ONTARIO COURT OF JUSTICE

CITATION: R. v. Williams, 2024 ONCJ 14

DATE: 2024 01 11

COURT FILE No.: Toronto 20-75000572

BETWEEN:

HIS MAJESTY THE KING

— AND —

DONOVAN WILLIAMS

Dangerous Offender Application

Before Justice Brock Jones

Heard on October 31 and November 16, 2022

September 25, October 16, 26, November 29, and December 18, 2023

Reasons for Judgment released on January 11, 2024

C. Glaister............................................................................................. counsel for the Crown

P. Bacchus.......................................................................................... counsel for D. Williams

Jones J.:

I. Introduction

[1] Donovan Williams was found guilty of assault with a weapon by Bovard J. on August 6, 2021. The Crown made an application for a dangerous offender / long-term offender assessment of Mr. Williams pursuant to Criminal Code section 752.1. Bovard J. granted that application on January 26, 2022. Dr. Brad Booth completed the assessment report.

[2] On July 14, 2022, Bovard J retired. The sentencing hearing for Mr. Williams was transferred to this court by Criminal Code section 669.2(2) and on the consent of both parties. As Bovard J. made an adjudication in the matter by finding Mr. Williams guilty following a trial, the sentencing proceeding could be completed by a new judge: see R. v. Roper, 2019 BCCA 68, at paras. 24-29.

[3] This is my decision on the Crown’s application to have Mr. Williams designated a dangerous offender and be sentenced to an indeterminate period of incarceration.

II. The Index Offence – Assault With A Weapon (Criminal Code section 267(a))

[4] The following findings of fact are contained in Bovard J.’s judgment on the trial.

[5] On January 31, 2020, Mr. Williams and the complainant were residing at Seaton House in downtown Toronto. This is a shelter for homeless men. They were ejected by staff following an argument.

[6] Around 4:00 a.m. they fought in the courtyard of the shelter. The complainant entered the courtyard, went to a fence, and stood there. Mr. Williams, who was already present, kept his eye on him from the moment he entered.

[7] An employee of the shelter, Mr. Morgan, was working at the time of the incident. He reviewed video surveillance footage and confirmed that Mr. Williams put his arm around the complainant in a chokehold. A “serious fight” occurred. The complainant punched Mr. Williams several times and appeared to have won the fight. However, he ran into Mr. Morgan’s office and said, “He cut me, he cut me.”

[8] The complainant was holding a knife. He put it down and Mr. Morgan took it. Mr. Morgan noticed that while the complainant’s neck was not cut, above his shirt collar he saw a red mark from the left to the right. It looked as if something had grazed or been pulled across his neck.

[9] The knife was a switchblade with a black handle and a jagged silver blade. A photograph of it was made an exhibit.

[10] Upon a review of the video surveillance evidence, Bovard J. made the following findings of fact at para. 14 of his decision:

1. There are various individuals coming and going and hanging around in the courtyard, including Mr. Williams.

2. Mr. Williams is pacing around the courtyard. Then the complainant enters the courtyard. He does not look at Mr. Williams or engage him in any way. He walks over to a barred fence and just hangs around in front of it. Mr. Williams keeps pacing around, and he looks at the complainant a few times while he is pacing. It is clear that he had his eye on him from the time that he entered the courtyard.

3. Mr. Williams mills around a bit more and then turns towards the complainant. When he is between eight to ten feet from the complainant, he points at him with his left hand while looking at him and continues walking toward him. As he gets closer, the complainant turns his head slightly towards him to look at him, but the rest of his body does not move. He keeps his hands by his side.

4. Mr. Williams keeps walking towards the complainant. When he is about four feet from him, the complainant turns his head and torso towards Mr. Williams and inclines his torso and head slightly towards Mr. Williams, but his arms stay by his side.

5. Mr. Williams keeps walking toward the complainant. When he is about two to three feet from him, he takes a swipe at his neck area with his right hand. The complainant raises his right arm to block Mr. Williams’s arm. They start to fight which results in the complainant punching and kicking Mr. Williams to the ground

6. When the Crown slowed down the video and magnified what Mr. Williams had in the hand with which he took a swipe at the complainant’s neck area it revealed the shiny, jagged blade of a knife. The blade reflected the ambient light and is easy to see.

7. After the fight while Mr. Williams was still lying on the ground, the complainant picked up something that was on the ground at Mr. Williams’s side and then went inside the shelter.

8. The knife that is seen in the video clip looks like what Mr. Morgan identified as the knife that the complainant brought into the shelter. A picture of it is an exhibit.

[11] Mr. Williams testified at his trial and denied holding a knife. He believed it might have been a crack pipe. Following an argument, he claimed the complainant assaulted him first and knocked him out. He woke up later at the police station and did not remember anything else that occurred.

[12] Bovard J. rejected Mr. Williams’ evidence and found as a fact the complainant did not assault Mr. Williams first. He also found as a fact that Mr. Williams was wielding a knife and not a crackpipe. In paragraph 48 of his decision, Bovard J. described exactly what he determined happened:

[48] Mr. Williams raised his right hand in an aggressive manner towards the complainant and took a swipe at the complainant’s neck with a knife. The complainant raised his right hand to block Mr. Williams’s right hand.

III. Personal Background of the Offender

[13] Mr. Williams was born in Jamaica on November 18, 1964. His parents separated when he was a child. He moved to Canada with his mother at the age of 7 and was initially raised by his maternal grandmother. He subsequently returned to his mother’s care in Ajax.

[14] He had a good relationship, in general, with both parents. However, Mr. Williams alleged that his mother was physically abusive to him. She would hit him with her hand as a form of discipline. He did not sustain permanent physical injuries and never required hospitalization. Her conduct was never reported to a children’s aid society. Due to her abuse, he moved in with his father when she realized she “couldn’t beat him up anymore.” After he turned 23, Mr. Williams lost contact with his mother.

[15] His father passed away in 2011.

[16] When asked why he did not maintain contact with his family over the years, Mr. Williams said he “never really delved into family.” He was an only child and felt lonely for a long time.

[17] Mr. Williams attended public school in Ontario. He was the only black student at his school. He felt singled out. At times, his schoolmates would steal things and blame him for their actions. He remembers he skipped grades 7 and 8. In high school, he was again the only black student and was teased about his skin and hair colour. His peers would commit theft and blame him because he was black. He was teased frequently. He did well academically, achieving mostly “B” grades, and was particularly talented at gymnastics and track and field. He did engage in one fight per year, which he associated with the racial conflict he experienced. He graduated in June 1983.

[18] Mr. Williams worked as a welder from 1984 to 1988. He was good at his job for a time, but his employment situation deteriorated following his arrest by a “racist police officer”. He stopped working and began using cocaine. He was never gainfully employed again. Instead, he has been supported by ODSP. He also sold drugs to support his habit. He has no work plans if he is released from custody.

[19] He moved out from his mother’s home at age 21 to live with Ms. Shannon Lane. Mr. Williams met Ms. Lane when he was 21 and she was 16. They started seeing each other in 1984. They were together for several years. The timeline of this relationship remains unclear. They had one son together, Daniel Williams (34). Ms. Lane ended the relationship shortly after Daniel’s birth, but Mr. Williams could not recall her reasons. In his discussions with Dr. Booth, he blamed his alcoholism, and drug use, as contributing to the breakdown of the relationship.

[20] Following their separation, Mr. Williams did not have contact with his son, other than seeing him at Ms. Lane’s house a couple of times. He planned for unsupervised visits with Daniel, but it “didn’t work” and he “gave up and dabbled in drugs.” In 2022 Daniel finally reached out to his father when he was incarcerated on the index offence.

[21] In 1997 Mr. Williams began another relationship with a female lawyer. They lived together in an apartment. She was a positive influence on him. Mr. Williams nevertheless continued to use drugs. They separated after four years together.

[22] He had one more significant relationship with a woman for approximately a year. She was also a drug user. They lived in Scarborough. They argued over money and called the police on one another. He has not had another live-in relationship.

[23] In 1990, he was convicted of his first criminal offences at the age of 26. In 1992, after he was released from prison, he began to gradually drift further into substance abuse. He has been regularly involved with the criminal justice system until the present day. When he is not incarcerated, he will reside at homeless shelters. He has resided at Seaton House, the St. Felix Hostel, and the Good Shepherds in Toronto. He normally resides at Seaton House and only attends at the other locations if he is barred from Seaton House.

IV. Substance Use History and Treatment

[24] Mr. Williams started drinking around age 23. He quickly became an alcoholic. He drank Jack Daniels “like water” on weekends. After two years, he stopped drinking significant amounts of alcohol. He still drinks periodically, and on the day of his arrest for the index offence, he admits he drank a “mickey”.

[25] He first tried cocaine in 1987. He started using cocaine on special occasions such as birthdays. He quickly escalated to using it on weekends and within a year, he was using it daily.

[26] He started using crack cocaine around 1992 when he moved to Toronto. He has been using crack regularly ever since. Mr. Williams has also tried crystal meth four or five times. The last time caused an anxiety attack, and he does not use it anymore.

[27] In the 1990s he attended Ozanam House in Toronto for a few months of residential substance treatment. Other people residing there were still using substances and he opted to quit the program.

[28] When out of custody, Mr. Williams has been receiving support from Sound Times, a community organization in Toronto, since 2005.

[29] Around 2014, he was charged with trafficking offences. He was sent to the Booth Centre in Ottawa for residential treatment. He had a relapse and was moved out of the program. He has also attended the St. Michael’s, Ossington and Adelaide detox centres. He attended some sessions of the Substance Abuse Program at the St. Lawrence Valley Correctional and Treatment Centre in Brockville in 2017 but dropped out. I will review this period of treatment later in these reasons.

[30] In 2014, Mr. Williams attended Seaton House following a period of incarceration for a drug treatment program. He was sent to a shelter in Scarborough and was able to stabilize himself for some time. He moved to community housing afterwards at a residence in an area with high crime and drug use. He was ultimately re-arrested.

[31] Mr. Williams attended residential alcohol and drug treatment at the Booth Centre – Anchorage program from January 17, 2014, to March 11, 2014. He was also in the Ottawa Mission program from October 2013 to March 20, 2014. He left the program due to a trial in Toronto.

[32] In 2016, he completed a substance use education session and one session of alcoholic anonymous. The John Howard Society confirmed that in September 2018 Mr. Williams completed the Drug and Alcohol Awareness Program at the Toronto South Detention Centre (“TSDC”). He intended to maintain contact with the John Howard Society upon his release from custody. He completed a supportive relationship and educational session in June 2020 and anger management education. These programs pre-date the index offence.

[33] Mr. Williams has completed core like skills sessions since being incarcerated at the TSDC on the index offence, including one directed at substance use.

[34] He informed Dr. Booth that he would stop using drugs in the future because he had no further desire for the lifestyle of drugs and women anymore.

V. Psychiatric History

[35] Mr. Williams suffered from depression following his break-up with Ms. Lane. He tried to escape from the stress with alcohol. He has had recurrent episodes of depression his entire life. He has also attempted suicide resulting in hospitalization. He has overdosed on both recreational and prescription drugs.

