R. v. M.B., 2024 ONSC 6397

COURT FILE NO.: CR-24-50000066
DATE: 20241206

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

M.B.

Michally Iny, for the Crown

Richard Mwangi, for M.B.

HEARD: July 24, September 24, and October 29, 2024

Publication Ban

An order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. Since disclosure of the offender’s name may lead to the identification of the complainants, the names of the accused, complainants and witnesses have been anonymized.

pinto j.

Overview

1On May 30, 2024, a jury convicted M.B. of the following offences against his biological daughter V and his stepdaughter M:

(a) Assaulting V with a weapon, namely a book, contrary to s. 267(a) of the Criminal Code;

(b) Choking, suffocating, or strangling V, contrary to s. 267(c) of the Criminal Code;

(c) Sexually assaulting V, contrary to s. 271(1) of the Criminal Code;

(d) Sexually assaulting M, contrary to s. 271(1) of the Criminal Code;

(e) Sexually interfering with M, contrary to s. 151 of the Criminal Code;

(f) Inviting M to sexually touch him, contrary to s. 152 of the Criminal Code.

2The Crown requests that M.B. receive a prison sentence of 11 years, whereas the Defence submits that the circumstances warrant a custodial sentence of 5 years. The parties agree that the application of credits does not feature in this case. For the reasons that follow, I find that a total sentence of 10 years is appropriate. Certain ancillary orders should also be imposed.

Circumstances of the Offences

3The circumstances of the offences are that M.B. sexually assaulted his stepdaughter, M, and then years later, physically and sexually assaulted his biological daughter, V.

4When M was 8 or 9 years old, M.B. made M sit on his lap and then touched her, initially outside of her clothes, but then underneath her underwear where he rubbed her vagina. This pattern occurred many times during the day and these assaults occurred upwards of 15 times. There were also two occasions where M was sleeping on the couch and woke up to find M.B. rubbing her breasts. These incidents occurred at an apartment on Keele Street.

5When M was 11 or 12 years old, her mother moved to an apartment on Inverhouse Drive in Mississauga. The assaults continued but occurred at nighttime while M slept on a mattress on the floor. M has a vivid recollection of waking up in the middle of the night and seeing M.B. lying beside her and rubbing himself and rubbing her. M.B. guided M’s hand toward his private area and instructed her to rub his erect penis over his clothing. These incidents happened frequently, at least once a week. On occasion, M woke up with discharge in her underwear or without underwear on. These incidents stopped once V was born.

6V’s parents continued to live separately. Over the years, her father spent time with her both at her mother’s home and at his apartment when she would visit him. M.B. disciplined her by violence when she misbehaved, including on one occasion when he picked up a heavy textbook and slammed it down on her hands several times, leaving her in significant pain afterwards.

7On another occasion, when V stole candy from Walmart and lost her key to M.B.’s apartment on her way to school, her father became enraged and choked her.

8Shortly after V started menstruating, while she was showering at M.B.’s apartment, he instructed her to shave her vagina until it was clean shaven. He did so under the guise that he was trying to “teach her” about good hygiene. He instructed her to cover her clitoris with two fingers so it would not get cut and then he used a barbering tool to shave her. He also made her do part of the shaving. V was 11 or 12 years old when this occurred.

Victim Impact Statements

9M, who is now 30, provided a victim impact statement. She stated that experiencing sexual abuse at such a young age was very confusing. She did not tell her mother what her stepfather was doing to her because she did not know how her mother would react. As she became older, she began to understand how he had taken advantage of her. Her fear and uneasiness, especially at night, has continued into her adult years.

10V, who is now 17, also provided a victim impact statement. She stated that her father’s abuse was very hurtful because it made her doubt herself a lot and impacted on her relationships with others, including her mother. It was very difficult because she was forced to stay with her father during the week. She was angry because she knew that other children had positive relationships with their fathers. She is upset at herself because she should have told someone sooner about the abuse. She lived in fear for a very long time. When her father injured her hands, it was very painful, and she could not write which disrupted her attendance at school. She also fears for her younger sister.

Circumstances of the Offender

Pre-Sentence Report

11A Pre-Sentence Report (PSR) was prepared by Kasia Szczuka, a Probation and Parole (P&P) Officer, dated July 18, 2024.

