ONTARIO COURT OF JUSTICE
DATE: 2025-06-26
COURT FILE No.: 4810 998 23 48125988
BETWEEN:
His Majesty the King
— AND —
Samarpreet Singh
Before Justice Sean Gaudet
Heard on March 6, March 7, April 1, June 23, and June 26, 2025
Reasons for Judgment released on June 26, 2025
P. Harris — counsel for the Crown
M. Johal — counsel for the defendant
Gaudet J.:
I. Overview
[1] At the conclusion of this trial, I found Mr. Singh guilty of committing an indecent act with the intent to insult or offend, contrary to section 173(1)(b) of the Criminal Code. This is my decision on sentence.
II. Circumstances of the offence
[2] On December 9, 2023, the victim was alone in her basement apartment when Mr. Singh, then working as a Bell Canada technician, responded to a service call to come to her new residence to install an installation cable for her wifi router. After using the victim’s bathroom, Mr. Singh came out with his pants unzippered and his un-erect penis exposed to the victim. He left his penis out of his pants for a period of some twenty minutes. During this time he made inappropriate comments to the victim about her physical attractiveness, and asked her untoward questions about her dating status, and whether he could find her a job with her employer. The victim was traumatised by this incident.
III. The Position of the Parties on Sentence
[3] The Crown seeks a custodial sentence of 60 days, followed by one year of probation, as well as a DNA Order and a non-communication order with respect to the victim pursuant to section 743.21 of the Criminal Code.
[4] Counsel for Mr. Singh argues that a conditional discharge is a suitable sentence as it would be in the best interests of Mr. Singh and not contrary to the public interest. Alternatively, counsel argues that a suspended sentence would be appropriate, given that Mr. Singh has abided by his undertaking following arrest.
IV. Sentencing Principles
[5] The goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society, while encouraging rehabilitation of offenders and acknowledging the harm does to victims and to the community. The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender. Ultimately, the sentence I impose must be tailored to Mr. Singh’s circumstances and the circumstances of the offence he committed.
[6] In deciding on the appropriate sentence I am guided by the purpose and principles of sentencing set out in the Criminal Code which list the factors a sentencing judge must consider. The principles of deterrence and denunciation must be balanced against Mr. Singh’s prospects of rehabilitation.
[7] I must apply the principle of parity, in other words that sentences for similar offences committed by similar offenders in similar circumstances should be similar. I must also apply the principle of restraint, in that I must consider the least intrusive sentence which will achieve the overall purpose of being an appropriate and just sanction.
[8] I must also consider any relevant aggravating or mitigating factors in determining the appropriate sentence.
V. Personal Circumstances of the Offender
[9] Mr. Singh is 23 years old, and a citizen of India. He has no prior criminal record. He came to Canada on a student visa, and was issued a work permit by Immigration, Refugees and Citizenship Canada (IRCC) in November 2022 that expires in November 2025. Mr. Singh has no dependents in Canada. His goal was to become a Permanent Resident and sponsor his family members to come to Canada.
[10] In the course of making submissions on sentence counsel for Mr. Singh provided the Court with a letter dated June 18, 2025 in which Mr. Singh was notified by the IRCC that he may be inadmissible to Canada as a foreign national pursuant to paragraph 36(2)(a) of the Immigration and Refugee Protection Act (IRPA) “for having been convicted (sic) in Canada of an offence under an Act of Parliament punishable by way of indictment”, although he has been given the opportunity to provide additional information to IRCC before a final decision is made.
VI. Impact on the Victim
[11] The victim provided a Victim Impact Statement which was made Exhibit 1 to the sentencing hearing, in which she describes the emotional, physical and economic impacts the offence has had upon her, as well as the fears for her personal safety resulting from the offence.
[12] It is evident that the offence has had a considerable impact upon the victim. She describes herself as being “tethered” to the incident, and unable to move past it. She has built a wall around herself, and has shut herself off from forming genuine connections with other people.
[13] The victim is less physically active. She experiences anxiety going to the gym or running outside. She has stopped caring about her physical appearance because she does not want to attract attention.
[14] She is less attentive and more unfocussed at work as a result of the mental fatigue and emotional distress caused by the offence, which has led to a decline in her work performance and corresponding feelings of guilt in letting down her employer and colleagues.
[15] As a result of the offence, the victim is now “hyper-aware” that harm can come to her from anywhere, at any time, and from anyone, and this has affected how she moves through the world and how safe she feels within it. She now experiences heightened sensitivity to perceived threats, which causes her to overreact to everyday situations. She ultimately moved out of the area she was living in at the time of the offence in case Mr. Singh ever came back.
VII. Analysis
A. Aggravating Factors
[16] There are a number of aggravating factors in this case.
[17] First, the offence took place in the victim’s home and where she reasonably expected to feel safe and secure from harm. I note that the victim had just recently moved into this residence, and that after the offence took place she moved away because she was afraid that Mr. Singh would return.
[18] Second, the offence occurred over a significant length of time – approximately twenty minutes. This was not a momentary event.
