WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 ..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

DATE: 20220302 DOCKET: C66489

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kirk Williams Appellant

Counsel: Richard Litkowski and Myles Anevich, for the appellant Jessica Smith Joy, for the respondent

Heard: March 1, 2022 by video conference

On appeal from the sentence imposed on April 6, 2018 by Justice S. Casey Hill of the Superior Court of Justice, with reasons reported at 2018 ONSC 2030.

Reasons for Decision

[1] Mr. Williams seeks leave to appeal his sentence in which he was designated as a dangerous offender and an indeterminate sentence was imposed. He submits that the sentencing judge erred in concluding that one of the statutory pathways to a dangerous offender designation was available in his case, and that the sentencing judge also erred in his consideration of the future harm that the appellant posed. The appellant asks that the dangerous offender designation be set aside and that he be designated as a long-term offender instead. Alternatively, if the dangerous offender designation remains, the appellant asks that a determinate sentence, followed by a long-term supervision order, be imposed. At the conclusion of the hearing, we granted leave to appeal sentence, but dismissed the appeal for reasons to follow. We now provide our reasons.

[2] On April 11, 2016, the appellant pleaded guilty to sexual assault causing bodily harm and choking with intent to commit sexual assault against a 24-year‑old female. On April 6, 2018, he was designated a dangerous offender and sentenced to an indeterminate sentence.

[3] The evidence on the dangerous offender hearing was extensive. It included expert reports from Dr. Scott Woodside and Dr. Julian Gojer, both forensic psychiatrists, as well as Dr. Milan Pomichalek, a psychologist. Dr. Ainslie Heasman, a psychologist who had previously treated the appellant at the Centre for Addiction and Mental Health (CAMH), also testified as a qualified expert in forensic psychology regarding the appellant’s previous treatment. Additionally, an employee of the Parole Board of Canada, a Parole Officer Supervisor, the appellant’s parole officer in 2012 and 2013, and the appellant’s probation officer from September 2013 until his arrest on these charges all testified.

[4] Both Dr. Woodside and Dr. Gojer agreed that the appellant was a high-risk offender. The disagreement between the two experts was whether a course of medication, supplemented by high-intensity psychiatric treatment, could sufficiently reduce the appellant’s risk of re-offending.

[5] The sentencing judge gave lengthy reasons for his conclusion. He dismissed the treatment plan as insufficient to adequately protect the public. He noted that the appellant’s “psychiatric disorders, life-long and fixed, are either untreatable or at best difficult to treat.”

[6] The appellant raises three grounds of appeal. In considering these grounds, we are cognizant of the applicable standard of review, namely, that “review of a dangerous offender designation is more robust than on a ‘regular’ sentence appeal”: R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26. Thus, “[c]ourts can review the imposition of an indeterminate sentence for legal error and reasonableness, but should defer to the factual and credibility findings of the trier of fact”: Sawyer, at para. 29.

[7] First, the appellant contends that the sentencing judge erred in concluding that the Crown had satisfied three of the four pathways for a person to be designated as a dangerous offender beyond a reasonable doubt. We do not agree. The sentencing judge concluded that each of the three pathways under s. 753(1)(a)(i), s. 753(1)(a)(ii), and s. 753(1)(b) had been satisfied. He gave detailed reasons for his conclusions. We do not see any error in those reasons. The appellant has a criminal record involving 25 prior convictions, not including his youth offences. A number of these offences involved acts of violence, and five of them involved sexual offences. The sexual offences all involved especially vulnerable victims. The appellant’s argument that there is a material difference in the offences, for this purpose, between the prior convictions that involved children, and the predicate offences that involved a young adult, and that the sentencing judge applied too general a level of similarity in reaching his conclusion, is unpersuasive. Nor do we accept that a 12-year gap between the earlier offences and the predicate offences means that the behaviour is not persistent. On that point, one must be cognizant of the fact that the appellant spent much of those 12 years in custody.

[8] Second, the appellant contends that the sentencing judge failed to consider, at the designation stage, the effect that the antiandrogen therapy and SSRI medication would have when considering s. 753(1)(b). Again, we do not agree. A fair reading of the sentencing judge’s reasons demonstrates that he was fully aware of the evidence regarding the impacts that these medical treatments might have and that he considered them throughout his analysis. The fact is that the sentencing judge was not satisfied that these medications would have the necessary effect in terms of curbing the appellant’s potential conduct.

[9] The third ground of appeal somewhat mirrors the second. The appellant contends that the sentencing judge misapprehended the future risk of recidivism, and therefore treatment prospects, at the penalty phase. This argument again relies on the aforementioned medical treatment. With respect to that treatment, the sentencing judge noted that the two experts disagreed on its effectiveness. The sentencing judge also questioned the willingness of the appellant to take the medication on a constant basis. Given those facts, the sentencing judge concluded that there was not a reasonable possibility of control of the appellant in the community. The appellant has failed to show that that conclusion is an unreasonable one.

[10] Ultimately, the sentencing judge concluded, at para. 293 of his reasons:

In any event, on the evidence accepted by the court, based upon the history of the offender's sexual crimes, the enduring character of his psychiatric disorders, his high risk for sexual reoffence, and the evidence including the inability of the psychiatric opinions to confidently conclude that the offender's risk will be reduced to a tolerably safe level within the definite period of a determinate sentence and [long-term supervision order], the imposition of an indeterminate preventative sentence is necessary as no lesser measure will adequately protect the public against the offender committing a further serious sexual offence.

[11] We agree with that conclusion.

[12] For these reasons, leave to appeal sentence was granted but the appeal was dismissed.

“Paul Rouleau J.A.”

“I.V.B. Nordheimer J.A.”

“J. George J.A.”