ONTARIO COURT OF JUSTICE
DATE: 2025 01 03
COURT FILE No.: 23-48123769
Toronto Region
B E T W E E N :
HIS MAJESTY THE KING
— AND —
LIONEL BRIAN WILLIAMS
Before Justice H. Pringle
Heard on December 6, 2024 [1]
Written Reasons for Judgment released on January 3, 2025
Nathaniel Smith ................................................................................... counsel for the Crown
Paula Rochman ............................................................................................................... amicus
Lionel Williams ............................................................................................... self-represented
PRINGLE J.:
OVERVIEW OF ASSESSMENT APPLICATION
[1] The Crown has applied for Mr. Williams to undergo a psychiatric assessment pursuant to s. 752.1 of the Criminal Code. This section reads:
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
[2] The applicable sections [2] under which the Crown says Mr. Williams may be found a Dangerous Offender (DO) or Long-Term Offender (LTO) are:
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour…
753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
[3] The predicate offence is one count of Assault with a Weapon. Mr. Williams pled to this offence on September 5, 2024. The Crown proceeded by indictment, making the maximum sentence not more than ten years custody.
[4] It is distinctly possible that Mr. Williams struggles cognitively. Ms. Rochman was appointed to assist the court with issues that Mr. Williams, as an in-custody self-represented litigant, could not meaningfully advance himself. She has also taken great care to ensure Mr. Williams understands this process. [3]
[5] Mr. Williams had no substantive legal submissions to the Crown’s assessment application. As amicus curiae, Ms. Rochman’s submissions invited consideration of the following:
- (i) What parts of this evidentiary record can the Court safely rely upon?
- (ii) Is there a legitimate statutory basis upon which a successful DO/LTO application could rest, including:
- (a) Is there a relevant pattern within the meaning of subsections (i) or (ii)? [ref: DO preconditions, s. 753(1)(a)(i)(ii)]
- (b) Should I consider, at this stage, whether a sentence of two years or more would be appropriate for the predicate offence? [ref: LTO preconditions, s. 753.1(1)(a)]
- (c) If so, and if a two-year sentence is inappropriate for the predicate offence, is it a DO prerequisite that Mr. Williams receive a sentence of two years or more for the predicate offence?
[6] These reasons explain why the Crown’s application for psychiatric assessment has succeeded.
THE EVIDENTIARY RECORD
[7] The Crown relied upon three forms of evidence in this application: police synopses, a CPIC print-out of convictions, and court transcripts. All three were acknowledged to be admissible, but amicus invited caution in assessing police synopses.
[8] Two main points underlay this submission. First, some synopses were challenging to match up with CPIC entries, leading to the question of whether some could be linked to findings of guilt. Second, synopses alone are not necessarily credible, reliable proof of the factual details of a criminal offence. As the Court of Appeal said in R. v. Williams, 2018 ONCA 437 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. Certain parts of a synopsis may find support and confirmation, either directly or by reasonable inference, in other parts of the record. If so, it is open to the sentencing judge to rely on those incidents as evidence in support of a finding that the statutory elements of dangerousness, such as the requisite pattern of behaviour, are made out.
[9] Appendix A to this decision sets out where and how police synopses were found to match to CPIC entries in this case. This is not to say that the facts in those synopses were accepted, wholesale, as accurate. They were not. Some were weakly corroborated and could bear little weight. Appendix A to this judgment summarizes my conclusions about each synopsis.
[10] The court transcripts and CPIC record were both capable of receiving significant weight. The transcripts were certified copies. Mr. Williams, after reviewing the CPIC record with amicus, acknowledged its accuracy.
[11] At age 38, Mr. Williams has a depressingly consistent criminal record. As a youth, he incurred eight findings of guilt, including violent entries in 2001 and 2003. As an adult, he has been convicted of multiple offences almost every year [4] for 18 years. Mr. Williams has been found guilty, as an adult, of sixty-seven criminal offences in the past 20 years.
[12] Mr. Williams asked me to remember that he has been homeless and struggling to survive his entire adult life. Many of the sentencing transcripts confirmed this. They showed Mr. Williams becoming disruptive after being refused money or insulted while panhandling, or being moved along from a warm place he was illegally sleeping in, or being removed from public places for trespassing.
