Court File and Parties

Court File No.: CR-23-10000729-0000 Date: 2025-09-10

Ontario Superior Court of Justice

Between:

His Majesty the King – and – I.S.M.

Counsel:

• Karolina Visic and William Deck, for the Crown
• Michael Juskey, for the accused, I.S.M.

Heard: June 16, 2025

Reasons for Sentence

(Subject to a publication ban that applies to any information that might identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

VERMETTE J.

A. FACTUAL BACKGROUND

1. Facts that are not in dispute

[1] On February 12, 2025, I.S.M. was found guilty of sexual assault by a jury.

[2] On June 16, 2025, I heard sentencing submissions and reserved judgment. These are my reasons for sentence.

[3] Mr. M. and the complainant, B.H., met while they were both students at university. They dated and were in a relationship for less than a year around 2013 to 2014. B.H. ended the relationship at some point in 2014.

[4] After they graduated, Mr. M. and B.H. did not see or communicate with each other until September 2022. At that point, B.H. and Mr. M. reconnected over social media. Mr. M. was living in Burlington and B.H. was living in Toronto. Eventually, they made plans to get together on October 16, 2022. They had seen each other in Toronto once before October 16, 2022.

[5] On October 16, 2022, Mr. M. arrived at B.H.'s condominium at approximately 3 p.m. They sat and talked. They drank wine and other alcoholic beverages. They later went to a restaurant downtown to have dinner. There, they ate and drank more alcohol.

[6] After dinner, Mr. M. and B.H. returned to B.H.'s condominium. There, they again sat and talked. They also played games and drank some more. At some point during the night, it was agreed that Mr. M. would sleep over given the quantity of alcohol consumed. They went to bed at around 4 a.m.

[7] There was sexual activity in the bed, but what happened is in dispute.

[8] The following morning, B.H. and Mr. M. woke up at around 11 a.m. Shortly after they woke up, Mr. M. – referring to the night before – asked B.H. whether she was asleep. Mr. M. left B.H.'s condominium at approximately 1 p.m. Later that day, Mr. M. and B.H. exchanged text messages regarding what had happened the night before.

[9] B.H. was going through health issues in October 2022. Mr. M. was aware that B.H. was having health issues.

[10] After his arrest, Mr. M. was released on an undertaking. The defence concedes that the conditions contained in the undertaking – which included not contacting B.H., not being within 100 meters of where she was known to be, and advising the officer in charge of any change of address or employment – were not onerous. Mr. M. has had no issues complying with the conditions.

2. Findings of fact

a. Applicable principles

[11] Following a trial with a jury, the sentencing judge must do their best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. The sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. In doing so, the sentencing judge: (a) is bound by the express and implied factual implications of the jury's verdict; and (b) must accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty, and must not accept as fact any evidence consistent only with a verdict rejected by the jury. See R. v. Ferguson, 2008 SCC 6 at paras. 16-17 ("Ferguson").

[12] When the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury. It would be speculative and artificial to attempt to do so because jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: see Ferguson at para. 22. Rather than attempt to follow the logical process of the jury, the sentencing judge should come to their own independent determination of the relevant facts. In doing so, the sentencing judge may find any other relevant fact that was disclosed by evidence at the trial. To rely upon an aggravating fact, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. See Ferguson at para. 18 and section 724 of the Criminal Code.

b. Positions of the parties

[13] The Crown submits that this Court should make the following factual findings:

a. After B.H. fell asleep, Mr. M. cuddled with her, kissed her, fondled her, removed her clothes, penetrated her vagina with his fingers and then with his penis without a condom. None of this was consensual.

b. The penile penetration lasted longer than what was described by Mr. M. at trial, and long enough for Mr. M. to have ejaculated inside B.H.'s vagina during the sexual assault.

c. Mr. M. and B.H. did not have sexual intercourse after they woke up.

[14] The Crown argues that it would be an error to accept wholesale the evidence of Mr. M. when the jury did not. The Crown refers to the test set out in R. v. W.(D.), and expresses the view that the jury must have rejected Mr. M.'s evidence and believed B.H.

[15] The defence submits that Mr. M.'s testimony and narrative should be accepted. The defence argues that this Court should find that the sexual interaction began as consensual, the sexual intercourse was short in duration, Mr. M.'s intoxication negated his defence of honest but mistaken belief in communicated consent, and there was consensual sexual intercourse the morning after the sexual assault.

c. Factual determinations

[16] I disagree with the Crown's submission that the jury's verdict must necessarily mean that the jury wholly accepted the evidence of B.H. and wholly rejected the evidence of Mr. M. It was possible for the jury to conclude that Mr. M. was guilty of sexual assault without accepting the evidence of B.H. in its entirety and rejecting the evidence of Mr. M. in its entirety.

[17] I note that B.H. only remembered very limited parts of the sexual activity – i.e., fingers inside of her vagina rubbing her, and penile-vaginal penetration with thrusting. Proof of a complainant's lack of memory or proof of intoxication, although relevant, are not enough to establish lack of capacity. See R. v. S.B., 2023 ONCA 784 at para. 49. As the jury was instructed in this case, a complainant may have been able to consent in the moment, notwithstanding that she was intoxicated at the time and/or that she later cannot remember what happened.

