Court Information
Information No.: 13-R1943
Ontario Court of Justice
Her Majesty the Queen v. Jeffrey Wills
Reasons for Sentence
Delivered by the Honourable Justice J.D. Nadelle
On August 13, 2015, at Ottawa, Ontario
Publication Ban
NO INFORMATION SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY WHICH COULD IDENTIFY THE VICTIMS IN THESE PROCEEDINGS, PURSUANT TO S. 486.5 OF THE CRIMINAL CODE.
Appearances
M. Cunningham – Counsel for the Crown
K. Reid – Counsel for Jeffrey Wills
Reasons for Sentence
NADELLE J. (Orally):
Conviction and Offences
The accused was found guilty of offences contrary to s. 151 and s. 173(2) of the Criminal Code, the victim being A.M. On many occasions, the accused would expose his penis and ask her to touch it, which she refused to do. A.M. said this happened every movie day when she would be watching a movie and the accused would come into the same room. A.M. also said she could observe the accused pull down his pants and rub his penis, again during movie days. Movie day occurred twice per week. A.M. would have been four years of age at the time.
With respect to D.B., then aged three, the accused was found guilty of two offences contrary to s. 151 and two offences contrary to s. 152 of the Criminal Code. One count of s. 151 and one count of s. 152 relate to a specific date, May 15th, 2013, and the other s. 151 and s. 152 counts relate to about a seven-week period prior to May 15th. The offences involved the accused placing his penis in D.B.'s hand and in her mouth when the accused would come into her room during the quiet time.
While the evidence proves guilt beyond a reasonable doubt on the two s. 271 offences, they will be judicially stayed based on the Kienapple principle.
Victim Impact
I acknowledge the victim impact statements provided by the parents of the two young victims. They eloquently detail the upheaval in their lives the accused's conduct has caused. While no one knows what the future holds for the children involved, it does appear that things have improved since the offences, and it is the Court's hope that the children and families continue on this healing path. The manner in which both sets of parents have handled the matter from the time their respective children disclosed the offences is to be commended and I expect will play a large part in how they develop in the future.
Background of the Accused
The offences all occurred at the daycare centre which the accused operated in the neighbourhood in which all people lived. By all accounts, it was a model operation and he was well liked, respected and trusted by his clientele. In fact, the parents involved in this case did investigate his daycare before the children were placed there.
The accused is now 41, married with four children. He has no criminal record, he has a Bachelor of Commerce degree and has a good work record. His family and friends remain supportive. He has no substance abuse issues.
This type of background is not unusual in cases such as this or individuals who are in positions of trust in other type of offences. It is their good background that allows them to be in positions of trust.
A report prepared by Dr. Gray of the Integrated Forensic Program of the Royal Ottawa Health Care Group concluded that the accused's risk of sexual or violent re-offence is low. Dr. Gray also concluded there is insufficient evidence to make a finding of pedophilic disorder.
Mitigating and Aggravating Factors
While the aforementioned facts comprise of mitigating factors, the lack of a finding of pedophilia or other psychosexual disorder is not necessarily a mitigating factor. As Moldaver, Justice in Appeal as he then was, for the Ontario Court of Appeal stated at para. 40 of R. v. D.D., [2002] O.J. No. 1061:
If the appellant is not a paedophile and he does not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably, his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour.
The aggravating factors are that there are two victims involved, the very young ages of the victims, the nature of the occurrences, especially those involving D.B., and the position of trust abused by the accused in these offences. In this particular case, it is a very high position of trust.
Sentencing Principles
In determining the appropriate sentence, I am, of course, guided by the now statutorily entrenched purpose and principles of sentencing found in s. 718 to 718.2 of the Criminal Code. Of particular application to the case at bar is s. 718.01 which states:
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.
And s. 718.2(a)(ii.1) and (iii) which state:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, [and]
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
The Newfoundland Court of Appeal summarized it up nicely in the case of R. v. Branton, 2013 NLCA 61, when it stated at para. 19:
By enacting section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call for special attention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under 18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their persons because of their physical, mental and emotional immaturity.
Of course, common sense dictates that the degree of denunciation and deterrence will vary depending on the facts of each case. The statutorily enumerated sentencing principles have, of course, simply codified the common law.
While both common law and statutory codification of the common law emphasize deterrence and denunciation as the primary considerations, rehabilitation also remains a factor, albeit of considerable less significance.
Sentencing Decision
I have considered the circumstances of the offence, the aggravating and mitigating factors in the case and statutory law and counsel's submissions, and bearing in mind that denunciation and deterrence are the primary objectives to be considered – would you stand, please – I sentence you to the following:
Count 4, that's in relation to D.B., s. 151, the sexual interference charge, it will be 42 months in jail.
Count 5, again in relation to D.B., s. 152, the invitation to touch, 12 months concurrent.
Count 7, in relation to D.B., s. 151, sexual interference, 42 months concurrent.
Count 8, D.B. again, s. 152, sexual invitation, 12 months concurrent.
Count 1, in relation to A.M., s. 152, sexual invitation, 18 months consecutive.
Count 2, A.M., s. 173, the indecent exposure, 18 months concurrent.
That is a total of 60 months in jail. In addition to the 60 months in jail, there will be the following ancillary orders:
Ancillary Orders
1. DNA Bank
You will be required to provide a blood sample for the DNA bank.
2. Communication Prohibition
There will be an Order pursuant to s. 743.21(1) that will prohibit you, while serving your sentence, from communicating, directly or indirectly, with D.B., S.B.1, S.B.2, A.M., T.M. and C.M. or anyone you know to be a member of their families.
3. Sex Offender Registration
Pursuant to s. 490.012, I order that you comply with the Sex Offender Information Registration Act. This will be in effect for a 20-year period.
4. Section 161 Prohibition Order
There will be an Order pursuant to s. 161 prohibiting you from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, unless you are accompanied by and under the supervision of a responsible adult;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and
(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless that person's parent or guardian is present, and in relation to your own children, subject to any conditions or restrictions set out by the Children's Aid Society.
The s. 161 Order will be in effect for a 15-year period.
Victim Surcharges
With respect to the victim surcharges, you have six years to pay those.
Certificate of Transcript
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, Authorized Court Transcriptionist, ACTID 2366775200, certify that this document is a true and accurate transcription of the recording of R. v. Jeffrey Wills in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR11_20150813_084027__6_NADELLJ, which has been certified in Form 1.
August 17, 2015
Lynn Carrière
Transcript Ordered: August 17, 2015
Transcript Completed: August 17, 2015
Approved by Nadelle J.: August 18, 2015
Ordering Party Notified: August 18, 2015