Reasons for Sentence

Court File No.: CR-23-18
Date: 2025-01-20
Ontario Superior Court of Justice
Between:
His Majesty the King (Applicant)
and
A.S. (Respondent)

Heard: January 8, 2025
Counsel:

• For the Crown: F. McCracken
• For A.S.: B. Mohan and S. Kalkat

Justice: M. Bordin

Overview

[1] Following a judge-alone trial in October 2024, I found A.S. guilty of one count of sexual assault against A.L. pursuant to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] The Crown seeks a sentence of four years incarceration and the following ancillary orders:

a. a DNA order pursuant to s. 487.04(a);
b. a 20-year Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) order pursuant to ss. 490.012 and 490.013(2)(b);
c. a lifetime weapons prohibition pursuant to s. 109; and
d. an order prohibiting A.S. from communicating with A.L., directly or indirectly, during the custodial period of the sentence, pursuant to s. 743.21(1).

[3] A.S. seeks either a conditional discharge, a custodial sentence of six months less a day, or a two years less a day conditional sentence with strict conditions. A.S. takes no position on the ancillary orders sought by the Crown.

Circumstances of the Offence

[4] The full circumstances of the offence are set out in my reasons for decision. By way of summary, on June 8, 2022, after meeting at his apartment, A.S. digitally and vaginally penetrated A.L. without her consent and was reckless and wilfully blind to the reality that A.L. was not consenting after she said “ow; stop” and “ow; no”; A.S. continued to vaginally penetrate A.L with his penis.

[5] At the time, A.L. was 16 years old and A.S. was 28. They had worked together for approximately 15 months, beginning when A.L. was 15 years old. During that time, A.S. had become one of A.L.’s very few friends.

Circumstances of the Offender

[6] A.S. is now 31 years old. He has no previous criminal record. He was born in India and came to Canada in 2017 and is a permanent resident.

[7] Since coming to Canada, A.S. has obtained a three-year bachelor’s degree in commerce, and a two-year diploma in project management. He has held various jobs during his time in Canada and has been working at Eagle Truck Parts since July 2023. He is said to be a punctual, hard worker who is good with customers.

[8] A.S. married in January 2023. His wife lives in India as do his parents. His sister lives in Western Canada. He maintains a good relationship with all three of them. A.S. hopes to bring his wife to Canada one day.

[9] A.S. was given his right of allocution. He said he was very sorry for how the whole situation hurt the victim emotionally. He hopes that one day things can be better.

Victim Impact Statements

[10] I received victim impact statements from A.L. and both her parents. A.L. describes the emotional impact of the assault. She is afraid to be alone when at home alone and when she goes out. She lost her self-confidence and her self-image was ruined. She became anxious, uncomfortable and fearful around men and does not trust them. She does not want to be around others. She experiences nightmares. She remembers the pain she felt. She was unable to work.

[11] A.L.’s father delivered a brief but emotional statement which disclosed the level of pain he has experienced, how the assault has impacted his daughter and their relationship, and his sense of personal responsibility for, what in his view was, his failure to protect his daughter.

[12] A.L.’s mother has suffered from loss of sleep, anxiety and has had difficulty functioning. She tells of A.L. waking up screaming and crying at night for months. A.L.’s mother describes how broken she feels.

Principles of Sentencing

[13] As summarized by Watt J.A. in R. v. Marshall, 2021 ONCA 28, at para. 5, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. The sentencing judge must also weigh the normative principles Parliament enshrined in the Criminal Code, the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors and the principles of totality and restraint in s. 718.2: see also R. v. M. (L.), 2008 SCC 31, para. 17.

[14] The goal of sentencing in every case is a fair, fit and principled sanction: R. v. Parranto, 2021 SCC 46, para. 10.

[15] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and its objectives. Section 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. However, rehabilitation remains a relevant consideration. Moreover, sentencing remains an individualized process that must satisfy the fundamental principle of proportionality.

[16] Individualization is a tool to help calibrate proportionate sentences; it is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: R. v. A.J.K., 2022 ONCA 487, para. 82.

