Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-04-29
COURT FILE No.: 22-70007888
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Marcial Katimaba MANIGBAS
Before Justice C. Faria
Heard on February 21, 2025
Reasons for Sentence released on April 29, 2025
David Spence — counsel for the Crown
The defendant Marcial Katimaba MANIGBAS — on his own behalf
1I found Marcial Katimaba Manigbas guilty of sexual assault on December 2, 2024, after a trial.1 The matter was adjourned to February 21, 2025 for the preparation of a Pre-Sentence Report (PSR) and submissions.
2These are my reasons for sentence.
I. Facts
3On November 9, 2022, TN called the superintendent of her building to open the storage room for her so she could put her luggage and air conditioner away for the season. Mr. Manigbas was her superintendent. Although she did not request him to come to her apartment to disassemble her air conditioning unit, he insisted on doing so. Once inside her apartment, Mr. Manigbas hugged TN from behind, touched her genital area and grabbed her breast over her clothes. The sexual assault lasted only a minute or two. TN pushed Mr. Manigbas away, confronted him, and he left.
II. Circumstances of Mr. Manigbas
4Mr. Manigbas is 64 years old and was 61 at the time of the offence. Pursuant to the PSR,2 he is the eldest of 10 children and grew up in a positive environment in the Philippines, though in financially strained circumstances. He started contributing to his family of origin early. He completed his university degree and became an industrial technician. He got a job, married, and started a family.
5In 2010, at the age of 49, he immigrated to Canada with his wife and children. He became a Canadian citizen 2 years later. Mr. Manigbas has been married for almost 40 years. He has 4 adult children, and 4 grandchildren. His children are all university educated, three of whom live across Canada and the youngest lives at home.
6The family has been able to live in three different buildings in which he has been employed as a maintenance manager. He provided two letters of employment that spoke very well of him.3 It is a product of his hard work that his family was able to purchase a home in Oshawa in 2019 where he now resides.
7As a result of these charges, he has chosen early retirement in fear of having to disclose this conviction to prospective employers. He now cares for one of his grandchildren who has special needs.
8His children provided letters of support and describe Mr. Manigbas as a loving, attentive, supportive father, grandfather, and husband. They describe his generosity, his commitment to them throughout their lives, and his integrity.4
9Both of his daughters-in-law wrote he is a pillar of the family who makes positive contributions to their lives and supports his grandchildren.5 He is also well-regarded by his lifelong friends and those in his faith community.6
10All the letters either refer to or explicitly state that the conduct before the court is out of character for Mr. Manigbas.
11Mr. Manigbas has no substance use issues, gambling problems, or mental health concerns. He spends his leisure time in positive, pro-social environments participating in church activities and his church community.
III. Positions
12The Crown recommends a 4-month jail sentence, a 12-month probation order with terms, a DNA order, a s.110 weapons prohibition and a SOIRA order (Sex Offender Information Registration Act order). The Crown emphasizes denunciation and deterrence, although the Crown acknowledges the principles of restraint and parity also apply.
13Mr. Manigbas, on his own behalf, submits that a custodial disposition is not appropriate. He submitted this is the first time he has been before the courts, and relies on his letters of reference to persuade the court to be considerate and mindful of his role in his family.
IV. Legal Principles
14Section 718 of the Criminal Code guides sentencing judges in the task of determining a fit sentence.
15Every sentence must be proportionate to the gravity of the offence, and the responsibility of the offender (s.718.1).
16The objectives of sentencing are set out in s. 718:
- To denounce unlawful conduct
- To deter the offender and other persons from committing offences
- To separate offenders from society where necessary
- To assist in rehabilitating offenders
- To provide reparations from harm done to victims or to the community
- To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community
17The principle of parity, that sentences for similar offences committed by similar offenders in similar circumstances should be similar, applies (s.718.2(b)). Restraint, that sentencing judges consider the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction, also applies (s.718.2(d)).
18Aggravating and mitigating circumstances must be considered (s.718.2(a)).
19Sexual assault is a serious offence, and the primary principles are denunciation and deterrence.
V. Analysis
20It is aggravating Mr. Manigbas was TN’s superintendent. TN was dependent on him to perform certain professional tasks such as to open the storage room door for her. It was in the context of this professional relationship that the sexual assault occurred.
21It is also aggravating that the offence occurred in TN’s home, where she is to feel the safest, but was where she was violated.