[18] While the jury would, at a minimum, have been satisfied beyond a reasonable doubt that B.H. did not consent to some of the sexual activity described by Mr. M., the jury may not have been satisfied beyond a reasonable doubt that B.H. did not consent to all of the sexual activity that took place. Thus, acceptance of the entirety of B.H.'s evidence was not essential to the jury's verdict in this case and is not an express or implied factual implication of the jury's verdict.

[19] I now turn to the findings of facts that the parties have asked me to make.

[20] I am not satisfied beyond a reasonable doubt that:

a. B.H. was unconscious and unable to consent during the entire sexual activity that took place prior to the penile-vaginal penetration;

b. Mr. M. knew that B.H. did not consent throughout the entire sexual activity prior to the penile-vaginal penetration, or did not honestly believe that B.H. communicated consent throughout the entire sexual activity prior to the penile-vaginal penetration; and

c. Mr. M. ejaculated inside B.H.'s vagina during the sexual assault. While the analysis of the swabs that were taken of B.H.'s external genitalia and vagina for the Sexual Assault Evidence Kit two days after the sexual assault suggested the presence of one male's semen, the evidence is that semen can persist in the vagina for up to 12 days following the deposition, and there is no direct evidence that the semen was Mr. M.'s semen.

[21] The facts above would be aggravating facts, if established. Given that I am not convinced of their existence beyond a reasonable doubt, I do not rely on them.

[22] The following are my factual findings for the purpose of sentencing. I find that at some point prior to the penile-vaginal penetration, B.H. lost consciousness and lacked the capacity to consent to engage in sexual activity with Mr. M. I also find that after B.H. lost consciousness, Mr. M. was reckless about whether B.H. was consenting to the sexual acts as they were occurring, and he failed to take reasonable steps in the circumstances known to him at the time to ascertain B.H.'s consent for each sexual act in the course of their activities. Thus, B.H. did not consent to the sexual activity, including the penile-vaginal penetration, after she lost consciousness, and Mr. M. did not honestly believe that B.H. communicated consent to that sexual activity. Based on the evidence and factual context of this case, I conclude that the factual findings above are implied factual implications of the jury's verdict.

[23] In my view, it is not necessary to determine the following in order to decide the appropriate sentence in this case:

a. The exact moment at which B.H. became unconscious and unable to consent. Given Mr. M.'s own evidence, B.H. was unconscious at some point during the penile-vaginal penetration, which is the most invasive sexual act that took place. In my view, the finding of fact above regarding B.H.'s loss of consciousness is a sufficient factual determination for deciding the appropriate sentence, especially since I am unable to find beyond a reasonable doubt the aggravating facts set out in paragraph 20 above (in particular, subparagraphs a and b).

b. Whether Mr. M. and B.H. had consensual sexual activity after they woke up at around 11 a.m. in the morning after the sexual assault, and whether Mr. M. ejaculated inside B.H.'s vagina at that time. It is unnecessary to determine this issue because: (i) if sexual activity took place, it was consensual; and (ii) I have already addressed above the issue of the presence of semen on the swabs that were taken of B.H.'s external genitalia and vagina for the Sexual Assault Evidence Kit two days after the sexual assault.

3. Pre-sentence report

[24] A pre-sentence report ("PSR") was prepared in this case. The following information is set out in the PSR.

[25] Mr. M. is 32 years old and lives in Burlington, Ontario. He is a first-time offender.

[26] Mr. M. purchased a condominium in Burlington approximately four years ago. He has a mortgage.

[27] Mr. M. was born in Oakville, Ontario. He has an older sister. He reported having a happy childhood. Mr. M. has a positive relationship with his parents and his sister, and he described his family as being very close. Mr. M. has been open in discussing the offence with his family.

[28] Mr. M. attended university and graduated in 2015. He obtained a Bachelor of Arts degree. Mr. M. subsequently completed a one-year technical diploma at a college in Brampton for electrical techniques. He graduated in 2017 or 2018. He then completed a five-year electrical apprenticeship. In July 2024, he wrote the Certificate of Qualification exam, but he did not pass. He plans to rewrite the exam.

[29] Mr. M. has been employed full-time at his current place of employment as an electrical apprentice since 2019. He has a positive relationship with his employer and colleagues. He typically works within the Greater Toronto Area, but he is required on occasion to work across Ontario or Quebec. Mr. M. has advised his employer of the offence before the Court.

[30] Mr. M. has been in a relationship with his current partner for more than six months, but they have known each other for more than six years. Both Mr. M. and his partner describe their relationship as positive and supportive.

[31] The probation officer who wrote the PSR notes that Mr. M. has pro-social familial support, but also expresses the view that the fact that his family and current partner do not agree with his finding of guilt raises concerns regarding their ability to keep Mr. M. accountable for his behaviour.

[32] Mr. M.'s use of alcohol increased following university. However, he currently only consumes alcohol on the weekend, usually only a couple of glasses of wine. When he was younger, Mr. M. used marijuana in the evening as a sleep aid, but he reported that he now rarely uses marijuana. Mr. M. stated that he experimented with cocaine a few times with friends at the age of 26, but he denies any current use. Mr. M. has had some tickets in the past for being intoxicated in public.

