Court File and Parties

COURT FILE NO.: CF-13-1943 DATE: 2018/06/27 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – JEFFREY WILLS

Counsel: Meaghan Cunningham, for the Crown Alan Brass, for the Accused

HEARD: April 11, 2018

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

Sentencing Decision

CORTHORN J.

Introduction

[1] On February 20, 2018, Jeffrey Wills was found guilty of four of the six offences with which he was charged. The charges stem from Mr. Wills’ operation of a home daycare in 2012 and 2013 and relate to two girls in his care at that time.

[2] Mr. Wills was found guilty of the following offences:

• Count 1 – Invitation to A.M., between September 1, 2012 and May 15, 2013, to sexual touching (s. 152 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”));
• Count 2 – Exposure of his genital organs to A.M., between September 1, 2012 and May 15, 2013 (s. 173(2) of the Code);
• Count 5 – Sexual interference with D.B. on or about May 15, 2013 (s. 151 of the Code); and
• Count 6 – Invitation to D.B. on or about May 15, 2013, to sexual touching (s. 152 of the Code).

[3] When tried by way of indictment, the offence of invitation to sexual touching is punishable by a jail sentence of a minimum of one year and a maximum of 14 years (s. 152(a)).

[4] Tried in the same manner, (a) exposure of genital organs is punishable by imprisonment for a minimum of 90 days to a maximum of one year (s. 173(2)(a)), and (b) sexual interference for a minimum of one year to a maximum of 14 years (s. 151(a)).

Positions of the Parties

a) The Defence

[5] Defence counsel (“Counsel”) submits that the offences for which Mr. Wills was convicted with respect to D.B. stem from a single incident; therefore, the conviction on one of the charges is to be stayed conditionally. Counsel submits that the appropriate sentence with respect to the three remaining convictions is in the range of 12 months to less than two years. A sentence in that range would lead to Mr. Wills’ imprisonment in a provincial institution and require that terms of probation be imposed.

b) The Crown

[6] The Crown argues that the two offences for which Mr. Wills is convicted with respect to D.B. do not arise from a single incident; they are based on two distinct acts. The Crown submits that there should not be a conditional stay of one of the convictions with respect to D.B.

[7] The Crown submits that the appropriate sentence in this case is a total of five years.

Background

[8] The trial before me was the second trial for Mr. Wills on the offences with which he was charged. The first trial proceeded in the Ontario Court of Justice, and concluded in the fall of 2015 with Mr. Wills’ conviction on six counts. Mr. Wills was sentenced to 60 months in jail (R. v. Wills, [2015] O.J. No. 5913 (Ont. C.J.)).

[9] Mr. Wills was successful before the Ontario Court of Appeal on an appeal from his conviction (R. v. Wills, 2016 ONCA 965). He did not appeal the sentence.

[10] I am not constrained by the sentence imposed at the conclusion of the first trial. I am entitled to consider the first sentence imposed, and to do so in the context of (a) the difference in outcome between the first and second trials, and (b) the evidence on the second trial.

[11] I turn to the fundamental principles of sentencing set out in the Code.

Criminal Code Provisions

[12] Section 718 of the Code defines the fundamental purpose of sentencing as “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. The objectives of the sanctions imposed have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[13] Other principles to be applied include that the sentence “be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1). In addition, the court is required to take into consideration aggravating or mitigating factors that relate to the offence or the offender (s. 718.2). The sentence imposed must be similar to sentences imposed on similar offenders, for similar offences committed in similar circumstances (s. 718.2).

[14] The victims in this case are under the age of 18 years. Section 718.01 of the Code specifically provides that denunciation and deterrence are primary objectives of sentencing in a case involving offences of the kind for which Mr. Wills has been convicted: “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”

Preliminary Issue

[15] Counsel requests a conditional stay of the conviction on one of the two offences for which Mr. Wills was convicted in relation to D.B. That request is said to be based on the principles established by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. Counsel submits that there is a close nexus between the two offences—including that they arise from a single event that occurred on a single day.

[16] In opposing the request for a conditional stay, the Crown submits that:

• The principles in Kienapple do not apply in the circumstances of this case;
• The charges pursuant to ss. 151 and 152 of the Code stem from very distinct conduct (actual touching and a request to touch, respectively); and
• The offences described in ss. 151 and 152 are not subsumed by one another.

[17] The Crown also points to the treatment of the convictions on the same counts in the first trial. The trial judge did not stay either conviction. The lack of such a stay was not a ground of appeal from the conviction. Finally, the Court of Appeal did not comment on the subject of a stay.