[13] A palpable connection exists between Mr. Williams’ unhoused, marginalized status and the number and nature of his criminal convictions. Additionally, many of his convictions are minor, non-violent offences. But there are also multiple entries for violent, assaultive behaviour:
- Two adult convictions for assault with a weapon (2024 and 2008);
- One adult conviction for assault causing bodily harm to peace officer (2020);
- One adult conviction for assault causing bodily harm (2008);
- Fourteen adult convictions for common assault (various dates in 2023, 2021, 2020, 2019, 2018, 2015, 2014, 2011, 2009, 2008, 2007);
- Five convictions for uttering threats.
[14] But Mr. Williams has never received a penitentiary sentence. Indeed, he has never been sentenced to more than 12 months in custody. His 2023 set of convictions resulted in a global total of 12 months custody being imposed, as did a prior set of convictions from 2020 [5].
[15] Mr. Williams has been placed on probation many times. He has been convicted of breaching probation orders on sixteen different occasions. An early transcript referred to a diagnosis of conduct disorder. Others referred to a diagnosis of schizophrenia and past Community Treatment Orders.
[16] Some transcripts suggested non-compliance with treatment was connected to his offending. Recently [6], Rose J. prophetically said:
His reluctance to get help for psychological issues leads me to find that Mr. Williams is at a high risk to re-offend and violently re-offend….if Mr. Williams does not get help and stop re-offending violently, he may well appear before the court in the future facing a long term or dangerous offender application. There is every reason to believe Mr. Williams will attack a stranger violently at some time after he is released from custody.
[17] In reviewing CPIC in conjunction with the transcripts, it was clear that the cycle of Mr. Williams’ re-offending could be concerningly short. For example, three convictions from 2023 reflected violent assaults committed on December 1, 2022, December 7, 2022 (10 days later), and January 22, 2023 (46 days later).
[18] On June 6, 2023, he was sentenced to twelve months less presentence custody for those assaults. The time Mr. Williams had left to serve, after sentence was imposed, was five months.
[19] Five months later, on November 1, 2023, he committed the predicate offence of assault with a weapon. I do not know the precise date he was released from custody. But clearly, he was not in the community long before re-offending violently and, as will be explained, in a very similar way.
ANALYSIS: SERIOUS PERSONAL INJURY OFFENCE
[20] Mr. Williams admitted that in the early evening of November 1, 2023, he assaulted a 22-year-old female university student. She was a stranger to him and was walking alone. Mr. Williams made eye contact with her, spoke some “gibberish”, and then began following her.
[21] The victim got nervous. She took off her headphones and picked up her walking pace. Mr. Williams reacted by running toward her. He threw a rock at her head. It connected. She fell to the ground and Mr. Williams left the scene. The victim was left with a concussion, a laceration requiring stitches, and significant emotional trauma.
[22] Indisputably, this conviction for Assault with a Weapon met the “serious personal injury” threshold: see the definition in s. 752(a). [7]
ANALYSIS: COURT MIGHT MAKE DO / LTO FINDING
[23] Next, the Crown had to establish reasonable grounds to believe Mr. Williams might be found a dangerous offender or a long-term offender.
[24] The threshold for this latter precondition is low. As per R. v. Whitmore, 2011 ONSC 6976 at para. 14:
This last step in the analysis has been described as whether the court has a reasonable suspicion on the circumstances of this case that the accused might be found to be a "dangerous offender" or a "long term offender". The threshold is very low, in fact below the standard of balance of probabilities. All that is required is the possibility the Crown may establish either status on the ultimate application using such an assessment. See R. v. Vincent, [2002] O.J. No. 5623 (S.C.J.) at para. 3; R. v. Torres, [2007] O.J. No. 1402 (S.C.J.) at para. 22 and 23; R. v. McArthur, [1997] O.J. No. 5146 (S.C.J.) at para. 20 and R. v. Vanderwhal, 2010 ONSC 265, [2010] O.J. No. 246 at para. 27.
[25] Similarly, Quigley, J. said in R. v. States, 2015 ONSC 3265 at paras. 45-46, 51:
….the threshold standard for ordering an assessment under s. 752.1 has always been low. In R. v. McArthur, decided in the context of the pre-1997 legislative framework but equally applicable today, LaForme J., as he then was, confirmed that s. 752.1 is merely a procedural step and a summary proceeding. He confirmed that the applicable standard is "a possibility" that the offender might be found to be a dangerous offender. The question is not a complex one. It is simply whether the offender should be remanded for observation by a psychiatric expert for the purpose of gathering evidence that would or may later assist in the determination of whether he is in fact a dangerous or long-term offender.
