R. v. C. B. 2021 MBPC68, 2021 MBPC 68

File No.___________ Appeal No. ___________ CITATION : R. v. C. B. 2021 MBPC68 IN THE PROVINCIAL COURT OF MANITOBA WINNIPEG, MANITOBA BETWEEN HER MAJESTY THE QUEEN and C. B. Accused REASONS FOR SENTENCE (Excerpt) (Pages T1 - T10) November 18, 2021 Winnipeg, Manitoba Royal Reporting, A Veritext Company 120 - 330 St. Mary Avenue Winnipeg, Manitoba R3C 3Z5

Phone: 204-306-9149 Fax: 204-306-9154 TABLE OF CONTENTS Description Page November 18, 2021 Afternoon Session T1 Reasons for Sentence T1 Certificate of Transcript T10 Proceedings taken in the Provincial Court, Winnipeg, Manitoba November 18, 2021 Afternoon Session The Honourable Judge The Provincial Court of Manitoba L. Martin S. Cooper For the Crown M. Zurbuchen For the Accused J. Buchanan Court Clerk Reasons for Sentence THE COURT: All right. Thank you for being patient with the Court.

As I indicated earlier, I'm very aware of how difficult all of this has been for the family and it's for that reason that I felt it was important to give my decision. As you heard as well, I received a great deal of materials, and I thank counsel for those materials, as well as the case law. And we spent a lot of time talking about the case law and I'm going to talk a little bit about it some more. And because of all of that and the materials I received earlier and the very fulsome helpful submissions, I was able to come to a decision today, so I thank -- I thank counsel

for all of that. We all know that C.B. has pleaded guilty to committing incest against his daughter, and the issue today for the Court is the appropriate sentence to impose. Incest is a strictly indictable offence which we've heard is punishment by 14 years with a mandatory minimum of five years when the victim is under the age of 16. We've heard that the Crown is seeking a sentence of 12 years and Defence is seeking a sentence of eight years.

I wanted to talk in no particular order about some of the thoughts of the Court, mindful of course that in any sentence the Court is guided by the Criminal Code provisions and the overarching principle of proportionality, meaning that the Court needs to be mindful of the circumstances of the offence and the circumstances of the offender. Sentencing is an individualized process. That means I need to look at it from what's happening and what has happened in this court; all right?

I'll talk about it more particularly when we're looking at other case law because it's always of guidance because we call that parity, making sure that similar offences committed by similar offenders are treated in the same way, but that's really just a reflection of that overarching principle of proportionality. I'm not going to go through the facts again. We've talked a lot about it, an agreed statement of facts was entered into before the Court, but I wanted to talk about what I see as several aggravating features with respect to this particular offence.

You heard that it was committed within the home and oftentimes in the victim's own bedroom and oftentimes when she was asleep. It was very invasive, and it included penile penetration. It occurred over approximately two years, and it occurred frequently, and we heard sometimes it was twice in the same day. He did not wear a condom, and the victim was only 12 when the offending began. It was while C.B. occupied a position of trust, and we've heard that the impact to the victim has been devastating. I can simply say that her world has been forever changed and dramatically.

The impact to the family, who's also a victim in this case, has been catastrophic, and I would like to thank Ms. W. for the time that she took to find the courage to put into words how her life has been turned upside-down in so many different ways. The loss as a spouse and that loss as a mother seeing a child suffer, seeing the other children suffer, feeling her own guilt about not having known or intervened, what to do, your feelings of guilt, a feeling that you're blamed by others in society. I go through all of this just to indicate the significant impact to all of the victims as a result of this offending.

There are a few mitigating factors here that I think that it's important to mention. C.B. has no prior criminal record, and there is his guilty plea, which I do find significant in this case. Given what unfortunately many of us see in the system, bringing a matter of this nature to trial, the impact on victims who need to testify, oftentimes it doesn't go well, and sometimes we don't get a conviction. So I do accept that his guilty plea is a significant mitigating factor here.

And I'll talk about other mitigating factors of course because that comes through when I'm looking at -- at him as well and -- and some of his remorse. The law is very clear that in cases such as these denunciation and deterrence are primary sentencing objectives. But as I've indicated, the sentence has to be proportional, so I just don't sentence someone for what they did. I need to look at who they are and consider the circumstances of the offender.

C.B. is 37 years old, and although he's managed to graduate from high school and maintain employment, it is clear that he had a very difficult upbringing having been abandoned by his mother and raised by an abusive alcoholic father. We've heard about his abandonment issues as well as the trauma that he suffered as a result of neglect and what I'm going to consider to have been physical, emotional and likely psychological abuse as a result of his father. A psychological risk assessment was performed by Dr. Kolton and we've spoken about that and bits and pieces of it, and that was written on November 9th, 2021.

