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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Williams, 2021 ONCJ 147

DATE: 2021 03 10

COURT FILE No.: Brampton 18-13747

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CLAYTON WILLIAMS

Before Justice N.S. Kastner

Dangerous Offender Proceedings heard on August 17, 18; November 17, 18; December 7 and 8, 2020

Reasons for Decision on The Dangerous Offender Application and Reasons on Sentence released on March 10, 2021

Ms. Cindy Nadler........................................................... counsel for the Crown

Ms. Paula Rochman....................... counsel for the accused Clayton Williams

KASTNER, J.:

[1] The accused was found guilty of a number of offences[^1] on Jan. 29, 2020 after a lengthy trial. My detailed reasons are reported at R. v. Williams, 2020 ONCJ 60; [2020] O.J. No. 416. These findings of guilt included the offences of sexual assault, sexual interference, and break and enter and did commit sexual assault. The latter two charges were stayed pursuant to R. v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] Following this decision, the Crown indicated that they wished to seek the Attorney General’s consent to bring proceedings to have Mr. Williams found to be a dangerous offender, and to seek an indeterminate sentence. This process took a number of months to gather more information and obtain that consent.

[3] The Court granted Production Orders for records relating to Mr. Williams held by Probation, Correctional Institutions, psychiatric and psychological records, and the involvement with Children’s Aid. The defence was invited to make submissions on each of these orders.

[4] In the course of those proceedings, Mr. Williams was assessed by a forensic psychiatrist, Dr. Mark Pearce, on an Assessment Order under Section 752.1 of the Criminal Code. It was unopposed. The defence chose to rely solely on that psychiatric assessment and not to call further psychiatric evidence. Dr. Pearce was called to give viva voce evidence and was thoroughly cross-examined.

[5] In addition to Dr. Pearce, the Crown also relied on the evidence and records of Mr. Williams’ most recent probation officer, Ms. Marini; the evidence in this trial; the records received by the Production Orders; transcripts of prior court proceedings; the criminal record; and called the viva voce evidence of Angela Beecher-Beekhoo, Correctional Service Canada; and Karen Thompson from the National Parole Board.

[6] The defence did not call any evidence on the trial or on this hearing.

Position of the Parties

[7] After the psychiatric report was received, and this hearing commenced, Ms. Rochman submitted that she accepted that her client should be found to be a Long Term Offender, and be subject to a supervision order for ten years after his release from prison. She agreed that he should receive a penitentiary sentence[^2] in addition to his substantial pretrial custody (since November 2018). Mr. Williams resists the application to have him found to be a Dangerous Offender.

[8] Ms. Nadler maintains that in light of all the evidence on this hearing, Mr. Williams should be designated a Dangerous Offender beyond a reasonable doubt, and receive an indeterminate sentence. She submits this is the only way to protect the public in this case.

[9] The Crown focused on an application pursuant to s. 753(1)(b)[^3] of the Criminal Code of Canada (Criminal Code), although she also advanced other possible avenues or routes to a finding of Dangerous Offender[^4].

[10] Ms. Rochman submits that the evidence shows that, with treatment, the offender can control his behaviour. He is willing to take sexual drive reducing medication and take programmes and treatment offered in the penitentiary. Thus, counsel suggests that the Crown fails on the designation stage.

[11] She also submits that even with such a designation, a determinate sentence can be a sufficient sentence when combined with a Long Term Supervision Order (LTSO).

[12] In addition, counsel submits that neither Section s. 753(1)(a) routes to a designation can be proven by the Crown.

[13] She asks for dismissal of the Dangerous Offender Application, and a conversion into a Long Term Offender Application, which she concedes.

[14] Both counsel made brief submissions as to what sentence should be imposed for the other convictions found in this case.

General Overview

[15] On Sept. 2, 2018, Mr. Williams committed the index offence and other offences in the early morning hours in the cover of a dark night. Both the break-in to the residence where he sexually assaulted the thirteen-year-old complainant, and the break-in to the second home in the same neighbourhood, occurred between approximately 1:00 a.m. and 3:30 a.m. on that quiet Labour Day weekend.

[16] Both homes were located kitty-corner to each other in a residential suburb. The one high fenced home backed onto a busier roadway, with no backyard neighbours. The other home was bordered by a high hedge, which concealed Mr. Williams as he stood by the young girl’s bedroom window for a long time.

[17] The court found at the trial that the likelihood was that the break-in to a screened kitchen at the home where the iPads were stolen, preceded the break-in to the young girl’s home. The evidence showed that Mr. Williams had at least gone up the stairs to the area of the master bedroom and all of the six children’s bedrooms. This is important because the criminal behaviour in both cases was risk taking but the second break-in involved planning and acting on deviant thoughts, despite the great risk of discovery.

[18] Advancing technology provided a clue to the identity of the would-be rapist. Although the victim’s home had no surveillance cameras outside, many of her neighbours did. The Crown proved his identity beyond a reasonable doubt by both circumstantial and direct evidence.

[19] Mr. Williams failed to report his address pursuant to a SOIRA (Sexual Offender Identification Registration Act) order imposed on his last predicate series of offences. He not only failed to report, he lied about where he was living to his probation officer. He acted strangely when attending his probation appointments, and once was seen by his probation officer to be very furtive regarding where he parked his car and his manner of return to it.

[20] Police suspected him nonetheless because of the pattern of the modus operandi of the offences, as compared to the offences he had previously committed. The sentence for the latter crimes had not yet been completed, although the mandatory custodial portion until parole had been. At the time Mr. Williams committed the index offences, he was on probation for his 2015 offences[^5], assigned to a probation officer specializing in dealing with sexual offenders, and assigned to psychiatric treatment with Dr. Gojer at CAMH (Centre for Addiction and Mental Health).

[21] Peel Regional Police conducted surveillance of Mr. Williams over several days following the offences and gathered identification evidence. Police also observed Mr. Williams demonstrating that he was surveillance conscious. They obtained tracking warrants, for his cell phone and vehicle.

[22] Six weeks after the index offences, the police tracked Mr. Williams on the night of October 13, 2018 to the same small cul-de-sac where the iPad break-in had occurred. Very few homes are located on that small street. He had exited his vehicle on that street and walked around for approximately 38 minutes. It is likely that he was prowling around the same house he had broken into, which had no window coverings at the back and clear visibility. The direction he travelled was seen in part on neighbours’ video surveillance, north toward the street which backed onto that house. He came back to his car from the opposite southerly direction.

[23] When police were on route to that location, Mr. Williams left and parked at a Catholic girls’ school parking lot between the victim’s home and his own dwelling. An officer used the tracking information to locate him, and the offender left the lot quickly conducting a U-turn apparently to try to avoid detection or police finding out where he was living.

[24] Peel Regional Police obtained a search warrant for his residence, which was executed on November 16, 2018. He was present. Among the items seized were the iPads which were identified by serial number; other electronics; and a large duffle bag full of stolen property, which included numerous items of jewellery. Obviously, the items stolen at the September 2^nd^ break-in were a small part of the items Mr. Williams had acquired after his release from custody a mere four months before.

[25] Mr. Williams was arrested on November 16, 2018 and has been in custody since that time.

Statutory Scheme

[26] Section 753(1) of the Criminal Code reads:

753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behavior by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[27] Only after a designation is made, if it is made, does the Court consider whether a determinate or indeterminate sentence should be imposed. This is governed by Section 753(4) and 753(4.1) of the Criminal Code which reads:

753(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted - which must be a minimum punishment of imprisonment for a term of two years - and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[28] Both lawyers agree that a Long Term Supervision Order (LTSO) should be imposed for a period of ten years. I agree in considering all the circumstances, including the facts of the offence and the predicate offences, and the related criminal history, and would impose that order on any determinate sentence, if applicable.

Index Offence

[29] The full details of the index offence are contained in my written reasons for judgment, reported at 2020 ONCJ 60. I will set out some of the pertinent facts for this application.

The First Break-In

[30] This residential break-in occurred as I have found prior to the sexual assault.

[31] There is no way to determine the exact time of the break-in, but surveillance cameras on a residence at the corner of that small cul-de-sac indicates an intruder cutting across a lawn at 1:08 a.m. toward the victims’ home. When one compares all the camera footage from various homes that evening, I found that intruder to be Mr. Williams.

[32] The Court also found that Mr. Williams was lingering outside the second victim’s bedroom by at least 2:30 a.m.[^6] He broke into that home approximately an hour later. He was seen on camera exiting the area of that home at approximately 3:26 a.m. and fleeing.

[33] In the context of the evidence of CVD, the homeowner and owner of the electronics taken, the timing shows that it is possible that the intruder observed her and her teenage daughter and husband, dancing and cleaning the kitchen moments before. They went upstairs sometime around 1:00 a.m. or a little after, after getting ready for a family party the next day.

[34] The entire back of the home is glass, without window coverings. When illuminated by any light inside, there was clear visibility. Part of the beauty of the renovation were the glass walls/windows to the backyard. There was no neighbour behind them, and the back fence was high, so they did not feel vulnerable to a breach of their privacy at that time.

[35] CVD was particular about her home and had newly renovated it. Everything was white and clean in anticipation of the celebration. After she realized that she “had been robbed,” she noticed the handprints at the top of the stairs to the second floor. They had not been there before that night when she had gone up to bed. Forensic officers determined the prints were likely from gloved hands.

[36] The only things upstairs were bedrooms, a laundry room, and bathrooms. It was the Labour Day weekend and her children were in bed.

[37] CVD was awake for some time quietly doing laundry and moving between her bedroom and the laundry room. Her presence may have deterred Mr. Williams from continuing to prowl, or worse, on the second floor.

[38] The Crown did not prove beyond a reasonable doubt that Mr. Williams intended to sexually assault anyone at that house.

[39] Mr. Williams had to be aware there were children in the home. I found that he was in the backyard for some time, both before entering by the kitchen window at the back of the home, and as he escaped afterward by climbing a chair he placed against the fence. Photos show the children’s playground in the backyard, quite visible in the dark.

[40] CVD filed a victim impact statement for this hearing. Understandably considering the later sexual assault at the second home which was on the news, her fears are exacerbated. She was very proactive to help solve both crimes, by speaking to neighbours about their surveillance camera footage.

[41] The impact on her whole family is significant. Any homeowner’s sense of security in their own home is violated by offenders like Mr. Williams, who break into a home. It is a serious aggravating factor that he did so when he knew or ought to know that the home was occupied at the time.

[42] I must emphasize that the first break and enter that night is not the index offence here, but it is contextually part of the whole of what Mr. Williams did that night.

The Second Break-In and Sexual Assault

[43] Mr. Williams made his way after the first break-in to a second home, and to the side and back yard area immediately kitty corner to the first home. It was only a short distance away, but across a major intersection.

[44] By 2:30 a.m., and likely before that, he was at the bedroom window of the young girl, M.A-H, who he later sexually assaulted.

[45] Once again, it was the Labour Day Weekend, when parents are getting children ready for school and returning from summer homes and vacations. Williams had to know, or was reckless, as to whether there were children in these suburban residences.

[46] The victim’s bedroom window had blinds that she believed were shut. Although I cannot determine what he did see there, I find he at least tried to do so, and for some significant period. He was at the window by 2:30 a.m. and did not flee the residence until close to 3:30 a.m. after entering and committing the sexual assault on the thirteen-year-old girl, which was relatively brief. No property was taken.