This view was further confirmed and followed by this court after the 2008 amendments. In R. v. Stratton, Bellefontaine J. found that a s. 752.1 application for assessment is intended to be a lesser summary proceeding. A plain reading of the provision, and particularly the use of the word "might" confirmed in his view that the threshold standard is lower than the criminal or even civil standards of proof. In R. v. Fulton, the Saskatchewan Court of Appeal found, at para. 21, that "might speaks to possibilities" and that, in determining whether to make an order for assessment, the court must ask whether the prospect of the offender being found to be a dangerous or long-term offender is merely "within the realm of possibility or beyond it."
It seems clear that on any fair reading of the current jurisprudence, the applicable standard is indeed low, plainly some distance below the balance of probabilities and a great distance removed from the criminal standard of proof that applies on the dangerous offender characterization itself.
[26] R. v. McArthur, [1997] O.J. No. 5146 (Gen. Div.) at para. 20 put the question to be decided as:
“based on the circumstances and evidence, is it a logical conclusion that there is a possibility the offender might be found to be a dangerous offender? …. Is the court satisfied, after weighing and balancing all the relevant considerations, including the evidence, that the offender should be remanded for observation?”
[27] Amicus observed that the threshold may be low, but it still exists and for good reason. Potentially, a s. 752.1 assessment is the first step towards state control over an individual’s liberty for the rest of their life: see R. v. Naess, [2005] O.J. No. 936 (S.C.J.) at para. 77; R. v. P.H., [2005] O.J. No. 5698 (S.C.J.) at para. 32. [8] This assessment application must not be approached lightly, no matter where the threshold of proof falls.
[28] The Crown referenced two possible paths to a dangerous offender finding in this case. I agree with Mr. Smith that the Crown need not particularize, at this stage, which path the Crown intends to pursue.
[29] The two paths have commonalities. Both require establishing a specific behavioural pattern:
- (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…
[emphasis added]
[30] Helpful definitions of “pattern”, “repetitive”, and “persistent” were included at R. v. Naess, supra at para. 61:
A pattern is a repeated and connected design or order of things as opposed to a differentiated or random arrangement. Repetitive or persistent connotes "constantly repeating" (R. v. Yanoshewski) or "renewal or recurrence of an action or event"; "Continuous; constantly repeated"; "Existing continuously in time; enduring": The Shorter Oxford English Dictionary, supra at 1560, 1798.
[31] I agree with both counsel that “pattern”, in this context, must be more than generically observing the repetition of violent behaviour. As per R. v. Wong, 2016 ONSC 6362 at para. 199, 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" (R. v. Hogg, 2011 ONCA 840, [2011] O.J. No. 5963 (Ont. C.A.) at para. 40).
[32] R. v. Tynes, 2022 ONCA 866 provided more guidance on this point. At para. 67, Tulloch J.A. [as he then was] explained the first subsection’s pattern requirement:
Justice Watt of this court held in R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, that the pattern requirement in s. 753(1)(a)(i) is not based exclusively on the number of offences. It is also rooted in the elements of similarity in the offender's behaviour: R. v. Langevin, 11 C.C.C. (3d) 336 (Ont. C.A.), at pp. 348-49. Similarities can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims: R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 33, leave to appeal refused, [2014] S.C.C.A. No. 300; R. v. Neve, 1999 ABCA 206. Where there are numerous incidents in the pattern - as in this case - fewer similarities between the incidents are required: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 39; R. v. Jones, [1993] O.J. No. 1321 (Ont. C.A.), at p. 3.
[33] Tynes, supra at paras. 70 and 71 explained that the facts of the predicate offence need not fit squarely into a pattern under ss. (ii). The scope appears to be broader, in that the predicate offence must form a part of persistent, aggressive behaviour:
Unlike the "pattern of repetitive behaviour" in s.753(1)(a)(i), the jurisprudence has not interpreted this subsection to require similarities between the predicate offence and past offences. Instead, the past behavior must be "persistent" and coupled with indifference and intractability: see e.g., R. v. Wong, 2016 ONSC 6362, at para. 70; R. v. Robinson, [2011] B.C.J. No. 1001 (B.C. S.C.), at para. 122; R. v. Morin, 173 Sask. R. 101 (Sask. Q.B.), at para. 85.