[19] Third, in committing the indecent act of exposing his penis to the victim, I have found that Mr. Singh did not act impulsively but deliberately with the intent to offend her. This was not a spontaneous response to a provocation, as in the case of Boehler v. R., 2019 NBCA 36, where the accused briefly mooned her neighbours when provoked.
[20] Fourth, Mr. Singh’s actions constituted an abuse of his position of trust, a statutorily recognized consideration pursuant to section 718.2(iii) of the Criminal Code. He attended the victim’s residence as a Bell Canada Service technician to install her internet – an essential service in today’s society. She invited him into her home, where she should feel most secure, because she needed him to provide this essential service, and he abused his position and treated her like a sexualized object in her own home.
[21] Most important, it is clear from the Victim Impact Statement, and the victim’s testimony at trial, that the offence has had profound and significant psychological and emotional impacts upon her. This is also a statutorily recognized consideration pursuant to section 718.2(iii.1). Mr. Singh shattered the sense of security the victim felt in her own home. The sense of security people feel when in their own home is a highly cherished value in our society. Mr. Singh took this away from her, and she is still experiencing a profound sense of social anxiety and insecurity because of his actions.
B. Mitigating Factors
[22] At the time of the offence Mr. Singh was 22 years old, and can be qualified as a youthful offender. He has no criminal record.
C. A discharge is not the appropriate sentence in this case
[23] Counsel for the defence argues that a conditional discharge is the appropriate sentence in this case. I do not agree.
[24] A discharge is available where the Court considers it to be in the best interests of the accused and where it is not contrary to the public interest. A discharge is typically meant to be limited to cases where the offence is minor, the accused is a first-time offender, and/or the circumstances of the offence are so mitigating as to make a conviction and ensuing criminal record unduly harsh.
[25] Given the seriousness of this offence, the impact that it had upon the victim, and the prevailing principles of deterrence and denunciation that are applicable in this case, it would be contrary to the public interest to discharge Mr. Singh for this offence. A discharge would not have the necessary or adequate denunciatory and deterrent effect.
[26] Counsel for Mr. Singh referred the Court to a number of cases in support of her position that a conditional discharge was the appropriate sentence: R v. Leboubon, (2012) PCNL 1312A0034; R. v. Seyed-Makki (unreported, May 15, 2019); R v. St. Louis [2008] O.J. No. 4492 and, in particular, R. v. Wei [2020] O.J. No. 5914.
[27] In my view, all of these cases are distinguishable from that of Mr. Singh.
[28] All of these cases involved sentences following guilty pleas, rather than findings of guilt at trial, as in this case.
[29] In some of them (Seyed-Makki, Wei) the offender had undergone counselling to address the underlying reasons for their behaviour, and had accepted responsibility for their actions and/or expressed remorse (Seyed-Makki, Wei, St. Louis).
[30] Unlike this case, Lebourbon involved a joint submission on sentence.
[31] Three of these cases (St. Louis, Seyed-Makki and Lebourbon) were decided before the amendments to the Criminal Code introduced through Bill C-75 that came into force in September 2019, which increased the maximum sentence for section 173(1) from 6 months to two years. It is no longer the case that, as stated by the Court in St. Louis, section 173 is part of the least significantly grave offences in the Criminal Code as measured by the potential maximum penalty.
[32] Counsel relies primarily on the Wei case, where the offender pled guilty to two counts of committing an indecent act and was sentenced to a conditional discharge with 18 months probation. Mr. Wei’s victims were reiki massage therapists. The offender attended massage therapy sessions where he proceeded to masturbate and ejaculate in front of them. Unlike Mr. Singh, the offender had completed upfront counselling sessions and had received positive reports from his doctors and therapists. Unlike Mr. Singh, Mr. Wei had taken steps to address his offending behaviour, had expressed remorse and shame for his behaviour, and expressed awareness that his inappropriate behaviour caused his victims to be fearful.
[33] In deciding that a custodial sentence for Mr. Wei was not required to satisfy the principles of sentencing, the judge noted that there was agreement among his treating physicians and therapists that he had obtained a level of understanding into why he acted as he did, and that he had demonstrated insight into how his conduct impacted his victims. These features are lacking in the case of Mr. Singh. There is no evidence before the Court that he has taken any counselling, therapy or treatment to address his behaviour, or that he has any insight into how his actions have harmed the victim of the offence he committed.
[34] I am cognizant of the principle of restraint and its application, particularly when sentencing a youthful first-time offender. However, in the circumstances of this case, when applying the sentencing principle set out in s. 718.1 of the Criminal Code and having regard to the aggravating and mitigating factors, as well as Mr. Singh’s prospects of rehabilitation, my view is that a custodial sentence should be imposed.
[35] The offence of indecent act encompasses a wide range of activity. Counsel for the Crown provided two cases purporting to demonstrate the range of conduct and sentences that can fall within this offence: Boehler, supra and R. v. Al Khalifa, 2024 NBPC 9.
