Court File and Parties

Delivered: Orally and in writing on August 21, 2025

Court File No.: CR-22-5602

Date: 2025-08-21

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Carl Plummer (Offender)

Counsel:

• Nicole Stortini, for the Crown
• Kevin Shannon, for the Offender

Heard: June 5, 2025, with additional submissions in writing

Before: J.R. Macfarlane J.

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.

Decision on Sentence

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 these reasons.

Overview

[1] Following a one-and-a-half-day trial without a jury, I convicted Carl Plummer of a single count of sexual assault (R. v. Plummer, 2025 ONSC 1213). The complainant was his friend, M.C.

[2] On June 5, 2025, counsel presented their sentencing submissions. I then requested further submissions in writing with respect to one of the ancillary orders requested by the Crown.

[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] I have considered the circumstances of this offence and this offender, and I have applied the relevant legal principles. As a result, I impose a custodial sentence upon Mr. Plummer of 33 months with additional ancillary orders.

The Circumstances of the Offence

[5] The complainant and the offender were both 18 years old at the time of the sexual assault.

[6] Mr. Plummer and M.C. had been friends since grade seven and had been involved romantically intermittently. Mr. Plummer had plans to enter the military one day, and for that reason they never had a long-term committed relationship. Despite this, they remained close friends.

[7] On July 16, 2021, soon after they graduated from high school, M.C. went over to Mr. Plummer's rented basement room on Randolph Street in Windsor to hang out as friends. M.C. decided to stay over at Mr. Plummer's place because her mother was out for the evening. She had often stayed there because Mr. Plummer was a friend whom she trusted. Around 10:00 p.m., she changed into pajama shorts she had in her backpack and went to sleep. Mr. Plummer continued playing video games at the foot of the bed.

[8] Sometime between 3:00 a.m. and 5:00 a.m. on July 17, 2021, M.C. awoke to the offender removing her pajama shorts and underwear. He then attempted to insert his penis into her vagina. She said, "It's not going to work," and without her consent, the offender inserted his penis into her vagina. After very quick penetration, Mr. Plummer removed his penis and ejaculated on the bed behind the complainant.

[9] Prior to this assault, M.C. and Mr. Plummer had had conversations about waking to sexual contact. The offender had fantasized about it, and the complainant had told him that she never wanted to be awakened by any type of sexual contact.

The Circumstances of the Offender

[10] Mr. Plummer is a first-time offender. The court received a detailed presentence report dated May 29, 2025, and through counsel Mr. Plummer confirmed its accuracy. The PSR indicates that the offender is a suitable candidate for a period of community supervision. The offender also made a brief statement in allocution at the sentencing hearing.

[11] As a child, the offender and his mother suffered abuse at the hands of one of his mother's partners, which led to them fleeing to a shelter. Child protective services then placed Mr. Plummer in a kinship placement with his aunt and uncle. They also became abusive. He returned to his mother's care at age 12. He presently resides with his mother, and they have a strong relationship.

[12] Mr. Plummer worked various part-time jobs through high school, and at the time of the offence had intended to enlist in the Canadian Armed Forces. Since the offence, he has held various jobs including at a poultry processing company and a fence repair business. At the time of the PSR, he was employed at a landscaping firm run by his mother's common-law partner. He had completed the first year of a three-year finance program at St. Clair College.

[13] The offender occasionally drinks alcohol socially and has used marijuana in the past. He now abstains from marijuana. He reports no mental health problems.

[14] In the PSR, the offender said that it was never his intention to hurt the complainant "and is sorry she perceived the encounter differently than him." In allocution, after hearing M.C. read her victim impact statement and the submissions of the Crown, he said that he accepts responsibility for the offence, feels guilty, and is sorry to the complainant and her family.

Impact on the Complainant

[15] The sexual assault was a serious violation of M.C.'s sexual integrity. It involved vaginal penetration without a condom, committed by a long-time friend whom she trusted.

[16] M.C. prepared a lengthy victim impact statement which she read aloud at the sentencing hearing. She describes herself before the assault by using the words "sweet," "happy," "strong," and "independent." She felt joy and was an "open book." Since the assault, she has felt closed off, uncomfortable, embarrassed, and exposed. She has experienced feelings of insecurity and worthlessness and has contemplated suicide.

[17] The assault has profoundly affected M.C.'s relationships. Because she and the offender were friends through their teenage years, her happy memories of those times have been tainted by the assault. She finds that she cannot look at the pictures from those years because the offender is in them. She states the "assault altered my perception of life."

[18] As a result of the assault, M.C.'s dental hygiene habits have declined and she has difficulty sleeping. She suffers from severe anxiety and post-traumatic stress disorder. The complainant left Windsor-Essex and her family here because she feared encountering the offender, his family, or his friends. She no longer participates in public social media.

[19] Finally, M.C. noted the impact that the assault has had not only on her life, but on the lives of friends and family, and the community at large.

The Positions of the Parties

[20] Both parties' submissions cited the leading case, R. v. A.J.K., 2022 ONCA 487, 82 C.R. (7th) 116. In A.J.K., 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.