[47] An overturned construction bucket was placed just below the window, which none of the residents knew anything about.

[48] The bedroom was on the side of the split level home. That side was concealed by a hedge. M.A-H’s bedroom was in the basement, or more accurately on the ground level for the back walkout, directly below her brother’s bedroom on the second floor.

[49] Williams gained entry around the corner of the home, in the backyard. The patio door had two sliding glass doors/panels. The children had left the back patio door insecure. This was because of a broken piece in one panel of the door which was loud and made it difficult to open the door. They left that part of the glass door open and just used one of the glass doors. This was where they let the dog out when needed. It was unlocked.

[50] He entered the home and went to the girl’s bedroom. She had retired for the evening, but was awake watching videos on her cellphone, lying in bed with the covers on. Her back was to the door.

[51] She heard something or sensed something and saw a hand on her bedroom door opening it. In the other hand Mr. Williams held his penis and was stroking it.

[52] This was a terrible nightmare for her, but it was real. She was terrified and cowered sitting up in the opposite corner of the bed, pulling up her blanket to cover her body and partially conceal her face. Her large stuffed animal was beside her. She was trying to get as far away as possible. She was in shock. She remembers screaming. No other family had bedrooms nearby or on that level.

[53] He went near to her, still holding his penis, and violently yanked the blanket off her. He then whispered to her and forcibly grabbed her vaginal area, over her bedclothes. She testified he “touched me in my thing,” all the while “massaging his penis.” She testified the force or pressure to her vaginal area was a “five or six out of ten.”

[54] As soon as he touched her, M.A-H quickly got up and fled the room. She said she saw a way out and ran to that way out. She found her father, who had fallen into a very deep sleep in a chair on the main floor in the living room. He was not easy to wake up. There was considerable confusion in the house before she herself called the police.

[55] Williams fled crossing over the front yards of the neighbours and looking back over his shoulder. He kept close to those homes near the structure and as far from the street as possible.

[56] He was not apprehended for over two months. In the meantime, good police work and helpful public tips following a media release by Peel Regional Police led to his arrest.

[57] Police conducted surveillance on Mr. Williams within two days, which continued for some time. They did not know his home address before following him[^7]. Videos showed his appearance at that time. They also obtained tracking warrants for his vehicle and phone.

[58] One night he was found on the very same street as the first index break and enter residence[^8]. He was there for a long time, out of his car and wandering. Police were alarmed and went to warn the residents. Williams fled, and paused in a parking lot halfway home. Either he was trying to evade the police or was trying to see if they were onto him. In either scenario, he did not want police to know where he lived.

[59] A formal victim impact statement was not obtained. Her father testified his daughter was introverted, and after the offence, she was even more so, and would not let him touch or hug her.

[60] The victim testified that she was very scared during the incident and was crying. The 911 recording reflects her fear. She described her attack as “close to being a rape.”

[61] It was clear to me that the trial itself had taken a toll on the young victim, who wanted to move past this and “forget” what had happened to her. While testifying, she asked if it was necessary to repeat some of what had occurred, particularly with respect to the violation of her person. She “wanted this to stop. My mind is everywhere right now.” The impact was severe. She moved from her father’s home, where she had been happy previously. She did not feel safe to live there anymore. She will likely experience psychological impact in the future.

Other Offences

[62] Mr. Williams failed to report his address pursuant to his SOIRA order. He also did not report his address to his probation officer. He lied and stated that he was living out of his car. This lie persisted the entire time since he was released from the reformatory.

[63] For whatever reason, Mr. Williams refused to comply with a basic condition on a Court Order. He was furtive and surveillance conscious as he continued to engage in criminal conduct on release, on probation and under court orders.

[64] He also was found in possession of numerous items of stolen property when police searched his residence. There is no doubt his activities on Labour Day weekend 2018 were not isolated.

Documentary Evidence

[65] A good deal of the evidence on this hearing was documentary in nature. This included all the documents obtained by the Production Orders. Transcripts of past court proceedings better inform the underlying facts admitted and submissions made.

[66] Records from prior probations illustrate what was offered to Mr. Williams, and whether any of the community supervision was successful or failed to correct his offending.

[67] Some of the documents paint the picture of the offender’s personal history and family issues.

[68] I have also reviewed the notes of Ms. Marini, his probation officer, and Dr. Gojer.

Criminal Record

[69] Mr. Williams’ criminal record is both extensive and lengthy. It is important to set it out in full, as it is relevant to this determination, as well as to the remaining counts, and the fundamental purpose and principles of sentence. He is nearing thirty years of recidivism.

1992-12-16 ASSAULT SEC 266 CC PROBATION 12 MOS (YOUTH COURT) TORONTO ONT

1993-09-07 ATT B & E WITH INTENT 3 MOS OPEN CUSTODY & PROBATION 1 YR (YOUTH COURT) TORONTO ONT

1993-09-29 (1) ASSAULT (1-2) 40 DAYS OPEN CUSTODY (2) THEFT UNDER $1000 CONSEC TO SENT SERVING PLUS PROBATION 1 YR (YOUTH COURT) TORONTO ONT

1994-01-11 (1) POSS OF PROPERTY OBTAINED BY CRIME UNDER $1000 (1) 3 MOS OPEN CUSTODY & PROBATION 18 MOS & RESTITUTION $200 (2) FAIL TO COMPLY WITH RECOGNIZANCE (2-3) 3 MOS OPEN CUSTODY & PROBATION 18 MOS ON EACH SEC 145(3) CC CHG CONC & CONC (3) POSS OF PROPERTY OBTAINED BY CRIME OVER $1000 (YOUTH COURT) TORONTO ONT

1995-04-03 (1) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 (1-4) 30 DAYS OPEN CUSTODY & PROBATION 18 MOS (2) DANGEROUS OPERATION OF ON EACH CHG CONC MOTOR VEHICLE SEC 249(1) CC (3) ASSAULT WITH INTENT TO RESIST ARREST SEC 270(1)(B) CC (4) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (5) FAIL TO COMPLY WITH RECOGNIZANCE (5) PROBATION 18 MOS CONC SEC 145(3) Criminal Code (YOUTH COURT) TORONTO ONT

1996-06-06 (1) ESCAPE LAWFUL CUSTODY (1-2) 5 DAYS SECURE CUSTODY & SEC 145(1)(A) CC PROBATION 24 MOS & (2) THEFT UNDER $5000 SEC 334(B) (20 DAYS PRE-SENTENCE CC CUSTODY) ON EACH CHG CONC (YOUTH COURT) BRAMPTON ONT

1996-11-26 ATT THEFT UNDER $5000 PROBATION 18 MOS (YOUTH COURT) TORONTO ONT

1997-09-08 (1) POSS OF PROPERTY OBTAINED BY CRIME (1-3) 6 MOS ON EACH CHG CONC SEC 354 CC (2) ASSAULT A PEACE OFFICER SEC 270(1) CC (3) FAIL TO COMPLY WITH DISPOSITION SEC 26 YO ACT (4) DANGEROUS OPERATION OF MOTOR VEHICLE CBH SEC 249(3) CC (4) 6 MOS CONC & (3 MOS PRE SENTENCE CUSTODY) (5) THEFT OVER $5000 (5) 6 MOS CONC SEC 334(A) CC (2 CHGS) BRAMPTON ONT

1999-02-01 (1) THEFT UNDER $5000 (1-4) 90 DAYS ON EACH CHG SEC 322-334(B) CC CONC & (70 DAYS PRE- SENTENCE CUSTODY) (2) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 & PROBATION 3 YRS ON SEC 354-355(B) CC CHG (2 CHGS) (3) MISCHIEF UNDER $5000 SEC 430(4) CC (3 CHGS) (4) THEFT UNDER $5000 (2 CHGS) TORONTO ONT

2001-03-30 (1) DRIVING WHILE DISQUALIFIED (1) 30 DAYS INTERMITTENT SEC 259(4) CC & PROBATION & PROH DRI 1 YR (2) PUBLIC MISCHIEF (2-3) 30 DAYS INTERMITTENT SEC 140(1)(B) CC ON EACH CHG CONSEC & (3) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 CONSEC & PROBATION SEC 355(B) CC (4) FAIL TO COMPLY WITH RECOGNIZANCE (4-5) 30 DAYS INTERMITTENT ON EACH CHG CONC & CONC & PROBATION SEC 145(3) CC (5) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) Criminal Code ST THOMAS ONT

2002-04-12 (1) OBSTRUCT PEACE OFFICER (1-3) 1 DAY ON EACH CHG CONC (2) FAIL TO ATTEND COURT & 1 MO PRE-SENTENCE (3) FAIL TO COMPLY WITH CUSTODY DISPOSITION SEC 26 YO ACT TORONTO ONT

2003-12-09 (1) ASSAULT SEC 266 (1) 1 DAY & (26 DAYS CC PRE-SENTENCE CUSTODY) & PROBATION 12 MOS & DISCRETIONARY PROHIBITION ORDER SEC 110 CC FOR 10 YR (2) UTTERING THREATS SEC 264.1(1)(A) CC (2) 1 DAY CONC & (26 DAYS PRE-SENTENCE CUSTODY) & PROBATION 12 MOS CONC ST THOMAS ONT

2004-03-02 ASSAULT SEC 266 Criminal Code (2 CHGS) 90 DAYS INTERMITTENT ON EACH CHG CONC & (19 DAYS PRE-SENTENCE CUSTODY) & PROBATION 12 MOS BRAMPTON ONT

2008-09-30 (1) FORCIBLE CONFINEMENT (1) 1 YR & (37 DAYS SEC 279(2) CC PRE-SENTENCE CUSTODY) (2) ASSAULT SEC 266 CC (2) 3 MOS CONC & PROBATION 3 YRS BRAMPTON ONT

2011-08-17 (1) INDECENT ACT (1-2) SUSP SENT & PROBATION SEC 173(1) CC 12 MOS ON EACH CHG CONC (2) TRESPASSING AT NIGHT SEC 177 CC & (69 DAYS PRE-SENTENCE CUSTODY) MILTON ONT

2011-09-06 FAIL TO COMPLY WITH PROBATION ORDER 3 DAYS & (5 DAYS PRE-SENTENCE CUSTODY) SEC 733.1(1) Criminal Code BRAMPTON ONT

2011-09-14 FAIL TO COMPLY WITH PROBATION ORDER 60 DAYS & (7 DAYS PRE-SENTENCE CUSTODY) ON EACH CHG CONC (2 CHGS) SEC 733.1(1) CC ST THOMAS ONT

2012-07-18 (1) ASSAULT SEC 266 CC (1) 3 DAYS & (87 DAYS PRE-SENTENCE CUSTODY) (2) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC (2) 16 DAYS CONSEC & PROBATION 18 MOS BRAMPTON ONT

2012-09-06 POSS OF PROCEEDS OF PROPERTY OBTAINED BY CRIME 1 DAY (7 DAYS PRE-SENTENCE CUSTODY) SEC 354(1)(A) CC BRAMPTON ON

2012-10-29 ASSAULT 23 DAYS & PROBATION 15 MOS BRAMPTON ONT

2013-07-26 ASSAULT WITH INTENT TO RESIST ARREST 7 DAYS SEC 270(1)(B) CC BRAMPTON ONT

2017-04-28 (1) BREAK ENTER & COMMIT SEC 348(1)(B) CC (1) 18 MOS & PROBATION 3 YRS (CREDIT FOR THE EQUIVALENT OF 2 YRS 6 MOS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CC (2) INDECENT ACT (2-3) 6 MOS CONC & PROBATION 3 YRS SEC 173(1) CC (3) SEXUAL ASSAULT PRE-SENTENCE CUSTODY (2 YRS 6 MOS) SEC 271 Criminal Code BRAMPTON ON

[70] The preceding sentence imposed by Blacklock J. on April 28, 2017, before the index offences were committed on Sept. 2, 2018, was the equivalent of a four year penitentiary sentence for sexual offences which also involved breaking into the victim’s residence[^9]. She was a stranger to him, as was the minor victim of the index offence.

