M.F., the respondent was a first-time offender, expressed some remorse, has close family ties, and has generally led a prosocial life. The objectives of denunciation and deterrence can be achieved through a three-year sentence while having due regard to the specific circumstances and moral blameworthiness of the respondent.
[47] The question that remains is whether the respondent should now be incarcerated. The parties differ on that matter. Their respective positions are set out below.
(1) The parties’ positions on incarceration
[48] The respondent submits that if the court finds the conditional sentence unfit, it should not require him to serve a custodial sentence. He argues that he has already served 13 months of his conditional sentence[4], which includes ten months on house arrest. Further, if the trial judge had imposed a three-year prison sentence as sought by the Crown at sentencing, he would already be eligible for parole. The respondent submits that a pronouncement by this court that a custodial sentence should have been imposed is sufficient to advance the objectives of denunciation and deterrence, particularly in this case where the respondent has strong rehabilitative prospects.
[49] The Crown acknowledges that incarceration in this case is a “close call”. It argues that this case falls somewhere between R. v. S.W., 2024 ONCA 173, and R. v. R.S., 2023 ONCA 608. In S.W., the offender was sentenced to a conditional sentence of two years less one day, with twelve months’ house arrest and no curfew, followed by one year of probation. He had served over six months of the house arrest portion of his conditional sentence. In S.W., this court found that it was appropriate to require the offender to serve the custodial sentence imposed on appeal, subject to a reduction for time served on a 1:1 basis. In R.S., the offender had fully served his conditional sentence and this court found reincarceration was not appropriate.
[50] The Crown also points to R. v. C.P., 2024 ONCA 783. In C.P., the respondent had served over half of the conditional sentence by the time of the appeal, and might have already received parole had the trial judge imposed the longer sentence in the first place. This court found that those matters weighed against incarcerating the appellant: C.P., at para. 42.
(2) Incarceration is warranted
[51] As noted in S.W., at para. 52, this court’s jurisprudence supports the proposition that incarceration or reincarceration may not be appropriate where the offender has served their whole sentence. Further, incarceration or reincarceration may not be appropriate where a lengthy period of time has elapsed between the imposition of the erroneous sentence and its correction on appellate review: R. v. Hamilton. As Doherty J.A. explained at para. 165 of Hamilton, if the respondents had received the appropriate sentences at trial, they would have been released from custody on parole many months earlier.
[52] The fact the respondent has served over half of his conditional sentence and might already have been released on parole[5] if a fit sentence had originally been imposed weighs against incarceration: C.P., at para. 42. However, in all the circumstances, as in S.W., the interests of justice favour incarceration in this case. The respondent has not fully served the (erroneous) conditional sentence. This was a serious sexual assault that has had devastating effects on the victim. Incarceration for the balance of the sentence is necessary to advance the objectives of denunciation and general and specific deterrence: R. v. H.S., 2014 ONCA 323, at paras. 58, 65; S.W., at paras. 55-56.
VII. Disposition
[53] Accordingly, I would grant leave to appeal sentence, allow the appeal, quash the conditional sentence order, and impose a sentence of three years’ incarceration, with credit to the respondent on a one-for-one basis for the months he has served of his conditional sentence.
“E.E. Gillese J.A.”
Reasons of Fairburn A.C.J.O.
I. Overview
[54] Respectfully, I find myself unable to agree with aspects of my colleague’s approach to this case.
[55] My colleague concludes that the conditional sentence order imposed in this case was demonstrably unfit. In her view, the sentencing judge erred by failing to appreciate the correct range of sentence for this type of offence. My colleague maintains that the sentencing judge provided only two reasons for why the sentence should fall below the range established in R. v. A.J.K., 2022 ONCA 487, and both constitute errors in principle: (1) that the conduct in this case is “qualitatively different in nature” from other penetrative sexual assaults; and (2) that the offence took place before the “changes in the law” resulting from R. v. Kirkpatrick, 2022 SCC 33.
[56] As I will explain, I do not read the sentencing judge’s reasons in the same way as my colleague. On my reading, intervention is not warranted (save for clarifying that the conditional sentence is two years less one day and not two years). This is a case meriting deference.
