COURT FILE NO.: CR-20/484 DATE: 2023 11 03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Crown – and – CLYDE WILLIAMS Defendant

Counsel: Gursharn Gill for the Crown Bruce Daley for the Defence

HEARD: September 22, 2023

REASONS FOR SENTENCE

JUSTICE C. PETERSEN

INTRODUCTION

Overview

[1] After a lengthy trial, I convicted Mr. Williams of the following offences: assault (contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46), two counts of sexual assault (contrary to s. 271 of the Criminal Code) and sexual exploitation (contrary to s. 153(1)(a) of the Criminal Code). A Pre-Sentence Report was prepared for the Court and sentencing submissions were heard on September 22, 2023. It is now my task to determine a fit, just and appropriate sentence for these offences.

Circumstances of the Offences

[2] The sexual offences are historical; they were committed between 2004 and 2008. The physical assault occurred in 2018. I will refer to the victims of the offences as M.M. and D.D. to preserve their anonymity. They are a mother (M.M.) and daughter (D.D.). They were both active members of the congregation at the church where Mr. Williams was (and still is) the Senior Pastor.

[3] The facts surrounding the offences are set out in detail in my Reasons for Judgment: R. v. Williams, 2023 ONSC 2757. I will not repeat all the details here, but I rely on my prior findings of fact. The following is a brief summary:

(a) Sexual assault of M.M.: On more than a dozen occasions between 2004 and 2007, while M.M. was employed as Mr. Williams’s Administrative Assistant, he touched her sexually knowing that she did not consent. The incidents included grazing her nipples on top of her clothing, putting his tongue in her ear, kissing her neck, attempting to kiss her lips, lifting her onto his lap while he was seated, lifting her on top of his body when he was resting horizontal, lifting her blouse to look at her breasts, attempting to put his hand down the front of her blouse, unclasping her bra and pinching her nipples under her bra, sliding his hands inside the waistband of her pants, and twice lying on top of her thrusting his hips to simulate sex. Almost all the incidents occurred inside the church where both Mr. Williams and M.M. worked.

(b) Sexual exploitation of D.D.: Between July 2006 and May 2008, while D.D. was 16 and 17 years old, on several occasions in his vehicle and several other occasions inside the church, Mr. Williams kissed and touched D.D. sexually. This included fondling her breasts and nipples (both over and under her clothing and bra), running his hands over and between her legs, and touching her genital and vaginal area with his fingers (both over her clothing and under her clothing but over her underwear). He also directed her to touch his chest, nipples, and penis, both over and under his clothing and underwear. On one occasion, he bent D.D. over a couch, pulled down her clothes and underwear, pulled down his own pants and underwear, and touched his penis to her anus.

(c) Sexual assault of D.D.: On her 18th birthday, Mr. Williams drove D.D. to a secluded parking lot and penetrated her vagina with his fingers, without her consent, despite her telling him to “stop”.

(d) Assault on D.D.: In December 2018, under the pretext of attempting to deliver D.D. from a demonic spirit, Mr. Williams prevented her from leaving the church parking lot by assaulting her as she entered her vehicle. He grabbed both her hands, criss-crossed one wrist on top of the other, and pushed them down toward her hips. He used his body weight to immobilize her while he prayed over her, despite her protestations. He used significant force to restrain her. Her back was pressed against the car seat and the centre console. Her legs were pinned against the side of the car.

Circumstances of the Offender

[4] Mr. Williams is 71 years old. He reports being in good mental and physical health.

[5] He was born and raised in St. Vincent and the Grenadines. He describes his formative years in positive terms. He says he had a happy childhood and a positive upbringing by church-going parents, with whom he had a close bond. Both of his parents are now deceased. He has seven siblings, including one sister with whom he is particularly close.

[6] He immigrated to Canada in 1972. He met his wife here and they married in 1977. They have two adult children together. He reports having a loving marriage and strong relationships with his children and grandchildren. Collateral sources corroborate this information. His family members have been supportive of him throughout this proceeding.

