PUBLICATION BAN

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Court File and Parties

Court File No.: CR-24-40000308

Date: September 25, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King – and – F.S.

Counsel:

Taylor Curley, for the Crown

Omar Said, for the Defendant

Heard: August 6, 2025

Reasons for Sentence

Nishikawa J.

Overview and Background

[1] After a trial by judge and jury, on May 23, 2025, the jury found F.S. guilty of one count of sexual assault, contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the "Code"). The jury found F.S. not guilty of a second count of sexual assault, which was alleged to have occurred during a different time period.[1]

The Circumstances of the Offence

[2] After a jury renders a guilty verdict, the sentencing judge must decide the facts upon which the offender is to be sentenced: Code, s. 724(2). I need not arrive at a complete theory of the facts but must make those factual determinations necessary for the appropriate sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 98, at para. 16; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at paras. 104-106.

[3] As sentencing judge, I am bound by the express and implied factual implications of the jury's verdict. I must accept as proven all facts, express or implied, that are essential to the jury's finding of guilt. On the other hand, I must not accept any facts that are only consistent with a verdict that the jury rejected: Ferguson, at paras. 17-18.

[4] Where the factual implications of the jury's verdict are ambiguous, I must come to my own independent determination of the relevant facts consistent with the jury's verdict: Ferguson, at paras. 17-18. I am not required to assume that the jury took "the most lenient path to conviction": R. v. Nelson, 2014 ONCA 853, 325 O.A.C. 381, at para. 56. However, to rely upon an aggravating factor, I must be convinced of the existence of the fact beyond a reasonable doubt.

[5] To summarize the factual circumstances of this case, F.S. and the complainant's mother, J.N., were in a relationship from 2006 and moved in together in 2009. During that time, the complainant, S.N., was living in Uganda with her grandmother. In the summer of 2012, S.N. arrived in Toronto to live with J.N., F.S., and her half-brother. She was 10 years old at the time.

[6] In the summer of 2013, the family was living together in an apartment on Thorncliffe Park Drive. One night that summer, S.N. was having difficulty sleeping because it was very hot. J.N. was working the night shift and was not home. S.N.'s half-brother was sleeping in the room next to S.N.'s. At some point, F.S. came into S.N.'s room and asked her if she wanted to sleep in the living room where there was air-conditioning. F.S. then took her by the hand and led her down the hallway to the living room.

[7] When they got to the living room, F.S. laid down on the couch and pulled S.N. on top of him. S.N. felt some "shuffling" and the tie of her robe became loose. She was not wearing anything underneath. F.S. then unzipped his pants and S.N. felt something push against her vagina. S.N. testified that F.S. attempted to penetrate her vagina with his penis three times, but that it would not go in.

[8] The next morning, S.N. woke to her mother yelling at her and asking why she was sleeping on the couch. F.S. intervened to say that S.N. had wanted to sleep in the living room because it was so hot. S.N. testified that J.N. later, when she was taking her to or from summer camp, asked her whether anything had happened. S.N. told her that nothing had happened.

[9] S.N. did not mention the incident any further until 2019, when F.S. told her that they would be sending her to Uganda, because she had been caught smoking marijuana. F.S. had taken S.N. to Sherbourne Street to show her that if she continued to smoke weed, she would end up like the homeless people living there. S.N. testified that when F.S. asked her why she smoked marijuana, she asked him whether he remembered what he had done to her when she was 10 years old. In his testimony, F.S. confirmed that he took S.N. to Sherbourne Street and that they had a conversation on a park bench. He remembered S.N. confronting him about trying to have sex with her, but that he told her that it never happened. F.S. denied asking S.N. why she smoked.

[10] S.N. did not tell J.N. what had happened until November 2021. In June 2022, S.N. went to live with a friend after a falling-out with J.N. and F.S. She went to the police in August 2022.

[11] In this case, the jury was satisfied beyond a reasonable doubt that in the summer of 2013, F.S. intentionally touched S.N. in circumstances of a sexual nature. The evidence of the touching was S.N.'s testimony that F.S. attempted to penetrate her vagina with his penis when they were lying on the couch. Although F.S. denied touching S.N., it is clear from the verdict that the jury did not accept his evidence. Nor did the jury accept the defence's theory that S.N. fabricated allegations of sexual abuse whenever she was in trouble with F.S. and J.N.