12M.B., now 56, was born in March of 1968. He has two daughters from his marriage to S.E.: V, one of the victims, and E, V’s younger sister. M.B. and S.E. are now separated.

13M.B.’s prior criminal record consists of a 1987 conviction in Edmonton, Alberta for possession of property under $1,000 obtained by crime, and a 2007 conviction in Windsor, Ontario for sexual assault. The latter offence entailed the sexual assault of his girlfriend’s 13-year-old niece. M.B. received a suspended sentence and one year’s probation.

14The P&P Officer noted that, during the interview for the PSR, M.B. presented as uncooperative and arrogant. He used condescending language, talked over the Officer, and displayed body language that showed a lack of interest in the interview. M.B. refused to provide personal information if he believed it was not relevant to his current offences.

15M.B. advised the P&P Officer that he was born and raised in Guyana. He described his childhood as good and said that he had lots of fun growing up. He declined to elaborate. Ministry records indicated that his mother worked as a nurse and that his father had a Ph.D. His parents divorced and moved to England, leaving him under the care of his grandparents in Guyana. He visited his parents in England, and during his teen years he moved to Canada. He has also resided in the United States. He reported that, prior to his marital relationship with S.E., he was previously married. He was convicted of assaulting his female spouse on August 5, 1997, although this information is not noted on his CPIC information.

16According to the PSR, M.B. blames his wife S.E. for their marriage not working out. He described himself as a dedicated husband who took care of his family. S.E. had her own children from a former relationship. M.B. claimed that S.E. “took the kids for one long weekend and she never return[ed] them to me.” He blames his legal problems on his wife and states, “she did it to win the custody war.”

17The PSR reports that M.B. completed elementary and high school in Guyana. He claimed to have attended university in the U.S. but declined to provide the name of the university and courses he took there. He further informed that, approximately 6 years ago, he attended an IT program at Seneca College but “hated it from the beginning.” He failed to complete the program and claimed to have obtained an entry level IT job without having any diploma or degree in the field. He also claimed to have attended a 2-year program with Nordic College and obtained a social degree/diploma in “whatever” and started his own IT company. He claimed to have registered for a 3-year software engineering program as well as a pre-nursing program but had not completed either due to his charges before the court.

18M.B. stated that he had been a recipient of the Ontario Disability Support Program (ODSP) since 2020 as “[m]y wife made me lose my sight and I cannot work right now.”

19M.B. reported no issues with substance abuse.

20The P&P Officer indicated that M.B. appeared evasive and exhibited a hostile attitude throughout their interaction.

21The PSR reviewed ministry records from prior community supervision following his 2007 conviction which showed him to be resistant to having to attend counselling.

22The PSR concluded that M.B. presented with a very relaxed attitude towards the offence which he categorically denied committing. M.B. stated that “counselling is not for me.” He insisted on his innocence and suggested that his wife “did it to me to win the custody war.” He acknowledged no harm done to the victims nor any indication of remorse. The PSR concluded that M.B. “demonstrated a lack of sound judgement and blatant disregard for the victims and the safety of the community.”

Letter of Support

23The Defence provided a letter of support from Reverend Dwight Richards, a pastor at Dayspring Christian Church in Brampton, who has known M.B. for the past 20 years. The letter of support indicated that M.B. had made him aware of the details of the situation concerning his marriage and his daughters. However, the letter did not elaborate on those details. The letter also stated that Reverend Richards had observed “[M.B.] to be a caring and loving father” but did not indicate when such observations were made or the context.

Sentencing Position of the Crown

24The Crown seeks an 11-year global sentence for M.B.

25Additionally, the Crown seeks:

(a) A DNA order under s. 487.051 of the Criminal Code in respect of the sexual assault, sexual interference, and invitation to sexual touching offences, all of which are primary designated offences.

(b) An order pursuant to s. 109 of the Criminal Code that M.B. be prohibited from carrying or applying for weapons for 10 years.

(c) An order under s. 490.012 of the Criminal Code that M.B. comply for life with the Sex Offender Information Registration Act (SOIRA), S.C. 2004, c.10.

(d) An order pursuant to s. 743.21(1) of the Criminal Code that M.B. be prohibited from communicating with his stepdaughter M, his biological daughters V and E, and their mother, S.E., for the custodial period of his sentence. The only exception to the order is that communication is permitted pursuant to a family court order.