[7] Mr. Williams was ordained as a minister in 1992, after pursuing a college education in the United States. He obtained his certificate as a pastor and has been employed as the Senior pastor of his church since 1995. Over the years, he has taken university courses to upgrade his education while working. He is devoted to his church. He has some hobbies and interests (i.e., gospel music, piano, reading), but his life is primarily occupied by dedication to his work as a pastor and service to members of his congregation.

[8] Mr. Williams has no record of prior criminal convictions. His family members were in complete shock and disbelief when they became aware of the charges against him. His son, daughter-in-law, and wife maintain their steadfast belief in his innocence. K.K., who is D.D.’s sister (and M.M.’s daughter) is also convinced of his innocence. These individuals describe Mr. Williams as humble, patient, gentle, inspirational, respectful, kind, and trustworthy.

[9] Mr. Williams has expressed no remorse for his actions. He also maintains his innocence.

LEGAL FRAMEWORK

Purposes of Sentencing

[10] Pursuant to s. 718 of the Criminal Code, the sentence that I impose on Mr. Williams must serve one or more of the following objectives: (a) denunciation of the offender’s unlawful conduct and of the harm done to victims or to the community; (b) specific and general deterrence; (c) separation of the offender from society, where necessary; (d) rehabilitation of the offender; (e) reparations for harm done to victims or to the community; and (f) promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims or to the community.

[11] These statutory objectives are not equally important in every case. General deterrence and denunciation are to be given greater weight in sentencing for sexual assaults. However, individual deterrence and rehabilitation must not be discounted or ignored, especially when sentencing a first-time offender: R. v. P.G., 2020 ONSC 4438, at para. 87; R. v. H.A.E., 2018 ONSC 5690, at para. 58; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 34.

[12] General deterrence and denunciation are even more paramount objectives in sentencing an offender for a crime of sexual violence against a minor. Section s. 718.01 of the Criminal Code requires me to give primary consideration to these objectives when I sentence Mr. Williams for the offence of sexual exploitation of D.D., who was under 18 years of age at the time. The Supreme Court of Canada has clearly articulated that, in cases involving the abuse of children, it is not open to sentencing judges to elevate other sentencing goals to an equal or higher priority than those of denunciation and deterrence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 101, 102, 116, 145, and 151. Other sentencing objectives may be given significant weight, but not priority or equivalency: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 27 and 37.

Principles of Sentencing

[13] My task is to impose a sentence that is guided by the provisions of the Criminal Code and the principles set out in the jurisprudence. Sentencing requires me to consider and balance a multiplicity of factors, but proportionality is the organizing principle: R. v. Parranto, 2021 SCC 46, 75 C.R. (7th) 217, at paras. 9-10. Ultimately, I must fix a sentence that is proportionate to the gravity of the offences and the degree of responsibility of the offender: Criminal Code, s.718.1. In doing so, I must take into account any aggravating or mitigating circumstances relating to the offences or the offender: Criminal Code, s.718.2(a).

[14] In addition, I must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: Friesen, at para. 33; Parranto, at para. 11. Section 718.2(b) of the Criminal Code requires that I impose a sentence on Mr. Williams that is comparable to those imposed on similar offenders for similar offences committed in similar circumstances.

[15] Furthermore, I must be mindful of the principle of restraint articulated in ss. 718.2(d) and (e) of the Criminal Code. Restraint is an especially important consideration when sentencing a first-time offender: Batisse, at para. 32. It requires me to consider all available reasonable sanctions apart from incarceration. However, the Supreme Court of Canada has noted that in cases, such as this one, in which general deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 6. Nevertheless, the restraint principle dictates that Mr. Williams’s term of imprisonment be as short as possible and be tailored to his individual circumstances: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at para. 23.

Consecutive vs. Concurrent Sentences

[16] Because Mr. Williams is being sentenced for multiple offences at one time, I must determine whether he should serve his sentences consecutively (one after the other) or concurrently (at the same time). This decision is within my discretion, but there are well-established principles that must govern the exercise of my discretion.

[17] Sentences should generally be served consecutively where the offences constitute separate transactions or where offences are perpetrated against different victims at different times. In Friesen, at para. 155, the Supreme Court of Canada stated that “the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences.”