Based on the appellant's history of using violence when confronted with problems, particularly in his interactions with the police, the trial judge was satisfied that there was evidence of persistent aggressive behavior. I fail to see how this finding was unreasonable. The appellant had "demonstrated a quality of obstinately refusing to give up or let go", and all of his violent offences were triggered by intense emotions, drug use, and confrontation.
[34] Similarly, the trial judge in R. v. Wong, supra at paras. 217 and 218 said:
Unlike the "pattern of repetitive behaviour" in s.753(1)(a)(i), the case law has not interpreted this subsection as requiring any particular degree of similarity between the instances of aggressive behaviour. To be persistent, the past aggressive behaviour need not be continuous, but it must be "persistent" in the sense of enduring or constantly repeated (R. v. Robinson, [2011] B.C.J. No. 1001 (B.S.S.C.) at para. 122; R. v. J.Y. (1996), 104 C.C.C. (3d) 512 (Sask. C.A.) at paras. 25-27; R. v. Morin (1998), 173 Sask R. 101 (Sask. Q.B.) at para. 85).
Aggressive behaviour does not require an element of physical force. Instead, aggressive behaviour "is a vague term that can run the gamut between 'pushy and overly-confident' to 'extremely violent'" (R v Campbell, [1992] O.J. No 2079 (O.C.J.); R v R.J.M, [2008] O.J. No 5991 (S.C.J.) at para 70; R v. S.L., [2011] O.J. No. 6078 (O.C.J.) at para. 32).
APPLICATION OF LAW TO FACTS
[35] I can see a logical, reasonable route between factual findings summarized in Appendix A and a conclusion that Mr. Williams might be found a dangerous offender. On the current evidentiary record, this might not be the most likely outcome. But at this stage, that is not the threshold of proof.
[36] The evidence realistically made out two possible patterns of behaviour fitting the required thresholds.
Pattern of Repetitive Behaviour – Section 752(1)(a)(i)
[37] The first pattern showed Mr. Williams’ past failure to restrain his behaviour and a likelihood of causing physical injury or severe psychological damage to others by continued failure to restrain his behaviour.
[38] This pattern was supported by evidence which included:
i. The assault of a female stranger, unprovoked and in public, using a rock thrown at her head, causing physical and psychological injury. Mr. Williams followed her before the assault, which occurred on November 1, 2023 [predicate offence];
ii. The assault of a female stranger, unprovoked and in public, by punching her in head, causing physical injury. Mr. Williams followed her before the assault, which occurred on January 22, 2023;
iii. The assault of a female stranger, unprovoked and in public, by punching her in back, causing physical and psychological injury. Mr. Williams approached her unprompted before the assault, which occurred on December 7, 2022;
iv. The assault of a female stranger, unprovoked and in public, by punching her in head, causing physical injury. Mr. Williams followed her before the assault, which occurred on December 1, 2022;
v. The assault of a female stranger, unprovoked, location unclear but she was leaving a building, by punching her in the back, causing psychological injury (unknown if physical injury caused) and which occurred on March 22, 2021;
vi. The assault of a female stranger, unprovoked, location unclear but between entrance doors of a building, by punching her in back, causing physical and psychological injury and which occurred on April 15, 2020;
vii. The assault of a female peace officer, punching her in head during arrest [9], causing physical injury and which occurred in spring or summer of 2020;
viii. The consistent assaultive behaviour established over 20 years in his criminal record;
ix. The short timeline between the commission of the assaults set out at (i) through (vii);
x. The pattern of non-compliance with court orders, meant to restrain behaviour, established over 20 years in his criminal record.
[39] Mr. Williams submitted that he did not deliberately go out seeking female victims. He does not deliberately prey on women. He described this similarity as incidental. He submitted that the street life can be hard. His criminal record reflects this fact and his marginalized existence. But his record should not, he argued, support a dangerous offender finding.
[40] However, at this stage the Crown need not prove beyond reasonable doubt that the requisite pattern exists. The Crown does not have to rule out inferences inconsistent with the presence of this pattern. Only the possibility of a pattern had to be established upon reasonable grounds. I found, on reasonable grounds, that this possibility had been proven.
[41] There may be other explanations for what appears, on a preliminary basis, to be a pattern. Mr. Williams assaults people in public because he lives in public spaces. The recent recurrence of female victims may be, as he says, happenstance. But again, to accept alternate explanations as dispositive would mean failing to apply the requisite test.
