R v MPB, 2023 MBPC 11

CITATION : R v MPB , 2023 MBPC 11 THE PROVINCIAL COURT OF MANITOBA Steinbach, Manitoba BETWEEN His Majesty the King ) I. Singh ) for the Crown – and – ) ) M.P.B. ) A. Libman ) for the Accused ) ) ) Delivered: ) January 26, 2023 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. ALLEN, P.J. [ 1 ] MPB has plead guilty to two counts of sexual interference against his daughters.

At the time of these offences, he was living with his wife and his three children. [ 2 ] The facts of the situation are set out in an Agreed Statement of Facts. [ 3 ] Essentially, the matter came to light as a result of marital difficulties between MPB and his wife, LB. At some point LB asked her husband if there was anything that he was not telling her.

He then told her that he had fondled the breasts of each of his daughters when they were 12 to 13 years old. [ 4 ] The complainant’s daughter, SB relayed the following in her police statement, which was part of the Agreed Facts. - a year or two ago her dad put his hands on her breasts. - [MPB] often touches her butt passing by her in the kitchen, even though there is lots of room to pass one another. - she is nervous to say anything about it. [ 5 ] Also, the complainant DB said the following in her police statement: - father molested she and her sister; once to her in her sleep, and apparently twice to her overall. - the time she remembers, she blacked out after a bit. - he was in her room and she asked him to put her to sleep. - he was grabbing her inner thigh, and pulled it between his legs and was humping it; she blacked out and next thing she remembers is he was not in her room any longer. - she was about 12 and in their current house, with her room laid out the same as it is now. - on occasion her father would read with her, tuck her in and sometimes they’d lay together. - this time there was no book and she asked him to stay until she fell asleep. - he began saying “[D], [D]” and was tapping her arm; she did not respond as she was trying to get to sleep. - she was facing the wall, away from him, then rolled over to face him. - she did not like what was happening, and can’t describe the feeling other than it made her upset. - he was rubbing against her leg with his crotch, and she believes his penis was erect.

- describes their clothing, and notes the a/c kicked in. - she could hear his breathing and her own. - he was grunting when he started humping her leg. - he seemed off, not himself; more quiet and he shouldn’t have been in her room for long. - told her mother twice but her mother’s memory isn’t great and mother was sick; the second time was this year and she told her in more detail. - she thinks it was fall, and he touched her breasts twice but doesn’t remember. - she has always felt unsafe around her father, and uncomfortable around him. [ 6 ] And finally, the girls’ mother said the following to police: - [DB] had years ago said daddy had done something weird the night before; while he was putting [DB] to bed, he places her leg between his and she felt his penis “thrumming” under it. - last night she and [MPB] were talking about how things have to be between them to reconcile the recent rough patch in their relationship.

It was then she asked point blank if there was anything he had not told her. He said nothing at the time. - the next morning, [MPB] sat down and said “about that”, then taking twenty minutes to disclose to [LB] that he has sexually assaulted their daughters. - [MPB] told her he had touched their daughters’ breasts when each of them was 12-13 years old. [ 7 ] MPB entered his guilty pleas and agreed to the Statement of Facts when he was representing himself. Mr.

Libman acted for him as to making a later submission on his behalf. [ 8 ] The Crown seeks two years of incarceration on each charge, consecutive to each other. Mr. Libman, on MPB ’s behalf suggests that consecutive 15-month sentences are called for. [ 9 ] The Crown points out that parliament recently increased the maximum sentence for this offence from 10 years to 14 years.

The Crown also points to commentary made in the case of R v Friesen , 2020 SCC 9 , such as: Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children. . .

Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” ( Lacasse , at para. 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence. . . These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they had been in the past.

As Kasirer J.A. (as he then was) reasoned in Rayo , the legislative choice to increase the maximum sentence for child luring [translation] “must be understood as a sign of the gravity of this crime in the eyes of Parliament” (para. 125). We agree with Pepall J.A.’s conclusion in Stuckless (2019) that Parliament’s legislative initiatives thus give effect to society’s increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112).

To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” (para. 175; see also Woodward , at para. 58).

Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences. ( Friesen at paras 95, 97, 99-100 ) [ 10 ] The Friesen case also makes it clear that in sentencing sexual offences against children, denunciation and deterrence should be the primary objectives.

Friesen at paragraph 101 says: Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005, Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence.

[11] More specifically, as to future sentencing for this type of offence Friesen says at paragraph 109: This guidance from Lacasse applies to sexual offences against children. As noted previously, Parliament’s decision in 2015 to increasemaximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to therecognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative (Rayo, at para. 175). Incertain cases, a sentencing judge [translation] “must feel free to impose sentences above” a past threshold (R. v.

Régnier, 2018 QCCA306, at para. 78 ). As the Quebec Court of Appeal has reasoned, courts must give “the legislative intent its full effect” andshould not feel bound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence (para. 40).