[18] In R. v. Keough, 2012 ABCA 14, the Alberta Court of Appeal provided the following helpful guidance (at para. 61):

Where different offences constitute “one continuous criminal act” the court should impose concurrent sentences. Similarly, if there is “sufficient nexus between the offences”, concurrent sentences are warranted. Conversely, where there is a break in criminal activity, consecutive sentences will be appropriate. Also, where different offences, although arising out of the same transaction or incident, violate separate legally protected interests, the normal rule of concurrent sentences does not apply. [Citations omitted.]

Principle of Totality

[19] If I determine that consecutive sentences of imprisonment are appropriate, then I must be mindful of the totality principle. It requires me to ensure that the combined sentence is not unduly long or harsh: Criminal Code, s. 718.2(c); R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 42; Friesen, at para. 157.

[20] Totality can be addressed in two ways. I can either determine the fit sentence for each of Mr. Williams’s offences before considering the proportionality of the cumulative total, or I can determine the overall fit sentence for Mr. Williams’s offences and then apportion the global term of imprisonment to each offence. Either method, when done properly, is an appropriate way to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offences and the degree of moral culpability of the offender: R. v. Milani, 2021 ONCA 567, at para. 36.

POSITIONS OF THE PARTIES

Crown’s Position

[21] The Crown submits that the Court should impose a global sentence of 8 years imprisonment. Crown counsel left it to my discretion to apportion the term of imprisonment to each of the offences, but suggested the following breakdown:

5.5 years for sexual exploitation of D.D.
5.5 years (concurrent) for sexual assault of D.D.
2.5 years for sexual assault of M.M., to be served consecutively, and
6 months (concurrent) for the assault of D.D.

[22] The Crown submits that two of the sentences should be served concurrently based on the principle of totality, to avoid the imposition of a disproportionately harsh aggregate sentence.

[23] The Crown also seeks ancillary orders, including: (i) an Order pursuant to s. 487.051(1) of the Criminal Code, authorizing the taking of samples of Mr. Williams’s bodily substances for forensic DNA analysis (ii) an Order pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, requiring Mr. Williams to comply with the Sex Offender Information Registration Act for life, (iii) an Order pursuant to ss. 109(1)(a) and 109(2)(a) of the Criminal Code, prohibiting Mr. Williams from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life; and, (iv) an Order pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Williams from communicating directly or indirectly with M.M. and D.D. during the custodial period of his sentence.

Defence Position

[24] The Defence does not take issue with any of the requested ancillary Orders, given the findings that I made in my Reasons for Judgment. However, the Defence argues that a global sentence of 8 years is disproportionately harsh and far exceeds what is required to satisfy the primary objectives of denunciation and deterrence.

[25] The Defence submits that the total sentence should be 4 years imprisonment. Defence counsel proposes the following breakdown of sentences, all to be served consecutively:

2 years for sexual exploitation of D.D.,
1 year for the sexual assault of D.D.,
9 months of the sexual offences committed against M.M., and
3 months for the assault on D.D.

Applicable Sentencing Ranges

[26] Both counsel focused their submissions on the appropriate sentencing range for sexual exploitation, which is the most serious of Mr. Williams’s offences. Counsel agreed that the Supreme Court of Canada decision in Friesen is the leading case on point.

[27] In Friesen, the Supreme Court held that an upward departure from sentencing precedents in cases involving sexual abuse of children was required to recognize the inherent wrongfulness and profound harmfulness of such crimes. While noting that judges must retain the flexibility to do justice in individual cases, the Supreme Court stated (at para. 114) “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.”

[28] The Crown also provided me with the following additional cases to consider: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Cooper, 2019 ONCA 953; R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721; R. v. M.K., 2016 ONCA 589; R. v. G.D., 2023 ONSC Court File No. CR-21-626-00; and R. v. Roper, 2020 ONSC 7411. In most (but not all) of these cases, the victim was under 18 years of age, there were multiple incidents of sexual abuse, the accused was in a position of trust or authority with respect to the victim, and the accused engaged in concerted grooming to gain the victim’s trust. To that extent, the cases parallel the facts of this case and provide assistance in applying the principle of parity. The sentences in those cases range from 4 to 8 years imprisonment. I am mindful that several of the cases pre-date the Supreme Court’s decision in Friesen, which called for an increase in the range of sentences for sexual crimes against children.

