Court File and Parties

Delivered: Orally and In Writing on August 18, 2025

Court File No.: CR-22-842 (Stratford)

Date: 2025-08-18

Ontario Superior Court of Justice

Between:

His Majesty the King – and – James Scott Gallan, Offender

Counsel:

• Megan Cleland, for the Crown
• Cassandra DeMelo, for the Offender
• Neha Chugh, for the Complainant

Heard: March 21, 2025

Preface

Before commencing my oral decision on sentence, I note the following:

1. There is a s. 486.4(1) non-publication order in place.

2. To protect the identity of the complainant, I will refer to her as the complainant or by initials in the written version of this decision.

Decision on Sentence

J.R. Macfarlane J.:

Overview

[1] Following a four-day trial without a jury, I convicted James Scott Gallan of a single count of sexual assault, contrary to s. 271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the "Code"). The complainant was his friend, Z.C.

[2] On March 21, 2025, counsel appeared before the court to make sentencing submissions. Counsel agreed that the appropriate sentence for this type of sexual assault is incarceration for between three and five years. Crown counsel argued for a sentence of four years, defence counsel argued for a sentence of three years.

[3] Imposing a fit and proper sentence requires the court to balance several factors and apply the relevant legal principles. Sentencing is described as one of the most difficult tasks that a trial judge must undertake.

[4] For the forthcoming reasons, I am sentencing Mr. Gallan to three and a half years of incarceration, to be reduced by pre-trial custody and bail credits. I am also ordering ancillary orders for a DNA sample, a s. 109 firearms and weapons prohibition for 10 years, a SOIRA order for 20 years, and a s. 743.21 non-communication order with respect to the complainant.

The Circumstances of the Offence

[5] The only witness at trial was the complainant, who was 21 years old at the time of the offence.

[6] Z.C. and Mr. Gallan had been friends for several months, and by April 2021, he was living with Z.C. and her fiancé in Listowel. Despite their relatively short acquaintance, Z.C. had provided both emotional and financial support to Mr. Gallan, including comforting him when he expressed suicidal ideations. On May 20, 2021, Mr. Gallan was at the house of a mutual friend named Joe and invited Z.C. to come hang out.

[7] When Z.C. arrived at Joe's, Joe and Mr. Gallan were both there. Joe left about an hour after her arrival. She and Mr. Gallan were sitting on the couch, with him seated to her right. He was performing raps that he had created, and she recorded some of those on her phone. She was smoking marijuana, but she did not recall him doing the same.

[8] At some point after Joe left, Mr. Gallan asked the complainant for a blow job or sex. She said no, that they should not do that. She also told him she was on her period, as a means of putting him off.

[9] After a while, the complainant bent over to reach for her backpack on the floor to get her marijuana grinder. At this time, Mr. Gallan stood up, pushed Z.C. back onto the couch, lifted her legs up, removed her shorts and underwear, and penetrated her vaginally with his penis. He was not wearing a condom. The complainant said the interaction ended with him ejaculating on her pelvic area. He then threw a towel to her to clean herself.

[10] At no time did Z.C. consent to sexual contact.

[11] Z.C went into the bathroom and cried because she was so upset. She stated she had not expected that from him, and she was in shock. When she came out of the bathroom, she told Mr. Gallan that her son at home was fussy and that she had to leave to care for him. She grabbed her bong and backpack and went home.

The Circumstances of the Offender

[12] Mr. Gallan was 31 years old at the date of the offence and is now 36. I did not have the benefit of a pre-sentence report, and he declined to say anything by way of allocution.

[13] Mr. Gallan has been employed as a forklift operator in the past. At the time of the sentencing submissions, he had a one-year-old child and an 11-year-old child, with another child on the way.

[14] Mr. Gallan states he has struggled with addiction and grief. He has suffered significant personal losses, including the deaths of his brother, mother, sister, and father all between 2015 and 2023.

[15] Mr. Gallan has a prior criminal record, but none of these prior convictions are sexual in nature. According to his counsel, his bail conditions included 24-hour monitoring and house arrest for a total of 269 days. Counsel for the Crown advised that his bail conditions permitted him to be out in the company only of his surety and to attend scheduled appointments.

[16] Mr. Gallan spent 160 days in pre-trial custody, some of which has been used as credit toward a sentence in another case. The parties agree that he has 90 days remaining to be credited toward his sentence in this case. While in custody, Mr. Gallan completed various courses available to him, including being an effective father, recognizing healthy relationships, maintaining employment, managing substance use, and setting goals.

Impact on the Complainant

[17] Z.C. declined to provide a victim impact statement. However, I accept her testimony at trial that the sexual assault has been traumatic for her. The assault was a serious violation of her sexual and bodily integrity, involving vaginal penetration without a condom, and was committed by a trusted friend.

The Positions of the Parties

[18] Both parties rely upon the leading case of R. v. A.J.K., 2022 ONCA 487, 82 C.R. (7th) 116 where the court held at para. 77 that "[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary." The court went on to confirm that the usual range for such offences is three to five years, but that there will be circumstances that justify a departure from that range.

