WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court Information

Ontario Court of Justice

Date: October 8, 2025

Location: Kenora

Between:

His Majesty the King

— and —

Justin Fraser

Before: Justice Evelyn J. Baxter

Heard: September 8, 2025

Reasons for Sentence Released: October 8, 2025

Counsel:

• Roxanne Derouard, counsel for the Crown
• Phaedra Olinyk, counsel for the accused Justin Fraser

Reasons for Sentence

Baxter J.:

Introduction

[1] The following are my reasons for sentence on the guilty plea entered by the accused to one count of sexual assault contrary to s. 271 of the Criminal Code. The accused entered his guilty plea while participating in Kenora's Mental Health Court.

[2] The crown proceeded by way of indictment, and the accused elected to be tried in the Ontario Court of Justice. The accused entered his guilty plea on December 4, 2024, and engaged in up front work by participating in Mental Health Court. Gladue and pre-sentence reports were requested/ordered and prepared before the sentencing hearing commenced.

Facts

[3] The accused admitted the following facts, after which I made a finding of guilt. On September 10, 2022, the victim, K.W. and her friend, H, were at a Kenora hotel bar. Later that night on September 11, both females were outside the bar, and the accused showed up. The accused was known to K.W. as they used to date. After leaving the bar, the trio went to K.W.'s apartment with the accused. At some point the friend left, and K.W. woke up at 8 am to discover she was naked and lying in bed with the accused. He told her they had unprotected sex that night. K.W. told him to leave. He got upset and called her offensive names. He gathered his belongings and left. K.W. called her friend and was advised to go to the hospital to be examined. K.W. does not recall the night as she was intoxicated and could not give consent for the sexual intercourse.

[4] The DNA testing could not exclude the accused as a donor to the mixture of the vaginal swab of K.W. The testing means there was a 6.8 billion times chance they were the only possible DNA donors.

Sentencing Submissions

[5] In this case, the crown seeks a reformatory sentence of two years less one day, 18 months probation, a DNA order, s. 109 prohibition for 10 years, no contact order and a 20-year SOIRA order.

[6] The defence seeks a conditional sentence of two years less one day and joins the crown on all the ancillary orders.

Reports

[7] Gladue, pre-sentence, and diagnostic reports were filed to assist in this matter. In addition, a victim impact statement was filed.

[8] The accused is now 26 years of age. He was 23 at the time of the offence. He does not have a criminal record.

[9] The crown's justification for the sentence it is seeking is based on the aggravating factors present. The victim is Indigenous, and the offence had a profound impact on her. S. 718.04 also directs, because of the victim's Indigeneity, denunciation and deterrence are primary considerations the court must take into account in sentencing.

[10] The accused's particular intellectual and mental health challenges are acknowledged by the crown, and along with his Gladue factors, are matters to be considered by the court when analysing the principle of rehabilitation. While proportionality is the fundamental sentencing principle, the primary principle here is denunciation and deterrence.

[11] In this case the crown argued, the accused did not control his alcohol consumption, and he did not take steps to ensure he obtained the victim's consent before engaging in sexual activity with her. While his IQ is "borderline" he knows right from wrong and can make decisions.

[12] The crown argued in an invasive or penetrative sexual assault, a CSO is not fit or appropriate as it could undermine the public's confidence in the justice system and go against the directives of Parliament and higher courts. In this case actual custody is warranted. The crown took all of the accused's circumstances into account when they opted for a reformatory rather than a three-year prison sentence, which is below the range outlined in Freisen and other cases.

[13] The crown referred the court to the Superior Court of Ontario decision in R. v. Stinson, 2025 ONSC 3190 to indicate a CSO in that case was unfit. The crown also distinguished R. v. Trudeau, 2024 ONCJ 119 (upheld on appeal 2025 ONSC 982) noting the accused Trudeau's intellectual and other challenges were worse than those of the accused Fraser, thereby disqualifying the accused Fraser from a CSO, in the crown's submission.

[14] Defence counsel acknowledged a CSO should be given only in rare circumstances, and this is such a case. This is a serious sexual assault. The accused is taking responsibility, and admits he was very intoxicated and does not recall all details, and it is his position he has no defence.

[15] Defence asked the court to consider the accused's reduced moral culpability, the mitigating factors, and the reports provided. She also submitted a CSO can achieve the principles of denunciation and deterrence. The accused has been in Mental Health Court for nearly two years and has been on release for nearly three years without new charges to date. He is well supervised and supported with his worker and other programs and services. The accused is a person who cannot live independently. The court is also to consider the principles of restraint and rehabilitation, particularly for a young Indigenous man with no criminal record.

