R. v. Williams, 2020 ONSC 5516

COURT FILE NO.: CR-15-3480

DATE: 20200915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAILLE WILLIAMS

Brian Manarin, Elizabeth Brown, for the Crown

Laura Joy, for the Defendant

Heard: November 14, 15, 16, 19, 20, 21, 2018, December 19, 20, 21, 2018,

March 4, 5, 2019, June 7, 11, 12, 2019, August 6, 9, 2019, September 26, 2019, January 20, 2020 and

May 15, 2020 (via teleconference)

Amended Reasons: Paragraph 265 of the original decision was corrected on September 18, 2020 and the description of the correction is appended.

REASONS FOR SENTENCE

king j.:

INTRODUCTION

[1] This is the sentencing hearing of Maille Williams (“Mr. Williams”). He is 45 years of age and will turn 46 years old in just a few days. Regrettably, Mr. Williams has spent many of his birthdays, as an adult, incarcerated. His first offence was at the age of 17. He has acquired 56 convictions since then without considering the predicate offences. His full record is attached as Appendix “A” to this decision. Mr. Williams’ offences included breaches of court orders- both recognizance and probationary- weapon offences, possession of narcotics- both personally and for the purpose of trafficking- uttering threats, and various assaults.

[2] In seeking to declare Mr. Williams a dangerous offender, the Crown relies upon the offences committed on Mr. Sinisa Zivkovic on June 3, 2015.

[3] On May 1, 2017, Mr. Williams was convicted of three offences all related to the victim Mr. Zivkovic. There were convictions of aggravated assault, s. 268(1); forcible confinement, s. 279(2); and extortion, s. 346(1).

[4] The Crown’s position is that Mr. Williams should be declared a dangerous offender pursuant to s. 753(1)(a)(i)(ii) and (iii), and that I should conclude that an indeterminate sentence must be imposed pursuant to s. 753(4)(a).

[5] The evidence in this sentencing hearing was voluminous. In addition to various individual and sundry records pertaining to Mr. Williams’ longstanding involvement with the criminal justice system and related governmental agencies, the Crown provided approximately 25 binders of Mr. Williams’ records. These documents totalled in excess of 7,000 pages. The documents were provided by, inter alia:

• Windsor-Essex Children’s Aid Society

• Greater Essex County District School Board

• Ontario Ministry of Children, Community and Social Services (formerly Ministry of Child and Youth Services)

• Correctional Services Canada

• Parole Board of Canada

• Criminal Records

• Transcripts from previous criminal matters involving Mr. Williams.

[6] While there was some significant duplication of records and documents, when reviewed in their totality, they provide a broad review of Mr. Williams’ chaotic life.

[7] I have reviewed the records of Mr. Williams’ interactions with the Windsor-Essex Children’s Aid Society, Greater Essex County District School Board, Probation and Parole, Ontario Disability Support Program (“ODSP”), provincial custodial records, federal custodial records, psychiatric and psychological assessment records, informations, witness statements and transcripts related to his previous convictions. In addition, I have reviewed and considered the assessment of Dr. Phillip Klassen (“Dr. Klassen”), dated September 8, 2017, prepared for this proceeding pursuant to s. 752.1, and a verbal update of that report which formed part of his evidence. I have also reviewed and considered the assessment of Dr. Julian Gojer (“Dr. Gojer”), dated February 25, 2019, and a verbal update of that report of his evidence.

The Predicate Offences

[8] In my trial judgment, I found that Mr. Williams and Mr. Zivkovic both had a history relating to illicit drugs. They had met each other in prison. Once released, they had ongoing dealings relating to illegal drugs.

[9] On June 3, 2015, Mr. Zivkovic was attempting to avoid arrest from the police. He went to the apartment of Nicole Armstrong, a woman who had been introduced to him by Mr. Williams.

[10] The apartment was located at 505 – 495 Glengarry Avenue in Windsor. Mr. Williams arrived 45 minutes later. He was unannounced. He entered the unlocked apartment door and proceeded to the chair where Mr. Zivkovic was sitting and punched him on the face with a closed fist.

[11] Mr. Williams then took out a knife and put the blade to Mr. Zivkovic and told him repeatedly, “We don’t do drugs with Nicky.” He then demanded payment of $100 to satisfy a drug debt. Eventually, he told Mr. Zivkovic it would be “a dollar a cut”.

[12] Mr. Williams then ordered Ms. Armstrong to get him the masking tape which Mr. Williams used to bind Mr. Zivkovic’s arms behind his back.

[13] Mr. Zivkovic was then put standing in the bathroom tub, and Mr. Williams proceeded to cut him numerous times on his head, chest, and stomach. He ultimately required 16 stitches. Eventually, Mr. Zivkovic said he could get the money. Ms. Armstrong’s cell phone was put to his ear to call his mother. He requested she brings $80 to Waterworld, a public swimming pool complex located next door to the Glengarry apartment.

[14] Mr. Williams removed the tape and directed Mr. Zivkovic to clean up the blood that had gathered in the tub and on the wall beside the tub. Mr. Zivkovic wiped up the blood, but missed a few traces.

[15] Mr. Williams then used duct tape again. He wrapped the tape jointly around his own left arm and the right arm of Mr. Zivkovic. This prevented Mr. Zivkovic from having freedom of movement.

[16] Next, Mr. Williams proceeded to the Waterworld parking lot with Mr. Zivkovic attached to his arm. At the parking lot, he interacted with the victim’s mother (Jasmina Zivkovic) and his younger brother (Marko Zivkovic) who arrived by car. Mr. Williams received the $80 that Mrs. Zivkovic had given Mr. Zivkovic and then returned to the apartment with Mr. Zivkovic still taped to his arm.

[17] In addition to taping their arms together to prevent Mr. Zivkovic’s movement, Mr. Zivkovic was bloodied and a cloth with blood was affixed to his head like a bandage.

[18] Mr. Williams testified in his own defence. He admitted to punching Mr. Zivkovic upon entry to the apartment. However, beyond that, his version of events differed dramatically from Mr. Zivkovic’s.

[19] According to Mr. Williams, Mr. Zivkovic wanted to purchase drugs from him but had no money. Mr. Williams was not prepared to extend any credit to Mr. Zivkovic, so Mr. Zivkovic concocted a plan to get the money from his mother for his drug purchase. Mr. Zivkovic’s plan, as suggested by Mr. Williams, was for Mr. Williams to cut him repeatedly and tape him to prevent Mrs. Zivkovic from getting her son into the car. After getting the drug money from his mother, Mr. Zivkovic wanted to purchase drugs from Mr. Williams and not leave with his mother.

[20] In my judgment, I rejected the defendant’s evidence. I made the following finding at paras. 286- 293 of my decision:

Forcible Confinement, s. 279(2)

I have not accepted the evidence of the accused that it was the idea of Sunny Zivkovic to have his hand/ arm taped to that of the accused. I am not left with a reasonable doubt by the evidence of Mr. Williams with respect to any essential element of the crime of forcible confinement contrary to s. 279(2) of the Criminal Code.

Furthermore, on the basis of all the evidence I do accept, I find that on June 3, 2015, the accused forcibly confined Sunny Zivkovic by intentionally, and without lawful authority, taping his own left arm to the right arm of the complainant contrary to his wishes in a manner that prevented him from moving according to his own inclination or desire thereby depriving the complainant of freedom of movement.

Accordingly, I am convinced beyond a reasonable doubt of the guilt of Maile Williams of the offense of forcible confinement of Sunny Zivkovic.

Aggravated Assault, s. 268(1)

I have not accepted the evidence of the accused, nor am I left with a reasonable doubt by the evidence of Mr. Williams with respect to any essential element of the crime of aggravated assault contrary to s. 268(1) of the Criminal Code.

Furthermore, on the basis of all the evidence I do accept, I find beyond a reasonable doubt that on June 3, 2015, Maile Williams intentionally cut Sunny Zivkovic with a knife on his head and torso up to 12 times knowing that this would cause him bodily harm. I also find that the force applied by Maile Williams with the knife wounded and disfigured the complainant and that this was done without the consent of the complainant and while the accused knew that the complainant did not consent to such intentional application of force.

Accordingly, I find the accused guilty of aggravated assault contrary to s. 268(1).

Extortion, s. 346(1)

Finally, I am not left with a reasonable doubt by the evidence of Mr. Williams with respect to any essential element of the crime of extortion contrary to s. 346(1) of the Criminal Code.

On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt that on June 3, 2015, Maile Williams extorted the sum of $80 from the complainant by using menacing conduct, violence and threats to demand this amount from Sunny Zivkovic without reasonable justification or excuse. R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368.

Criminal Antecedents

[21] Many of Mr. Williams’ prior convictions are supported by transcripts which contain the facts supporting the convictions. The earlier convictions, however, are documented by the content of informations, police synopses, witness statements, and probation orders.

(a) December 11, 1991 – Break and Enter with Intent

[22] Mr. Williams received a sentence of one-year probation and 40 community service hours for break and enter with intent at an abandoned school. This was a youth court conviction.

(b) January 27, 1992 – Assault, Fail to Comply with Recognizance

[23] Mr. Williams received a sentence of 65 days secure custody and 12 months probation. Mr. Williams wanted some money back from a roommate/schoolmate named Clifford Claus. Ultimately, he punched the victim. These were also youth court convictions.

(c) June 3, 1992 – Utter Threats x2, Fail to Comply with Recognizance

[24] Mr. Williams received further youth court convictions. He received a sentence of 100 days secure custody and 12 months probation, relating to the same victim as noted above. In his words, Mr. Williams “beat him up”, then “I let him run to the cop shop”.

(d) September 24, 1992 – Theft Over $1,000, Dangerous Operation of a Motor Vehicle

[25] More of Mr. Williams’ youth convictions were entered on September 24, 1992. He received a sentence of five months secure custody and 12 months probation. He stole a vehicle for joyriding purposes and then engaged in a high-speed police chase.

(e) December 15, 1992 – Possession of Dangerous Weapons, Fail to Comply with Recognizance

[26] This is the last of Mr. Williams’ youth court convictions for which Mr. Williams received a sentence of 60 days secure custody and 12 months probation. Mr. Williams advised Dr. Klassen that the weapons conviction was in relation to having a box-cutter, and the breach was a curfew violation.

(f) April 1, 1993 – Possession of Property Obtained by Crime x2, Dangerous Operation of a Motor Vehicle

[27] These are Mr. Williams’ first adult convictions. Mr. Williams received a sentence of nine months in custody and two years probation. File information indicates that Mr. Williams ran through some red lights and stop signs in a stolen car, then lost control of the vehicle and struck two other vehicles. He then fled on foot, reportedly had break-in instruments on him at the time of his arrest, and was in a police chase.

(g) October 1, 1993 – Possession of Property Obtained by Crime

[28] Mr. Williams received a sentence of three months and 12 months probation. This offence, again, involved Mr. Williams in possession of a stolen car and fleeing on foot. The vehicle was damaged, and he reportedly struggled with the police at the time of his arrest. Mr. Williams advised Dr. Klassen that he has stolen approximately 50 vehicles. On October 5, 1993, he was recommitted because of this parole violation.

(h) January 4, 1994 – Utter Threats

[29] Mr. Williams was fined $250 and given 12 months probation and a five-year firearms prohibition. Clifford Claus was Mr. Williams’ victim, once again. The threats were in relation to monies owed to Mr. Williams. Notably, the offence occurred when Mr. Claus advised Mr. Williams that he would pay him back at the rate of 25 cents a week. Mr. Williams found this to be disrespectful, and it upset him.

