R. v. J.M., 2026 ONSC 4379

CITATION: R. v. J.M., 2026 ONSC 4379

COURT FILE NO.: CR-24-6388

DATE: 20260728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

J.M.

Offender

Andrea Harris, for the Crown

Kenneth Golish, for the Offender

HEARD: June 18, 2026

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so it can be published.

REASONS FOR DECISION ON SENTENCING

HORVAT J.:

1On January 9, 2026, J.M. was convicted by a jury of one count of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 against A.A. resulting from an incident that occurred on May 8, 2019.

2The court has had the benefit of a Pre-Sentence Report (“PSR”), written and oral submissions made by counsel at the sentencing hearing held on June 18, 2026, and a Victim Impact Statement prepared by A.A.

3Imposing a fit and proper sentence requires the court to balance several factors and apply the relevant legal principals. The exercise is one of art, and not science: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 9 and 205.

CIRCUMSTANCES OF THE OFFENCE

4The Supreme Court of Canada described the role of a sentencing judge following a guilty verdict by jury as doing their best to determine the facts necessary for sentencing. 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: R. v. Ferguson, 2008 SCC 6, at paras. 16-17; s. 724(2) of the Criminal Code.

5Where the factual implications of the jury’s verdict are ambiguous, no attempt should be made to follow the logical process of the jury. Instead, the sentencing judge should come to their own independent determination of the relevant facts but “only those facts necessary to permit the proper sentence to be imposed in the case at hand” and should not speculate as to the jury’s reasoning process. What the issues on sentencing are should first be determined and then only such facts as are necessary to deal with those issues should be found: R. v. Ferguson, 2008 SCC 6, at para. 18; s. 724(3) of the Criminal Code.

6The following are the relevant facts. I am mindful that to the extent that any of the facts are aggravating in nature, the applicable standard of proof is beyond a reasonable doubt in finding them as facts: Ferguson at para. 18; s. 724(3)(e) of the Criminal Code.

7The offence took place on May 8, 2019 in Windsor, Ontario. J.M. was 28 years old at the time and A.A. was 20 years old.

8That day, J.M. messaged A.A. on Facebook at around 5:00 a.m. and asked if she wanted to go to Tim Horton’s. J.M. knocked on A.A.’s bedroom window at around 6:00 a.m. while she was still in bed. When she did not respond, J.M. went to the front door. A.A.’s mom wanted a coffee so A.A. got ready and agreed to walk to Tim Horton’s with J.M. On the way, they stopped and J.M. asked A.A. if they could have sex. A.A. said no.

9J.M.’s residence was around the corner and the two walked to his residence. J.M. pushed A.A. to the stairs towards the basement. J.M.’s bedroom was in the basement. He tried to carry her down the stairs, but he almost dropped her. Her feet were off the ground, and he held her and lifted her by her mid-section. When they got downstairs, J.M. picked A.A. up, put her on the bed and began kissing her.

10J.M. removed A.A.’s pants, underwear and pad, and began to vaginally penetrate her. A.A. was menstruating at the time. She said: “please don’t do this” and “I don’t want to do this.” He did not stop. She tried to move her body to get his penis out of her vagina, but he held her down by holding her hips. J.M. flipped A.A. over onto her stomach. He put Vaseline on her anus and tried to penetrate her despite A.A. telling him “no.”

11A.A. managed to flip back over onto her back. J.M. then re-entered her vagina with his penis and eventually ejaculated on her vagina. A.A. sustained several injuries to her vaginal and genital areas during the assault. The assault was painful for A.A.

12Pursuant to the agreed statement of facts, A.A. attended the Sexual Assault Treatment Centre at Windsor Regional Hospital later that morning. A sexual assault treatment kit was completed, and biological samples were collected and analyzed by the Centre of Forensic Sciences. J.M. could not be excluded as the source of male DNA profile from A.A.’s external genitalia and vaginal swabs.

13Following the trial, the jury returned a verdict of guilty to the charge of sexual assault under s. 271 of the Code.

14The Crown asks that I find that J.M. held a knife to A.A.’s throat during the assault. The use of a knife or a weapon is not an essential element of the offence under s. 271. While there may have been a knife in the room, I have difficulty finding beyond a reasonable doubt based on the evidence presented at trial that a knife was used during the assault or held to A.A.’s throat. A.A. reported the assault almost immediately after it occurred. While A.A.’s evidence was consistent on many aspects of the assault through to trial, she did not recall that a knife was used during the assault until 2025, or six years after the assault. In these circumstances, I am left with a reasonable doubt about A.A.’s recollection of the use of a knife during the assault.

