CITATION: R. v. J.S. 2025 ONSC 3501

COURT FILE NO.: CRIM J(P) 23/498

DATE: 2025 06 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

C. Presswood, for the Crown

• and -

J.S.S a.k.a J.S

A. Mamo, for J.S.

HEARD: May 12, 2025

REASONS FOR SENTENCE

Fowler Byrne J.

I. Introduction

1On March 12, 2024, after a trial before a judge and jury, J.S. was found guilty of two counts of sexual assault as against his then wife, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.

II. Circumstances of the Offence

2Given that this was a trial before a jury, I am required to accept all proven facts, express or implied, that are essential to the jury’s verdict: Criminal Code, s. 724(2). In this case, the verdict rendered by the jury provides me with a clear picture of what they found to be the facts of this case.

3First, on or about January 13, 2022, J.S. and the Complainant were in their bedroom. J.S. asked the Complainant to perform fellatio. When she refused, he ripped her night shirt and forcefully had vaginal sex with her. The force of the intercourse caused the Complainant to experience some vaginal bleeding, which stopped by the next morning.

4On or about February 22, 2022, they were again in the bedroom, lying on the bed. Suddenly and without asking he took off her clothes and forced her to have vaginal sex. She took photos the next day of her breast area and her lip area where he bit her.

5While J.S. had no specific recollection of these two events, he stated that all sexual activities between him and the Complainant were with her consent. Given the finding of guilt on both counts, it is clear that the jury found that on both occasions, the Complainant did not consent to his sexual contact and that he knew that she did not.

III. Circumstances of the Offender

6J.S. is currently 31 years old and was 28 years old at the time of the offences.

7J.S. was born in India. He met the Complainant online. She travelled to India in November 2019, and they were married. She stayed in India for approximately one month before returning to Canada. J.S. was not able to come to Canada until February 2021 when he obtained a work permit. Once he arrived, he and the Complainant lived with his sister. Although the Complainant applied to get her permanent residency on her own, she was urged to apply with J.S. as a couple. J.S. and the Complainant were successful, and on February 16, 2022, they obtained permanent resident status in Canada.

8The parties separated in early March 2022, when the Complainant left the home. They have not reconciled nor is there any expectation that they will.

9J.S. is able-bodied and has been steadily employed since arriving in Canada. He and the Complainant never had any children. J.S. has no criminal record.

10I have had the benefit of a pre-sentencing report, which was prepared on February 4, 2025.

11J.S. reports having a good childhood and continues to have a close-knit family. He suffered no abuse or trauma as a child. His family is aware of these charges, and they continue to support him. They all now live in Canada.

12J.S. has a high school education from India and obtained some post-secondary trades training in India. He denied any substance abuse issues, although they were alleged by the Complainant. Since these charges were laid, J.S. has been referred to a psychiatrist to receive medication for depression. It was not clear if he continues to take this medication.

13Throughout the presentence report, J.S. continued to deny any wrong-doing and continues the narrative from trial. In particular, he claims the Complainant made up the allegations because she was angry about how she was treated during the marriage, and about a disagreement over household chores with his sister.

14The writer of the report interviewed J.S.’s sister, her husband, and J.S.’s mother. They all support J.S.’s narrative, blaming the Complainant for making false accusations.

15I have also reviewed a letter from The Family Enhancement Centre dated February 11, 2025, wherein it was confirmed that J.S. attended three counselling sessions. The subject of the counselling was not specified.

16J.S. chose not to address this court during his sentencing hearing.

17Several months ago, the Crown reached out to the Complainant for the purposes of obtaining a victim impact statement. No statement was forthcoming, nor did she request to make a statement in court. The Complainant did speak to the author of the pre-sentencing report. She reports that she suffers from depression and anxiety due to the trauma of her relationship with J.S.

IV. Crown and Defence Positions

18The Crown seeks a custodial sentence of 4 years, with the following ancillary orders: a DNA order, a s. 109 weapons prohibition for life, a SOIRA order for life, and a non-communication order with respect to the Complainant.

19J.S. submits that a custodial sentence of 3 years is more appropriate. He does not oppose the ancillary orders requested.