II. Analysis
[57] In responding to the issues raised by the appellant and my colleague, I begin by addressing the standard of review and then turn to the substantive issues. I do not intend to review the factual background, as it has been comprehensively covered by my colleague in her reasons. Nor do I intend to review the range of sentence, as I agree with my colleague that the A.J.K. range applies.
(1) Standard of Review
[58] An appellate court owes significant deference to the sentencing judge’s decision and can only intervene in limited circumstances: (1) the sentence is demonstrably unfit; or (2) the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, at paras. 41, 44; R. v. Friesen, 2020 SCC 9, at paras. 26-28. Not every error in principle warrants appellate intervention. Such intervention is only justified where the error is shown to have affected the sentence: Lacasse, at para. 44; Friesen, at para. 26.
[59] The Supreme Court of Canada’s reminder in Lacasse of the need to defer to the sentencing judge’s discretion is well founded. The sentencing judge benefits from having seen and heard the witnesses and having heard the sentencing submissions firsthand. To intervene simply because the appellate court might have weighed the relevant factors differently is to “abandon deference altogether” given that “the balancing process is what the exercise of discretion is all about”: Lacasse, at para. 49, citing R. v. McKnight, at para. 35.
[60] The sentencing judge’s discretion extends to the identification of an appropriate sentencing range. On its own, the identification of an inappropriate sentencing range does not constitute an error in principle: Lacasse, at para. 51. Further, deviating from a range does not, in itself, amount to an error of law or an error in principle: Lacasse, at para. 60. After all, ranges are not “straitjackets”: Lacasse, at para. 57. Rather, they are guidelines meant to assist sentencing judges in busy courts.
[61] While “exceptional” circumstances are not needed to justify imposing a sentence outside of a range, the sentencing judge must explain why the sentence imposed deviates significantly from it: R. v. Parranto, 2021 SCC 46, at para. 40.
[62] In my view, the sentence imposed was not demonstrably unfit, the sentencing judge did not commit an error in principle, and she thoughtfully explained her decision to deviate from the A.J.K. range.
(2) The Sentencing Judge Identified the Correct Range
[63] I have nothing to add to the discussion about the correct range of sentence in non-consensual condom removal cases. As the majority of the Supreme Court of Canada made clear in Kirkpatrick, “no, not without a condom” does not mean “yes, without a condom”: Kirkpatrick, at para. 2. In other words, when the sexual activity consented to is sexual intercourse with a condom, the consent does not extend to sexual intercourse without a condom. Therefore, where sexual intercourse is predicated on the use of a condom, and the condom is later removed without consent, there is no consent for the continued sexual activity in question. This constitutes a penetrative sexual assault.
[64] As I read the reasons, the sentencing judge clearly understood that the A.J.K. range applies to penetrative sexual assaults and that it applied in this case. In fact, she highlighted this range in two distinct sections of her reasons.
[65] First, 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.”
[66] Second, 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.
[67] Between 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.
[68] First, the reference was made after the A.J.K. discussion where the sentencing judge correctly identified the range as three to five years.
[69] Second, 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.
[70] As reflected in the sentencing judge’s reasons, there are very few decisions to which she could look for guidance when considering the principle of parity. She noted three such cases, with sentences ranging from 6 months to 18 months in duration: R. v. Hutchinson, 2014 SCC 19; R. v. Lupi, 2019 ONSC 3713; and R. v. Senechal, 2020 NBQB 113. The sentencing judge did not suggest that those cases established a range different from the one set out in A.J.K. What they did, though, was inform the sentencing judge about the kinds of circumstances that attracted certain sentences in the past.
(3) The Sentencing Decision Reflects the Seriousness of the Conduct
[71] In my view, the sentencing judge was not diminishing the inherently serious nature of this offence in commenting that this case is “qualitatively different in nature” than other forms of sexual assault. Indeed, she specifically recognized the offence as an “extremely serious violation of a person’s sexual agency and autonomy.” Yet, the sentencing judge herself noted: “It is very difficult to compare and decide which type of sexual assault is more serious than another. In almost all sexual assaults, victims suffer profound trauma.” I share that observation.
