WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
CITATION: R. v. Williams, 2019 ONCJ 105
DATE: 2019-02-27
COURT FILE NO. 155405
Lac Seul First Nation
ONTARIO COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
CODY ALLAN WILLIAMS
Before Justice Sarah Cleghorn
Sentencing Submissions Heard on December 19, 2018
Reasons for Sentence Released February 27, 2019.
T. Schuck …………………………………………………………….………..Counsel for the Crown
M. Hargedon………………………..……………….……………………Counsel for Cody Williams
CLEGHORN J.:
Introduction
[1] Mr. Williams was found guilty of two offences, sexual assault and sexual interference, contrary, respectively, to sections 271 and 151 of the Criminal Code.
[2] The offences were committed on May 2, 2015. The victim, J.T., was fourteen years of age at the time; Mr. Williams was twenty-four years old.
[3] The Crown elected to prosecute both counts by indictment. Mr. Williams elected to be tried before this court. Reasons for Judgment were released orally on June 11, 2018. I will provide a very brief overview of the facts in this case. A far more detailed review can be found in the Reasons for Judgment.
[4] The events in this case took place on the Lac Seul First Nation. Both Mr. Williams and the victim, J.T., are Indigenous. Lac Seul First Nation is their home community.
[5] On May 2, 2015, J.T. attended a small party at her cousin’s house. J.T. was drinking, as were other young people at the get together. Mr. Williams was also present. Unfortunately, J.T. drank to the point of extreme intoxication. Concerned for how intoxicated J.T. had become, two of her cousins took her to a bedroom to have her “sleep off” the effects of the alcohol. When J.T. woke up the party was essentially finished. The only people who remained were the home owners and Mr. Williams. J.T. decided to walk home and abruptly left the residence.
[6] Based on the evidence at trial, I found that Mr. Williams watched J.T. leave the house and then followed her. At the time, young and drunk, J.T. was extremely vulnerable. J.T. began to walk along a secluded wooden trail. Mr. Williams followed her. In an isolated area along the trail, he came up from behind her and pounced on her. Mr. Williams pushed J.T. to the ground. Once there, he forcefully held her down and pulled down her pants. Mr. Williams then used his fingers to penetrate J.T.’s vagina, before anally penetrating her with his penis.
[7] A sexual assault kit was completed on May 3, 2015. In addition to the DNA collected, the nurse noted fissures (described as little cracks) around the verge of J.T.’s anal area and photographs of bruising on J.T.’s knees and the top of her right foot were filed at trial.
[8] In a Victim Impact Statement, J.T.’s mother reports on the significant impact this crime had on J.T. and her family. In the aftermath of the crime, J.T. was unable to focus on school work and she left school for the remainder of the academic year. The crime caused her to feel embarrassed and ashamed. She fears that people in her small community likely know what took place and she is concerned about being the subject of gossip.
[9] J.T. attended for counselling. In addition, she has engaged in other healing activities, like hunting, fishing, and camping with her family. Her mother reports that J.T. and her family have been making progress towards healing. However, J.T. continues to be fearful of Mr. Williams.
[10] The parties agree that the count of sexual assault, s. 271, should be conditionally stayed given the Kienapple principle. The sexual interference count, s. 151, is the more serious of the two charges and sexual assault is subsumed within it given the victim’s age. Accordingly, count one on the information is to be noted as conditionally stayed.
Positions of the Parties
[11] Having outlined the circumstances of the offence, I will now turn to the positions of the parties. The parties are far from agreed as to the appropriate sentence for Mr. Williams.
[12] On behalf of the Crown, Ms. Schuck asks the court to impose the maximum penalty available as of May 2015, that being ten years imprisonment. In support of this position, Ms. Schuck draws to the court’s attention that this is Mr. Williams’ third conviction for sexual assault. Ms. Schuck submits that this was a calculated attack on a vulnerable victim. She argues that the principles of denunciation and deterrence are, therefore, preeminent sentencing objectives in this case.
[13] Mr. Hargedon, on behalf of Mr. Williams, submits that a four-year custodial sentence is appropriate. Giving due credit for Mr. Williams’ time spent in pre-trial custody, this would result in a reformatory sentence. Mr. Hargedon submits that the custodial sentence should then be followed by a three-year probation order. He argues that this would allow for the imposition of conditions to protect the victim, her family and the community.
[14] Regarding the ancillary orders, it is agreed that a lifetime SOIRA order, a DNA order, and a firearms prohibition order under s. 109 should all issue.