[36] He claimed to Dr. Booth he sometimes heard voices and could talk to people who did not exist. These voices began when he was in his early 40s. He denied any other delusional ideas, but also stated that he believes that satellites put laser beams on people and it’s “called MK Ultra.” He felt this phenomenon was affecting him in 2014 when he committed an aggravated assault. He “almost killed a friend.” He had only used $8 worth of crack cocaine and that “just doesn’t make sense.”

[37] He was treated at the St. Lawrence Valley Correctional and Treatment Centre while in custody. He also took sessions relating to substance abuse, anger management and problem-solving. The sessions did not help, and he relapsed.

[38] He sought out further treatment at St. Michael’s Hospital and CAMH but the longest period was only for a couple of days. He has tried medications including Seroquel, Effexor, and at least three others. These were first provided to him during his time in a penitentiary. He admitted that staying on medication would help with his mental health issues, but he tends to inevitably “veer” into street drugs.

VI. Dr. Booth’s Assessment and Report

[39] Dr. Booth met Mr. Williams in person on February 18, 2022. He was provided with a variety of additional collateral information by both the Crown and defence counsel. He was qualified as an expert in forensic psychiatry and testified about risk assessment and risk management for violent offenders.

[40] Dr. Booth found Mr. Williams to be open and forthcoming. Generally, he did not answer questions in a manner to minimize his problems. Dr. Booth asked Mr. Williams about the index offence and the rest of the offences on his criminal record.

[41] Dr. Booth administered several standardized tests. In summary, he found Mr. Williams to be in the range for severe depression and anxiety. On the alcohol use disorder identification test, he found Mr. Williams was subject to elevated alcohol use, and determined he should abstain from alcohol in the future. Greater concerns were present on the drug-use questionnaire, where Mr. Williams scored 18/20, suggesting a severe substance use disorder. He also concluded Mr. Williams should abstain completely from drug use but noted there are limited medications to assist with substance use other than opiates.

[42] With respect to his aggression, Dr. Booth conducted the State-Trait Anger Expression Inventory -2 evaluation (STAXI-2) and concluded that Mr. Williams does not have significantly high baseline problems with anger and aggression. However, when he does have feelings of anger, they tend to be fairly intense.

[43] Mr. Williams’ prior psychiatric history was also reviewed. He self-reported six or seven admissions to hospitals for suicidal behaviour. He has attended at St. Michael’s, Wellesley, St. Joseph’s and CAMH. The first suicide attempt was at age 14 and the last was an attempted hanging in 2014.

[44] Dr. Booth reviewed Mr. Williams’ prior efforts at rehabilitation extensively, including his treatment at the St. Lawrence Valley Correctional and Treatment Centre where Dr. Booth personally worked in the past. A discharge summary from that institution dated April 4, 2018, included a diagnosis of persistent depressive disorder, subsyndromal PTSD, antisocial personality disorder, paranoid personality traits, alcohol use disorder, and cocaine use disorder. While he was hospitalized, Mr. Williams continued several medications. He received motivational counselling around addictions and seemed to move to a phase of recovery. He had individual sessions to assist him.

[45] Yet while at St. Lawrence Valley he projected blame for his difficulty onto others. One staff member was suspended for using racist language towards him. When treatment did not progress as he desired, he was rigid in his thinking and would not consider alternative explanations for his problems other than the racism he experienced. He refused to cooperate with the staff and would not take his medication. He had to be transferred to another unit. Similar problems occurred in this unit and again he felt this was due to his race. Staff on this unit began to feel uncomfortable around him due to his conduct.

[46] In her written submissions clarifying some aspects of Dr. Booth’s report, Ms. Bacchus further informed me that Mr. Williams now accepts he may have been “too paranoid” when accusing the staff at St. Lawrence Valley of racism.[^1]

[47] He was transferred to a third unit for yet another chance to start over. Again, he showed hostility towards staff and was ultimately discharged before the end of his sentence.

[48] He attended some sessions of the STOP domestic violence group and started a substance abuse program. However, he did not complete his programming due to feelings that he was being mocked. He declined a self-regulation group for sexual offending.

[49] An accompanying letter to the discharge summary indicated that Mr. Williams’ behaviour resulted in recurrent problems. These problems continued despite several behavioural interventions.

[50] Dr. Booth concluded that Mr. Williams has been engaged in a drug lifestyle which has resulted in numerous convictions including violent offences. He has shown ongoing relapses. He will use controlled substances and commit illegal activity to support his drug habit. Most of his offending has been related to substance abuse.

[51] While there was historical evidence of a possible psychotic illness this has not been verified. He does not show other signs of illness consistent with this diagnosis.

[52] Mr. Williams minimized the sexual offences on his record and did not pursue treatment when it was made available, including during his time at the St. Lawrence Valley Correctional and Treatment Centre.

[53] Dr. Booth noted that Mr. Williams has shown recurrent and significant difficulty complying with probation, parole and release conditions. In 1992 he did not report while subject to parole and his release was revoked. Since then, he has accumulated multiple convictions for failing to comply with court orders. However, he has not had significant institutional violations nor been involved in institutional violence.

[54] Dr. Booth outlined eight diagnoses as per the DSM-5, including alcohol use disorder, stimulant use disorder (cocaine), and antisocial personality disorder. He testified that there are not many treatments that work well concerning antisocial personality disorder.[^2]

[55] Dr. Booth employed several actuarial risk evaluation methods. The Violence Risk Appraisal Guide (VRAG-R) is a 12-item actuarial risk scale designed to predict the likelihood of future violence among males who have previously committed a violent offence. It considers both violent offences and sexual offences. Mr. Williams scored +21 (in a possible range of -34 to +46) placing him in the 84th percentile and in the eighth of nine ascending risk categories (with the ninth being the highest risk.) This suggests a high likelihood of recidivism. The instrument does not inform about the severity of violence. It also does not consider the age of the offender as a factor.

[56] Due to his history of sexual offending behaviour, the Static 99R was also administered. It provides a risk estimate of sexual offending in the future. Mr. Williams scored +5 (out of a range of scores of -3 to +12), placing him at above-average risk. Once he reaches age 60, his score would drop to +3 placing him in an average risk category, yet he would remain 1.4 times more likely to commit a sexual offence than another offender in a comparison population.

[57] On the Static 2002R, which employs a different mathematical model and also measures the risk of sexual recidivism, Mr. Williams’ score was +6 (out of a possible range of scores of -2 to +13). This placed him in the above-average risk category. His risk would drop to +4 at age 60, placing him in the average risk category.

[58] Dr. Booth considered Mr. Williams’ score on the Hare-Psychopathy checklist (PCL-R). Psychopathy is one of the highest single predictors of violent recidivism. Psychopathy is associated with increased recidivism and worsened prognosis in treatment. Mr. Williams scored 28.4, which was less than the cut-off for psychopathy at 30. Dr. Booth concluded there was little difference in risk between a score of 28 and 30. This placed Mr. Williams as being more psychopathic than 76% of other inmates in the federal penitentiary system.

[59] Dr. Booth also utilized other semi-structured risk assessment tools such as the SVR-20 and HCR-20 V3. Mr. Williams had numerous risk factors and showed several problems that would make future risk management problematic.

[60] To consider protective factors in evaluating risk, Dr. Booth used the Structured Assessment of Protective Factors for violence risk (SAPROF). Mr. Williams had a score of 5 out of a possible 34, which suggested low protective factors.

[61] Overall, in Dr. Booth’s clinical judgment, Mr. Williams’ offences appear linked to alcohol and crack use. He has thus far not been able to benefit from treatment for these disorders. His offences “appear to occur following some time of deterioration and ongoing substance use”. If he were serving a sentence in the community, with appropriate supervision, there could be time to intervene before he caused harm to another person again. At the same time, Mr. Williams has previously committed offences while he was subject to court-ordered supervision in the community via probation orders many times.

[62] Dr. Booth noted that Mr. Williams expressed an intention to abstain from substance abuse and seek out treatment. As he ages, his risk of violence will also continue to drop. But in the absence of intensive and lengthy treatment, his opinion was that Mr. Williams had a high risk of future violence with the potential for significant bodily harm to occur to another victim.

VII. Mr. Williams’ View of the Index Offence

[63] Mr. Williams informed Dr. Booth he knew the victim through drug interactions. They were both users and sellers. The victim was addicted to fentanyl.

[64] The evening before the incident, Mr. Williams used crack cocaine and a medication for depression. He denied having a knife but did have a crack pipe. He sold crack to another person beforehand.

[65] Mr. Williams asserted that the victim called him the “N’ word which upset him. The victim was kicked out of the shelter. Mr. Williams left to buy drugs. The victim located him and tried to start a fight. The victim hit him in the eye, jaw, mouth and his left temple. Mr. Williams was knocked to the ground and hit his head, causing him to pass out. When he awoke, he was dazed and his mouth was bleeding. The next thing he remembers is being at the police station.

[66] Mr. Williams admitted he struggled with relapsing into his use of crack cocaine. He estimated he was able to remain clean for about a month. Normally, he used crack daily. He returned to Seaton House as this was his usual place to stay. He believed a female staff member did not like him however due to his background as a black man.

[67] For 30 days he stayed at St. Felix Hostel and remained clean. After his 30-day ban, he returned to Seaton House. He ran into a girl and had “some drinks” including possibly “a couple of mickeys.” They started smoking crack cocaine.

[68] Later, he sold drugs to someone he believed was a client of the victim. This made the victim angry. They exchanged heated words. Their later confrontation in the courtyard was due to Mr. Williams leaving the shelter for more crack. He tried to enter the building after the victim started the fight. The staff would not let him back in.

[69] His version of events was rejected by Bovard J. who concluded that Mr. Williams was armed with a knife during the commission of the index offence. Bovard J. found that Mr. Williams swiped at the victim’s neck with this knife when he was only two to three feet from him. He also found that the victim did not assault Mr. Williams first.

VIII. Enhanced Pre-Sentence Report

[70] An enhanced PSR (“EPSR”) was prepared by Ms. J. Pemberton on behalf of the Sentencing and Parole Project. The reports are designed to provide information to the court about the effects of poverty and racial inequality on Black and biracial people.[^3]

[71] Mr. Williams reported to Ms. Pemberton that he experienced racism in Canada at several key moments in his development. His mother worked as a nanny for white families. As a child, he was often called the “N-word” by the children of these families and they would also accuse him of stealing. This affected his self-esteem. He furthermore felt that his mother did not defend him and was “cold-hearted” and “uncaring.”

[72] He was the only Black student in his high school in Ajax. He was taunted by white students – even those he considered friends – who made racist jokes.

[73] While incarcerated at St. Lawrence Valley Correctional Treatment Centre, his view of his difficult time there was that the staff also subjected him to racist treatment.

[74] When he was 24 or 25, Mr. Williams was badly mistreated and assaulted by a white Durham police officer. The officer called him the “N-word” among other insults. This incident taught him that the police would also view him as a criminal and he could not hope to change their perceptions of him. In that sense, it became a self-fulfilling prophecy, as he started to believe this about himself as well. This incident was the primary reason that he stopped working.

[75] Mr. Williams understandably associates hearing the “N-word” with anger.

[76] Ms. Pemberton identified Mr. Williams’ 30-year struggle with drug addiction and homelessness as a key cause of his criminal behaviour. Ensuring that he has access to appropriate services and support when he is released into the community is essential to his success. A detailed correctional plan must be in place.

