Warning and Non-Publication Order

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Case Information

DATE: February 6, 2025
Information No.: 0411-998-22-11400960
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING v. ALEX ESLIGER

REASONS FOR SENTENCE

DELIVERED BY THE HONOURABLE JUSTICE R. WADDEN
on February 6, 2025, at OTTAWA, Ontario

APPEARANCES:
L. Welch, Counsel for the Crown
C. Dostaler, Counsel for Alex Esliger

Victim Impact

[1] On December 10, 2021, Sgt. Alex Esliger of the Canadian Armed Forces committed a sexual assault on E.L., while they were both deployed on an overseas mission in Erbil, Iraq. This is a case of sexual assault in the Canadian Armed Forces that was tried in civilian court. After trial before me, Sgt. Esliger was convicted and is now before me for sentence.

[2] Alex Esliger was a sergeant in the Canadian Armed Forces in December 2021 and was on deployment in Erbil, Iraq. He had served a long career in the military and had been on previous overseas deployments. The victim, E.L., was a younger member of the Forces, of a lower rank of corporal, and was on her first deployment.

[3] On December 10, 2021, Sgt. Esliger invited E.L. to his quarters for a night of drinking with a small group of other military members who were his good friends. After many hours, E.L. was drunk and Sgt. Esliger persuaded her to go to his bedroom to sleep before she had to report for duty. There were two bunks in the room and E.L. lay on one, wanting to rest before her duty shift. She did not want to be seen on the base before she sobered up, as drinking was not permitted on this deployment in Iraq.

[4] Sgt. Esliger also went into the room. While E.L. was on the bunk, he disrobed and he got into the bunk on which she was laying. Without her consent, he touched her leg and her inner thigh, and removed her pants. He began to digitally penetrate her. He then touched her anus to the point of making it hurt. He tried to perform oral sex on her but she dissuaded him by saying that she was not showered, so he stopped, at which point the digital penetration started again. He took hold of her hand and put it on his penis. He tried to have intercourse with her but was not successful because he was not erect. He kissed her and licked one of her nipples. After the unsuccessful attempt at intercourse, he digitally penetrated her again. The assault ended when E.L. finally told him he had to stop because people were nearby and could hear.

[5] After trial, Mr. Esliger was convicted of one count of sexual assault and he is before me for sentencing.

[6] The parties are far apart in their sentence positions. Counsel for Mr. Esliger seeks a conditional sentence of 18 to 24 months, plus three years of probation. The Crown seeks a penitentiary sentence of three years.

[7] E.L. filed a detailed and moving Victim Impact Statement. She spoke of the feelings she suffered because of the sexual assault, how she felt lost, dirty, stupid, taken advantage of and helpless. She spoke of the difficulty of being in an intimate relationship after this. She said she even felt revulsion at seeing any man who looked like Mr. Esliger in public.

[8] Significantly, she also spoke about the impact on her career. E.L. was a successful member of the military, who put a lot of energy into her career and was recognized for it through promotions. Her deployment to Iraq was part of her rapid advancement. She spoke of the making of this accusation and disclosure of the sexual assault, and how it isolated her. The cascade of consequences from the sexual assault, including the emotional impact it had on her, led her to withdraw her application to special forces and a loss of career opportunities. It impacted her ability to advance as a member of the Armed Forces, a career she loves and for which she seems well-suited.

[9] E.L. concluded by questioning whether she “would do it again, the denunciation and the testifying in court”, recognizing “it was a hell of a journey”. This is a question that many witnesses no doubt ask, and E.L. stated that yes, she would come forward again, recognizing the importance of accountability and the stopping of such behaviours.

Background of Alex Esliger

[10] Turning to the background of Mr. Esliger, I have before me a Presentence Report and letters from family, friends, and professionals who are dealing with Mr. Esliger’s physical and mental health issues. The Presentence Report was prepared by authorities in Alberta, where Mr. Esliger currently lives.

[11] Mr. Esliger is a 40‑year-old married man with two children. He grew up in New Brunswick and joined the Armed Forces as a reservist in 2001 and regular forces in 2006. He started in infantry and climbed the ranks quickly. As a reservist, he was a Master Corporal by 2003. In 2015, he received a Canadian Forces Decoration medal for 12 years of good conduct. In 2022, he was posted to Cold Lake, Alberta as a Warrant Officer. His superiors describe him as being professional and accomplishing all tasks assigned to him. Recently his ability to work full-time has been impaired, reduced to three hours per week due to back pain, mental health and effects of prescription medications.