Reports

[16] The reports generated to assist in the sentencing will be summarized below. I reviewed the Gladue Report, Pre-sentence Report, and assessment by psychiatrist, Dr. Klassen (April 12, 2024).

Gladue Report

[17] According to the Gladue Report, the accused is a member of Wauzhushk Onigum First Nation. He was born to his mother when she was just 16 years of age. He has no relationship with his father. He has no deep connections to his family. He is estranged from his mother who suffers from her own challenges with her having lost her eyesight and suffering from substance use issues. She is believed to be unhoused in London.

[18] The accused's great-grandmother had been sent to residential school at Shoal Lake (later to become the Cecilia Jeffrey IRS in Kenora), and the accused's grandfather was sent to St. Mary's IRS at Wauzhushk Onigum where he suffered sexual and physical abuse.

[19] It appears from the information gathered by the Gladue writer, the accused's mother consumed alcohol while she was pregnant with him. His mother has had struggles with alcohol since her teen years resulting from significant trauma she experienced at that time in her life.

[20] It was reported the accused harbours anger toward his mother. He has younger siblings but does not have much of a relationship with them. The accused was placed in care before he was a year old. He has no connection to his father's family or community of Wabeseemoong. It appears he has significant abandonment issues. His father passed away in 2021.

[21] The accused left school at age 13 because he found it boring. He noted he has ADHD. When he was young, the medication made him feel like a "zombie". He has no interest in continuing his education. The accused described himself as "…the lights are on but nobody's home" (Gladue Report, page 8).

[22] The accused said he started drinking at age 12 and does occasionally use cannabis. He prefers beer and drinks whenever he can afford to buy it. He cannot recall any periods of sobriety but says he can control his drinking when he needs to. He said he doesn't drink to blackout anymore, and drinks more casually. He expressed he does not need to go to rehab, because if he needs to stop drinking, he will just stop.

[23] The accused has a limited employment history. He may have a job at a local hotel once his charge is dealt with. He worked at the hotel prior to the charge before this Court but had a conflict with a co-worker (the victim here, I am to understand), and he lost the job.

[24] The accused has no real connection to his culture and did not express any interest in learning.

[25] With respect to the charge here, the accused noted he was "hammered…close to being blackout drunk". (Gladue Report, page 12)

Pre-Sentence Report

[26] The PSR focussed on the accused's family history, which provided significant detail about the intergenerational trauma he carries. The accused was not able to provide a lot of detail or information to the writer. He was raised by his maternal aunt and uncle under what appears to be a form of kin placement or customary care agreement. He was discharged from the child welfare agency's care, but the accused voluntarily signed himself into care after his aunt and uncle divorced. He had a relatively stable upbringing with them.

[27] The accused lived in a group home until age 18 when he began to receive assistance from the Kenora Association for Community Living (KACL) and is financially supported by Ontario Disability Support Program (ODSP). He lives in his own apartment but is supervised and supported by KACL and a personal worker.

[28] In school the accused was diagnosed as having some behavioural issues, and he was delayed in his "receptive and expressive language skills" with a "mild articulation delay". FASD was suspected but not confirmed. He left school in Grade 9.

[29] The KACL worker confirmed to the PSR writer the accused has been diagnosed with ADHD, Alcohol-related Neurodevelopmental Disorder (ARNDS), Oppositional Defiant Disorder (ODD), suspected autism and a language disorder. In addition, the accused is connected with services with Developmental Service Ontario. He did not engage well or long enough with counselling services while awaiting the completion of his charge in Mental Health Court.

[30] The accused noted he does not have any friends, except his "bar" friends. He identifies as bi-sexual with strong attraction to males. He has not had any long-term relationships but was involved with the victim prior to the offence, but the relationship did not last. His mental health and cognitive challenges prevent him from forming relationships or to setting goals for himself. As a result, the accused has a lot of free or unstructured time in his day-to-day life.

Psychiatric Assessment

[31] Dr. Klassen's assessment of the accused includes similar personal and family history as the other reports. An earlier report of another doctor, Dr. Stambrook, dated January 6, 2017, concluded the accused has an IQ of 72 with borderline intellectual function and superimposed language-related disability. The other diagnoses noted above are confirmed; however, a diagnosis of FASD could not be located in the records, but the ARNDS diagnosis may support a finding of FASD.