IX. Mr. Williams’ Prior Criminal Record

[77] Mr. Williams has 47 prior convictions spanning approximately the last 30 years of his life. 16 of these convictions are for violent crimes such as assault or threatening bodily harm. He has two prior convictions for sexual assault. He has 14 convictions for failing to comply with court orders and has been found to have violated the terms of his parole. He also has 13 convictions for CDSA offences.

[78] Mr. Williams’ prior criminal record is included in the following chart. Some of the entries are subject to a more detailed analysis, including a summary of the facts where that information was available. When Mr. Williams provided feedback about an offence to Dr. Booth, that information is also included.

Date of Conviction	Offence	Sentence
February 10, 1983	Theft Under $200	$100 fine or 10 days jail
September 13, 1983	Theft Under $200 Attempted To Obstruct Justice	$150 fine or 15 days jail $200 fine or 20 days jail
April 11, 1985	Theft Under $200	Conditional Discharge + 2 years’ probation
May 31, 1988	FTC Recognizance Possess Property - Crime Assault Peace Officer Escape Lawful Custody Possess Property - Crime	30 days jail 30 days jail 30 days consecutive + 2 years’ probation 45 days jail 45 days jail (concurrent)
June 13, 1989	FTC Recognizance Over 80	1 day jail $750 fine
January 11, 1990	Sexual Assault Sexual Assault	12 months jail 18 months jail consecutive 5-year weapons prohibition order
September 25, 1990	Released on mandatory supervision
April 23, 1992	Mandatory release violator, recommitted
February 25, 1993	FTC Recognizance	30 days jail
July 5, 1994	Obstruct Peace Officer	14 days jail
July 6, 1994	FTA	30 days jail
September 6, 1994	Trafficking in Narcotic	60 days jail
March 27, 1996	Obstruct Peace Officer	6 days PSC + 1 day jail
June 14, 1996	Use Credit Card – Crime	7 days PSC + 14 days jail
August 27, 1996	Trafficking in Narcotic FTC Recognizance	3 months jail 1 month jail consecutive
December 5, 1996	Possession of Narcotic	16 days PSC + 1 day jail
February 19, 1998	Assault – Bodily Harm Uttering Threats Assault With A Weapon	One year in jail on each charge, concurrent Lifetime weapons prohibition order
July 14, 1999	Assault	36 days PSC + 1 day jail
October 20, 1999	Traffic – Schedule II Substance	15 days jail
January 11, 2001	Mischief Under $5000 Forcible Entry Assault – Bodily Harm	Suspended Sentence + 3 years’ probation
April 25, 2001	Traffic – Schedule I Substance	160 days PSC + 1 day jail
August 24, 2001	Assault FTC Recognizance	70 days PSC 1 day jail + 12 months’ probation
September 19, 2001	Possess Schedule I Substance	1 day jail + 12 months’ probation
December 5, 2001	Assault – Bodily Harm FTC Probation	30 days PSC + 15 days jail 20 days consecutive
April 5, 2002	Possess Schedule I Substance FTC Probation	30 days conditional sentence on each count concurrent
July 8, 2002	Assault	2 months PSC + 1 day jail + 12 months’ probation
July 30, 2002	FTC Probation	4 days PSC + $100
September 6, 2002	FTA Possess Schedule I Substance	17 days PSC + 1 day
April 4, 2003	Traffic – Schedule I Substance	89 days PSC + 5 days 109 Order
December 23, 2004	Assault With Weapon Uttering Threats	Time Served (1.5 years and 1 month)
May 6, 2005	Traffic – Schedule I Substance	122 days PSC + 1 day
June 16, 2005	Possess Property – Crime	17 days PSC + 60 days
December 5, 2006	Assault	79 days PSC + 1 day + 3 years’ probation
April 27, 2007	Traffic – Schedule I Substance	66 days PSC + 50 days 109 order
July 27, 2007	Uttering Threats FTC Probation	54 days PSC + 1 day
October 25, 2007	FTA FTC Probation	3 days PSC + 14 days
December 21, 2007	Uttering Threats Mischief Under $5000 FTC Probation	10 days PSC + 5 days
May 1, 2008	FTC Probation	4 months PSC + 1 day
July 14, 2008	FTC Probation	2 days PSC + 7 days
December 10, 2008	FTC Probation Possess Schedule I Substance	23 days PSC + 14 days
June 11, 2009	Traffic – Schedule I Substance	6 months PSC + 1 day 109 order
March 9, 2010	Possess Schedule I Substance	30 days PSC + S.S. + Probation 9 months
March 17, 2014	Traffic – Schedule I Substance	90 days intermittent + 12 months’ probation 109 order
January 16, 2017	Aggravated Assault	2 years less a day + 3 years’ probation (342 days PSC x 1.5 = credited for 513 days) 109 order 10 years
October 19, 2018	Assault FTC Probation	135 days PSC + S.S. + 12 months’ probation 110 order (5 years)
January 18, 2019	FTC Probation	45 days PSC + $50

January 16, 2017 - Aggravated Assault

[79] The victim of this offence was a former intimate partner of Mr. Williams. On February 10, 2016, at approximately 4:15 a.m., a witness reported a male and female person fighting on the 12th floor of a residential building. He was concerned the female was attempting to flee from the male.

[80] Officers investigated and identified a blood trail leading from the elevator. They attended to Mr. Williams’ unit and demanded he open the door. He eventually complied and the officers found the victim lying on her back with shallow breathing, covered in blood and showing signs of obvious trauma. Mr. Williams’ face, beard and shirt were saturated with what appeared to be the victim’s blood.

[81] The victim was taken to St. Michael’s Hospital. Her injuries included:

• Hemorrhage in the skull;

• Cracked skull on rear right and left sides;

• Blood in the lungs;

• Fractured nose; and

• A laceration to the right side of her jaw approximately 1.5” in length.

[82] The victim had been present at Mr. Williams’ apartment alongside a man named Kevin Hogue. The victim hugged Mr. Hogue. Mr. Williams’ face appeared to change at that point. He stomped on the victim’s head with his foot a few times. Mr. Hogue tried to calm Mr. Williams down unsuccessfully. Mr. Hogue left but noticed the victim had blood on her face.

[83] Mr. Williams admitted to Dr. Booth he had known the victim for several years and considered her a friend. He allowed her to stay at his place that night. He blacked out however and did not remember anything about the acts of violence.

[84] He used “only an eight piece” in addition to a “couple of cups” of alcohol that night. He explained that he “may have been under the control of MK-Ultra” and felt that he was “somehow controlled through lasers.” He also stated that he had been using his cellphone and Facebook which may have had some effect. He apologized to the victim when he saw her. He could not provide a rational motivation for the offence.

November 30, 2009 – Assault, Carry Concealed Weapon and Theft Under

[85] On December 30, 2008, at approximately 11 a.m., Mr. Williams was near 90 Shuter Street in Toronto. He attended the sixth floor. He removed a 32-inch flat-screen television.

[86] On July 6, 2008, Mr. Williams was residing at Seaton House. He accused the victim of taking his bicycle and punched him in the mouth. The victim suffered a cut lip.

[87] On July 12, 2008, at Seaton House, Mr. Williams confronted the victim again. He had a box cutter concealed in his pants. The victim called the police. Mr. Williams was arrested, and the box cutter was located on his person.

[88] Mr. Williams explained that the victim owed him money for drugs as he had been dealing with him for a couple of months. He took the television as payment for the debt. He did not recall the assault or the knife.

July 27, 2007 – Utter Threats and FTC Probation

[89] On June 7, 2007, Mr. Williams was arguing with two women in Moss Park. An officer heard him state that he would “beat her head in”, in reference to one of the women. He was standing close to the victim and screaming at her.

[90] Mr. Williams did not remember this incident.

December 5, 2006 – Assault

[91] On August 20, 2006, the victim was with Mr. Williams at the Fred Victor Centre. They were in a washroom together. The victim attempted to leave and Mr. Williams did not allow her to exit. Mr. Williams dragged her into the hallway.

[92] Mr. Williams explained that he knew the victim, and they were both addicts. They had used drugs and had consensual sex in the past. On this date, they were having sex and using crack. He wanted to stop having sex and told her to leave. She would not leave and tried to “bribe her” with crack. He gave her some empty packages. When she realized he’d tricked her, she returned and was upset.

[93] He denied the offence to Dr. Booth.

December 23, 2004 – Assault With A Weapon, Utter Threats

[94] The victim met Mr. Williams on May 28, 2004. She had been awake for 30 hours having ingested cocaine. Mr. Williams agreed to get her crack. He took her to another location. On the 7th floor, they had an altercation. She left the building but had another encounter with Mr. Williams in a nearby park. He pushed her down, took her glasses, and threatened her with a cane he’d broken in half.

[95] Mr. Williams knew the victim through their mutual drug use. They used crack cocaine together this evening. He admitted that when she asked for more drugs she was crying. He intentionally damaged her glasses and chased her with a cane. He laughed as he relayed this story to Dr. Booth, although Ms. Bacchus informed me if her client laughed in this manner, it was due to him being embarrassed or uncomfortable.

February 19, 1998 – Assault Causing Bodily Harm, Utter Threats, Assault With a Weapon

[96] I received very limited information about these convictions.

[97] Mr. Williams stated he was staying at Seaton House and the female victim lived across the street. She was a drug addict. He moved into her apartment. The relationship broke down. He denied he assaulted her and claimed she lied about the incident.

January 11, 1990 - Sexual Assault x 2

[98] The first victim was a young woman, 21 years of age. On March 24, 1989, her sister was having a party. Mr. Williams attended. Everyone consumed alcohol. Mr. Williams brought cocaine. She went to sleep and awoke to find her pants below her knees. Mr. Williams penetrated her vaginally for about 30 seconds.

[99] The second victim was 19 years old. She knew Mr. Williams through her boyfriend. Between November 14 and December 10, 1988, she went to a bar. Mr. Williams later attended. They ended up at Mr. William’s home. He asked her for a hug and a kiss and she said “No.” He went to sleep upstairs and she fell asleep on the couch.

[100] She awoke to him pulling her clothing down. He tried to penetrate her vaginally. She resisted physically and he stopped.

[101] Mr. Williams was drinking heavily at the time. He stated he was unconscious in one incident from drinking. For the first victim, he woke her up, touched her, and she moaned and “appeared to be into it.” He said it was wrong only because she was not fully awake. For the second victim, he touched her on the breast and vagina. He accepted these incidents were “the biggest shame” and source of guilt in his life to Dr. Booth.

X. Institutional Records – TSDC

[102] Mr. Williams has been incarcerated at the TSDC since his arrest for the index offence. He has seen a psychologist regularly. In late 2020 his presentation was marked by anxiety, and he expressed that he was depressed. He discussed how he could remain future-oriented however and was willing to explore different community-based treatment opportunities.

[103] In January 2021 his psychologist noted that he had less prominent depressive symptoms and was more active on his unit. He was attempting to find more prosocial ways of resolving conflict. He reached out to his son for support. Unfortunately, by February-March 2021 he seemed to regress, being preoccupied with negative thoughts. He showed an increase in symptoms consistent with anxiety and struggled to manage them effectively. In June 2021 he continued to be depressed and showed a lack of motivation. He was taught cognitive therapy techniques to challenge and change negative thoughts. He was provided with supportive counselling.