(e) An order, under s. 161 of the Criminal Code, that for 10 years:

i. M.B. is prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years (s. 161(1)(b));

ii. M.B. is prohibited from attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground or playground or community centre.

26The Crown presented several authorities to suggest that a custodial sentence of 11 years is appropriate in the circumstances of this case. Appellate courts have not specified a particular sentencing range for sexual offences involving minors, or for offences where the offender is the parent or stepparent of the victim. However, denunciation and deterrence must be the primary sentencing considerations: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 95; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161; R. v. R.S., 2022 ONSC 4604.

27The Crown also reminds the court that, under s. 718.3(7)(b) of the Criminal Code, a sentence of imprisonment for a sexual offence committed against a child, other than an offence committed under section 163.1 (child pornography), must be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child, other than an offence under s. 163.1.

28The Crown submits that M.B.’s sentencing features a great number of aggravating factors with no mitigating factors. M.B. is a repeat offender. He has a 2007 conviction for sexually assaulting a 13-year-old girl. He has now been convicted of sexually assaulting his biological daughter and a stepdaughter. He shows no remorse or insight into his criminal conduct, and there are no pro-social factors such as steady employment. While M.B. did not force sexual intercourse on the victims, there was a significant violation of the victims’ bodily and sexual integrity. Further, the duration of abuse on M was arguably as long as four years when she was between the ages of 8 and 12 years old.

29The complainants’ victim impact statements refer to lasting damage on the victims’ lives impacting their ability to trust men, and their sense of safety and wellbeing. To this day, M.B. continues to deny all wrongdoing, claiming that his convictions are the result of his wife’s doing in relation to a custody battle.

30The Crown also notes that there is nothing reliable in the material provided by M.B. He appears to walk around with a white cane sometimes. But, as noted in the PSR, at other times he does not need it. While he has filed a report from a cardiologist, there is no evidence of how his medical condition impairs his day-to-day functioning. He claims to have taken courses at university, including at Harvard, but has presented no documentary proof of attendance at, or graduation from, any post-secondary institutions.

31While acknowledging that M.B. is a Black man, the Crown submits that he has not suggested that he has experienced racism. In terms of the Crown’s request for a non-communication order, he has not requested to contact his younger daughter E.

Sentencing Position of the Defence

32The Defence submits that the appropriate sentence for M.B. is a global sentence of 5 years.

33The Defence does not take issue with the ancillary orders requested by the Crown except with respect to the s. 161 non-communication order in respect of E, M.B.’s younger daughter. The Defence submits that there was no evidence at trial to suggest that M.B. presents a danger to E, and therefore there is no need for such a punitive order.

34With respect to mitigating factors, the Defence asserts that M.B.’s offences against V were three discrete events and did not take place over many years. M.B. has not breached any conditions of his bail since his arrest. The appropriate sentence for M.B. is one that recognizes that this will be his first custodial sentence. The principle of restraint must be respected. Finally, the medical documentation filed by the Defence proves that M.B. has vision and cardiovascular issues.

Caselaw

35In R. v. M.W., 2024 ONSC 5834, Stribopoulos J. made the following comments about the sentencing for sexual offences against children:

48Parliament has instructed that when "a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct": Criminal Code, s. 718.01.

49In its unanimous decision in Friesen, the Supreme Court of Canada offered essential guidance for courts sentencing offenders who commit sexual offences against children. It did so to ensure that "sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim": Friesen at para. 43.

50The Supreme Court in Friesen made various observations concerning sexual offences against children. It recognized the inherent wrongfulness of such offences and the profound harm and life-altering consequences they occasion for victims at paras. 50-67. To ensure that sentences for such crimes respect the proportionality principle, the Supreme Court provided guidance to ensure that the sentences reflect the gravity of such offences. It instructed that sentencing judges "must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences": at para. 76; see also at paras. 77-86.

51Further, the Supreme Court in Friesen identified various factors that courts should consider in determining a fit sentence for sexual offences against children. These include (1) the offender's likelihood to reoffend (paras. 122-124); (2) the abuse of a position of trust or authority (paras. 125-130); (3) the duration and frequency of the abuse (paras. 131-133); (4) the age of the victim (paras. 134-136); (5) the degree of physical interference, while not giving it undue emphasis given that there is no hierarchy of physical acts and remembering the emotional and psychological harm associated with all crimes of this nature (paras. 137-147); and (6) the irrelevance of a victim's participation in the act(s) (paras. 148-154).