[12] The jury found F.S. not guilty of a second count of sexual assault, which was based on the allegation that on multiple occasions between July 2015 and December 2017, F.S. went into S.N.'s room while she was asleep at night and touched her thighs and buttocks. Needless to say, the alleged touching that formed the basis of the second count has no bearing on my determination of the appropriate sentence to be imposed.

The Circumstances of the Offender

Criminal Record

[13] F.S. was approximately 29 years old at the time of the offence. He has no criminal record.

The Pre-Sentence Report

[14] A pre-sentence report ("PSR") was ordered and was completed on July 29, 2025, by Probation and Parole Officer Shardae Heron (the "Officer"). The Officer interviewed F.S., J.N., and F.,[2] the mother of F.S.'s other children.

[15] F.S. was born in Uganda, the middle child of five children. His father passed away when he was three months old. F.S.'s siblings and mother all live in Uganda. F.S. was raised in a religious, Anglican household. He moved away from his mother to live with relatives to attend high school. He reported having to fight for food when living in that environment.

[16] In 2006, F.S. came to Toronto alone to study. He lived with friends for a couple of months and then moved out to live on his own. He attended Toronto Metropolitan University and received a degree in business and finance in 2016. He got along well with his classmates and teachers and reported that he received awards and scholarships.

[17] Since 2023, F.S. has been employed by GFL as a truck driver. Before that, he was employed as a truck driver for a different company. From 2014 to 2018, F.S. was employed at Badboy furniture. He reported that he has never been fired. F.S. stated that he was homeless and resided in a shelter for one month in 2019. F.S. occasionally has one or two drinks and denied any substance use issues.

[18] F.S. stated that he has been in a relationship with the complainant's mother, J.N., since 2006 and that they have three children together, ages 8, 12, and 15. He stated that he has four children with another woman, F. The children are 8 months, 8 years and, in case of his twins, 2 years old. F.S. stated that he visits the children weekly.

[19] F. stated that she has known F.S. since 2001. She described him as a principled, intelligent, family-oriented person and that he loves his children a lot. She is not currently in a relationship with F.S.

[20] J.N. stated that she has known F.S. since 2006. J.N. described F.S. as a good father to their children, whom he visits every other weekend. However, J.N. stated that F.S. is not trustworthy and lives a double life. Although F.S. stated that J.N. and F. were aware of each other and got along well, J.N. stated that she has never met F. J.N. stated that F.S. informed her that he had only one child with F., a 15-year-old girl.

[21] J.N. reported that she confronted F.S. about S.N.'s allegations, which he did not confirm or deny. She distanced herself from him as a result of these allegations. Contrary to what F.S. told the Officer, J.N. stated that she has no intention of residing with F.S. after the court proceedings.

[22] F.S. disclosed that he has a few friends, whom he described as good, caring, and supportive. He does not belong to any clubs, organizations, or churches, and spends his leisure time reading, watching documentaries, using the computer, and spending time with his children. The Officer described F.S. as polite and cooperative.

Analysis

The Parties' Positions

[23] The Crown seeks a sentence of six years in the penitentiary.

[24] The defence submits that the appropriate sentence is 18 to 24 months.

The Principles of Sentencing

General

[25] In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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 rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

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

[26] Pursuant to s. 718.1 of the Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence and the blameworthiness of the offender: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 40.

[27] The sentencing judge must also have regard to the following:

• any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (vii) of the Code;

• the principle of parity, in that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));

• the principle of totality, meaning that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and

• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[28] The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. Parranto, [2021], 2021 SCC 46, 3 S.C.R. 366, at para. 12.

Sexual Offences Against Children

[29] The sentencing principles of denunciation and deterrence should be the main animating sentencing factors in cases involving the sexual abuse of children: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 101. Section 718.01 of the Code also directs that in cases involving the abuse of a person under the age of 18, sentencing courts must give "primary consideration to the objectives of denunciation and deterrence of such conduct" when imposing a sentence.

[30] In Friesen, at para. 114, the Supreme Court of Canada called for "substantial sentences" in cases involving child sexual abuse. The Supreme Court held that a proportionate sentence in cases of child sexual abuse must account for the weighty societal interest in protecting children and the wrongfulness and harmfulness of sexual violence against them:

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: Friesen, at para. 5.