[32] Dr. Klassen noted in his assessment of the accused that he functions at the 21st percentile on the culture-fair test of intelligence (TONI-4). His academic skills are at a grade 4 level, which is the basis for his DSO funding. The accused can be impulsive when under duress or intoxicated.

[33] Dr. Klassen described the accused as alert, oriented, and he was able to develop some rapport with him. He did not note any significant disturbances or the presence of psychosis. He does have attachment issues. The accused has more vulnerabilities than he demonstrates but is also "crisp and linear in his thinking".

Victim Impact Statement

[34] A Victim Impact Statement was read into the record by the Crown. K.W. did not attend court for the sentencing hearing. The statement was brief, but K.W. indicated she is in fear of encountering the accused while out and about. She is seeking professional help and is grateful for her support network of family, friends and co-workers. She is prioritizing her mental health and trying to move on from this incident and other trauma she alluded to in her statement.

Jurisprudence

[35] The court was referred to some jurisprudence to support the sentence being suggested by the parties.

[36] The crown relied on R. v. Stinson, 2025 ONSC 3190, to show a CSO in this case would not be an appropriate sentence for the accused. However, I agree with defence in that this case is not on point with the case at bar. The Stinson decision involves a sentence appeal by the crown. The facts of the sexual assault in that case are not the same type of sexual assault in the instant case. There was significant physical and sexual violence and a forcible confinement toward the victim. The accused Stinson did not exhibit the same type of personal challenges the accused Fraser has. The offences in Stinson were in an intimate partner context.

[37] The only similarity is that the accused Stinson was Indigenous, and a Gladue report was prepared. At the time of sentencing the accused Stinson had done up front work and was over one year sober.

[38] On the other hand, the Stinson decision is helpful in instructing a sentencing judge about the availability of a conditional sentence for Indigenous offenders in sexual assault cases. The principles of sentencing are clearly set out in terms of the rarity of CSO in such cases. Where the crown proceeds by way of indictment, the range of sentencing starts at 3 to 5 years. While noting a range is just that – a range, it is a tool for judges to know where to start. Departing from the range is entirely appropriate in certain circumstances (see paragraph 20).

[39] Paragraph 17 of Stinson is also helpful in terms of understanding the principle of proportionality: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code.

[40] Clearly, as set out in the Criminal Code, denunciation and deterrence are of paramount consideration in sexual assault cases, especially in cases where an Indigenous woman is the victim.

[41] I also note at paragraph 26 of Stinson that Gladue factors can reduce an offender's moral culpability, but the factors do not render a conditional sentence proportionate when a sentence fails to consider denunciation and deterrence.

[42] In R. v. Trudeau, 2024 ONCJ 119, upheld by the Superior Court of Justice, Wolfe J.'s analysis of the sentencing principles to be considered and applied for Indigenous offenders who have committed sexual assault is an excellent overview and is one with which I certainly agree and adopt in my reasoning and analysis in the present case.

[43] In paragraphs 54 and 55, the court considered the reduction of an offender's moral culpability because of a cognitive disability. While the accused Trudeau's intellectual challenges appear to be more severe than that of the accused Fraser, I note the accused Fraser's other diagnoses are of significance when analyzing his moral culpability. Nonetheless, the observations made in Trudeau are valid.

[44] I was also referred to R. v. Nanibush [2024] OJ No. 498, for the instruction regarding conditional sentences and the directive provided in R. v. Proulx, 2000 SCC 5. Nanibush involved an Indigenous offender, and the victim was a young Indigenous female under the age of 18. It was an offence committed in the context of an intimate partner relationship. The court acknowledged the youthfulness of the offender, that he was Indigenous, had no criminal record, pleaded guilty (expression of remorse) and who had Gladue factors. The 12-month conditional sentence imposed by the sentencing judge was upheld.

[45] I referred to R. v. Chakasim, 2025 ONCJ 171, simply to review the sentencing principles the court applied to an Indigenous offender who struggled with FASD, substance abuse issues, poverty and unstable housing. See paragraphs 21 to 33.

Analysis

[46] Turning now to the accused and the sentence to be imposed on him. The sentencing provisions of the Criminal Code instruct protecting society, contributing to respect for the law and helping to maintain a just, peaceful, and safe society are the goals of sentencing. (See s.718)

[47] Imposing just sanctions that address the applicable or relevant sentencing principles contained in the Criminal Code ensure sentencing judges are crafting fit and appropriate sentences. These principles include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f))

[48] Ultimately, the fundamental goal of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to the accused's circumstances, and the circumstances of the offence he committed.