Such a rangemay in fact be “obsolete and must be revised upwards” (para. 30). [12] The Friesen case also includes numerous paragraphs dedicated to illustrating and understanding the long-term harm done tovictims of crimes of this nature. [13] As the Crown argues in this case, the two child victims should have been safe in their own home and should have been safefrom their father. [14] The Friesen case goes on to set out a number of what they call significant factors to determine a fit sentence. [15] The first of these factors is likelihood to re-offend. As pointed out, this is particularly significant, as

section 718 of theCriminal Code sets out that the fundamental purpose of sentencing is to protect society. [16] In this case, the Pre-Sentence Report (PSR) prepared listed MPB as a medium risk to re-offend and a below average risk forbeing charged or convicted of another sexual offence. [17] The Crown pointed out that MPB himself does not know why he committed these offences and that to this point has not takenany form of counselling. [18] Based on everything before the court, it appears that MPB lives an almost remarkably isolated life.

He is no longer employedand it would appear that his mother is the only person with whom he has any form of relationship. While this is concerning, this alone isnot indicative of a likelihood to re-offend. I am not satisfied that the evidence before the court establishes that he is a significant risk tore-offend. [19] The next significant factor in sentencing from Friesen is abuse of a position of trust or authority. [20] As stated in paragraph 126: The spectrum of relationships of trust is relevant to determining the degree of harm.

A child will likely suffer more harm from sexualviolence where there is a closer relationship and a higher degree of trust between the child and the offender . . . This is likely to be thecase in what might be described as classic breach of trust situations, such as those involving family members. . . [21] And, at paragraph 129: The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who standsin a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger.

The breach of theduty of protection and care thus enhances moral blameworthiness (R. v. S. (W.B.) (1992), (AB CA), 73 C.C.C. (3d)530 (Alta. C.A.), at p. 537). The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which isespecially morally blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22). [22] In this case, as the victims’ biological father, MPB’s degree of responsibility is increased. [23] The next factor in Friesen is the age of the victims.

About this, Friesen said (at para 136): At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent.Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, eventhough adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L.(D.O.), at pp. 464-65, per L’Heureux-Dubé J.).

In particular, sexual violence by adult men against adolescent girls is associated withhigher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the SexualAssault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The‘Statutory Rape’ Myth”, at p. 269; R. v.

Hess, (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.). [24] In this case, both of these complainants were at an age when arguably the impact of this form of violation would be even moretraumatic than if the victims were not old enough to realize the full nature of what was transpiring. [25] The next factor from Friesen is the degree of physical interference.

While in this case the complainants suffered both beinggroped, as well as touching from a penis, it is important to not minimize the damage done solely because there was no penetrative act.On this point, Friesen said at paragraph 142: [C]ourts should not assume that there is any clear correlation between the type of physical act and the harm to the victim. In assessingthe significance of the degree of physical interference as a factor, as Christine Boyle writes, “judges should think in terms of what is most

threatening and damaging to victims” (p. 180). Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell , an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause (paras. 111-15). Sexual violence that does not involve penetration is still “extremely serious” and can have a devastating effect on the victim ( Stuckless ( 1998 ), at p. 117).

This Court has recognized that “any sexual offence is serious” ( McDonnell , at para. 29), and has held that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant” ( R. v. J.A ., 2011 SCC 28 , [2011] 2 S.C.R. 440 , at para. 63 , per McLachlin C.J., and para. 121, per Fish J.). The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity ( R. v.

Jarvis , 2019 SCC 10 , [2019] 1 S.C.R. 488 , at para. 127 , per Rowe J.). [ 26 ] The principles of sentencing in Canadian criminal law are set out in

section 718 of the Criminal Code . They read as follows: 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. [ 27 ] In this case, the need to denounce these crimes is obvious and must play a significant role in this sentencing. [ 28 ] Similarly, a crime of this nature must be deterred both as to this offender and as to the community at large. [ 29 ] While Canadian criminal courts are charged to utilize the most lenient sentencing options available, there are some situations where separation from society is necessary, both for the protection of the public and to meet the other sentencing principles.

This is such a case. [ 30 ] As to ( d ), assisting rehabilitation, Mr. Libman maintains that MPB is open to rehabilitative therapy and that programming is available in the Federal Corrections system. The PSR indicates that this offender has never previously been exposed to counselling of any form. There is nothing in the evidence before the court to indicate that he is anything but a good candidate for therapeutic intervention. [ 31 ] Subsection (

f) states the objective of promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims or the community. In my opinion, this objective requires that this offender receive a jail sentence of some degree of severity in an institution. [ 32 ]

Section 718.2(

a) reads as follows: [A] sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . (ii) evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, . . . shall be deemed to be aggravating circumstances ; (Emphasis added.) [ 33 ] In this case, of particular concern is that all of the above noted aggravating factors are present.

