R v. De La Cruz, 2020 ONSC 8229

Information No. 18-00009524-0000

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

BRIAN DE LA CRUZ

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE C. BRAID

on March 2, 2020, at KITCHENER, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE C. BRAID, SUPERIOR COURT OF JUSTICE, DATED FEBRUARY 10, 2020

APPEARANCES:

C. Jennison Provincial Crown

M. Anevich Counsel for Brian De La Cruz

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE C. BRAID, SUPERIOR COURT OF JUSTICE, DATED February 10, 2020

Reasons for Judgment 1

Legend

[sic] indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) indicates preceding word has been spelled phonetically

All spellings of names are transcribed as set out in the reporter's notes unless noted with a (ph)

Transcript Ordered........................

Transcript Completed......................

Ordering Party Notified...................

MONDAY, MARCH 2, 2020

THE COURT: Thank you everyone for your patience. I am prepared to give oral reasons on the judgment of the matter of Mr. De La Cruz.

Reasons for Judgment

BRAID, J. (Orally):

A ban on publication was previously made in this case, pursuant to section 486.4(1) of the Criminal Code. The order directs that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. In these reasons, I shall refer to the victim by her initials.

I - Overview

Brian De La Cruz is charged with aggravated sexual assault, uttering death threats, and choking. The victim, T.M., was walking alone late at night and was grabbed from behind by a stranger. She was violently strangled and raped. She suffered numerous injuries and was treated in hospital. There is no real question that the attack on T.M. occurred.

The main issue in this trial is whether the Crown has proven, beyond a reasonable doubt, that Mr. De La Cruz was the attacker. In addition, defence counsel also argues that the Crown has not proven aggravated sexual assault endangering life. Of course, the Crown is required to prove all essential elements on all of the offences beyond a reasonable doubt.

In this trial, I shall consider the following issues:

(A) Has the Crown proven identity beyond a reasonable doubt?

(B) Has the Crown proven each offence beyond a reasonable doubt?

II - Facts

A. Findings of Fact

Having heard the evidence at trial, I make the following findings of fact:

On April 15, 2018, at 2:15 a.m., T.M. began walking home after spending a night out with friends. After walking for some time, she was attacked from behind.

The attacker put his hand on her mouth and told her to shut up or he would kill her. The attacker grabbed her hair and yanked her downwards. She was grabbed so violently that her glasses and her hat flew off.

Her body was yanked down onto the sidewalk. She struggled to get up, but could not. The attacker yelled that he was going to kill her. He repeatedly punched her in the jaw. Because of the repeated punches to her jaw, T.M. was blacking out and was being, "punched senseless". He was moving around her while punching her, trying to get her to stop struggling. Although she was still on the ground, she was struggling, fighting back, and screaming.

He forced her onto her feet and moved her down the laneway of a building. She was kind of on her feet, but not moving under her own will. She described it as, "pretty much dragged, but facing forward". He said, "I will kill you," as he dragged her down the laneway.

At the back of building, he continued to punch her and she continued to scream and struggle. She realized that she would likely be sexually assaulted and continued to try to fight off her attacker. At one point, she tried to strike him in the genital area.

He hit her head on the downspout behind the building. Her face was throbbing. The back of her head, her knees, and her back were sore from being thrown to the ground.

T.M. was on her back and the attacker confined her with his body by straddling her. He pulled down her pants, rubbed her genitalia really hard and said degrading words used to describe women's body parts. Her genitals hurt from the rubbing.

She continued to physically struggle and scream. He flopped her onto her chest. She begged him to stop and leave her alone. She told him that she had lost her best friend. He did not respond. He sat on her lower back and repeatedly smashed her face with his open hand. Because of the angle, he could not punch her, so he struck her hard with an open hand to her nose. The way in which he sat on her back was very painful. The smashing of her face left her nose damaged and swollen and caused blinding pain.

He flipped her over onto her back, straddled her and continued to punch her. He told her that he had followed her and said that he would teach her not to walk alone at night.

T.M. was terrified for her life. She tried pushing with her heels to get leverage. She tried clawing at the ground to stabilize herself. She continued to try and scream.

At that point, he put his whole gloved hand into her mouth as far as he could force it and pinched her nose, cutting off her air. She could not breathe. She was getting winded at that point, but did not want to give up. The hand in her mouth was very painful and caused lacerations to her mouth and she began bleeding from her mouth. Her scream became a muffled, gurgling scream. He then gouged at her right eye.