[31] The Supreme Court emphasized that sexual offences against children "always put children at risk of serious harm", and held that sentences must recognize:

(i) The inherent wrongfulness of these offences;

(ii) The potential harm to children that flows from these offences; and

(iii) The actual harm that children suffer as a result of these offences: Friesen, at para. 76.

[32] The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable: Friesen, at para. 90. The Court articulated that "substantial sentences" means that mid-single digit penitentiary sentences are the norm, and upper-single digit and double-digit penitentiary sentences are not exceptional or rare: Friesen, at para. 114.

[33] In addition, it is an error to assess the degree of physical interference in terms of a hierarchy of acts because "there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference": Friesen, at para. 146.

The Appropriate Range

[34] The Crown relies on a number of cases to support its position that a six-year sentence is appropriate. The most relevant cases are the following:

• R. v. J.H., 2025 ONCJ 78, in which the defendant was convicted for sexual assault and sexual interference in connection with two incidents of sexual abuse perpetrated on his eight-year-old daughter. The defendant, who had a criminal record for drug offences and assault, was sentenced to six years on each count, to be served concurrently. Mitigating factors included the defendant's Indigenous status and severe mental health disabilities.

• R. v. K.E., 2024 ONSC 5581, in which the defendant was sentenced to five and a half years (less five days for presentence custody) for sexual interference and one year for child luring, to be served consecutively. The defendant was the boyfriend of the victim's mother. The victim was ten or eleven years old at the time of the offence. During an incident that lasted almost 45 minutes, the defendant had vaginal intercourse with the victim, and then directed her to perform oral sex on him.

• Friesen, in which the Supreme Court of Canada restored the sentence of six years for sexual interference and attempted extortion ordered by the sentencing judge. The defendant was having consensual sex with the victim's mother when he told her to get her four-year-old daughter. He attempted to force his penis into the victim's mouth. When the child cried and tried to escape, they prevented her from doing so. The mother's friend, who was also in the apartment, removed the child from the room after hearing her cries. The defendant then threatened to tell the mother's friend that she had sexually abused her one-year-old son if she didn't bring back the victim. While there was no relationship of trust between the defendant and the child, the defendant involved the mother in the sexual violence, exploiting her relationship of trust with the child.

[35] Many of the other cases relied upon by the Crown are not analogous to the factual circumstances of this case because they involved multiple instances of sexual abuse, sometimes over lengthy periods of time. See: R. v. Denis Guindon, 2020 ONSC 6065; R. v. M.K., 2016 ONCA 589; R. v. M.S., 2022 ONSC 2279; R. v. R.V., 2022 ONSC 2332; R. v. S.J., 2023 ONSC 170; R. v. G.D., (11 July 2023), Brampton, CR-21-626-00 (Ont. S.C.).

[36] The Crown relies on R. v. Valley, 2023 ONSC 166, to argue that attempted penetration is analogous to penetration and on R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, to argue that the appropriate sentencing range for all penetrative sexual assaults is three to five years. I find these cases, which do not involve the sexual abuse of children in the context of a relationship of trust, of limited utility in the determination of the appropriate sentencing range. The Crown's argument also strikes me as inconsistent with the Supreme Court's guidance in Friesen, at paras. 140-147, that courts must not unduly focus on the nature of the sexual act at issue because all sexual violence against children is inherently wrongful, regardless of the degree of physical interference. I understand from the argument, however, that the Crown's position is that the degree of physical interference in this case was highly intrusive.

[37] The defence relies on the following cases to support its position that a sentence of 18 to 24 months is appropriate:

• R. v. Gutierrez, 2023 ONSC 2990, in which the defendant was found guilty of two counts of sexual interference against two victims, 8 and 13 years old. The sentencing judge rejected a joint submission of a 2-year conditional sentence and sentenced the defendant to 18 months in custody, followed by three years of probation. In Gutierrez, however, the defendant expressed his remorse and accepted responsibility for his actions.

• R. v. O'Neill, 2022 ONSC 5025, in which the defendant was convicted of sexual assault and sexual interference in relation to two incidents of digital penetration on a single occasion. The victim was 12 years old and no breach of trust was found. The Crown sought a sentence of three years, and the defence sought a conditional sentence of two years less a day. The sentencing judge imposed a sentence of 18 months. In O'Neill, there were mitigating factors including the defendant's mental health disabilities.