[33] Mr. M. reported no physical or mental health concerns. Since February 2025, he has been attending counselling. According to Mr. M., being able to talk to someone about the offence "without bias" has been helpful. Mr. M.'s counsellor indicated to the probation officer who wrote the PSR that, prior to the onset of counselling, Mr. M. had completed a lot of self-reflection about the offence. The counsellor also reported no concerns regarding future offending. The following topics were covered during the counselling sessions: sexual healthy boundaries, understanding the impacts of boundary violations, exploring maladaptive beliefs, values and behaviours, recognizing and managing triggers and warning signs.

[34] Mr. M. is not currently involved in any organized activities. He enjoys spending his spare time going out with his partner, visiting friends, going out for dinner, and playing video games. He reported having a very close group of friends whom he has known since elementary and secondary school. Since the offence, friends have reached out to him to offer support.

[35] The probation officer who wrote the PSR also spoke with B.H. Mr. M. and B.H. described their prior relationship – i.e., while they were attending university – in very different ways to the probation officer. B.H. told the probation officer that her life has been negatively impacted by the offence, and that she has been struggling with her mental health.

[36] Mr. M. expressed remorse for his actions and stated that he felt terrible and ashamed. In his view, slowing down, consuming fewer intoxicating substances, and communicating better are ways that he can adopt to prevent himself from re-offending.

4. Victim impact statement

[37] B.H. read her victim impact statement in court.

[38] In her statement, B.H. says that her life was permanently altered by the sexual assault, and that the psychological, emotional and financial "wounds" of the sexual assault remain with her every single day.

[39] B.H. states that the emotional impact of the sexual assault has been deep. She has battled with intense anxiety and stress, persistent fear and paranoia, waves of sadness and trust issues. She has struggled with irregular sleeping patterns and she feels no longer safe. She has felt guilt and shame, even though she knows that she is not to blame.

[40] B.H. also states that the sexual assault has changed how she views herself. She says that simple decisions and tasks now feel overwhelming, and that she has experienced difficulties concentrating, memory problems, self-doubt and embarrassment. While therapy was useful, B.H. found that progress was slow and exhausting. She notes that she is "constantly doing the work to heal from something [she] never asked for and most definitely something [she] never deserved."

[41] B.H. says that the financial impact of the sexual assault has been draining. She refers to money spent on therapy, medical appointments and prescriptions. She also states that opportunities were lost because she was in survival mode and just trying to get through the day.

5. Support letters filed by the defence

[42] The defence filed four letters written by Mr. M.'s current partner, employer and friends. The following summarizes some of the information provided in the letters.

[43] Mr. M.'s partner describes him as a person who is kind, thoughtful, deeply respectful of others, warm, attentive, compassionate, emotionally intelligent, trustworthy, dependable, calm, patient, mature, with a strong sense of integrity and who consistently shows up for the people in his life. She states that Mr. M. is a true partner and that he believes in mutual respect, equality, and being present for those he loves.

[44] Mr. M.'s two friends describe him as a reliable and loyal friend and a genuinely good, kind and thoughtful person. They repeat some of the qualities mentioned in the letter written by Mr. M.'s partner. Mr. M. is also said to be hard-working, to use logic in his decision-making and to have always been one to stand up and protect others.

[45] Mr. M.'s employer (to be more precise, the Vice-President of the corporation who employs Mr. M.) states that Mr. M. has been an exemplary employee who is punctual, hard-working and has a great workplace attitude. He describes Mr. M. as a very loyal person who is always respectful to everyone. He writes that Mr. M. has leadership skills and is always one of the first to head up or be involved in all team building activities. He ends his letter by stating that Mr. M. "is a large part of the future growth of our company" and that he is confident in Mr. M.'s abilities to continue performing in his role.

6. Letter from Mr. M.'s counsellor

[46] Mr. M.'s counsellor, Mr. Pablo Alvarez, wrote a letter dated May 2, 2025 confirming that Mr. M. had completed eight sessions of the Healthy Sexual Boundaries and Substance Abuse Counselling Program. This program comprises 45-minute one-on-one sessions, with assigned homework between sessions.

[47] Mr. Alvarez expresses the following opinions in his letter:

In my clinical opinion, based on Mr. [M.]'s account and presentation, he does not demonstrate characteristics consistent with predatory or coercive behaviour. He expressed regret and concern regarding the plaintiff's reaction the following morning. While he acknowledges that he did not obtain explicit consent, he believed, at the time, that their interaction was mutual and based on a shared understanding stemming from their prior relationship and the plaintiff's initiation of the reconnection. Mr. [M.] reports that she did not express any objection or discomfort during the incident, and he interpreted her actions as consensual.

Based on the information provided, there is no indication that Mr. [M.] approached the situation with harmful intent or acted with malice. Rather, the encounter appears to have occurred in a context of impaired judgment, mutual intoxication, and miscommunication regarding consent. To address these issues and prevent a recurrence, Mr. [M.] was given the following treatment: […]

Since the incident, Mr. [M.] has engaged meaningfully in self-reflection and personal development. He has demonstrated a clear understanding of the importance of maintaining respectful and mutually consensual relationships. His participation in counselling has been consistent and productive, and he has shown insight into the factors contributing to the incident in question.