[71] Mr. Williams was released in April 2018 after serving one year of the eighteen month remnant of his custodial sentence, after the pre-trial custody served.

[72] At the time of these offences, Mr. Williams was on a Probation Order for three years. He also had a SOIRA order for life. He breached both.

Predicate Offences

First Incident

[73] On August 17, 2011, Mr. Williams pled guilty to committing an Indecent Act and Prowling by Night near a dwelling house. He received a sentence of 69 days (credit for 138 days) plus probation. The facts he admitted to were as follows: On August 26, 2009, at approximately 11:15 p.m., the victim, D. D. was at home in her residence located on […] Blvd. in Milton. She was in the basement of her residence. Her husband and daughter were already sleeping. She heard a tapping sound on the basement window. She went upstairs and turned on the outside light to see what was going on and when she stepped outside she was startled to see Mr. Williams standing at the window of her residence. This was approximately three feet away from her. His pants were partially open and he was stroking his exposed penis. She immediately closed the door and called 911, but Mr. Williams remained in the same spot, masturbating. Eventually he saw her on the phone and did up his pants and walked down her driveway. Police found him nearby in the area and he gave the police a few contradictory stories about why he was there.

Second Incident

[74] On January 19, 2017, the Mr. Williams pled guilty to Sexual Assault, Breaking and Entering, and Indecent Act before the Honourable Justice W.J. Blacklock. He was sentenced on April 28, 2017 and received a sentence of the equivalent of four years (credit for 2.5 years of pre-trial custody plus another 18 months) and three years of probation.

[75] These convictions relate to two separate incidents in the same evening. The facts Mr. Williams pled guilty to are as follows: On September 25, 2015, shortly before 10:48 p.m. Mr. Williams was masturbating in the backyard of […] Blvd. in Mississauga. The two complainants who noticed him there were two sisters, D.E., aged 22 and N.E., aged 9 years. D. had been sitting in her dining room doing her schoolwork while N. was seated on a couch in the living room. N. noticed someone outside. D. got up and got close to the window and saw Mr. Williams masturbating while looking at her 9-year-old sister from on top of their deck right up to their back sliding glass door. He appeared to be biting on something, D. yelled and banged on the door, but he did not leave. He continued to masturbate while looking at 9-year-old N., moved his hand to his mouth and shook his head as if to say “Shhh.” It was not until she screamed for her brothers and tried to close the blinds that Mr. Williams started to slowly walk away.

[76] Significant victim impact was noted. After this frightening experience, the whole family was not comfortable in that neighbourhood. They were fearful and insecure. In the result they had to move, and lost friends. They will not go outside in the dark unless with their father or older brothers. The youngest girl was still fearful at the time of the victim impact statement on January 22, 2017.

Third Incident

[77] Police received the call in relation to the E. sisters at 10:48 p.m. Eight minutes later at 10:56 p.m., police received another 911 call to attend […] Blvd. in Mississauga, which is approximately nine backyards away from the first scene. Police attended and spoke to the complainant, P.M., 24 years of age. She resides in a walkout basement apartment at that address. Her room was accessed by a sliding glass door backing into the yard which she doesn’t lock when she is home. She had just finished having a cigarette outside when she shut off all her lights and got into bed. She was texting her boyfriend when she heard the sliding door open. The door is right beside her bed. It was dark so she asked who it was. She heard an unfamiliar voice. She turned on her flashlight on the phone and shone it on the intruder, who was Mr. Williams. He came over to her where she was lying under the covers and demanded that she take off her clothes and get naked. He started pushing her back onto her bed and was leaning over top of her trying to grab her arms to pin her down. He knocked the phone out of her hand. He grabbed her blankets completely off and started trying to pull off her underwear, which was all she was wearing. She fought back kicking and screaming and punching. She fought as hard as she could. Eventually Mr. Williams got up and ran out the door, shutting it behind him. Ms. M. ran upstairs crying to her landlords.

[78] The distance between the E. residence and the M. basement apartment is not dissimilar to that of the two index allegations. They are adjacent townhouse developments.

[79] M. did not provide a formal victim impact statement, but Justice Blacklock referred to the incident as “a woman’s worst nightmare.” His Honour also pointed out that “the offences before me can thus be seen as a continuation of, and more troubling, a significant escalation of a problem that the accused has had for a long period of time”.

[80] Less than one hour later, at 11:46 p.m., police received another 911 call from E.F. to attend […] Rd. in Mississauga, in regard to a suspicious male hiding behind a van possibly watching his wife M.F. (aged 45). I have described this occurrence as one of the “other sexual-related offences” infra.

[81] In the Pre-Sentence Report, the accused denied that he has a sexual behaviour problem warranting intervention, notwithstanding it was “his third offence of this nature,” and that his behaviour escalated to the point where he gained entry and made physical contact with one of the victims. It was recommended that he could benefit from a formal sexological assessment and treatment, available through the correctional system and in the community.

Other Sexual-Related Incidents

[82] On August 26, 2009, the accused was trespassing at night in Milton, and committed an indecent act. The victim was home in her residence in the basement after her family had gone to bed. He plead guilty to that offence two years later[^10]. The incident preceded the next incident in 2011, however he was sentenced to the second incident prior to the first similar charge.

[83] On February 18, 2011, the accused was prowling by night in Mississauga by a dwelling house. The homeowners called police and he lied about his identity. The matter was subject to a judicial pretrial preceding the pleas. Justice McLeod stated in her reasons on sentence that “we all know what you were up to.”[^11]

[84] On October 22, 2012, Mr. Williams committed an indecent act. At 11:15 that morning a woman was walking in residential Mississauga when he pulled up driving in a vehicle. He asked her for directions to a mall which she provided. She asked him what store he was looking for. He then asked, “is it big?” and she saw that he was holding his erect penis in his hand.

[85] On that same date in a second residential area in Mississauga, he approached two women, asking them if there was a mall close by. One of the women noticed that the accused was not wearing any clothing on the lower half of his body, and that he had an erection and was masturbating. Both women then walked away and reported the matter to police. The next day police attempted to arrest him, and he fled on foot. He struggled with the officer, who had to attend hospital for injuries he suffered.

[86] Immediately after the predicate offences committed in 2015, less than one hour later, police received their third 911 call that night about Mr. Williams. The report was a suspicious male hiding behind a van, watching the complainant’s wife. He had been wearing a winter hat on a warm evening, rolled up as a potential mask. Police arrived and observed him hiding in the area less than a block away. A foot chase ensued, and he was only apprehended after the tactical unit deployed a taser. His arrest occurred at a townhouse complex within a block of where he had been seen. A balaclava was seized along the route of the police foot chase, and the balaclava had Mr. Williams’ DNA on it. That balaclava and gloves were found in the backyards in the direction of the police chase.

Other Prior Violence

[87] Mr. Williams has a long history of domestic violence involving his various intimate partners.[^12] Several of these involve assaulting a pregnant partner. Some were carried out in the presence of his children.

[88] Most of the violent offences were accompanied by threats to cause bodily harm or death to his partner or others.

[89] Several offences involved him biting his partner on the hand, or chin.

[90] All the details of his assaults on domestic partners are contained in the transcripts of the proceedings filed here.

Education and History of Supervision and Treatment

[91] Mr. Williams is currently 42 years old, born in Mississauga on April 9, 1979. He has two siblings, one of which he does not talk to. His younger brother he describes as close to him.

[92] He told the psychiatrist he stopped attending school in Grade 9 or 10 because he was stealing bikes and was focused on money. He completed high school while in custody in 2018.

[93] Mr. Williams admitted to truancy and other behavioural problems as a youth, and that he was “duplicitous”. He was involved with shoplifting, committed a robbery and sold drugs on occasion.

[94] He reported taking a course to be a computer service technician, but he did not complete the course at any time.

[95] He advised the psychiatrist that he has been employed on and off, and had trouble providing a concise work history. He reported that he was employed in the fall of 2018 as a mobile diesel mechanic, but only worked there about three weeks. He stated he had worked as a painter with his brother at the time of his arrest.

[96] Although he admitted to committing crime on release, he claimed “only 10 percent of his income from 2018 was from questionable business activities, compared to 95 percent a decade earlier”.

[97] He has never been married but was engaged twice. He has two children with CM, and three children with JH.

[98] Mr. Williams was not in contact with mental health professionals when out of custody. He told Dr. Pearce he had some alcohol and drug history.

[99] His probation records form part of the record in this proceeding. His repetitive non-compliance is woven throughout the tapestry of his criminal history.

[100] He did not comply with his most recent probation and SOIRA orders. Although he attended CAMH to see Dr. Gojer, he pretended to not read or write, as excuses to not fill in the assessment the doctor required to properly assess his risk of reoffence.

[101] Treatment was offered, in which he did not always actively participate, but he attended, and his probation officer closely monitored that aspect.

Evidence

[102] The Crown called psychiatric evidence and evidence of what is available in the federal correctional system, both institutionally, and on conditional release. She also called evidence about the parole system, and the conditions available to the National Parole Board.

Dr. Pearce’s Opinion

[103] Dr. Pearce met Mr. Williams on three occasions in 2020 at CAMH (Centre for Addiction and Mental Health) and the TSDC (Toronto South Detention Centre) for approximately 5.5 hours. He refused to participate in phallometric testing on the advice of his lawyer. In cross-examination Dr. Pearce conceded that this testing is known for false positive results, and agreed the testing may be unhelpful, except it may serve to support findings of pedophilia.

[104] Supervision records in custody reported minimized versions of certain of his offences. He was felt to be a poor candidate for treatment given his minimizations and rationalizations in 2008.

[105] In 2009, he had not been honest with his probation officer, and was in breach. He was to start a program called “Changing Ways” program but failed to report to his probation officer.

[106] A Pre-sentence Report (PSR) was prepared for the predicate offences. His brother said that he drank daily and to excess, as well as used marijuana heavily. He stated he did not have a sexual behaviour problem. The psychologist at OCI stated in August 2017 that the offender had been manipulating staff and peers, was defensive and generally unsuitable for treatment at that time. He was then moved to Central North Correctional Centre.

[107] Ms. Marini, his most recent probation officer, scored Mr. Williams on actuarial tools, and found him moderate to high risk of reoffending. He denied paraphilias. He spoke of “pro-criminal behaviour and its usefulness to him”. He admitted to lying to the author of the 2017 PSR, claiming he had a substance abuse problem to serve his sentence at OCI.

[108] Based on his interviews with Mr. Williams and the information made available to him, Dr. Pearce did not opine that the offender suffered from a major mental illness. His self-report of substance use is “remarkably inconsistent over time”.

[109] In this case Dr. Pearce found the diagnostic considerations are courtship disorders, voyeurism, exhibitionism and the more serious courtship disorders of sexual sadism and a coercive sexual preference along with pedophilia.