(i) January 31, 1994 – Breach of Probation

[30] Mr. Williams spent one day in jail for a breach of probation.

(j) March 14, 1994 – Public Mischief, Fail to Comply with Recognizance

[31] Mr. Williams received a sentence of 30 days for public mischief and a further ten days consecutive for failing to comply with a recognizance. This offence occurred in Belle River, Ontario. The public mischief occurred when he gave a false name to police.

(k) March 16, 1994 – Possession of Stolen Property, Fail to Comply with Recognizance

[32] Mr. Williams received a sentence of 90 days consecutive to the sentence he was serving from two days earlier. This involved a stolen car, and Mr. Williams tried to flee on foot- again.

(l) June 24, 1994 – Fail to Comply with Probation

[33] Mr. Williams received a sentence of four days on this date for a curfew violation.

(m) August 2, 1994 – Fail to Comply with Probation Order, Possession of a Prohibited Weapon, Possession of Break-in Instruments

[34] Mr. Williams received a sentence of 30 days for breach of probation and possession of a prohibited weapon. He violated his curfew, and at his arrest, he had mace and break-in tools. He also gave a name other than his own to the police. He received 60 days consecutive for the possession of break-in instruments.

(n) October 17, 2004 – Possession for the Purpose of Trafficking

[35] Mr. Williams was fined $500 for possessing a quantity of cannabis.

(o) October 19, 2004 – Obstruct Peace Officer

[36] Two days later, on October 19, 1994, Mr. Williams was fined $100 for obstructing a peace officer.

(p) January 5, 1995 – Assault Causing Bodily Harm

[37] Mr. Williams received a six-month sentence. He followed the victim in a vehicle. When the victim tried entering an apartment building, Mr. Williams emerged from the vehicle, punched, and kicked the victim. During this time, Mr. Williams was on probation and bail. Witnesses suggested that Mr. Williams took his dog with him during the assault, and that the assault was related to the victim’s prior testimony with an implication of being “a rat”. It was also suggested that the victim had given the occupants of the car the “finger”.

[38] Mr. Williams stated that this offence involved Rick Avery. Mr. Avery had apparently walked past Mr. Williams’ dog, a pit bull, who was tied up and kicked the dog, unaware of Mr. Williams’ presence. Mr. Williams stated that, as a result, he followed Mr. Avery for nine blocks then “beat him up”. Mr. Williams and Mr. Avery were acquaintances.

(q) June 23, 1995 – Possession of Prohibited Weapon, Fail to Comply with Recognizance

[39] Mr. Williams received a sentence of 18 days for possession of a prohibited weapon and failing to comply with his recognizance. File information indicates that police responded to a call that there was a fight and observed Mr. Williams out past curfew and in possession of brass knuckles.

(r) November 3, 1995 – Fail to Comply with Recognizance, Possession of a Narcotic

[40] Mr. Williams received a sentence of 50 days for each offence (consecutive). This sentence was imposed shortly after Mr. Williams’ release.

(s) February 23, 1996 – Possession of a Prohibited Weapon, Carry Concealed Weapon, Possession of Firearm or Ammunition while Prohibited, Tampering with the Serial Number of a Firearm

[41] Mr. Williams received a sentence of 15 months concurrent on each charge. Mr. Williams tried to flee from police. He was found with cannabis and a sawed-off shotgun.

(t) May 1, 1998 – Obstruct Peace Officer

[42] On May 1, 1998, Mr. Williams was fined $300. On April 29, 1998, Mr. Williams was in a Cadillac with stolen licence plates. At the time of arrest, he was very aggressive and challenged the police to a fight, using his dog. Mr. Williams stated that while he bought the Cadillac, the police thought it was abandoned. Mr. Williams became involved when the vehicle was about to be towed.

(u) October 21, 1998 – Possession for the Purpose of Trafficking x2, Possession of an Unregistered Restricted Weapon x2

[43] Mr. Williams received a sentence of two years, after three months of pre-trial custody. File information indicates that Mr. Williams was stopped in his Cadillac as he was known to have a non-association condition with Michelle Arnold. Ms. Arnold had allegedly attempted to cash the counterfeit currency. Both Mr. Williams and Ms. Arnold were at that point both on judicial interim release. Mr. Williams had in his possession cocaine, a scale, cannabis, baggies, a mill, a Luger and a revolver. Both handguns were unloaded, and Mr. Williams was not in possession of ammunition.

[44] Mr. Williams stated that he had never fired any handguns but his last, a Glock. He stated that having handguns was simply part of his business. He never had ammunition for those handguns and never pointed them at anyone.

(v) April 1, 1999 – Dangerous Operation of a Motor Vehicle

[45] Mr. Williams received a sentence of 90 days and a two-year driving prohibition.

(w) February 12, 2001 – Possession of Narcotic for the Purpose of Trafficking, Possession of a Schedule I Substance

[46] Mr. Williams received a sentence of six months. The drugs in question were cocaine, cannabis, and MDMA. Further, Mr. Williams had a scale, a debt or customer list, a pager, a knife, baggies, and $720 cash. The police approached Mr. Williams based on a parole warrant.

(x) November 30, 2001 – Possession for the Purpose of Trafficking, Possession of a Firearm or Ammunition Contrary to Prohibition Order

[47] Mr. Williams received a sentence of 1 month, after 66 days of pre-trial custody. File information indicates that Mr. Williams was in possession of cocaine and ammunition.

(y) February 6, 2003 – Possession of Schedule I Substance for the Purpose of Trafficking x2, Possession of an Unregistered Restricted Weapon

[48] Mr. Williams received a global sentence of three-and-a-half years, after four months of pre-sentence custody. Mr. Williams had cocaine and cannabis in his possession. He was at a hotel with two males and a female. Police arrived and found a semi-automatic handgun approximately $10,000 each of cocaine and cannabis, scales and a knife. Notably, Mr. Williams stated to Dr. Klassen that he had a good deal of money and cocaine. The gun was his; he had fired about 25 rounds during the time that he had it.

(z) August 8, 2003 – Assault Causing Bodily Harm

[49] This conviction was entered for assaulting an inmate who required 20-plus stitches. The assault occurred in prison while on remand.

[50] Mr. Williams acknowledged that he was a drug “middleman”, albeit stated that he was generally paid in cannabis, and only occasionally in money. He was a middleman because he could travel as Chair of the Inmate Committee. The victim had been fired from the kitchen for ejaculating into food. The victim apparently admitted this and laughed about it, and as a result Mr. Williams punched him once, but “three quarters of his lip fell off”. His comment at that time was, “As soon as he looks in the mirror he’ll remember that.” Mr. Williams stated that this behaviour was not a response to peer pressure, rather was a “reflex”. Mr. Williams was upset about the victim’s behaviour and felt that it could have happened to his own food. He opined that the victim, in fact, should have been more seriously hurt (“stomped out”), but Mr. Williams was already facing “heavy charges”.

(aa) January 1, 2004 – Aggravated Assault, Assault

[51] Mr. Williams received a sentence of seven years. The offence of said conviction and sentence occurred on June 30, 2002, during which Mr. Williams was, once again, on remand. Mr. Williams’ response to an inmate who blew kisses his way was to severely assault the inmate. As a result, the inmate was rendered unconscious, suffered numerous cuts and a fractured skull, and had a footwear imprint on his neck. While Mr. Williams was not charged at the time of the offence, he was charged at his subsequent arrest and incarceration.

[52] Mr. Williams noted that he had known the victim for some months; he was “just somebody on the range”. When asked about other inmates, Mr. Williams said, “I have no use for [other inmates]”. After breakfast, another inmate gestured, with a throat slitting motion, for Mr. Williams to come into the cell. Mr. Williams noted that he hit the inmate, twice, in the cell; saw no movement, yet heard some gurgling; and told the others, “You guys might want to make your phone calls.” After 20 minutes of no movement, Mr. Williams tried to waken the inmate, but to no avail. Mr. Williams suggested that his actions should have been understood as self-defence; the other inmate called him to his cell with a threatening, throat slitting gesture.

Summary of Criminal Antecedents

[53] Needless to say, Mr. Williams has, sadly, followed the path to a life of criminality that previous judges who decided matters, involving his criminal activities, predicted.

[54] On October 21, 1998, Rawlins J. noted:

Well Mr. Williams, very rarely do I get the opportunity to say this, but I looked at your record and I understand my degree of familiarity with your appearances before the courts and you have made a very definite career choice, and your career choice is criminal and your career choice is jail as a place of residence, and I believe in honouring career choices.

This is your career choice. You’re into very serious matters now with the weapons and the cocaine. You’ve been prohibited in the past. You have decided upon a course of action. It’s unfortunate at your age because it can only lead to one of two places, either jail or death and quite honestly unless you make a different career choice, I will continue to honour that career choice. We’ll start at two years now. We can go to five. We can go to ten. We can go to 20. We can go to life if you want because basically that’s what you’re asking the courts to do and I believe when someone has made such a dedicated choice, it’s not for me to say “let’s change that. We’ve tried everything to change it since you were a young offender” …

… [Y]ou have shown no signs since 1991 when you started as a young offender in making changes. It’s been seven years now and if anything, you’re escalating. You’re getting worse. So maybe you can deal with your substance abuse problem while you’re in custody.

You’ve had various periods of time to deal with your substance abuse problem while you’re in custody, while you were out of custody, and you’ve chosen not to. The prospects are dim. The chances of our meeting again the circumstances are high, wouldn’t you agree?

[55] Mr. Williams’ noteworthy response to Rawlins J. was, “I look forward to it Your Honour.”

[56] Further, on January 26, 2004, Baldwin J. observed:

I find that Mr. Williams’ prospect for rehabilitation are very poor. Although I agree with both counsel that he is intellectually an intelligent man, emotionally he is not. He has many, many problems and even when not in jail he engages in activities that put the lives of other people at risk. There is no remorse for this offence. None whatsoever. No “I’m sorry” at all to [the victim]. Mr. William has proven he will not abide by the law and there is every reason to believe that if he is released he will re-offend.

[57] Between 1995 and 2013 – an 18-year period – Mr. Williams was out of custody for only three of those years. Dr. Klassen reported that Mr. Williams’ longest consecutive period of time outside of custody totalled just 18 months.

Conclusions on Antecedent Offences

[58] As to the Crown’s proof of the criminal convictions, I am content that there is proof beyond a reasonable doubt for those facts provided by either the witnesses or the transcripts.

Evidence of Ministry of Children, Community and Social Services

[59] Mr. Kent Chapman testified as an employee of the now titled Ministry of Children, Community and Social Services for the Province of Ontario- formerly known as Ontario Child and Youth Services. Mr. Chapman had worked for the Ministry for 26 years, commencing as a youth correction officer in Hamilton.

[60] Mr. Chapman provided the court with two volumes of documents that were generated with respect to Mr. Williams. The records reference various incidents during the period Mr. Williams was in custody as a youth. Some of these included incidents of fighting while he was a resident at the Bluewater Youth Detention Centre.

Evidence of Ministry of Community Safety and Correctional Services

[61] Ms. Terri Van Gemeron has been an employee of the Ministry of Community Safety and Correctional Services for 26 years. She has worked at various facilities in Central and Eastern Ontario. She provided the court with Ministry records from Mr. Williams’ time at Millbrook, outlining various incidents of misconduct, often resulting in Mr. Williams being segregated for periods of 15 to 30 days. She relayed that inmates can be segregated because of misconduct or in some instances for their own protection.