[17] Proportionality is the organizing principle in reaching the goal of a fair, fit and principled sentence: Parranto, at para. 10. Proportionality requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: s. 718.1. The Criminal Code describes proportionality in the heading above s. 718.1 of the Criminal Code as the “[f]undamental principle” of sentencing: A.J.K., at para. 80.

[18] The principle of parity must be considered. It is a tool that helps calibrate proportionate sentences; parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: A.J.K., at para. 81.

[19] I must also consider the principle of restraint. As summarized in R. v. Faroughi, 2024 ONCA 178, paras. 69-70, the principle of restraint is codified in ss. 718.2(d) and 718.2(e) of the Code and requires a sentencing judge to take into consideration “all available sanctions, other than imprisonment, that are reasonable in the circumstances”. Further, to the extent reasonably possible, a sentence is to be tailored to the circumstances of the accused and give appropriate consideration to rehabilitation.

[20] The principle of restraint takes on an elevated importance with a youthful first-time offender: R. v. Sousa, 2023 ONCA 100, para. 37. However, even for youthful first offenders, very serious offences and offences involving violence are excluded from the principle that sentences for first offenders should emphasize individual deterrence and rehabilitation: R. v. Tan, 2008 ONCA 574, para. 32.

[21] Section 718.2 requires a court imposing a sentence to take into consideration certain principles, including the following, which are deemed to be aggravating circumstances:

(a)(ii.1) the offender, in committing the offence, abused a person under the age of eighteen years; and
(a)(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

Sentencing Range

[22] The offence of sexual assault in these circumstances carries a maximum sentence of 10 years of imprisonment pursuant to s. 271(a) of the Code.

[23] The Crown submits that the appropriate range for sentencing in the circumstances before me is at least three to five years incarceration. A.S. did not oppose this range. His position is that there are reasons the sentence should be below the range.

[24] There is no magic to citing the correct range of sentencing; the task is to arrive at a fit sentence through the employment of proper sentencing principles: A.J.K., at para. 78. Sentencing ranges are not shackles or a straitjacket. They provide guidance to the court. The goal is always to impose a fair, fit, and principled sanction; proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: A.J.K., at para. 80.

[25] The offender in R. v. Bradley, 2008 ONCA 179 was an experienced police officer. The victim was a 21-year-old adult Indigenous woman who was in college. She wanted to be a police officer. Bradley, who met the victim while she was completing a high school co-op placement, took her on many ride-alongs. He became her friend and mentor. The victim invited Bradley to her home one evening where he raped her vaginally and anally and demanded oral sex. The Court of Appeal for Ontario accepted that the appropriate range of sentence was three to five years. The Court held that a sentence of three years was appropriate. The Court noted, among other things, that the conviction was for a single count of sexual assault and there was no violence apart from that which is inherent in such an offence. Bradley had no prior criminal record.

[26] Absent some highly mitigating factor, 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. This is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with a starting point; there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate: A.J.K., at para. 77. Three years is not a mandatory minimum sentence.

[27] As the Court of Appeal in A.J.K. noted at para. 68, besides Bradley, numerous decisions of that Court, and other courts have reinforced the 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.

[28] The Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, paras. 114-117 directed that sentences involving child victims should be greater than those in cases involving adult victims. The Court noted the terms “child” and “children” mean persons under the age of 18.

[29] As summarized by the Supreme Court at para. 5 of Friesen:

[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[30] Imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences: Friesen, at para. 114.

[31] The Crown referred to R. v. B.J.R., 2021 NSSC 26, para. 28, where the court held that Friesen applied to the 16-year-old victim of sexual assault.

[32] A.S. recognizes that the victim was 16 years old and still a minor. He concedes that Friesen applies.

[33] Friesen, together with A.J.K., suggests that absent some highly mitigating factor in a case involving forced oral, digital, vaginal or anal penetration of a minor, the appropriate range is at least three to five years, if not more.

