WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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

ONTARIO COURT OF JUSTICE

DATE: 2024 01 23

BETWEEN:

HIS MAJESTY THE KING

— AND —

DEANDRE WILLIAMS

Before: Justice Allison Dellandrea

Reasons for Sentence released: January 23, 2024

Counsel: Ms. N. Jaswal....................................................................................... counsel for the Crown Mr. M. Owoh.......................................................................... counsel for Deandre Williams

DELLANDREA J.:

[1] Mr. Williams was found guilty after trial of three counts of sexual misconduct against a fourteen-year-old girl. The Crown proceeded summarily at trial.

[2] Over a period of two to three weeks while staying as a guest at the victim’s home, the offender committed progressively more intrusive sexual offences on her. These acts included fondling of the victim’s breasts over her clothing, to touching her breasts and vagina under her clothes, and finally to attempting to penetrate her with his penis. On another occasion the offender tried to make the victim touch his penis with her hand.

[3] The Crown recommends a sentence of 3 years’ imprisonment for Mr. Williams’ offences. Ms. Jaswal submitted that Mr. Williams should be sentenced to two years imprisonment for the offence of sexual interference on K.G., with an additional 12 months’ consecutive sentence for the offence of invitation to sexual touching. The Crown invites me to enter a stay on the offence of Sexual Assault, pursuant to Kienapple.

[4] On behalf of the offender, Mr. Owoh submits that a more appropriate sentence for Mr. Williams’ offences would be a period of imprisonment of 18 to 24 months. Counsel argued that the offence of Invitation to Sexual Touching should also be judicially stayed pursuant to Kienapple, on the suggested basis that the offences were so inextricably linked as to essentially be a single delict.

[5] For the following reasons, I am imposing a total sentence of three years’ imprisonment. Mr. Williams will be sentenced to three years’ imprisonment for the sexual interference of K.G. He will be sentenced to a further 12 months’ imprisonment for the Invitation to Sexual Touching count, to be served concurrently.

The Offences

[6] Mr. Williams’ connection to the victim’s family was through her older sister, whom the offender had been dating and with whom he shares a young child.

[7] In December 2020 Mr. Williams moved into the family home, as he was without an alternate place to live. He was trusted by the victim’s mother S.S., and was considered an effective family member as the father of her infant grandchild.

[8] Mr. Williams assaulted K.G. in her own bedroom, on three occasions. The first of these incidents involved Mr. Williams entering the victim’s room, sitting beside her on her bed, and rubbing her breast and body on the outside of her clothing. The incident lasted only a matter of seconds.

[9] A few days later the second incident occurred. It was more intrusive. Mr. Williams lay on her bed and touched her breasts under her clothes. She tried to move his hands away but he persisted. The offender touched K.G.’s vagina under her clothes and inserted his finger inside her. He removed his penis from his pants and tried to get her to touch him. She kept telling him to stop. He continued before leaving her room.

[10] With respect to the final incident, approximately a week later, K.G. woke to find Mr. Williams in her bedroom, laying in her bed beside her, putting his fingers inside her vagina. The offender held K.G.’s hands together while he tried to put his penis inside her vagina from behind. The assault lasted a few minutes, and once again Mr. Williams got up and exited the room.

The Offender

[11] Mr. Williams is 23 years of age. Two presentence reports (“PSRs”) were provided containing the offender’s biographical information.

[12] Mr. Williams had a very difficult personal history. Both of his parents are deceased. His father was the victim of fatal gun violence in 2006 while his mother passed away from the challenges of poverty and ill health at the age of 25. Mr. Williams knew very little of either of his parents.

[13] Upon being orphaned, Mr. Williams was raised in Jamaica by his grandparents, both of whom have since passed. He came to Canada as a 13-year-old boy, initially to reside with his maternal aunt. Before long, his aunt relinquished Mr. Williams’ care to the state. Mr. Williams was placed in foster care, and group homes until he aged out of the system. As a youth, Mr. Williams excelled in competitive sports including soccer and football.

[14] Mr. Williams has been exposed to gun violence and likewise has friends who have been shot, and others who are serving sentences for serious crimes of violence.

[15] In 2019 Mr. Williams had a son, who is now four years old, with the victim K.G.’s older sister, J.G. Mr. Williams’ relationship with his son has been significantly strained as a result of K.G.’s allegations and by his having been found guilty of these offences. Mr. Williams expressed a desire to see and support his son, but a concern with respect to being part of the victim’s extended family.

[16] Presently Mr. Williams is in a new relationship with a new partner whom he hopes to continue to build his relationship with.

[17] While in custody, Mr. Williams has obtained a number of credits toward the completion of his high school diploma.

[18] Mr. Williams has had a rather sporadic employment history, having done brief stints of work for delivery and lawn care companies as well as at a grocery store.

[19] Mr. Williams has a criminal record. In September 2020 he was convicted of Possession of a Prohibited Firearm (s. 95(1) of the Criminal Code) for which he received a sentence of 2 years, 2 months’ imprisonment. He has a second conviction from October 7, 2022 for Theft Under $5000 for which he received a suspended sentence and probation.