[62] On cross-examination, Ms. Van Gemeron was questioned forcefully with respect to the treatment of African-American/African-Canadian inmates like Mr. Williams, as well as the inhumane consequences from Mr. Williams (and others) being in direct supervision or segregation. Ms. Van Gemeron noted various incident reports of Mr. Williams engaging in aggressive conduct, specifically an incident where Mr. Williams reacted after someone suggesting he was a sex offender.

[63] Ms. Van Gemeron also had custody of records pertaining to psychiatric testing performed on Mr. Williams where he “scored high” in the tests pertaining to his general risk. She also confirmed no reference in the records to Mr. Williams being convicted of any sex offences.

[64] In cross-examination, Ms. Joy questioned the witness at length about institutional racism in the correctional system, including the disproportionate number of black inmates.

Evidence of Children’s Aid Society

[65] Ms. Patricia Anderson testified as the representative of the Windsor-Essex Children’s Aid Society (“WECAS”). She was a Family Services Supervisor for the past 19 years. She provided the court with three volumes of WECAS documents, pertaining to Mr. Williams.

[66] Ms. Anderson readily concluded that Mr. Williams was the victim of a very abusive background. His mother abandoned him at a young age. His father was abusive and mostly absent from his life. Ms. Anderson concluded, significantly, based on her direct dealings with Mr. Williams and the WECAS records, that he came to the attention of the WECAS in a precarious position, particularly given the abuse and absence of love from his father.

[67] Ms. Anderson indicated in cross-examination that the Society failed Mr. Williams. He was the victim of a mother who abandoned him and a father who ignored and/or abused him horribly. Ms. Anderson concluded it broke her heart that Mr. Williams was subjected to the abuse he suffered at the hands of his father.

[68] Mr. Williams had insufficient community support; no one cared for him.

Evidence of the Greater Essex County District School Board

[69] Dr. Sharon Pyke testified as a Superintendent of Education at the Greater Essex County District School Board. She has been a Superintendent of Education for 11 years. She provided the court with Mr. Williams’ school records. They revealed he had achieved certain successes at school, but did not complete enough credits to receive a diploma.

Evidence of Correctional Service Records

[70] Ms. Karen Thomson was a Regional Manager for the Parole Board of Canada and involved with Conditional Release Programs for Ontario. She provided the court with two binders of related materials.

[71] Ms. Thomson has been with the Parole Board of Canada for 17 years, following six years with Correction Services Canada.

[72] Ms. Thomson never had direct dealings with Mr. Williams. She provided the court with an affidavit describing the functioning of the Parole Board of Canada, the individual overviews of Psychological Intake Assessments, and the Offender Management System. As well, she explained how the Parole Board determines if an individual can become eligible for a day parole, full parole, and statutory release dates.

[73] Ms. Thomson also provided the court with current statistical information regarding individuals being designated as dangerous offenders who have been sentenced for an indeterminate period. At the time she testified, there were 669 individuals currently detained indefinitely. Of those, 628 remained in custody. There were 38 on conditional release, 16 had been granted day release. There were 32 on full release, and another three persons had been deported.

[74] Significantly, while a person subject to an indeterminate sentence is eligible to seek parole seven years after the date of arrest, the average passage of time for an individual granted parole after an indefinite sentence is 17.3 years.

[75] In Ontario, of 211 indefinite sentences, almost all offenders remained incarcerated. Three were on conditional releases with five more on full parole with one offender deported.

[76] The witness also spoke to the 925 long-term supervision orders. Of these, the statistics are: 316 are still incarcerated, three are on day parole, 69 are on statutory release and 526 had satisfied the custodial portion of the sentence.

[77] The key factor is the manageability of risk in the community. The primary considerations are:

1. Protection of society

2. Undue risk

3. The likelihood of successful integration into the community, upon release

Evidence of Parole Board

[78] Mr. Chris Zurczak was a Parole Officer Supervisor with Correctional Services Canada. He served in that role for the last 11 of his 26 years of employment. He is based in Windsor, Ontario.

[79] Mr. Williams has been assessed at both Joyceville Correctional Centre and Milhaven Institution, both located, at one time, near Kingston, Ontario.

[80] Mr. Zurczak presented six binders of records pertaining to Mr. Williams. The materials outlined various intake processes and psychological/psychiatric assessment reports completed. He also testified to the Parole Board process.

[81] The records revealed that Mr. Williams had no escape attempts, but there were several violations. Many of the violations centred on the omnipresent disregard for authorities Mr. Williams has exhibited since he was a youth. Additionally, there was at least one incident where he tested positive for THC, (the chemical component in cannabis). On another, he tested positive for cocaine while housed at St. Leonard’s House.

[82] On a positive note, in relation to his work and pay review, it was noted, “This offender displayed an excellent work ethic, positive attitude and often asked for more work to do.”

[83] Mr. Williams was also capable of reporting on time and attending to duties in a diligent manner. He was also an excellent student deserving of a pay raise.

Evidence of Michelle Pope

[84] Michelle Pope testified as a Probation and Parole Area Manager (Windsor-Essex) for the Ministry of Community Safety and Correctional Services. She provided the court with information relating to probation, pre-sentence reports, stand-down reports and Mr. Williams’ level of service.

Evidence of Dr. Phillip Klassen

[85] Dr. Klassen is a forensic psychiatrist who works primarily at the Centre for Addiction and Mental Health (“CAMH”). Dr. Klassen performed the s. 752.1 assessment of Mr. Williams. He was called by the Crown as an expert.

[86] Dr. Klassen received his M.D. from the University of Manitoba in 1987. He completed his residency for Psychiatry at the University of Toronto from 1988- 1992. In 1992, Dr. Klassen became a fellow of the Royal College of Physicians of Canada with a specialist certification in Psychiatry. In 1994, Dr. Klassen participated in a fellowship in Forensic Psychiatry at the University of Toronto. In 2013, Dr. Klassen became a fellow of the Royal college of Physicians of Canada, with a subspecialty in Forensic Psychiatry. Between 1999-2009, he was an Associate Head (Education) Law and Mental Health Program Centre for Addiction and Mental Health at the Clarke Institute of Psychiatry. Dr. Klassen is also an Assistant Professor in the Department of Psychiatry and the Department of Medicine at the University of Toronto.

[87] As a forensic psychiatrist, Dr. Klassen’s areas of interest include, but are not limited to, violence risk assessment.

(a) Assessment Process

[88] Dr. Klassen met with Mr. Williams, for a psychiatric assessment, for a total of approximately seven hours on July 13, 20, 22, and 23, 2017. His report was completed on September 8, 2017.

[89] In the preparation of his report, Dr. Klassen reviewed hundreds and hundreds of electronic pages of documents including:

• Material in relation to the index offences, including the Reasons for Judgment;

• Copy of Mr. Williams’ criminal record;

• Information from police agencies and courts, including details pertaining to criminal offences;

• Medical records; and

• Mr. Williams’ correctional records.

• Ministry of Community Safety and Correctional Services (“MCSCS”) files

• School records

• CAS records

• Ministry of Children, Youth and Community Services (“MCYCS”) files, and

• Behavioural history- past and current charges and convictions

[90] Dr. Klassen also spoke with Mr. Williams’ former partner, Lisa Harvey.

(b) Background

[91] Dr. Klassen found Mr. Williams to be a person with average to above-average intelligence.

[92] Mr. Williams was raised in Windsor. He had moved numerous times, but at the age of 11 or 12, he was in the care of the WECAS. Mr. Williams did not suffer from any serious childhood illness. He did, however, suffer a loss of consciousness numerous times as a child. Regardless, he did not receive medical care in those instances. At the age of 11, Mr. Williams recalled being hit with a bat. Yet, he stayed alert and did not lose consciousness. As a response, Mr. Williams recalled breaking [the assailant’s] knees.

[93] Mr. Williams’ mother, Katherine, died of cancer in 2012. Mr. Williams recalled that his mother was a school teacher. His recollection of his mother was limited. She left with his sister shortly after his birth. When Mr. Williams was five years old, his mother tried to escape with him. Mr. Williams’ father, however, caught her and beat her.

[94] Mr. Williams believed his mother may have faced a jail sentence, which was her reason for leaving Canada. However, Mr. Williams does not remember whether she had any mental illness, any addictions, or a criminal record.

[95] Mr. Williams’ father, James, is close to 80 years old. He is a Windsor resident. He attended the sentencing hearing for a brief period. Mr. Williams’ relationship with his father, as Mr. Williams described it, was not a nurturing one. They have many “unresolved issues”. His recollection of his father was that he fathered 23 children before Mr. Williams; celebrated two different birthdays; and stole from him in the past.

[96] Mr. Williams’ description of his father was that he “… was a pimp and a dope man”; “ruled with an iron fist”; was violent with Mr. Williams and the women in his father’s life.

[97] Mr. Williams recalled his father sticking a hair curler in his anus, using drugs heavily, being aggressive and paranoid. He was a victim of sexually abuse by his father once.

[98] Mr. Williams recalled that his father was, later, convicted of sexually abusing a child. He also faced a weapons charge in 1974, and other charges in the mid-1990s.

[99] Mr. Williams was placed in a group home, in a foster home, then in what he described as a “a wealthy, white neighborhood”.

[100] Mr. Williams was expelled for breaking a peer’s nose at school. He had also confronted his foster father when faced with attempts at physical discipline.

[101] Mr. Williams was at his first foster home for approximately one year. Then, he transitioned to a second foster home. As his placement in the second foster home ended, Mr. Williams was placed in a group home.

[102] Mr. Williams stated that he engaged in sexual relations with older girls at the first group home. He, however, did not consider these relations as abuse. Mr. Williams stated that he used to sneak into the girls’ rooms. As a result, he was moved to live with the cook from the group home until he turned 16 or 17 years old.

[103] At the age of 15 or 16, Mr. Williams broke into an abandoned school and had his first police contact.

[104] At the age of 16, Mr. Williams began living independently.

[105] Mr. Williams was raised as an only child. He only met his full biological sister later in his life. His sister has two children and limited education.

[106] According to Mr. Williams, school was his escape.

[107] Mr. Williams was a “track star”. His father would try to limit those activities as part of the punishment for Mr. Williams.

[108] Mr. Williams’ recollection was that he was popular, not lonely, and had “[his] own little crew”; was a playboy at school; had some friends who were “… up to no good”; and was loved by the teachers.

[109] With respect to Mr. Williams’ “little crew”, he stated the group was not a gang and was generally into stealing cars.

[110] Mr. Williams recalled one teacher who mistreated him. In retribution, Mr. Williams dismantled the teacher’s classic car.

[111] Mr. Williams noted some behavioural problems at school. He was frequently suspended for defiance. He used to break into the school’s store, steal merchandise or money, and either use or sell what he stole.

[112] He specified one occasion where a teacher grabbed him, and “[he] simply reacted” and threw the teacher through a window.

[113] Mr. Williams’ first expulsion from school was in grade school. He was in a fight because he was triggered by rich kids who called him “nigger”. From Grade 7 onwards, “lots” of fights continued. Mr. Williams repeated Grade 7 and was placed in a vocational school. His next suspension was not until the age of 16.

[114] Mr. Williams’ recollection of his grade school was good; he did not apply himself. Mr. Williams preferred vocational studies; specifically hairstyling. He received a certificate in personal training.

[115] Mr. Williams left school at the age of 17 or 18, during when he was in and out of custody. In later years, Mr. Williams completed his Grade 12. He also has three university credits.

[116] Mr. Williams has no diagnoses, as a child, of any learning disability or ADHD.

[117] When Dr. Klassen inquired, Mr. Williams acknowledged his rebellious teens. Mr. Williams stated that his behaviour was a response to being “in the system” and being angry at the system; he was attracted to both the “glamour” of car theft and being one of the “cool kids”.