[36] In Boehler, the accused was a middle-aged woman who, in a moment of exhausted frustration, committed the impulsive act of mooning a neighbour with whom she was feuding when she saw him filming her walking to her home. The incident lasted only a few moments. In allowing the sentence appeal, the New Brunswick Court of Appeal substituted a suspended sentence with an absolute discharge.
[37] Al Khalifa is on the other end of the spectrum. The offender in that case was a taxi driver who was convicted of a summary count of sexual assault and a summary count of wilfully committing an indecent act in a public place, the interior of a taxi cab. In addition to touching the victim’s breasts, the offender in this case opened his fly, pulled out his penis, and guided the victim’s hand on to it for about five seconds, before she pulled it away. The Court in that case imposed 10 months imprisonment to be served consecutively for both offences.
[38] The conduct sanctioned in Al Khalifa was considerably more morally blameworthy than that of Mr. Singh, who did not commit a sexual assault. There are some similarities, however, that make it a case worth considering. The offender in that case was in a position of trust as a taxi driver, the victim was in an enclosed space, and the offender made similar comments to those made by Mr. Singh, namely he told the victim that she was “beautiful” and asked her whether she had a boyfriend.
[39] The offence also had a similar impact on the victim, who was severely impacted by it. The Court noted, at para 17, that the victim feels “constantly exhausted and drained”, noting “it’s hard for me to find the energy to do even the simplest of things because I’m always on edge, always worried. I feel like I’ve lost so much of myself”. This language is strikingly similar to that used by the victim in her Victim Impact Statement in this case.
[40] Given the aggravating factors in the case before me, I find a conditional discharge would be contrary to the public interest and would fail to suitably address the principles of general deterrence and denunciation. A discharge allows for an offender to avoid a criminal conviction. Future employers of Mr. Singh should be aware that he committed this offence in the course of his employment. A custodial sentence is required. The issue is whether it can be served in the community.
D. The Appropriate Sentence – Conditional Sentence and Probation
[41] The preconditions required to allow the Court to impose a conditional sentence are set out in section 742.1 of the Criminal Code. Most of those preconditions have been met in the case at bar. The crux of the matter before me lies in s. 742.1(a) which states:
the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[42] I am particularly mindful that a conditional sentence order must be considered as a potentially reasonable alternative to jail for a first-time offender.
[43] I am satisfied Mr. Singh would not endanger the safety of the community. He has abided by his undertaking following the laying of the charge against him, and I find that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and, more specifically, would adequately address the principles of denunciation and specific deterrence in this case.
[44] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada has held that a conditional sentence can have a denunciatory and deterrent effect, and that generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
[45] A conditional sentence is a substantial sanction. It appropriately reflects the severity of the offence, the offender’s circumstances, the primacy of denunciation and deterrence as well as the principles of restraint and parity. A conditional sentence is consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Criminal Code.
[46] Mr. Singh will serve a 90-day conditional sentence. After he has served the conditional sentence, he will be placed on probation for 12 months. The entirety of the conditional sentence will be served on house arrest. The terms of that order will include a requirement that he have no contact with his victim, always remain 100m away from her, and that he is prohibited from possessing any weapons. He is also ordered to attend for counselling, treatment or programming as directed by his conditional sentence supervisor. These conditions will also be reflected in his probation order.
E. The impact of immigration consequences on the appropriate sentence
[47] Counsel for Mr. Singh argued that a custodial sentence is not warranted because of the collateral immigration consequences it would have upon him, and that for a youthful offender such as Mr. Singh the primary consideration should be rehabilitation.
[48] As the sentencing judge, I am to determine the appropriate sentencing range without consideration of any immigration consequences. Following that determination, I must consider whether a sentence that avoids those consequences may nevertheless be appropriate (see R. v. McKenzie, 2017 ONCA 128, at paras. 29-31).
[49] As Justice Wagner, as he then was, stated in R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, the collateral consequences of a sentence are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender. Collateral consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
[50] As Justice Pringle noted in R. v. Rudder, 2018 ONCJ 348, at para 19, it is essential to appreciate precisely what collateral immigration consequences may be caused in every case. Weighing a consequence where the defendant would be deported and at risk of harm or death is far different than weighing a consequence where the defendant may have difficulty obtaining permanent residence status.
[51] In this case, Mr. Singh is a foreign national who would, by virtue of paragraph 36(2)(a) of the IRPA, become inadmissible to Canada upon conviction of an offence punishable by way of indictment, even if prosecuted summarily (as was this case here). The only way this outcome would be avoided is if he were to be discharged.
[52] As I explained a conditional discharge would be contrary to the public interest and is not appropriate in this case. As a result, a finding of inadmissibility flows from the conviction. Whether Mr. Singh is imposed a custodial or a suspended sentence has no impact on this collateral consequence.
F. Ancillary Orders
[53] A DNA order will be issued for this offence.
[54] My decision on the balance of the conditions of the conditional sentence and probation order will be provided orally.
Released: June 26, 2025
Signed: Justice S. Gaudet