52Although the Supreme Court in Friesen acknowledged that it was not its role to establish a sentencing range for sexual offences against children, it did make some crucial observations concerning the potential length of such sentences. It noted "that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.": at para. 114. Further, it observed that substantial sentences could result even in cases "where there was only a single instance of sexual violence and/or a single victim": at para. 114.

53In Ontario, the post-Friesen sentencing decisions involving offenders in positions of trust who commit sexual offences against children range between five and ten years of imprisonment: see R. v. C.B., 2021 ONSC 187 (five years); R. v. L.R., 2023 ONSC 6762 (same); A.B. (same); R. v. G.R., 2020 ONSC 7411 (5 1/2 years); R. v. K.Y., 2021 ONCJ 26 (six years); R. v. M.A., 2022 ONSC 1496 (7 years); B.M., (same); R. v. A.S., 2023 ONSC 983 (same); R. v. A.K., 2022 ONCA 508 (8 years); R. v. R.V., 2022 ONSC 2332 (same); R. v. Hilal, 2023 ONSC 4270 (same); R. v. J.B., 2023 ONSC 1275 (9 years); R. v. G.B., 2024 ONCA 757 (same); R. v. G.C., 2020 ONSC 7381 (10 years); R. v. R.G., 2022 ONCJ 204 (same); but see R. v. R.S., 2022 ONSC 4604 (11 years).

54Where a particular case falls within that wide range is a function of its aggravating and mitigating circumstances. Further, the sentences imposed post-Friesen are in keeping with observations made by the Court of Appeal over two decades ago in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 44:

... that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

36On the facts in M.W., Stribopoulos J. sentenced the offender to a global sentence of 12 years in circumstances where he was found guilty of 6 charges: two counts of sexual interference, two counts of sexual exploitation, and two counts of sexual assault – one count of each relating to each of the two victims. The offender was found to be in a position of trust because he was entrusted by the victims’ parents to look after them as a religious and spiritual guide. The offender was 32 years old at the time of sentencing with no prior criminal record. One adolescent victim was subjected to non-consensual sexual intercourse on hundreds of occasions. She became pregnant and the offender arranged an abortion. The other victim, also an adolescent, was subjected to non-consensual sexual intercourse somewhere between 60 and 100 times. Stribopoulos J. would have sentenced the offender to 17 years based on 9 years in respect of one victim, and 8 years in respect of the other served consecutively but, applying the totality principle, reduced the overall sentence to 12 years.

37In R. v. C.B., 2021 ONSC 187, the offender was convicted by Woodley J. of sexual assault, sexual interference, and invitation to sexual touching with respect to his biological daughter when she was between 13 and 16 years old. He received a global sentence of 5 years. The abuse consisted of digital penetration, oral sex performed on the victim, manual stimulation of the offender’s penis, and repeated attempts by the offender to engage the victim in sexual intercourse. C.B. was 43 at the time of sentencing. He did not accept responsibility for his actions and placed the blame entirely on the victim. C.B. had no prior criminal record and had been continuously employed at a high level for most of his adult life. He had experienced mental health issues and had made significant efforts to obtain counselling.

38In R. v. Andress, 2022 ONSC 1496, Arrell J. sentenced the offender to 7 years after he was found guilty of three counts of sexual interference by sexual touching of three children under 16. The abuse took place while Mr. Andress and his wife were serving as babysitters for the victims. The abuse on one victim, which consisted of sexual assaults short of intercourse, lasted five years and occurred “almost daily” or on “most weekends”. The offender attacked another victim multiple times the week she stayed at his home, and he attacked the third victim on multiple instances for over a year. The offender did not show any remorse.

39In R. v. R.S., 2022 ONSC 4604, a jury found a father guilty of sexual assault, invitation to sexual touching, and incest, in relation to his daughter. Roberts J. imposed a sentence of 11 years on the 53-year-old offender.

40In R. v. A.S., 2023 ONSC 983, the offender was sentenced to seven years in prison for the abuse of a minor between the ages of six and twelve years old. The defendant was a close family friend of the victim, was seen as a father figure, and occupied a position of trust. The abuse included touching the victim’s vagina and anus underneath her clothing, kissing the victim’s vagina, and sucking the victim’s breasts. The duration and frequency of the abuse was considered an aggravating factor by the court.