• In R. v. D.F., 2024 ONSC 1892, the 59-year-old defendant was sentenced to four years after a jury convicted him of sexual offences against a child. The abuse continued for a period of four years when the victim was between the ages of six and ten. The defence argues that in D.F., the child was groomed and the sexual abuse was over a prolonged period of time, justifying a longer sentence than would be appropriate in this case.

The Principles Applied

Aggravating Factors

[38] Section 718.2(a) of the Code identifies circumstances that are to be considered aggravating. The relevant aggravating circumstances in this case are the following: (1) in committing the offence, the offender abused a child (s. 718.2(a)(ii.1)); (2) in committing the offence, the offender abused a position of trust or authority (s. 718.2(a)(iii)); and (3) evidence that the offence had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation (s. 718.2(a)(iii.1)).

[39] I take into account the following aggravating factors: as a young, Black girl in her formative years, S.N. was particularly vulnerable. At the time, her father was not present in her life. She had been raised mainly by her grandmother in Uganda and had only recently come to Canada to live with J.N. and F.S., who assumed a parental role. F.S. was an adult in the family home, and S.N. was a child. F.S. was trusted to take care of S.N. when J.N. was working night shifts. The assault took place in S.N.'s home, where she should have felt safe.

[40] S.N. declined to provide a Victim Impact Statement or to be interviewed by the Officer for the PSR. Based on the evidence given by S.N. at trial, however, I can conclude that the assault has had a profound impact on her. S.N. was only ten years old when the assault took place and had only been living in Canada for one year. After remaining silent for approximately six years, S.N. only confronted F.S. in 2019 when she found out that he and her mother would be sending her back to Uganda to "become a better person". She did not disclose the abuse to J.N. until 2021. At trial, S.N. testified that she spoke to her mother about the abuse after she reacted to F.S. commenting about her appearance and realized that she still felt "some way" about what had happened. Even then, S.N. did not go to the police until months later because she did not want her half-siblings to lose their father.

[41] In addition, S.N. attributed her cannabis use to dealing with the stress and trauma of the abuse. S.N. acted out in other ways, such as getting into trouble at school, staying out late, and running away from home. S.N. testified that she ultimately decided to go to the police because she felt no one in her family was hearing her or doing anything about what she had told them. As a result of the sexual assault, S.N.'s relationship with her family suffered, and she has had little contact with her mother since she left home.

Mitigating Factors

[42] There are a number of mitigating factors in this case. First, I find that F.S.'s rehabilitative potential is good. He does not have a criminal record. Despite challenging life circumstances, including poverty and fatherlessness, F.S. has been a law-abiding person. He does not appear to have any substance use issues. F.S.'s strong views about cannabis use stem from his concern about the consequences of substance abuse. The evidence is that F.S.'s brother and uncle both died from drug-related causes. Both J.N. and F. describe F.S. as a good father to his children. He has consistently spent time with them and been involved in their lives, without the need for court orders. F.S. completed university after coming to Canada and has remained employed steadily since that time.

[43] In my view, there is a low risk of F.S. reoffending. F.S. has remained in the community without incident since his arrest in February 2023. He has abided by the conditions of his release and has not demonstrated conduct that would suggest an ongoing risk to public safety. He has the support of family and friends. He speaks to his mother daily, even though she resides in Uganda.

[44] However, I have some concern that F.S. continues to deny the conduct at issue and the harm to S.N., which is relevant to his rehabilitative potential. While F.S. has not expressed remorse, an absence of remorse is not an aggravating factor but the absence of a mitigating factor.

[45] In R. v. D.B., 2025 ONCA 577, the Court of Appeal reduced the sentence for a conviction for sexual assault of the 16-year-old victim from four to three years. The Court of Appeal held that the sentencing judge erred in principle in failing to consider meaningfully the collateral consequences of family separation, including financial hardship, loss of housing, and emotional harm to the defendant's partner and young children. Because such consequences increase a sentence's impact, they must be taken into consideration in arriving at a proportionate sentence.