V. Legal Principles

20Imposing a fit sentence is a highly individualized and fact specific exercise.

21The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code and I am bound by those principles. I am to consider the objectives of denunciation, deterrence, and rehabilitation. I must consider aggravating and mitigating circumstances, and the sentence must be similar to sentences imposed on similar offenders for similar offences. An offender should not be deprived of their liberty if less restrictive sanctions may be appropriate.

22That being said, it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is measured by reference to both the offence and the offender: Criminal Code, s. 718.1; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 61-62; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 40; R. v. Parranto 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 10-12.

23The principles of parity and individualism, while important, are secondary: Parranto at para. 10.

24The Code requires that when sentencing an offender, I should consider it an aggravating factor if a convicted person, in committing the offence, abused their intimate partner and if they violated a position of trust: s.718.2(a)(ii) and 718.2 (a)(iii). I should also consider the increased vulnerability of female persons who are victims of an offence related to intimate partner violence: see s.718.201.

25In the case of a sexual assault, and in particular a sexual assault between intimate partners, denunciation and deterrence are the paramount objectives, especially when it involves penetration: R. v. Al-Akhali, 2025 ONCA 229, at para. 69; R. v. A.J.K. 2022 ONCA 487, 162 O.R. (3d) 721, at para. 83.

26It is now recognized that sexual assaults in an intimate partner context are just as serious and violent as sexual assault as between strangers. The Court of Appeal for Ontario has stated that the historically lower sentences given in intimate partner violence cases are outdated and must accord with sexual assault ranges given for a sexual assault against a stranger. A pre-existing relationship between an accused and a complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing. As a result, intimate partner sexual assault can attract a greater sentence than a sexual offence against someone with whom the offender had no relationship: A.J.K., at paras. 73-76.

27When determining an appropriate sentence, I should also consider the collateral consequences of any sentence I impose, such as the impact on an offender’s immigration status. These consequences are not aggravating or mitigating factors. The relevance of the collateral consequences is considered when I consider the principles of individualization and parity: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 15, at para. 11. I may take collateral immigration consequences into account as long as the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: Pham, at para. 14. These collateral consequences address the principles of denunciation and deterrence.

VI. Aggravating and Mitigating Circumstances

28I have considered the following aggravating factors. These factors help inform me about J.S.’s moral blameworthiness.

29First, this is a case of sexual violence against an intimate partner. As indicated in A.J.K., and in the Criminal Code, the violation of trust and confidence is particularly aggravating.

30Secondly, J.S. was found guilty of two sexual assaults as against the Complainant, within weeks of each other. Not only did he penetrate her, but he caused bleeding or bruising.

31J.S. has expressed no remorse, and in fact continues to deny the allegations. While this is not an aggravating factor, it does represent the absence of a mitigating factor.

32With respect to mitigating factors, J.S. has remained steadily employed. He has no criminal record. He has strong family support. He has attended counselling, but it is not known what was discussed. Other than this offence, J.S. appears to be a hard-working individual who is loyal to his immediate family. There have been no violations of his bail conditions.

VII. Parity in Sentencing

33Sentencing ranges, while they are used mainly to ensure parity, reflect the principles and objectives of sentencing. They are summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives. That being said, they are not to be considered averages, let alone straightjackets, but rather a historical portrait to be used by sentencing judges, who must still exercise their discretion in each case. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58.

34Sentences in sexual assault as between intimate partners should be the same as sentences for sexual assault that is between those who are not. The range is three to five years for sexual assault between non-intimate partners: A.J.K. at para 68. The forced penetration of another person will typically attract a sentence of at least three years in the penitentiary: A.J.K. at para. 77.

35The following cases were provided to the court for my consideration.

36In the case of A.J.K, the accused was convicted of sexual assault, assault, and failure to comply with a probation order. He was sentenced to 5 years, which was upheld on appeal. In that case, the trial judge found that the accused sexually assaulted the complainant by penetrating her vaginally, following which he hit her.

