WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Ontario Court of Justice

DATE: 2022 01 18 COURT FILE No.: 17-3627

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Adriel Cyrus

Before: Justice Anthony F. Leitch

Heard on: February 24-26, 2020 Reasons for Judgment released on: January 18, 2022

Counsel: D’Arcy Wilson, counsel for the Crown Norman Williams and Ramon Petgrave, counsel for the accused Adriel Cyrus

Leitch J.:

Introduction

[1] Adriel Cyrus was convicted after trial on January 31, 2018 of two sexual assaults (the index offences) on A.B. and S.D. Both sexual assaults were on women the offender met that day, both were lured by the offer of street drugs to an underground parking garage where they were physically assaulted and raped.

[2] The attack on A.B occurred on June 12, 2016 while the offender was on probation for a conviction for sexual interference, under which he was ordered to take counselling for sexual deviance. Additionally, on the date of the attack, he was facing charges for two breaches of that order, the first for failing to attend the first intake appointment with the sexual deviance counsellor and the second for failing to report to probation. He was not arrested until after the 2nd sexual assault. After a trial that led to his convictions for the sexual assaults and the uttering a death threat, he pleaded guilty to one count of breach of probation for failing to attend the intake appointment for the sexual deviance counselling recommended by his probation officer.

[3] The attack on S.D. occurred on August 23, 2016 while the offender was bound by the same probation order and facing the same charges.

[4] Both attacks were forceful vaginal penetrations at the bottom of the same staircase landing, leading to an underground parking garage, on a concrete floor out of public view. At first, the offender asked A.B. if she would have sex with him and when she said no he replied, “it doesn’t matter, I’m going to get it”. The assault on A.B included the offender pushing the victim against the wall causing her to hit her head. She struggled to free herself, to push off her attacker as he pinned her down but was unsuccessful. The victim repeatedly said “no” while he sexually assaulted her on the ground. Prior to that day, the offender and the victim were complete strangers.

[5] Approximately two months later he attacked and raped S.D. in the same place in a similar manner. After smoking marijuana together, and without warning, he touched the victim’s breast with his left hand. She pushed him away and said “no”. He then grabbed the collar of her shirt, threw her on the stairway, and pinned her to the ground. She struggled for 10 minutes to free herself unsuccessfully. Eventually she gave up the struggle for fear of injury. He sucked on her breast, removed her clothing, attempted to anally penetrate her unsuccessfully, and then vaginally raped her without a condom. Afterward he followed her on the street, tried to kiss her again and told her he had been in jail recently and was on probation. He then threatened to kill her if she said anything about his attack on her. He was convicted for uttering a death threat in addition to the sexual assault. Prior to that day the offender and the victim were complete strangers.

[6] At the time of the 2nd attack the defendant was medicated by injectable antipsychotic drugs to treat schizophrenia. He received an average dose of this medication, appropriate to his circumstances and history, on August 11 and August 23, 2016. He committed the second sexual assault on the day he received an injection of antipsychotic medication. The forensic psychiatrist called by the crown at the hearing found this significant in determining whether psychosis or an underlying psychopathy was operative at the time of this offence. She remarked, “it is more likely that the sexual offending was perpetrated on the basis of obtaining – for personal pleasure versus predicated on psychotic symptoms such as delusions, hallucinations, or a gross disorganization.” (page 62 – February 24, 2020). She saw nothing in the evidence called at trial, which she reviewed, that indicated that the offender was suffering from psychosis at the time of the 2nd attack. Additionally, during the sentencing proceedings, the offender was assessed for criminal responsibility for both predicate offences. The report of Dr. Naidoo confirms that while some schizophrenic psychosis may have been operating at the time of the offences it is more likely that the condition was well controlled by anti-psychotic medication. Ultimately, he reported that the offender did not meet the test for NCR and no application was brought by the defence.

The Dangerous Offender Application

[7] Based on these predicate offences and the criminal history of the offender the crown brought a dangerous offender application to have the defendant sentenced to an indeterminate sentence. He was assessed by Dr. Sumeeta Chatterjee a forensic psychiatrist at the Centre for Addiction and Mental Health in Toronto under section 752.1 of the Criminal Code. At first the defendant refused to cooperate with the assessment and was aggressive and floridly psychotic. Eventually he did cooperate and was reasonably forthcoming during the assessment process.