The position of trust that exists between a father and his children has been broken. This is aggravating. It is also aggravating that these offences occurred in the complaints’ home where they should have been safe and nurtured rather than victimized.

[ 34 ] It is mitigating that MPB ’s admission was what brought these crimes to light. As well, he was cooperative with police and at no time disavowed his crimes. Further, he cooperated with the prosecution in agreeing to an Agreed Statement of Facts and finally, he plead guilty thereby eliminating the need for the complainants to appear in court. [ 35 ]

Section 718.1 of the Criminal Code is the fundamental principle of sentencing. It reads, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 36 ] The gravity of this offence is vividly set out in the Victim Impact Statement (VIS) provided by LB, mother of the complainants. It reads: The girls still have nightmares, I still have vivid nightmares about what he did how he did it. I had to change the locks and get a security system just so the girls have a small sense of security.

They live in fear of [MPB] returning since he broke the no contact order once. Since the break of the no contact order and showing up at our house; our son refused until May to go back to school scared something would happen to me, and the girls. The girls nightmares and lack of sleep has gotten worse. They stay awake until they no longer can keep their eyes open. Falling a sleep is a thing of the past, we pass out from exhaustion. We have lost our trust in men, we have lost our sense of security, some of us lost our innocence, others lost a role model.

On top of everything else the girls marks have dropped from Honors the first semester to barely passing second semester. So I would say this has greatly impacted their lives forever. I will continue to get the children counciling but I foresee them in counciling indefinitely. ( sic ) [ 37 ]

Section 718.2 (

b) of the Criminal Code says, “[A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 38 ] The Crown filed the Ontario Court of Justice case, R v Lloyd , 2021 OJ No 5163 . In that case, the offender was found, after trial, to have touched the complainant’s vagina over her clothes while lying next to her in a trailer. Mr. Lloyd was viewed by the complainant as a father figure. The offence took place on a family camping trip. The Crown proceeded summarily.

At that time, the maximum sentence available was 18 months. [ 39 ] The decision in the Lloyd case referenced principles from the Friesen case which emphasized that sentencing in cases of sexual offences committed against children the sentence should “reflect the wrongfulness of the accused’s conduct and the extent of harm it caused to the complainant and to her family” ( Lloyd , para 11). [ 40 ] The Lloyd case lists numerous cases and the sentences ordered as to sexual interference with children.

These precedent cases are of somewhat limited value as they all precede the Friesen decision. [ 41 ] In the Lloyd case itself, the Court looked at aggravating factors such as the breach of trust, the age of the complainant (who was 10), and the immediate and long-term harm done to the child. As well, Wheeler, J said: It bears noting that there are a number of aggravating factors that are sometimes present in cases of sexual violence towards children that are not present here. There was only one incident. It was brief. There was no grooming.

There were no threats of violence or any attempt to coerce the victim to keep silent. [ 42 ] Ultimately, Mr. Lloyd, who had no previous criminal record, was given 15 months of jail and two years of probation.

This sentence was entered after the Friesen case. [ 43 ] Similarly, in the case at bar the offences against each complainant do not appear to have been preceded by grooming, other than the statement by one of the girls that her father touched her buttocks when she passed him in the house and he made her feel uncomfortable. [ 44 ] It appears that, as to one of the complainants, there were two incidents of abuse; as to the other complainant, one incident. [ 45 ] MPB suggests that on these occasions he thinks he had used too much marijuana.

He thinks he was “‘most likely’ under the influence of cannabis during the time of the offences” (PSR, page 10). [ 46 ] This Court must take into consideration that in this case there has been a significant breach of the trust relationship owed between a father and his children. Also the considerable damage done to the complainants and their relationship within their family. Further, consideration must be given to the sentencing principles and MPB ’s prospects as to re-offending. With all of these considerations in mind, I am of the opinion that a significant period of incarceration is required.

As clearly stated, not only in the Friesen case but in sexual assault cases from throughout Canada, crimes of this nature must be denounced and deterred. [ 47 ] Considering all of the above, I find that an appropriate sentence is 15 months of imprisonment on each charge, consecutive to each other, for a total of 30 months in jail. [ 48 ] I am also imposing an order under

section 161 of the Criminal Code for a period of 10 years from the date of his release, with prohibitions as follows. MPB is prohibited from: 161(1)(

a) 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, school ground, playground, or community centre; 161(1)(a.1) being within two (2) kilometers of [DB] or [SB]’s residence, place of education or place of employment;

161(1)(

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; 161(1)(

c) having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate. [ 49 ] Finally, I impose a 10-year order that MPB comply with the Sex Offender Information Registration Act , and an order that MPB provide a DNA sample suitable for analysis, the sample to be taken while in custody; under

section 109 of the Criminal Code , there will be a 10-year weapons prohibition; pursuant to

section 743.21 , a non-communication order with the complainants while MPB is serving his sentence; costs and surcharges are waived. Original Signed by Judge Allen H. L. ALLEN, P.J.