[118] Mr. Williams spoke about being a target by the police. And, he stated that he had a “chip on [his] shoulder”.

[119] With respect to conduct-disordered behavior, Mr. Williams never carried a weapon until the age of 18 when he carried box-cutters. At the age of nine or ten, he began stealing by breaking-and-entering the school. From 1991, he stole cars, either for selling or using them in other break-and-enter attempts.

[120] Mr. Williams noted his history of selling cannabis at school with a “little sidekick”.

[121] While identifying himself as a “bully slayer”, Mr. Williams denied any childhood or adolescent history of robbery, cruelty to animals, or bullying. He acknowledged initiating fights in his youth. He stated that “[he’d] get [himself] kicked out”, yet denied any history of fire-setting, lying, or truancy.

[122] Mr. Williams acknowledged his interest in “adrenaline” activities; he was a member of the Cadets for approximately two to four years because there they “shot rifles”.

[123] Mr. Williams’ first employment was at the age of 16 at Taco Bell. He was let go because he was “unsuitable” and had “offsetting demeanor”. He acknowledged he was already “too jaded”. He later apprenticed at three hair salons, but at that time he was also “getting into crime”.

[124] Mr. Williams also sold drugs – cannabis and hallucinogens. He described himself as “big in criminal and selling drugs” by 1997. He tried opening a “bodyguard” company as “talent for hire” and stealing cars.

[125] Mr. Williams stated he was not supported by social assistance; he sold drugs for funds to set up a personal training business.

[126] When Dr. Klassen inquired, Mr. Williams said he was a good money manager; had no difficulties with gambling and never had a bank account but had “liquid assets” until 2010. Mr. Williams never sought credit, owes no one, has no outstanding bills, but has outstanding fines.

[127] Mr. Williams never had a driver’s license, remarking “[his] driver’s test was a high-speed chase”. Mr. Williams often had others drive.

[128] He had no physical medical illness, no surgeries, and no medical allergies. As an adult, he has never suffered a head injury with loss of consciousness or seizures.

[129] With respect to substance abuse, Mr. Williams first used crack cocaine in 2002. He used heroin or cocaine when he was at Correctional Services Canada. He preferred the drugs used in teen years, such as cannabis or hallucinogens. During his teen years, Mr. Williams first used cannabis. As an adult, he used it “all the time”, but not daily. Mr. Williams estimated perhaps ten grams of cannabis in a seven day-week timeframe. In his late teens or early twenties, Mr. Williams used hallucinogens predominantly.

[130] During his release in 2014, Mr. Williams experimented with crystal methamphetamine. He was not physically aggressive under its influence. However, he noted people under this drug’s influence are “very sketchy” and remain irrational longer than cocaine users.

[131] While he used cocaine, he does not feel like he is addicted or needed cocaine. Mr. Williams identified cocaine as his “hard” drugs; he used it twice a week, or less.

[132] Mr. Williams stated that drugs contributed to his offending behavior only as he has been charged with drug-related offences. He stated drugs do not make him more aggressive, but he feels calmer and sleeps better when he uses cannabis.

[133] In 2015, Mr. Williams overdosed on Fentanyl once in jail – the only time he used Fentanyl. Mr. Williams stated that he did not use opioids outside of jail as “[he] liked adrenaline” – “[he’d] rather go up than go down”.

[134] When Dr. Klassen asked whether he felt he could return to drug use, Mr. Williams responded, “I don’t really need to.” He indicated he will return to cannabis use in the future.

[135] With respect to alcohol, Mr. Williams described himself as “a happy drunk”. He estimated his consumption of alcohol to be less than once a week. He offered that alcohol played no role in his criminal record and he could safely return to alcohol use.

[136] He has never received any substance-related treatment.

[137] Mr. Williams received high intensity violence programming and was in the Persistently Violent Offenders program. The first group was between 16 and 18 weeks. The second group was for three months. Mr. Williams stated that he “helped make the program”.

[138] When Dr. Klassen inquired, Mr. Williams said he could recall most of what he learned. However, Mr. Williams could not articulate a personal strategy to remain non-violent. He only offered that he should “stay away from guys”, and “don’t let loose on anybody that doesn’t deserve it”. Nonetheless, he maintained that one should “answer violence with violence”.

[139] Mr. Williams stated that there has been no community-related violence on his criminal record since 1995. He stated the he should “defend [himself]” in jail, and he has gone out of his way not to hurt “civilians”.

[140] Mr. Williams has been treated with psychiatric medication. Specifically, he received the antidepressant Escitalopram, for “anxiety and hypervigilance”.

[141] He has never received residential treatment or been admitted to a psychiatric facility.

[142] Mr. Williams was uncertain of his needs for treatment, when asked. His strategy is avoidance, but he acknowledged it cannot always work in jail. He reiterated that if people bring him violence, “[he’ll] make an example of him”, to prevent future difficulties.

(c) Diagnosis

[143] In Dr. Klassen’s opinion, Mr. Williams suffers from antisocial personality disorder (“ASPD”).

[144] According to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, (“DSM-5”), ASPD is a pervasive pattern of disregard for and violation of the rights of others. It can be indicated by three or more of the factors set out at page 36 of Dr. Klassen’s report. They are:

• Failure to conform to social norms with respect to lawful behaviours

• Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for profit or pleasure

• Impulsivity or a failure to plan ahead

• Irritability and aggressiveness as indicated by physical fights or assaults

• Reckless disregard for the safety of self or others

• Consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations

• Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another

[145] In Dr. Klassen’s opinion, Mr. Williams meets the test for all seven of these factors and has done so since the age of 15.

[146] At page 37 of his report, Dr. Klassen concluded:

This gentleman meets criteria for a conduct disorder, insofar as there’s a history of theft, break-and-enters, lying, and aggressive behaviour. He meets the adult criteria for antisocial personality disorder. He also presents, as is not uncommonly found in persons with antisocial personality disorder, with some narcissistic personality traits, including entitlement, exploitiveness, and lack of empathy.

(d) Risk Assessment

[147] Dr. Klassen said all risk assessment tools are moderately successful in predicting future violence. To estimate Mr. Williams’ likelihood of violent recidivism, he was scored on four tools: the PCL-R, VRAG, DVRAG, and HCR-20.

[148] Dr. Klassen provided a thorough overview of the nature and function of these testing methodologies at pages 37-38 of his report, as follows:

Scientific research has consistently shown that actuarial or structured methods of risk assessment are the most accurate. Actuarial methods provide probabilistic estimates of risk, based solely on empirically established relationships between predictors and the outcome of interest; a probabilistic estimate of risk indicates the percentage of people with the same score, on a given metric or risk assessment tool, who would be expected to re-offend within a defined period of opportunity. Among the best actuarial methods of risk assessment are the Violence Risk Appraisal Guide (VRAG, to be used when the index offense was a non-sexual violent offense) and the Sex Offender Risk Appraisal Guide or Static-99R (to be used when the index offence was a sexual offense). The HCR-20 is also a useful risk assessment tool. The VRAG, SORAG and HCR-20 incorporate the Psychopathy Checklist-Revised (PCL-R), which in and of itself is a useful risk assessment tool, and is also of assistance in predicting compliance with community supervision and treatment responsiveness.

For many years the term psychopathy was largely a lay term, poorly operationalized and understood. Over the past approximately two decades, due largely to the work of Dr. Robert Hare and his colleagues in the construction and repeated validation of the Psychopathy Checklist-Revised (PCL-R) our understanding of psychopathy has been greatly enhanced. Psychopathy is the personality dimension felt to be most related to offending behaviour. The “gold standard” for the measurement of psychopathy is the PCL-R. This is a semi-structured instrument that appraises individuals in 20 domains. Each domain may be scored 0, 1 or 2, thus rendering a total score on a continuum from 0 to 40 ....

[149] These scores assume release into the public absent significant interventions or controls.

[150] Using PCL-R, Dr. Klassen’s scored Mr. Williams at 29 out of 40 possible points. The score of 29 places Mr. Williams on the 80th percentile (approximately). Individuals with similar score have difficulties with general and violent recidivism, with treatment outcome, and with community supervision.

[151] Using VRAG, Dr. Klassen’s score for Mr. Williams was 16. The score of 16 places Mr. Williams on the 87th percentile (approximately). Individuals with similar score recidivated violently at a rate of 64 percent over a ten-year opportunity in the community. Dr. Klassen noted this outcome data is older and might be an overestimate.

[152] Using HCR-20, Dr. Klassen’s score for Mr. Williams ranged from 28-31. Dr. Klassen noted that this outcome data is also older and might be an overestimate.

[153] Dr. Klassen considered all these tools and concluded that Mr. Williams is at a relatively high risk of violent recidivism, although not extremely high. He estimated Mr. Williams’ probability of violent recidivism in the community to be at least, or a little above, 50 percent.

(e) Criteria for Dangerous Offender – Long-Term Offender Designation

[154] Dr. Klassen made few recommendations if Mr. Williams were to return to the community. I will review those later in this decision.

Defence Evidence

Certificates of Programming

[155] Mr. Williams has received education and training during his many years of incarceration. As indicated, he has achieved his high school equivalency and three credits towards a university degree. He has also undergone and/or participated in a variety of behaviour modification programs including 500 hours of violence offender programming.

[156] In custody, Mr. Williams completed job training courses including WHMIS, Chemical Safety, First AID/CPR certification courses, and a correspondence course toward an International Sports Science Academy Diploma.

Evidence of the Offender

[157] Mr. Williams testified at this sentencing hearing. I will summarize his evidence.

[158] He was terribly abused as a child. This abuse was compounded by the mishandling he suffered from the Windsor-Essex Children’s Aid Society. He was the victim of systemic racism in his societal and agency contacts (I note however that Mr. Williams did not place undue weight on that sad reality).

[159] He began leading a criminal lifestyle in his teen years. The low level crimes he committed as a youth and young adult continued into his middle-aged years. He has only faced one incident of alleged violence with women. He has no convictions for sex-related offences.

[160] In his criminal lifestyle, he has not, for many years, injured a “civilian”. He meets violence with violence.

[161] He spent much of his testimony putting a more favourable “spin” on his involvement in a number of his criminal convictions.

[162] He spoke freely to Dr. Klassen and Dr. Gojer regarding his criminal activities. Curiously, he disagreed with some of that information. In particular, he testified he never stole 50 cars yet that appears to be what he conveyed to Dr. Klassen.

[163] Should he receive a dangerous offender designation and an indeterminate sentence, this will amount to a “death sentence”. He stated he “does not want to die in jail”. He asserted the Crown is trying to “bury him under the jail”.

[164] Should he be released he wants to do the following:

1. Move to London with his girlfriend, Ms. Jen Black, to get away from the local crime scene. He no longer wants to be in “the game” walking the streets, looking for trouble. He wants to spend time with his children, nieces and nephews.

2. Apply for disability benefits as he does not think he can do regular work (ie. McDonalds).

3. He would like to train dogs and perhaps work as a trainer at a gym.

4. He is prepared to see whatever medical professionals are required and undergo whatever rehabilitation treatment is specified.

5. While he made a choice to lead a life of crime, he wants that to end.

[165] In a thorough cross-examination, it was put to Mr. Williams that on previous occasions before the court he has promised to change his ways but has never done so. He has paid lip service to the warnings of judges who easily predicted the path he was taking. To summarize, while he states his word is his bond, he has broken that bond on each instance. Ms. Brown deftly put to Mr. Williams that the only thing different this time is that he is facing a sentence of indeterminate duration.