[29] Despite some parallel circumstances, none of the Crown’s cases is precisely analogous to the facts in the case before me. Each case is unique and has its own distinguishing features. In some of the cases, the nature of the sexual touching was similar to what Mr. Williams did to D.D. In other cases, the touching was even more intrusive and invasive of the victim’s bodily integrity (e.g., fellatio, vaginal or anal intercourse). In a few cases, the victim was a very young child of tender years, the accused had a record of prior offences, or the sexual abuse was committed over a prolonged period of six to eight years. Such aggravating circumstances are absent in the case before me. I will consider these distinguishing features in applying the principle of parity.

[30] With respect to the single incident of sexual assault on D.D. after she reached the age of majority (i.e., on her 18th birthday), the applicable sentencing range was recently articulated by Fairburn A.C.J.O. in R. v. A.J.K., at para. 77: “Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.” The decisions of the Court of Appeal for Ontario in A.J.K. and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 establish a sentencing range of three to five years for such offences. That range applies in all cases of forced penetration involving an adult victim. Digital penetration is no lesser a violation of a person’s bodily integrity than penile penetration: R. v. Stuckless, 2019 ONCA 504, at para. 125.

[31] Sentences for sexual offences against adults that do not involve penetration tend to be lower. Without attributing any intrinsic significance to the occurrence or non-occurrence of penetration during a sexual assault, and without assuming a clear correlation between the type of physical act and the harm to the victim, Courts have recognized the reality that specific sexual acts may increase the risk of harm: Friesen, at paras. 138-147. For instance, penile penetration, particularly when unprotected, can create a risk of disease transmission or pregnancy: R. v. Deck, 2006 ABCA 92, at para. 20. It can also create a risk that the victim may suffer social stigmatization in certain cultures and communities: R. v. Thurairajah, 2008 ONCA 91, at para. 12. Penetration, whether penile, digital, or with an object, also risks causing physical pain and physical injuries to the victim: Deck, at para. 20; Thurairajah, at para. 10; and Friesen, at paras. 139. For these reasons, forced penetration often attracts a higher sentence than the type of sexual assaults that Mr. Williams committed on M.M., which did not involve any penetrative acts.

[32] Counsel did not provide me with any cases dealing with the sentencing of sexual offenders who victimize adults without engaging in forced penetration. For guidance, I have reviewed the following cases, several of which occurred in workplaces and involved an abuse of authority or breach of trust by the offender: P.G.; H.A.E.; R. v. G.J.J.; R. v. Racco, 2013 ONSC 1517; R. v. R.L., 2013 ONCJ 617; R. v. Giovannelli, 2017 ONCJ 408; R. v. Mustafa, 2021 ONSC 3088; R. v. Szymanski, 2021 ONSC 5482; and R. v. Phillippo, 2022 ONCJ 499. This jurisprudence demonstrates that sentences imposed for a single sexual assault of this nature range from conditional sentences with probation to short reformatory terms.

[33] With respect to the physical assault on D.D. in 2018, sentences for a common assault typically range from a conditional discharge or suspended sentence to a short custodial period of up to 6 months imprisonment.

[34] The above sentencing ranges are guidelines, not straightjackets: Lacasse, at paras. 57 and 60. Some situations will call for a sentence above or below a particular range: A.J.K., at para. 77. The determination of a just and appropriate sentence is a highly individualized exercise.

FACTORS FOR CONSIDERATION

Gravity of Sexual Offences

[35] Before I examine the aggravating and mitigating circumstances that will determine my assessment of the gravity of Mr. Williams’s offences in this case, I want to highlight some recent pronouncements from appellate courts about the gravity of all sexual offences, and of sexual offences against minors in particular.

[36] In the decision of A.J.K., the Court of Appeal for Ontario stated the following:

[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen. Moldaver J. stated: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better.” [Citations omitted.]

[37] In Friesen, the Supreme Court of Canada emphasized the need for sentencing to reflect society’s contemporary understanding of the inherent harmfulness of sexual offences committed against children. The Court stated:

[74] [T]aking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence…. Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity.