[104] By October 2021 his psychologist noted an increase in Mr. Williams’ depressive symptoms. Even a recent visit by his son did not result in a positive change in his mood. By November 2021 his son’s grandmother has emerged as a positive source of support for him. He felt pride in his son’s accomplishments. He still showed difficulty managing his emotions. His psychologist again worked with him on identifying positive statements to challenge his negative thoughts. In December 2021 Mr. Williams indicated he would attempt to participate in programs in the future.

XI. Other Evidence

[105] The Crown filed a wide array of other forms of evidence including a prior pre-sentence report, past occurrences and synopses from the Toronto Police Service, records from provincial jails, and those from probation and parole.

[106] On consent, the Crown also filed a comprehensive set of material from the Correctional Service of Canada (“CSC”) about what programming exists for inmates and what supervision options are available should Mr. Williams be released back into the community on parole or a long-term supervision order (“LTSO”).

[107] Ms. Natasha Jaffer, a representative of the CSC testified about the Community Mental Health Initiative (CMHI). This is a multidisciplinary team of clinical social workers, psychologists, and psychiatrists. They are available to offenders who are released back into the community and subject to the terms of an LTSO. The staff are on-site at the community centres where offenders may be placed while reintegrating into society. These teams assist offenders with their healthcare needs, including substance abuse issues. They can make referrals to appropriate facilities (such as CAMH in Toronto) and outside organizations that offer services to offenders (such as the John Howard Society.)

[108] Mr. Brad Tamscu, manager of mental health and addictions for the Ministry of the Solicitor General, testified about the programming available for inmates held in pre-sentence custody in a jail such as the TSDC.

[109] Transcripts from Mr. William’s prior trials and guilty pleas were filed where they were available.

[110] Ms. Bacchus provided other evidence, such as documentary evidence demonstrating Mr. Williams’ involvement with treatment programs in custody and through community organizations. Several letters of support for Mr. Williams were also filed, including from Ms. Donna Lane (his son’s grandmother), Mr. Daniel Lane, and Ms. Paulette Gregory (his cousin).

[111] Some of this evidence constitutes hearsay. Hearsay evidence is admissible in a dangerous offender hearing if it is found to be sufficiently credible and trustworthy: see Criminal Code section 723(5); R. v. Williams, 2018 ONCA 437, at para. 49. It is important that the court have the “widest possible range of information to determine whether there is a serious risk to public safety”: see R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229 at p. 290.

[112] However, since the ultimate onus rests with the Crown to prove beyond a reasonable doubt that an offender is a dangerous offender, caution should be applied when assigning weight to certain forms of records. This is particularly the case for prior police summaries or any form of evidence alleging bad behaviour that did not result in a formal proceeding: see R. v. Villeneuve, 2022 ONSC 2188 at para. 7; R. v. Whittaker, 2021 ONSC 2915 at para. 11. As stated by the Ontario Court of Appeal in Williams at para. 55:

Due to the evidentiary frailties inherent in the nature of a police synopsis, caution is required when the sentencing judge is considering whether the contents of those records can, along with the rest of the record, provide the basis for a finding that the statutory elements of dangerousness have been proven beyond a reasonable doubt. The incidents set out in the synopses must be considered in light of all of the evidence led at the hearing.

XII. Position of the Parties

[113] Ms. Glaister submits Mr. Williams should be designated a dangerous offender and sentenced to an indeterminate period of incarceration. That is required to protect the public against the commission of a serious personal injury offence. The Crown relies upon Criminal Code sections 753(1)(a)(i) and/or (ii). Mr. Williams poses a high likelihood of harmful recidivism, and his conduct is intractable.

[114] Ms. Glaister argues that Mr. Williams has 15 prior convictions for crimes of violence. There are no meaningful gaps in his criminal record. The pattern of his behaviour is repetitive and persistent. He has attempted treatment with varying degrees of commitment over the preceding decades. He always re-offends violently. He has not been complaint with court-ordered community supervision in the past.

[115] Dr. Booth provided a psychiatric opinion that the defendant meets the criteria to be designated a dangerous offender. She further submits that the evidence establishes that Mr. Williams’ prospects for treatment are not compelling. His newfound expression of a desire to change is simply an expression of hopeful optimism, belied by his past demonstrated unwillingness to follow through with treatment and address his addiction. Hope, by itself, is not enough. There is not a reasonable expectation that a lesser sentence will adequately protect the public.

[116] Ms. Bacchus does not dispute that her client has a long and troubling criminal history and that he has a substantial risk of re-offending and presents a risk of safety to the public. Nevertheless, he should not be designated a dangerous offender. She agrees he does meet the criteria for a Long-Term Offender (“LTO”) designation and submits a fixed sentence of at least two years followed by a 10-year Long-Term Supervision Order (“LTSO”) is appropriate. Mr. Williams should be given an opportunity to meaningfully engage with appropriate programming. He acknowledges his drug-addiction issue but still has rehabilitative potential and is committed to changing his behaviour.

[117] Importantly, while he has been in custody, he has not had any institutional violations whatsoever. He has also engaged with some rehabilitative programming. Ms. Bacchus submits this demonstrates he can control his behaviour when he abstains from unlawful drug use and there is a reasonable possibility he can be controlled in the community. He has previously been connected to community-based organizations for treatment which demonstrates his good-faith intentions to better himself.

[118] Mr. Williams has had, in many respects, a difficult life, marred by his experiences with racism. That attenuates his moral culpability, at least partially. Unquestionably, he requires an intensive support network that will help him to address his mental health, substance use issues and trauma. Ms. Bacchus submits that the supervision that can be provided under an LTSO will adequately protect the public. In addition to the resources available to Mr. Williams while serving the LTSO in the community, he will be deterred from future criminal activity by the enforcement regime associated with it.

[119] Ms. Bacchus further submits that Mr. Williams will have access to programming in the federal penitentiary system that he has never experienced before. This includes the high-intensity programming designed specifically for high-risk offenders such as Mr. Williams to reduce risky or harmful behaviour and to change anti-social attitudes. He has reconnected with his son and has a very positive relationship with his son’s grandmother. Those connections are meaningful to him and will provide him with the support network he needs to remain committed to his rehabilitation.

[120] Mr. Williams’ behaviour is not intractable. Many of his violent crimes occurred over 10-15 years ago. Furthermore, as he ages, his risk of offending is anticipated to drop once he turns 60 and even further after he turns 70.

XIII. Mr. Williams’ Letter to the Court

[121] Mr. Williams wrote about the tragic events that have affected him. He described in vivid detail his experiences with racism as a child, teen and adult. He candidly described his history of drug abuse and how it resulted in him spending much of his adult life in jail. He realizes now that drugs have been a destructive force.

[122] He also wrote eloquently about the importance of building a relationship with his son and his maternal grandmother. He lost touch with his family for decades due to the shame he felt over his initial convictions for sexual assault. They are positive influences that help him move in the right direction. He knows he needs their help to move forward.

XIV. Dangerous Offender Sentencing Law

[123] The “overriding purpose” of the dangerous offender and long-term offender regimes is the protection of the public from the risk of violent harm: see R. v. Johnson, 2003 SCC 46, at para. 29; R. v. A.R., 2022 ONCA 553, at para. 33.

[124] Dangerous offender proceedings under Part XXIII of the Criminal Code are sentencing proceedings. This part differs in several significant ways from the standard sentencing regime, however. Part XXIII authorizes indeterminate sentences to be imposed on a preventative basis. This requires a careful and strict application of the detailed and demanding designation criteria accordingly: see R. v Natomagan, 2022 ABCA 48, at para. 93; R. v. Laporte, 2016 MBCA 36, at para. 216. The legislation was designed to “carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”: see R. v. Lyons, 1987 CanLII 25 (SCC) at p. 339; see also R. v. Boutilier, 2017 SCC 64, at para. 3.

[125] A dangerous offender proceeding is a two-stage process. First, there is the designation phase. Second, there is the penalty phase: see Boutilier at paras. 13-15. The designation phase “is concerned with assessing the future threat posed by an offender”, while the penalty phase “is concerned with imposing the appropriate sentence to manage the established threat”: see para. 31.

[126] In R. v. Lyons, 1987 CanLII 25 (SCC) at p. 338, Justice LaForest held that four criteria for a dangerous offender designation are required by section 753(1):

1. The offender has been convicted of a “serious personal injury offence”;

2. The predicate offence is part of a broader pattern of violence;

3. There is a high likelihood of harmful recidivism; and

4. The violent conduct is intractable.

[127] Intractable conduct is behaviour an offender is “unable to surmount”: see Boutilier at para. 27. In Boutilier, the Supreme Court clarified that intractability remains a key consideration under the current version of the dangerous offender provisions, and an assessment of the offender’s future treatment prospects is relevant to both stages of the dangerous offender proceeding. A “prospective assessment of risk is a fundamental component of dangerous offender applications”: see para. 36.

[128] In R. v. Currie, 1997 CanLII 347 (SCC), the Supreme Court held that the sentencing court has to “be satisfied beyond a reasonable doubt of the likelihood of future danger the offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence”: see para. 25. In Boutilier, the Supreme Court held that a finding of dangerousness requires the Crown to prove a “high likelihood of harmful recidivism and the intractability of the violent pattern of conduct”: see para. 46.

[129] At the designation stage, treatability must be considered when the court assesses the threat posed by the offender. At the penalty phase, treatability assists with determining the appropriate sentence to manage the threat posed by the offender: Boutilier at para. 45. Evidence of treatability must demonstrate that the offender is treatable within an ascertainable time. It must establish something more than mere “speculative hope”: A.R. at para. 33; R. v. Straub, 2022 ONCA 47, at para. 63.

[130] If an offender meets the criteria to be designated a dangerous offender, the sentencing court must still apply the sentencing principles in the Criminal Code when deciding upon the appropriate penalty: see R. v. Johnson, 2003 SCC 46, at para. 23; Boutilier at para. 53. Under the contemporary dangerous offender provisions, indeterminate detention is not automatic upon a finding of dangerousness. The Court must consider the offender’s moral culpability, the seriousness of the offence, and any other mitigating factors when deciding whether or not a lesser sentence would sufficiently protect the public: Boutilier at para. 63. In Johnson, the Supreme Court held that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: see para. 44.

[131] In 2008, Parliament added section 753(4.1) to the Criminal Code. It states:

(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.[^4]

[132] This section “guides the discretion of the judge” and is “simply a codification of the exercise of discretion required by Johnson”: see Boutilier at para. 65. In Straub, the Ontario Court of Appeal held that the sentencing judge must “impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required”: see para. 61. The judge must determine whether “the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence”: see Boutilier at para. 31; R. v. Dadmand, 2022 BCCA 162, at para. 17.

[133] In Boutilier, the Supreme Court explained that the dangerous offender criteria are more onerous than the long-term offender criteria. For example, under section 753(1), the sentencing judge must be satisfied that the offender “constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas, under section 753.1, the judge must merely be satisfied that “there is a substantial risk that the offender will re-offend”: see para. 75. The dangerous offender provisions, therefore, when properly interpreted, limit the availability of indeterminate detention to a “narrow group of offenders that are dangerous per se”: Boutilier, supra.