22Finally, this offence had a negative impact on TN mentally, physically, and financially. She has had difficulty trusting others and sleeping, while therapy has cost her financially. Unfortunately, TN also sustained a workplace injury just weeks after this offence which has exacerbated her recovery, though that is of no fault of Mr. Manigbas.7
23In addition, Mr. Manigbas maintains his innocence which he is entitled to do. This is not an aggravating factor, but a factor that precludes the mitigating benefit of remorse.
Mitigating Factors
24Mr. Manigbas is a 64-year-old first offender, with no previous criminal involvement.
25The PSR was a positive one. It demonstrated that Mr. Manigbas has led a pro-social, productive life, and is known to be hardworking, generous, and committed to his family’s well-being and success.
26He has suffered collateral consequences in that he is no longer able to go back to his job and retired earlier than expected. Any carceral sentence will also significantly impact his family as he has become the main caregiver for one of his grandchildren with special needs since his early retirement.
Caselaw
27The Crown provided me with R. v. Al-Handani, 2024 ONCJ 314 for consideration. In that case, Mr. Al-Handani, too had no criminal record. He was training to be a registered massage therapist when he removed his patient’s underwear and placed his hands on her unclothed body. He was sentenced to a 90-day intermittent sentence. Although he had been living a pro-social life, he had not received counselling nor had he been assessed, which left the jurist with concern about his risk to re-offend and a SOIRA order was imposed.
28I distinguish that case from the one at bar for two reasons. Firstly, although all sexual assaults are serious in that they are an offence of significant personal violation, the nature of the offence in Al-Handani was much more serious and intrusive than the circumstances of Mr. Manigbas’ offence. Secondly, Mr. Al-Handani’s offending occurred over a longer period of time, and the breach of trust was significantly more severe than in the case at bar.
29As a self-represented accused, Mr. Manigbas did not provide any caselaw.
30However, I am aware of several cases, which were of more serious sexual violations than the one before me, and in each instance, the offender was sentenced to a conditional sentence.8 For this reason, I requested the Crown provide submissions on the appropriateness of a conditional sentence, rather than a custodial one.
31It is the position of the Crown that a conditional sentence is insufficient to reflect the denunciation and deterrence required in this case.
Conditional Sentence
32It is well-recognized that for sexual violence offences, denunciation and deterrence are the primary guiding principles.
33How a sentence reflects these principles must be customized to the offender. The Supreme Court has stated that the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision”.9
34In addition, the Ontario Court of Appeal has long stated that a first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused.10
35Given the circumstances of the offence, Mr. Manigbas’ circumstances, age, and positive antecedents, I must consider whether a conditional sentence is appropriate in this case.
36There are five pre-conditions that must be satisfied before a conditional sentence can be considered available and fit pursuant to s. 742.1 of the Criminal Code and Proulx11:
i. The offence is not an excluded offence for a conditional sentence.
ii. There is no minimum sentence for the offence.
iii. The court has determined both a probationary sentence and a penitentiary sentence are inappropriate.
iv. The offender would not endanger the community.
v. A conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
37The first four prerequisites are easily satisfied in this case: sexual assault is not an excluded offence; the Crown elected summarily and there is no minimum term of custody; the seriousness of the offence renders a probationary period as insufficient to reflect deterrence and a penitentiary sentence is neither sought nor warranted; Mr. Manigbas has no criminal record, and on all the evidence at the sentencing hearing, there is no indication that he would be a danger to the community.
38The issue is whether a conditional sentence is consistent with the fundamental principles of sentencing in this case, specifically, denunciation and deterrence.
39A conditional sentence can have a denunciatory and deterrent effect:
“The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.” (underlined in the original)12
40In particular, the Supreme Court of Canada in Proulx states at para. 114:
…a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.
41Mr. Manigbas is 64 years old with no criminal record, strong family ties, a long history of pro-social behaviour and given his circumstances, a conditional sentence is a substantial sanction. It appropriately reflects the severity of the offence, his circumstances, the primacy of denunciation and deterrence as well as the principles of restraint and parity. A conditional sentence is therefore consistent with the fundamental purpose and principles of sentencing in ss.718 to 718.2 of the Criminal Code.
SOIRA
42The Crown seeks a SOIRA order.
43Although the onus is on Mr. Manigbas to satisfy me that he should be exempt from complying with SOIRA, he made no submissions on the point as a self-represented litigant. However, given this status as a self-represented litigant, it is necessary to review the criteria for the order and determine if it is appropriate to issue in this case.