41In R. v. N.K., 2024 ONSC 2761, the offender was sentenced to seven years in prison for sexual assault, sexual interference, and invitation to sexual touching of his stepdaughter. The abuse occurred from when the victim was in grade three to grade six and included touching the victim’s breasts both over and under her clothing, touching her vagina under her clothing, attempting intercourse, forced masturbation, and showing the victim explicit materials online. The defendant was a first-time offender, but the victim’s age, the duration and frequency of the abuse, and the fact that the abuse occurred in the victim’s home were considered aggravating factors in this case.

42In R. v. A.P., 2021 ONSC 6647, the offender received a total sentence of 9 years following a trial for sexual abuse of his niece and nephew 35 years earlier when they were young children between the ages of about 4 and 7. The sexual abuse included anal penetration and fellatio including ejaculation, and having the children play with each other’s private parts and perform oral sex on each other. The offender had no criminal record at the time, but subsequently acquired one, including for sexual assault. He had a sporadic work history.

Aggravating and Mitigating Factors

43On the aggravating side, M.B.’s crimes involve a grave breach of trust. He violated one of the cardinal norms of our society by sexually abusing his own stepdaughter M and then, years later, his biological daughter V. With M, he did so repeatedly over a three-to-four-year period. He took advantage of children in their own home or in their second home for his sexual gratification.

44M.B. is a repeat offender, having sexually assaulted his former girlfriend’s 13-year-old niece in 2007.

45M.B. was uncooperative and hostile in his PSR interview with the P&P officer. He appears to have made up his mind that counselling is not for him.

46He blames his separated wife, the victims’ mother, for all that has befallen him.

47There do not appear to be any mitigating circumstances. I note that M.B. has complied with his bail conditions.

48M.B. has shown no remorse and is completely unwilling to acknowledge the profound harm his conduct has had and will continue to have on the two victims and their families.

49I place no weight on the single letter of support from Reverend Richards. The letter provides no details of what M.B. told the pastor of “the situation concerning his marriage and his daughters.”

50With respect to the medical note from Dr. James Cherry, a cardiologist, I note that the letter is dated November 15, 2023. Given that the medical note is over a year old, I question its value. Secondly, the letter contains specialized medical terminology, and I am in no position to interpret its meaning without expert evidence. There was nothing in the letter about how M.B.’s cardiac issues impact his day-to-day activities or health. In fact, I note that under “recommendations”, Dr. Cherry states that M.B. “will continue being active in the gym going and doing cardio workouts 3 times a week.” The letter concludes with, “I will see how he is doing in a year’s time.” The Defence provided no evidence that M.B. had a follow-up visit with Dr. Cherry.

51The Defence also provided a medical note from Dr. Yau and submitted that Dr. Yau was an “eye doctor”, which I take to mean an ophthalmologist, although this is not clear from the note itself. The note documented a visit on December 12, 2023, with the purpose of the visit being a follow-up “evaluation for bilateral maculopathy.” I place very little value on this medical note as there was no reference in the note itself about what it means for M.B.’s vision, health, or day-to-day activities.

Sentencing Decision

52I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender’s prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.

53I find that a global sentence of 10 years is just for the following reasons.

54M.B. sexually abused M, his stepdaughter, when she was between the ages of 8 and 12 years old, and then years later, physically and sexually abused V, his biological daughter. He did so when the children were at their primary or secondary home. He took advantage of the inherent trust that the victims’ mother and society placed in him to protect the children from harm. The crimes involve an extreme breach of trust.

55The duration and frequency of sexual violence against M are significant. It appears that the abuse took place over a period of as long as four years. Multiple acts of sexual violence, albeit not of oral sex or intercourse, occurred.

56The severity of the physical violence against V, which included choking, should not be diminished.

57The impact on the victims has been devastating.

58M.B. is not a first-time offender. He was convicted of sexual assault of a 13-year-old, his girlfriend’s niece, in 2007.

59The likelihood of reoffence is unclear.

60M.B. has not shown any remorse for his criminal conduct.