She states that she became very aware of everything that was happening. She wanted to clearly report everything that she went through if she got out of the situation.

The attacker had compressed her neck earlier in the attack. At this point, he placed his hands on her neck and began compressing her neck. She thought that her life was ending. She was gurgling, almost choking on her own blood. The pressure and pain were intense. She was being strangled, but it seemed like a long time and it was like torture. She was terrified because she felt the air leave her lungs and she was unable to breathe. He continued compressing her neck and she heard herself gasping, making an awful sound and then she blacked out and went unconscious.

When she regained consciousness, she was very weak. He had moved their positions. She heard him spitting and thought he was spitting on his penis to commit the assault.

He moved her into a folded over position that was very painful and she could barely breathe as her lungs were crushed. She was still gurgling on the blood in her mouth and was screaming. Her pants were down far enough and her legs and coat were over her head. She was completely confined.

His penis penetrated her vagina at that point. She described that it was like skin tearing and it was burning. He told her how cooperative she was. She believed that he anally penetrated her as well. I shall address the matter of whether there was anal penetration later in these reasons.

She was incredibly weak. She thought that she blacked out at one point, although not to a state of being completely unconscious. It did not last long and then he got off her.

He started walking away. She asked him to find her glasses because she wanted to remove him as far away as possible. He threw her purse at her. She got up and ran for it. She felt dizzy, disoriented, and nauseous.

She stumbled her way to Grand River Hospital, which was only a block or two away. She was treated by an emergency room physician and police were called. An officer transported her to St. Mary's Hospital, where she was seen at the Sexual Assault Treatment Centre. Based on video surveillance of T.M. both before and after the attack, I find that the attack lasted almost 40 minutes.

B. Cross-examination of T.M. and Assessment of her Evidence

Defence counsel vigorously cross-examined T.M. regarding some of the inconsistencies in her evidence, as follows:

1. Whether her hood was up or down prior to the attack. T.M. acknowledged that, prior to the attack, she was not on high alert and may not have remembered having her hood up or down. This was her explanation for the difference in her memory on this point and I accept her explanation.

2. There was a great deal of cross-examination regarding inconsistencies in her descriptions of when she was unconscious and/or dazed and/or blacked out. She used the words unconscious and blacked out interchangeably at times. At trial, she explained distinctions between full and partial unconsciousness. I accept these explanations and find that this area of cross-examination did not impact her credibility.

3. Regarding the number of punches on the sidewalk. I accept T.M.'s evidence that there were numerous punches on the sidewalk. When she was confronted with a transcript that seemed to describe two punches, she did not adopt that statement. In my view, this is not a true inconsistency. It appears that the prior statement may have been describing a series of punches each time that she was punched in what one might call a cycle of punches.

4. Whether she was dragged up the driveway by her hair or whether walking on her feet. Although T.M.'s description of this portion of the attack was slightly different at trial than in her prior statements, I do not find that these were major inconsistencies and they were adequately explained by T.M. This does not impact her credibility.

5. Whether she hit her head on the downspout. The lack of a dent in the photo of the downspout does not assist me. The fact that the medical staff did not make a note of T.M. complaining of a sore head also does not assist. This was not an inconsistency.

6. Whether her pants were partway down or all the way down. This is an extremely minor point and was adequately explained by T.M.

7. Regarding whether T.M. was anally assaulted. I shall address this point later in these reasons.

T.M. was an excellent witness. She was compelling, articulate, and credible. She gave detailed, fulsome, and considered evidence. After a very skillful and thorough cross-examination, she was unshaken in her core allegations.

Although there were some inconsistencies in her evidence, she provided logical explanations for them. I accept that, at the time she made previous statements to police or medical staff, she may not have appreciated the importance of giving meticulous detail. Although she was not perfect in describing the events in the exact same chronological order each time she described them, she was clearly talking about traumatic events that took place over the span of approximately 40 minutes. When that description or precise order of events changed slightly, this did not impact her credibility or her reliability.

Although defence counsel suggests that some of her evidence was given with a "pejorative tone", I did not detect any such tone. I specifically reject the defence submission that she demonstrated guile or animosity toward the accused. She was straightforward in giving her evidence, which was delivered in a factual and almost clinical manner. Although the precise chronology of the sequence of events during the attack may have changed ever so slightly, she did not waver in the fact that these events occurred.