[18] I find that Mr. Wills is not entitled to a conditional stay of his conviction on one of Counts 5 and 6. The charges of sexual interference under s. 151 and invitation to touch under s. 152 of the Code do not constitute “two separate offences out of the same matter” (Kienapple, at p. 751). The two offences do not include “the same or substantially the same elements” (Kienapple, at p. 751). I agree with the submission by the Crown that the gravamen of the two offences is different.

[19] Counsel’s request for a conditional stay of the conviction on one of Counts 5 and 6 is denied.

Sentencing Analysis

a) Aggravating Factors

[20] As the operator of a daycare, Mr. Wills stood in a position of trust towards each of D.B. and A.M. The girls were respectively 3.5 and 5 years old when the events giving rise to the convictions occurred. Mr. Wills was trusted by the girls, and their respective parents, to care for the girls. I find that the relationship between a daycare provider and the children in his charge is at the high end of relationships of trust.

[21] The nature of the offences, in particular Count 5 with respect to D.B., is such that Mr. Wills’ conduct represents an egregious breach of the trust placed in him. He was to care for the girls, protect them, and keep them safe during daytime hours. He was to do so in order for the girls’ parents to have peace of mind about the well-being of their children. With that peace of mind, the parents continued and/or resumed their working lives outside their respective homes.

[22] The decision to place D.B. and A.M. in Mr. Wills’ care was not a decision that any of the parents took lightly.

[23] Because of the various evidentiary rulings required during this trial, I have on a number of occasions already made findings with respect to the credibility of the parents and their qualities as individuals. Those findings were made based on the substantive content of the parents’ evidence and their manner of presentation as witnesses.

[24] The parents each gave victim impact statements. Outside the constraints of the witness box and the question - answer scenario of testimony, each of the parents impressed me as an articulate and emotionally intelligent individual. The parents were each compelling and very clear in their certainty of the damage done to their respective views of the world around them and around their children.

[25] D.B.’s and A.M.’s parents remain devoted to minimizing both the short-term and long-term impact on the girls, of Mr. Wills’ egregious conduct. The girls’ parents are understandably concerned about the unknown: What emotional and/or psychological harm will the girls suffer? Will they be able as adults to form a loving, caring relationship with a partner? As the girls continue to grow and mature, their respective parents will be vigilant for signs of potential harm.

[26] Raising a child is a difficult and demanding job. Because of Mr. Wills’ conduct, that job has been made even more difficult and more demanding for these parents. Mr. Wills’ behaviour has had and continues to have a significant impact on the lives of D.B., A.M., and their families.

b) Mitigating Factors

[27] Mr. Wills is an educated person, with a post-secondary degree.

[28] Mr. Wills is married with four children. He is described by Counsel as having the support of his family. There is, however, no evidence before the court, as part of the submissions on sentence with respect to views held by members of Mr. Wills’ family. I am aware that members of the family were present in court during the submissions on sentence. Beyond that, there is nothing before the court in regard to support offered by Mr. Wills’ family.

[29] Another factor Counsel requests that the court consider as mitigating is media coverage of Mr. Wills’ first trial on these charges. That coverage is described as “public shaming”. Counsel asks the court to consider that factor and the impact it had on Mr. Wills’ children.

[30] I can appreciate that the charges against Mr. Wills have impacted the lives of his children. There is, however, no evidence before the court with respect to either the media coverage or the impact that coverage had on the Wills’ children. Even if established by evidence as opposed to by an inference drawn, that impact is not, in any event, a mitigating factor on sentence.

c) Other Factors

[31] Subsequent to the conclusion of the first trial, Mr. Wills was charged with public nudity and breach of his conditions of release. He was convicted of those offences in January 2018. I was not aware of that conviction until informed of it by Counsel during the sentencing submissions.

[32] At the dates of the offences for which he stands convicted, Mr. Wills did not have a criminal record. Absent a criminal record as of May 2013, when charged with the offences related to D.B. and A.M., Mr. Wills is to be sentenced as a first-time offender (R. v. Bissonnette, 2014 ONSC 5767, 116 W.C.B. (2d) 556).

[33] The Crown submits that Mr. Wills’ lack of remorse, although not an aggravating factor, must still be considered in the context of rehabilitation as one of the principles when imposing a sentence. I agree and find that Mr. Wills’ continuing denial and lack of insight demonstrates that he is not amenable to and is unlikely to benefit from rehabilitation (R. v. O.B. (2008), 79 W.C.B. (2d) 772, [2008] O.J. No. 4423).

d) The Original Sentence

[34] I am required to consider the fitness of the sentence originally imposed following Mr. Wills’ conviction at the first trial. As directed by the Ontario Court of Appeal in R. v. L.B. (1997), 35 O.R. (3d) 35:

• If I consider the original sentence to be fit, I may re-impose it, adjusting for any time spent in custody following the original conviction; and
• If I am of the view that the original sentence was not fit, either because it was low or because new facts have emerged, I may impose a longer sentence.