[20] It is noted in the Pre-sentence Report that Mr. Williams’ response to community supervision was described as poor due to his inconsistent reporting and non-attendance at recommended counselling programs.

SENTENCING PRINCIPLES

[21] Proportionality is the over-arching principle which guides the calculus of sentence. The sentence which I impose must also reflect the seriousness of the offence, Mr. Williams’ degree of responsibility and the harm which his offences caused to the victim and to her family and community. The sentence must not be unduly harsh, and must not exceed what is just and appropriate in the circumstances.

[22] In cases of child sexual abuse, primary weight must be given to the objectives of denunciation and deterrence in recognition of the inherent wrongfulness of any violation of a child’s sexual dignity for which the moral blameworthiness is recognized to be high: Friesen, 2020 SCC 9 at paras. 5, 57-64, 77-86; J.T., 2021 ONCA 392 at paras 17-30.

[23] In J.T., our Court of Appeal gave sentencing judges this clear instruction:

Friesen does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them. I repeat Friesen’s guidance: “mid-single digit penitentiary terms for sexual offences against children are normal…substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim [at para 114].”

[24] I have reviewed the sentencing cases provided by both counsel. They reflect a range of sentences from upper reformatory to four years’ imprisonment for similar, but not identical offences to those for which Mr. Williams has been found guilty. Having reviewed these decisions and applied the principle of proportionality, I have determined that 3 years is a fit sentence for Mr. Williams based on the following factors.

Aggravating factors

[25] There are several aggravating factors in this case. These include:

(1) The repeated nature of the incidents of offending. Mr. Williams’ offences do not reflect a momentary lapse of judgment on a single occasion, but demonstrate his persistent disregard for the victim’s sexual dignity and bodily integrity over the course of two or three weeks.

(2) The escalation of the offences from briefer forms of sexual contact over the victim’s clothes to progressively more intrusive acts of sexual violence against K.G., culminating in Mr. Williams’ attempted penile penetration of the victim while physically subduing her efforts of resistance.

(3) The location of these offences being in the child’s own home is aggravating. K.G. was entitled to feel her safest within her own home. Instead she was abused in the place where she was entitled to the greatest degree of privacy and safety: her bedroom. This element has been recognized to be an aggravating factor in the sexual abuse of children: Hosain, [unreported] November 23, 2023 (OCJ) at para. 33, Kelly, J; W.T., 2016 ONSC 7776 at page 5.

(4) The significant impact which these offences have had on K.G. and her family. In her victim impact K.G. related how “confused, scared and angry” she felt at the time of her abuse. Both K.G. and her mother also expressed doubt that they can ever be free of their fear of Mr. Williams, given the lifelong connection that will always exist between he and their family.

(5) While this was not a classic relationship of trust and authority, I accept that Mr. Williams was in a position of some measure of trust as an invited guest and implied extended family member to the G. family. He abused that relationship of trust in committing these offences.

(6) Mr. Williams has a recent criminal record for a serious offence involving a firearm. He is therefore not entitled to the leniency which would be afforded to a youthful first offender. His less than stellar history of complying with terms of community supervision are also of some concern.

[26] Ms. Jaswal invited me to consider Mr. Williams’ assertions made to the author of the first PSR in relation to the victim to be aggravating. When asked to discuss the impact of his offences on the victim, Mr. Williams had stated: “I don’t even care. It’s part of the game. … There is no feelings of guilt. I got convicted. I have no remorse.”

[27] In acknowledging that a lack of remorse is not an aggravating factor, but rather is the absence of mitigating factor, the Crown suggests that these comments are so “deeply cavalier” as to invite the court’s concern and heightened emphasis on specific deterrence and denunciation.

[28] Respectfully, I do not agree.

[29] I do not interpret Mr. Williams’ comments as demonstrating any more than his perhaps coarsely phrased frustration and continued assertion of innocence which he is entitled at law to assert. That he may wish to appeal his conviction and sentence if of no moment to my sentencing analysis. However, it is clear from Mr. Williams’ position that he is not entitled to any of the mitigating impact which a guilty plea, remorse or acceptance of responsibility might otherwise have had on the sentence imposed.

Mitigating circumstances

[30] There is little mitigation to consider in Mr. Williams’ case.

[31] While he has a criminal record, Mr. Williams’ relative youth suggests that there remains potential for Mr. Williams’ rehabilitation to be encouraged.

[32] The primary factor for which Mr. Owoh invites the court’s consideration by way of mitigation is the social context evidence contained in the PSR as it relates to Mr. Williams’ difficult life circumstances as a young black offender.

[33] Invoking the teachings of the Ontario Court of Appeal in Morris, 2021 ONCA 680, counsel urges me to consider Mr. Williams’ wholesale lack of parental support and guidance, early exposure to violence, absence of positive peers and experiences of systemic racism as offering vital context to my consideration of his moral blameworthiness for these offences.

[34] The Court in Morris 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/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718 of the Criminal Code (at para. 15).