[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 …. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [Citations omitted.]

Inherent Wrongfulness of Sexual Offences Against Minors

[38] Before I consider the mitigating and aggravating circumstances that impact Mr. William’s degree of personal responsibility in this case, I want to highlight some recent pronouncements made by the Supreme Court of Canada regarding the inherent wrongfulness of all sexual offences committed against minors.

[39] In Friesen, at para. 88, the Supreme Court stated that the intentional application of force of a sexual nature to a child is “highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.” It is also highly morally blameworthy behaviour because children are vulnerable. As the Supreme Court noted in Friesen, at para. 78:

It is inherently exploitative for an adult to apply physical force of a sexual nature to a child. This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults. [Citation omitted.]

[40] I will now turn to the gravity of the specific offences committed by Mr. Williams and to his degree of moral culpability, taking into consideration the aggravating and mitigating circumstances present in this case.

Aggravating Factors

[41] There are several aggravating factors in this case.

[42] With respect to the sexual exploitation of D.D., her young age (under 18 years) at the time of the offences is an aggravating factor: Criminal Code, s.718.2(a)(ii.1). Mr. Williams violated her sexual integrity at a stage of development when she was discovering her sexuality. As Feldman, J.A. stated in R. v. M. (P.) (2002), 155 O.A.C. 242 (C.A.):

[19] Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern.

Mitigating Factors

[62] The greatest mitigating factor in this case is Mr. Williams’s unblemished record. He is a first-time offender, with no criminal convictions prior to the offences for which he is being sentenced today. Moreover, he has not been convicted of any other sexual offences since the sexual assaults he committed on M.M. and D.D. approximately 15 years ago.

[63] Another mitigating factor, albeit of lesser weight, is Mr. Williams’s potential for rehabilitation. The Pre-Sentence Report is positive. It establishes that he has been married for 46 years and has a history of stable employment, including 28 years in his current position as Senior Pastor. He has been a productive member of society. He has no diagnosed sexual disorders and no substance abuse issues. He has the ongoing support of his wife and children. He also benefits from substantial community support. Defence counsel argues that he therefore has excellent prospects for rehabilitation after serving his sentence, which is a factor that militates against a lengthy penitentiary sentence.

[64] I agree that Mr. Williams’s personal circumstances (i.e., family supports, employment history, community engagement) constitute a mitigating factor, but my optimism about his rehabilitative potential is tempered by the fact that he has expressed no remorse for his actions. He has no insight into his criminal behaviour and has not accepted responsibility for his crimes. He maintains his innocence, which is not an aggravating factor, but his ongoing denial of culpability reduces his chances of achieving meaningful rehabilitation. I therefore give less weight to this mitigating factor than I otherwise would: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 113; R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 57. This applies with respect to all the offences for which he is being sentenced.

[65] I heard arguments at the sentencing hearing about whether Mr. Williams’s age, currently 71 years, constitutes a mitigating factor. Defence counsel submits that it does. He argues that deprivation of liberty is more difficult to bear for a mature individual in his seventies than it would be for a younger man in his thirties. Defence counsel submits that both denunciation and deterrence are therefore adequately addressed with the imposition of any penitentiary sentence on a 71-year-old offender, whereas a longer term of imprisonment might be necessary to satisfy these objectives in a case involving a younger offender.

[66] The Crown submits that Mr. Williams’s age is not a mitigating factor. Crown counsel argues that Mr. Williams has been living his life for almost 20 years without consequences for his criminal behaviour, while his victims have suffered the harms he caused. He was in his early fifties when he committed the offences for which he is being sentenced. The Crown argues that he should not receive a more lenient sentence because he avoided detection for years. Moreover, Crown counsel notes that D.D. needed time to come to terms with what happened to her before she could report it to law enforcement, and Mr. Williams should not benefit from the time it took her to cope with the trauma he caused. Finally, the Crown reminds me of pronouncements from the Court of Appeal for Ontario, to the effect that the focus of sentencing an adult who has sexually exploited a minor should be on the harm caused to the child and not the effects of the sentence on the offender: T.J., at para.37; Woodward, at para. 76.