[8] Dr. Chatterjee, an experienced forensic psychiatrist, produced an extensive opinion filed as Exhibit 1 on the application. In addition, she testified at the dangerous offender hearing and was cross-examined by the offender’s lawyer. The crown called additional witnesses to meet its burden, some probation officers who had supervised the offender and a witness who is the Area Director for the Hamilton, St. Catharines and Niagara regional office of the Correctional Service of Canada. The probation officers testified about the offender’s poor compliance while on numerous orders of probation. The Corrections Area Director testified about programing and treatment options available for the offender while in a penitentiary serving a sentence. The defence called no evidence at the hearing.

[9] The heart of the evidence called by the crown was the opinion of Dr. Chatterjee that the offender met the criteria to be declared a dangerous offender and posed a high likelihood of harmful violent recidivism. It was her opinion that the antisocial personality disorder he suffered from was intractable and was exacerbated by his schizophrenia when he was not taking antipsychotic medication. In addition, the offender has cannabis use disorder which further intensifies each of these conditions. She testified his prognosis for treatment was very poor with only a glimmer of hope of any change in his condition by treatment while serving a sentence in the penitentiary.

The Statutory Criteria

[10] The offender has been convicted of two “serious personal injury offences”. Both represent predicate primary designated offences under section 752(a) of the Criminal Code. The crown submits that three pathways lead to his designation as a dangerous offender:

753(1)(a)(i) - a pattern of repetitive behaviour showing the failure to restrain his or her behaviour and the likelihood of causing injury to other persons or inflicting severe psychological damage on persons, through a failure in the future to restrain his behaviour;

753(1)(a)(ii) - a pattern of persistent aggressive behaviour showing the substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour;

753(1)(b) - a conviction for a serious personal injury offence and the offender, by his conduct in any sexual matter has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons for failure in the future to control his sexual impulses.

[11] The crown must prove beyond a reasonable doubt that one of these pathways has been met at the designation stage. The evidence tendered must prove a significant future threat posed by the offender through one of these pathways to designation. It is enough to prove one pathway, but the evidence can prove all three, as the crown asserts it has here. Once one of the pathways is proven the court “shall” make the designation that defendant is a dangerous offender. Once this finding is made the court must examine the same body of evidence on the penalty stage of the dangerous offender proceeding to determine whether to sentence the defendant to an indeterminate sentence.

[12] R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R 936 at para. 31 directs the sentencing judge on a dangerous offender application to apply the reasonable doubt standard to the designation stage and then to consider the whole of the evidence to exercise discretion at the penalty stage, to “turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence”. Evidence of treatability is relevant to both the designation and penalty stage. If treatment prospects are compelling a sentencing judge cannot conclude beyond a reasonable doubt that there is a high likelihood of harmful recidivism or that the violent pattern is intractable. The same evidence of treatability is considered at the penalty stage to determine if the defendant is so dangerous that his future behaviour will not change, in spite of treatment, leading to the imposition of an indeterminate sentence rather than a fixed sentence with or without a long term supervision order of up to ten years.

The Evidence Applied to the Designation Stage

[13] I find that that that all three pathways have been proven beyond a reasonable doubt on the evidence called at the dangerous offender hearing. The offender has a significant criminal record for both offences of violence and sexual offences. Since the age of 14 the defendant has been either in custody or under community supervision for all but three years and two months, over a period of 20 years. The evidence shows cogently that he has performed poorly while on probation and has frequently refused recommended or probation ordered mental health interventions. He only complies with either recommended medication or psychiatric treatment to avoid further charges and has never shown or believed that he has mental health conditions that require ongoing treatment. He currently believes he has been cured by his religious beliefs and divine intervention, and therefore does not need any psychiatric or pharmacological treatment.

[14] I have considered the pattern and types of offences found in the extensive history of offending tendered in the crown materials. Prior to 2010 the Crown relied on police synopses of offences to prove the underlying facts of the offence. I previously ruled these documents admissible subject to an assessment of weight (R. v. Williams, 2018 ONCA 481). I have used these documents to establish basic facts and details such as dates and ages. I find that the summary of evidence found at pages 10-16 in the crowns written submissions (the final argument) sets out other support for the facts in the synopses, including many partial admissions of these facts by the offender during his assessment by Dr. Chatterjee. As a result, I place appropriate weight on these facts in concluding the pattern of violent and sexual offending for the first two pathways to designation has been proven beyond a reasonable doubt. I have treated them with caution and only relied on those facts that find good support elsewhere in the materials filed by the crown on the sentencing hearing.