Evidence of Dr. Julian Gojer

[166] The offender called Dr. Julian Gojer as an expert witness. Parenthetically, the Crown had objected to Dr. Gojer being qualified as an expert witness with respect to forensic psychiatry. I will not review that process other than to indicate that after a voir dire I decided on June 7, 2019 that Dr. Gojer could testify as an expert regarding forensic psychiatry in that regard. That decision is indexed as 2019 ONSC 3801. As the court heard on the blended voir dire, Dr. Gojer’s background and qualifications are as follows:

1. He obtained a medical degree in India in 1981. He then spent two years training in psychiatry.

2. He moved to the United Kingdom and became a member of the Royal College of Psychiatrists.

3. Dr. Gojer moved to Canada in 1989.

4. He practised in Newfoundland and had two years of training in forensic psychiatry. That culminated in 1991 with his passing the Canadian examinations in Psychiatry and he became licensed to practice psychiatry across Canada.

5. Since 1993, he has practised in Ottawa, Toronto, North Bay, Whitby, and Brockville and has worked, inter alia, at:

• The Centre of Addiction/Mental Health (now called Ontario Shores).

• Toronto Western Hospital.

• North Bay Hospital (where he was Chief of Forensic Psychiatry until 2017).

• St. Lawrence Valley Correctional Centre in Brockville.

6. He has also operated, and continues to operate, a clinic in Toronto that focuses on providing psychotherapy to various criminal offenders, including, but not limited to, sex offenders.

7. He has been retained to provide dangerous offender assessments or court ordered assessments approximately 300-350 times. While his work in this regard has primarily been as the result of retainers initiated by defence counsel, he has performed some work at the request of the Crown, but not in the past four or five years.

8. He has been held to be a qualified expert in matters of forensic psychiatry in the Ontario Superior Court of Justice.

9. He has lectured on Psychiatry at Dalhousie University and has been an Assistant Professor of Psychiatry at the University of Toronto, Lakehead University, Laurentian University, and the Northern Ontario School of Medicine.

10. He has authored or co-authored numerous publications on forensic psychiatry topics.

11. He has lectured in this respect on numerous occasions.

12. In the early 2000’s, he attended Osgoode Law School on a part-time basis and obtained a law degree. He was called to the Ontario Bar in 2013.

(a) Assessment Process

[167] To assist in his assessment, Dr. Gojer reviewed the following information:

• Pre-sentence report by Ms. Holly Gault, dated January 19, 2004

• Records from Maplehurst Correctional Centre 1994, 2002, 2004

• Records from Visits and Correspondence

• Records from Elgin Middlesex Detention Centre

• Records from Guelph Correctional Centre

• Records from Millbrook Correctional Centre

• Records from Toronto South Detention Centre

• Sentence Management, Volumes 1 and 2- which include:

• Admission and Discharge

• Visits and Correspondence

• Education and Training

• Discipline and Dissociation

• Case Management Records, Volumes 1-8

• Employment Records, Volumes 1 And 2, and

• Preventive Security, Redacted

• National Parole Board Records, volumes 1, 2, and 3- which include:

• High intensity- Violence prevention Program Report dated September 30, 2011

• National Parole Board decision dated September 25, 2008

• Parole Board of Canada decision dated May 7, 2010

• Parole Board of Canada decision dated October 28, 2010

• Parole Board of Canada decision dated November 15, 2012; Occurrence/ Apprehension report dated March 19, 2013

• Community Maintenance Program Final report dated March 19, 2013, and

• Parole Board of Canada decision dated May 14, 2013

• Psychology Reviews

• Psychological Intake Report by Dr. Nexhipi dated December 18, 1998

• Psychological Therapy reports, program for Violent Offenders, Final Treatment Report dated January 17, 1999

• Psychological Risk Assessment by Dr. Nathan Mandelzys dated July 5, 2008

• Psychological Assessment by Dr. David Simourd dated March 30, 2012

• Psychological Assessment by Dr. Stewart Plotnick dated April 11, 2013, and

• Psychology notes, May 2013

• Review of Report of Dr. P. Klassen

• Conducted Interviews with Mr. Williams

• Telephone interview with Ms. Jen Black (Mr. Williams’ girlfriend)

• Interview with Ms. Vanessa Martin (friend of Mr. Williams)

• Interview of Lisa Harvey from Dr. Klassen’s report

(b) Background into Dr. Gojer’s Report

[168] Mr. Williams recalled his father’s abusive behaviour toward him, his father’s female partners, and the prostitutes that worked with his father.

[169] After the continuous abuse, Mr. Williams was apprehended and was made a ward of the CAS. He was taken into the care of the CAS when he was 13 years old.

[170] Mr. Williams was bullied as a child. He recalled fighting back and breaking one of his peers’ nose. He stated that he was targeted as a suspect for thefts that occurred on school property. He recounted an incident where he stole the school clocks as a prank and another where he stole binders, papers, and snacks from the school store. Mr. Williams stated that although most of the thefts were not done by him, he remained the school’s first suspect.

[171] In the penitentiary, Mr. Williams has also completed a 16-week course, giving him three credits toward a Mediation/Arbitration program recognized by Fanshawe College.

[172] Mr. Williams worked as a hairdresser, during high school.

[173] Mr. Williams has worked occasionally at different jobs since high school. Among those are: hairdresser, Taco Bell staffer, security guard, stripper/exotic male dancer, bouncer, and personal trainer.

[174] Many of his employment engagements ended when he was arrested. He has been engaged in crime since the age of 17.

[175] Mr. Williams identified himself as a Rastafarian and smoked marijuana regularly. His father introduced him to marijuana at the age of five.

[176] Mr. Williams has sold drugs since the age of 23. He stated that he does not abuse alcohol. While he drinks in social settings, he is not dependent on alcohol.

[177] Mr. Williams suffers from back spasms as a result of a motor vehicle accident while being transported by the police. He takes a prescription drug twice a day for the back pain.

[178] Mr. Williams saw a psychiatrist and was prescribed Cipralex. He has had no formal diagnosis of Post Traumatic Stress Disorder (“PTSD”), although the National Parole Board and other institutional doctors suggested the possibility.

[179] Mr. Williams presented himself as a casual and calm man who was glib at times.

[180] Mr. Williams’ plans are to live with his common law partner, connect with his daughter, and be around his nieces and nephews. He wants structure in his life. Mr. Williams wants to be counselled for his upbringing, to seek help for his drug abuse, and to be on disability for being institutionalized.

[181] Mr. Williams accepted the recommendations listed on page 25 and 26 of the report, with respect to any parole restrictions. Those recommendations are:

• Mr. Williams should receive intensive counseling in the group and/or individual format for trauma, substance abuse and anger/violence problems

• Ideally, this treatment should be initiated as soon as possible and not delayed

• If there is additional incarceration, he should receive specific counseling to assist him in not engaging in traditional penitentiary subculture that he has participated in, in the past

• He should participate in programs that work on anti-criminal sentiments

• Upon release, he should continue to have trauma counseling, substance abuse counselling and anger management

• Counselling to help him avoid criminal thinking will be beneficial

• Substance use counseling should be supplanted by screening for the use of drugs and alcohol to the extent a parole order allows for - he should also be ordered not to use drugs and alcohol

• To ensure that he participates in therapy, there should be release forms signed that will allow therapists to communicate and to communicate with his parole officer

• His residence needs to be closely monitored and approved by his parole officer

• He should inform his parole officer of any person he chooses to cohabit with to ensure that they do not have criminal histories, substance use problems or are affectively unstable

• He should also allow free communication with his partners, room or house mates and his parole officer

• He should not associate with anyone who has a criminal record unless approved by his parole officer

• He should not possess any weapons

• He should participate in educational, vocational and recreational activities as approved by his parole officer

• Given his prior criminal history, he should allow his parole officer to access his phone/electronic devices for scrutiny.

(c) Diagnosis

[182] Dr. Gojer noted that a conduct disorder, prior to the age of 15 years, which transitions to adult antisociality leads to a diagnosis of Antisocial Personality Disorder. In this regard, he agrees with Dr. Klassen’s diagnosis of Mr. Williams.

[183] Mr. Williams has a history of responding aggressively to people in the past, both in the community and in custody.

(d) Risk Assessment

[184] Dr. Gojer has used actuarial, structured professional judgement and clinical factors in his assessment.

[185] Using the PCL-R, Dr. Gojer’s score for Mr. Williams is 26 out of a possible 40 points. The score of 26 has a range of plus and minus 3. Dr. Gojer noted it is a high score and reflective of a person being significantly antisocial. The Doctor noted that the score is nothing more than a reflection of Mr. Williams’ history of anti-sociality.

[186] Using the VRAG, Dr. Gojer’s score for Mr. Williams is in the sixth highest of nine ascending bins of risk. This score reflects that 64 percent of the individual normative sample went on to reoffend in ten years.

[187] While Dr. Gojer did not give a specific score for Mr. Williams using HCR, he noted that it is likely that Mr. Williams will reoffend in some violent manner in the future, absent specific intervention. Further, Dr. Gojer explained the HCR and its various factors.

[188] Dr. Gojer did not comment on the Dangerous Offender/Long-Term Offender Designation. He left it to the court to decide.

(e) Considerations Relating to the Age of Mr. Williams

[189] At the time he committed the predicate offences, Mr. Williams was 40 years old. As of this week, he will be 46 years of age.

[190] Dr. Klassen and Dr. Gojer addressed the issue of the age of Mr. Williams. As of September 8, 2017, Dr. Klassen made the following comments regarding the age of Mr. Williams on page 42 of his report where he stated:

That being said, Mr. Williams is now 42 years of age. It’s not clear to me what length of fixed sentence this gentleman might receive. I would expect that this gentleman’s risk for violent crime will decline not insignificantly, for age-related reasons, over the next decade. At some point between now and this gentleman’s age of 60 age-related decline in propensity for both criminal behaviour, and violence, may reach a point where his risk becomes more assumable.

[191] In R. v. McLaughlin, 2014 ONSC 6537, Pomerance J. addressed the issue of the age in assessing dangerousness. I, note, McLaughlin involved a violence sex offence. At para. 150 of the decision, she stated:

This leads me to the rules about age. Age may have a bearing on dangerousness, or it may not, depending on the circumstances. Dr. Campbell insisted that the score on the Static-99R must be reduced by one point when an offender is over 40 years of age to account for the “burn-out” factor. Burn-out is a theoretical possibility, but has no air of reality in this case. Mr. McLaughlin was over 40 when he committed the predicate offences, and is becoming more, rather than less, violent with age. Dr. Campbell was confronted with this in cross-examination, and he acknowledged it to be “worrisome”. Yet he maintained his reliance on the strict scoring rules of the Static-99R.

[192] Dr. Gojer stated similarly at page 24 of his report, as follows:

It is clear from the above that Mr. Williams is likely to reoffend in some violent manner in the future, absent any specific intervention. It is likely that the target of his aggression will be a male in custody or in the community. It is likely that this aggression will be in the context of criminal activity with or without the association of drugs. A closer examination of his criminal history shows that between 1991 and 2003, he had two convictions, ie. An assault and an assault causing bodily harm. Between 2003 and 2015, he had two convictions, an aggravated assault and an assault causing bodily harm. These offences were in custody. His 2015 conviction, ie. The predicate offences occurred in the community. This past history of aggression has to be also understood in terms of the natural history of an Antisocial Personality Disorder and the waning of aggression as males age.