15J.M. asks that I consider the video of J.M. and A.A. at Tim Horton’s following the assault. The video evidence shows A.A. and J.M. standing near each other with A.A. appearing calm in the video. I decline to make any factual findings with respect to the Tim Hortons video or consider it as a factor in sentencing. It is now trite law that myths and stereotypes, including how a complainant or victim behaves following an assault, have no place in our law.

CIRCUMSTANCES OF THE OFFENDER

16The author of the PSR described J.M. as co-operative and respectful.

17J.M. is currently 36 years old and is single. He was born and raised in Windsor, Ontario. J.M. described his childhood as “decent.” He has positive childhood memories despite his mother’s drug addiction. J.M. was primarily in his father’s care until he became a young adult and they remain close.

18J.M. attended numerous elementary schools and one high school from which he was expelled. J.M. tried to complete high school through a credit recovery program but “couldn’t stick with it”. J.M. delivered papers at a young age and worked in roofing as a teen and young adult. He describes himself as excelling at drywalling, painting, framing, flooring and deck building.

19J.M.’s father, W.M., was interviewed for the PSR. He reported that J.M. was a victim of sexual abuse as a toddler. While J.M. is aware of this, he has limited recollection of it. W.M. also reported that J.M. grew up without a mother and when J.M. was in her care, he was exposed to emotional abuse. W.M. confirmed that his relationship with J.M. is “great,” that he plans to have J.M. move in with him upon his release, and that J.M. has always had an excellent work ethic. W.M. also reported that J.M. has suffered from alcohol abuse since he was charged with the offence and that he feels J.M. could benefit from addiction services. W.M. described the offence as uncharacteristic of his son and he feels the charge was unfair.

20For the last eight years, J.M. has lived with his best friend, T.D., and T.D.’s wife and child. T.D. was also interviewed for the PSR. T.D. has known J.M. since they were children. He describes J.M. as hard worker who worked close to seven days per week, and as someone who likes to keep to himself. T.D. also described J.M. as having an alcohol addiction and when he is under the influence, “nobody likes him, and he knows this.” T.D. described J.M. as presenting with anger management deficits when he is under the influence of alcohol.

21J.M. denies that he has any issue with substance abuse or that he requires addiction counselling. He admitted to using alcohol, marijuana and at one point, crystal methamphetamine. He describes his usage as “I use as I please” and that he can abstain as needed.

22J.M. has participated in educational and counselling sessions related to substance use and anger management while incarcerated and during a previous probation order. He advised that while he does not feel he requires any form of counselling, he is willing to participate in counselling services as the Court sees fit.

23J.M. described the charge as “bullshit” and did not express any accountability or remorse. He placed blame on A.A.

24In May 2016, J. M. was sentenced to 90 days and three years’ probation for sexual interference under s. 151 of the Code. In November 2023, J.M. was sentenced to a suspended sentence and 12 months’ probation for an assault under s. 266 of the Code, and one day (credit for the equivalent of 30 days pre-sentence in custody) for failure to comply under s. 490.031 of the Code.

25During his supervision in the community between November 2023 and November 2024, substance use, limited constructive use of leisure time, and deficits in problem solving and anger management were identified as areas of concern.

26The author of the PSR recommended sexual offender specific counselling, anger management and substance counselling.

IMPACT OF THE OFFENCE ON A.A.

27A.A. did not participate in the PSR but she did provide a victim impact statement. The statement describes the significant emotional difficulties experienced by her since the offence including losing a significant amount of weight, having panic attacks and nightmares, and not leaving her house. She described herself as suicidal.

POSITIONS OF THE CROWN AND DEFENCE

28The Crown seeks a seven-year custodial sentence followed by probation, plus ancillary orders.

29The defence seeks a sentence of 15 to 24 months in custody.

LAW AND ANALYSIS

30Section 718 of the Code directs a sentencing judge to consider the purpose and principles of sentencing, including the need to denounce unlawful conduct and the harm done to victims, to deter the offender and others, and to assist in rehabilitation of the offender. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.

31Section 718.2 mandates the sentencing judge to consider the principles set out in that section in imposing sentence, including that any sentence imposed should be increased or reduced to account for any relevant aggravating or mitigating circumstances, and that the court should exercise restraint in imposing imprisonment. Where the Crown establishes that the offence has had a “significant impact on the victim,” it must be considered an aggravating factor on sentence: s. 718.2(a)(iii.1) of the Code. I must also apply the principle of parity codified in s. 718.2(b) of the Code.

32In R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at paras. 74 and 75, the Court of Appeal for Ontario stated:

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

As 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.

33The primary sentencing objectives for serious crimes of violence, including sexual assaults, are denunciation and deterrence. The forced penetration of another person will typically attract a sentence of at least three years in the penitentiary absent some “highly mitigating factor”: A.J.K. at paras. 74 and 77.