61Given his repeat offending, the multiple victims, his blaming his separated wife, his complete lack of acknowledgment of his crimes, and his refusal to attend counselling, his prospects of rehabilitation are very low.

62He should serve a just and serious sentence, but the sentence should not be crushing.

63With respect to the appropriate sentence in respect of the offences against M, I find that the appropriate sentence is 7 years. This is consistent with the sentences in A.S. and N.K. where the offender was found guilty of sexual abuse short of intercourse. I also find this sentence consistent with the 5-year sentence in C.B. where, unlike M.B., the offender was a first-time offender with significant mitigating factors.

64With respect to the appropriate sentence regarding the offences against V, I find that the appropriate sentence is 5 years in total, with primary consideration going toward the sentence to be served for sexual assault. I have considered Defence counsel’s submission that the offences against V were relatively discrete consisting of three separate events: assault with a book, choking, and shaving of her vaginal area. That may be true, but I note the Supreme Court of Canada’s direction in Friesen that “mid-single digit penitentiary terms for sexual offences against children are normal.” I also note that in R. v. Shilling, 2021 ONCA 916, the Court of Appeal upheld a sentence of 4-1/2 years where an offender with a prior conviction for sexual assault committed two serious acts of sexual interference when the victim was a child between 11 and 14 years old.

65Cumulatively, M.B.’s sentences in respect of the offences against M and V would total 12 years when served consecutively as they should be. However, the totality principle requires a judge who imposes consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender. The aggregate sentence must be just and appropriate: M.W., at para. 91, citing R. v. M (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C.).

66I find that a 12-year sentence for M.B. would be unduly harsh given that the offender in M.W. received a 12-year sentence in circumstances that were worse. M.W. had forced sexual intercourse on both his victims up to hundreds of times.

67My sentencing decision must also reconcile the sentencing decision in A.P. where Roberts J. sentenced the offender to 9 years following a conviction for sexual abuse of his niece and nephew 35 years earlier. On the one hand, the nature of the sexual abuse in A.P. involving anal penetration and fellatio including ejaculation was more serious than in M.B.’s case. However, A.P. was a first-time offender who subsequently acquired a criminal record, including for sexual assault. I find that a 10-year sentence appropriately balances the various sentencing considerations including restraint.

Ancillary Orders

68With respect to the ancillary orders, the parties agree, except the Defence objects to the inclusion of his youngest daughter E in the s. 743.21(1) non-communication order.

69I find that the youngest daughter E should be included in the s. 743.21(1) non-communication order because she is the biological sister of the victim and the daughter of S.E. It would be very unwise to permit M.B. to communicate with E, when this is precluded with respect to the two victims and S.E. M.B. has shown no acknowledgement of his crimes, he blames everything on S.E., and I am concerned what he may say to E.

Conclusion

70In conclusion, M.B. is sentenced:

(a) On count 1, to one year of imprisonment for assaulting V with a book;

(b) On count 2, one year of imprisonment for choking V, to be served concurrent to the sentence for count 1;

(c) On count 3, four years of imprisonment for sexually assaulting V by shaving her vaginal area, to be served consecutive to the sentence for count 1;

(d) On counts 4, 5 and 6, five years of imprisonment for repeatedly sexually assaulting M over a 3-to-4-year period, the sentences to be served concurrent to each other but consecutive to the sentences for counts 1 and 3.

71I also order that M.B. be subject to:

(e) A DNA order under s. 487.051 of the Criminal Code in respect of the sexual assault (counts 3 and 4), sexual interference (count 5) and invitation to sexual touching offences (count 6), all of which are primary designated offences.

(f) An order pursuant to s. 109 of the Criminal Code that M.B. be prohibited from carrying or applying for weapons for 10 years.

(g) An order under s. 490.012 of the Criminal Code that M.B. comply for life with the Sex Offender Information Registration Act (SOIRA), S.C. 2004, c.10.

(h) An order pursuant to s. 743.21(1) of the Criminal Code that M.B. be prohibited from communicating with his stepdaughter M, his biological daughters V and E, and their mother, S.E., for the custodial period of his sentence. The only exception to the order being that communication is permitted pursuant to a family court order.

(i) An order, under s. 161 of the Criminal Code, that for 10 years:

i. M.B. is prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years (s. 161(1)(b));

ii. M.B. is prohibited from attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground or playground or community centre.

Pinto J.