[193] The circumstances in this matter are different than in McLaughlin. While the crimes committed by Mr. Williams, including the predicate offences, were violent, they all arose in circumstantial situations arising out of Mr. Williams’ involvement in the drug trade and disputes with other inmates while incarcerated.

[194] As Mr. Williams gets older, his ability to act as he had in the past will likely diminish. His risk of becoming the victim, rather than the conqueror, should he return to a criminal lifestyle will likely increase.

[195] Dr. Gojer suggested recommendations with respect to Mr. Williams being released in the community or having a Long-Term Offender designation. Dr. Gojer summarized information from the collateral sources he reviewed. I have listed those recommendations.

(f) Criteria for Dangerous Offender – Long-Term Offender Status

[196] In general, Dr. Gojer, agreed with the conclusions of Dr. Klassen in this regard.

[197] As recently explained by the Court of Appeal of Yukon in R. v. J.J.P., 2020 YKCA 13, I have weighed the evidence of Dr. Klassen and Dr. Gojer as questions of fact.

Sentencing Structure

[198] The witnesses explored the sentencing options from a determinate sentence without a dangerous offender designation, s. 753(5)(b), to a dangerous offender designation with an indeterminate sentence, s. 753(4)(a). During that continuum, they discussed the effect of a long-term offender designation, s. 753.1.

[199] A person found to be a dangerous offender and given an indeterminate sentence is eligible for parole seven years after his arrest and detention on the index offences. While an indeterminate sentence is not perpetual, of the 657 dangerous offenders serving indeterminate sentences in Canada, 615 were in custody with only 42 on some form of conditional release. As indicated, the average sentence to a first parole date for these types of sentences was 17 years.

[200] Also, because of the length of the incarceration, other inmates serving shorter sentences were prioritized for programming before those with indeterminate sentences.

[201] Where a Long-Term Supervision Order was part of a sentence, the Parole Board of Canada imposed conditions that were reasonable and necessary to manage the offender in the community which could include a residency condition like a Community Correction Centre (“CCC”). The Parole Board is required to review conditions every 365 days. The Parole Board accepts conditions recommended by the sentencing judge 89 percent of the time.

[202] If there is a breach, the Parole Board can recommend a charge be laid and Correctional Service Canada can suspend the Long-Term Supervision Order and cause a warrant to be issued. The Long-Term Supervision Order commences on the day after the warrant expiry date on the determinate sentence.

[203] While certain provincial correctional facilities have intensive rehabilitative programs for substances and domestic violence, it is unclear whether an offender who was perceived as high risk would be accepted into those facilities.

Positions of the Parties

(a) Crown

[204] The Crown, as noted, seeks a dangerous offender designation for Mr. Williams with an indeterminate sentence. Its alternative submission is a dangerous offender designation with a 14-year determinate sentence with pre-sentence custody credit and a 10-year Long-Term Supervision Order.

[205] In the further alternative, the Crown requests a Long-Term Offender designation with a nine-year determinate sentence, followed by a 10-year Long-Term Supervision Order.

(b) Defence

[206] The defence submits that a determinate sentence of time served is the fit and proper sentence. More pointedly, counsel for Mr. Williams asserts that with credit for pre-sentence custody, her client has already served more time than what is a fit and proper sentence for the predicate offences.

ANALYSIS

The Statutory Regime

[207] Section 753 of the Criminal Code of Canada sets out four bases upon which a person may be designated a dangerous offender. For the purposes of this decision, I will only consider the three contained in subsection (1)(a). The provisions of s. 753(1)(b) have no application to this matter as Mr. Williams has not been convicted of a crime pertaining to conduct in a sexual matter. These, to some extent, are overlapping pathways. The Court need only find one pathway to be established, then it must declare the offender a dangerous offender.

[208] The relevant portions of s. 753(1) are as follows:

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

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

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

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

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

Two-Stage Process

[209] Dangerous offender legislation has a long history in Canada. The modern legislation has its genesis in enactments made to the Criminal Code in 1977. There were revisions in August 1997 and July 2008.

[210] Because of the serious nature of a dangerous offender sentencing, and because of the body of information that is presented on the life of the offender, written sentencing decisions in this area are lengthy and numerous.

[211] The parties presented the court with a significant body of case law that has assisted me in this decision. I have reviewed all the case law. Particularly the decision of Supreme Court of Canada on December 17, 2017 in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, upheld the constitutionality of s. 753(4.1).[^1]

[212] Additionally, the court was provided instructions on the two‑stage analysis to be undertaken by the sentencing judge in an application to declare an offender dangerous and on the process to determine an appropriate penalty.

[213] In R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, Watt J.A. considered the sentencing principles in light of Boutilier, particularly as they related to a composite sentence of a determinate term followed by a Long-Term Supervision Order, s. 758(4)(b).

[214] It is not disputed that the dangerous offender sentence is a two-stage process. The designation stage concerns the criteria set out in s. 753(1): see Boutilier, at para. 14. The penalty stage relates to the considerations in s. 753(4) and (4.1): see Boutilier, para. 15.

[215] In completing this process, I have relied on the methodology outlined in R. v. Morgan- Baylis, 2018 ONSC 5815, at para. 130, where Thomas J. stated:

I recognize that I must consider whether the criminal conduct of the offender is intractable. In Boutilier, the Court noted that at the designation stage, the concern was focussed on the future threat while in the penalty phase, the issue of intractability focussed on sentencing options to address that threat: see Boutilier, para. 30.

(a) The Designation Stage

[216] At this first stage, the Crown must establish a standard of proof beyond a reasonable doubt that the predicate (or index) offence(s) is/are serious personal injury offence(s) as defined by s. 752 and that the offender represents a threat to the life, safety or physical or mental well-being of other persons on the basis of establishing the kind of criminal behaviour captured by 753(1)(a) or (b): see Spilman.[^2]

[217] For the reasons that follow, I have found the Crown has proved the constituent elements of the provision of s. 753(1)(a) of the Criminal Code and that Mr. Williams must be declared a dangerous offender.

[218] The Crown urges me to find Mr. Williams a dangerous offender based on s. 753(1)(a)(i)(ii) and (iii). For the reasons that follow, I agree that the criteria in each of those three subsections have been proven beyond a reasonable doubt.

[219] The conviction of the predicate offences of aggravated assault, unlawful confinement, and extortion are serious personal injury offences as defined by s. 752(a).

[220] Subsection (1)(a)(i) addresses a “pattern of repetitive behaviour” while (1)(a)(ii) considers “persistent aggressive behaviour.” This was discussed in R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at para. 40:

To summarize, 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. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

[221] When considering s. 753(1)(a)(i) and the predicate offences, I find them to be part of a pattern of repetitive behaviour of the offender. His conduct is focused on male victims. His reaction to perceived disrespect by his victims is impulsive and violent. It happens repeatedly and is reflected in many of his antecedent offences. He cannot restrain himself despite arrests, incarceration, court orders, and counselling.

[222] It is particularly informative and disconcerting that Mr. Williams emphasized to Dr. Klassen, Dr. Gojer, and the court that he “does not hurt civilians”. This phraseology connotes that Mr. Williams has become disconnected with basic societal norms.

[223] Most persons distinguish civilians based on persons who are not part of a military force, including, arguably, the police. Mr. Williams draws a line between those involved in criminality, particularly the illicit drug trade, from all others. Implied in his statement is the premise that anyone who is involved in the drug business has consented, or at a minimum understands, that they are vulnerable and susceptible to violent interactions with others following the same path. That is chilling.

[224] It is an attempt by Mr. Williams to uncouple his misconduct from that of members of the public not engaged in crime, or, more specifically, the drug trade. His utterance is a badge of honour, suggesting to the court that society, as a whole, need not trouble itself with his violent and aggressive conduct because that only occurs in an alternate place. It is as if he is pronouncing, “Society is safe so do not worry about my criminal behaviour.” That sentiment is also confirmatory of both Mr. Williams’ pattern of “repetitive behaviour” and “persistent aggressive behaviour”.

[225] It is immaterial that a large swath of the community Mr. Williams refers to as “civilians” is, in his opinion, not affected, and will not be affected by his violent and torture-like behaviours.

[226] In considering the likelihood of his future ability to restrain this abusive behaviour, I am guided by the decision of Code J. in R. v. P.G. 2013 ONSC 589, at para. 18:

[18] The one difficult issue, in relation to the s. 753(1)(a) and (b) statutory tests, is whether the requisite “likelihood” of re-offending in the future has been established. Predicting future conduct is notoriously difficult and the exact meaning of the s. 753 “likelihood” test is subtle. The ordinary dictionary meaning of the word “likelihood”, as well as its normal legal usage, is “probability”, that is, something more than mere “possibility”. See: The New Shorter Oxford English Dictionary, Oxford University Press 1993, Vol. 1, p. 1588; Black’s Law Dictionary, 9^th Ed. 2009, at p. 1012; D.A. Dukelow, Dictionary of Canadian Law, 3^rd Ed. 2004, at p. 723; R. v. H. (J.T.) (2002), 2002 NSCA 138, 170 C.C.C. (3d) 405 at paras. 68-75 and 101-4 (N.S.C.A.). When applying this meaning to the “likelihood” test found in s. 753, the courts have stressed that it refers to probable “risk” or “potential for harm”, as a present fact, rather than to proof of a future event which would be an impossibility. The best discussion of this difficult subject is found in the judgment of LaForest J., speaking for the majority in R. v. Lyons (1987), 1987 CanLII 25 (SCC), 37 C.C.C. (3d) 1 at paras. 92-95 and 98-100 (S.C.C.), where he stated:

Paragraphs (a) and (b) of s. 688 [now s. 753] both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty, of harm.

[227] I have no difficulty concluding beyond a reasonable doubt that there is the present likelihood that Mr. Williams will reoffend in the future, and that he is likely to cause serious injury or inflict severe psychological damage. His past is the best predicator of his future. At present, the cycle of criminality would simply continue. That is, should he return to the inherently and systemically violent business of selling illegal drugs, that risk will continue and may even increase. In that milieu, he will undoubtedly be faced with numerous and frequently confrontational situations from which a passive withdrawal is a limited, if not impossible, option.

[228] While this view is supported by the expert opinions of Dr. Klassen and Dr. Gojer as discussed above, which I accept. I also agree with the position of Pomerance J. as she expressed it in para. 137 of R. v. McLaughlin, 2014 ONSC 6537, as follows:

[137] This conclusion does not require validation by an expert. The prospect of future violence is sufficiently obvious that it can be discerned by a lay person. Psychiatric and psychological evidence is important in these hearings, but it is the court that must ultimately be satisfied of the dangerous offender criteria. This point was made by Ewaschuk J. in a passage quoted with approval by the Supreme Court of Canada in R. v. Lyons, 1987 CanLII 25 (SCC), [1987 2 S.C.R. 307, 61 C.R. (3d) 1 at para. 124:

I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witness. That is not to say that experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g., psychopathy, which may be relevant to the likelihood of future dangerous conduct.

[229] In the end, the opinions of Dr. Klassen and Dr. Gojer are confirmatory of what a lay person would conclude when looking at the history of Mr. Williams’ criminality, the nature of his conduct, his lack of remorse, and the manner in which he treats his victims of physical violence.

[230] As to s. 753(1)(a)(ii), I find, as discussed above, a clear pattern of persistent aggressive behaviour. His substance abuse and then impulsive violence is repetitive or persistent and constantly repeating: see R. v. Yanoshewski (1996), 1996 CanLII 4916 (SK CA), 104 C.C.C. (3d) 512 (Sask. C.A.). Mr. Williams shows complete disregard to the consequences of his actions on his victims. That disregard is demonstrated in the language of his threats to his victims; in the minimization of his conduct as reported by the supervising probation officers, and by the cognitive distortions noted by Dr. Klassen and Dr. Gojer. Despite restricting court orders, Mr. Williams has repeatedly gone ahead and done what he wanted without regard for the physical or psychological consequences to his victims. Again, this is a symptom of the ASPD diagnosed by Dr. Klassen and Dr. Gojer.