[67] Neither counsel provided me with case law on the relevance of Mr. Williams’s age to the exercise of my discretion in determining a fit sentence. I have found some guidance in the following appellate court decisions: R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 74; R. v. Premji, 2021 ONCA 721, at paras. 1-5; R. v Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 23, 49-53; R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 30; R. v. Duncan, at para. 3; R. v. Monette (1999), 127 O.A.C. 276 (C.A.), at para. 15; R. v. McCrystal (1992). 55 O.A.C. 167 (C.A.), at paras. 8-11; R. v. J.N.O., 103 Nfld. & P.E.I.R. 256 (NL CA), at para. 13; and R. v. A.R. (1994), 88 C.C.C. (3d) 184 (Man.C.A.), at para. 2, 46-47.

[68] I also reviewed the following helpful decisions of lower courts: R. v. Sarraf, 2017 ONSC 7668, at paras. 24-31; R. v. M.E., 2012 ONSC 1078, at paras. 56 and 58; R. v. V. (1994), 156 N.B.R. (2d) 161, at para. 5; R. v. Boyes, 2013 ABPC 105, at paras. 20-21; R. v. Breitkreutz, 2022 ABQB 559, [2022] A.W.L.D. 4979, at paras. 27-37; and R. v. H.F.S., 136 Nfld. & P.E.I.R. 166, at para. 20.

[69] The weight of the jurisprudence in Canada supports the view that the advanced age of an offender may be considered as a mitigating factor in some measure, but generally not unless there is evidence of deteriorating health or shortened life expectancy: see J.N.O., at para. 13; Breitkreutz, at paras. 27-37. In the recent case of Premji, the Court of Appeal for Ontario found that a sentencing judge’s failure to consider the offender’s age, 77 years at the time of sentencing, as a mitigating factor amounted to an error in principle. In support of this finding, the Court cited the following passage from the Supreme Court of Canada decision in M. (C.A.), at para. 74:

[I]n the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. Accordingly, in exercising his or her specialized discretion under the [Criminal] Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

[70] At the same time, the Court of Appeal in Premji (at para. 6) noted that neither the offender’s advanced age nor his deteriorating health should be permitted to overwhelm the principles of sentencing so as to result in a punishment that fails entirely to reflect the seriousness of the offence and the moral culpability of the offender.

[71] In this case, Mr. Williams is a senior citizen, but at the age of 71 years, he can hardly be described as “elderly”. He is in good health. There is no evidence before me of his remaining life expectancy; I have no reason to believe that the sentences being contemplated would far surpass a reasonable estimate of his remaining life span. There is no basis, in my view, to treat his age as a mitigating factor in the specific circumstances of this case: Milani, at paras. 50-53 and 56.

[72] I must nevertheless consider his advanced age when I apply the principal of totality in determining his overall sentence. I am mindful that the combined sentence imposed for his offences must not, given his advanced age, come close to crushing any hope of his eventual release, in which case the sentence would be unduly long and harsh: Johnson, at para. 30. The authorities listed above recognize that where the ultimate effect of combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of sentencing principles (including specific and general deterrence, as well as denunciation) meets the point of diminishing returns. Although parole considerations must never be used to increase or decrease an offender’s sentence, an offender’s opportunity for parole may be considered when assessing whether a sentence will crush all hope: Milani, at para. 54.

ANALYSIS

Determination of Individual Sentences for Each Offence

[73] Taking all the above principles and factors into account, I have decided to determine a fit sentence for each of Mr. Williams’s offences, then consider whether the principle of totality necessitates an adjustment to the aggregate sentence.

[74] I will begin with the offence of sexual exploitation of D.D. I am mindful that the Friesen decision of the Supreme Court of Canada “does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them.”: T.J., at para. 39. Friesen establishes, as a starting point, a sentencing range from mid-single digit to double digit penitentiary terms.

[75] Given the numerous aggravating factors in this case, and the limited mitigating factors, I conclude that an appropriate sentence lies in the upper single digit range. While Mr. Williams’s sexual acts were not at the most intrusive end of the spectrum of sexual violence, they escalated over time, culminating in him placing his penis up against D.D.’s naked anus. If I were sentencing Mr. Williams on this offence alone, I would impose a term of imprisonment of 7.5 years to reflect both the gravity of the crimes he committed and his high degree of moral blameworthiness, as discussed earlier in these Reasons.