[12] Mr. Esliger has a stable family life and his wife continues to support him, both in an interview with the probation officer and in a letter filed with the court. Mr. Esliger has a limited social network in his community, although he maintains regular contact with friends across the country by telephone. Numerous letters of support were submitted by his parents and other family members, and by friends who have known him for many years.

[13] Mr. Esliger has some mental health issues, having been diagnosed with Anxiety in 2022, Depression in 2023 and PTSD in 2023, and he has experienced suicidal thoughts. He attends regular counselling with mental health professionals. Although he and collateral sources deny substance abuse issues, he reports that he was placed on counselling and probation by the military for drinking overseas, in 2021. His psychiatrist, Dr. James Hanley, alludes to Mr. Esliger acknowledging that the incident before me resulted from “disinhibition associated with alcohol.” The author of the Presentence Report identified substance abuse, limited peer associations in his current community and mental health as areas of concern.

[14] Mr. Esliger has a significant issue with his physical health, having undergone emergency back surgery shortly before the scheduled sentencing in this matter last year. He was physically immobilized and the imposition of sentence has been adjourned to allow for physiotherapy and recovery.

[15] There will be significant impacts on Mr. Esliger as a result of this sentence. There is a risk he will be discharged from the military and lose his livelihood, which may result in the family having to sell their home and relocate. His wife expressed concern that a period of incarceration will impact Mr. Esliger’s mental health due to separation from his children, and would be detrimental to the stability and structure of their children’s lives.

[16] Mr. Esliger was convicted of sexual assault under s. 271 of the Criminal Code. The maximum penalty is 10 years jail. There is no minimum sentence.

Principles of Sentencing

[17] The procedures and principles of sentencing are set out in ss. 718 to 718.3 of the Criminal Code and include denunciation of unlawful conduct and the harm done to victims, deterrence of the offender and others from committing offences, rehabilitation and promotion of a sense of responsibility and acknowledgement of the harm done. Similarly situated offenders who have committed the same offence should be treated in a similar fashion. This includes consideration of the fact that this is a first conviction and sentence for Mr. Esliger, and principles of restraint apply. The Court must consider the least restrictive sanctions that may be appropriate.

[18] Sentencing is a very specific process, and the sentence must be tailored to each case. As stated in s. 718.2, “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”, including the impact on the victim.

[19] As the Supreme Court stated in R. v. Parranto, 2021 SCC 46, there are no binding starting points for sentence, and ranges suggested by higher courts are “guidelines, not hard and fast rules.” Judges must individualize their approach to sentence for the particular offence committed by the offender, taking into account the harm to the victim and the effect on the community.

[20] The facts of the case before me must be carefully considered. Much has been made in defence submissions that this sexual assault did not involve forced intercourse or penetration with the penis. E.L. testified that Mr. Esliger attempted to penetrate her with his penis but was unsuccessful. Evidence filed on sentencing indicates he suffers from erectile dysfunction. Mr. Esliger did attempt intercourse with E.L. and did repeatedly digitally penetrate her. He tried to perform oral sex on her, and he made digital contact with her anus.

[21] As the Crown noted in submissions, the Supreme Court spoke emphatically on the principles of sentencing for sexual offences in the 2020 decision of R. v. Friesen, 2020 SCC 9, in which the Court cautioned sentencing judges to not simply draw distinctions in sentence based on whether penetration by the penis took place. The Court said, at para. 142, that “courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim.” Sentencing judges must consider the “emotional and psychological harm to the victim that all forms of sexual violence can cause.” To again quote the Court at para. 142, “Sexual violence that does not involve penetration is still ‘extremely serious’ and can have a devasting effect on the victim.”

[22] In the case before me, E.L. was subjected to forced digital penetration and attempts by Mr. Esliger to force intercourse on her.

[23] In R. v. A.J.K., 2022 ONCA 487, the Court of Appeal stated, at paras. 73 to 74, that:

“A sexual assault involving forced penetration is a sexual assault involving forced penetration. […]
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.”

[24] The Court further stated, at para. 68, that:

“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 …”

[25] Citing the Supreme Court in Parranto, the Court of Appeal noted that a range is not fixed but provides guidance to sentencing judges. The Court noted, however, at para. 77, that:

“Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.”

[26] In the case before me, the impact of the sexual assault on E.L. was severe. There is little difference that the penetration was penile or digital, or that the attempts at penile penetration were unsuccessful. The violation was the same. It is worth noting as well that the circumstances of the assault were in a closed, dark room, with E.L. boxed in in a military bunk bed, having been lured there after a night of drinking.