[72] It is important to consider the context surrounding the sentencing judge’s statement concerning “qualitative” differences between non-consensual condom removal and other forms of penetrative sexual assault.
[73] Immediately preceding this statement was the sentencing judge’s consideration of this court’s decision in R. v. S.W., 2024 ONCA 173. In that case, the respondent’s position partially rested on an argument that “forced penetration” in A.J.K. means that, for the range to apply, the offence must involve a degree of violence exceeding the act of non-consensual penetration itself. Favreau J.A., writing for the panel, disagreed, stating that the use of the term “forced penetration” simply references the absence of consent, and that non-consensual sexual intercourse is, by its very nature, violent. She further observed that the presence of additional violence during a sexual assault may act as an aggravating factor, justifying a sentence at the upper end of the range or beyond it: S.W., at para. 39.
[74] This consideration of S.W. led the sentencing judge to make the following observation:
Forced sexual assault in the literal meaning, to describe the physical act of not permitting a victim to move until intercourse has taken place, against their mental and physical will, is at the higher end of the most serious cases. Additional or gratuitous violence, of course, increases the severity of the sentence.
In the case before me there was no planning, the sexual assault was forced in the sense that no consent was given to have intercourse without a condom and its removal took place without the victim’s knowledge.
[75] I do not read the sentencing judge’s reference to the sexual assault being “qualitatively different in nature” as an attempt to diminish its seriousness, but rather to distinguish the types of violence involved. While the sentencing judge acknowledged that non-consensual condom removal constitutes a serious violation of sexual autonomy and is a form of violence, the impugned phrase was used to contrast it with cases involving overt physical restraint or incapacitation. It reflects the sentencing judge’s recognition that not all sexual assaults manifest identically, with some involving additional or gratuitous violence.
[76] In my view, the sentencing judge’s reasons reflect her understanding that all sexual assaults are serious acts of violence and that complainants do suffer profound trauma. As this court said in A.J.K., all sexual assaults “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”: at para. 74. This is as true of condom removal cases as it is with other forms of sexual assault.
[77] That trauma is clear in this case and the sentencing judge was aware of it. She reviewed it in some detail and appropriately considered it as the lead aggravating factor at work in sentencing.
(4) The Impact of Kirkpatrick and the Changing Legal Landscape
[78] The 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.
[79] I read the sentencing judge’s reasons as a clear effort to attend to the principle of proportionality.
[80] This is where the sentencing judge’s alleged second error in principle is said to have arisen. The appellant and my colleague take issue with the sentencing judge’s comment that the Supreme Court of Canada’s decision in Kirkpatrick was decided after the offence in this case and that this was “a factor to consider in determining what is an appropriate sentence.” The appellant and my colleague see this as an erroneous statement of principle. Respectfully, I do not.
[81] In my view, the sentencing judge’s reference to the timing of the Kirkpatrick judgment, relative to the offending conduct in this case, simply underscored that the legal landscape regarding condom removal cases had evolved – or at least been clarified – after the offending conduct in this case. That change or clarification informed the respondent’s degree of moral responsibility in this case.
[82] The sentencing judge quite fairly observed that, prior to Kirkpatrick, the legal framework governing consent in cases of this nature was, at the very least, unsettled. Prior to Kirkpatrick, there existed a viable – if not strong – argument that consent in condom removal cases ought to be assessed through the lens of vitiation by fraud. The deep divisions among judges at both appellate levels in Kirkpatrick serve as a clear illustration of the uncertainty that then prevailed in the law at that time. In the end, the five-judge majority in Kirkpatrick concluded that, in cases involving the removal of a condom, the absence of consent was to be proven not through vitiation of consent by fraud, but in the normal course, by proving that the complainant did not consent to the “sexual activity in question”, namely, sexual intercourse without a condom.
[83] It is with little surprise that the sentencing judge saw this change or clarification in the law as a relevant consideration at the time of sentencing. This is because of how the finding of guilt was arrived at in this case, a path to conviction that informed the proportionality assessment at the time of sentencing, specifically as it pertained to the respondent’s degree of moral responsibility.