[76] A sentence of 7.5 years serves the primary objectives of deterrence and denunciation, while also respecting the principles of parity (subject to the recalibration dictated by Friesen) and restraint. It also serves secondary objectives of sentencing, including the need to separate Mr. Williams from society given his predatory tendencies and lack of insight into his behaviour. Further, it serves to promote a sense of responsibility by Mr. Williams for his offending conduct, and acknowledgement of the profound and lasting harm he caused to D.D.

[77] I have not overlooked rehabilitation as a relevant goal in sentencing Mr. Williams. It is, however, secondary to the objectives of denunciation and deterrence in the circumstances of this case. A sentence below 7.5 years would prioritize the goal of rehabilitation in circumstances where the Supreme Court of Canada and the Court of Appeal have clearly instructed sentencing judges to do otherwise.

[78] With respect to the sexual assault of D.D. on her 18th birthday, I conclude that a fit and proportionate sentence is 3 years imprisonment, which falls at the low end of the applicable sentencing range (3 to 5 years), largely because this offence covers a single incident. A sentence below the range would not be appropriate, given the aggravating factors in this case.

[79] This 3-year sentence should be served concurrently to the 7.5-year sentence for sexual exploitation because the sexual assault in question was essentially a continuation of the ongoing sexual abuse that forms the basis of the charge of sexual exploitation. The sexual assault was a discrete incident, and it involved an escalation in the degree of intrusion into D.D.’s bodily integrity (i.e., digital penetration of her vagina), but it nevertheless has a sufficient nexus to the earlier sexual exploitation to justify concurrent sentences.

[80] For the sexual assault on M.M., I conclude that a fit sentence is 1.5 years imprisonment. Although the unwanted sexual touching was not at the most extreme end of the spectrum in terms of invasion of M.M.’s bodily integrity, the repetition of the sexual touching over a prolonged period of time distinguishes this case from many others where the offence consisted of a single incident of unwanted sexual touching in a workplace. The Supreme Court of Canada has clearly stated that a conviction for a single charge that includes multiple instances of sexual violence must be punished more severely than a single incident. In this case, the Crown proved more than a dozen incidents over a period of three years, which in the circumstances could attract a sentence approaching a penitentiary term (i.e, 2 years), but the mitigating factors in this case and the principle of restraint lead me to conclude that 18 months is appropriate.

[81] A shorter reformatory sentence for this offence would not be fit. In committing these sexual assaults on M.M., Mr. Williams engaged in a double breach of trust and abuse of authority, which elevates the gravity of his offences, as well as his degree of moral blameworthiness. A sentence shorter than 18 months would not be proportionate.

[82] Moreover, a sentence under 18 months would not adequately convey the message that this type of conduct is reprehensible and will not be tolerated. While Mr. Williams might personally be deterred by a shorter sentence, the goals of denunciation and general deterrence require that this message be clearly communicated to other employers who would be tempted to engage in unwanted sexual touching of employees, and to other clerics who would be tempted to abuse their position of trust to sexually abuse congregants.

[83] I am not overlooking the important goal of rehabilitation or Mr. Williams’s clean record and personal circumstances that constitute mitigating factors. But Mr. Williams has demonstrated no insight into his offending behaviour. His denial of responsibility for the offence and lack of remorse are not aggravating factors (R. v. Shah, 2017 ONCA 872, at para. 8), but his prospects for rehabilitation are diminished by the fact that he has shown no empathy to his victim and has not engaged in, or expressed any intention to engage in, any rehabilitative programming to address future risk of like offending.

[84] The 18-month sentence for sexual assault of M.M. should be served consecutively to the 7.5 year and 3 year sentences for the sexual offences against D.D. because it is in relation to separate acts committed against a different victim.

[85] Finally, for the assault on D.D. in the church parking lot, I conclude that 3 months imprisonment (as suggested by the Defence) is a fit sentence proportionate to both the gravity of the offence and Mr. Williams’s degree of personal responsibility and moral blameworthiness. This sentence should also be served consecutively because it involves a distinct criminal act committed ten years after the previous offences.