[15] The offender has flatly asserted he will not take sex drive inhibiting medication and has tepidly told the assessing psychiatrist that he will only take any other treatment or medication to avoid incarceration. Even if he was willing to take sex drive reducing medication it would not make an appreciable difference. As Dr. Chatterjee opined in her evidence, “there is no way to compel an individual to take this medication, he could stop taking it at any point in time; … His history of compliance with medication in general is known to be poor; … There are many criminogenic variables, and reducing his sex drive would address but one of them, it would not address all other areas of risk. For example, his risk of general violent recidivism would not be impacted. It would not also change his tendency to act in an opportunistic fashion. So, the impact of taking sex drive reducing medications is also unknown, and it’s not clear that the risk-benefit ratio weighs in favour of using it.”

[16] The evidence also strongly shows that he has a history of noncompliance with medication, believing it is unnecessary and that he has been self cured without it. Even without the opinion evidence tendered by the crown, based on the history of noncompliance with treatment and medication, his criminal history including six sexual assaults (the index offences included) and the many convictions for other violent offences, I find he meets the three statutory pathways set out above leading me to designate him a dangerous offender.

[17] The sexual offences prior to the index offences are less serious than the two rapes he has been convicted of as part of this proceeding, but one past offence includes a sexual assault on a child (15 years) and the others show a failure to control his sexual impulses in custodial, medical and public settings, including an assault on a nurse in prison, an assault on a nurse in St. Joseph’s Hospital psychiatric unit and an assault on a woman at a bus terminal (conviction for assault but facts sexual in nature). The history shows that the offender takes what he wants and has no thoughts for his victims and no ability to control his impulses to offend in a sexual manner.

[18] The index offences represent a significant escalation of the offender’s sexual violence. In terms of a prediction of future dangerousness, the fact that his behaviour is escalating in seriousness means that his future dangerousness is enhanced. The primary psychiatric diagnosis, antisocial personality disorder amounting to psychopathy, is of significant concern for future dangerousness. The opinion of Dr. Chatterjee is that this condition is intractable and virtually untreatable, especially outside of a highly structured setting like the penitentiary or a psychiatric hospital. There is more than a risk of a minor sexual assault with the escalation demonstrated by the index offences. The evidence shows that there is a strong likelihood he will offend in the future by committing a major sexual assault or another offence of violence, which persuasively meets the statutory test beyond a reasonable doubt.

The Forensic Psychiatric Evidence of Risk

[19] Dr. Chatterjee assessed the offender for the court ordered assessment and conducted an extensive review of the offender’s criminal history, medical history, family/social history, and his criminal behaviour during the predicate offences. Her evidence was highly persuasive, professional, and objective. Her cross-examination by defence counsel did not weaken her opinion in any meaningful way.

[20] It was her opinion that the defendant has three psychiatric diagnoses: antisocial personality disorder, schizophrenia, and cannabis use disorder. In terms of the combined effect of these three disorders she indicated, “Each diagnosis that I’ve made is its own independent risk factor for violence. But, in addition to that, each diagnoses confounds the other two diagnoses, such that it makes each diagnoses more difficult to treat, and it increases a risk profile of the three combined; they have an additive effect to each other.” Antisocial personality disorder (31/40 PCL-R psychopathy) is a particularly intractable lifelong condition. In her opinion psychopathy is the number one most important risk factor for future violent recidivism for this offender, even without active schizophrenia. When an active psychosis is combined with the almost intractable psychopathy it increases the risk for violence. Dysregulation and disinhibition caused by the active psychosis, with an underlying antisocial attitude, means that the offender is less able to control his violent and aggressive impulses. Coupled with the offender’s poor history of taking medication, except when under close supervision, the future danger he poses to the public is profound. Cannabis use disorder exacerbates both an active psychosis and antisocial personality disorder and when all three are present or active the risk for violence is considerable.

[21] The risk for future violent recidivism is high for the offender because of his proven history of failing to regularly take medication, which can only control his schizophrenia, also a lifelong condition. The underlying antisocial personality disorder makes it more likely he will not be able to stick to any medication regime except under the strictest supervision, like that found during a custodial disposition in the penitentiary.