[35] It is important to note that the seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. As such, an offender’s experience with anti-Black racism does not impact on the calibration of the gravity of the offence but may only be considered as a potential factor in assessing the offender’s moral blameworthiness for it.

[36] I have no difficulty in accepting the proposition advanced by Mr. Owoh in his elegant submissions – that where Mr. Williams came from, and what he was exposed to in his 23 short years of life offered him very few, if any, chances to form positive or healthy relationships. It is clear that the legacy of violence and loss experienced by Mr. Williams have hurt and hardened him, just as they would have done to anyone who had such experiences as his. This factor is one which I have considered in the determination of a just sentence tailored to Mr. Williams for the specific offences he has committed in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code.

[37] The normatively serious offences committed by Mr. Williams demand a penitentiary length sentence. As Friesen instructs, mid-single digit to double digit penitentiary sentences should not be outside the norm for repeated sexual violations of children, particularly where such offences include penetrative acts.

[38] The circumstances of Mr. Williams’ offending are distinguishable and more serious than those in the case of D.B. 2021 O.J. 4381 (O.C.J.) in which a sentence of 18 months was imposed. In that case the offender was convicted for multiple acts of touching the 12 year old victim above and below her clothes, and for exposing his penis to the child. There was neither digital nor attempted penile penetration, and the offender had serious health issues which the court considered in determining the length of sentence.

[39] In Hossain, supra, the court imposed a three-year sentence for multiple incidents of touching over and under the victim’s clothes which included rubbing her bare vagina with his fingers. The offender was the child’s tutor. Once again, the circumstances of Mr. Williams’ offences were more aggravating as they involved more physically intrusive forms of touching committed against K.G. while she was in her own bed.

[40] The decision of R.W., 2023 ONSC 5996 involves a slightly more aggravated set of facts to those of the instant case. There the offender was convicted of sexually assaulting his niece and her classmate. The acts in question consisted in touching of one victim above and below her clothing and brief vaginal penetration of the second victim. The offences all occurred on the same day. A four year sentence was imposed.

ANALYSIS

[41] In Mr. Williams’ case, I concur with the Crown that the offence of invitation to sexual touching, which was part of the second incident described by the victim, is a separate delict requiring proof of distinct elements of misconduct from the sexual interference count. Whereas sexual interference involves the touching of a child’s body with any part of the offender’s body, invitation to sexual touching involves the encouragement by the offender of the child’s participation in her own abuse. These offences involve related, but distinct harms to a child. I am not persuaded that Kienapple applies.

[42] Mr. Williams’ interference with K.G.’s body and with her sexual dignity was significant, repeated, escalating, and very harmful. The offences occurred within what should have been the sanctuary of the child’s own home, where he was a visitor. A strong denunciatory and deterrent sentence is required to properly convey these principles through a sentence of meaningful duration. Mr. Williams’ had a very difficult life which may have skewed his sense of responsibility, however his moral blameworthiness for this offence remains quite high.

[43] I have concluded that a three year (or 36 month) global sentence in this case puts primary weight on the objectives of denunciation and deterrence and properly reflects Mr. Williams’ moral responsibility as well as the significant harm which he caused.

[44] Mr. Williams is hereby sentenced to 3 years’ imprisonment on the offence of sexual interference, and 12 months’ concurrent for the invitation to sexual touching. The count of sexual assault is to be stayed.

[45] Mr. Williams has accrued significant presentence custody which will be deducted and applied to this sentence. Mr. Williams has been in custody since March 1, 2022 until today’s date, which is a period of 694 days. The statutory enhancement of 1:1.5 would apply to entitle Mr. Williams to 1041 days which is equivalent to nearly 35 months.

[46] Mr. Owoh supplied the court with the institutional records establishing that Mr. Williams spent over 200 days of his presentence custody at the TSDC on lockdown, during which time the conditions were notably restrictive and harsh. While he would have been entitled to more credit for this experience than is required for the balance of his sentence, I have no difficulty in crediting Mr. Williams for an additional 30 days pre-sentence custody in view of this factor.

[47] Mr. Williams has therefore served his sentence as of today’s date.

[48] I also make the following orders:

(1) An order under s. 487.051 of the Criminal Code for the collection of bodily substances for DNA analysis, as sexual interference is a primary designated offence;

(2) An order under s. 109(3) of the Criminal Code for life;

(3) An order under s. 490.012 of the Criminal Code requiring Mr. Williams to comply with the Sexual Offender Information Registry Act (SOIRA) for 20 years;

(4) An order under s. 161 of the Criminal Code for 10 years preventing Mr. Williams from:

(a) Seeking, obtaining, or continuing any employment, whether or not is it is renumerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;

(b) From contacting or communicating in any way, either directly or indirectly, with K.G.;

(c) From having any contact including communication by any means, with a person who is under the age of 16 unless he does so under the direct and continuous supervision of an adult over the age of 21 years of age or subject to the terms of a valid family court order made after today’s date in relation to his own child.

Released: January 23, 2024 Signed: Justice A. Dellandrea