His Majesty the King v. Z.M., 2026 ONSC 2495

CITATION: R. v. Z.M., 2026 ONSC 2495

COURT FILE NO.: CR-24-00101864-0000

DATE: 2026/04/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Z.M.

Defendant

A. Nguyen, Counsel for the Crown

J. Dean, Counsel for the Defendant

HEARD: April 27, 2026

GIBSON J.:

REASONS FOR SENTENCE

Overview

1On August 28, 2025, Z.M. was found guilty in a judge-alone trial before me of sexual assault on E.J. committed on November 25, 2023. The reasons for decision are at R. v. Z.M., 2025 ONSC 4931.

2It is now my task to determine a fair, fit, and principled sentence.

Circumstances of the Offence

3The complainant E.J. testified that she had first met Z.M. in elementary school. In November of 2023, following their completion of high school, their relationship had developed into a romantic one. On November 25, 2023, E.J. drove to Z.M.’s residence to meet his parents. They kissed when they met. She met Z.M.’s mother briefly, then E.J. and Z.M. went to his bedroom. They began to watch movies while laying on his bed. They cuddled on the bed.

4While watching a movie, Z.M. began to try to touch her vagina under her pants. She told him, not right now, because she was menstruating on her period. She had a tampon inserted in her vagina. He also touched her breasts. She was wearing adjustable sweatpants, a tank top, and a white sweater. He repeatedly tried to touch her under her underwear, and she told him no.

5E.J. testified that Z.M. tried to take her pants off, got on top of her, flipped her over, and tried to penetrate her. She told him no, that his parents were there, and he stopped. She says that he was “freaking out,” then he said, “Oh My God, I almost raped you.” She felt in shock at what he had said, then lay on the bed in silence. She told him that she needed to go home.

6After some 5 - 10 minutes had elapsed, E.J. testified that Z.M. then flipped her over onto her stomach a second time, pulled down her pants and underwear, and tried to insert his penis into her vagina. She felt his weight on her back. When this was not successful because of the presence of the tampon, he then immediately inserted his penis into her rectum. Her head was to the side, while on her stomach, but she could feel him doing it. He tried to force his penis into her rectum, each time going deeper and deeper. She told him that he was hurting her, and repeatedly told him to stop. She said “ow”. She said this in a regular conversational voice. She did not physically try to stop him. She said that she felt in shock. He inserted his penis multiple times until he did stop. There was no condom used, nor any lubrication. She estimated that he had inserted his penis into her rectum multiple times over a span of about two minutes.

7E.J. testified that she was in pain, was scared, and felt weak and unsafe.

Evidence on Sentencing

8The evidence on sentencing included a Pre-Sentence Report, and Victim Impact Statements provided by E.J. and by E.F., the mother of E.J..

Pre-Sentence Report

9A Pre-Sentence Report was prepared in relation to Z.M. and was admitted into evidence as an exhibit on sentencing. It details his family and employment history. Z.M. is a first offender and has no criminal history. The report indicates that he has recently maintained full-time employment as a cook and is a dedicated worker who possesses a strong work ethic. He has lived in a stable family environment, and his family is supportive.

Victim Impact Statement

10In her Victim Impact Statement submitted to the Court, E.J. details the significant impact that the incident has had on her, and how it has affected her sense of self-worth and security. She stated that the experience has changed how she moves through the world and that it has had a lasting impact on how she lives her life. It has affected her sense of safety, her ability to trust, and how she sees herself and others.

11In her Victim Impact Statement, E.F. details the significant impact that the sexual assault against her daughter has had both on her daughter and herself. She expresses her lasting anger, anguish, sadness and regret that she could not have protected her daughter from this.

Submission of the Crown

12The Crown submits that Z.M should be sentenced to imprisonment for 3.5 years, together with ancillary orders, including a DNA order, a s.109 weapons prohibition for 10 years, a SOIRA order for 20 years, and a non-contact order in respect of E.J..

Submission of the Defence

13The Defence agrees that a penitentiary sentence is appropriate in this instance, and that denunciation and deterrence must be the predominant sentencing principles having application in this case, but submits that an appropriate sentence for the court to consider would be three years.

Sentencing Principles

14As succinctly summarized by Watt J.A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.

15Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.

16Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender: R. v. A.J.K., 2022 ONCA 487, at para. 82.

17The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the penalty.

Caselaw

18The Crown referred me to the following cases: R. v. A.J.K., 2022 ONCA 487; R. v. Silviera, 2024 ONSC 757; and R. v. Sheppard, 2025 SCC 29.

19The Defence agreed that these were appropriate cases to refer to.

20I have considered all of these cases. In Silveira, a recent case with many factual similarities to the present case, Leibovich J. ultimately imposed a sentence of 3.5 years.

21In R. v. A.J.K., 2022 ONCA 487, Fairburn A.C.J.O. stated at paras. 74 - 77:

74All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

75As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled.