[22] Dr. Chatterjee put it this way, “… His extensive history of noncompliance with medication predicts future noncompliance with medication. Secondly, a substance use disorder with cannabis is exacerbating – has an exacerbating influence on the schizophrenia. So, even if compliant with medication, if he uses cannabis heavily, it could trigger symptoms of psychosis. Thirdly, his personality disorder renders him more likely to not comply with medication and other rehabilitation programming that might assist him in achieving stability.… Antisocial personality disorder renders… Mr. Cyrus irresponsible, impulsive, including a sense of grandiosity and mastery that is not realistic. He will – because of this psychopathic personality style, he’s unlikely to, in perpetuity, accept the help from caregivers and curtail his impulses, such that he would continue to comply with a regimented therapeutic recommendation made by his healthcare professionals.” Ultimately, after careful consideration of his treatability, even in a structured setting like a penitentiary, she determined the intractability and additive nature of these three psychiatric disorders rendered his prognosis for benefiting from treatment poor. At best she indicated there was a glimmer of hope for treatment in a penitentiary, given that he has never spent an extended period under such close supervision.

[23] When pressed in cross-examination by defence counsel on the sliver of hope represented by psychiatric treatment in the penitentiary, she said “so, on balance, while the correctional penitentiary system certainly offers greater intensity of structured programming, when all factors, the prognosis for adequate treatment response for Mr. Cyrus is poor.… Hypothetically should Mr. Cyrus gain some benefit from an in custody penitentiary setting, the likelihood that those skills are transferable to a community setting that is unstructured and unmonitored is very poor, or is very low I should say.” On this evidence, in this court’s objective analysis of the records tendered on the hearing, I find that any glimmer of hope the penitentiary system offers Mr. Cyrus is significantly outweighed by the likelihood he will cease psychiatric treatment, both in custody and out, making his risk for violent re-offence very high and I therefore find this limited treatability evidence has little impact on his designation as a dangerous offender.

[24] In forming her opinion Dr. Chatterjee considered several risk assessment tools commonly used by forensic psychiatrists, which were administered to the offender as part of the court ordered assessment. According to these instruments the offender represents a very high risk for violent re-offence. He scored 31/40 on the PCL – R (the Hare psychopathy checklist) which measures the degree of antisocial personality disorder present. It shows his personality disorder is ingrained, intractable, and at the high-end of the scale. Dr. Chatterjee indicated that this score in and of itself is a significant risk factor for violence, independent of all other factors such as his schizophrenia and cannabis use disorder.

[25] The Sex Offender Risk Appraisal Guide (SORAG) is a 12-item instrument that measures an individual’s risk of violent recidivism, combining both the likelihood of sexual violence and violence in general. The offender’s score was in category eight of nine ascending categories, a score of 30 which puts him in the 90th percentile in comparison to other offenders. A score of this magnitude with this risk assessment tool puts Mr. Cyrus in the high-risk category for violent re-offence.

[26] The Static-99R is a risk assessment tool designed specifically for a sex offending population. It measures the potential for sexual re-offence in three age categories: release under the age of 35, between age 35 and 40 between age 40 and 60. The offender’s scores in all three age categories put him in the highest risk basket for sexual re-offence. Even between ages 40 to 60 he is in a high-risk category for sexual re-offence, a score of 7, with anything above a 6 deemed to be high risk. In short, these objective risk assessment tools all show the same result, an exceptionally high risk for future violent recidivism of both a sexual and nonsexual nature.

The Evidence Applied to the Penalty Stage

[27] In R. v. Boutilier, 2017 SCC 64, supra, the Supreme Court of Canada made it clear that treatability applies both at the designation stage and at the penalty stage. At paragraph 20 they held, “There is, however, some discretion remaining at the sentencing stage. Under s. 753(4.1) of the Criminal Code, a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.”

[28] The findings above in this judgment set out the court’s concerns with treatability. Relying on the forensic psychiatric evidence tendered by the crown and the offender’s criminal history I find that the imposition of an indeterminate sentence is the only adequate measure to protect the public from the high risk of future violent recidivism posed by Adriel Cyrus. I accept the evidence of Dr. Chatterjee that even a highly structured penitentiary sentence would not lead to successful or adequate treatment of the offender, to attenuate his risk to the public. He has no insight into his own behaviour or medical conditions, the conditions he suffers are highly resistant to treatment with the exception of schizophrenia and, most importantly, he neither shows motivation to be treated nor any history of being able to follow through with treatment he has started. Antipsychotic drugs can influence his schizophrenia by reducing the potential for active psychosis, but no drug treatment is available to remedy his intractable condition of antisocial personality disorder – psychopathy. These two conditions combined with cannabis use disorder represent a powder keg ready to go off in violent sexual and nonsexual re-offence. In short, I am satisfied there is no lesser measure that will adequately protect the public, so an indeterminate sentence is warranted.