Based on my clinical observations, Mr. [M.] is assessed to be at low risk of recidivism. His current lifestyle changes, healthy relational supports, and increased awareness of boundaries and communication significantly reduce the likelihood of future incidents. However, I recommend that he continue counselling to support his emotional recovery from the incident, strengthen his sense of self and emotional security, and receive guidance as he navigates his current romantic relationship.

7. Psychological assessment report

[48] Dr. Monik Kalia, a clinical and forensic psychologist, conducted a psychological assessment of Mr. M. and submitted a report in April 2025.

[49] Dr. Kalia's report sets out Mr. M.'s personal history (as reported by him), collateral information received from Mr. M.'s counsellor and his current partner, and the results of psychological testing. Dr. Kalia's report contains the following opinions:

Mr. [M.] does not exhibit traits of any personality disorder, antisociality, impulsivity, calculated coercion, or sexual deviancy. His offending appears to be situational driven by a misinterpretation of consent under the influence of alcohol and a renewed sense of past intimacy that likely distorted his understanding of boundaries.

Mr. [M.]'s engagement in counselling and his efforts to address issues of consent and sexual boundaries indicate a willingness to reflect and change. He has good insight into his behaviour that led to his involvement with the criminal justice system. He also appreciates the negative impact on [B.H.]. His involvement with the criminal justice system appears to have had a sobering effect on him and has contributed to greater awareness of the consequences of his behaviour. He has been in the community for over three years and has had no trouble following the bail conditions since his arrest. Overall, the risk of Mr. [M.] engaging in similar behavior is assessed to be low. He does not appear to pose an ongoing threat to public safety. Should he maintain his current trajectory, the likelihood of future legal involvement for a similar offense remains low. […]

8. Mr. M.'s statement

[50] Pursuant to section 726 of the Criminal Code, Mr. M. was asked whether he had anything to say regarding his sentence.

[51] Mr. M. stated that he has remorse, is very sorry for what happened, and feels horrible about all of this. He also stated that he is willing to do anything that it takes to make everything right.

B. POSITIONS OF THE PARTIES

1. Position of the Crown

[52] The Crown's position is that an appropriate sentence in this case is a 3.5-year custodial sentence. The Crown also requests the following ancillary orders:

a. a restitution order in the amount of $4,433.52 pursuant to section 738(1)(b) of the Criminal Code;

b. a DNA order pursuant to section 487.051(1) of the Criminal Code;

c. a non-communication order with B.H. during the custodial period of the sentence pursuant to section 743.21(1) of the Criminal Code;

d. a 10-year weapons prohibition order pursuant to section 109 of the Criminal Code;

e. an order that Mr. M.'s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years pursuant to section 490.012(3) of the Criminal Code ("SOIRA Order"); and

f. an order that Mr. M. pay a victim surcharge in the amount of $200.00 pursuant to subsections 737(1) and 737(2)(b)(ii) of the Criminal Code.

[53] The Crown states that B.H. was a vulnerable person who was incapacitated and/or asleep and sexually assaulted in her own bedroom. The Crown submits that primary consideration should be given to the objectives of denunciation and general deterrence in such circumstances. The Crown points out that the fact that a victim was asleep is considered to be an aggravating factor.

[54] The Crown argues that the following factors are aggravating factors in this case:

a. Vulnerable victim who was asleep, unconscious or otherwise incapacitated.

b. Abuse of an intimate partner.

c. Significant impact on the victim.

d. Mr. M. was not wearing a condom.

e. The degree of invasiveness of the sexual assault (penile penetration).

f. Violation of the victim in the sanctity of her home.

[55] The Crown submits that there are some "neutral" factors, including the fact that Mr. M. pleaded not guilty, he may have been reckless about whether there was consent as opposed to having personal knowledge of the lack of consent, and he was intoxicated at the time of the sexual assault. While the Crown acknowledges that the fact that Mr. M. was drunk affects his moral blameworthiness, the Crown's position is that Mr. M.'s self-induced intoxication does not take this case out of the range of penitentiary sentences.

[56] The Crown notes the following mitigating factors:

a. Mr. M. does not have a criminal record.

b. He has led a pro-social life and is otherwise of good character.

c. He has a good rehabilitation potential, which is slightly tempered by a pattern of victim blaming and a lack of insight.

d. He has engaged in upfront work and there is a low risk of reoffending.

e. He has support from family and friends.

[57] The Crown acknowledges that Mr. M. has some moral awareness that something wrong happened, which is reflected in the text messages that he sent. However, the Crown's view is that Mr. M. only has remorse with respect to the version of events that he accepts, not with respect to the full extent of what happened and what he has been convicted for.

[58] The Crown points out that the applicable sentencing range in this case is three to five years. The Crown states that absent the mitigating factors in this case, it would have sought a four-year custodial sentence. The Crown argues that a three-year custodial sentence would not account for the aggravating factors in this case. The Crown also argues that there is nothing in this case that would justify a sentence outside of the range and that a conditional sentence order is not appropriate in this case.

[59] The Crown refers to a number of cases in support of its position, and distinguishes the cases relied upon by the defence. Among other things, the Crown submits that cases that proceeded summarily are not relevant, and points out that most of the cases relied upon by the defence were decided prior to the Court of Appeal's decision in R. v. A.J.K., 2022 ONCA 487 ("A.J.K."), which set the sentencing range of three to five years.