XV. Designation Phase: Is Mr. Williams a Dangerous Offender?

Was Mr. Williams convicted of a serious personal injury offence?

[134] A serious personal injury offence is defined as “an indictable offence… involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person… and for which the offender may be sentenced to imprisonment for ten years or more”.

[135] Assault with a weapon has a maximum sentence of 10 years’ incarceration: see Criminal Code section 267(a).

[136] There is no minimum threshold of violence required for an offence to qualify: see R. v. Steele, 2014 SCC 61 at para. 39. I am satisfied Mr. Williams was convicted of a serious personal injury offence.

Has the Crown proven a broader pattern of violence?

[137] Ms. Glaister submits that Mr. Williams meets the criteria for a dangerous offender under Criminal Code sections 753(1)(a)(i) and (ii). Those sections state that an offender may be designated a dangerous offender when the Crown proves the offender constitutes “a threat to the life, safety or physical or mental well-being of other persons based on 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…

753(1)(a)(i): a pattern of repetitive behaviour

[138] Ms. Glaister’s primary position is that Mr. Williams’ index offence in conjunction with his criminal record for prior crimes of violence constitute a “pattern of repetitive behaviour.” This requirement should not be assessed by reference to the number of prior offences alone but also with consideration for the elements of similarity of the offender’s behaviour: see R. v. Langevin, [1984] O.J. No. 3159 (Ont. C.A.) at para. 29.

[139] The degree of similarity required will be subject to the quantity and nature of the prior convictions. In R. v. Neve, 1999 ABCA 206, the Alberta Court of Appeal stated that “the requirement for similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous”: see para. 113. In R. v. Hogg, 2011 ONCA 840, the Ontario Court of Appeal held that the pattern of repetitive behaviour that includes the predicate offence “has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future”: see para. 40.

[68] The second element required for a designation under this subsection is the likelihood of the offender causing “death or injury to other persons, or inflicting severe psychological damage on other persons” through a failure to “restrain his behaviour” in the future. The Supreme Court of Canada has referred to “a high likelihood” in this context: see Boutilier at para. 45. This is a very high standard that should, at a minimum, be equated with a probability, and may constitute something even greater: see R. v. Connell, 2022 ONSC 4703, at para. 27.

753(1)(a)(ii) A pattern of persistent aggressive behaviour

[140] In R. v. Villeneuve, 2022 ONSC 2188, Justice Aitken held that the “persistence” required for the Crown to establish a pattern under this subsection requires proof of behaviour that is “enduring, continuous, obstinately persevering, interminable or sustained”: see para. 103; see also R. v. Smith, 2023 ONCA 575, at para. 56; R. v. Williams, 2018 ONSC 2030, at para. 252.

[141] There must also be proof of a “substantial degree of indifference”. In Williams, Hill J. equated “indifference” with “disregard, lack of sympathy or empathy, callousness and coldness, and lack of concern or sensitivity”. That “indifference” must be examined through the lens of whether the offender has demonstrated any concern about how his actions “will impact others, are impacting others, or have impacted others”: see Villeneuve at para. 105.

[142] Justice McWatt in R. v. Wong, 2016 ONSC 6362, described this requirement as follows at para. 224:

In examining whether Mr. Wong’s conduct demonstrates indifference, his attitude must be examined more generally. A demonstration of indifference which is limited to the time at which the offence was committed is not sufficient. A broader examination of the offender’s personality is required to determine if the offender lacks compassion towards others. The Crown must demonstrate that the offender has a conscious, but uncaring awareness of causing harm to others and that this has occurred over a long period, involving frequent acts with significant consequences.

[143] There is no requirement for a pattern to exist between the index offence and prior convictions. Where each involves aggressive behaviour, and especially where the offender has resumed that behaviour despite being previously convicted and incarcerated for violent offences, that may be sufficient: see R. v. Brown, 2021 ONCA 678, at para. 55. Even where an offender shows the sentencing judge some expression of remorse for his actions, that does not preclude a finding that he is “indifferent” as contemplated by this section. Both his actions, and his words, must be evaluated: see Brown at paras. 57-58.

[144] Phrased differently, the evidence must demonstrate that “the offender has a conscious, but uncaring, awareness of causing harm to others”: see R. v. George, 1988 5691 (B.C.C.A.) at para. 24.

[145] A considerable temporal gap between the index offence and prior criminal convictions does not preclude a finding of a pattern of persistent aggressive behaviour. In R. v. Smith, 2023 ONCA 575, the Ontario Court of Appeal held at para. 37 that the court must be satisfied that:

(i) there is a pattern of behaviour;

(ii) involving persistent acts of aggression causing serious harm and demonstrating a substantial degree of indifference to the consequences of the offender’s actions that

(iii) creates a serious risk of ongoing harm to the public.

[146] In R. v. Montgrand, 2017 SKCA 49, the Saskatchewan Court of Appeal discussed the difference between sections 753(1)(a)(i) and 753(1)(a)(ii):

[21] Although the patterns contemplated by ss. 753(1)(a)(i) and (ii) overlap, each is distinct. Section 753(1)(a)(i), as noted, requires a pattern of repetitive behaviour; whereas, s. 753(1)(a)(ii) requires a pattern of persistent aggressive behaviour. While the behaviour covered by the former is broader than the latter, the pattern under s. 753(1)(a)(i) must itself establish a likelihood or probability of reoffending in a certain way with a certain result. By contrast, s. 753(1)(a)(ii) does not refer to likelihood or probability; rather, the pattern contemplated must show “a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour.” This calls for an analysis of the subjective state of mind of the offender. Where the offender does not testify, it must be conducted on the objective evidence adduced at the sentencing hearing.

The Crown has established the pattern under either subsection

[147] I am satisfied the Crown has proven the required pattern of behaviour under both sections 735(1)(a)(i) and (ii) beyond a reasonable doubt. Mr. Williams has a record of committing violent offences that spans 30 years. In the years 1990, 1998, 2001, 2002, 2004, 2006, 2017, 2018 and 2020 he committed a crime of significant personal violence. In nearly all of these cases, the use of alcohol or cocaine played a part in the commission of the offence. These offences resulted in serious harm (both physical and/or psychological) to Mr. Williams’ victims.

[148] Mr. Williams’ crimes of violence contain some similarities but may be split into two main groups. There are his crimes that are the result of disputes with other men, typically over drugs or money related to drugs, that result in violence, such as the index offence. There is another set of offences where he has exhibited serious sexual and/or physical violence towards women, such as the 1990 convictions which began his criminal record, his 1998 conviction for assault causing bodily harm and assault with a weapon, his 2004 convictions for assault with a weapon and uttering threats, his 2007 conviction for uttering threats, and the 2017 conviction for aggravated assault.

[149] Regarding 753(1)(a)(i), the behaviour is repetitive and demonstrates a failure to restrain himself. In R. v. Wong, 2023 ONCA 118, the Ontario Court of Appeal held that the requirement for a pattern focuses on behaviour, not necessarily simply prior offences: see para. 42; see also R. v. Inacio, 2023 ONCA 419, at para. 5. Mr. Williams cannot stop using alcohol or drugs and inevitably returns to violence. Mr. Williams is incapable of controlling his substance addictions which led him to commit these offences. The offences have involved physical injuries constituting serious bodily harm to his victims in the past including the index offence. It is highly likely Mr. Williams will offend violently in the future if he succumbs to his addiction to substances or alcohol and therefore cause serious bodily harm again.

[150] His VRAG-R score is in the eighth-highest category (out of nine) with a likelihood of violent recidivism within five years. His Static 99R and Static 2002R place him at an above-average risk for sexual offending which also suggests an elevated risk for violent offending. Mr. Williams scored high on the PCL-R showing traits of psychopathy. Dr. Booth’s opinion was that the pattern required under section 753 of the Criminal Code was met.

[151] Mr. Williams’ behaviour also satisfies the test in section 753(1)(a)(ii). His crimes of violence are continuous and show a pattern of persistent aggressive behaviour. There is a substantial degree of indifference to his victims. He does not acknowledge the harm he has caused through either the physical or sexual violence he has inflicted. Despite decades of offending and the consequences of incarceration associated with it, he has continued his crimes of violence when released back into the community. He has been made aware of the harm his actions have caused yet it has not deterred his behaviour. Nor have multiple probation orders prevented him from re-offending.

[152] When Dr. Booth asked about his prior crimes of violence he did not demonstrate an appreciation or understanding of the harm he has caused to his victims. For the 1998 and 2006 assault related convictions he said the victims lied. In other cases, he claimed to not remember his acts of violence (for example, all the details of the index offence, and the offences underlying the January 16, 2017 disposition before Moore J.) The only prior incident where Mr. Williams expressed to Dr. Booth meaningful regret for a crime where he significantly harmed a victim were the 1990 sexual assaults. Even in that case, he did not seem to fully appreciate the sexual violence he inflicted but did characterize the crimes as the greatest source of shame in his life.[^5]

[153] When interviewed by Ms. Pemberton for the EPSR about the index offence, Mr. Williams merely stated that he “wished it never happened” and that he is living with the consequences of his actions. There was no comment about the potentially lethal implications of his actions that day or any acknowledgment of the harm that could have befallen the victim.

[154] To the extent any of his comments may demonstrate a minor expression of remorse for his actions relating to some of these offences, they do not preclude my finding that he demonstrates the required indifference contemplated under subsection 753(1)(a)(ii).

[155] Nor do I consider the gap of any violent convictions between 2006 and 2017 to be an impediment to the finding required by this section. Mr. Williams was convicted of drug-related offences and failing to comply with court orders during this period which may be lawfully considered as continuing a pattern as required under this subsection: see Smith, supra, at para. 67.

Has the Crown proven a high likelihood of harmful recidivism?

[156] In Boutilier, the Supreme Court held that the Crown must establish a high likelihood of harmful recidivism to ground a dangerous offender application: see paras. 26-27 and 45-46. In Connell, supra, Justice McArthur held that the evidence in support of a likelihood of violent recidivism should have a “high degree of clarity, persuasiveness, and strength that the court can be sure that the offender poses a probable risk of harmful recidivism”: see para. 28.

[157] Dr. Booth’s opinion is that Mr. Williams has failed to restrain his behaviour in the past and presents with a likelihood of causing death or injury to others in the future. Without treatment or supervision, Mr. Williams will “have difficulty exerting control over his impulses in the future, particularly when or if he became intoxicated.” I accept Dr. Booth’s opinion about Mr. William’s future likelihood of harmful recidivism.

[158] In R. v. Worrie, 2022 ONCA 471, at para. 102, Pepall J.A summarized the approach to be taken in assessing expert psychiatric testimony in the context of an NCR finding:

(i) the probative value of expert psychiatric testimony is to be assessed in the same manner as any other testimony;

(ii) a trier of fact is not bound by the expert psychiatric opinions even when they are unanimous and uncontradicted by other experts;

(iii) there must be a rational foundation in the evidence to reject that expert opinion;

(iv) it may be unreasonable to disregard the expert evidence particularly where the experts’ opinions are unanimous, their evidence is uncontradicted and not seriously challenged, and there is nothing in the conduct of the commission of the crime that would raise any serious question as to the validity of the experts’ conclusion; and

(v) a rational basis for rejecting expert opinion evidence that an accused is NCR may consist of, among other things, a flaw in the expert’s reasoning, a frailty in the basis for the opinion, or a conflict between the opinion and the inferences that can be drawn from the other evidence.