[15] The parties are not agreed on whether a s. 161 order should issue. Mr. Hargedon argues that, assuming the court accedes to the defence position and places Mr. Williams on probation for three years, a s. 161 order is unnecessary. He submits that any concerns the court might have regarding Mr. Williams in the future can be adequately addressed through the terms of probation, combined with the SOIRA order. Further, Mr. Hargedon notes that none of Mr. Williams’ prior offences have involved the internet.
[16] In contrast, the Crown is requesting that the court exercise its discretion and impose a s.161 order given Mr. Williams’ offence history and Parliament’s clear intention that such orders be used to protect society from offenders who pose a future risk towards children. She submits that Mr. Williams’ track record makes such an order essential.
Circumstances of the Offender
[17] Sentencing is an individualized process. I have benefitted from reviewing the Pre-Sentence Report prepared regarding Mr. Williams. The author of the report addresses Mr. Williams circumstances as an Indigenous person, providing much insight into the Gladue factors (as is the custom with such reports in this region).
[18] I am mindful of the decision of the Court of Appeal in R. v. Macintyre-Syrette.[^1] In that case, the Court made clear that a comprehensive Gladue report is mandatory before the Court imposes sentence on an Indigenous offender. Such reports are essential to ensure that the sentence imposed is fit and appropriate to the unique circumstances of Indigenous offenders.
[19] Although not strictly speaking a “Gladue Report”, I am satisfied that the Pre-Sentence Report in this case adequately addresses the relevant considerations when sentencing an Indigenous offender. It details Mr. Williams Indigenous background and family history. The report also speaks to the available programs in both the federal and provincial correctional systems geared towards Indigenous offenders. Finally, it addresses the programs and supports available within Mr. Williams’ First Nation community.
[20] Unfortunately, as often is the case with remote Indigenous communities in Northwestern, Ontario, there are no resources available in the Lac Seul First Nation capable of assisting with the root causes of Mr. Williams’ criminal behaviour. In my view, Mr. Williams requires intensive treatment for substance abuse and as a sex-offender. The only realistic opportunity for him to benefit from such needed intervention is in a custodial setting.
[21] Further, I note that both Crown and defence counsel are agreed that a custodial sentence is warranted in this case, despite Mr. Williams being an Indigenous person. This is a sensible position for counsel to adopt in this matter, bearing in mind the sentencing case law for the offence of sexual interference. I will shortly consider this jurisprudence. Before doing so, it is necessary to address the relevance of Mr. Williams’ status as an Indigenous offender.
[22] Mr. Williams is a band member of Lac Seul First Nation. He was raised by his mother; his father abandoned his mother during her pregnancy. Mr. Williams’ maternal grandmother attended three residential schools. Mr. Williams’ mother believes this impacted her childhood in a negative way as she was exposed to both verbal and physical abuse at the hands of her mother.
[23] It also appears that Mr. Williams’ mother may have abused intoxicants during her pregnancy; although she denies this, collateral sources suggest otherwise.
[24] For the first five years of his childhood, Mr. Williams’s upbringing was fairly traditional. He was raised by his mother and his maternal grandparents. He remembers these years fondly. When his grandfather passed away, his life changed.
[25] His mother, dealing with her grief, placed Mr. Williams in the care of a child protection agency as she was unable to effectively parent him. When Mr. Williams returned to his mother’s care, the family relocated to Quebec for a period of three years before then moving to Sioux Lookout.
[26] During his teenage years, Mr. Williams recalls observing both his mother and grandmother consuming alcohol and engaging in altercations with one another. However, his mother was thankfully an infrequent drinker and he reports generally being well cared for.
[27] Mr. Williams was involved in extra-curricular activities as a teenager and his mother encouraged him to attend church. He did so, but eventually chose to stop going at around age twelve. Mr. Williams’ mother noted changes to her son around the age of fourteen.
[28] This corresponded with the family moving to Thunder Bay. After that, his mother cites Mr. Williams’ association with a negative peer group leading to increased truancy and his withdrawal from pro-social activities. She further recalls a noticeable increase in his substance use during this same period.
[29] Mr. Williams reports first experimenting with alcohol at the age of ten. By the age of twelve, his drinking had substantially increased, and he also began using marijuana on a daily basis. By the age of fifteen, he was experimenting with cocaine and ecstasy. By the age of twenty-four, he reports using a variety of intoxicants, including intravenous drugs.