[27] As mentioned, the defence seeks a conditional sentence. Defence has cited a number of cases in which a conditional sentence was imposed for sexual assault. In R. v. Morgan, 2021 ONCJ 100, a conditional sentence of 18 months was imposed; in R. v. Browne, 2021 ONSC 6097, a conditional sentence of two years less a day was imposed; in R. v. Simkins, 2023 ABPC 30, a conditional sentence of two years less a day was imposed; in R. v. G.T., 2022 ONSC 2619, a conditional sentence of 12 months was imposed; in R. v. Holland, 2022 ONSC 1540, a conditional sentence of eight months was imposed; and in R. v. Cacdac, 2022 ONCJ 492, a conditional sentence was imposed.

[28] The defence also relied on the more recent decision of R. v. L.H., 2024 ONCJ 103, in which a conditional sentence was sought but the Court imposed an 18-month jail sentence for a sexual assault with intercourse. In that case, it is noteworthy that the 18 months was the maximum sentence available since the Crown had, perhaps erroneously, proceeded summarily. The sentencing judge rejected a conditional sentence, finding, at para. 32, that:

“… a conditional sentence of imprisonment must also be consistent with the fundamental principles of sentencing set out in the Criminal Code. I find that, in this case, a conditional sentence of imprisonment would not be proportionate to the gravity of the offence nor adequately fulfill the principles of denunciation and deterrence. The seriousness of the offence, the significant violation of the victim’s sexual and physical integrity and the impact on the victim requires a custodial sentence.”

[29] In R. v. S.W., 2024 ONCA 173, the Court of Appeal also considered a case of sexual assault by intercourse, and reversed the conditional sentence imposed by the trial judge in that case. The Court held, at para. 46:

“It appears that the trial judge may have been influenced by the fact that the respondent was a first-time offender, had a strong relationship with his parents and children, and had good and stable employment. However, these considerations do not justify the imposition of a sentence below two years, which is required before a conditional sentence can be imposed. Given the seriousness of the offence, and in the absence of any factors that would justify departing from the three to five years sentencing range, the conditional sentence of two years less a day does not sufficiently meet the objectives of denunciation and deterrence which, as held in A.J.K., at para 83, are an ‘overarching sentencing principle’ in cases of this nature.”

[30] That Court held that a three-year sentence was fit in that case, holding that such a sentence at the lower end of the range was appropriate for a first-time offender with close family ties and support.

[31] Without parsing the details of each of the conditional sentence cases cited by the defence, it is clear that there are circumstances in which conditional sentences have been imposed for sexual assault offences even since the Supreme Court decision in Friesen, and some may have been imposed since the Court of Appeal decision in R. v. A.J.K. However, on my reading of the law, the Court of Appeal in the R. v. S.W. decision has continued to develop the law to make it clear that principles of denunciation and deterrence require the imposition of a penitentiary sentence in cases of a penetrative sexual assault, absent highly exceptional circumstances. The Court made it clear that the circumstances of the offender in that case, which are similar to those of Mr. Esliger, did not justify departing from the range of three to five years and the imposition of a conditional sentence.

Mitigating and Aggravating Factors

[32] In considering the mitigating and aggravating factors in this case, I will begin with the mitigating factors, which are the personal circumstances of Mr. Esliger. He is before the court as a first offender, with no criminal record. He has strong support from his family, including his wife, and friends in the community. Aside from this offence, he appears to be of good character. He has had long and steady employment in the Canadian Armed Forces, having advanced well in his career and having served his country on numerous overseas deployments. He has mental health issues and will require ongoing psychological and psychiatric treatment. He has physical issues, notably his recovery from back surgery for which he has spent most of the last year.

[33] The aggravating factors include the victimization of E.L., a fellow member of the Armed Forces, on a military base where she was a relative newcomer and outsider to the group stationed there. Mr. Esliger took advantage of her state after a night of drinking and the military context made this worse for her, since she knew that none of the deployed members were permitted to be drinking. Mr. Esliger assaulted her as she was pinned between his heavy body and a wall, in a bunk bed, in a pitch-dark room. He violated her physical integrity by penetrating her with his fingers, licking her nipples and attempting oral sex and intercourse.

[34] The impact on E.L. was severe. Her reporting of this crime resulted in further loss to her. She felt ostracized and her military career suffered. She suffered significant psychological harm. Her detailed statement describing the hardship subsequent to the assault, including the court process, is poignant and illustrates what was described by Associate Chief Justice Fairburn in A.J.K., “victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered”.

[35] It is aggravating that this assault took place in a military context. As E.L. was on deployment overseas, her movements and interactions were limited to those with whom she was serving. Members serving on these deployments are isolated from family and friends and the familiarity and safety of home. At the very least, serving members would expect a supportive and safe environment with their fellow members, on base. To sexually violate E.L. in that situation is aggravating.