[84] To this end, it is important to note that the respondent was found guilty, not because he intentionally deceived the complainant, but because he failed to take reasonable steps to ascertain the complainant’s continued consent after the condom was removed. To this end, the reasons for judgment demonstrate that the sentencing judge never rejected the respondent’s evidence that he told the complainant he was taking the condom off or that he interpreted her continued kissing of him as consent to continue in the absence of a condom. The conviction flowed because the sentencing judge found that, even if the respondent announced the condom removal, the fact is that the complainant did not hear that announcement and, therefore, “even on [the respondent’s] own evidence”, he did not take reasonable steps to ascertain the complainant’s consent to engaging in a different form of sexual activity, namely, sexual intercourse without a condom.
[85] Clearly, the sentencing judge’s reasons for judgment and sentence include no findings of fact that would suggest that this was a planned offence or that there was any intentionally deceptive behaviour on the part of the respondent, something that Kirkpatrick clarified was no longer necessary in order to prove an absence of consent. And that is the relevant context within which the respondent’s moral responsibility was properly calibrated.
(5) Deference is Owed to the Sentencing Judge’s Exercise of Discretion
[86] The offence committed by the respondent is, without question, a serious offence involving a breach of trust. The sentencing principles of denunciation and deterrence are paramount. The sentencing judge expressly acknowledged these principles. The offence also had a profound impact on the victim – an impact the sentencing judge recognized.
[87] That said, as the sentencing judge carefully noted and explained, there were numerous mitigating factors that took the case outside the A.J.K. range. The respondent had no criminal record and was 40 years of age at the time of the offence. He maintains a close relationship with his supportive family, assisting with the care of his ailing parents. He has led a prosocial life, maintaining steady employment throughout. Although he lost his long-term job as a result of the charges, he secured new full-time employment and is currently employed 40 hours per week. He is known by others to be a kind and respectful individual, a characterization consistent with the pre-sentence report, in which the officer in charge described him as “cooperative and honest during the investigation.” The sentencing judge acknowledged that, “while it came late,” the respondent ultimately expressed genuine remorse during his sentencing hearing, as well as an understanding of the trauma his actions caused the complainant. Moreover, he demonstrated a willingness to engage in counselling.
[88] As to this latter point, we are informed by the parties that the respondent has taken counselling specifically tailored to sexual offending. He continues to participate in this counselling, which addresses, among other topics, strategies for maintaining healthy relationships. He has not missed any of his sessions. In addition, he has completed the Partner Assault Response program. He was noted to have participated “respectfully” in the group sessions.
[89] In my view, while the sentencing judge imposed a light sentence – particularly given that it is to be served in the community – light sentences do not make for wrong or erroneous sentences. As always, the sentencing judge had a clear advantage over us. She observed the witnesses in this case, heard the submissions on sentence, clearly understood the basis for convicting the respondent, remained attuned to his moral responsibility, and had a thorough grasp of the seriousness of the offence, the governing legal principles, and the serious impact on the complainant. The balancing of these factors was within the sentencing judge’s jurisdiction. This case calls out for deference.
[90] In the written reasons, the sentencing judge endorsed a term of two years less one day. However, in the oral reasons, the conditional sentence order, and the information, the sentencing judge endorsed a term of two years. Of course, a conditional sentence of two years would be an unlawful sentence. I would set aside that sentence and correct it by imposing a conditional sentence order for a term of two years less a day. The terms remain the same. So too does the one-year period of probation to follow and the related ancillary orders.
III. Conclusion
[91] I would grant leave to appeal the sentence and allow the appeal only to the extent of correcting the sentence to reflect two years less one day.
Released: “July 28, 2025 JMF”
“Fairburn A.C.J.O.”
“I agree. J.C. MacPherson J.A.”
Endnotes
[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.
[2] In her reasons, the trial judge ordered a conditional sentence of two years less a day. However, in the order taken out in this matter, the sentence is stated to be 2 years. The parties are agreed that the sentence is illegal because it is one day longer than the maximum allowable for a conditional sentence.
[3] The date started on the evening of March 26, 2022, but the unprotected sexual intercourse took place in the early hours of March 27, 2022.
[4] As at the date of the oral hearing of the appeal.
[5] See s. 120(1) of the Corrections and Conditional Release Act, SC 1992, c 20.