I found generally that the risk assessment is not overly positive. It assesses the accused as an average

risk to reoffend sexually and makes a note of general lack of insight into his offending, and what I would characterize as some victimization on his part. But I do accept that he does have remorse for what he did and that he understands that what he did was wrong and that he harmed his daughter. He does present with some concerning diagnoses, notably the borderline personality disorder, major depressive disorder, pedophilic disorder limited to incest. C.B. is open to rehabilitation, but Dr. Kolton does make it clear that treatment will be complex given C.B.'s underlying issues.

Defence counsel says that C.B.'s moral blameworthiness is reduced because of his underlying diagnoses that were not being treated at the time of the offending. As noted by the Manitoba Court of Appeal in Zammit and more recently in Johnson , when assessing moral blameworthiness due regard must be given not only to the normative character of the offender's conduct but also to the intentional risk taking of the offender and to the consequential harm caused by the offender.

Okemow , which is a case of course that I had referenced earlier from our Manitoba Court of Appeal, has set out several questions that a sentencing judge should consider when assessing the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation. First, is there cogent evidence that the offender suffers from a recognized mental illness or other cognitive limitation.

Two, is there evidence as to the nature and severity of the offender's mental circumstances such that an informed decision can be made as to the relationship if any between those circumstances and the criminal conduct; and assuming one and two, I must then decide the offender's degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness of cognitive limitation played a role in the criminal conduct. As I've already indicated, it's clear that C.B. has several significant diagnoses.

No nexus between those diagnoses and the offending is commented on in the reports. And while I agree with counsel that C.B.'s upbringing and diagnoses explain his offending, I find that it does not reduce to at least any significant degree his moral blameworthiness. It's clear that C.B. knew what he was doing was wrong and that he should have stopped, and there is no indication that he couldn't appreciate his actions or control them. And when I consider what he has done, I find that his moral blameworthiness is on the higher end of the spectrum.

We've talked about parity, and that was looking at all of the cases, and I've gone through each one of those cases and noted some of the facts behind them, what was happening, the background of the accused, and what the ultimate sentence was. And as I've already indicated, we talked a lot about those so I'm not going to go through all of them again, but I do think that it's important to mention a couple of things. Defence counsel has correctly pointed out that incest has always been seen as an abhorrent crime. I think that that has been the case for a very long period of time.

It's also clear that that maximum sentence of 14 years has been in place for quite sometime, more recently the five-year minimum, but that we've heard has been in place since 2012. Every time one reads a case the court will talk about the harmful effect on the victims, and I think that brings us to Friesen and -- and Defence counsel has indicated that when we're looking at cases before that we need to be careful in not just simply dismissing them, and he submits that those cases already recognized the harmful effects of incest so that the sentences handed down by the courts are still important.

When I read Friesen , I think that Friesen , the Supreme Court of Canada has made very clear that although courts have generally been speaking about harmful effects, their expression of condemnation in terms of length of sentence has not been strong enough. And I wanted to take some time just to point out some excerpts from Friesen . At paragraph 5 the Supreme Court of Canada says: ... we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.

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, ...

And it continues on. And paragraph 76: Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities. At paragraph 111 the Supreme Court of Canada speaks about several jurisdictions that had implemented sentencing ranges or caps.

They refer specifically to the British Columbia Court of Appeal with a sexual interference of a cap of one to three years and only in rare circumstances would a sentence above three years be justified. It speaks about the Newfoundland Court of Appeal that held that the range for the sexual assault of a child involving both intercourse and abuse of a position of trust is three to five years and that special circumstances are required to depart from this range.

The Supreme Court of Canada expressed its concern about those sentencing ranges being too low and there being a cap, noting that there's no requirement for there to be rare or special circumstances in order to impose a substantial sentence where that substantial sentence is proportionate. In summing up at paragraph 133, the Supreme Court says: In sum, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime.

Judges cannot permit the number of violent assaults to become a statistic. Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children. ... When I consider this case, I find of course that denunciation and deterrence are the primary sentencing objectives. As I've noted, I do see that C.B. is open to rehabilitation. How that plays out for him time will tell. As I've indicated, Dr.

Kolton indicates that in his view it will be complex. I'm also very mindful of restraint given that this is his first jail sentence. I'm also very mindful, as Defence counsel began his submissions, that this cannot just be the Court reacting to the nature of the offence, and I think that I have tried to very fairly consider all of the circumstances before the Court. And when I have done that and I've considered the -- the Criminal Code and the case law, as well as the circumstances of the offence and of C.B., I find that an appropriate sentence is 11 years.

I am going to be giving him credit for the time that he has spent at enhanced presentence custody which I'm told was one year and ten months. So on a go-forward basis the sentence to be served is nine years and two months. It's a primary designated DNA offence and so I am making that order, and that will be done while he is in custody. There is a 20-year Sex Offender Information Registry Act order that as well that I need to make, and that means for a period of 20 years, C.B., you're going to have to report and provide information to the authorities on a yearly basis if not more -- it's usually once a year.