[110] On balance he testified that Mr. Williams admitted to exhibitionistic and voyeuristic fantasies, and he diagnosed him with those two types of courtship disorder. He was not able to conclude on balance that he suffers from either a coercive sexual preference or sexual sadism. He cannot exclude these disorders and there is a good chance he suffers from at least one. If he reoffends in a similar fashion and/or generates a positive phallometric test result at CAMH, he would likely diagnose him with a coercive sexual preference.

[111] He is unable to conclude the offender suffers from pedophilia, although there is a good chance the condition is present, given that he was masturbating while staring at a nine-year-old female and he sexually assaulted a 13-year-old female. Dr. Pearce is unable to make the diagnosis on a balance of probabilities currently.

[112] He also diagnosed him with an antisocial personality disorder. He testified that at present, they have very little treatment for individuals with this disorder, and little empirical evidence suggesting these individuals are capable of personality change, even with assiduous treatment.

[113] Dr. Pearce’s opinion after examining his criminal history, his rapid reoffending behaviour upon release while under community supervision and while attending treatment, and his deceit and manipulation with treatment providers, provides no confidence that he can be managed in the community safely in the future[^13].

[114] The doctor employed various actuarial tools[^14] to assist in categorizing the risk of re-offence. He found Mr. Williams to be an extremely high risk to re-offend.

[115] The offender scored on the Static 99R test in the ninety-ninth percentile to reoffend with a new sexual offence, at a rate of between 40 to 55% over 10 years. Dr. Pearce places the offender in the highest risk part of the spectrum- he is at Number 99 out of 100 for risk.

[116] The SORAG test placed Mr. Williams at a high risk category for recidivating violently, at a rate of 89% over 10 years. He is placed at the 94^th^ percentile. Dr. Pearce testified that 9 out of 10 individuals who scored the same committed a new sexual or violent offence over 10 years, although it may be an overestimate if crime rates fall over the years, but would still be approximately 7 out of 10 offenders reoffending in the same interval.

[117] He was in the highest risk category on the DVRAG test, a rate of recidivating approaching 100% over 5 years.

[118] Dr. Pearce hoped that Mr. Williams would curb his offending by two main means: one, participation in an intensive supervisory regime by CSC under a LTSO; and two, by being prescribed and taking potent anti-libidinal medication prior to his release from custody and for at least one to two decades following.

[119] The Crown submits that the offenders’ assertion he is now amenable to taking these medications long term must be assessed in light of his prior lies and manipulations of treatment providers, and his prior promises that he has seen the error of his way and will change because he is then motivated to do so.

[120] In addition, the Crown cross-examined Dr. Pearce, CSC and NPB about the serious side effects of this type of medication, which may inhibit him from taking it, and its potential defeat by testosterone supplements, Viagra or Cialis. Moreover, some exceptional patients still have a sexual drive despite a reduction in their testosterone.

[121] Dr. Pearce testified that this type of medication is not a cure-all or panacea to reducing the risk of reoffence.

[122] Ms. Rochman agrees that Mr. Williams has not always cooperated with rehabilitation in the past, but suggests he now gets the message that he must take the medication and avail himself of programming in the penitentiary. She submits that a LTSO will ensure compliance because he can be arrested for a breach immediately and may serve significant additional penitentiary time if he fails to comply without lawful excuse.

[123] In attempting to provide an opinion on the offender’s suitability for a Dangerous Offender designation, Dr. Pearce confined his opinion to a purely psychiatric perspective, which may not coincide with the legal test and requirements for this Court. He testified that Mr. Williams has shown a failure to control his sexual impulses.

[124] Given his high risk for re-offence, Dr. Pearce stated that in his view, there is a likelihood he will commit a future sexual offence if released imminently to the community.

[125] Whether he would be suitable for a LTSO hinges on whether he can be considered treatable, and where such treatment could be effective to the point his risk could be managed within the community both while under supervision and after the expiry of the order.

[126] Dr. Pearce recognized that from a purely psychiatric perspective, there is a reasonable expectation of eventual control of the offender’s risk in the community.

[127] Ultimately his suitability for a LTSO remains as the Court’s decision.

[128] The psychiatrist recommended structures and conditions to be implemented for Mr. Williams to one day be released into the community[^15]:

1. Mr. Williams should complete domestic violence programming and intensive sexual offender treatment programming during a period of incarceration. He should be referred for longitudinally-based, “booster” programming once he returns to the community, to bolster the effects of institutional programs. Programs to target antisocial attitudes are also indicated. He should be assessed by a psychiatrist and prescribed a potent anti-libidinal medication prior to being released from custody. This medication should continue for at least one to two decades.

2. A prolonged placement at a community correctional centre (CCC) is likely to benefit this gentleman. If living outside a correctional facility, his whereabouts should be monitored electronically as his self-report has often been unreliable. There should be strict curfew in place for many years. Parole officers should also make frequent visits to his residence.

3. Mr. Williams should not be in possession of a weapon. He shouldn’t associate with those with a criminal record.

4. Mr. Williams should participate in educational upgrading and/or vocational training. Ultimately, he should return to gainful employment; this would help structure his time and bolster his sense of self.

5. Of particular importance, Mr. Williams should be obliged to disclose to his case management team (CMT) any relationship he becomes involved in. His partner should be made fully aware of his history and she should be instructed to contact the authorities, if Mr. Williams displays any concerning behaviour.

6. Mr. Williams should avoid use of alcohol and drugs, as any consumption would be risk enhancing. He should submit urine samples randomly and frequently. To ensure he is abstaining. If he has trouble avoiding alcohol, anti-alcohol medication (disulfiram or another medication like naltrexone) may assist. Caution should be exercised in prescribing medication with an abuse potential.

7. Family therapy could possibly be of benefit, to allow for Mr. Williams’ supports to understand his history and his risk to others.

8. Mr. Williams should not have unsupervised contact with anyone under the age of 16, given that there is some chance he suffers from pedophilia.

Parole Board of Canada and Correctional Services of Canada

[129] Ms. Karen Thompson of the Parole Board of Canada (PBC) and Ms. Angela Beecher-Beekhoo of the Correctional Services Canada (CSC) testified on the Dangerous Offender Application.

[130] A person with a determinate sentence, whether a dangerous offender or not, can apply for the various available types of conditional or statutory release.

[131] A dangerous offender serving a determinate sentence followed by a LTSO can be detained to the warrant expiry date but then must be released on an LTSO. The PBC has the exclusive authority to impose special conditions for an offender’s release on an LTSO.

[132] A dangerous offender serving an indeterminate sentence will have the PBC consider the condition, history, and circumstances of that person to determine whether parole should be granted. If so, the PBC determines what special conditions are reasonable and necessary to manage the risk that the offender might present on release.

[133] A dangerous offender with an indeterminate sentence who has been granted conditional release will be supervised by CSC for the rest of their life. The conditions of release may change likely throughout the offender’s life.

[134] If a dangerous offender serving an indeterminate sentence is released and is suspected or known to have breached conditions of his release or it is necessary to prevent a breach, then their release may be suspended by the CSC. The CSC will then have 30 days to cancel the suspension or to refer the case to the PBC with a recommendation to either cancel the suspension or revoke the release.

[135] The PBC can impose special conditions on an offender’s release whether pursuant to an LTSO or other form of release. Conditions could include prohibiting the offender from possessing, or consuming alcohol or drugs; or participating in an assessment and treatment regime as recommended by a medical professional.

[136] If the CSC considers that there has been a breach of an LTSO, the offender is apprehended. This may lead to CSC recommending that a charge be laid under Section 753.3 of the Criminal Code.

[137] If a person subject to an LTSO is released into the community and they are subject to a condition that they take medication, they could have their medication monitored through urine analysis.

[138] While in the federal corrections system, a group session counselling program is available, which has a further maintenance program available in the community under release. There is also sexual offender programming.[^16]

[139] All programming is voluntary, and where the sentence is determinate, the offender will eventually be released regardless of whether they participate in any of the programs or not.

[140] Failure to participate or complete counselling programs does not disentitle an accused to statutory release, or release upon warrant expiry.

[141] If a psychiatrist recommends medication and treatment, when serving a determinate sentence, there is no testing to make sure they are taking the medication as prescribed, while in custody.

[142] If the offender’s risk is determined to be too high at the statutory release stage, the CSC can apply to the PBC to have the offender detained, but at the end of the warrant expiry, nothing can be done to keep a high risk offender in custody, even if he did not conclude treatment.

[143] A dangerous offender with an indeterminate sentence has no statutory right of release and must earn their conditional release on any unescorted temporary absence, day parole or full parole. That offender is not eligible for full parole until they have served seven years from the date of arrest. After serving seven years, the offender is entitled to a review every two years.

[144] An offender on parole or subject to an LTSO can be subject to a residency condition requiring that they reside at a Community Correction Centre (CCC) or a Community Residential Facility (CRF) which are managed by non-profit organizations. The CCCs are for higher risk cases. In Ontario, there are only two CCCs, one in Toronto and one in Kingston.

[145] The capacity of each CCC is limited. For example, Toronto only has 40 beds. Persons residing at a CCC meet with their parole officer weekly. The building itself has unarmed security with cameras. A person could walk away from a CCC, although security may observe that.

[146] Residency at a CCC is only allowed for 365 days but can be extended by the PBC provided CSC makes that submission to the PBC.

[147] On the CCC premise in Toronto, a psychologist is present. A psychiatrist is not present on site, but once a month offenders can attend a psychiatric clinic and meet with a psychiatrist employed by CSC.

[148] If a person is residing at a CCC and subject to a condition to take medication, the medication will be dispensed to them there. Medication is not permitted in their rooms.

[149] Ms. Rochman argues that Mr. Williams can be managed in the community on his release at a CCC or CRF. The Crown argues that reliance of this structure places a very heavy reliance of monitoring by parole supervisors, and submits that the offender’s history of non-compliance should be considered, particularly as his earlier supervisors were unable to detect the imminence of a breach or the occurrence of a breach.

[150] There is no active monitoring by parole officers at the CCC. The offender’s self-report is noted and potentially verified through collateral contacts.

[151] The CSC witness stated that offenders are permitted to sign in and out, report in, and have curfews. Offenders cannot be monitored 24 hours a day on community supervision. If that is required to ensure safety of the public, incarceration should continue rather than residence at a CCC.

[152] If a person does well at a CCC, they can be released to a CRF. If a person does well at a CRF, they may be released to the community. It is a cascade down effect.

[153] CSC also testified as to the management of a breach of an LTSO condition with respect to determinate sentences. A supervisor and the case management team assess the suspected breach prior to a suspension. The offender is located and spoken to and then the team determines whether the situation warrants elevating the risk assessment to an unmanageable level. Suspension is not automatic as the goal is to manage the risk in the community.

[154] Options if the CSC brings the breach to the PBC’s attention are: first, to return the offender to the community; and second, to recommend the laying of a breach of the LTSO within 90 days. Breach charges are viewed as a last resort.

[155] The PBC cannot revoke a release where there is a LTSO following a determinate sentence which is breached, whereas they can do so for indeterminate offenders.

The Law and Analysis

[156] The overriding purpose of the Dangerous Offender and LTO regimes in the protection of the public.

[157] The Crown summarized the law correctly, that in a contest between an individual offender’s interest in involving the long term offender provisions of the Criminal Code and the protection of the public, the latter must prevail.