[35] I find that the circumstances of the two victims of these offences are different following the second trial than they were following the first trial. D.B. and A.M. did not testify during the first trial. They did not do so because of decisions made in an effort to protect the girls.

[36] When imposing sentence following the first trial, the trial judge said, “While no one knows what the future holds for the children involved, it does appear that things have improved since the offences, and it is the court’s hope that the children and the families continue on this healing path” (R. v. Wills, [2015] O.J. 5913, 15 para 3).

[37] Upon the completion of the second trial, the circumstances are different. Each of the girls was called to give evidence on a voir dire as part of the Crown’s case. In their respective victim impact statements, the parents described anecdotally the impact on the girls of having to testify, including the requirement to watch the video statements taken in 2013. The parents described that, in essence, as a result of having testified the girls are now educated as to the harm done to them by Mr. Wills.

[38] The point is not that Mr. Wills is to be criticized for exercising his rights, as an accused, on appeal and to a second trial; he is not being criticized for exercising his rights. The point is that now, in 2018, the consequences of Mr. Wills’ conduct are different from what they were in 2015.

[39] Counsel submits that in the absence of experts’ reports in which opinion evidence is offered as to the harm to the girls, the anecdotal information provided by the parents in their respective victim impact statements is insufficient for consideration on sentencing. I disagree.

[40] The court does not require expert evidence as to specific consequences of the harm to D.B. and A.M. At paragraph 36 of its decision in R. v. D.D., the Ontario Court of Appeal said:

In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known. (See (2002), , 157 O.A.C. 323, 58 O.R. (3d) 788.)

[41] I have considered the first sentence imposed and find that it is appropriate and fit in the circumstances following the second trial. Taking into consideration the totality principle, I am satisfied that the sentences imposed by the first trial judge on a per count basis do not exceed Mr. Wills’ overall culpability (R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 42). To the extent that the overall sentence includes consecutive sentences, I find that the total sentence is not unduly long or harsh (s. 718.2).

Conclusion

[42] Taking into consideration the sentencing principles to which I have referred, the aggravating factors, the mitigating factors, and the treatment of Mr. Wills as a first-time offender, I find that the appropriate sentence is a total of 60 months.

a) Jail Sentence

[43] Mr. Wills is sentenced as follows:

Count 1 – Invitation to A.M., between September 1, 2012 and May 15, 2013, to sexual touching (s. 152), 18 months in jail; Count 2 – Exposure of your genital organs to A.M., between September 1, 2012 and May 15, 2013 (s. 173(2)), 18 months concurrent; Count 5 Sexual interference with D.B. on or about May 15, 2013 (s.151), 42 months consecutive; and Count 6 – Invitation to D.B. on or about May 15, 2013, to sexual touching (s. 152), 18 months concurrent.

[44] The Crown and counsel agree that Mr. Wills is to be given credit for 29 months served to date. The method of calculation of the 29 months was set out on the record when sentence was imposed. The Crown and counsel also agree that the 29 months are to be credited against the sentence imposed on Count 5.

[45] There remains a total of 31 months to be served as follows: 18 months on Count 1 and 13 months consecutively thereafter on Count 5, with the 18 months on each of Counts 2 and 6 to be served concurrently.

b) Ancillary Orders

[46] In addition to the 60 months in jail, there shall be the following ancillary orders:

1. Mr. Wills shall provide a blood sample for the DNA bank.
2. There shall be an order pursuant to s.743.21(1) prohibiting Mr. Wills, while serving his sentence, from communicating, directly or indirectly, with D.B., S.B. [D.B.’s father], S.B. [D.B.’s mother], A.M., T.M. and C.M. or anyone he knows to be a member of their families.
3. Pursuant to s. 490.012, Mr. Wills shall comply with the Sex Offender Information Registration Act. This will be in effect for a 20-year period.
4. There shall be an order pursuant to s. 161, in effect for 15 years, prohibiting Mr. Wills from: a) Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, unless you are accompanied by and under the supervision of a responsible adult; b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and c) Having any contact – including communicating by any means – with a person who is under the age of 16 years, unless that person’s parent or guardian is present, and in relation to Mr. Wills’ children, subject to any conditions or restrictions set out by the Children’s Aid Society.

c) Victim Surcharges

[47] Mr. Wills has six years to pay the victim surcharges.

Madam Justice Sylvia Corthorn Released: June 27, 2018