[159] Dr. Booth is an experienced psychiatrist with a long history of working with offenders. He interviewed Mr. Williams in person and reviewed a significant amount of secondary source material. He has testified in many prior dangerous offender hearings. He has a wide breadth of experience. He understood his obligation to provide fair and impartial testimony during this hearing. He answered questions clearly from both counsel and admitted to any oversights or minor errors that appeared in his report without any reluctance.

[160] Mr. Williams has been subject to various forms of supervision including multiple probation orders and weapons prohibition orders. Nothing has prevented him from re-offending. He has an admitted addiction to substances including crack cocaine and always resorts to substance use after being released back into the community. As noted by Dr. Booth and as confirmed by the various forms of evidence presented at this hearing, Mr. Williams is impulsive and prone to bouts of intense anger. He does not demonstrate empathy for his victims. While he has attempted rehabilitative programming in the past he always fails to remain engaged with this treatment. Where he has commenced treatment in custody, once released back into the community, he fails to re-engage with the support he needs.

[161] Dr. Booth reviewed the materials provided to him by both Crown and defence counsel including all of Mr. Williams’ experiences with rehabilitative programming. This included programming in a hospital or correctional setting and the community. When he met with Mr. Williams in person he interviewed him about the index offences, his prior convictions, and his life experiences. He administered a variety of tests to arrive at the most comprehensive assessment of Mr. William’s future risk.

[162] To repeat, Mr. Williams’ VRAG-R score is in the eighth highest category (out of nine) with 60% of offenders with the same risk category committing violent recidivism within five years and 80% committing violent recidivism within 15 years. The SAPROF shows that he has few protective factors that will mitigate his risk of re-offending. His Static 99-R and Static 2002R place him in an above-average risk category for sexual reoffending. He has antisocial and psychopathic traits. While actuarial tests do not dictate the outcome of a dangerous offender proceedings, they form part of the full evidentiary record when assessing whether the Crown has met its burden: see R. v. K.C., 2022 ONCA 738, at para. 142.

[163] Risk assessment instruments alone may also be limited in their utility in predicting the seriousness of future re-offending. Nevertheless, based on the entirety of the record before me on his hearing, I am satisfied that any future re-offending by Mr. Williams is likely to be extremely violent, may involve the use of a weapon, and will likely result in serious bodily harm or even death.

[164] Mr. Williams’ crimes such as the index offence and the 2017 aggravated assault are directly linked to crack use and involve significant and unjustified violence. There is no explanation provided on the record for these crimes and Mr. Williams denies remembering how they occurred. I recognize he has no onus on the hearing. But I am left with a 30-year history of violent offences driven by drug use and no evidence that any form of intervention in the past has curbed his violent behaviour.

[165] Mr. Williams has had ample opportunities to manage his substance abuse problems and demonstrate true insight into the need to address what causes his acts of dangerous violence. He has simply continued along the same path regardless. Few protective factors will mitigate his risk of re-offending. He has at most limited contact with some family members such as his son, for example, and his son’s maternal grandmother. He will inevitably revert to his substance use and then violent recidivism. I am therefore satisfied beyond a reasonable doubt that Mr. Williams has a high likelihood of re-offending extremely violently in the future.

Has the Crown proven that Mr. William’s conduct is intractable?

[166] In Connell, Justice McArthur stated the following about this requirement at para. 29:

[29] As for intractable conduct, that is behaviour that the offender is unable to surmount: Boutilier, at para. 27. Rather than merely looking at whether the offender's conduct has been intractable in the past, the sentencing judge must assess the matter prospectively and be satisfied that the conduct will be intractable into the future. As explained in Lyons, at para. 43, the court must be satisfied that the pattern of conduct is “substantially or pathologically intractable.” This prospective approach ensures that only offenders who pose a “tremendous future risk” are designated as dangerous: Boutilier, at para. 46.

[167] It bears emphasizing that treatability must be considered when the court assesses the threat posed by the offender at the designation phase.

[168] Mr. Williams’ prior efforts at rehabilitation have all failed. I have considered that his efforts began in the 1990’s when he attended a residential substance treatment program at Ozanam House. He quit. In 2014 he completed a structured relapse prevention program at CAMH. He nevertheless re-offended with the crime of aggravated assault found on his record with an offence date of February 10, 2016. He attended a substance abuse program at the St. Lawrence Valley Correctional and Treatment Centre in Brockville in 2017 but dropped out. The John Howard Society confirmed that in September 2018 he completed a drug and alcohol awareness program at the TSDC and intended to remain in contact with that organization upon his release. I had no further evidence presented that he did contact the John Howard Society upon his release and regardless he committed the index offence which resulted in him being re-incarcerated in 2020.

[169] He began working with Sound Times, a community-based organization while out of custody in 2005. Ms. Bacchus provided a list of several other organizations Mr. Williams believed he had attended at over the prior two decades in the Toronto area. Ms. Bacchus was not able to confirm his attendance at any of these organizations. Even if Mr. Williams did attend, he did not commit to any long-term programming or counseling and the efforts at these organizations did not improve his problems of addiction and violence.

[170] He has been meeting regularly with a psychologist at the TSDC since his arrest in 2020. He has been engaged in therapy and has expressed a willingness to try future programming. These sessions have focused on his depressive mood and symptoms of anxiety. He has been provided with cognitive therapy techniques to improve these features of his behaviour but they were not focused on substance use issues directly.

[171] Mr. Williams’ criminal behaviour is directly connected to his substance abuse, which I find is intractable. Left to his own devices, and even when subject to a probation order, he has never truly completed rehabilitative treatment for his substance abuse nor been able to control his addictions.

[172] Every time Mr. Williams is released back into the community, he returns to using substances and resorting to illegal means to acquire them. He has been addressing this pattern of behaviour for decades without success. Past efforts at rehabilitation have unfortunately not prevented future offending. Despite his stated intention to quit using substances, Mr. Williams’ actions over the years demonstrate he simply cannot or will not stop using them. This substance use inevitably leads to future offending. Since 1990 he has had 16 convictions for sexual assault, assault related crimes, or uttering threats. Since 2017 he has had three convictions for assault related crimes, including an aggravated assault which resulted in extremely serious injuries to a defenceless victim and the index offence which could have resulted in the victim being slashed in the throat. Both of these offences were linked to illicit drug use.

[173] When asked to discuss the index offence, Mr. Williams informed Dr. Booth that he “always struggled with relapsing into crack cocaine.” He estimated he was able to remain clean for about a month. He would normally use it daily. All it took for him to relapse was to run into a girl, which led to alcohol, and then crack cocaine. For thirty years Mr. Williams has known these triggers result in tragedy, personal ruin and often violence. Yet he cannot stop.

[174] Prior periods of incarceration and court orders have not proven to be sufficient to restrain Mr. William’s behaviour: see R. v. Cook, 2020 ONCA 809, at para. 24. His history of relapses and difficulty exerting control over his impulses provide evidence of this intractability. Even when he has had the support and love of others in his life, such as when he was with Ms. Lane or a female lawyer who was his partner for some time, he would use drugs to the point that it caused his relationships to fall apart and his circumstances to deteriorate.

[175] Dr. Booth noted that he has “not been able to benefit from treatment” for his alcohol and crack use disorders. To clarify, I find that substance abuse is an inevitable part of his life which informs my finding of intractability: see R. v. Kohl, 2022 ONCA 625, at para. 12. Viewed prospectively, I find that Mr. William’s substance use and violent re-offending will continue. There is simply no evidence to support Mr. William’s long-term amenability to treatment or his ability to control his substance use for anything more than short periods in the community. The mere opportunity for Mr. Williams to engage with substance use programming is not sufficient. Nor is the fact that his addiction is potentially treatable. His past non-compliance demonstrates he will not meaningfully follow through with any treatment. He has been subject to 10 prior probation orders and has consistently breached them and failed to follow through with treatment, demonstrating avoidance: see R. v. S.M.J, 2023 ONCA 157, at paras. 27-29.

[176] Furthermore, the risk of violence from Mr. Williams is very concerning. He does not commit minor assaults. Despite his age, as a mature man in his 50s, he continues to engage in startling acts of violence that have resulted in egregious injuries to his victims or created a high risk of a potentially lethal outcome. His two most violent convictions for non-sexual assaults have occurred in the last five years. He claimed the 2017 aggravated assault conviction was a “wake-up call” yet he committed another assault in 2018 and the index offence in 2020.

[177] Any changes in Mr. Williams’ drug addiction will demand intensive and continuing efforts. A prolonged period of abstinence is required to determine if his violent tendencies can be controlled. Regarding the defence position, I agree that any evidence of potential future programming or supervision options should be considered when determining whether there is a reasonable expectation he can be controlled in the community. Yet the evidence presented on this hearing does not raise a reasonable doubt that Mr. Williams’ treatment prospects are so compelling as to call into question my determination of intractability: see R. v. Bird, 2023 SKCA 40, at paras. 53-56.

[178] I find the Crown has proven both requirements beyond a reasonable doubt accordingly.

XVI. Conclusion on Designation

[179] The common theme in his criminal history is that Mr. Williams shows almost no insight into his past violent behaviour. He does not fully accept responsibility for his crimes and/or denies remembering anything about why they occurred. In only one case – the 1990 sexual assault entries – does he admit his actions were shameful. Even there, he denies truly sexually assaulting the first victim, claiming she was simply not “fully awake” and appeared to be “into” the sexual activity that occurred. That is, at best, highly limited insight into his offending behaviour on that date.

[180] Mr. Williams fundamentally lacks insight into the harm caused to his victims and has demonstrated nearly no empathy. He has shown no willingness to meaningfully address his substance use problems and has shown a substantial indifference to the reasonably foreseeable consequences of his behaviour on his victims, which have included serious physical injuries. The index offence included the reasonably foreseeable possibility that he could have killed his victim.

[181] I am satisfied beyond a reasonable doubt that:

(i) Mr. Williams has been convicted of a serious personal injury offence;

(ii) This offence is part of a broader pattern of violent behaviour as contemplated by Criminal Code sections 735(1)(a)(i) and (ii);

(iii) There is a high likelihood that Mr. Williams will violently re-offend; and

(iv) Mr. William’s drug use is intractable and is directly linked to his violent criminal acts.

[182] I therefore find that Mr. Williams constitutes a threat to the life, safety or physical and mental well-being of other persons and designate him a dangerous offender.

XVII. Penalty Phase: What Is The Appropriate Sentence?

[183] Mr. Williams may be sentenced to either a determinate sentence, a determinate sentence of at least two years followed by an LTSO of up to 10 years, or an indeterminate period of incarceration.

[184] As previously noted, section 753(4.1) of the Code requires an indeterminate sentence of imprisonment “unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure… will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” There is not a presumption of an indeterminate sentence, however.

[185] The requirement that indeterminate detention must be imposed where the judge is not satisfied there is a “reasonable expectation” that a lesser sentence will adequately protect the public against the commission of murder or a serious personal injury offence was held to be a “rational means to achieve the public protection objective” inherent to the dangerous offender regime: see Boutilier at para. 76. The term “reasonable expectation” should be interpreted as a “likelihood”, “a belief that something would happen”, or “a confident belief for good and sufficient reasons”: see Straub at para. 30. It is a more stringent requirement than a “reasonable possibility”: see Straub, supra, citing R. v. Groves, 2020 ONCA 86, at para. 15.