[30] Mr. William developed an opioid addiction and entered into a suboxone program when he was twenty-five. Unfortunately, he was not successful in that program and he continued to abuse street drugs. During this period, Mr. Williams supported his drug addiction through theft. His drug of choice continues to be alcohol.
[31] Unfortunately, Mr. Williams has never sought meaningful treatment for alcohol or substance abuse. He appears to have no current interest in doing so.
[32] There is a suggestion that Mr. Williams may suffer from Fetal Alcohol Syndrome, although he has never been properly assessed. A psychiatric assessment from 2016 diagnosed him with conduct disorders, including anti-social personality disorder and possible attention deficit disorder. The author of the Pre-Sentence Report writes:
The assessment considered a history of criminal behaviours, fighting and cruelty to animals. The report noted the subject struggles with an anti-social personality structure, lack of family structure, low self-esteem, intellectual limitations, social marginalization, anti-social peers and substance abuse. Mr. Williams has not been cooperative with therapy, medications or counselling to date.
[33] While interviewing Mr. Williams, the author of the Pre-Sentence Report noted that he became aggressive and threatening. The author further reports that while in custody with respect to this matter, since May 2, 2018, Mr. Williams’ institutional record reflects four incidents of misconduct for threatening and aggressive behaviour.
[34] Mr. Williams reported to the author of the Pre-Sentence Report that he lives a transient lifestyle, is single, and has no dependents.
[35] In terms of his education, Mr. Williams has managed to complete grade eleven through adult learning. Concerning employment, Mr. Williams was briefly employed in 2005 and 2008 in the restaurant industry. However, his primary source of income over the last decade appears to have been the Ontario Works program.
[36] Mr. Williams is a poor candidate for community supervision. He currently has eighteen convictions for failing to comply with court orders and undertakings. The Pre-Sentence Report notes that he is “unmotivated to address criminogenic targets (substance abuse, education, employment and family issues) and reporting habits were poor.”
[37] Mr. Williams appears before the court with a lengthy criminal record. It includes two prior convictions for crimes of sexual violence. He was convicted of sexual assault in 2007, as a youth, and then again in 2009, as an adult. For the youth conviction, he was sentenced to six months custody followed by three months of community supervision with twelve months of probation.
[38] Mr. Williams received a custodial sentence of twenty-one months for his adult sexual assault conviction. He has never received treatment for his sexual offending, primarily because he continues to deny his guilt in relation to his prior offences.
[39] The Crown provided me with a copy of the Reasons for Judgment relating to the 2009 sexual assault conviction. Mr. Williams was found guilty after trial. The Reasons for Judgment reveal that that offence involved an attack on an intoxicated adult victim. The judge found that Mr. Williams raped the victim, a complete stranger, after finding her outside of her apartment building alone and drunk.
[40] Beyond his prior convictions for failing to comply with court orders and sexual assault, Mr. Williams also has four prior convictions for assault, one conviction for breaking and entering, one conviction for mischief, one conviction for possession property obtained by crime, two convictions for obstructing justice, one conviction for theft under $5,000.00 and two convictions for theft over $5,000.00, one for “over 80” and lastly, a conviction for weapons dangerous.
[41] Mr. Williams’ offending behaviour began in his youth, with the first entry in 2004, and has continued unabated since then. His most recent conviction is from May 18, 2015. Given his offence history, his youth record is appropriately before this court and a factor to be considered in imposing sentence.[^2]
The Appropriate Sentence
[42] The Criminal Code sets out a number of principles meant to guide judges in the imposition of sentence. The “fundamental principle” is that the sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[^3] Proportionality requires that a sentence be tailored to the circumstances of the offence and the offender.[^4]
[43] In terms of the objectives to be addressed through sentencing, the Criminal Code also provides guidance. It identifies denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community are the objectives to be met in imposing sentence.[^5]
[44] Beyond these general principles and objectives, this court must also have regard to the guidance provided by the Court of Appeal when it comes to sentencing offenders for the crime of sexual interference.
[45] The Court of Appeal for Ontario has recognized that when it comes to the sentencing of adult sexual predators who exploit innocent children, “the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing”.[^6]
[46] In Woodward, in dismissing the sentence appeal against the five-year sentence imposed for the offence of sexual interference, writing for the Court, Justice Moldaver observed, at paragraphs 75-76:
[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.