R v Boutilier, 2017 SCC 64, at para. 56

R. v. G.L., 2007 ONCA 548, [2007] O.J. No. 2935 (C.A.), at para.70

[158] The Crown must establish beyond a reasonable doubt that the offence falls into one of the gateways set out in s. 753 (1). Both counsel agree that it does so as set out in s. 753(1)(b) of the Criminal Code.

[159] In the result, I do not need to elaborate on the Crown’s alternative theories as set out in 753(1)(a). Ms. Nadler candidly concedes that subsection (b) is by far her strongest argument.

[160] Sexual assault is inherently a violent offence. I am satisfied that the Crown has shown that his conduct in the index offence demonstrates a likelihood of severe psychological harm to M.A-H. as a result of his sexual misconduct.

Part 1 Designation

[161] The Dangerous Offender hearing is divided into two parts: one, whether the offender can be found to be designated as a Dangerous Offender beyond a reasonable doubt; and two, whether the penalty for the Dangerous Offender, if so found, should be a determinate or indeterminate sentence.

[162] The procedure for the hearing to determine if an offender is to be designated a Dangerous Offender is set out by the Supreme Court of Canada in R. v. Boutilier[^17], as well as in some other recent appellate decisions.

[163] Ms. Rochman relies upon the language that our highest Court uses in Boutilier to explain why section 753 of the Criminal Code is not overbroad, submitting that only a very small number of cases fit in this sentencing regime:

26 In Lyons, Justice La Forest read the objective element of the designation - the requirement that the predicate offence be a "serious personal injury offence" - together with the subjective element - the "threat" assessment - and concluded that four criteria were "explicit" from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a "serious personal injury offence"; (2) this predicate offence is part of a [page955] broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the "threat" posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:

Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added; p. 338.]

27 The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand "intractable" conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.

28 Justice La Forest concluded what would today be referred to as an overbreadth analysis by finding that the four s. 753(1) criteria define a very small group of offenders for whom the risk of indeterminate preventive detention is constitutional:

Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate [page956] strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailored set of criteria that could effectively accomplish the purposes sought to be attained. [p. 339]

He held that the designation criteria are sufficiently narrow and precise so as to apply only to offenders that pose a future threat to other persons, such that the risk of indeterminate detention is rationally tied to the public protection purpose of the scheme. (emphasis added)

[164] Both counsel have prepared several volumes of authorities. I have reviewed all of the cases, which are helpful for general principles. Each case depends on its own set of facts of the offence, the background of the offender and the evidence on the hearing. I do not intend to directly reference many of them.

Serious Personal Injury Offence

[165] Sexual Assault is one of the enumerated offences listed in the definition of “serious personal injury offence” under Section 752 of the Criminal Code. The Crown has established that beyond a reasonable doubt.

Failure to Control Sexual Impulses

[166] The Crown submits she has shown the failure to control his sexual impulses and likelihood of causing injury, pain or other evil to other persons in future is shown by his voyeuristic and exhibitionist paraphilias, his public repeated masturbation, and his repeated entry into young female stranger’s homes to sexually assault them.

[167] During the trial for the index offence, I found that the predicate offences proffered as similar act, or other discreditable conduct, did not meet the test in R. v. Handy, 2002 SCC 56 to establish identity.

[168] Nevertheless, the Court found that the evidence tended to show a troubling pattern of loss of control, and it is properly admissible on this hearing.

[169] In her written submissions, Ms. Rochman submits:

With respect to prior behaviour that can form part of the “pattern”. The definition does not amount to a similar act Application. The Ontario Court of Appeal in R. v. Langevin stated:

In my opinion, this element is not based solely on the number of offences but also on the elements of similarity of the offender’s behaviour. The offences committed were remarkably similar. Two young girls were grabbed from behind by the appellant, a stranger, and both were taken to a secluded place and ordered to undress. Both were forced into anal as well as vaginal intercourse. The younger girl was forced to fellate the appellant. Both were threatened to assure their co-operation and were released only after assurances not to tell anyone were extracted from them. In the circumstances, these two offences were properly found to establish a pattern of repetitive behaviour.

R. v. Langevin, 1984 CanLII 1914 (OCA)

However, it should also not include such a broad definition of behaviour. Rather it is behaviour that will result in “dangerous” activity. So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause death or injury.

R. v. Dow, 1999 BCCA 177 at paras. 21-22.

R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260 at paras. 21-25

[170] Since the Court is relying on the primacy of the Crown application pursuant to s. 753(1)(b), rather than s. 753(1)(a) of the Criminal Code, the same considerations of “pattern of repetitive behaviour” are not predominate.

[171] The Crown submits that when one considers the whole of his indecent act and prowling by night offences in addition to the predicate and index offence(s), his “behaviour shows he has a predilection for watching females of varying ages through the rear or basement of residences late at night when it is dark outside.

[172] Therefore, the Crown states that this is very flagrant, risk-taking behaviour. She concludes that “there is an obvious overarching pattern that is evident from his offending behaviour”: a predilection for watching female strangers who likely do not know he is there; a predilection for making female strangers watch him masturbate; and escalating behaviour due to his paraphilias, by entering the homes of female strangers and assaulting them sexually.

[173] The offender, through his conduct has shown that he has failed to control his sexual impulses in past offences, the predicate offences and the index offence.

[174] That element is also proven beyond a reasonable doubt.

Likelihood in the Future

[175] As I have previously explained, Mr. Williams’ risk of recidivism is significant without effective treatment.

[176] The Crown submits that the evidence shows “unrealistic future hopes” based on expert evidence, and the evidence of CSC and the NPB.

[177] If he is given a determinate or finite sentence, he would be released following the completion of his sentence, regardless of his participation, or lack of it, in treatment.

[178] Ms. Rochman submits the Crown cannot establish a likelihood in the future of recurrence, and that the CSC and PBC evidence should satisfy the Court that there is a reasonable likelihood that Mr. Williams’ conduct can be managed in the future through a LTSO following a determinate term of imprisonment.

[179] Dr. Pearce’s opinion is that in the case of someone like the offender, who scores so highly on the actuarial instruments, programming in and of itself is insufficient to lower his risk of reoffending sexually , whether on parole or after his mandatory term of imprisonment.

[180] The only effective reduction of risk possible is the medication route.

[181] The Crown says that I cannot rely on Mr. Williams’ eleventh hour conversion from his repeated history of indifference to rehabilitative steps.

[182] Ms. Rochman and Mr. Williams submit that he will do whatever necessary to prevent recidivism, including taking such medication.

[183] Unfortunately, his past and most importantly his immediate past offences, for which he was on statutory release and probation, illustrate that Mr. Williams says one thing, but does another when left to his own devices.

[184] His turn around time to reoffending was almost immediate notwithstanding a reporting probation with a skilled probation officer.

[185] If he has a change of heart from what he now states is his motivation for treatment, he has a very high risk to reoffend. It is more likely than not that he will in the future show a similar failure to control his sexual impulses. A definite sentence still comes with a mandatory release date, which will happen whether he takes treatment or not.

[186] The defence here suggests that the powers inherent in a LTSO will be sufficient to allay future offences of this nature. I cannot be sure of that at all, and public safety is paramount. The correctional and parole regime by itself without self-motivation of Mr. Williams does not displace the actuarial and expert opinion of the high risk to reoffend by a failure to control sexual impulses.

[187] In argument it was suggested by Ms. Rochman that the fact that the offender stopped his sexual assault on the thirteen-year old victim demonstrates control over his sexual impulses.

[188] The short answer to that argument is found in the words of Justice G. A. Martin. In R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143, at para. 32 (O.C.A.)[^18], the offender submitted that he had shown an ability to control his sexual impulses because he had abandoned his intention to have intercourse with the victim. Martin J.A. found the trial judge was correct in finding that by the time he had abandoned his intentions, he had already committed a serious sexual offence.

[189] All of the contextual circumstances of the index offence demonstrate a failure by the offender to control his sexual impulses beyond a reasonable doubt.

Likely to Cause Injury, Pain or Other Evil

[190] Sexual Violence is inherently capable of causing injury, pain, or “other evil”.

[191] The acts Mr. Williams committed on the night of September 2, 2018 were likely to cause psychological harm to the victim. He destroyed her sense of security in her own home, in her private room for the purpose of providing her rest and peace of mind. Her caused her terror and fear. He took away her right to self-determination and innocence. She was vulnerable and either pre-pubescent, or close to it. She cowered with her stuffed animal when Mr. Williams approached her, and committed a sexual assault.

[192] Evil can include emotional pain. I am sure that this traumatic experience to the victim of the index offence will linger for many years, if not her lifetime.

[193] Mr. Williams himself acknowledged that he is impulsive.

[194] I have found that the Crown has established that Mr. Williams ought to be designated a Dangerous Offender under Section 753(1)(b).

[195] It is not therefore necessary to deal with the arguments about the applicability, or lack thereof, of both subsections of Section 753(1)(a)

Part 2 Penalty Phase

[196] The Court has already referred to the three options in the Criminal Code in s. 753(4).

[197] Section 753 (4.1) states that the Court shall impose an indeterminate sentence unless the Court is satisfied by the evidence heard during the application that there is a reasonable expectation that a lesser measure outlined in s. 753(4)(b) or (c) will adequately protect the public against the commission by the offender of a serious personal injury offence.

[198] Ms. Rochman submitted, and the Crown admitted, that Boutilier clarifies that the section does not create a presumption in favour of an indeterminate sentence, nor does it impose a burden on the offender to adduce evidence to demonstrate that there is a “reasonable expectation” that a lesser measure will adequately protect the public.

[199] Counsel’s well-crafted submission bears repeating:

If there is a finding that a person is a Dangerous Offender, the Court then considers penalty. At that point, there is no presumption that the sentence be indeterminant. In R. v. Boutilier (paras. 71, 76-77), the Court held:

Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances. Seen in this way, s. 753(4.1) will not result in grossly disproportionate sentences or in the imposition of a detention of indeterminate duration in cases where such a sentence is unfit.

Furthermore, as I have already concluded, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence — the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the evidence presented during the hearing in order to decide the fittest sentence for the offender. Indeed, under s. 753(4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.

Imposing indeterminate detention where the sentencing judge is not satisfied that there is a “reasonable expectation” that a lesser sentence “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence” is a rational means to achieve the public protection objective of Part XXIV of the Criminal Code insofar as such detention is limited to habitual criminals who pose a tremendous risk to public safety. A rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention.

[200] As Ms. Nadler states, the section simply guides the exercise of discretion by the sentencing judge, who must determine a fit sentence based on all the evidence adduced at the hearing[^19].

[201] At the time of the Index Offence, the offender was attending Dr. Gojer’s Manasa Clinic for sexual offenders. The program ran from August 2, 2018 to November 15, 2018. He committed the sexual assault exactly one month after he commenced the program.

[202] He told his probation officer that the program was “ridiculous, had no point and was boring”.

[203] Dr. Pearce noted that Mr. Williams was deceitful and manipulative with treatment providers. Notably he told Dr. Gojer, and told his brother, that he cannot read; and told the doctor he cannot write. Obviously, he can do both as he demonstrated throughout the trial and sentence hearing.

[204] Records illustrate his history of deceit to those offering treatment. Dr. Pearce noted that he has made attempts to deceive and manipulate his probation officer in the past and admitted to lying about a “substance abuse disorder” in order to serve his last jail sentence at OCI (Ontario Correctional Institute).

[205] The Crown submits that considering his pattern of deceit and manipulation, his purported commitment to any kind of treatment needs to be carefully scrutinized.