[49] Sentencing is not an exact science. It is a very individualized task that necessarily takes into account any relevant aggravating or mitigating factors present that are helpful in arriving at a fit and appropriate sentence. (See s. 718.2(a)) This also includes features of the accused's background, features of the crime he has committed, the timing of his guilty plea, and any other evidence I have received during this sentencing hearing. It would also include any legal direction, whether found in the Criminal Code, or provided by the higher courts, regarding aspects of this case that I must consider.

[50] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I find the following aggravating and mitigating features of this case:

Aggravating Factors

[51] The aggravating factors:

• This is a serious sexual assault involving vaginal penetration. The victim was not capable of consenting to sexual activity given her level of intoxication.
• The accused did not use protection.
• K.W. is Anishnaabe-Kwe, making her a statutorily vulnerable victim.
• The sexual assault had a serious, ongoing impact on her.
• The accused did not control his alcohol intake.
• The accused hasn't fully engaged in rehabilitation to address his substance use issue.

Mitigating Factors

[52] The mitigating factors:

• The accused has no criminal record.
• He is a youthful Indigenous offender; in that he was 23 at the time of the offence.
• He has pled guilty, thereby sparing the victim the trauma of a trial and avoiding the cost of a trial.
• He has significant Gladue factors.
• He has participated in Mental Health Court for about two years, albeit not to the level that others do, but he did what he was capable of.
• He has been on a strict release for nearly 3 years with no new charges.
• He has significant intellectual, mental health and substance use challenges which reduce his moral blameworthiness.
• He is not capable of living fully independently and is supported by services and a worker in Kenora who has daily involvement with him.
• No weapon was involved, and no additional physical violence was used in the commission of the offence.

Moral Culpability and Proportionality

[53] Having regard to the materials, submissions, the jurisprudence and the directives in the Criminal Code, I find the accused's moral blameworthiness is reduced. This is not a fact situation involving a child like that in Freisen where the Supreme Court of Canada ascribed a high moral blameworthiness to perpetrators of sexual assault on children. In addition, all sexual assaults are serious acts of violence that can have deep, lasting and profound impacts on victims. That is clearly acknowledged here.

[54] The circumstances of the offence committed here are not similar to the facts in the Stinson case. That case can be distinguished on its facts, and the finding by the Superior Court that a CSO was not fit or appropriate given the level of violence, the unlawful confinement and the mindset of the offender. In the instant case, there is no evidence of any additional violence. While sexual assault is inherently violent and violating, the accused did not commit any additional violence, did not use a weapon and did not commit any additional offences against K.W. in the commission of the index offence.

[55] Like the Trudeau case, the accused has similar challenges in his community, family and personal backgrounds and in his diagnoses – actual and suspected. In fact, I note the accused Trudeau did not suffer from the same type or amount of mental health diagnoses, and his psychological report outlining his cognitive deficits was much more dated than the accused Fraser's.

[56] In examining proportionality and parity, the accused's circumstances and the circumstances of the offence are more in line with the Trudeau decision than not, except for the fact the crown in Trudeau proceeded by summary conviction, thereby reducing the accused Trudeau's jeopardy. Here, the accused's jeopardy is higher given the indictable proceedings allow a maximum sentence of 10 years imprisonment pursuant to s. 271 of the Criminal Code.

[57] With respect to parity, the accused Trudeau received a CSO of 18 months duration, while the defence here is seeking a two-year, less one day CSO for less serious facts than those in Trudeau.

[58] In Nanibush, a 12-month CSO for a penetrative sexual assault on a victim under the age of 18 was upheld on appeal. It was an offence committed in an intimate partner situation. The offender there was a young Indigenous male who had a number of Gladue factors but no apparent intellectual or mental health challenges.

[59] Courts have sentenced offenders for sexual assaults that cover a range of seriousness with a range of sentences, both custodial and non-custodial. For penetrative sexual assaults, the sentence range starts at 3 years imprisonment. Ranges are helpful in informing judges of how certain cases are to be dealt with in certain circumstances, but ranges are also not set in stone. Ranges are guidelines, and judges have the discretion to determine fit and appropriate sentences according to law and the offender's particular circumstances. Where circumstances warrant, a judge can go below or above a range. (see paragraph 20 in Stinson)

[60] Parliament and the courts have determined sexual assault requires a judge to prioritize denunciation and deterrence (general and specific). In many instances, incarceration is the most appropriate sanction for certain offenders based on the facts of the cases.