[60] The Crown argues that a restitution order is appropriate in this case. The Crown also argues that a SOIRA Order is necessary in this case, and that such an order would not have a disproportionate effect on Mr. M. The Crown points out that the onus is on Mr. M. to show that a SOIRA Order should not be made in this case.

2. Position of the defence

[61] The defence's position is that an appropriate sentence is a conditional sentence of two years less a day, with a house arrest condition (with an exception to allow Mr. M. to go to work). The conditional sentence would be followed by a two-year probation, with a requirement to do 240 hours of community service.

[62] The defence argues that the proposed sentence "has teeth" and addresses the objectives of denunciation and deterrence.

[63] The defence submits that sentencing ranges are merely a suggestion and a place to start, and that departure from the range can be appropriate in certain cases. According to the defence, this is one of those cases.

[64] The defence points out that Mr. M.'s background is positive overall. He is a youthful first offender, highly educated and employed. The defence states that Mr. M. expressed sincere and genuine remorse immediately after the incident in text messages. The defence denies any victim blaming on the part of Mr. M., and notes that the fact that he is asserting his narrative does not constitute victim blaming. The defence asserts that Mr. M.'s remorse has been ongoing and has been expressed many times to a number of people. The fact that Mr. M. has expressed sincere, genuine, immediate and repetitive remorse makes this case an exceptional one.

[65] The defence submits that the PSR and the support letters are overwhelmingly positive. The defence also relies on the report of Dr. Kalia and the letter of Mr. Alvarez. The defence states that Mr. M. has insight into his behaviour.

[66] The defence argues that this case may have significant collateral consequences for Mr. M. Among other things, he may lose his job and have trouble travelling.

[67] The defence is jointly proposing with the Crown that a restitution order in the amount of $4,433.52 be made so as to address the principle of restorative justice.

[68] The defence relies on sections 718.2(d) and (e) of the Criminal Code, and states that: (a) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (b) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim or to the community should be considered for all offenders.

[69] The defence's position is that a conditional sentence with house arrest, a restitution order, community service and a probation order is a fit and appropriate sentence based on Mr. M.'s narrative, and one that is punitive and satisfies all the principles of sentencing. The defence submits that this Court is not bound by the sentencing range of a custodial sentence of three to five years.

[70] The defence opposes the making of a SOIRA Order in this case. The defence points out that the opinion of two experts who have examined Mr. M. is that he presents a low risk of reoffending. The defence submits that there is no connection between making the order and the purpose of helping the police services prevent or investigate crimes of a sexual nature. The defence also submits that given Mr. M.'s background and circumstances, the steps he has taken to address his rehabilitation, his remorse and his insight into his behaviour, it would be inappropriate to make a SOIRA Order in this case.

[71] The defence consents to the remaining of the ancillary orders sought by the Crown.

C. DISCUSSION

1. Relevant sentencing principles

a. General principles

[72] The main principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that "just sanctions" will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See R. v. Morris, 2021 ONCA 680 at paras. 58-59 ("Morris").

[73] The goal in every case is a fair, fit and principled sanction, and proportionality is the organizing principle in reaching this goal. All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Individualization is central to the proportionality assessment. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case. See R. v. Parranto, 2021 SCC 46 at paras. 10, 12.

[74] The objectives of individual deterrence and rehabilitation are paramount with respect to the sentencing of first offenders, particularly youthful first offenders. The principle of restraint serves to minimize a youthful first offender's sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and, where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender. See R. v. Priest and R. v. Desir, 2021 ONCA 486 at paras. 31, 41 ("Desir"). The principle also requires the sentencing judge to consider rehabilitation in determining the appropriate length, recognizing that in very serious cases and cases involving violence, rehabilitation alone is not the determinative factor and general deterrence and denunciation must also be considered. See Desir at para. 41 and R. v. Thurairajah, 2008 ONCA 91 at para. 41.

b. Sexual assaults

[75] All sexual assaults are inherently violent and serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object. Victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. See A.J.K. at para. 74 and R. v. S.W., 2024 ONCA 173 at para. 93 ("S.W."). As a result, denunciation and deterrence are primary considerations on sentencing in cases of sexual assault. See R. v. R.S., 2023 ONCA 608 at para. 39 ("R.S.") and A.J.K. at para. 83.

[76] Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. The suggested sentencing range in the case law is three to five years. See A.J.K. at para. 77. "Forced" penetration refers to the lack of consent and does not require the presence of additional violence beyond the violence inherent in non-consensual intercourse. See S.W. at paras. 38-39.

[77] While sentencing ranges reflect the principles and objectives of sentencing and are used to ensure the parity of sentences, they are primarily guidelines, not straightjackets. Sentencing judges must still exercise their discretion in each case. See A.J.K. at para. 71 and R. v. Lacasse, 2015 SCC 64 at paras. 57-60.

c. Conditional sentence

[78] A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders: see R. v. Proulx, 2000 SCC 5 at para. 21 ("Proulx"). Conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Thus, conditions like house arrest should be the norm, not the exception. The offender should be confined to their home except when working, attending school, fulfilling other conditions of their sentence or pursuant to other exceptions such as medical emergencies. See Proulx at paras. 36, 103.