[29] A glimmer of hope, as Dr. Chatterjee put it in terms of the prospects of future in custody treatment for the offender, cannot be equated with a reasonable expectation that treatment in the penitentiary will have a real effect on reducing the future dangerousness of the offender. This court cannot take this risk on this evidence. It is possible that in custody the defendant will take antipsychotic medication, though the history suggests he will only do so to secure his release, not because he has insight into his need for it. Antisocial personality disorder – psychopathy is notoriously difficult to treat and it is highly unlikely any course of treatment offered in the penitentiary will reduce the risk created by this condition. Cannabis use disorder perhaps could be reduced in custody or eliminated but the defendant’s history suggests he will return to its use as soon as he is out of the structured setting of incarceration, increasing his risk when it is added to the two more prevalent diagnoses.

The Defence Position

[30] The defence called no evidence at the dangerous offender application. The onus is on the crown to prove the pathways to designation beyond a reasonable doubt. There is no onus on the defence to prove that he is treatable or that his risk is manageable when he is released. Rather, there is a discretion in the court to impose a fixed sentence with or without an LTSO at the penalty stage where the evidence shows that a lesser sentence will adequately protect the public. An indeterminate sentence is the clearest and most extreme form of preventative sentence and is reserved for habitual criminals who are dangerous to others. The evidence must clearly show future dangerousness, that the defendant will be “a real and present danger to life and limb.” Hatchwell v. The Queen, [1976] 1 S.C.R 39 at p. 43.

[31] The defence argued that the offender should not be designated a dangerous offender. The essence of their position is that, at the designation stage, factoring in prospects for treatment, the crown had failed to meet its onus on any of the three pathways they put forward for a declaration that the defendant is a dangerous offender. Should the court designate him a dangerous offender, the same evidence on treatability militates in favour of a fixed sentence not an indeterminate sentence.

[32] The focus of the defence was on the fact that the offender had never been sentenced to the penitentiary. They submitted the evidence showed that the programming and treatments, both for sexual violence and the provision of anti-psychotic medication available during a long penitentiary sentence, would reduce the defendant’s risk to a manageable level. Coupled with an LTSO following release, containing continuing mandatory treatment conditions, a structure would be in place to manage any risk the defendant presents in the future. They submitted this lesser penalty would adequately protect the public, should I find him to be a dangerous offender.

[33] I accept the evidence of Dr. Chatterjee that the intractability and pervasiveness of his psychiatric disorders, especially the antisocial personality disorder-psychopathy, make this an unacceptable risk and only an indeterminate sentence will adequately protect the public. The evidence shows a poor history of compliance with any treatments offered in or out of custody, the conditions themselves make the prospect of follow through with treatment very poor, the defendant up to the date of the assessment reports showed no insight to the need for treatment and has no internal belief in the need for treatment. He may take some treatment in custody, but will abandon treatment the moment he is released and become a clear and present danger for violent re-offence.

[34] This finding and the rejection of the defence position on treatability does not rest solely on an acceptance of Dr. Chatterjee’s opinion. The other evidence called proves he is unmanageable while on probation, has a history of failing to report, that he failed to attend his 1st intake appointment for sexual deviance counselling, that he has numerous institutional misconducts, has poor social supports, lacks employment, that he has grandiose and irrational beliefs in his future life plans and a chronic lack of insight into his psychiatric conditions which clearly require constant, ongoing treatment. All these pieces of evidences coalesce into cogent evidence of poor treatability. He will always be a significant risk to public safety.

[35] The offender has been proven to be a dangerous offender on all three pathways to designation submitted by the crown. I declare him a dangerous offender and find that the only sentence that will adequately protect the public from his future risk for sexual and violent re-offence is an indeterminate sentence.

[36] Adriel Cyrus I sentence you to an indeterminate sentence on both sexual assaults for which you stand convicted. I place you on the sexual offender registry for life. Under section 109(3) of the Criminal Code I prohibit you for life from possessing firearms, crossbows, restricted weapons, ammunition and explosive substances. While you are serving your sentence, I prohibit you from communicating directly or indirectly with A.B and S.D. You will provide a sample of your D.N.A. for the D.N.A. databank while you are in custody.

Released: January 18, 2022 Justice Anthony F. Leitch