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The judge noted that the charge of sexual assault covers a broad spectrum of behaviour. And while the Supreme Court has warned against creating sub-categories that don’t exist in criminal law, the “principle of proportionality demands that offences be ranked on a scale of gravity,” he said.

“Cases regarded as more severe frequently involve factors such as additional or gratuitous acts of violence, threats of violence or bodily injury, coercion, prolonged or repetitive assault, forcible confinement, forced fellatio or sexual intercourse. This is not this case,” MacLeod said.

“What this case did involve was sexual assault on a semi-conscious employee involving mouth to genital contact and brief penetration. The defendant did not continue with the assault or escalate the assault, and he disengaged voluntarily.

“I have concluded that this is a significant but not severe sexual assault.”

DeMarinis was found guilty in November by the judge after a 10-day trial. Court heard that the 19-year-old victim was training as a bartender on the night of Feb. 15, 2015 at a private party, and was drinking heavily during the event.

Late that night, DeMarinis followed her to an upstairs washroom and sexually assaulted her in a bathroom stall. The judge concluded the victim was too intoxicated to consent to sexual activity and that DeMarinis should have recognized her level of impairment.

In her victim impact statement, the woman said the incident has left her anxious and, at times, suicidal.