[186] When determining whether the dangerous offender’s behaviour is manageable, a court should consider:

(1) evidence that the offender avoided treatment;

(2) failed to respond to or terminated treatment;

(3) breached court orders;

(4) lacked motivation;

(5) continued to be involved in high-risk conduct;

(6) had a serious personality disorder; and

(7) was a high risk to engage in violent recidivism

See Straub at para. 64; R. v. K.P., 2020 ONCA 534, at para. 13.

[187] Mr. Williams is entitled to the least restrictive sentencing option that will adequately protect the public. If I am satisfied that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence, then I must impose such a sentence. Second, if I find a conventional sentence would not meet this standard, then I must consider whether I am satisfied that a conventional sentence of a minimum of two years in jail followed by a LTSO for a period of up to 10 years will adequately protect the public from the same concerns.

[188] When considering these sentencing options, in R. v. Spilman, 2018 ONCA 551, the Ontario Court of Appeal addressed whether, in deciding the length of a determinate sentence, the sentencing judge is restricted to imposing a term of imprisonment that would be appropriate for the predicate offence if the offender were not designated a dangerous offender. The Court decided that the judge was not so restricted, due to the finding of dangerousness. I do agree with Ms. Bacchus’ concession that Mr. Williams’ ongoing struggles with addictions and his pattern of committing violent offences require a period of supervision far greater than what can be lawfully imposed with a conventional sentence.

[189] Given the position of the parties, the primary issue for me to decide is whether a fixed sentence of no more than six years (in addition to his pre-sentence custody) followed by a 10-year LTSO will adequately protect the public, or whether Mr. Williams must be sentenced to an indeterminate period of incarceration.[^6]

Past Efforts At Rehabilitation

[190] Mr. William’s letter to the court, which he wrote while incarcerated on the index offence, demonstrates insight. Having had four years to remain sober in jail, he has had the time to focus on his future. In his own words, he acknowledges he needs help, but believes he is “finally and realistically ready to change”.

[191] The difficulty I have is that, as previously explained, Mr. Williams has consistently avoided long-term treatment for his drug and alcohol addiction and following through with the rehabilitative options presented to him while out of custody. He has engaged with a variety of programs and organizations both while in custody and while in the community. These are detailed extensively in Dr. Booth’s report. None have succeeded. This is primarily due to Mr. Williams not staying committed to the programs, dropping out of them, blaming others for his failures, and then reusing drugs. His failure to remain in the St. Lawrence Valley secure treatment unit is particularly troubling. Dr. Booth testified it is unusual to be removed from this program due to the inmate’s behaviour. Yet Mr. Williams was removed and would not necessarily be readmitted in the future.

[192] One staff member at the St. Lawrence Valley secure treatment unit used racist language and a co-peer used a racial epithet when referring to Mr. Williams. I accept the defence submissions that this would have made it more challenging for Mr. Williams to feel comfortable at this facility and to engage with treatment accordingly. He experienced racism throughout his life. That a staff member would use such language is abhorrent and would understandably cause Mr. Williams to doubt the appropriateness of the facility. Ultimately, however, Mr. Williams chose not to respond in a manner that would allow him to continue with the programming he had started. He disrupted the therapeutic environment. Even if his initial reaction can be explained, his refusal to continue to cooperate with programming demonstrates his lack of commitment to meaningfully address his addictions. He was moved to another unit for a fresh start, and then a third unit. He had multiple interventions, and conferences with staff were organized to respond to his needs. This was all done to have him succeed. His problematic conduct continued.

[193] I find, unfortunately, he lacks genuine motivation to improve his drug addiction once released from custody. He may show temporary commitment to this goal but ultimately it has always proven to be time-limited. His long history of breaching court orders demonstrates that not even probation and the threat of future charges for failing to comply have been able to modify his behaviour in a pro-social manner. The greatest success he has had for community-based programming was a 10-month residential program at CAMH completed around the summer of 2014. That does demonstrate he can follow structured treatment for a period of time. His criminal entries which accumulated after this program nevertheless demonstrate it does not prevent future offending.

[194] While he has seen a psychologist over the last two years at the TSDC since his arrest on the index offence, he has made, at most, marginal improvements concerning his behaviour. Mr. Tamscu testified that the availability of substance abuse and mental health program was affected by the pandemic and staff shortages at the TSDC. Programming availability has not returned to the pre-pandemic levels. Yet some rehabilitative programming remained available, including individual programming on a variety of subjects, including substance abuse. Mr. Williams did take a few sessions of substance abuse educational programming in 2016 while at the TSDC, and I received a very brief letter confirming he completed a substance use program since he has been detained on the index offence as part of a Core Life Skills program. While the details of what was involved in this programming, and the amount of time he spent engaged with it were not presented to me, it is some evidence of Mr. William’s efforts at rehabilitation.

[195] Considering all of the evidence presented on this hearing, I nevertheless conclude there is no basis to find Mr. Williams is motivated to seek treatment and change himself once released from custody: see A.R. at para. 28; R. v. Wielgosz, 2023 ONCA 550, at para. 7.

[196] He continues to engage in drug use and highly dangerous, violent behaviour including the use of weapons such as for the index offence. His victims may include other men he has animosity towards or women, including those with whom he has had even brief intimate relationships. His potential victim pool is large.

[197] Prior relationships with women who played a positive role in his life have been unable to keep him from using drugs. He lost two relationships – the first with Ms. Lane, and another with a female lawyer – due, at least in part, to his substance use. Even after his son was born, he was not sufficiently motivated to cease his drug use in order to be meaningfully present as a father.

[198] Prior to the commission of the aggravated assault charge which resulted in a conviction in 2017, Mr. Williams had stable housing via a subsidized apartment.[^7] This was in contrast to some of his life where he was without housing. He would also visit Sound Times during this period. Even with those supports in place, it was not enough to ensure he did not subsequently re-offend.

[199] To his credit, Mr. Williams has refrained from violence and misconduct while in custody. That is the only environment that allows him to engage in longer periods of substance abstinence, and where he has engaged in some programming for substance use. Yet as soon as he can reacquire substances such as crack cocaine he returns to criminal activity. Dr. Booth testified that when someone with a history of substance use refrains from substances for a year or more the risk of relapse decreases significantly. Mr. Williams has been incarcerated for periods near or greater than a year in the past and upon his release has consistently returned to substance use regardless. In 1990, 1998, 2004 and 2017 he spent at least a year in pre-sentence and/or post-sentence custody.

CSC Institutional Programming, Community Supervision Options and Supports Available to Offenders

[200] Ms. Bacchus submits that if placed in a penitentiary for a determinate sentence, Mr. Williams will be the subject of a correctional plan. A correctional plan includes an assessment of the offender’s static risk factors and dynamic risk factors (e.g. history of substance abuse.) A specialized sex offender assessment will also be completed for anyone with a history of sexual offences.

[201] Correctional programs are made available to all offenders. They are intended to address the multiple risk factors that contribute to an offender’s criminal behaviour. The Integrated Correctional Program Model (ICPM) addresses violence, sexual violence and substance abuse. It offers four distinct correctional program streams for male offenders. These four distinct program streams allow the CSC to target the needs and risks presented by specific offender populations. As explained in the materials filed by the Crown, “the multi-target and sex offender programs have been adapted for offenders who have unique responsivity needs that may impact both functioning (i.e., cognitive impairments, mental health issues and/or learning disabilities) and their ability to participate successfully in correctional programming.”[^8]

[202] The CSC operates Community Correctional Centres (CCC), such as the Keele Community Correctional Centre in Toronto. They provide “a structured and intervention-centred living environment for offenders on release… [and] are designed for offenders who need a high degree of structure based on their higher level of risk or have complex needs”.[^9]

[203] While on release in the community, Mr. Williams would be subject to strict supervision, under parole, statutory release, or the terms of a LTSO. This can include a condition to comply with urinalysis to check for the consumption of drugs or alcohol.

[204] Mr. Williams would likely have access to a Community Mental Health Initiative to assist him with addressing his addiction needs and mental health issues.

[205] These resources, while impressive, cannot prevent Mr. Williams from re-offending. Mr. Williams would have unsupervised access to the community while subject to an LTSO. Mr. Williams’ inevitably returns to drugs and when he uses them, he presents a high likelihood of reoffending violently.

[206] I note as well that Dr. Booth testified that his view of the appropriate sentence including a 10-year LTSO was premised on his understanding that Mr. Williams would be continuously supervised once in the community. He was “quite uncomfortable” with the notion that Mr. Williams might have unsupervised access to the community and in his view that would not appropriately manage Mr. Williams’ risk, at least initially.[^10]

“Burnout Theory”

[207] Dr. Booth’s opinion was that a determinate sentence and 10-year LTSO would be an appropriate disposition. While not binding on the court, his opinion is certainly very informative. Dr. Booth based this conclusion on the fact that such an order would take Mr. Williams into his 70s when violent recidivism and criminality are relatively rare. This is the minimum required to protect the public. He clarified during his testimony he was envisioning a determinate sentence of approximately five years so that Mr. Williams would have access to the intensive treatment available in the federal correctional system.

[208] Dr. Booth emphasized that Mr. Williams would benefit from intensive treatment programming for alcohol and cocaine use, including a residential treatment program with a longer stay as he has had difficulty maintaining his abstinence in the past. He will also need ongoing aftercare to maintain his sobriety.

[209] He has few protective factors that will mitigate his risk of re-offending. He is likely to qualify for a high-intensity program within corrections which may reduce that risk.

[210] Dr. Booth explained that he was basing his recommendation on the generally accepted fact that there is a statistically significant reduction in offenders’ risk profiles as they age. By the time a determinate sentence and period of long-term supervision ends, an offender who has reached a certain age (in this case, 75+), will see his risk significantly lessen. Yet even if I were to impose a six-year determinate sentence, Mr. Williams would be released from custody between the age of 63 and 65 (accounting for the standard release provisions contained in the Corrections and Conditional Release Act, s.c. 1992, c. 20).[^11]

[211] A court cannot rely on any conclusions about a particular offender’s risk to re-offend violently in the future based solely on his age. A statistical tendency does not necessarily inform a particular offender’s future criminal behaviour. This is the case even when the offender is already at an advanced age when the predicate offence was committed: see Sentencing, Principles and Practice, D. Robitaille and E. Winocur, Chapter 6, pp. 200-201; R. v. Grayer, 2007 ONCA 13 at paras 72-75; R. v. Veysey, 2016 ONCA 97 at para. 13; R. v. Edwards, 2008 ONCA 414, at para. 11. R. v. Poutsoungas, 1989 7104 (ON CA), at p. 390.

[212] In R. v. Taylor, 2012 ONSC 1025, Justice Wilson of the Superior Court held that “[e]vidence of a tendency in the general population, without more, is insufficient to determine that an offender’s risk will decline with age. The evidence relied upon must be specific to the offender”: see para. 295.