[79] There are four criteria that a court must consider before deciding to impose a conditional sentence (see Proulx at para. 46 and section 742.1 of the Criminal Code):

a. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment and that is not listed in subsections 742.1(c) or (d).

b. The court must impose a term of imprisonment of less than two years.

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

d. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[80] No offences are excluded from the conditional sentencing regime, except those with a minimum term of imprisonment and the offences that are listed in section 742.1 of the Criminal Code: see Proulx at para. 127(3). Serious consideration should be given to the imposition of a conditional sentence in all cases where the first three prerequisites listed above are satisfied: see Proulx at paras. 90 and 127(7).

[81] The prerequisite that the court impose a term of imprisonment of less than two years only requires the sentencing judge to make a preliminary determination rejecting a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years and being satisfied that the offender would not endanger the community, the judge should then consider whether it is appropriate for the offender to serve their sentence in the community. A conditional sentence need not be of equivalent duration to the sentence of incarceration that would have otherwise been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. See Proulx at paras. 127(4) and (5).

[82] I now turn to the aggravating and mitigating factors in this case.

2. Aggravating factors

[83] There are some aggravating circumstances in this case:

a. Mr. M. abused a former intimate partner. See section 718.2(a)(ii) of the Criminal Code.

b. B.H. was asleep or unconscious at the time of the sexual assault and, therefore, unable to consent. She was in a vulnerable position and unable to defend herself. See S.W. at para. 42 and R. v. Arcand, 2010 ABCA 363 at para. 283.

c. The offences took place in B.H.'s home, a place where she should have been feeling safe and secure. See R.S. at para. 51 and R. v. Touray, 2024 ONSC 3748 at para. 20.

d. Mr. M. did not wear a condom and had unprotected vaginal intercourse with B.H. See R. v. T.W., 2019 ONSC 5596 at para. 40.

e. Pursuant to section 718.2(a)(iii.1) of the Criminal Code, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, constitutes an aggravating circumstance. B.H. provided a victim impact statement in this case in which she describes how Mr. M.'s actions have impacted her life. I accept that the offence has had a significant impact on B.H.[1]

3. Mitigating factors

[84] I now turn to the mitigating circumstances relevant to sentence.

[85] Mr. M. is a relatively young first-time offender. He does not have a criminal record.

[86] Mr. M. has the strong support of his family, partner, employer and friends. He has led a pro-social life, and has been continually and successfully employed for many years.

[87] Mr. M. has done "upfront work" and attended counselling sessions regarding healthy sexual boundaries and substance abuse issues. He has meaningfully engaged in self-reflection and personal development.

[88] Mr. M. appears to have good rehabilitative potential and the risk of Mr. M. engaging in similar behavior in the future is low.

[89] Remorse can offer meaningful mitigation when accompanied by an acceptance of responsibility for one's crime: see Morris at para. 157. I accept that Mr. M. has insight into his actions and the harm that they caused to B.H., and that he is prepared to take responsibility for his actions. I am satisfied that Mr. M.'s overall attitude is conducive to a successful rehabilitation. I also note that: (a) Mr. M. apologized to B.H. and acknowledged that something wrong had happened less than 24 hours after the sexual assault took place; and (b) he himself raised the issue of whether B.H. was asleep during the sexual activity shortly after he and B.H. woke up in the morning after the sexual assault.

[90] I disagree with the Crown that Mr. M. exhibited any victim blaming behaviour. In my view, there was no victim blaming with respect to the events before the Court. While the parties provided very different accounts of their past relationship in the documents that were before the Court for sentencing, this Court is not in a position to make any findings of fact about what happened between the parties while they were university students. Further, I agree with the defence's submission that the fact that Mr. M. does not agree with everything that B.H. said does not amount to victim blaming. It also does not negate the remorse felt by Mr. M. and the fact that he is prepared to take responsibility for his decision to penetrate B.H.'s vagina with his penis while she was unable to consent.

[91] Mr. M. was intoxicated at the time of the offence. While this is relevant to his moral culpability, this mitigating factor is not one that can be given any significant effect. However, I note that Mr. M. has taken steps to address issues related to his consumption of alcohol and that he has significantly reduced the quantity of alcohol that he drinks on a weekly basis. See R. v. Berseth, 2019 ONSC 888 at paras. 105, 108-109.

[92] The type of mens rea possessed by Mr. M. at the time of the offence does not constitute a mitigating factor. Whether Mr. M. had knowledge of B.H.'s lack of consent or was reckless as to whether there was consent, he is equally blameworthy. See R. v. Tweneboah-Koduah, 2018 ONCA 570 at para. 33.

4. The appropriate sentence

a. Term of imprisonment

[93] In my view, a conditional sentence is not appropriate in this case because a term of imprisonment of less than two years would be inappropriate and inconsistent with the principles of sentencing applicable in this case. Conditional sentences are rarely proportionate in cases of sexual assault involving penetration because, as stated by the Court of Appeal in A.J.K., the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the three to five-year range. See S.W. at paras. 37 and 46, and C.P. at paras. 38-39. Given the seriousness of the offence and the aggravating factors in this case – including that Mr. M. penetrated B.H.'s vagina with his penis without using a condom while she was unconscious and highly intoxicated – a term of imprisonment of less than two years would not sufficiently meet the overarching objectives of denunciation and deterrence.