[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
[47] In my view, these observations are instructive and directly applicable to the circumstances of this case. That said, an important consideration not present in Woodward, that is relevant in this case, is that Mr. Williams is Indigenous.
[48] Section 718.2(e) of the Criminal Code directs sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, “with particular attention to the circumstances of aboriginal offenders”.
[49] In Gladue the Supreme Court explained that when sentencing an Indigenous offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection.
[50] In accounting for the unique circumstances of Indigenous offenders, Gladue instructed that judges are to take judicial notice of broad systemic and background factors affecting Aboriginal people generally.[^7] For example, as the Court later explained, judges are to take judicial notice of, “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”[^8]
[51] The assessment of Mr. Williams’ moral blameworthiness must take into account the Gladue considerations. Mr. Williams’ moral culpability is lessened when one considers his particular circumstances as an Indigenous person. There is undoubtedly a clear connection between the historic position of Indigenous people in Canada and Mr. Williams family, his upbringing and his ongoing challenges.
[52] Beyond his circumstances as an Indigenous person, however, there are really no other mitigating factors operative in this case. At the same time, there are a number of aggravating factors present.
[53] First, there is the victim’s age. Of course, a victim’s age is a component of the offence of sexual interference, so the court must guard against treating an element of the offence as an aggravating consideration. Nevertheless, J.T. was not just slightly beneath the statutory threshold; she was only fourteen at the time. The victimization of a child is a statutorily aggravating factor.[^9]
[54] Also aggravating is the significant impact of the offence on the victim.[^10] As noted, this offence profoundly impacted both J.T. and her entire family. J.T. was unable to continue at school and lost her academic year. She continues to feel the emotional impact of this crime nearly four years afterwards.
[55] A further significant aggravating factor is Mr. Williams long criminal record, which includes a prior offence history for violence, including two prior sexual assaults.
[56] Finally, Mr. Williams has no apparent insight into his offending behaviour, nor does he wish to take any meaningful steps towards his rehabilitation. Although this is not an aggravating factor, it does speak to the continuing risk he poses to the community in future.
[57] In light of the gravity of this offence, a calculated act of sexual violence on a young and vulnerable victim, the presence of a number of aggravating factors, and the absence of any real mitigating factors beyond Mr. Williams status as an Indigenous person, I am satisfied that a custodial sentence is necessary. Nothing short of custody would serve to denounce this behaviour or deter Mr. Williams from engaging in similar behaviour in future. Further, given the offence and Mr. Williams’ offence history, the separation of Mr. Williams from society is an important sentencing objective; nothing less is capable of protecting the community from the threat he clearly poses.
[58] Nevertheless, I must address the extent to which Mr. Williams’ Indigenous status should influence the sentence imposed on him, for this very serious crime, given the aggravating factors that are present. In that regard, I note the Supreme Court in Gladue made the following important observation:
In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.
Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.
[Emphasis added]
[59] The Court of Appeal reminded sentencing judges of all this in R. v. Kakekagamick[^11] Writing for the Court, Justice LaForme indicated, at paragraph 42:
To be clear, s. 718.2(e) does not require, nor is there a general rule, that aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue, aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and may predominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.[^12]
[60] Mr. Williams committed a violent sexual assault on a child. The impact on J.T. and her family has been significant. In essence, this crime ended J.T.’s childhood far too early.
[61] This is Mr. Williams’ third conviction for sexual assault. Like with his last conviction, this offence involved what can be fairly described as predatory behaviour. Mr. Williams remained at the party after everyone else departed. He followed J.T. when she left. At the time, J.T. was young, drunk and extremely vulnerable. Mr. Williams waited until she was in an isolated area to attack her. The circumstances of this offence are extremely troubling, they reflect a predatory mindset.
[62] Mr. Williams had a less than positive pre-sentence report. He has no insight into the causes of his criminal behaviour and no apparent desire to seek treatment for his addiction issues or for his inclination towards acts of sexual violence. He poses a significant threat to society. Until such time as he finally takes meaningful steps to address underlying causes of his criminal behaviour, I fear that he will continue to pose a significant threat to other young women like J.T. into the future.
[63] At this juncture, separation of Mr. Williams from society and denunciation are the preeminent sentencing objectives. Given the gravity of this offence and the significant aggravating factors, including Mr. Williams two prior related criminal convictions, although I have given due consideration to Mr. Williams status as an Indigenous person, I have concluded the appropriate sentence is eight years imprisonment.