C. Aggravating Fact Regarding Anal Penetration

Although it is not technically necessary for me to make a determination as to whether T.M. was anally penetrated in order for there to be a decision on these charges, it is an aggravating fact that the Crown asks me to consider that will be relevant to sentencing. The Crown must prove this fact beyond a reasonable doubt.

T.M. was confident that she was vaginally penetrated. She believed that the attacker anally penetrated her as well because of pain or pressure in that area, which was in a distinct area and caused a different pain or pressure than the vaginal penetration. The vaginal pain was worse, although the anal penetration was still very painful.

Defence counsel argues that T.M.'s evidence regarding the anal penetration was the most serious inconsistency in her evidence. The emergency room doctor did not have a note of T.M. telling him that she was anally penetrated, although it is clear that she told him that she was raped. When T.M. gave a formal statement to police after the assault, she stated that she thought she may have been anally assaulted based on the results of the test but, at that point, stated she was unconscious at the time. At trial, she stated that she remembered the anal assault.

I recognize that this difference in T.M.'s memory as to the event causes concern for the reliability of this evidence. However, as I will articulate later in these reasons, the DNA evidence of a swab of her anus provides some corroboration for her evidence that she was vaginally penetrated. In addition, the blood that was dripping from her anus also corroborates this evidence at trial.

Having considered all of the evidence, I am satisfied that the Crown has proven, beyond a reasonable doubt, that T.M. was anally penetrated by the attacker.

III - Analysis

A. Has the Crown proven identity beyond a reasonable doubt?

a) T.M.'s Evidence of Identity

T.M. testified that her attacker was a young, well-kept male. She described him as approximately 5 foot 10 inches tall with a thin build. She estimated that he was between 19 and 25 years old. He had darker skin with black hair and no facial hair. She described his skin tone as light-skinned black, meaning not really dark African skin tone. She stated that he was a fine-featured black man, meaning that he did not have African facial features, such as a heavy brow. She described his hair as cornrows, in braids or twisty braids that were collar length. He wore a black crew-neck T-shirt with no collar under a black leather jacket; a thick silver necklace; loose-fitting dark pants; and light grey mesh sneakers.

She described his voice as not a deep male voice. She stated that it was not very manly; it had a light tone without a lot of masculinity.

She identified the person in the prisoner's dock, namely the accused Brian De La Cruz, as the attacker. No photo lineup was completed in this case. I recognize that there are significant dangers to in dock identification by a witness. I do not put any weight on this in dock identification.

T.M.'s description, given immediately after the attack, generally matches the accused before the Court. However, many of those details of his appearance are somewhat generic. Other details, namely the clothing descriptions, are unhelpful in establishing identity.

While T.M.'s description provides some evidence of identification, it is not sufficient standing alone to establish identity. I will, therefore, move on to an analysis of the other evidence in this case.

b. Video Surveillance

The Crown led evidence of video surveillance. The surveillance footage appears to show a vehicle following T.M. and, a short time later, showing her male attacker following her on foot to the area where the attack occurred. The video footage of the male is of poor quality and does not assist me at all with the identification of the attacker.

c. DNA Evidence

Dr. James Morrow was qualified as an expert witness in the area of forensic biology in relation to body fluid identification, DNA analysis, and interpretation of findings. He reviewed three reports that were produced by the Centre of Forensic Sciences and provided an opinion.

Dr. Morrow testified that DNA is often thought of as the genetic code. No two people share the same DNA, aside from identical twins. He explained how forensic DNA analysis targets variable areas of the DNA to process DNA profiles. It is used during investigations to compare a sample with a known DNA profile.

When a DNA profile is generated from an evidence sample and a comparison sample from a person of interest is examined, those results are examined and interpreted by scientists. When the results match at all locations in the DNA profile of the two samples, a statistic is created, which is the likelihood ratio. If the person cannot be excluded as the contributor of the sample, there are two possible explanations: either the person is the contributor of the sample, or coincidentally shares the same DNA with another person. The strength of the DNA evidence is evaluated and propositions are expressed in a likelihood ratio.

In this case, the likelihood ratio is expressed in the trillions. The likelihood ratio is not expressing the odds of it occurring in every trillionth person. It is expressed like a lottery ticket when the lottery numbers are randomly generated. It is the probability that lottery numbers will match the winning numbers and does not depend on the number of tickets sold. It measures the probability of those results occurring in another person.