[94] All of the cases relied upon by the defence can be easily distinguished. Except for one case, all the cases proceeded by way of summary conviction. As a result, the maximum available sentence in these cases was 18 months of incarceration: see section 271(b) of the Criminal Code. Further, most of the cases relied upon by the defence (including the only case that was not a summary conviction case) were decided before the decisions of the Court of Appeal in A.J.K. and R.S.

[95] While it is my view that a term of imprisonment of less than two years would be inappropriate in this case, it is also my view that, when considered together, the mitigating factors in this case are "highly mitigating". Among other things:

a. Mr. M. is a first-time offender who is relatively young, i.e., 32 years old.

b. Mr. M. has expressed genuine remorse less than 24 hours after the offence and many times thereafter.

c. Since the offence, Mr. M. has engaged meaningfully in self-reflection and personal development. He has completed counselling sessions on the issues of healthy sexual boundaries and substance abuse. His participation in counselling was consistent and productive. Mr. M. has shown insight into his conduct and a willingness to change. He has reduced his alcohol consumption.

d. Mr. M. has led a pro-social life and has been continually and successfully employed for many years.

e. Mr. M. has the strong support of his family, partner, employer and friends.

f. The risk of Mr. M. engaging in similar behaviour in the future has been assessed to be low.

g. Mr. M. has consented to pay restitution to B.H., thereby acknowledging the harm done to her.

[96] In light of the foregoing, I find that the mitigating factors present in this case justify a term of imprisonment slightly below the sentencing range identified in A.J.K. I conclude that a penitentiary sentence of 32 months is the appropriate sentence in this case.

[97] In my view, the cases relied upon by the Crown support this conclusion based on their similarities or dissimilarities with the facts of this case:

a. R. v. Ruelas, 2022 ONCA 262, sentence of three years, six months' incarceration: The gravity of the offence and the moral blameworthiness of the accused were higher in that case. Among other things, when the victim protested, the accused told her to shut up, he ripped her tank top, and at one point he placed his hand on the victim's throat with sufficient force to cause bruising. Further, the accused had a criminal record (although unrelated), and none of the letters of support filed by the accused post-dated his arrest and detention on new charges prior to the date of sentencing. This case supports the imposition of a shorter term of imprisonment in the present case.

b. R. v. E.M., 2024 ONCA 399, sentence of 30 months' imprisonment: The factual circumstances of this case are similar to the present case. Further, like in the present case, the accused had taken steps towards rehabilitation, had strong rehabilitative prospects, and had expressed remorse. The accused was slightly more morally blameworthy than Mr. M. as "he was conscious and sober the entire time". However, he pleaded guilty, which is not the case here. The fact that the accused pled guilty is highly mitigating and supports a somewhat lower term of imprisonment than in the present case.

c. R. v. Martinez-Reynosa, 2024 ONSC 4737, sentence of four years' imprisonment: The aggravating factors in this case were significant and more important than in the instant case. The accused had sex with the victim twice while she was sleeping and intoxicated. Although the accused had been to the victim's apartment the night before, he returned to her apartment and let himself in several hours later without invitation. There was an element of trust between the victim and the accused as he was older than her and in a supervisory position at the company at which they both worked. This case supports the imposition of a shorter term of imprisonment in the present case.

d. S.W., sentence of three years' imprisonment imposed on appeal: The gravity of the offence was higher in S.W. as the accused sexually assaulted the victim four times over the course of one night. While there were mitigating factors in S.W. – including the fact that the accused was a first offender, he had expressed some remorse and had close ties with his parents and children – there are more mitigating factors in this case. This case supports the imposition of a moderately shorter term of imprisonment in the present case.

e. C.P., where the Court of Appeal would have imposed a sentence of three years and six months' imprisonment: The gravity of the offence and the moral blameworthiness of the accused were higher in that case. Among other things, the accused placed his hands around the victim's neck to hold her down, and he also placed his hand down her throat. He performed various sexual acts without the victim's consent. She said "no" multiple times, but the accused responded: "you like this" and "you want this". This case supports the imposition of a shorter term of imprisonment in the present case.

[98] In light of the unique circumstances of this case, the mitigating and aggravating factors discussed above, the cases referred to by the parties (including their similarities and dissimilarities with this case), and the various objectives and principles of sentencing discussed above, I conclude that a sentence of 32 months' imprisonment is a fit sentence that is proportionate to the gravity of the offence and the degree of responsibility of Mr. M.

b. Restitution order

[99] Subsection 738(1)(b) of the Criminal Code provides that where an offender is convicted, and where a person has suffered bodily or psychological harm as a result of the commission of the offence, the court imposing sentence may order that the offender make restitution to that person by paying an amount not exceeding all pecuniary damages incurred as a result of the harm, if the amount is readily ascertainable.

[100] An order for compensation should be made with restraint and caution. The loss should be capable of ready calculation. A sentencing judge should consider, among other things, whether civil proceedings have been initiated and the means of the offender. See R. v. Castro, 2019 ONCA 718 at para. 24, R. v. Nygard, 2024 ONSC 4837 at paras. 73-74, and R. v. Robertson, 2020 ONCA 367 at para. 7.