34Applying these principles, I disagree with J.M. that a fit and appropriate sentence in the circumstances of this case is in the range of 15 to 24 months in custody. Given the gravity of the assault and the aggravating factors present, a sentence in this range is unfit and disproportionate. It would be highly inadequate to serve the primary sentencing goals of denunciation and deterrence on the facts of this case. It would also be an error of law to depart from the three-to-five-year range given that there is no “highly mitigating factor” present: A.J.K. at para. 77.

35J.M. argued that the verdict of the jury is more consistent with a more limited and less aggravated form of sexual assault. The jury found J.M. guilty of the one count of sexual assault that he was charged with. It bears repeating that all sexual assaults are serious acts of violence: A.J.K. at para. 74. While I acknowledge that I have discretion to go outside – both lower and above – the three-to-five-year range, in this case there is simply no factor that could justify an exercise of my discretion to impose a sentence of less than three years.

36I also disagree with the Crown that seven years is a fit and appropriate sentence in this case. The Crown invites me to find as aggravating factors that a knife was used during the assault, and that A.A. was a vulnerable person given her hearing impairment. As already explained, I am unable to find beyond a reasonable doubt that a knife was used during the assault based on the evidence presented at trial. I also decline to make a finding that A.A. was a vulnerable person under s. 718.04 of the Code.

37A.A. was not a child at the time of the offence and while she has a hearing impairment, that does not make her vulnerable without something more or some explanation as to how it impacted on the circumstances of the assault. There is no other evidence before me of personal circumstances to support a finding that A.A. is a vulnerable person, including with respect to her mental state or ability at the time of the assault. A.A. is not a vulnerable person in the circumstances of this case and cannot be considered an aggravating factor.

38Turning to the mitigating and aggravating factors present in this case. There is nothing exceptionally mitigating about J.M.’s background or his current circumstances that impacts his moral culpability. I have difficulty identifying any mitigating factor in support of J.M. other than that he is supported by his father and best friend.

39J.M. is a repeat offender and does not have the benefit of being a first-time offender as a mitigating factor. There is no evidence before me of his rehabilitative potential or any steps taken by him towards this goal.

40Both J.M.’s father and his best friend expressed concern about J.M.’s drinking and the type of person J.M. is when he drinks. J.M. denied that he has any issue with alcohol or requires counselling of any kind. While he did say he would participate if so ordered, there remains a lack of insight into himself and a lack of any desire to improve himself.

41There is also no evidence that J.M. has shown any remorse or understanding of the harm that he has inflicted on A.A. He has exhibited no insight into the fact that this offence was a violent sexual assault that left A.A. traumatized. While these are not aggravating factors on sentencing, there is no mitigation deriving from remorse or acceptance of responsibility. J.M.’s lack of remorse is also a factor to consider in his rehabilitative potential.

42The assault involved forceful vaginal penetration and attempted anal penetration, which is a serious and inherently violent assault: A.J.K at para. 74. A.A. said “please don’t do this” and “I don’t want to do this”, but J.M. continued the assault. Following the assault, A.A. was left with lacerations and pain. She was left traumatized and continues to experience the trauma today, having difficulty leaving her home and experiencing panic attacks and nightmares. Her bodily autonomy and dignity were attacked. She was also exposed to the risk of pregnancy and sexually transmitted infections. The effect of the assault on A.A. is a significant aggravating factor: s. 718.2(a)(iii.1) of the Code.

43A strong message needs to be sent to not only J.M., but to the public and to likeminded offenders that these types of offences will not be tolerated.

A FIT AND APPROPRIATE SENTENCE

44Having considered the factual circumstances of this case, including the aggravating and mitigating factors, I order J.M. to a period of four years in custody, less credit for pre-sentence custody for the offence of sexual assault under s. 271 of the Code.

ANCILLARY ORDERS

45The following ancillary orders are also made:

(i) Comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, pursuant to s. 490.012 of the Code for a period of 20 years from this order.

(ii) Provide a DNA sample further to s. 487.051(1) of the Code.

(iii) Pursuant to s. 109 of the Code, prohibited from possessing any firearm or other weapon, ammunition or substance listed in s. 109(2)(a) for a period of ten years from the date of release from imprisonment, and prohibited from possessing any firearm or other weapon or ammunition or substance listed in s. 109(2)(b) for life.

(iv) Pursuant to s. 743.21(1) of the Code, shall not communicate, directly or indirectly, with A.A. during the custodial period of the sentence.

46Given the custodial sentence, victim surcharge is waived.

Jacqueline Horvat

Justice

Released: July 28, 2026

CITATION: R. v. J.M., 2026 ONSC 4379