[206] Ms. Rochman submits that Mr. Williams has finally realized that he needs help and will comply with all programs available to him while serving his sentence and will comply with medication to reduce his sex drive upon release and will comply with a LTSO.

[207] Dr. Pearce was unable to assess whether his claim of commitment is sincere or not, on the materials he has reviewed. Notably, the offender’s letter to the court was submitted months after the psychiatrist testified, which was not seen by him. The Court discusses this additional information provided pursuant to s. 726 of the Criminal Code.

Supervision

[208] Mr. Williams has had the benefit of community supervision approximately twelve times over the years. His last probation order was to be for three years, the maximum period. He committed the index offence after about four months in of that order.

[209] He has numerous charges of failure to comply with probation conditions. Sometimes he would report, and other times he was “on the lam”, refusing to report and being untruthful with his probation officers.

[210] He maintained he did not need their help, and he did not have a problem.

Reasonable Expectation

[211] “Reasonable Expectation” has been held to mean “a confident belief for good and sufficient reason based upon the quality and cogency of the evidence heard on the application”.

[212] Ms. Nadler summarized the cases to the effect that this standard connotes a belief that something will happen versus something may happen. Reasonable expectation has been held to be a higher standard than reasonable possibility.[^20]

[213] I agree with the Crown when she suggests that evidence of a reasonable expectation is more than an expression of hope and must be based on evidence that a specific offender could be treated meaningfully and within a definite period of time.

[214] Ms. Rochman’s argument is essentially that this sentence should be reserved for very few offenders. To this end, she states:

With respect to managing a person in the community, the Ontario Court of Appeal in R. v. K. P., 2020 ONCA 534, paras. 13-14 has affirmed that a Court has to consider what means are actually available to control risk:

When determining the appropriate sentence to manage the risk to public safety, the sentencing judge may consider treatability: Boutilier, at para. 45. In assessing the manageability and treatability of the offender’s behaviour, the sentencing judge may consider evidence, such as: treatment avoidance, failure to respond to treatment, breaches of court orders, lack of motivation, continued involvement in high-risk conduct, serious personality disorder, and elevated likelihood of violent recidivism: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 64-65, leave to appeal refused, [2017] S.C.C.A. No. 274.

Where the management of risk requires more tools than are available under the parole authorities, an indeterminate sentence is reasonable. Risk management evidence must demonstrate a prospect of effective supervision, within the means and capacity of the parole authorities: R. v. Severight, 2014 ABCA 25, 566 A.R. 344, at paras. 40-43, leave to appeal refused, [2014] S.C.C.A. No. 184. As this court has explained, “‘real world’ resourcing limitations cannot be ignored or minimized where to do so would endanger public safety”: R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at para. 70, leave to appeal refused, [2008] S.C.C.A. No. 39.

[215] Counsel also indicates that in R. v. Spillman, the Ontario Court of Appeal found that when considering the custodial part of a sentence when a Dangerous Offender designation has been made, a sentencing Court properly considers whether a fixed term sentence “outside of the normal range” can be imposed to avoid an indeterminant sentence. Justice Watt stated:

Implicit if not explicit in the appellant’s complaint is that to take cognizance of the time needed for rehabilitative treatment or programs in a penitentiary in fixing the length of the custodial component of composite sentence results in the unwarranted extension of the appropriate range of sentence, and does not accord the fundamental principle of the proportionality its proper due.

As it seems to me, the argument assumes that the range of sentence appropriate for the predicate offence outside the dangerous offender regime provides the benchmark against which to measure sentences imposed under ss. 753(4)(b) or (c) within Part XXIV. But, as we have already seen, these are not comparable regimes. The submission fails to give effect to the indelible fact that the offender has been designated a dangerous offender and to the enhanced sentencing objective of protection of the public which is the focus of Part XXIV. Rather than comparing the sentence imposed to the “appropriate” sentence outside the dangerous offender context, the relevant question should be whether the hearing judge has reasonably “assess[ed] the relative importance of the sentencing objectives in [a] particular case”: Boutilier, at para. 55.

Second, accounting for a dangerous offender’s access to rehabilitative programs within the federal correctional system is consistent with the primary purpose of the dangerous offender sentencing provisions in Part XXIV: protection of the public. Facilitating access to treatment or other rehabilitative programs factors into the hearing judges’ decision about whether there is a reasonable expectation that a sentence other than detention in a penitentiary for an indeterminate period will adequately protect society from the risk of future recidivism.

This point is well made in R. v. Hopley, 2015 BCCA 499, 380 B.C.A.C. 160. The appellant was found to be a long-term offender. The hearing judge imposed a composite sentence under s. 753.1(3). Hopley appealed his sentence on the basis that he had not been given adequate credit for the time he had spent in predisposition custody. Central to the decision of the hearing judge was the need for Hopley to have access to rehabilitative programs in the penitentiary before the long-term supervision order began. The British Columbia Court of Appeal dismissed the appeal and made the following observations:

Sentences under Part XXIV of the Code are structurally different and have a different focus than those under Part XXIII of the Code. Sentences under Part XXIII draw upon the principles and purposes of sentencing in ss. 718, 718.1 and 718.2 to determine the scope of the “circumstances” in s. 719(3.1) that would justify enhanced credit. The principles and objectives of sentencing set out in ss. 718, 718.1 and 718.2 must also be considered in determining if a long-term offender should be imposed (see R. v. Johnson, 2003 SCC 46 at para. 28 for a discussion in the dangerous offender context), however, the principal focus of sentences under Part XXIV is on the protection of the public. With respect to a long-term offender order, the protection of the public is sought to be achieved by reducing the offender’s risk through programming and treatment while serving the determinate sentence in order to facilitate the offender’s supervised reintegration into the community. [Emphasis added.]…

The ultimate sentence, including the effective sentence and its adjustment for pre- sentence custody at the lower rate, carefully balanced all the relevant considerations of Mr. Hopley’s antecedents, his ongoing sentencing needs, and the paramount objective of the protection of the public from Mr. Hopley’s high risk to reoffend against children. The judge found that it was unlikely Mr. Hopley’s substantial risk to reoffend would be sufficiently reduced to a level that could be managed in the community without a lengthy period of incarceration, during which is was hoped that he would successfully complete the high intensity Sex Offender Program or alternatively have his risk to reoffend reduced through the aging process.

The overarching objective of the protection of the public, through the formulation of a determinate period of imprisonment adjusted for credit for pre-sentence custody at the lower rate in order to facilitate the offender’s supervised reintegration into the community, distinguishes this case from [R. v. Gazeley, 2006 BCCA 240, 210 C.C.C. (3d) 218]. In this case, the judge’s discretionary application of the lower credit rate for the qualitative rationale, and impliedly for the quantitative rationale, was justified through a principled analysis that focused on the objective of the public’s protection.

Third, imposition of a fixed-term custodial sentence that accounts for access to rehabilitative programs in a penitentiary at the front end of a composite sentence under s. 753(4)(b) may also allow a hearing judge to avoid imposition of an unnecessary sentence of indeterminate detention with its profoundly devastating impact on the dangerous offender. (emphasis added)

R. v. Spillman 2018 ONCA 551 at paras. 41-45

R. v. Brian Morgan-Baylis, 2018 ONSC 5815 at paras. 144-154

[216] The eloquent submissions of Ms. Rochman on this point are unfortunately speculative for this offender, given his past thumbing at conditions imposed by the courts combined with his deceitful manipulation of treatment providers, lack of genuine empathy, and his distorted anti-social world view.

[217] The Crown also submits that the defence arguments rest on multiple contingencies, and therefore have a greater probability of failure should any one of the treatment cards fall in the domino-effect. Without medication compliance, the public would not be safe. Dr. Pearce confirms that. Even if there was substantial compliance, he could possibly defeat the efficacy of the medication.

Mitigation of Risk/Aging

[218] The defence relies on risk mitigation by “burn out” or “aging out”. Dr. Pearce agrees that one scenario allows some offenders to age out of lack of control over sexual impulses. I have reviewed all the hypotheticals put to the doctor in cross-examination and find that the optimism counsel relies for these suggestions is a gossamer veil, and not realistically founded on the evidence for this particular offender.

[219] The general theory is not in itself sufficient to rely on to suggest a particular offender’s risk has been mitigated. Cases[^21] caution against assuming an offender’s risk will dissipate with age based solely on statistical evidence about the general population:

Such a conclusion should only be drawn on the basis of testimony from experts who have examined the circumstances of the particular offender. Evidence of a tendency in the general population, without more, is insufficient to determine that an offender’s risk of reoffending will decline with age.

[220] The Nicholas case illustrates that as one ages, there is no way of accurately estimating the extent by which re-offence will be reduced “at any given point along the continuum” (at para. 170).

[221] Of course, aging and risk related decline in risk can be considered by the Parole Board: see R. v. Grayer, 2007 ONCA 13, [2007] OJ No. 123 (CA), at para. 74.

[222] A mere hope that treatment will be successful or some optimism that an offender could be rehabilitated is not a sufficient basis to impose a determinate sentence. Until an offender gets control of his problem, he must remain segregated from society.[^22]

[223] His anti-social personality disorder complicates his willingness to comply with anything offered to him. The decades-long medication regime requires strict compliance.

[224] Lest Mr. Williams feel that compliance is futile, it is to be remembered that even an indeterminate sentence is not an unending or eternal sentence. Rather, if he manages to reduce his risk enough by his efforts, a supervised release in the future is a possibility. In the evidence of the PBC, fifty-six of indeterminate sentenced Dangerous Offenders were on conditional release. He would also have a legislated review for full parole seven years from the date of arrest, which is only is about four and a half years from now. He can also apply for parole every two years thereafter.

Medication

[225] Dr. Pearce mentions some of the limitations of anti-libidinal medication. I have already mentioned some of them.

[226] This is not a case where the offender has already started taking anti-androgen medication while awaiting sentencing, as in the decision of R. v. K.O., [2013] O.J. No. 1399 (S.C.J.). In that case, the offender’s history of lying, manipulation and self-deception, combined with a personality disorder, alcohol addiction and non-compliance with Court orders, gave the Court no confidence he would continue with it.[^23] I suggest that Mr. Williams bears most of these same characteristics.