The size of the number relates to its evidentiary value. The larger the number, the greater the strength of the DNA evidence and of the association.

In this case, T.M. was treated at St. Mary's Hospital Sexual Assault Treatment Centre. Swabs were taken of her genital area. These swabs were submitted for DNA analysis. Later in the investigation, police seized a beer bottle that Mr. De La Cruz had discarded and submitted a swab of this beer bottle for DNA analysis. Police also seized Mr. De La Cruz's DNA, pursuant to a DNA warrant.

Dr. Morrow compared results of DNA testing that was performed on genital swabs taken from T.M. on the night of the incident with DNA testing performed on samples taken from T.M. and Mr. De La Cruz. Dr. Morrow reached the following conclusions:

1. The external genitalia swab taken from T.M. contained semen originating from one male individual. The DNA profile of that male individual was suitable for comparison.

2. The rectal swab taken from T.M. contained an epithelial (or skin) fraction, which was interpreted to be a mixture of female DNA from T.M., as well as male DNA from the same donor who contributed the sperm fraction in the external genitalia swab.

3. Brian De La Cruz cannot be excluded as the source of the male profile from the semen on the external genitalia swab from T.M. The DNA results are estimated to be 51 trillion times more likely if they originated from Brian De La Cruz than if they originated from an unknown individual unrelated to him.

These results provide overwhelming support that Brian De La Cruz is the source of the male DNA profile developed from the genitalia swabs from T.M.

Dr. Morrow agreed that sexual intercourse is a possible explanation for the findings of the male semen in the external genitalia swab. The male DNA located in the rectal swab is consistent with anal intercourse. It could also be indicative of DNA being transported to the external area and then internal surface of the anus. It is not conclusive evidence that anal intercourse occurred because of the possibility of transference. It is not uncommon to detect male DNA in the anus where only vaginal intercourse occurred.

The Crown must prove the identity of the attacker beyond a reasonable doubt. However, they are not required to prove identity to an absolute certainty. That would be a standard that is impossibly high.

I have considered the DNA evidence, together with the evidence of T.M. The DNA evidence is extremely compelling, namely that it is 51 trillion times more likely that the samples originated from Brian De La Cruz than if they originated from an unknown individual unrelated to him.

I find that the DNA evidence is sufficient to prove, beyond a reasonable doubt, that Brian De La Cruz was the attacker. The physical descriptors provided by T.M. further strengthens the proof of identity. I find that the Crown has proven, beyond a reasonable doubt, that Brian De La Cruz was the individual who attacked T.M. on the night in question.

B. Has the Crown proven each charge beyond a reasonable doubt?

i. Count one, aggravated sexual assault.

a) Has the Crown proven, beyond a reasonable doubt, that Mr. De La Cruz sexually assaulted T.M.?

Mr. De La Cruz stands charged that he did, in committing a sexual assault on T.M., did wound and endanger her life, contrary to section 273(2)(b) of the Criminal Code.

I find that Mr. De La Cruz intentionally rubbed T.M.'s genitals, and vaginally and anally penetrated her with his penis. She did not consent and he knew that she did not consent. I find, beyond a reasonable doubt, that Mr. De La Cruz committed a sexual assault on T.M.

The Crown could prove the aggravated sexual assault either by establishing that the complainant's life was endangered or that she was wounded during the sexual assault. I will deal first with the issue of wounding.

b) Has the Crown proven, beyond a reasonable doubt, that T.M. was wounded?

To "wound" means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person's body. It must be more than something trifling, fleeting or minor, such as a scratch.

The Crown must prove that a reasonable person, in the circumstances, would inevitably realize that the force that he applied would put T.M. at risk of suffering some kind of bodily harm. The mens rea of aggravated assault is objective foresight of bodily harm, but does not require proof of intent to wound (see R. v. Godin, [1994] 2. S.C.R. 484).

In this case, T.M. gave a detailed account of how she sustained numerous injuries and was sexually assaulted. I shall summarize three areas of her evidence that are relevant to the wounding:

1. The complainant testified that the assailant compressed her neck and choked or strangled her to the point that she fully lost consciousness at least one time.

2. She testified about how the assailant vaginally penetrated her. She stated that it was very painful; it felt like skin tearing and she felt a burning sensation. She stated that, when she was at the hospital later, she realized that she had a tear in her vagina and it was bleeding. When she went to the washroom, she was also bleeding from her anus.