[36] In R. v. Royes, 2013 CM 4034, a Court Martial case, a military judge imposed a sentence of three years on a Master Corporal for a sexual assault on a fellow member whom he took advantage of while she was drunk. The military judge, Lieutenant-Colonel Perron, said, at para. 33, that a sexual assault:

“… is a most heinous crime in the military context and it is far from being a simple breach of discipline. It is both a crime against the physical, psychological and emotional integrity of the victim and against the dignity of the victim as well as a significant attack on our values of respect and trust between fellow service members.”

[37] He went on to describe, at para. 34:

“… the impact this sexual assault has on the fundamental principles of cohesion, trust and respect that are needed to ensure a strong and disciplined military force. […] this type of conduct hurts the victim and degrades our operational capacity.”

[38] In this case, principles of denunciation and deterrence are paramount. Society must denounce all forms of sexual violence. Other men in similar situations to Mr. Esliger, whether in a military or civilian context, must be deterred from committing acts that violate the sexual integrity of a victim.

[39] Mr. Esliger is to be given credit for his lack of a criminal record, for the fact that this is a first conviction and jail sentence for him, and for the other positive factors of his personal circumstances that have been presented before me. I find that the appropriate range of sentence for the sexual assault he committed on E.L. is three to five years; Mr. Esliger will be given a sentence at the bottom end of that range.

[40] The sentence to be imposed on Mr. Esliger is three years jail, to be served in a federal penitentiary. Recommendations are to go for the treatment of Mr. Esliger’s physical ailments and his psychiatric, psychological and alcohol issues.

[41] There will be a SOIRA order for the sexual assault registry, for 20 years.

[42] There will be a prohibition on the ownership of any firearms, ammunition or explosive substances, except for possible possession in the military context, for 10 years.

[43] The statutory time can apply for the Victim Surcharge.

[44] Stand up, Mr. Esliger.

[45] Mr. Esliger, my sentence is that you be imprisoned for three years, and subject to a SOIRA order, and a sample is to be taken, and you are prohibited from firearms for 10 years. You can have a seat, sir.

Court Discussion

C. Dostaler: Your Honour, I apologize.
THE COURT: Yes.
C. Dostaler: I didn’t hear about the victim fine surcharge.
THE COURT: The statutory time, unless you’re seeking an extension.
C. Dostaler: I would ask, Your Honour, if we could waive it even. At this point, Mr. Esliger will not be working for that period of time. His family won’t have much income.
THE COURT: It’s a $200 charge. The Criminal Code is clear that it can be waived if a person is impecunious. I see many impecunious people come before me, but Mr. Esliger is employed and he can pay a $200 surcharge.
C. Dostaler: Okay.
THE COURT: Does he need more than 30 days or can it be paid within that time?
C. Dostaler: He’ll be in custody, so I would ask for longer than that, Your Honour. If we can have at least the three years that he is in custody.
THE COURT: Arrangements can be made. I will allow three months so that he can figure out the exact arrangements, but it is simply a matter of making that payment to the Ministry.
C. Dostaler: Okay.
CLERK REGISTRAR: The weapons prohibition, is it 109?
THE COURT: 109.
C. Dostaler: Now, the other thing, Your Honour, is just – I’m sure you’re aware, Mr. Esliger has many medications. He’s brought his medications with him. He also has his prescriptions. I have them digital as well, I’ve been able to digitize them as well. He will bring them with him, but I wonder if we can attach it to the Information just so that it doesn’t get lost with all the help he needs to have.
...DISCUSSING DOCUMENTS TO BE ATTACHED TO INFORMATION AND SENT TO CORRECTIONAL SERVICE OF CANADA
THE COURT: Mr. Esliger, make sure you make clear to the intake both at the detention centre where you will be held until you are sent to the federal system, make sure you make it clear to them what you need, sir, and then when you are processed for intake in the federal system, make sure you go through that again with them. Don’t assume anything follows along.
ALEX ESLIGER: Certainly.
THE COURT: You may have to keep on them in the provincial while you are waiting, you may have to keep on them a bit more. I expect you will be well taken care of, free medical needs in the federal system.
ALEX ESLIGER: Yes, Your Honour.

Certificate of Transcript

FORM 3
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcript, produced to the best of my skills and ability, of the recording of R. v. Alex Esliger in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR10_20250206_092932__6_WADDENR, which has been certified in Form 1 by Emma Baker.

February 10, 2025
Date Electronic signature of
Lynn Carrière, ACT ID 2366775200
Ontario, Canada

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.