Section 726 Statement

[227] The Court asked Mr. Williams if he had anything to say before determining the sentence, pursuant to s. 726 of the Criminal Code of Canada. He filed a prepared statement or letter, and read it into the record:

I know why this court may be skeptical with the things I am going to say. I, too, understand that I have walked down this pathway before. I have been found at times to be manipulative, ingenuine [sic], or unresponsive towards one or many conditions imposed upon me by either the courts and through probation. And it wasn’t as though I planned to disobey or simply to wash them aside, I truly believe I should have followed those orders placed upon me; however, at times, became toughened. I perceived these boundaries to be further punishments. And secondly, I failed to address issues that manifested themselves. This, and many other episodes alike, were part of my cognitive thinking errors, so I’ve learned. Going forward, to the present, and while residing within the confinements of segregation, have allowed me to challenge myself. Facing this court with such a scary predicament has truly placed me in listening mode. I asked myself what’s the matter with me. I have reached deep inside. I have learned that I am - I am ill. I have some underlying issues. I have since taken the initiative towards cognitive behavioural therapy. Also, many life skills programming while in custody and have since completed many of the available programs in the institution that I attend. I am very appreciative that my brother is supportive of me. I hadn’t expected to this extent and I do love him. I also appreciate the fact that C.M., the mother of our lovely children, that I too have her support and their support. I look forward to the ongoing support of these relationships I’ve developed. I also enjoy working and find that these are strong and encouraging towards myself – for myself. I would like to further pursue these positives. I am definitely, definitely, afraid. I haven’t been faced with such seriousness. I find this to be a serious – to be serious as being faced with terminal cancer and the doctors say, want more cigarettes? No, cease to exist. I’m taken this very seriously. I assure that I am truly troubled and shaken. While I’m at LTSO, I will continually obliged to take Lupron or any medication prescribed while, too, at the same time, agree to actively participate in all treatment plans placed upon me. Also, to accurately self-report. I aim for myself a zero recidivism in any way. I fully understand the side effects of the anti-androgen meds and I am willing to place the risk before me. At the same time, I too understand the side effects of not taking the meds, which is return to the penitentiary which scares - which scares the heck out of me. I begin my offence cycle and have drafted so that I can - well, I can review on the ready, learn about my triggers and/or drivers behind those which I’ve - I’m finding these values are dynamic, depending on scenario in life. I understand that any breach will and could place me upon me 10 years back in the penitentiary. I, too, want to give back or kind of make an attempt to pay back. I have thought about it vigorously day and night and it’s not that I can’t pay back, as much as it should – as much as it is of how or can’t be properly accepted. I am not too sure that it can. So I have decided that I can attempt and begin by remedying myself and fixing me, if I get treatment for myself and, in turn, I am paying back in a sense. I have never experienced any of the aforementioned experiences about myself. I take this and these matters very seriously. I have created myself to understanding my thoughts and/or thinking errors and work with myself towards challenging these cognitive disorders. Again, I can understand the court’s skepticism about the sincerity of my words. To this end, I can offer no further plead [sic] or excuse regarding my past.

[228] Mr. Williams focused on what he perceived was the court’s skepticism that he would be amenable to treatment and rehabilitation. Of course, his criminal past, including telling other courts this very same sentiment of contrition and never repeating this antisocial lifestyle again, particularly to my colleague Justice Blacklock a short time before recommitting a further similar sexual offence, whilst undergoing treatment and on probation, is a logical starting point:

“I have been incarcerated @ MHCC since September 25, 2017. I was placed in “protective custody” because of the nature of my charges. Since that time I have experienced many hardships. Such as being both verbally/physically abused, by both guards and inmates as well as ridiculed.

I have been locked down much reaching 0:44% percentile 141/316 days spent locked-down. And to this day March 10, 2017, 207/533 now 38.8%. I know some say that: “the courts don’t care, but they do and so do I.

I have for 18 months, been working on me. With the aid of the Chaplain, family, and through reflection. I continually relive that day in my mind. I proceed to change my behavior. This almost always begins w/ me not engaging in my drug use. So I’ve learned that, rather than trying to change the outcome, I instead remedy the beginning, and that was to not use. I currently employ this method continually day-to-day here in jail, and have such avoided the many troubles here. Because of this I am able to again trust my instincts. My, me.

This has been the absolute lengthiest stay in jail and a good eye opener. I am genuinely afraid. I understand the depth of my abuse towards P[…], D[…], and N[…]. I am truly sorry. I empathize deeply with them. To better understand this I play this/these very facts into my own life and conclude that I as a father and human would not appreciate any such behavior from anyone. I’m supposed to be a protector to my very own family.

This, too I understand the role of the Police and their need for the immediate apprehension of said person (me).

I, too understand the fright of P[…] w/ an intruder in the safety and security of her own home. So even though my intentions were not what prevailed, I was unlawfully there.

I recognize and understand a pattern w/ my drug abuse and victimizing persons estranged to me by acting on impulses.

I have many plan and stratagem in place to help make certain that I am able to differentiate between healthy and unhealthy choices, and not acting out impulsive behavior. I have enquired into this, and have many options. Many of these plans/programs will continue to help whilst out in the community.

I recognize the role of the courts and that is to try to remove many wrongdoings from society.

I am and will continue to do what I need to not, not only just re-offend, but to not choose or follow strange ideas. I want better for me, and I deserve better for me.

I again deeply and sincerely appologize [sic] to: P[…], D[…], N[…] and their familys [sic], for having been victimized by my actions.

I would like them to know that I plan to get better and well.

I will not ever again allow any such unhealthiness to be displayed by me no more. I also do pray that they not allow this to carve their lives.

I lastly want them to know that I am completely different and this person can and has changed. Since changing is a conscient [sic] effort.

I am asking for the court to not punish, but to rather aid in my recovery.

I am truly afraid of how I acted that day and also to the fact that if I continue on this path, I not only hurt others, but myself, not to mention the severity of sentencing. These two facts have deterred me from ever committing crimes in my future. Even the thought is frightening.

So there’s really only 2 ways to proceed for me…and one is to either get bitter, or to get better. I undoubtedly choose the ladder [sic].

I fully recognize the severity of reoffending, and cannot and will not allow this to continually be my character [unintelligible]. I feel that this has been enough time for me to reflect, correct and participate actively in the continued recovery of a sickened mind-state.

I have immediately abandoned any pro-criminal thoughts, actions, and lifestyle.

I wish and want a better quality of life and I can now realize the importance, and how to achieve it.

I plan, upon my release to be an active member in society, and supporting myself, my family and those whom depend on me, remain drug and addiction free. Work. Become role model especially to my children whom look up to me.

I need to continually remind myself that I too am someone’s hero. So I will need to be present in their lives.”

[229] This letter he wrote to be considered on sentence in 2017 should be juxtaposed with the statements he made to the psychiatrist about these offences. During his plea proceedings in 2017, he specifically allocuted to facts which acknowledged the sexual assault he committed was on a stranger after breaking into her home. Contrast these admitted facts with what he now tells the psychiatrist about this offence, that is quite startling. He tells Dr. Pearce that he knew P.M. and that they had been having a consensual affair. He called her “promiscuous man candy”. He claimed he had gone to her house for fellatio and to do drugs together. He elaborated that she only complained because she had to explain his presence to her boyfriend, who showed up unexpectedly. Not only does he shift the blame to his victim, a stranger, he completely ignores the fact that he was masturbating outside a nearby townhouse moments earlier. He claimed that came after that act because he was already aroused. Either he has convinced himself that an “alternate set of facts” serves to excuse his behaviour or minimize his culpability; or he is fabricating this blame shift to the victim in an attempt to distance himself from the gravity of that prior offence, likely to attempt to receive a more favourable risk assessment.

[230] It is utterly inconsistent with his purported empathy written in that letter, and consistent with other examples of Mr. Williams’ manipulation, and is a red flag.

[231] I have also reviewed the things he has told other courts prior to the passage of sentence. He has frequently indicated he was trying to get himself help.[^24] He has been on many probation orders with rehabilitative conditions, which he has breached.

[232] As long ago as 2012, in response his pleas on indecent act and assault, he stated, “this random fluke thing can’t happen again because it was shameful and it’s hurtful, it’s scary, it’s traumatizing. I understand that. I could never fully understand, but I understand from my part and I’m terribly sorry.” The court responded that “in August of last year (2011) for the same offence you received probation. And I’m sure whoever imposed that was thinking along the lines of…what you just said, and also what I’m thinking. Surely that probation order had something to do with getting help with conduct like this, and yet, if you did get it, it didn’t work.”

[233] Mr. Williams did not testify at either the trial or sentence hearing, as is his right. This is not in aggravation of any sentence imposed. I am mindful that an offender may choose not to speak of the facts of the subject offence to preserve his appellate position, but it is fair to say that these words he said prior to this sentence decision are untested by cross-examination, and at the very minimum, show no insight into his offences, nor any empathy with his victims.

[234] Many parts of his statement seem to repeat evidence heard in this matter, rather than reflect personal depth. The language he uses is a compilation of legalese and terminology used at this hearing; and all this comes from an offender who advised Dr. Gojer he could not read or write.

[235] It also contains some factual manipulations. I do not have a Pre-Sentence Report,[^25] but do have many records filed, as well as the report of Dr. Pearce. These records show that Mr. Williams’ brother has only recently arrived as a possible support, and he did attend part of two of the days of this hearing, but did not attend the trial, and is in the dark about much of his brother’s offences. The offender also has lied to his brother[^26].

[236] Ms. MC is the victim of many of his past offences, and the CAS file demonstrates her past instability and fear of Mr. Williams. He is not correct that she is a support to him in the community. She is the mother of his children who wants no contact with him.

[237] His correctional records do not show Mr. Williams successful completion of the programmes he refers to.

[238] Mr. Williams expressly consents to taking medication to reduce his sexual drive, which will help him to lessen sexual desire. That is a good thing but does not eliminate his desire to commit risk-taking crimes, such as sneaking around at night and taking advantage of homeowners’ insecure doors or windows, entering them.

[239] Nor does it reduce, necessarily, the crimes he has committed for shock value, involving narcissistic exhibitionism.

[240] The Court truly hopes Mr. Williams, at long last, recognizes that he needs help and will cooperate with the treatment he clearly requires to get his life on a prosocial track. His counsel, Ms. Rochman, took the position he needs time to participate in the beneficial programmes to help him in the penitentiary, where reformatory sentences have failed in the past.

[241] If he does well with those programmes, it may assist his PBC hearing whether on a determinate or indeterminate sentence.

Conclusions

[242] This has been a difficult trial and sentencing. I have specifically reviewed all the evidence at this hearing and all the excellent submissions of both counsel. If I have not specifically mentioned some of those submissions, it is for economy of reasons, and because the Court’s analysis has led me to conclude that one section of the legislation has been made out beyond a reasonable doubt by the Crown, obviating the necessity to deal with alternate arguments .

Sexual Assault

[243] The Crown has proven that Clayton Williams should be designated a Dangerous Offender. The offence meets the definition of a serious personal injury offence, as defined by Section 752 of the Criminal Code; and by his conduct in any sexual matter, including the index offence for which he was convicted, he has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses.

[244] The Court is satisfied that the Crown has proven that an indeterminate sentence is necessary in the circumstances of this offence and this offender.

[245] The offender has been given an opportunity to reform over the last decade or more. He has been subject to multiple terms of imprisonment, and community supervision. He has been offered programs, and just a few months prior to the commission of the index offence was under the supervision of a probation officer specifically trained to deal with sexual offenders, and the programming available to them.

[246] He was in a program for sexual offenders when he sexually assaulted a thirteen-year-old girl in the index offence. He gave little effort to achieving anything in that program, notwithstanding his remarks to a court only one year before that he was a changed man, dedicated to changing himself, and fully aware of the great harm his conduct caused to society.

[247] As the Crown submits, Mr. Williams possesses some significant paraphilias, exhibitionism and voyeurism, as well as polysubstance abuse disorder and anti-social personality disorder, which make the success of psychological treatment “more challenging.”

[248] Unfortunately, it is unclear as to whether he is a pedophile. Dr. Pearce was unable to determine one way or the other. He repeated acts of narcissism and psychological violence involving a child. He again caused great psychological harm to innocents. He has no empathy for his victim, only reflecting on how scared he is of the consequences of his acts.

[249] Although he now says he will take Lupron or other sex drive reducing medication prescribed by a psychiatrist, society can have very little faith that he will comply with any programming in his place of incarceration, or when he is ultimately released in the community. Mr. Williams’ criminal history is replete with breaches.