[46] In this case, F.S. had seven children, five of whom are eight years of age or younger. I do not have evidence or information as to whether F.S. is the sole provider for his children with F. The evidence at trial was that J.N. is a nurse. I do not know whether F.S. will still have a job with GFL after his sentence, but it would seem unlikely. In determining the appropriate sentence, I must take into consideration the collateral consequences of a lengthy sentence on F.S.'s ability to support his children, financially and emotionally.

Systemic Factors

[47] In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 102, the Court of Appeal confirmed that the social context relating to the offender's life experiences may be used if it is relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing. If past hardship, including the impact of anti-Black racism, is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. While a direct causal link is not required, there must be some connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the criminal conduct in issue: Morris, at paras. 96-97.

[48] In this case, the PSR does not provide any insight into the impact of anti-Black racism on F.S. or the potential connection between his experiences with systemic racism and the offence at issue in this case. As a result, I am not able to find a connection between systemic racism and the circumstances of the offence at issue in this case.

Summary of the Application of the Sentencing Principles

[49] As stated earlier in these reasons, in sentencing F.S., I am required to give primary consideration to the objectives of denunciation and deterrence. I remain mindful of the Supreme Court's direction in Friesen regarding the rationale for substantial sentences in cases involving sexual offences against children. In sentencing an adult for sexual exploitation of a child, it is an error to give priority to restraint or rehabilitation over denunciation and deterrence: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 33, 37.

[50] In this case, which involves attempted penetration, the degree of intrusion is high. The defence proposal of a sentence of 18-24 months is not proportionate to the seriousness of the offence and the impact on S.N. Further, in my view, the PSR does not provide a basis to find that F.S.'s lived experiences as a Black man mitigate his moral blameworthiness for the criminal conduct. However, given F.S.'s lack of a criminal record and his prosocial life to date, rehabilitation should also be an important sentencing objective in the circumstances: see Morris, at paras. 80-81.

[51] Based on all of the circumstances, taking into consideration the gravamen of the offence, as well as the aggravating and mitigating factors detailed above, and applying the principles of totality and restraint, I find that an appropriate sentence is three years.

Ancillary Orders

[52] With the exception discussed further below, the defence did not oppose the ancillary orders sought by the Crown.

[53] The Crown sought an order under s. 161(1) of the Code prohibiting F.S. from:

(i) seeking, obtaining, or continuing any employment, whether renumerated or not, or becoming a volunteer, where it involves being in a position of trust or authority towards a person under the age of 16 years;

(ii) being within 200 metres of anywhere he knows S.N. to live, work, worship, attend school or is otherwise known to be; and

(iii) being in the presence of any person under the age of 16 unless in the company of a person over the age of 18.

[54] The Crown did not consent to the defence's request for an exception to paragraph (iii) above to allow F.S. to be in the company of his own children.

[55] In my view, it would be overly restrictive to prohibit F.S. from seeing his children without the presence of another adult. Both J.N. and F. described F.S. as a good father to their children. As noted above, there will already be hardship to the children as a result of the separation entailed in a penitentiary sentence. Requiring F.S. to be supervised in the presence of his own children would only harm their relationship further.

Disposition

[56] F.S. is sentenced to three years in the penitentiary. F.S. shall receive nine days Summers credit for pre-sentence custody: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[57] The following ancillary orders shall be made:

(a) Pursuant to s. 487.051 of the Code, a DNA order;

(b) Pursuant to s. 490.012(1) and s. 490.013(2)(b) of the Code, an order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 20 years from this order;

(c) Pursuant to s. 743.21(1) of the Code, an order not to communicate with S.N. for the duration of the sentence;

(d) Pursuant to s. 161(1) of the Code, an order not to:

(i) seek, obtain, or continue any employment, whether renumerated or not, or become a volunteer, where it involves being in a position of trust or authority towards a person under the age of 16 years;

(ii) be within 200 metres of anywhere he knows S.N. to live, work, worship, attend school or is otherwise known to be; and

(iii) be in the presence of any person under the age of 16 unless in the company of a person over the age of 18, except in respect of F.S.'s own children.

"Nishikawa J."

Released: September 25, 2025

Footnotes

[1] The Crown withdrew two counts of sexual interference, contrary to s. 151 of the Code, as duplicative of the charges for sexual assault.

[2] No last name was provided for F.