



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following offences;

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

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2022 ONCA 182

DATE: 20220302

DOCKET: C66489

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kirk Williams

Appellant

Richard Litkowski and Myles Anevich, for the appellant

Jessica Smith Joy, for the respondent

Heard: March 1, 2022 by video conference

On appeal from the sentence imposed on April 6, 2018 by
    Justice S. Casey Hill of the Superior Court of Justice, with reasons reported
    at 2018 ONSC 2030.

REASONS FOR DECISION

[1]

Mr. Williams seeks leave to appeal his sentence in which he was
    designated as a dangerous offender and an indeterminate sentence was imposed.
    He submits that the sentencing judge erred in concluding that one of the
    statutory pathways to a dangerous offender designation was available in his
    case, and that the sentencing judge also erred in his consideration of the
    future harm that the appellant posed. The appellant asks that the dangerous
    offender designation be set aside and that he be designated as a long-term
    offender instead. Alternatively, if the dangerous offender designation remains,
    the appellant asks that a determinate sentence, followed by a long-term
    supervision order, be imposed. At the conclusion of the hearing, we granted
    leave to appeal sentence, but dismissed the appeal for reasons to follow. We
    now provide our reasons.

[2]

On April 11, 2016, the appellant pleaded guilty to sexual assault
    causing bodily harm and choking with intent to commit sexual assault against a 24-year‑old
    female. On April 6, 2018, he was designated a dangerous offender and sentenced
    to an indeterminate sentence.

[3]

The evidence on the dangerous offender hearing was extensive. It included
    expert reports from Dr. Scott Woodside and Dr. Julian Gojer, both forensic
    psychiatrists, as well as Dr. Milan Pomichalek, a psychologist. Dr. Ainslie
    Heasman, a psychologist who had previously treated the appellant at the Centre
    for Addiction and Mental Health (CAMH), also testified as a qualified expert in
    forensic psychology regarding the appellants previous treatment. Additionally,
    an employee of the Parole Board of Canada, a Parole Officer Supervisor, the appellants
    parole officer in 2012 and 2013, and the appellants probation officer from
    September 2013 until his arrest on these charges all testified.

[4]

Both Dr. Woodside and Dr. Gojer agreed that the appellant was a
    high-risk offender. The disagreement between the two experts was whether a
    course of medication, supplemented by high-intensity psychiatric treatment,
    could sufficiently reduce the appellants risk of re-offending.

[5]

The sentencing judge gave lengthy reasons for his conclusion. He
    dismissed the treatment plan as insufficient to adequately protect the public.
    He noted that the appellants psychiatric disorders, life-long and fixed, are
    either untreatable or at best difficult to treat.

[6]

The appellant raises three grounds of appeal. In considering these
    grounds, we are cognizant of the applicable standard of review, namely, that review
    of a dangerous offender designation is more robust than on a regular sentence
    appeal:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 26. Thus,
    [c]ourts can review the imposition of an indeterminate sentence for legal
    error and reasonableness, but should defer to the factual and credibility
    findings of the trier of fact:
Sawyer
, at para. 29.

[7]

First, the appellant contends that the sentencing judge erred in
    concluding that the Crown had satisfied three of the four pathways for a person
    to be designated as a dangerous offender beyond a reasonable doubt. We do not
    agree. The sentencing judge concluded that each of the three pathways under s. 753(1)(a)(i),
    s. 753(1)(a)(ii), and s. 753(1)(b) had been satisfied. He gave detailed reasons
    for his conclusions. We do not see any error in those reasons. The appellant
    has a criminal record involving 25 prior convictions, not including his youth
    offences. A number of these offences involved acts of violence, and five of
    them involved sexual offences. The sexual offences all involved especially vulnerable
    victims. The appellants argument that there is a material difference in the
    offences, for this purpose, between the prior convictions that involved children,
    and the predicate offences that involved a young adult, and that the sentencing
    judge applied too general a level of similarity in reaching his conclusion, is
    unpersuasive. Nor do we accept that a 12-year gap between the earlier offences
    and the predicate offences means that the behaviour is not persistent. On that
    point, one must be cognizant of the fact that the appellant spent much of those
    12 years in custody.

[8]

Second, the appellant contends that the sentencing judge failed to
    consider, at the designation stage, the effect that the antiandrogen therapy and
    SSRI medication would have when considering s. 753(1)(b). Again, we do not
    agree. A fair reading of the sentencing judges reasons demonstrates that
    he was fully aware of the evidence regarding the impacts that these medical
    treatments might have and that he considered them throughout his analysis. The
    fact is that the sentencing judge was not satisfied that these medications
    would have the necessary effect in terms of curbing the appellants potential
    conduct.

[9]

The third ground of appeal somewhat mirrors the second. The appellant
    contends that the sentencing judge misapprehended the future risk of recidivism,
    and therefore treatment prospects, at the penalty phase. This argument again
    relies on the aforementioned medical treatment. With respect to that treatment,
    the sentencing judge noted that the two experts disagreed on its effectiveness.
    The sentencing judge also questioned the willingness of the appellant to take
    the medication on a constant basis. Given those facts, the sentencing judge concluded
    that there was not a reasonable possibility of control of the appellant in the
    community. The appellant has failed to show that that conclusion is an
    unreasonable one.

[10]

Ultimately,
    the sentencing judge concluded, at para. 293 of his reasons:

In any event, on the evidence accepted by the court, based upon
    the history of the offender's sexual crimes, the enduring character of his
    psychiatric disorders, his high risk for sexual reoffence, and the evidence
    including the inability of the psychiatric opinions to confidently conclude
    that the offender's risk will be reduced to a tolerably safe level within the
    definite period of a determinate sentence and [long-term supervision order],
    the imposition of an indeterminate preventative sentence is necessary as no
    lesser measure will adequately protect the public against the offender
    committing a further serious sexual offence.

[11]

We
    agree with that conclusion.

[12]

For
    these reasons, leave to appeal sentence was granted but the appeal was
    dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.