[250] The PBC will be able to impose conditions with teeth, that will assist the rehabilitation of Mr. Williams, while fully protecting society. The PBC will undoubtedly take into consideration that sexual drive is not the only factor that excites the offender. A very clear picture emerges of a criminal who “gets his kicks” from the very risk of the behaviour as presented here. The offender enters occupied residential homes which he knows or ought to know contain children.

[251] His trespassing by night incidentally presents the opportunity to sexually offend. Psychological harm is also caused by his indecent exposures to children and vulnerable persons. He dangerously acts out his fantasies while prowling by night, at least in the predicate and index offences.

[252] Having listened to all the evidence and submissions on this point, the Court finds that the only sentence appropriate for Mr. Williams in these circumstances is an indeterminate one.

[253] If he is sincere and wants help, it is there for him. If he genuinely wants to be rehabilitated, it will go a long way toward a favourable result from the psychiatric and psychological treatment, and thereby earn consideration from the Parole Board of Canada.

[254] It will allow for his gradual and safe reintegration to the community.

[255] Mr. Williams will be eligible to apply for parole seven years after his arrest date of November 16, 2018, less than five years from the date of this sentence. He may also apply every two years thereafter.

[256] I agree with Ms. Rochman and Ms. Nadler, that a Long Term Supervision Order is necessary, and one would be imposed if the alternative determinate sentence was imposed. All the statutory criteria are met, considering all the circumstances, including the facts of the offence and the predicate offences, and the related criminal history. I would impose that order as requested, a Long Term Supervision Order (LTSO) pursuant to Section 753.2(1) of the Criminal Code for a period of ten years.

[257] Both counsel made submissions on the term of custody to be imposed on these charges in addition to any pre-trial custody. For that reason, I find it is not necessary to specifically focus on any calculation of Summers, Duncan, and other credit to that time. It is not excluded from any consideration of totality here.

[258] Any pre-trial custody will be considered by the Parole Board of Canada when considering whether he should be granted parole (and if so, under what conditions), who will calculate the time until eligibility for parole from the date of arrest/when he is taken into custody, rather than the date of sentence: see Section 761(1) of the Criminal Code.

[259] Mr. Williams will likely have enhanced pretrial custody since part of the time he was serving the remnant of his 2017 sentence, as he committed further offences while on that remaining portion of his custodial term imposed by Justice Blacklock. CSC will make that determination.

Break and Enter and Commit

[260] The gravity of the offence of break and enter is high here. The offender broke into two occupied houses on the night of the index offence. As previously stated, each of the homes had indications that children were likely present at the time. He chose the early morning hours in the middle of the Labour Day weekend.

[261] The sentence imposed on this count, count 5 on the information, is only for the first break-in that night. In these circumstances, he spent up to one and one-half hours at the victim’s home in the first break-in.[^27] Aside from stealing electronics, it is unknown as to what else he did, but he did climb the stairs to the bedroom level and had his hands on the wall at the top of the stairs. All six children were asleep, as was their father.

[262] There is no articulated reason founded on the evidence as to why he left that home and moved on. The mother was awake but quietly was folding laundry around that time. She was unaware of his presence. It seems he left in rather a hurry, since he escaped by putting an outdoor chair against the back fence and went over the fence, rather than by the front street side.

[263] The offender also returned to the same residence in mid-October, or its immediate vicinity, when he parked on that small street at night, and got out of his car, walking around for more than one-half hour. I find it a reasonable inference that he was still interested in that house he had previously entered surreptitiously. This involves planning and premeditation.

[264] On the date of his arrest, over two months later, the offender was using the family’s electronics in his bedroom.

[265] Mr. Williams’ record reflects that increasing sentences in the past did nothing to dissuade him from recommitting this type of offence. At the time of the commission of the offence, he was on probation and parole. He was employed at a day job, which left him opportunity to commit this offence.

[266] The offender views his property crimes as “supplemental income”. This also highlights his lack of empathy for those whose sense of security is violated.

[267] The amount of stolen property in his possession in November leads to a reasonable conclusion that break-ins were not isolated occurrences.

[268] I am only sentencing him on this break-in. There are no mitigating circumstances here, just a glimmer of hope that he will finally get the message and find supports in the community to help him to not continue to commit crimes.

[269] Aggravating circumstances include the seriousness of the offence; breaking into an occupied dwelling house; and his criminal record.

[270] The last sentence for a cognate offence was the equivalent of four years, but that also included a sexual offence.

[271] Break and Enter into a Dwelling House is liable to imprisonment for life. It is a statutorily aggravating circumstance that the offence had significant victim impact.

[272] It is aggravating that the home was occupied at that time, by eight persons. There was a realistic likelihood of potential confrontation. Fortunately for Mr. Williams, that did not happen. There was potential for Mr. Williams to give those children nightmares and lasting trauma.

[273] The sense of violation and lack of security is well stated by the victim in her impact statement. Mr. Williams took more from this family than electronics. He took away their peace of mind, pride of ownership and sense of security in their own home. He ruined a planned family gathering the next day for a birthday party. They will never be the same.

[274] Only a penitentiary sentence is appropriate to reflect the principles of sentencing in all these circumstances, given his escalating record, and apparent desire to commit high-risk offences. He is sentenced to three years, in addition to his pre-trial custody on count five.

Breach of SOIRA Order

[275] Mr. Williams’ breach of his lifetime SOIRA order imposed by Blacklock J. in 2017 is serious.

[276] Section 490.031(1) of the Criminal Code provides that for failure to comply with a SOIRA order, on a conviction on indictment, an offender is liable to a fine of not more than $10,000 or to a term of imprisonment for a term of not more than two years, or to both.

[277] As the Ontario Court of Appeal in R. v. Debidin (2008), 2008 ONCA 868, 94 O.R. 3d 421, at para. 35 (C.A.) stated:

The purpose of the SOIRA is to help police investigate sexual offences by making available to them information provided by convicted sexual offenders required to register under the Act. This information may be of investigative assistance in the inculpation or elimination of various suspects.

[278] It is aggravating that the breach was blatant, and deliberately contrived. Mr. Williams took steps to maintain the lie over many months for his own purposes.

[279] Mr. Williams told Dr. Pearce, the psychiatrist, that he felt the order was an additional punishment, and he refused to comply.

[280] Considering the totality of his pattern of breaching court orders, and in particular that he failed to report his address and committed a further sexual assault while on this order to report within a few months of release from his custodial term, and continued this failure throughout his time at liberty, I am of the view that a denunciatory and exemplary sentence is required.

[281] He is sentenced on count four to eighteen (18) months in prison.

Ancillary Orders

[282] On the Section 271 charge (count 2), pursuant to Section 109 of the Criminal Code, you are:

(a) prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance effective today and for life; and

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[283] A DNA order is made further to Section 487.051(1) of the Criminal Code on both the break and enter, and the sexual assault charges, as primary designated offences.

[284] Pursuant to section 743.21(1) of the Criminal Code you are prohibited from communicating directly or indirectly with any member of the A., H. or V. D. family[^28] during the custodial period of the sentence.

[285] On the Sexual Assault charge, a SOIRA order is imposed for life, as mandated by Section 490.012(1) and Section 490.013(4) of the Criminal Code.

[286] An order pursuant to Section 760 of the Criminal Code is made that a copy of all reports and testimony given by the psychiatrists, psychologists, social workers and other experts during the hearing be forwarded to Correctional Service of Canada.

[287] In addition, under Section 760, the Court orders that a transcript of the reasons for the finding and sentence, these written reasons, and the written reasons for the decision of the trial of this offender be forwarded to Correctional Service of Canada.

[288] These reasons are to be attached to the warrant of committal to assist classification at the designated penitentiary.

Released: March 10, 2021

Signed: Justice N.S. Kastner

[^1]: Mr. Williams was found guilty of Break and Enter with Intent; Break and Enter and did commit Sexual Assault; Sexual Assault; Sexual Interference; Possession of Stolen Property; Theft Under; and Failing to Comply with the provisions of the Sexual Offender Information Registration Act, by failing to report his change of address.

[^2]: Defence counsel suggested three to five years in addition to his more than two years pre-trial custody.

[^3]: S. 753(1)(b) speaks of the offender’s conduct in any sexual matter has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[^4]: The Crown also suggested two other routes to a designation, s. 753(1)(a)(i) a pattern of repetitive behaviour showing a failure to restrain behaviour and likelihood of causing injury or severe psychological damage; and s. 753(1)(a)(ii) a pattern of persistent aggressive behaviour showing indifference.

[^5]: Mr. Williams was sentenced for the 2015 offences in April 2017.

[^6]: That time is pinpointed by a police occurrence responding to loud parties at the corner nearest the second victim property.

[^7]: This was because Mr. Williams did not report his address to his probation officer, or under SOIRA conditions. He was living alone in a rented apartment.

[^8]: Approximately six weeks later.

[^9]: This 4 year term was made up of 2 years 6 months pretrial custody and 18 months additional jail. Mr. Williams served this sentence in the reformatory rather than a penitentiary.

[^10]: See the first predicate offence for details. He had been summonsed, and police were unable to locate him until he was arrested for the Mississauga offences.

[^11]: Plea entered on May 17, 2011.

[^12]: Details of these offences are in the synopses and transcripts in Volume 1 of the Criminal History.

[^13]: See Crown Submissions para.6.

[^14]: These actuarial tools included the Static 99R test; SORAG test(Sex Offender Risk Appraisal Guide); and DVRAG test(Violence Risk Appraisal Guide).

[^15]: Report of Dr. Pearce, forensic psychiatrist, dated May 18, 2020, at pages 54 to 55.

[^16]: See the CSC evidence of the details of the high intensity programming for sex offenders in the integrated correctional program model. It requires a ten session primer, followed by 104 group sessions, each 2 to 2.5 hours in length, with a limited enrollment. Lastly, he would receive six individual sessions.

[^17]: R v Boutilier, [2017] 2 SCR 936, 2017 SCC 64, [2017] 2 RCS 936, [2017] SCJ No 64, [2017] ACS no 64.

[^18]: R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143, at para. 32 (O.C.A.)

[^19]: Boutilier, at paras. 64 to 65.

[^20]: See for example R. v. Sawyer, [2015] ONCA 602 at para. 35; R. v. Osborne, 2014 MBCA 73, [2014] M. J. NO. 216 (C.A.), at paras. 72 to 75.

[^21]: R. v. Nicholas, 2010 ONSC 2929, [2010] O.J. No. 2364 (S.C.J.) ; and R. v. Farouk, [2015] O.J. No. 3674 (SCJ).

[^22]: See R. v. Higginbottom, 2001 CanLII 3989 (ON CA), [2001] O.J. No. 2742 (C.A.), at para. 26; R. v. D.V.B. 2010 ONCA 291, [2010] O.J. No. 1577 (C.A.), at para. 58.

[^23]: See also R. v. Sawyer, 2015 ONCA 602, at para. 43.

[^24]: February 26, 2004; September 30, 2008.

[^25]: Defence counsel specifically did not wish to have a Pre-Sentence Report.

[^26]: I note that his brother also offered himself as a support in the 2017 PSR. The offender did not benefit from that during his time at liberty from April to November 2018. He lived alone and spent his free time in a criminal lifestyle.

[^27]: He was either in the yard or in the house from about 1:08 a.m. until some time before 2:30 a.m. when he was seen lurking around the second home.

[^28]: The Order contains the unedited names.