[64] I fear that nothing short of a sentence of that duration would be adequate to the task of denouncing this serious crime, deterring Mr. Williams from engaging in similar behaviour in future, or protecting the community from the significant threat that he will continue to pose until he finally receives the treatment he clearly requires.
[65] In determining the appropriate sentence in this case, I have carefully considered the observation of Justice Moldaver in Woodward, who noted that crimes of this nature “will typically warrant mid- to upper-level single-digit penitentiary sentences.”[^13]
[66] To be clear, I accept that Mr. Williams is less morally culpable given his position as an Indigenous person and his own family’s history with residential schools, which is directly tied to the challenges he faced during his upbringing.
[67] However, none of that mitigates the risk to society that Mr. Williams clearly poses to society, especially other members of his reserve community. He has now demonstrated a pattern of sexual violence involving predatory behaviour towards women. The protection of society remains a crucial objective in deciding on the appropriate sentence in this case. It is worrisome that Mr. Williams has escalated the seriousness of his criminal conduct by victimizing a child. Mr. Williams has reached the point in his criminal offending where the practical realities are that the sentence to be imposed must be similar to those imposed on non-Indigenous offenders. His criminal record, the premeditation involved in this crime, and Mr. Williams’ lack of insight and unwillingness to take any steps to address the causes of his criminal behaviour, all necessitate a lengthy period of imprisonment.
[68] Mr. Hargedon calculated Mr. Williams’ pre-trial custodial time on the date of sentencing submissions to be 542 days. The Crown did not take any objection to this calculation. As of today, Mr. Williams now has now spent 613 days in pre-trial detention. Enhanced, this amounts to 920 days, or two years and five months. The Crown did not oppose enhanced credit despite the pre-sentence report flagging that Mr. Williams has received four misconducts while in pre-trial custody for threatening and aggressive behaviours. It is entirely possible that Mr. Williams may not be a candidate for parole given his actions while detained. Given that neither counsel raised this as an issue at the sentencing hearing, I will give him the credit that counsel are agreed he deserves.
[69] The sentence imposed is eight years less pre-trial custody of 613 days to be enhanced to 920 days. His sentence going forward is five years and five months. For clarity sake, that means a further 2000 days of imprisonment.
[70] The following ancillary orders shall also issue:
▪ The charge of sexual interference is a super primary designated offence. An order shall, therefore, issue for the taking of a DNA sample from Mr. Williams for inclusion in the National DNA Databank.
▪ Pursuant to section 490.012(4) of the Criminal Code, Mr. Williams is required to comply with Sex Offender Registration Act for the rest of his life.
▪ Pursuant to s.109, Mr. Williams is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for the remainder of his life.
[71] With respect to the s. 161 order sought by the Crown, my authority to make such an order is clearly engaged, given that Mr. Williams committed one of the enumerated offences. The Supreme Court of Canada explained that, “s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk.”
[72] Given Mr. Williams’ criminal record, his prior convictions for sexual violence, and the circumstances of the offence for which he is being sentenced, I am satisfied that a s. 161 order should issue so as to minimize the risk that Mr. Williams may pose to children in future. Therefore, for the remainder of his life, Mr. Williams will be subject to the following terms:
▪ Pursuant to s. 161(1)(a.1), from being within 100 metres of J.T., her residence, her place of employment, or any other place you know her to be;
▪ Pursuant to s. 161(1)(c), from having any contact – including communicating by any means – with any female person who is under the age of 16 years, unless that person is a member of your immediate family.
________________________ Justice Sarah Cleghorn
Released: February 27, 2019
[^1]: 2018 ONCA 706. [^2]: See Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 119, 120. [^3]: Criminal Code, s 718.1. [^4]: See R v Ipeelee, 2012 SCC 13, at paras 36-39 [Ipeelee]. See also R v Lacasse, 2015 SCC 64,at paras 12, 53, 58. [^5]: Criminal Code, s 718. [^6]: R v Woodward, 2011 ONCA 610 at para. 39 [Woodward]. [^7]: Ibid. at paras. 83-84, 93. [^8]: Ipeelee, supra note 4, at para. 60. [^9]: See Criminal Code, s. 718.2(a)(ii.1). [^10]: See Criminal Code, s. 718.2(a)(iii.1). [^11]: (2006), 1 OR (3d) 664 (CA). [^12]: Ibid., at para. 42. [^13]: Woodward, supra note 6, at para. 75.