[101] During the sentencing hearing, the Crown filed a restitution statement prepared by B.H., as well as a breakdown of the medications paid for by B.H. from October 27, 2022 to May 27, 2025. These documents were marked as exhibits.

[102] The restitution statement seeks restitution in the amount of $4,433.52, composed of the following amounts:

a. Therapy (6 sessions at $150 each): $900

b. Future therapy (6 sessions at $150 each): $900

c. Medications: $2,633.52

[103] The medications breakdown provided by B.H. totals $2,540.51.[2] Therefore, the figure for medications in the restitution statement needs to be adjusted. After doing so, the total amount claimed is reduced to $4,340.51.

[104] In her victim impact statement, B.H. referred to the fact that she was going to therapy and that it was useful. The restitution statement contains explanations with respect to her claim for medications and how they are related to the harm that she suffered as a result of the offence. As stated above, Mr. M. consents to the restitution order sought.

[105] Based on her victim impact statement and her testimony at trial, I find that B.H. has suffered harm as a result of the sexual assault. In light of the evidence adduced at the sentencing hearing, I am satisfied that the amount sought (as adjusted above) does not exceed all pecuniary damages incurred as a result of the harm, and that the amount is readily ascertainable. There is no evidence that civil proceedings have been initiated, and no issue has been raised regarding Mr. M.'s ability to pay.

[106] Therefore, I order Mr. M. to pay restitution to B.H. in the amount of $4,340.51. Requiring Mr. M. to pay restitution to B.H. assists in advancing the sentencing objectives of providing reparations for the harm done to the victim, and promoting a sense of responsibility in Mr. M. and an acknowledgement of the harm done to the victim. See section 718 of the Criminal Code and R. v. Capehart, 2024 ONSC 3651 at para. 58.

c. SOIRA Order

[107] The applicable provision is subsection 490.012(3) of the Criminal Code. Pursuant to this provision, when a court imposes a sentence for sexual assault, the court shall make a SOIRA Order unless the court is satisfied that the accused has established that:

a. there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; or

b. the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

[108] Subsection 490.12(4) states that in determining whether to make an order, the court shall consider the following factors:

a. the nature and seriousness of the designated offence;

b. the victim's age and other personal characteristics;

c. the nature and circumstances of the relationship between the person and the victim;

d. the personal characteristics and circumstances of the person;

e. the person's criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;

f. the opinions of experts who have examined the person; and

g. any other factors that the court considers relevant.

[109] A consideration of the relevant factors supports the defence's position with respect to the imposition of a SOIRA Order. Based on the opinions of Dr. Kalia and Mr. Alvarez, Mr. M. is at low risk of recidivism. Mr. M. has very good rehabilitative potential, has expressed remorse, and has meaningfully engaged in counselling, self-reflection and personal development. While the offence is a serious one and the victim was a former intimate partner, I agree with the assessment of Dr. Kalia that the offence appears to have been "situationally driven". Mr. M. does not have a criminal record, he has been continually and successfully employed for many years, and he has the strong support of his family, partner, employer and friends. His job has sometimes required him to travel throughout the province and outside the province.

[110] In light of these factors, I am satisfied that Mr. M. has established the two elements set out in subsection 490.012(3). More specifically, I am satisfied that: (a) there would be no connection between making a SOIRA Order in this case and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under the Sex Offender Information Registration Act; and (b) the impact of the order on Mr. M., including on his privacy and liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

[111] Therefore, I decline to make a SOIRA Order.

d. Other ancillary orders sought by the Crown

[112] As stated above, Mr. M. consents to the other ancillary orders sought by the Crown. The orders sought are standard and are granted.

D. DISPOSITION

[113] For the reasons set out above, Mr. M. is sentenced to a period of imprisonment of 32 months.

[114] In addition, I make the following ancillary orders:

a. Pursuant to subsection 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Mr. M.

b. Pursuant to subsection 109(1) of the Criminal Code, I make an order prohibiting Mr. M. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance for a period of 10 years.

c. Pursuant to subsection 743.21(1) of the Criminal Code, I make an order prohibiting Mr. M. from communicating, directly or indirectly, with B.H. during the custodial period of the sentence.

d. Pursuant to subsection 738(1)(b) of the Criminal Code, I order Mr. M. to make restitution to B.H by paying to her the amount of $4,340.51 within six months.

e. Pursuant to subsections 737(1) and 737(2)(b)(ii) of the Criminal Code, I order Mr. M. to pay a victim surcharge in the amount of $200.00 within six months.

Vermette J.

Released: September 10, 2025

[1] I note, however, that I do not accept everything that is included in B.H.'s statement from a causation perspective. Among other things, B.H.'s statement appears to ignore the fact that, as her own evidence showed at trial, she was already experiencing significant health issues at the time of the sexual assault, as well as difficulties holding employment in her chosen field. Further, as acknowledged by the Crown, the fact that Mr. M. pled not guilty and that B.H. had to testify in court does not constitute an aggravating factor.

[2] I have deducted the costs of the two therapy sessions that were included in the breakdown because the costs of therapy are included in a separate category in the restitution statement.