[21] The Crown argued that this case is within the normal A.J.K. range. They sought a three-year penitentiary term. As the offender was released on a recognizance when first arrested, there is no pre-trial custody to be credited.

[22] Mr. Shannon for the offender argued that this case is outside the A.J.K. range. He argued for a conditional sentence, or a custodial sentence of twelve to eighteen months.

[23] Neither party disputed the following ancillary orders:

a. A DNA order under s. 487.051(1) of the Criminal Code, R.S.C. 1985, c. C-46.

b. A ten-year firearms and weapons prohibition under s. 109 of the Code.

c. A no-contact order with M.C. during the custodial term under s. 743.21 of the Code.

[24] The Crown also asks for a prohibition order under s. 161(a), (b), (c), and (d) of the Code, and a SOIRA order for 20 years pursuant to s. 490.012 of the Code.

Relevant Legal Principles

[25] 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 complainants 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 complainants or to the community.

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

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

[27] Section 718.2 of the Code mandates a court to 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. Evidence that the offence significantly impacted the complainant considering their age and other personal circumstances is deemed to be an aggravating circumstance, as is the assault of an intimate partner.

[28] Counsel provided several helpful decisions in support of their positions.

[29] Both parties referenced R. v. S.W., 2024 ONCA 173, 171 O.R. (3d) 269. In S.W., the complainant and the offender had been in an intimate relationship. One night, the offender sexually assaulted the complainant four times while she was in bed, pretending to be asleep. Each time, he penetrated her vagina with his penis without a condom. The Ontario Court of Appeal found the trial judge's conditional sentence of two years less a day plus one year of probation to be manifestly unfit and imposed a three-year penitentiary term. At para. 42, the court stated that "there is no principled reason for distinguishing between complainants who are awake and complainants who are sleeping for the purpose of establishing a sentencing range … If anything, in many cases, the sexual assault of a sleeping or unconscious complainant would appropriately be viewed as an aggravating factor…" [citations omitted].

[30] The Crown also relied upon R. v. E.M., 2024 ONCA 399; R. v. M.G., 2019 ONCA 796; and R. v. Sanderson, 2016 ONCA 866. The defence submitted R. v. T.N., 2021 ONCJ 154; R. v. U.K. and R.P., 2021 ONSC 1423; R. v. J.F., 2015 ONSC 5763; R. v. D.M., 2023 ONSC 2151; and R. v. Wong, 2024 ONSC 7122.

[31] In E.M., the Court of Appeal rejected an offender's appeal from a 30-month sentence imposed following a guilty plea. The complainant had been sleeping when penetrated by her intimate partner. The court found that in imposing a sentence below the three- to five-year range, the trial judge had properly accounted for the significant mitigating factors. They found the sentence fit and appropriate in the circumstances.

[32] In M.G., a case decided prior to A.J.K., the Court of Appeal upheld a conviction and sentence of 14 months in jail followed by three years of probation. The complainant had been sleeping when her roommate vaginally penetrated her without her consent. At para. 12, the court held that the fact that complainant was asleep when the assault occurred was an aggravating factor.

[33] Sanderson was another pre-A.J.K. case involving a complainant who was assaulted in her sleep. The trial judge sentenced the offender to 30 months in prison. The Court of Appeal dismissed the appeals from both conviction and sentence.

[34] T.N. is a pre-A.J.K. decision from the Ontario Court of Justice. The complainant awoke to the offender touching her vagina and vaginally penetrating her. T.N. was a youthful, first-time offender who had excellent prospects for rehabilitation. The offence had significant psychological impact on the complainant. The court imposed a 15-month custodial sentence, which was then reduced to 12-months due to COVID-19 pandemic conditions.

[35] In U.K. and R.P., a decision of Bielby J. of this court prior to A.J.K., the court held following a jury verdict that the range of sentence was two to four years of incarceration. One of the offenders forced the complainant to perform fellatio and the other attempted unsuccessfully to penetrate her vagina with his penis. They were each sentenced to two years less a day incarceration plus two years of probation.

[36] In J.F., Conlan J. of this court began the decision at para. 1: "What sentence should be imposed on a young man with no prior criminal record and good prospects for the future who committed a very serious offence when he sexually violated his female friend?" After a night of drinking, the offender non-consensually vaginally penetrated the complainant while she was asleep. After referring to caselaw concerning the usual range of sentence involving a sleeping or unconscious complainant, the court imposed an 18-month jail term followed by two years of probation. The case occurred several years prior to A.J.K. and S.W.

[37] In D.M., another decision of Conlan J. made shortly after A.J.K. was released, the sexual assault involved forced fellatio and touching the complainant's breast without her consent. The court held at para. 39 that the offender's youth (18 years old at the time of the offence) and lack of any prior criminal history amounted to "highly mitigating circumstances." These mitigating circumstances therefore justified a term of imprisonment of two years.