[231] Finally in considering s. 753(1)(a)(iii), I find the lengthy and violent abuse committed on Mr. Zivkovic in the predicate offences to be of the brutal nature considered in this subsection. Obviously, these were the last and among the most serious convictions, along with his 2004 aggravated assault on a prisoner while in custody.

[232] There is nothing about this horrific assault, unlawful confinement and eventual extortion from Mr. Zivkovic, that included the unfortunate involvement of his mother and brother in the Waterworld parking lot, that, when viewed with his criminal history, allows me to conclude that there is presently any likelihood that his future behaviour will be inhibited by normal standards of behavioural restraint. His conduct was “coarse, savage and cruel”: see R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 45 O.R. (2d) 705, (C.A.). The physical damage is exhibited by the medical reports and photographs introduced at trial.

[233] Counsel for Mr. Williams noted that there was no victim impact statement provided by Mr. Zivkovic. She suggests a review of the superficial wounds he received and the failure to provide a victim impact statement are evidence that the overall outcome with respect to the predicated offences is not as severe as the Crown suggests.

[234] With respect, I disagree. Mr. Williams conducted a vicious physical and psychological rampage on June 3, 2015. He struck Mr. Zivkovic with a punch, constrained his arms behind his back, and inflicted 12 cuts to the head and chest and stomach of his victim while he remained bound. He then unbound Mr. Zivkovic so he could clean up his own blood from the wounds. Mr. Williams then confined the victim, again, and took him to the parking lot of the Waterworld. At that point, Mrs. Zivkovic had to endure seeing her son wounded, bleeding, and with a bandage on his head, taped to Mr. Williams while she and her son watched the $80 being handed over, and Mr. Williams taking Mr. Zivkovic back into the apartment. All of this was done by Mr. Williams out of anger and with no remorse.

[235] As well, while no victim impact statement was received by Mr. Zivkovic, the court did receive victim impact statements from Jasmina Zivkovic and Marko Zivkovic.

Jasmina

[236] She did not sleep for nights as she was scared to close her eyes. She has flashbacks of Mr. Williams’ face. She equated the trauma of the events involving Sinisa Zivkovic and that Marko witnessed the same as worse from the war she experienced in Croatia. She is most hurtful for what happened to Marko.

[237] Tellingly, she concludes her victim impact statement as follows:

I don’t hate William, I just scared of him.

Marko

[238] After the incident, he stayed in his room for seven days and became depressed. He has flashbacks to seeing his brother all cut up. He does not feel he can really come back to Windsor.

[239] Whether I have a victim impact statement from Mr. Sinisia Zivkovic is not dispositive of the issue of the level of violence and trauma caused to him by Mr. Williams. Only someone bereft of emotion could not appreciate the pain, suffering and trauma Mr. Williams caused that day.

[240] On the totality of the evidence, I have found beyond a reasonable doubt Mr. Williams is at high risk to commit further violent offences. Dr. Klassen puts that risk at just over 50 percent. The violent pattern is intractable. There is no evidence on treatability at this phase so compelling as to displace this finding: see Boutilier, at para. 45. Mr. Williams is clearly unable to control his personal characteristics which drive his criminal conduct.

[241] There is much for society to be concerned where Mr. Williams is in his life, today. He has unquestionably been the victim of a horrific childhood, devoid of caring parents. In fact, he suffered severe abuse and was further victimized by failings in the entire community.

[242] There is no doubt that he has also been a victim of systemic racism both inside and outside the correctional system. That is regrettable and, in reality, beyond sad. However, it must be emphasized that while the court must consider all of the appropriate sentencing considerations (as I have done), the pivotal concern in this respect relates to the safety of the public. “Public” relates to all persons, not just those Mr. Williams characterizes as “civilians” in his world.

[243] Mr. Williams’ pattern of offences have been exacerbated in adulthood. He has graduated from what Dr. Klassen referred to as “acquisitive offences” such as minor theft and attendant interactions with police to dealing drugs, carrying weapons, dealing drugs as a career, and committing violent and malicious assaults on male persons who have crossed him or otherwise threatened his position of dominance.

[244] There is a passionate indifference exhibited by Mr. Williams with respect to his victims that informs my conclusion that Mr. Williams needs to be designated a dangerous offender. While his unfortunate past has led him to this place, it is the future that must be addressed.

(b) The Penalty Stage

[245] Having found Mr. Williams to be a dangerous offender, my sentencing is now directed by s. 753(4) and (4.1):

Sentence for dangerous offender

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

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

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

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

Sentence of indeterminate detention

(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.

[246] Para. 30 of Spilman discusses the exercise of my sentencing discretion and the tests to be imposed in my analysis:

Section 753(4.1) provides guidance on how hearing judges can properly exercise their discretion, in accordance with the applicable objectives and principles of sentencing, to impose the appropriate sentence to manage the established threat that the offender poses to society. The provision requires the judge to examine the evidence adduced at the hearing to determine whether there is a reasonable expectation that a lesser measure – a conventional fixed-term sentence or a fixed-term sentence of at least two years followed by a long-term supervision order – will adequately protect the public against the risk that the offender will commit murder or a serious personal injury offence. The hearing judge must first exhaust the less coercive sentencing options to address this risk of recidivism before imposing a sentence of indeterminate detention in a penitentiary: Boutilier, at para. 69.

[247] I start by saying that this is a test I have applied in my analysis and in my consideration of an appropriate penalty, I must, and have, continued to apply the principles and guidelines in ss. 718 – 718.2 of Part XXIII of the Criminal Code of Canada: see Boutilier, at para. 53; Spilman, at para. 28.

[248] But because this is a s. 753 application, this is a special sentencing regime. As a result, I am not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offences in the absence of a dangerous offender designation: see Spilman, at para. 32, where the court stated:

As I will explain, I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under ss. 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context.

[249] The finding I made in the designation stage was obvious. However, the selection of an appropriate penalty is not as straightforward. It is not disputed that Mr. Williams has a long history of repetitive behaviour, showing a failure to restrain himself in situations likely to cause death or injury, s. 753(1)(a)(i). He has been out of control.

[250] As prescribed in s. 753(1)(a)(ii), this pattern of conduct was persistent and done without remorse. He has established a pattern of viciously beating individual males he perceives have challenged him. This has occurred in and out of jail. However, while the offences of physical violence are impulsive, serious, vengeful, and done without remorse, the overall level of violence has not reached the level that often is the case in these applications. Furthermore, there are no sexual offences so no instances of the type of rampant sexual impulsivity that is often the cause of these types of applications.

[251] Having said that, I accept that all efforts to-date to control the offender’s substance abuse and his antisocial behaviour have failed. Out of custody, his history demonstrates he pays no heed to his court ordered conditions. These findings are consistent with the evidence of his probation supervisors, sentencing judges and fundamental to the opinion of Dr. Klassen, which I accept.

[252] I accept that Mr. Williams needs a further period in the penitentiary to access the programming suggested by Dr. Klassen and discussed by Dr. Gojer. I can take that lengthy institutionalized programming into account in coming to a fit and least intrusive sentence that protects the public: see Spilman, at para. 39.

[253] It is not disputed that while an indeterminate sentence given to an offender is not necessarily a permanent sentence: see R. v. Currie, 1997 CanLII 347 (SCC), [1997] 2 S.C.R. 260, at para. 43. The reality is that few such offenders are ever released to the community. Specifically, if such offenders refuse to participate in treatment, their risk will not be manageable.

[254] In R. v. R.M. [2005] O.J. No. 4977 (Ont. S.C.), aff’d 2007 ONCA 872, 231 O.A.C. 198, Justice A. Molloy stated, at para. 126:

The fact that few [dangerous offenders] are released is an indication of the fact that only the most serious and violent offenders receive the designation and not many of them ever meet the criteria for release.

Is the risk manageable?

[255] If I did not have the jurisdiction to extend the limits of determinant sentences for the predicate offences, I probably would be forced to protect the public with the imposition of an indeterminate sentence: see Spilman, at para. 45. I might well have been forced to step up to that higher ring on the sentencing ladder described at para. 70 of Boutilier.

[256] I believe that a composite sentence of sufficient duration like the sentence received in Spilman can satisfy the test enumerated in s. 753(4.1). The custodial portion will not exceed the maximum term of imprisonment directed by the statute. It will impose a fixed-term sentence not entirely disconnected from the circumstances of those predicate offences by respecting the purposes and principles of sentencing set out in ss. 718-718.2 of the Criminal Code of Canada.

[257] The length of the sentence I prescribe will reflect the evidence I have heard in the hearing, particularly the evidence of Dr. Klassen, which I accept.

[258] While there was significant agreement between the findings of Dr. Klassen and Dr. Gojer, where there were notable differences in their evidence and conclusions, I prefer the evidence of Dr. Klassen for a number of reasons.

[259] Firstly, Dr. Klassen prepared his report with the advantage of having time to complete his analysis. As it happened, Dr. Gojer had to provide his report within days of interviewing Mr. Williams and the other witnesses. As a result, Dr. Gojer was required to rely on a significant quantity of the work done by Dr. Klassen. On more than one instance in his testimony, Dr. Gojer admitted that he was unaware of some of the evidence that Dr. Klassen was able to consider.

[260] Mr. Williams needs intensive multi-month programming for violence to be conducted during a lengthy sentence in a federal penitentiary. Given his history of drug abuse and lifetime spent in the sale of illegal drugs, I am also directing Mr. Williams be provided appropriate substance abuse programming. The offender told Dr. Klassen and Dr. Gojer that he was amenable to treatment. This is the least intrusive option available in these circumstances.

[261] The penitentiary sentence I will prescribe must be coupled with assertive management of the offender once released for the duration of a 10-year Long‑Term Supervision Order. The conditions I will recommend below will encompass a residential placement at a Community Correction Centre.

[262] I have reflected on the nature of the offender’s previous convictions, the identified triggers for violence, the strength exhibited through his work history, and the institutional programming to date. I am content that this overall sentence will provide a reasonable expectation that the public will be adequately protected against the commission by the offender of murder or a serious personal injury offence. This is not a “mere hope” or a “reasonable possibility” built on generous optimism: see R. v. Solano, 2014 ONCA 185, 309 C.C.C. (3d) 386, at para. 15.

[263] In reaching this conclusion, I rely on a number of factors, as follows:

1. As troubling as the violent offences conducted have been, they are not among the type of serious offence such as occurred in cases like R. v. McLaughlin.

2. The seriously violent crimes committed by Mr. Williams have for many years occurred in the milieu of the drug trafficking trade or while incarcerated. If past behaviour is a predictor of the future, there is a reduced likelihood that future offences will occur if Mr. Williams abandons his criminal lifestyle.

3. Mr. Williams is intelligent. He is an articulate individual who, with proper treatment, could be expected to modify his anti-social tendencies and control his anger.

4. His advanced age and the likelihood of Mr. Williams committing a further violent crime will diminish to a manageable level.

[264] As prescribed in R. v. D.V.B., 2010 ONCA 291, 100 O.R. (3d) 736, at para. 36,[^3] I am satisfied that at the end of the Long-Term Supervision Order, Mr. Williams will not pose an unacceptable risk to the community.