I need to advise you that if you don't do that and you move for example or you stop reporting, that is a criminal office; all right? Sometimes you can get a fine, sometimes it's jail; all right? There's also a

Section 109 lifetime weapons prohibition, so that means for the rest of your life you cannot own or possess any firearms, prohibited, restricted weapons, ammunition and the like. There has been a request from Crown to have a no contact order with your entire family, and this is -- this is my thoughts. I am concerned about some aspects of the risk assessment. I'm also mindful that the sentence is a long one and that things can change and that there will be Family Court proceedings which will look into the best interests of the children and where they are at emotionally.

As I indicated, the victims here are your entire family. It has come across in Ms. W.'s victim impact statement that even the boys are suffering. This is not an offence that affects only one person, it affects an entire family. It's also occurred to me that depending on how things go in Family Court, counsel can always move to set aside a noncommunication order. And because we are at this point in time where we are, I am going to be making that noncommunication order with respect to your entire family, but I'm going to word it so that it depends on of course with respect to Ms.

W. through counsel because there are going to be Family Court proceedings, and as well by an order of a court of competent jurisdiction in case somebody better situated than I makes a different finding; all right? So there's to be no contact or communication with N. -- I'm going to word it the victim N.; all right? And I'm not going to include the last name. I know that Mom is -- is attempting to change the last name, so I'm just going to indicate the victim N.; okay? I think that that will be very clear. He's not to have any contact with K.W., and it's ---; correct? And then W. --- -- except through counsel.

And he's also not to have any contact or communication with the victims N. or N. except as authorized by an order of a court of competent jurisdiction. Okay. There's also been a request for a

Section 161 order, and I am going to be making that order but I'm going to of course temper it because that was my concern particularly with the Internet, C.B. may need it for employment purposes simply to communicate with people, but I want to put some parameters around that. Once again, sitting where we are today, it is going to be more inclusive than not. If things change, an application to vary it can always be brought, or to have it set aside; okay? So it's under

Section 161. So, C.B., I'm going to prohibit you from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre. You're also prohibited from being within -- now, it says two kilometres -- I'm going to say 200 meters. Is that sufficient I'm assuming? I don't know -- the family I understand is not able to move at this point in time, but I was going to suggest 200 meters of where the victims live; all right?

You're also prohibited from seeking, obtaining or continuing any employment, whether or not you get paid for it, okay, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16. So what that would mean is for example you can't get a job where one of the employees would be for example under the age of 16; okay? You're also prohibited from having any contact or communicating by any means with a person who is under the age of 16 unless you are under the direct supervision of a person who is aware of your offending; okay?

You are prohibited from using the Internet or other digital network to access any pornography or to have any communication with an individual under the age of 16. I am of course going to waive costs and surcharges, and I look to counsel and Madam Clerk if I have failed to address anything. MR. ZURBUCHEN: I just didn't get the duration of the 161 order. THE COURT: Okay. MR. ZURBUCHEN: I apologize, Your Honour. THE COURT: I am going to -- in that one just remind me, that begins upon release; correct? MR. COOPER: Correct.

THE COURT: Okay. This one I'm going to make it for 20 years as well. MR. COOPER: So the 161 is for 20 years? THE COURT: Yes. MR. COOPER: Okay. The -- under the 161(a.1) 200 meters from where the complainant lives, I wonder if there should be other locations as well. THE COURT: Okay. MR. COOPER: School -- THE COURT: Any conditions on that I think that that's fair, but Mr. Zurbuchen? MR. ZURBUCHEN: I -- I think with reasonable specific locations. MR. COOPER: Yeah, so I'd say school, employment, worship, sort of like a -- THE COURT: Yeah. MR. COOPER: -- standard nonattendance order.

THE COURT: We'll do the 200 meters of where the victim lives, works, worships or goes to school; okay? MR. COOPER: Other than that, Your Honour, I think everything else is covered, Your Honour. THE COURT: Madam Clerk, do you have any questions or clarifications required? THE COURT CLERK: No, looks good. THE COURT: Okay. All right, so just to summarize then, C.B., it's nine years and two months going forward, all right, with all of those other orders; okay? There are a lot of them, and they will be gone over with you again. I know that Mr.

Zurbuchen will advise you about what they mean again if he hasn't already told you in advance. You have my caution particularly about the Sex Offender Information Registry Act because that one as well sometimes people forget after they are released from custody, very important to remember that, and of course all those other protective conditions while you're in custody and out of custody. Okay? All right.

EXCERPT CONCLUDED IN THE MATTER OF THE QUEEN V. C.B. I, KARI SHORT, Court Transcriber, HEREBY MAKE OATH AND SAY that the foregoing typewritten pages being numbered T One (T1) to T Nine (T9), inclusive, contain a true and correct transcription of the recorded proceedings taken herein to the best of my knowledge, skill and ability. _______________________________ COURT TRANSCRIBER