[38] The case most heavily relied upon by the defence was Wong. The complainant was a friend of the offender and she had allowed him to stay at her apartment after the offender had consumed too much alcohol at a nearby bar and was unable to drive home. They previously had been but were no longer romantically involved though had remained friends. The complainant awoke to the offender vaginally penetrating her without a condom and without her consent. The offender was a Black man of 34 years old with no prior criminal history, and he pleaded guilty. The Crown and defence jointly submitted that the appropriate sentence was two years less a day, and the issue for determination was whether the sentence should be custodial or served in the community. The court found at para. 33 that Wong was "one of those rare cases" in which a conditional sentence would be sufficiently punitive. At para. 38, R.F. Goldstein J. stated, "[i]n the absence of Mr. Wong 'manning up' and taking responsibility he would undoubtedly be going to jail." The court sentenced Mr. Wong to a conditional sentence of two years less a day under house arrest plus three years of probation. The court declined to impose a SOIRA order.

Analysis

[39] The authorities provided by counsel have been most helpful in considering the relevant mitigating and aggravating factors in this case, as well as the principle of parity.

[40] As mitigating factors, I have considered that Mr. Plummer was 18 years old at the time of the offence and has no criminal history. I accept the Crown's submission that part of the PSR indicated a lack of acceptance by the offender that his conduct had indeed been a sexual assault. Nevertheless, I am satisfied after reading the PSR as a whole and hearing Mr. Plummer's allocution that he is genuinely remorseful and sorry for the impact of his actions. Mr. Plummer suffered from family violence as a young child and does not have any indicated substance abuse issues. Although his work history has been somewhat uneven, he is currently enrolled in a college finance program.

[41] There are nevertheless significant aggravating factors present in this case. Mr. Plummer's sexual assault of M.C. had a devastating impact upon her considering her age: Code s. 718.2(a)(iii.1). 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 the complainant's friendship and trust. I also find that the offender and the complainant were intimate partners within the meaning of s. 718.2(a)(ii) of the Code. The offender exposed the complainant to the risk of disease and pregnancy by not using a condom. I also consider the fact that the offender began sexually assaulting M.C. while she was asleep to be aggravating, particularly as she had previously expressed to him that she never wanted to be awakened by any kind of sexual contact.

[42] The nature of the sexual assault in this case did not involve extraordinary gratuitous violence beyond the forced vaginal penetration, but 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 complainant whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, complainants 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.

[43] I must consider the totality of the circumstances and impose a sentence that is not unduly harsh or excessive. I shall give due weight to the primary objectives of denunciation and deterrence, and I am mindful of the principles enunciated by our appellate courts. In my view, a conditional sentence, as suggested by the defence, would not adequately address the primary sentencing objectives in light of the totality of the circumstances. Additionally, a conditional sentence would not sufficiently denounce the seriousness of the offence and Mr. Plummer's moral blameworthiness.

[44] Although providing helpful and thorough reviews of the relevant principles and recent caselaw, the Wong and E.M. cases are distinguishable in their results largely because both offenders pleaded guilty. A guilty plea in a sexual assault case will usually have a significant mitigating effect on sentencing, but that factor is not present here.

Conclusion

[45] I impose a sentence upon Mr. Plummer of 33 months imprisonment.

[46] 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 will be subject to a 10-year firearms and weapons prohibition pursuant to s. 109 of the Code.

(c) The offender will be 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.

[47] The Crown asked for a prohibition order under s. 161 of the Code, but I assume that request was an error because the complainant in this case was 18 years of age at the time of the offence, not under 16 years of age. I decline to impose this order.

[48] The Crown also asked for a 20-year SOIRA order, pursuant to s. 490.012 of the Code. Neither subsection (1) nor subsection (2) of that section applies. The order is sought under subsection (3), which requires me to make an order unless the offender has established that there would be no connection between the making of the order and the purpose of helping law enforcement investigate crimes of a sexual nature; or, that the impact on the person's privacy or liberty would be grossly disproportionate to the public interest in effective law enforcement. In making this decision, I must consider the factors set out in s. 490.012(4).

[49] At para. 43 of Wong, R.F. Goldstein J. found: "In this case, the offence occurred between people who knew each other. Although the offence was serious, Mr. Wong has no criminal history, and I am extremely confident that recidivism – whether against an intimate partner or a stranger – is highly unlikely." I find myself in a similar situation with respect to Mr. Plummer.

[50] I have considered the written submissions made by both parties on whether a SOIRA order should be made. I have also considered the recent decisions of the Ontario Court of Appeal in R. v. Eldon, 2025 ONCA 348 and R. v. Thring, 2025 ONCA 389, which confirm that the SOIRA order is presumptive but not mandatory, and that the burden is on the offender to show that in the circumstances the order should not be imposed.

[51] I am persuaded that although this was a serious offence, Mr. Plummer is a very youthful first offender who has no other criminal history. The offender and the complainant were friends, and Mr. Plummer otherwise has a pro-social background of gainful employment and continuing education. I find it extremely unlikely that he would reoffend in any context. I find that a SOIRA order would not effectively serve the purpose set out in 490.012(3)(a) of the Code.

[52] Accordingly, I find that Mr. Plummer has met his burden to show that the SOIRA order would not effectively serve its intended purpose, and I decline to impose a SOIRA order.

J. Ross Macfarlane Justice

Released: August 21, 2025