37In R. v. LaCombe, 2023 ONSC 1975, the accused was found guilty of one count of sexual assault with respect to four separate instances of forced penetration or attempts at forced penetration of a woman he had been dating over an eight-month period. The accused was older than J.S.. He suffered from significant back and neck injuries, as well as kidney disease and renal failure. The complainant suffered from depression. The accused was sentenced to three years.

38In R. v. M.S.A., 2022 ONSC 6818, the offender was found guilty of seven counts of sexual assault, one count of sexual assault with a weapon, and one count of assault. The offender and the complainant were married. Four instances of sexual assault were instances of forced penetration. The offender was 34 at the time of sentencing. His family were immigrants, and he arrived in Canada when he was 10 years old. He was educated, having earned an undergraduate degree. He worked full time while pursuing graduate work. He had no criminal record. He was undergoing counselling and had the support of his family. The complainant made a victim impact statement. He was sentenced to incarceration for a period of four years.

39I have also considered a number of other cases. In R. v. D.G.B., 2023 ONSC 6603, following a trial before a jury, the offender was found guilty of sexual assault, two counts of assault and uttering a death threat. The offender and complainant were common law partners. The sexual assault occurred after the offender tied the complainant to the bed and vaginally penetrated her. One of the assaults occurred when the complainant was pregnant. The offender was approximately 21 years old at the time of the offence. He had a lengthy criminal record, which included a conviction for intimate partner violence. He had a difficult upbringing marred by violence as a child and being in foster care. He had a college diploma. He had two children, one of whom had cerebral palsy and epilepsy. The offender identified as Indigenous, but it was not verified. No victim impact statement was provided, but the complainant was interviewed for the pre-sentence report. For the sexual assault, he was sentenced to 4.5 years.

40I have also considered R v. K.S., 2023 ONCJ 548. In that case the accused was convicted of sexual assault, assault and two counts of threatening, all against his intimate partner. The sexual assault was for forced anal penetration which caused bleeding. He was sentenced to 5 years for the sexual assault.

VIII. Analysis

41As indicated, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

42Clearly the crime of sexual assault, in an intimate partner relationship, is a serious crime, especially when penetration was involved. No one has suggested otherwise. In this case, it happened twice, within weeks of each other.

43Unfortunately, J.S. has not accepted any degree of responsibility. I acknowledge that he is maintaining his defence position, but his attitude goes beyond that. He has shown a complete lack of insight into his actions. He takes no responsibility and continues to blame the victim for all he is facing. This lack of insight has not been alleviated by his family who continue to support this narrative of blame.

44J.S. argues that due to counselling and insight into his own mental health issues, there are strong rehabilitation prospects. I disagree that the evidence supports this position. Even if he is taking medication for depression, that could be the result of his situation and not due to any acknowledgment of his wrongdoing. The counselling he is receiving is vague. There is no mention of counselling that would help J.S. understand the serious and detrimental impact of intimate partner sexual assault.

45I have also considered that J.S. is a permanent resident of Canada. Accordingly, there are significant collateral consequences to his status. That being said, any sentence that I impose that is within the appropriate range would result in J.S. being inadmissible to Canada. It would be disproportionate to reduce his sentence to alleviate this consequence, and no one is suggesting I do. His eventual deportation is a significant consequence of his sentence. It will take him away from his immediate family, with whom he is very close, and who have all settled in Canada.

IX. Sentence

46Having considered the principle of proportionality, and then the principle of parity and J.S.’s particular circumstances, I find that a penitentiary sentence of three and one-half years to be appropriate, for each offence. These sentences should be served concurrently. In the circumstances, there should be no reduction to address totality.

47There was no pre-sentence custody, so J.S. is not entitled to any credits.

48The parties agree to the following ancillary orders:

a) as sexual assault is a primary designated offence under s. 487.051, there shall be an order authorizing the taking of DNA samples;

b) an order under s.109 shall be made prohibiting J.S. from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances. The duration of this prohibition order is for life;

c) As sexual assault is a primary designated offence, J.S. shall comply with the Sex Offender Information Registry Act for life;

d) an order under s. 743.21 shall be made prohibiting J.S. from communicating directly or indirectly, with the Complainant and members of her immediate family during the custodial period of his sentence.

Fowler Byrne J.