Conditional Sentence and Sentencing Principles

[61] It is settled law a CSO can achieve the goals of denunciation and deterrence in appropriate cases. It is also settled that in Gladue the Supreme Court questioned the effectiveness of imprisonment as sentences for Indigenous people. The overincarceration of Indigenous people is Canada is a continuing issue, and it does not appear the remedial sentencing provisions of the Criminal Code and other judgments are having the intended impact. (See paragraph 32 of Trudeau)

[62] When sentencing Indigenous offenders, the sentencing principle of restraint is important, and more so when dealing with an Indigenous offender who has a reduced moral blameworthiness because of their Gladue factors and other relevant personal circumstances. Restraint also addresses the attempt to remedy or correct the injustices Indigenous people have suffered in Canada since colonization. Parliament had this in mind when s. 718.2 (e) of the Criminal Code was enacted.

[63] Paragraph 35 of Trudeau reads: "That said, s. 718.2 (e) is not about artificially reducing incarceration rates but rather is a direction to sentencing judges to 'abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community (Ipeelee, at para 74)'"

[64] Further, the emphasis on the seriousness of an offence above all the other sentencing principles can render the remedial nature of s. 718.2 (e) ineffective and can result in using jail as a default position, which is contrary to the Supreme Court's guidance in Ipeelee and Gladue. (see paragraph 38 of Trudeau)

[65] Paragraphs 26 and 27 in Chakasim are also apropos:

[26] The Ontario Court of Appeal explained in R. v. King, 2022 ONCA 665, that judges, when exercising their discretionary power, must be aware of the realities of the Indigenous peoples who appear before them. The Court wrote the following at para. 170:

…By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in "lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably.

[27] Furthermore, the Supreme Court of Canada has directed trial judges to consider the potential impact of a proposed sentence on the individual before them. Regarding Indigenous Canadians, in R. v. Hilbach, 2023 SCC 3, the Supreme Court noted that "the effects of a sentencing measure may be particularly severe when circumstances affecting Indigenous offenders are considered": see para. 45.

Proulx Criteria for Conditional Sentence

[66] The Supreme Court in R. v. Proulx 2000 SCC 5, set out four criteria for a conditional sentence:

a. The offender must be convicted of an offence that is eligible for a conditional sentence;

b. the court must impose a term of imprisonment that is less than two years;

c. the safety of the community would not be endangered by the offender serving the sentence in the community, and

d. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[67] In this case, the first two criteria are met. The crown has concerns the accused cannot meet the third and fourth criteria.

[68] I find the accused would not be a danger to the community at large with a conditional sentence that contains conditions to ensure his liberty is curtailed, and that he is properly supervised. As it is, the accused has a support worker with KACL who interacts with him daily. It was noted by his worker he cannot live fully independently. With a conditional sentence supervisor working with the accused and his support workers at KACL, I am satisfied the community safety can be maintained. Moreover, he has been on strict release conditions for three years and has not attracted any new charges.

[69] As for the fourth criteria, the very purposes of the sentencing provisions of the Criminal Code would be met with a conditional sentence, especially because the accused is a young Indigenous offender. Denunciation and deterrence can be achieved with a conditional sentence. Sending an offender such as the accused to a real jail could have the exact opposite effect given his challenges and disabilities. He may come out of jail far worse than he is now with regular exposure to other offenders who may indoctrinate him with troublesome notions and behaviours, which may be contrary to the principle of rehabilitation.

[70] Following a CSO, a probation order will assist in continuing to monitor and support the accused in his rehabilitation and to prevent him having contact with K.W. In addition to the ancillary orders requested, community and K.W.'s safety are further addressed.

Sentence

[71] Therefore, I will place the accused on a conditional sentence order for two years, less one day. A conditional sentence is a custodial sentence that is served in the community rather than an actual jail.

[72] Following the completion of the conditional sentence, you will be placed on probation for 18 months.

[73] In addition, you are to provide a sample of your DNA to the Ontario Provincial Police Service within seven days.

[74] You will be subject to a s. 109 weapons prohibition order for a period of 10 years starting today.

[75] Finally, you are required to comply with the reporting provisions of the SOIRA for a period of twenty years.

[76] I thank counsel for their submissions, and I truly hope K.W. finds healing and strength to move forward in her life.

Released: October 8, 2025

Signed: Justice E J Baxter