[213] Mr. Williams has committed some of his most serious crimes of violence in his 50s. He has shown no signs of slowing down or ceasing his violent tendencies nor has he demonstrated any change regarding his substance use. To the contrary – his convictions for aggravated assault in 2017 and the index offence represent some of the most violent and harmful convictions on his record.

[214] His actuarial scores place him at a high risk to reoffend even when compensating for him turning 60 shortly. Dr. Booth could only testify that he was “reasonably confident” Mr. Williams’ specific risk to re-offend violently will decrease over time. The evidence particular to Mr. Williams does not support the general theory that he will cease committing crimes of violence simply because he will be older.

Likelihood of Control in the Community

[215] Dr. Booth testified that it would take years of successful treatment before there would be a reasonable expectation that Mr. Williams could be controlled in the community. Additionally, Dr. Booth testified that Mr. Williams requires intensive supervision. Importantly, he requires a prolonged period of substance abstinence. Mr. Williams has been detained on the index offence and there is no evidence he has acquired any non-medically prescribed drugs while in custody.

[216] Mr. Williams expressed an interest in engaging with an intensive program to address his substance use issues and has some support in the community now through his son and his son’s maternal grandmother. This is evidence of some improvement in his ability to connect with other people.

[217] Yet, Mr. Williams has never demonstrated an ability or willingness to complete intensive treatment while in custody as demonstrated by his failure at the St. Lawrence Valley secure treatment unit. He has also not been involved with community-based programming while out of custody for any long-term period.

[218] In 2017, he served 11 months of “real-time” in pre-sentence custody in addition to a sentence of 2 years less a day in custody followed by probation. That was his longest period of incarceration at that point which resulted in him attending St. Lawrence Valley. Ms. Bacchus noted that he has been in pre-sentence custody following his arrest on the index offence on January 31, 2020, for nearly four years. That is a longer amount of time than he has previously experienced. Nevertheless, I do not find that a prolonged period of “drying out” in custody demonstrates Mr. Williams will then refrain from substance use once released. To the contrary, his record of criminal behaviour demonstrates the opposite.

[219] The evidence of how Mr. Williams could be monitored and supervised in the community under the terms of a LTSO would not reduce his risk to an acceptable level given his intractable drug use and long, documented history of relapsing and committing further criminal offences. I find there is not a reasonable expectation that a measure lesser than indeterminate detention will adequately protect the public against the commission by the offender of a serious personal injury offence. I find Mr. Williams will not follow treatment and programming. I accept Dr. Booth’s testimony that Mr. Williams lacks the emotional insight to recognize on a deeper level what his difficulties are and translate that into meaningful change for the future.

[220] Mr. Williams would have access to programming while incarcerated at a penitentiary. Ms. Bacchus submits that he should be allowed to complete this programming which could reduce his likelihood of re-offending in the future. I find it would be mere speculation to conclude he could be controlled in the community given his long-standing substance use problems simply because he would have access to this programming as part of a longer determinate sentence: see A.R. at para. 33.

[221] Ms. Bacchus noted that should Mr. Williams relapse, he is subject to the terms of an LTSO and that there are enforcement mechanisms that would ensure he was apprehended. The CSC operates a National Monitoring Centre, which is a centralized operational unit providing service 24 hours a day, 7 days a week. However, even when an offender is subject to an LTSO, the CSC does not provide 24-hour supervision. Offenders will have unsupervised access to the community.[^12]

[222] The risk Mr. Williams presents to the community while unsupervised is that he will inevitably find his way back to drugs and then re-offend violently and/or sexually. The harm associated with many of his prior crimes demonstrates he presents a serious risk to the safety of any future victim.

R. v. Morris Considerations

[223] When considering Mr. Williams’ moral culpability, future risk and treatability, I must consider his particular background and life experiences. Mr. Williams is a Black man. He has experienced racism throughout his life. I accept the parts of his personal history that he explained to Dr. Booth and that are documented throughout much of the rest of the evidence including the EPSR that Mr. Williams was mistreated due to his racial status beginning as a child. It influenced his life’s trajectory.

[224] In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal held that social context evidence relating to an offender’s life experiences may be considered to mitigate the offender’s degree of personal responsibility for the offences. Courts should take judicial notice of the existence, cause and impact of anti-Black racism in Canadian society and consider any evidence of the specific effect of anti-Black racism on the offender himself: see para. 13.

[225] As stated by the Court of Appeal:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society and in particular in the Greater Toronto Area: see para. 1.

[226] The Court further held that social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and to achieve a sentence which best serves the purposes of sentencing.

[227] While an offender need not show a causal connection between his actions and the negative effects of anti-Black racism, the Court of Appeal did explain that there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: see para. 97.

[228] In the EPSR, Mr. Williams admitted that when he can access drugs, such as when he is in downtown Toronto, the temptation of consuming drugs is “quite high and would only lead him into a further decline”: see page 7. While he blamed the victim in the index offence of calling him the “N-word” before their fight, he accepted that “being under the influence of drugs and some alcohol precipitated this event even more”: see page 11.

[229] Mr. Williams began drinking at age 23 in part to deal with the “pain of racism.” However, he tried cocaine following his breakup with his partner Ms. Lane, not as a result of a racist experience: see page 6. Furthermore, he was sober when he completed a penitentiary sentence in 1992 and realized he did not need drugs. Yet he started experimenting with crack cocaine simply because he was “bored”: see page 6.

[230] Tragically, Mr. Williams’ danger to the community is primarily a result of his inability to control his addiction to substances. Ms. Pemberton noted specifically that while Mr. Williams has been able to remain drug-free for “very brief periods”, his dependency on drugs leads him to re-offending and a negative lifestyle: see page. 15. An individual with this intractable problem is not made less dangerous based on his status as a member of a historically disadvantaged group: see R. v. Sim (2005), 2005 37586 (ON CA), at para. 18.

[231] Mr. Williams has had over thirty years to address his substance abuse problems. Untreated addiction does not remain a mitigating factor in perpetuity. Nor can Mr. Williams forever blame his continuing criminal actions to the negative experiences he had as a Black man, including those experiences during his childhood and later at the hands of the police as a young adult. He explained that as a young man, he concluded that the police specifically and society more broadly viewed him as a bad person and as a result, he “emulated these qualities.” Whatever mitigation that might have arguably presented when he began to offend as a young man does not diminish his long history of criminal behaviour.

[232] Mr. Williams’ situation is thus very different than those presented in Morris, and subsequent cases that have found an offender’s moral culpability has been significantly mitigated by prior experiences with systemic racism. In these cases, a central focus has been on the offender’s status as a youthful offender and persuasive evidence of rehabilitative potential: see Morris at para. 178, and R. v. Marier, 2023 ONSC 5194, at paras. 81-5.

[233] Mr. William’s history of offending is primarily linked to his substance use problem. I do not accept that his history of offending is sufficiently linked to the effects of systemic racism so as to affect my decision on sentencing for the index offence. Even if his moral culpability is mitigated as a result of his experiences with racism, that does not outweigh the evidence I accept which demonstrates his extremely poor prospects for engaging with treatment to ensure he can be safely monitored in the community: see R. v. Tynes, 2022 ONCA 866, at para. 104.

[234] Furthermore, the gravity of Mr. Williams’ index offence and prior history of serious violent offences is not somehow diminished by what drove him into substance abuse problems originally.

[235] Finally, I note that many of Mr. William’s prior crimes of serious violence were directed against women. He cannot excuse his repeated acts of sexual and physical violence on vulnerable female victims due to his prior, unrelated experiences with systemic racism.

[236] I do not disregard for a moment the crucial importance that the principle of restraint should take in all sentencing cases involving Black offenders. The tragic history in this country of the over-incarceration of Black Canadians must be considered.

[237] Yet the Court of Appeal in Morris held that while the sentencing of Black offenders should not be equated with the Indigenous offenders, the jurisprudence that has developed since the Supreme Court of Canada’s decision in R. v. Gladue, [1999] 1 SCR 688, can be informative. I note that in Gladue, the Supreme Court of Canada held that generally, “the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same”: see para. 79. At the same time, the Supreme Court has also been clear that mitigating factors may reduce the sentence otherwise to be imposed for even crimes of serious violence: see R. v. Hilbach, 2023 SCC 3, at para. 39.

[238] Ultimately, I do not accept that the evidence regarding Mr. Williams’ prior experiences with systemic racism and any Morris considerations alter my assessment of Mr. Williams’ risk to the community. This is not a conventional sentencing hearing, and my focus must remain on whether a lesser measure than indeterminate detention will adequately protect the public from another serious personal injury offence: see R. v. Radcliffe, 2017 ONCA 176, at paras. 61-66; R. v. Napope, 2023 SKCA 1, at para. 26.

Conclusion on Penalty

[239] I have fully considered that the imposition of a determinate sentence and an LTSO does not require proof that treatment can eliminate risk or ‘cure’ underlying causes of criminal conduct. It must only be able to reduce the risk to a manageable level: see R. v. Sawyer, 2015 ONCA 602; R. v. Little, 2007 ONCA 548. The focus at this stage of the proceeding is on risk management, and a court should not require a plan which would offer complete elimination of risk: Straub at para. 48.

[240] Yet I do not accept Dr. Booth’s opinion that the sentence he proposed and as advocated for by the defence would adequately protect the public. I am satisfied the Crown has proven beyond a reasonable doubt that there is not a reasonable expectation a lesser measure than an order for indeterminate detention will adequately protect the public from a future serious personal injury offence.

[241] Mr. Williams will be sentenced to an indeterminate term of imprisonment.

XVIII. Ancillary Orders

[242] The following Ancillary Orders are also granted. First, an order pursuant to Criminal Code section 760 to produce to Correctional Services Canada:

(i) Dr. Booth’s report and a transcript of his testimony;

(ii) A copy of Justice Bovard’s reasons for conviction;

(iii) A copy of my reasons for the sentence;

(iv) A transcript of the entirety of the trial and sentencing proceedings; and

(v) The other sentencing materials filed on this hearing.

[243] A DNA Order pursuant to s. 487.051 (the index offence is a primary designated offence).

[244] A weapons prohibition for life pursuant to s. 109.

[245] The victim fine surcharge is waived.

Released: January 11, 2024

Signed: Justice Brock Jones

[^1]: Written submissions of the defence, “Dr. Booth’s report – Defence clarifications.” [^2]: Dr. Booth’s report at page 53, and his testimony provided on October 31, 2022. [^3]: Ms. Bacchus informed the court of some clarifications requested by Mr. Williams to the original submitted version of the EPSR, which I have incorporated accordingly. [^4]: My emphasis added. [^5]: He expressed similar sentiments in the letter he filed with the court: see page 4. [^6]: Mr. Williams has approximately four years of pre-sentence custody. The maximum penalty for assault with a weapon is 10 years. Even if I were to impose the maximum sentence, that limits me to a six year determinate sentence from today’s date. [^7]: EPSR at p. 10. [^8]: Reintegration Programs, CSC, 2019, at p. 6. [^9]: Community Supervision Information Package, CSC, September 2019, at p. 34. [^10]: Testimony of Dr. Booth, October 31, 2022. [^11]: The maximum penalty permitted is 10 years. Mr. Williams has already served four years in PSC. An additional six years is the most I could impose for a determinate sentence. [^12]: Community Supervision Information Package, CSC, September 2019, at p. 39.