SENTENCE

[265] Maille Williams is sentenced for aggravated assault to 12.5 years in custody. The sentence for extortion is also 12.5 years in custody. The sentence for unlawful confinement is for 9 years in custody. All these sentences are to be served concurrently. I see no reason in law to stay any convictions based on Kienapple principles.

[266] I have considered the issue of enhanced credit. The Crown agrees with the suggestion of counsel for Mr. Williams with this principle.

[267] It was anticipated that this matter would conclude on September 26, 2019. As of that date, it was agreed that Mr. Williams had accumulated 2,360 days of pre-sentence credit. This matter was not completed by that date as Ms. Joy required further time to complete her submissions. These submissions were scheduled to be continued and completed on January 20, 2020. The sentencing hearing was then adjourned for a decision on May 4, 2020. That date had to understandably be adjourned as a result of the COVID-19 pandemic and court protocol.

[268] Brief further oral submissions were made by the parties via teleconference (with Mr. Williams participating) on May 15, 2020. These submissions have no bearing on the completion of the sentencing hearing by today.

[269] As of today’s date, Mr. Williams has been in custody for 1929 days. With enhanced custody credit at the ratio of 1.5:1, he is being given credit for 2,893.5 days. In addition, I am giving him credit on a ratio of 2:1 for the six months he has been incarcerated during the COVID-19 pandemic. That provides him with an additional 45 days of pre-sentence credit, to give him a total of 2,937.5 days of pre-sentence credit, which equates to eight years and 18 days.

[270] The custodial sentence remaining to be served is therefore four years and 164 days.

[271] As well, there will be a period of Long-Term Supervision for ten years with the following recommended conditions:

1. Mr. Williams should access and complete a wide variety of programs during incarceration, including violence and violence prevention programs, anger management therapy, substance abuse treatment programming, and programs to target antisocial values and attitudes. Longitudinally-based “booster” programming in most domains should continue once Mr. Williams returns to the community, to bolster the effects of institutional programs. The anger management therapy and substance abuse treatment should commence as soon as possible to better equip Mr. Williams in these regards.

2. When Mr. Williams has access to the community, at least once, weekly urine screens should be performed to ensure he is abstinent from substances of abuse. Use of any non-prescribed substance should result in his immediate return to custody.

3. Mr. Williams will initially reside at a Community Correction Centre. He should, at the outset, only be permitted access to the community for treatment programming (including educational or vocational training). If living outside of a Community Correction Centre facility, parole officers will make regular visits to his residence to ensure that he is abiding by conditions.

4. Mr. Williams will be prohibited from having contact with any criminally‑oriented peers outside of correctional facilities.

5. Mr. Williams will not be in possession of illegal substances.

6. Mr. Williams will not be in possession of a weapon.

7. Mr. Williams will seek out gainful employment and/or further his education.

8. I am imposing a lifetime firearms ban on the aggravated assault count pursuant to s. 109 of the Criminal Code of Canada.

9. There will be orders pursuant to s. 487.05 on each of the counts for the taking of samples of bodily substances for D.N.A. analysis.

10. There will be an order pursuant to s. 760 of the Criminal Code of Canada for the transmission of information to the Correctional Service Canada consistent with the terms of the draft order presented by the Crown.

[272] Mr. Williams, that is my sentence.

“original signed by Justice George W. King”

George W. King

Justice

Released Orally: September 15, 2020

Released in Writing: September 16, 2020

Corrected Released: September 18, 2020

Corrected Decision

Correction to the first sentence of paragraph 265.

Paragraph 265 previously read:

[265] Maille Williams is sentenced on Count #1, aggravated assault, to 12.5 years in custody. The sentence for extortion is also 12.5 years in custody. The sentence for unlawful confinement is for 9 years in custody. All these sentences are to be served concurrently. I see o reason in law to stay any convictions based on Kienapple principles.

Paragraph 265 now reads:

[265] Maille Williams is sentenced for aggravated assault to 12.5 years in custody. The sentence for extortion is also 12.5 years in custody. The sentence for unlawful confinement is for 9 years in custody. All these sentences are to be served concurrently. I see no reason in law to stay any convictions based on Kienapple principles.

APPENDIX “A”

DATE OF SENTENCE

CHARGE

SENTENCE

December 11, 1991

Break and Enter with Intent

1 Year Probation, 40 hours community service work

January 27, 1992

Assault

50 Days Secure Custody

January 27, 1992

Fail to Comply with Recognizance

15 Days Secure Custody Consecutive, 12 Months Probation

June 3, 1992

Uttering Threats (2 Charges)

90 Days Secure Custody, 12 Months Probation on Each Charge Concurrent

June 3, 1992

Assault

90 Days Secure Custody, 12 Months Probation on Each Charge Concurrent

June 3, 1992

Fail to Comply with Recognizance

10 Days Secure Custody Consecutive, 12 Months Probation

September 24, 1992

Theft Over $1,000

5 Months Secure Custody, 12 Months Probation on Each Charge Concurrent

September 24, 1992

Dangerous Operation of Motor Vehicle

5 Months Secure Custody, 12 Months Probation on Each Charge Concurrent

December 15, 1992

Possession of a Weapon

60 Days Secure Custody, 12 Months Probation, 3 Years Firearms Prohibition

December 15, 1992

Fail to Comply with Recognizance

15 Days Secure Custody Concurrent

April 1, 1993

Possession of Property Obtained by Crime

30 Days

April 1, 1993

Dangerous Operation of Motor Vehicle

6 Months Consecutive, 2 Years Probation, 3 Years Driving Prohibition

April 1, 1993

Possession of Property obtained by Crime

2 Months Consecutive

August 10, 1993

Paroled

October 1, 1993

Possession of Property Obtained by Crime

3 Months Concurrent with Unexpired Portion of Sentence, 12 Months Probation

October 5, 1993

Parole Violator

Recommitted

January 4, 1994

Uttering Threats

$250 I-D 30 Days, 12 Months Probation, 5 Years Firearms Prohibition

January 31, 1994

Fail to Comply with Probation

1-day Jail

March 14, 1994

Public Mischief

30 Days

DATE OF SENTENCE

CHARGE

SENTENCE

March 14, 1994

Fail to Comply with Recognizance

10 Days Consecutive

March 16, 1994

Possession Property Obtained by Crime

90 Days Consecutive to Sentence Serving

June 24, 1994

Fail to Comply with Probation Order

4 Days, $100 I-D 10 Days, Surcharge $10

August 2, 1994

Fail to Comply with Probation Order

30 Days on Each Charge Concurrent

August 2, 1994

Possession of Prohibited Weapon

30 Days on Each Charge Concurrent

August 2, 1994

Possession of Break-In Instruments

60 Days Consecutive

October 17, 1994

Possession of a Narcotic for the Purpose of Trafficking

$500 I-D 60 Days, Surcharge $50, 1 Year Probation

October 19, 1994

Obstruct Peace Officer

$100 I-D 10 Days

January 5, 1995

Assault Causing Bodily Harm

6 Months

June 23, 1995

Possession of Prohibited Weapon

18 Days on Each Charge Concurrent

June 23, 1995

Fail to Comply with Recognizance

18 Days on Each Charge Concurrent

November 3, 1995

Fail to Comply with Recognizance

50 Days on Each Charge Consecutive

November 3, 1995

Possession of Narcotic

50 Days on Each Charge Consecutive

February 23, 1996

Possession of Prohibited Weapon

15 Months on Each Charge Concurrent, Surcharge $25 on Each Charge

February 23, 1996

Carry Concealed Weapon

15 Months on Each Charge Concurrent, Surcharge $25 on Each Charge

February 23, 1996

Possession of Firearm or Ammunition While Prohibited

15 Months on Each Charge Concurrent, Surcharge $25 on Each Charge

February 23, 1996

Tampering with Serial Number of Firearm

15 Months on Each Charge Concurrent, Surcharge $25 on Each Charge

May 1, 1998

Obstruct Peace Officer

Fine: $300

October 21, 1998

Possession of a Scheduled Substance for the Purpose of trafficking (2 Charges)

2 Years on each Charge Concurrent, (3 Months pre-sentence custody), Prohibited Firearms, Ammunition or Explosive Substances for Life

October 21, 1998

Possession of Unregistered Restricted Weapon (2 Charges)

2 Years on each Charge Concurrent, (3 Months pre-sentence custody), Prohibited Firearms, Ammunition or Explosive Substances for Life

April 1, 1999

Dangerous Operation of Motor Vehicle

90 days Consecutive to Sentence Serving, 2 Years Driving Prohibition

February 18, 2000

Statutory Release

June 29, 2000

Statutory Release Violator

Recommitted

DATE OF SENTENCE

CHARGE

SENTENCE

February 12, 2001

Possession of a Scheduled Substance for the Purpose of Trafficking

6 Months

February 12, 2001

Possession of a Scheduled Substance

3 Months Concurrent

November 30, 2001

Possession of a Schedule I Substance for the Purpose of Trafficking

11 Months (66 Days Pre-Sentence Custody)

November 30, 2001

Possession of Firearm or Ammunition Contrary to Prohibition Order

30 Days Consecutive

February 6, 2003

Possession of a Schedule I Substance for the Purpose of Trafficking (2 Charges)

42 Months on Each Charge Concurrent, (4 Months Pre-Sentence Custody)

February 6, 2003

Possession of Unregistered Restricted Weapon

2 Years Concurrent & Mandatory Prohibition Order

February 6, 2003

Possession of a Schedule I Substance

3 Years Concurrent

August 20, 2003

Assault Causing Bodily Harm

6 Months Consecutive to Sentence Serving, 24 Months Probation, Mandatory Prohibition Order

January 26, 2004

Aggravated Assault

7 Years Consecutive to Sentence Serving

January 26, 2004

Assault

1 Year Concurrent

June 3, 2010

Statutory Release

October 28, 2010

Statutory Release Violator

Recommitted

November 22, 2012

Statutory Release

May 14, 2013

Statutory Release Violator

Recommitted

COURT FILE NO.: CR-15-3480

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MAILLE WILLIAMS

CORRECTED REASONS FOR SENTENCE

King J.

Released Orally: September 15, 2020

Released in Writing: September 16, 2020

Corrected Released: September 18, 2020

[^1]: CÔTÉ J. noted, at para. 76, “Furthermore, as I have already concluded, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence - the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the evidence presented during the hearing in order to decide the fittest sentence for the offender. Indeed, under s. 753(4), a long-term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.”

[^2]: Watt J. held, at para. 26, “To obtain a designation of dangerousness resulting from the offender's violent behaviour, the Crown must prove beyond a reasonable doubt that: i. the offence of which the offender has been convicted -- the predicate offence -- is a "serious personal injury offence" as defined in s. 752; and ii. the offender must represent a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing a violent pattern of conduct within ss. 753(1)(a) or (b): See, Boutilier, at paras. 17-18.”

[^3]: In light of that evidence, the debate between Crown and defence counsel centred on the wording of s. 753.1(1)(c) and, in particular, whether the provision would only be satisfied if it were reasonably possible that the risk posed by the appellant would be [page 748] controlled within the duration of the long-term offender sentence, such that, upon its completion, the appellant would pose an acceptable level of risk in the community; or, would the provision be satisfied if it were reasonably possible to control the risk posed by the appellant during the currency of the long-term sentence even though the same could not be said following its completion. The sentencing judge responded as follows: Having heard both counsel at length on this point, I accept the Crown position that s. 753.1(1)(c) implicitly requires that there be a reasonable possibility of eventual control of the risk in the community and not simply that there be a reasonable possibility of control of the risk in the community for the period of the long-term offender order.