Pattern of Persistent Aggressive Behaviour – Section 752(1)(a)(ii)
[42] A second pattern arose from this evidentiary record. This one fit within the parameters of subsection (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…
[43] On ten occasions between 2013 and 2023, Mr. Williams physically assaulted and/or threatened a person who refused him something he wanted (money, to sleep in public, to remain in a location to panhandle). Most of these occurrences involved physical assault. This clearly showed the potential to fit into a pattern of persistent aggressive behaviour.
[44] The facts of each occurrence demonstrated a substantial degree of indifference about the reasonably foreseeable consequences to others. The presence of a subsection (ii) pattern was also suggested by proof of 20 years of committing assaults, threatening people, and non-compliance with court orders.
[45] While the facts of this pattern of persistent aggressive behaviour did not fit exactly with the facts of the predicate offence, Tynes, supra, at para. 70 said it need not and binds this lower court. The predicate offence does, obviously reveal the continuation of persistent, aggressive behaviour showing Mr. Williams’ indifference to the consequences of throwing a rock at someone’s head.
THE LTO PRECONDITION OF TWO YEARS OR MORE
[46] Finally, I am of the view that I should not consider, at the assessment stage, whether a sentence of two years or more would realistically be imposed for the predicate offence. This rendered academic the final question raised, which was whether a sentence of two years or more must be a dangerous offender prerequisite. [10]
[47] To explain, amicus invited consideration of whether a sentence of two years or more would be likely for this predicate offence. There is solid evidential support for this argument. Despite the volume of convictions, Mr. Williams never served a sentence longer than 12 months. He has never served a sentence in the penitentiary. Two years for one offence would be a significant jump from his prior sentence, which was 12 months for similar misconduct but reflected the commission of three separate assaults.
[48] Indeed it may even be unlikely, given these points, that this court would impose two years or more for the predicate offence. But quantum of future sentence should not be determinative of an assessment application. After all, a sentence of more than two years is not an impossible outcome either. In my view, this LTO prerequisite was met, on a preliminary basis, by the fact that a sentence of two years or more is a possible outcome for this charge.
[49] Moreover, the purpose of the legislation resolved this issue in the Crown’s favour. Parliamentary intent was to, above all else, protect the public. It seemed counterintuitive, given that purpose, to dismiss the Crown’s application because I pre-determined sentence on a less than complete sentencing record.
CONCLUSION
[50] There are reasonable grounds to believe that Mr. Williams has been convicted of a serious personal injury offence. There are reasonable grounds to believe Mr. Williams might be found a dangerous or long-term offender.
[51] Mr. Williams should understand that this does not mean he will be found a dangerous or long-term offender. At this stage, the evidence proved a basis for him to be psychiatrically assessed for the purpose of assisting with any possible future s. 753 / 753.1 application.
[52] The application must be granted. A draft order of remand for assessment may be emailed to me in advance of the next court date.
[53] Given that Mr. Williams is a self-represented litigant, I am grateful to Ms. Rochman for her diligence and care and to Mr. Smith for his fairness and objectivity.
Released: January 3, 2025
Signed: Justice H. Pringle
Footnotes
[1] Written submissions were also filed by the Applicant and amicus.
[2] Mr. Williams has never committed a sexual offence and, therefore, some subsections in s. 753 do not apply in his case.
[3] While I am confident Ms. Rochman will review these reasons with Mr. Williams, an oral summary of this judgment will be provided in court on January 10, 2025.
[4] His CPIC record shows a gap in convictions between August 2015 and March 2018.
[5] My review of this record suggested the CPIC entries from this matter were incorrectly recorded to Mr. Williams’ benefit. I preferred the transcript to the CPIC printout on this issue.
[6] R. v. Williams, 2023 ONCJ 238, para. 21, June 6, 2023.
[7] N.B., the maximum penalty for Assault with Weapon is not more than ten years, while a Serious Personal Injury Offence must be punishable by a sentence of ten years or more. This component was met at the ten-year mark.
[8] These cases pre-dated 2008 statutory amendments to the applicable legislation, but the observations at each paragraph remain an apt reminder.
[9] This offence did not squarely fit within the pattern established in the other offences but had sufficient points of similarity that I could not rule it out as part of this pattern either.
[10] Some discussion of this question was found in R. v. Naess, supra, at paras. 55-59.