76There is no justifiable reason for why sexually assaulting an intimate or former intimate partner is any less serious than sexually assaulting a stranger. The fact is that a pre-existing relationship between the accused and complainant places them in a position of trust that can only be seen as an aggravating factor on sentencing: Criminal Code, R.S.C., 1985, c. C-46, s. 718.2(a)(ii). Therefore, contrary to the impression that may be left when contrasting the Smith range with the non-Smith range, the sexual assault of an intimate or former intimate partner can actually attract a greater sentence.

77The fact that the complainant had a relationship or prior relationship with the accused cannot serve to justify a sentencing range below a range for non intimate partner sexual violence. To the extent that Smith has been interpreted as suggesting otherwise, it is no longer to be understood this way. Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.

22I have also taken account of the guidance of the Court of Appeal in sentencing youthful first-time offenders for sexual assault provided by Tulloch C.J.O. at paras. 69 - 77 in R. v. Al-Akhali, 2025 ONCA 229:

69As the trial judge recognized, judicial understanding of the harmfulness and wrongfulness of sexual assault is deepening. Sentences must reflect the “profound emotional and physical harm” sexual violence inflicts on victims, consequences which are often life-altering. See A.J.K., at para. 74. As well, they must account for the moral blameworthiness of defendants who wrongfully exploit victims by treating them as objects, invading their personal autonomy and sexual integrity, and disregarding their dignity, all despite knowing or being reckless or wilfully blind to the devastating harm their actions inflict. See R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 88-89; A.J.K., at paras. 72-74. The courts accordingly prioritize denouncing and deterring sexual assault, especially when it involves penetration, a serious aggravating factor which attracts a three-to-five-year sentencing range. See A.J.K., at paras. 77, 83.

(ii) Sentencing Principles for Youthful First-Time Offenders

70Sentencing judges must also give “serious and sufficient consideration” to all the settled principles that govern sentencing youthful first-time offenders. See R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 32; see also at paras. 30-31, 33-39. These principles respect Parliament’s directions to impose individualized proportionate sentences, practice restraint, foster rehabilitation, and protect society. In sentencing a youthful first-time offender to the penitentiary, the sentencing judge must justify why a non-custodial or less severe custodial option is insufficient while still structuring the sentence to promote rehabilitation. The decision must reflect proportionality, individualized sentencing, and the offender's potential for reform.

71First, the principle of proportionality dictates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See Criminal Code, s. 718.1. Proportionality eschews a one-size-fits-all approach that lumps young adults and older, more mature adults together despite their differences. See Criminal Code, ss. 718.2(a)-(b); Friesen, at para. 32. Thus, sentencing judges must account for young adults’ immaturity and consequent reduced degree of responsibility, as well as the harsher impact incarceration has on them. See R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 161 and 165; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 132 and 152.

72Second, the principle of restraint emphasizes that a custodial sentence should only be imposed when necessary and that alternatives to incarceration should be considered, particularly for first-time offenders. See Criminal Code, ss. 718.2(d)–(e). This principle requires sentencing judges to avoid imprisoning youthful first-time offenders when possible and to impose the shortest proportionate sentence available. See R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at pp. 544-546; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 7. When a judge imposes a penitentiary sentence despite this principle, they must justify why lesser sanctions, such as a conditional sentence, probation, or a provincial jail term (under two years), would be insufficient. This is particularly important for first-time offenders, who are generally more likely to be rehabilitated than repeat offenders and have a greater chance of successful reintegration.

73Third, the sentence must foster the defendant’s rehabilitation and protect society. See Criminal Code, ss. 718, 718(d). These two fundamental principles are closely linked because, “where rehabilitation is possible, the long-term interests of society are better protected by [e]nsuring that an offender’s underlying problems, which prompted his deviant behaviour, are corrected.” See R. v. Wesslen, 2015 ABCA 74, 599 A.R. 159, at para. 41. In other words, as Manning and Sankoff write, “the best way of protecting the public is by reforming offenders so that they do not offend again because they do not wish to offend again.” See at para. 1.155.

74Both principles are especially relevant for youthful first-time offenders because they have “high rehabilitative prospects.” See Bertrand Marchand, at para. 152. Thus, sentencing judges must prioritize rehabilitation as the paramount objective, which helps protect society by preventing reoffending. As well, it guards against crushing sentences that propel young adults in an anti-social direction by placing them in a prison environment full of bad influences that is ill-suited for rehabilitation. See Brown, at paras. 5, 7, and 10; R. v. Dunkley, [1976] O.J. No. 1663 (C.A.), at para. 4; Hills, at para. 165. A judge imposing a penitentiary sentence on such an offender is required to consider whether imprisonment will serve a rehabilitative purpose or whether alternative measures could achieve that goal more effectively.