[19] Counsel provided several helpful decisions in support of their arguments, in addition to A.J.K. For the defence, Ms. DeMelo referred to R. v. J.D., 2023 ONSC 1088; R. v. S.S.S., 2024 ONSC 1553; and R. v. T.S., 2023 ONCJ 584. These cases are all post-A.J.K. examples of three-year sentences being imposed. T.S. is somewhat like the facts of this case.

[20] Ms. Cleland for the Crown relies upon R. v. Silveira, 2024 ONSC 757; R. v. Hocaoglu, 2024 ONCJ 13; and R. v. Hall, 2025 ONCJ 44. The sentencing judges in Silveira and Hocaoglu both imposed sentences of three years and six months upon first-time offenders in their 20's who both had demonstrated significant potential for rehabilitation. Hall resulted in a five-year sentence where gratuitous violence was present. Although clearly distinguishable on its more serious facts, the Crown relied upon several passages in Hall as commentary upon the three-to-five-year range provided in A.J.K.

[21] The parties agreed this case is within the normal A.J.K. range. Ms. DeMelo for the defence argued that a sentence of three years is appropriate, and Ms. Cleland for the Crown argued that a term of four years is warranted. There was no dispute as to the appropriate ancillary orders, and the parties agree that 135 days' credit for pre-trial custody should be granted.

[22] Ms. DeMelo argued that this is an appropriate case for a further 90 days of credit for harsh bail conditions, commonly known as Downes credit after R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). Ms. Cleland noted that there was no evidence of specific hardship, and the onus would be on the offender to prove the circumstances warranted such credit.

Relevant Legal Principles

[23] Under s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46, the governing principle in sentencing is that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." A proportionate or just sentence must have one or more of the following objectives in accordance with s. 718 of the Code:

(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.

(b) To deter the offender and other persons from committing offences.

(c) To separate offenders from society, where necessary.

(d) To assist in the rehabilitation of offenders.

(e) To provide reparations for harm done to victims or to the community.

(f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[24] Consistent with a long line of appellate authority including A.J.K., counsel agree that the primary sentencing objectives in serious crimes of violence, particularly sexual assaults, are denunciation and deterrence.

[25] Section 718.2 of the Code mandates a court consider the principles set out in that section in imposing sentence, including that any sentence imposed should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[26] Downes, at paras. 36 and 37, requires judges to flexibly consider time on bail under house arrest: "In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge." The court confirmed that the onus is on the offender to establish the impact of the conditions on a balance of probabilities.

Analysis

[27] I concur with the observations of B. Green J. in Hall at para. 83:

Sentences at the lower end of the range should apply to cases in which the offender pleads guilty, demonstrates insight and sincere remorse, has significant potential for rehabilitation or has invested in counseling, there are some other uniquely or substantially mitigating considerations or the absence of certain aggravating features.

[28] All the authorities relied upon by counsel have been most helpful. As mitigating factors, I have considered that Mr. Gallan is a father of three children, two of whom are very young. I have also considered the courses completed by Mr. Gallan in jail, as well as his personal losses and struggles with addiction. I have considered the limited information that was provided concerning the conditions of the offender's bail and house arrest, as contemplated by Downes.

[29] There are aggravating factors present in this case. Mr. Gallan's sexual assault of Z.C. has had a significant impact upon her. While he was not in a "position of trust or authority" as those terms are used in the Code, I consider it to be an aggravating factor that the offender took advantage of his friendship with the complainant. This was not Mr. Gallan's first offence, but it was his first conviction for sexual assault. This case was one of forced vaginal penetration. The offender exposed the complainant to the risk of disease by not using a condom. The sexual assault in this case did not involve extraordinary gratuitous violence beyond the forced vaginal penetration, distinguishing it from Hocaoglu and Hall. It was nevertheless a serious act of violence: see A.J.K. at para. 74, where Fairburn A.C.J.O. said:

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[30] I must consider the totality of the circumstances and impose a global sentence that is not unduly harsh or excessive. I give due weight to the primary objectives of denunciation and deterrence, and I am mindful of the sentencing principles enunciated by our appellate courts.

[31] In my view, the sentence of four years suggested by the Crown would be somewhat harsh accounting for the above factors. However, the sentence suggested by the defence of three years does not adequately address the primary sentencing objectives of deterrence and denunciation considering the totality of the circumstances.

Conclusion

[32] I impose a custodial sentence upon Mr. Gallan of three years and six months. As agreed, the offender will have credit for 1.5 days for each of his 90 days of pre-trial custody, totaling 135 days. Although not provided with evidence of any specific hardship caused by Mr. Gallan's bail conditions, I nevertheless consider the terms of the house arrest as described by both counsel. To account for these terms and its length, I reduce the sentence by a further 47 days. This brings the net term of the sentence to be served to three years.

[33] In addition, I impose the following ancillary orders:

(a) As the conviction pertains to a primary designated offence (sexual assault contrary to s. 271 of the Code), the offender will provide a sample of his DNA for inclusion in the National DNA Databank pursuant to s. 487.051 of the Code.

(b) The offender is subjected to a 10-year firearms and weapons prohibition pursuant to s. 109 of the Code.

(c) The offender is prohibited from communicating directly or indirectly with the complainant during the custodial period of the sentence pursuant to s. 743.21(1) of the Code.

(d) The offender is subjected to a 20-year SOIRA order.

J. Ross Macfarlane Justice

Delivered: Orally and In Writing on August 18, 2025