44Sexual assault is a primary designated offence for a SOIRA order. Pursuant to s.490.012(3), I am to make a SOIRA order “unless the court is satisfied the person has established that:
a. There would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
b. The impact of the order on the person, including on their privacy or liberty would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.”
45The factors I am to consider per s. 490.012(4) are:
a. The nature and seriousness of the designated offence;
b. The victim’s age and other personal characteristics;
c. The nature and circumstances of the relationship between the person and the victim;
d. The personal characteristics and circumstances of the person;
e. The person’s criminal history, including age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
f. The opinions of experts who have examined the person; and
g. Any other factors that the court considers relevant.
46Although the offence is a primary designated offence, this sexual assault was of very short duration, the touching was over clothes, the victim is a mature woman, and a power differential though present, was not a significant one.
47On this issue, again, Mr. Manigbas’ age, lack of criminal record, and pro-social conduct, in the past and present all work in his favour. There is no indication Mr. Manigbas is any risk to the public and the Crown did not submit there is any risk.
48In addition, given his circumstances as a caregiver, although not determinative, the impact of this order on Mr. Manigbas would be significant. It would be disproportionate to the public interest in protecting society, as he appears to be no to little threat to society.
49Considering the factors per s. 490.012(4), I find that Mr. Manigbas should be exempt from complying with a SOIRA order.
VI. Sentence
50I sentence Mr. Manigbas to a 5-month sentence to be served in the community, and a 12-month period of probation.
51During his Conditional Sentence, Mr. Manigbas will follow all the statutory terms, including reporting within 24 hours of this order, and thereafter as directed by his supervisor, and remain in Ontario. He will also not be outside his residence except:
- to attend any medical emergency involving himself, or his family, including his grandchildren;
- to attend to his legal obligations;
- to attend to, from, and while at his place of worship;
- for a period of 5 hours on Saturday from noon to 5:00 p.m. to attend to his personal necessities, or any other 5-hour period for that same purpose, with the prior approval of his supervisor;
- to attend to, from, and while at medical, dental and educational appointments involving himself, or his grandchildren with prior written approval from his supervisor;
- to attend to, from and while at any other commitment with prior written approval from his supervisor.
52While on his Conditional Sentence Mr. Manigbas will also have no contact with TN directly or indirectly and he will not be within 100m of where TN lives, works, or he knows her to be. Mr. Manigbas will also not possess any weapons as defined by the Criminal Code.
53During the 12 month probation, in addition to the statutory terms, Mr. Manigbas will report within 48 hours of the completion of CSO, he will have no contact with TN, he will not be within 100m of where she lives, works, or he knows her to be, he will take counselling as directed by his probation officer, and sign releases to ensure that his probation officer can monitor his attendance and completion of such programs. He will also not be in possession of any weapons as defined by the Criminal Code while on probation.
Ancillary Orders
54I order that Mr. Manigbas provide a DNA sample today in this courthouse.
55I will make a s.110 weapons prohibition order for a period of 5 years.
56I decline to make a SOIRA order for the reasons set out earlier.
57I waive the Victim Fine Surcharge, as Mr. Manigbas is now retired and cares for his grandchild full time, and it would thus cause him undue hardship.
Released: April 29, 2025
Signed: Justice Cidalia C. G. Faria
Footnotes
- R. v. Manigbas, 2024 ONCJ 616
- Exhibit 16: Pre-Sentence Report, Marcial Manigbas, February 18, 2025.
- Exhibits 1 and 2
- Exhibits 3, 4, 5, 6
- Exhibits 7 and 8
- Exhibits 9, 10, 11, 12, 13, 14
- Exhibit 17: Victim Impact Statement, TN, February 14, 2025. TN made several inappropriate and/or unrelated comments in the statement which are not considered as part of the impact of the offence on her.
- R. v. Browne, 2021 ONSC 6097; R. v. G.T., 2022 ONSC 2619; R. v. Holland, 2022 ONSC 1540; R. v. Morgan, 2021 ONCJ 100; R. v. R.S., 2021 ONCJ 2263; R. v. Francis, ONCJ 2023 unreported; R. v. Dickson, 2023 ONSC 2776
- R. v. Lacasse, 2015 SCC 64 at para. 58
- R. v. Hayman, 1999 ONCA 3710, 135 C.C.C. (3d) 338 (Ont. C.A.)
- R. v. Proulx, 2000 SCC 5 at para. 77
- R. v. Proulx, 2000 SCC 5 at para. 22