(iii) Sentencing Judges Must Apply All These Principles

75Sentencing judges must apply both sets of principles when sentencing youthful first-time offenders for sexual assault. Thus, they must impose sentences that are proportionate to the gravity of sexual assault and the moral blameworthiness of offenders, that prioritize specific deterrence as a paramount objective where necessary, and that respect the importance of denunciation and, to a lesser extent, general deterrence. But they must also make room for rehabilitation as a primary and paramount sentencing objective, and practice restraint by imposing the lowest proportionate sentence available.

76To respect the need for accountability, deterrence and denunciation remain important when sentencing youthful first-time offenders for serious crimes like sexual assault that involve significant personal violence. Sentencing judges must prioritize specific deterrence as a paramount objective where necessary and impose proportionate sentences that account for the gravity of the offence and the moral blameworthiness of offenders. As well, denunciation gains more importance. See Brown, at paras. 4-5, quoting R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 41-42. General deterrence does too, although to a “lesser extent” (Thurairajah, at para. 42), because, due to their immaturity, youthful adults are unfortunately less likely to be deterred by sentences imposed on other people than more mature adults would be. See Habib, at para. 30, n. 2, citing R. v. D.E.S.M. (1993), 80 C.C.C. (3d) 371 (B.C.C.A.), at p. 377. Accordingly, “it is not always possible to avoid incarceration, [or] impose only a very short prison term.” See Habib, at para. 30.

77But sentencing judges must continue to apply the principles governing youthful first-time offenders even for violent offences like sexual assault. Thus, sentencing judges must still prioritize rehabilitation as a paramount objective. This requires them to remain “focused on crafting a sentence that would promote rehabilitation” (R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 30), although this objective cannot be “unduly prioritized” to such an extreme degree that sentencing judges “los[e] sight of” the proportionality principle, the importance of denunciation, and, to a lesser extent, general deterrence. See R. v. Burke-Whittaker, 2025 ONCA 142, at paras. 41, 44, 48, and 52. As well, they must account for the impact of youthfulness on proportionality and impose the shortest and most measured sentence that is proportionate. See Habib, at paras. 38-39. These principles can sometimes justify sentences at the lower end of or below the A.J.K. range, as in R. v. Morgan, 2024 ONCA 937, at para. 6, R. v. D.S., 2024 ONCA 831, at para. 48, and R. v. N.D., 2024 ONCA 777, at para. 44.

Aggravating Factors

23The aggravating factors present in this case include the following:

a. The direction of Parliament at s.718.2 (a)(ii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused the offender’s intimate partner;

b. That the sexual assault involved coercive anal penetration, despite numerous protests by the victim to stop;

c. That no condom or lubrication was used; and,

d. That the victim has suffered significant psychological harm as result of the offence.

Mitigating Factors

24The mitigating factors include:

a. That Z.M. has no criminal record and is a first offender before the Court;

b. Z.M.’s youthful age at the time of the commission of the offence, 18, and his youthful age at the time of sentencing, 20;

c. As expressed through his counsel, his acceptance of responsibility;

d. The support of his family and his previously pro-social circumstances, as reflected in the Pre-Sentence Report; and,

e. His potential for rehabilitation.

Analysis

25All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice. It helps calibrate proportionate sentences.

26This was a penetrative anal sexual assault which has significantly traumatized the victim.

27This is manifestly not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2.

28Having regard to the principle of parity, and with regard to the cases which the Crown and Defence have provided, including the guidance of the Court of Appeal in A.J.K, I assess that the appropriate range of sentences to consider would be 3 - 5 years.

29I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown, and the relevant aggravating and mitigating factors in this case.

30In sexual assault cases such as this, the dominant sentencing principles must be denunciation, as well as general and specific deterrence.

31I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. Consistent with the guidance provided by the Court of Appeal in Al-Akhali, I must also account for the impact of youthfulness on proportionality and impose the shortest and most measured sentence that is proportionate.

32The moral responsibility of Z.M. is high. He sexually exploited another person for his own sexual satisfaction, heedless of her entreaties to stop and the inevitable adverse impact upon her sexual integrity and well-being.

33Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offence, and the sentencing precedents cited by the Crown and Defence, and in particular the guidance provided by the Court of Appeal in A.J.K and in Al-Akhali, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of E.J. I must also account for the impact of youthfulness on proportionality and impose the shortest and most measured sentence that is proportionate. In the circumstances of this case, I consider that this would appropriately be accomplished by a sentence of three years.

Sentence

34Z.M. has been convicted of Sexual Assault contrary to s. 271 of the Criminal Code of Canada.

35Z.M. is sentenced to imprisonment for three years.

36As the offence is a primary designated offence, pursuant to s. 487.051 of the Criminal Code, Z.M. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

37There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for 20 years.

38During his incarceration, pursuant to s. 743.21, Z.M. is to abstain from communicating, directly or indirectly, with E.J..

39There shall be a s.109 weapons prohibition Order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

40The Victim Fine Surcharge will be waived.

M.R. Gibson J.