Application of the Principle of Totality

[86] The sentences that I have just discussed, if added up, would amount to 9 years and 3 months imprisonment. Both the Crown and Defence submit that a shorter aggregate sentence should be imposed based on the principle of totality.

[87] A sentence of only 4 years imprisonment, as proposed by the Defence, would be demonstrably unfit in the circumstances of this case. Such a sentence would be inadequate for the offence of sexual exploitation alone; it would be grossly insufficient punishment for all Mr. Williams’s offences combined. A sentence of only 4 years would fall at the low end of the sentencing range established in Friesen for sexual offences committed against a minor. That would not be a just sentence given the many aggravating factors in this case. Mr. Williams’s clean record and prospects for rehabilitation are not sufficiently mitigating to warrant such leniency.

[88] The sentence imposed on Mr. Williams must do more than pay lip service to the considerations articulated by the Supreme Court of Canada in Friesen. It must reflect the harm caused by his actions and must communicate in the clearest terms society’s abhorrence for sexual offences against women and children, particularly by persons in positions of trust and authority.

[89] Given the limited mitigating factors in this case, and the many aggravating factors, a global sentence of 8 years imprisonment (proposed by the Crown) just barely satisfies one of the primary goals, namely that of denunciation. I could have been persuaded to impose a higher total sentence, but I am not prepared to exceed what the Crown is requesting. The Crown’s position is consistent with the principles of totality and restraint, so I am persuaded to adopt it.

[90] I agree with Defence counsel’s submission that there is no empirical basis upon which I can conclude that an 8-year sentence imposed on a 71-year-old man will have a greater deterrent effect than a 4-year sentence. However, one of the primary sentencing objectives, namely that of denunciation, would not be met by a 4-year sentence.

[91] I recognize that, given his age, the time that Mr. Williams will spend in prison is likely to be a significant portion of his remaining lifespan, but I am not persuaded that an 8-year sentence runs afoul of the direction provided by the Supreme Court of Canada in M.(C.A.). There is no basis to believe that an 8-year sentence exceeds his life expectancy, such that the goals of sentencing will be exhausted. Nor is there reason to conclude that an 8-year sentence will be so crushing as to extinguish all hope, given that Mr. Williams will become eligible for full parole after serving one third of his sentence. Although parole is a privilege not a right, and is not automatically granted, eligibility for parole provides Mr. Williams with hope for early release in less than 3 years.

[92] In summary, the global 8-year sentence sought by the Crown is neither oppressive nor unduly long. It is proportionate to the gravity of Mr. Williams’s offences and to the high degree of his personal responsibility. It reflects the harm caused by Mr. Williams’s conduct, while simultaneously being tailored to his individual circumstances. It serves the paramount objectives of denunciation and deterrence, without ignoring secondary sentencing goals, including rehabilitation. It respects the principles of totality and restraint.

[93] I provide a breakdown of this aggregate sentence below.

DISPOSITION

[94] For sexually exploiting D.D., I sentence Mr. Williams to a term of imprisonment of 6 years and 9 months.

[95] For sexually assaulting D.D., I sentence Mr. Williams to a term of imprisonment of 3 years, to be served concurrently.

[96] For sexually assaulting M.M., I sentence Mr. Williams to a term of imprisonment of 1 year, to be served consecutively.

[97] For assaulting D.D., I sentence Mr. Williams to a term of imprisonment of 3 months, to be served consecutively.

[98] In addition to this global sentence of 8 years incarceration, I make the following ancillary orders:

(a) an Order pursuant to s. 487.051(1) of the Criminal Code, authorizing the taking of samples of Mr. Williams’s bodily substances for forensic DNA analysis;

(b) an Order pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, requiring Mr. Williams to comply with the Sex Offender Information Registration Act for life;

(c) an Order pursuant to ss. 109(1)(a) and 109(2)(a) of the Criminal Code, prohibiting Mr. Williams from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life; and

(d) an Order pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Williams from communicating directly or indirectly with M.M. and D.D. during the custodial period of his sentence.

Petersen J.

Released: November 3, 2023

R. v. Williams, 2023 ONSC 6127

Case Summary