[34] At the same time, I am mindful of the Supreme Court’s caution in Friesen, at paras. 140-146, to avoid the following four errors: 1) defining a sentencing range based on penetration or the specific type of sexual activity at issue; 2) assuming that there is any clear correlation between the type of physical act and the harm to the victim; 3) downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation; and 4) understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. The modern understanding of sexual offences requires greater emphasis on psychological and emotional harm, rather than only on bodily integrity: Friesen, at para. 142.

Position of the Crown and A.S.

[35] The Crown submits that there is no reason to deviate from the three to five year range and that a sentence of four years is, in the circumstances of this case, entirely appropriate.

[36] A.S. submits that the sentence he seeks is appropriate taking into account the principles of sentencing, the sentences imposed in other cases, the victim’s responsibilities at work notwithstanding her age, the lack of violence in the sexual encounter, the alleged limited extent of the physical interference, its brevity and that it only occurred once, his age and lack of a criminal record, the impact on his life and his immigration status, and the victim’s “participation” in the encounter.

[37] A.S. submits that going through the trial process and the impact the charges and process have had on his life have deterred him.

[38] A.S. distinguishes the facts before me from the cases tendered by the Crown. For example, in his submissions, he notes that there was no anal penetration. He did not physically assault the victim. She was not concussed. He did not degrade her.

[39] A.S. relied on several cases in support of his position on sentence. The first is R. v. G.T., 2022 ONSC 2619. The offender was 23 years old at the time of the assault. The age of the victim is not disclosed; however, both were summer students working at Algonquin Park. It was the victim’s third summer working there. I infer that the victim was over 18.

[40] In brief, in G.T. the victim and offender had engaged in consensual vaginal and oral sex. The offender’s penis contacted the victim’s anus during intercourse; she told him that she did not consent to that touching. Later, the offender touched the victim’s anus with his finger. She told him not to do that. He did it a second time after being told not to. The decision does not state there was penetration. The Crown sought a sentence of 18 to 24 months. The court sentenced the accused as a first time youthful offender and imposed a conditional sentence of 12 months. The facts of G.T. distinguish it from the forced digital and then vaginal penetration of the 16-year-old victim in this case.

[41] The next case tendered by A.S. is R. v. Henry, 2019 ONSC 4978, where the court dismissed the Crown appeal of a sentence of an absolute discharge for a sexual assault. Henry can also be distinguished by its facts. The offender and victim in Henry were adults of similar age. The offender in Henry came up behind the victim and embraced her. He kissed her neck and cheek while holding her throat and touching her genitals over her clothing. When the offender tightened his grip on the victim's neck, she said stop and he stopped. The trial judge accepted the offender’s evidence that he applied pressure to the victim's throat because he thought it would be sexy and had no intention of acting without her consent. The offender had described their earlier interaction as having been mutually aggressive and physical and believed that the victim would be receptive. The Crown in Henry conceded that the conduct was on the lower end of the spectrum.

[42] A.S. provided an article from British Columbia dated December 16, 2024, regarding the sentencing of a 64-year-old Indigenous hereditary chief who had non-consensual unprotected sex with a 16-year-old. The decision in R. v. West is unreported. I do not have a copy of the decision approved by the court. The article contains limited information.

[43] Assuming I could rely on what is reported in the article, the offender pleaded guilty and was sentenced to some period of house arrest with three years probation. Further, it appears that a factor was that the offender suffered mental, physical and sexual abuse at an Indian Day School as a child. I do not know all the factors the court considered. I do not know if the court considered s. 718.01 or Friesen. I decline to follow the “decision”.

[44] In his submissions, A.S. concedes that having one’s sexual integrity violated, no matter the degree, can lead to profound trauma.

[45] A.S. submits that this is not a sexual assault that attracts more severe sanctions. For the reasons that follow, I disagree.

Gravity of Offence and Degree of Responsibility

[46] This was a serious sexual assault on a 16-year-old girl.

[47] While he was not in a formal position of trust with the victim, A.S. had worked with the victim for some 15 months and they had become friends. A.S. is 12 years her senior. The offence arose out of one event at A.S.’s apartment. The assault involved both digital and penile vaginal penetration – the latter against the verbally expressed lack of consent by the victim.

[48] A.S. submits that there was no anal penetration. This does not minimize the seriousness of the offence. Both the digital and penile penetration of the victim are serious violations of the victim’s bodily integrity. As noted by the Court of Appeal for Ontario in A.J.K., at para. 73, sexual assault involving forced penetration is a sexual assault involving forced penetration.

[49] A.S. submits that he and the victim had been work friends who flirted with each other and socialized outside of work. This does not minimize the seriousness of the offence.

[50] 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, as well as those of their loved ones, can be forever altered: A.J.K., at para. 74.

[51] A.S. submits that the victim responded favourably to his kissing and kissed him back. The victim’s conduct is not a justification for, nor does it minimize the gravity of a subsequent sexual assault or A.S.’s responsibility.

[52] A.S. submits that his wife is his only serious romantic relationship, that he lacked cultural competency and was ignorant of the rights of others. I am not persuaded by this submission. It does not diminish A.S.’s responsibility. At the time of the offence A.S. had been in Canada for approximately five years and had obtained a three-year university degree and attended college.

Aggravating and Mitigating Factors

[53] The aggravating factors are that A.L. was 16 at the time of the offence. She had lived a somewhat sheltered life which was known to A.S. The assault involved both digital and penile penetration. A.S. continued vaginally penetrating A.L. over her verbal objections. The emotional and psychological harm to A.L. was significant as was its impact on her parents. A.S. was not in a formal position of trust over A.L. but they had worked together for well over a year and had become friends and A.S. betrayed that friendship.

[54] The mitigating factors are that A.S. has no criminal record. He has been consistently employed and has a good relationship with his immediate family although they live in India and in Western Canada. He is described by family members as having a pro-social character. His behaviour in this case has been described by his family members as uncharacteristic. A.S. has been out on bail apparently without incident. For the most part, he cooperated with authorities.

[55] I would not characterize A.S. as a youthful offender. He was 28 years old at the time of the offence. He is now 31. A.S. has a university and college diploma. He has been working for years. He married about 6 months after the sexual assault.

[56] A.S. has expressed a form of remorse for the impact on A.L. He is sorry for how the assault hurt her. Remorse gains added significance when it is paired with insight and signs that the offender has come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending: Friesen, at para. 165.

[57] For reasons I set out in more detail below, it is not clear to me that A.S. really understands the gravity of his conduct or has achieved a change in attitude. This is not an aggravating circumstance but neither am I satisfied that remorse is a significant mitigating factor.

Rehabilitation

[58] A.S. submits that the sentence the Crown seeks would deprive him of the opportunity to complete rehabilitative programs because he would be removed from the country. I have no evidence of this other than A.S.’s submission to this effect. There is no evidence before me of steps taken toward rehabilitation.

[59] A.S. submits he is an excellent candidate for rehabilitation. The PSR concludes that “it is difficult to assess the risk of reoffending as [A.S.] says that he was never intending to cause any harm and said he is figuring out what went wrong.” According to the PSR, A.S. “maintains that he did not think he was doing any wrong initially, but also apologised for the pain he caused”. His submissions on sentencing reflect similar perspectives. He submits that the fact that he is struggling to understand what went wrong with the victim shows that he is trying to ensure this never happens again.

[60] According to the PSR, A.S. reported that he believed the sexual interaction with the victim was consensual. In his written submissions, A.S. repeatedly submitted that he had taken steps to obtain consent and that he believed the victim had consented. A.S. walked this back in oral submissions and withdrew some of his statements in the written submissions.

[61] At trial I accepted A.L.’s evidence as to what occurred. I specifically did not accept A.S.’s evidence that he asked A.L. at any time if she was sure she wanted to proceed with the sexual activity. I found that A.S. never asked A.L. if she was okay with any of the sexual activity. I rejected A.S.’s evidence that he asked for confirmation to proceed.

[62] None of this is aggravating, but it leaves me in significant doubt as to A.S.’s rehabilitative prospects and as to the genuineness of his expression of remorse.

[63] In any event, while rehabilitation remains a consideration on these facts, it should not be elevated above the dominant objectives of denunciation and deterrence.

Conditional Discharge

[64] A.S. submits that a conditional discharge is an available sentence. I acknowledge that a conditional discharge may be a sentence available for a conviction for sexual assault in appropriate circumstances. Notwithstanding A.S.’s lack of a prior record, a conditional discharge is simply not appropriate in the circumstances of this case. It would be contrary to the public interest.

Immigration Consequences

[65] A.S. submits that his status as a Permanent Resident attracts important consideration. He notes that s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, states that a permanent resident or a foreign national is inadmissible on grounds of serious criminality for a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

[66] A.S. submits that he can only appeal a deportation order if he receives less than six months in custody. If he receives a sentence of more than six months, he is inadmissible to Canada without appeal rights. A.S. submits that, if he receives a conditional discharge, it leaves open the possibility for him not to be found inadmissible to Canada under s. 36(1) of the Act. As I have found, a conditional discharge is not appropriate.

[67] In R. v. R.B.-C., 2024 ONCA 930, para. 67, the court stated that:

The law regarding the role of collateral immigration consequences is well settled; while a trial judge can consider the collateral immigration consequences of a sentence, the sentence must nevertheless be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, paras. 11-16; R. v. R.L.S., 2020 ONCA 338, paras. 10-12.

[68] Achieving a more favourable immigration situation for A.S. by reducing his sentence to six months or less would result in the imposition of an unfit sentence. The offence against the 16-year-old victim was serious. It has had a significant impact on the victim and her family. A sentence of six months less a day is nowhere near the appropriate sentence in the circumstances of this case. It does not recognize and reflect the extreme harm caused by sex offences against children, and the wrongfulness of sexual violence. As a result, the immigration consequences are not relevant in crafting an appropriate sentence.

Conditional Sentence

[69] The Court of Appeal for Ontario in R. v. M.M., 2022 ONCA 441, para. 16, held that conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate, such as where it gives rise to a medical hardship that would not be adequately addressed within the correctional facility.

[70] The Court of Appeal for Ontario has noted that “exceptional circumstances” is shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate: R. v. Pike, 2024 ONCA 608, para. 182. Multiple seemingly non-exceptional factors taken together can collectively render a conditional sentence proportionate: Pike, at para. 182. While exceptional, there is no rigid rule that conditional sentences can never be imposed in the appropriate case: R. v. A.L., 2025 ONCA 9, para. 21.

[71] Conditional sentences can be appropriate where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence: R. v. Proulx, 2000 SCC 5, paras. 102, 107; R. v. Jacko, 2010 ONCA 452, paras. 71-73. The restraint principle continues to be applicable in circumstances where the primary sentencing principles are denunciation and deterrence: R. v. A.B., 2023 ONCA 254, para. 55; R. v. S.K., 2021 ONCA 619, para. 12.

[72] Nevertheless, in my view, a sentence of two years less a day falls well below an appropriate sentence in the circumstances of this case. Such a sentence does not recognize and reflect the extreme harm caused by sex offences against children, the wrongfulness of sexual violence, the seriousness of the offence and the harm to the victim.

Sentence Imposed

[73] Friesen, at para. 136, cautions courts to be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence. Sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy.

[74] No sentence imposed can undo the harm to a victim and their family caused by sexual assault.

[75] As noted earlier in my reasons, imposing a sentence requires consideration of a complexity of factors which I have outlined in these reasons. Considering all the above, I conclude that a term of imprisonment of three years and six months is the appropriate sentence.

[76] A.S., please stand.

[77] A.S., I sentence you to three years and six months incarceration and make the following orders:

a. a DNA order pursuant to s. 487.04(a);
b. a 20-year SOIRA order pursuant to ss. 490.012 and 490.013(2)(b);
c. a lifetime weapons prohibition pursuant to s. 109; and
d. an order prohibiting A.S. from communicating with A.L., directly or indirectly, during the custodial period of the sentence pursuant to s. 743.21(1).

Released: January 20, 2025

Justice M. Bordin