3. She testified about how the assailant put his whole gloved hand in her mouth and pinched her nose so that she could not breathe and to stop her screaming. She stated that his hand was as far into her mouth as he could force it, and this injured her mouth. She had blood in her mouth from this action and she was gurgling and almost choking on her own blood. She sustained cuts and tears to her mouth from his punches and from the gloved hand in her mouth. She described that there was quite a bit of blood from these cuts.

The complainant was cross-examined extensively by defence counsel. This thorough cross-examination included questions about the minute details of the attack and the chronology of events. T.M. was unshaken in terms of these injuries that she sustained.

The nurse from St. Mary's Hospital Sexual Assault Treatment Centre testified about the injuries that she observed on T.M. The photos of T.M.'s face show numerous cuts on the inside of her lip and dried blood beside her mouth. The nurse also observed a cut or laceration inside the complainant's vaginal wall, which was bleeding and sore. The nurse was unable to complete a full speculum exam on the vaginal area because of the pain that T.M. was experiencing from this vaginal laceration.

The emergency room doctor, Dr. D'Aloisio, was qualified as an expert in emergency medicine in relation to trauma to the structures of the human body and the effects of such trauma. He was questioned extensively. He testified that the injuries to the complainant's mouth and vagina were wounds.

The cuts or lacerations to T.M.'s mouth and vagina broke or tore her skin and were more than trifling, fleeting or minor. T.M. was wounded as a result of the assault. A reasonable person in the circumstances would inevitably realize that the force that Mr. De La Cruz applied would put T.M. at risk of suffering some kind of bodily harm.

I find that the Crown has proven, beyond a reasonable doubt, that T.M. was wounded; that it was reasonably foreseeable that the force that Mr. De La Cruz applied would put T.M. at risk of suffering some kind of bodily harm; and that the wounding that T.M. received resulted from the force that Mr. De La Cruz applied to her.

c. Has the Crown proven, beyond a reasonable doubt, that T.M.'s life was endangered?

The Crown must show that the victim's life was actually endangered, although bodily harm is not a requirement. It should not be a speculative risk, but a real risk. In my review of the case law, there is no definitive articulation of what standard must be met by the Crown in showing that life was endangered. The cases provide some guidance, but there is no authoritative statement on what level of risk is required.

Counsel provided several cases, which canvas the endangering life element of both aggravated sexual assault and aggravated assault. The cases included R. v. Mabior, 2012 SCC 47, R. v. Sayers, 2008 ONCJ 406; R. v. Cuerrier 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371; and R. v. Phillips, (2009) 2009 CanLII 2922 (ON SC), OJ 400.

In Mabior, the Supreme Court of Canada elaborated on the test laid out in Cuerrier. Both decisions dealt with sexual assault, where one partner was infected with HIV. In my view, the "significant risk of serious bodily harm" standard set out in Cuerrier is relevant to the issue of fraud vitiating consent. This does not set the standard for endangering life under section 273(2).

In Cuerrier, the Court stated that exposing sexual partners to the risk of HIV endangered their lives. The Court held that the test is satisfied by the significant risk occasioned by the act of unprotected intercourse. I do not interpret this statement as requiring that, in all cases where endangering life must be proven, the Crown needs to show significant risk. While HIV creates a significant risk to life, that is not necessarily the standard.

In my view, the concept of "significant risk" set out in the HIV cases is inextricably tied to the issue of vitiation of consent and fraud. The significant risk relates to vitiation of consent when the complainant is deprived of knowledge of that significant risk in HIV cases. The issue of fraud or vitiation of consent is not relevant to the case before the Court.

It is not necessary that the assault said to have endangered the complainant's life caused her bodily harm. However, the Crown must establish that the victim's life was actually endangered.

Endangerment does not have a special or technical meaning. In non-HIV cases, common experience and the evidence in the case must lead the court to conclude that the conduct at issue endangered the life of the complainant, such that there was a risk of death. The risk cannot be speculative, but must be a real risk (see R. v. Bear, 2013 MBCA 96).

Having reviewed the cases, it is my view that there has been no definitive articulation of what standard satisfies endangering life and the actual standard of endangerment has not been explicitly established by any decision. It would be impossible or inappropriate to draw such a bright line or make such a pronouncement. The word "endanger" does not have any special technical meaning. Conduct which endangers life can take many forms, and a determination of what meets that standard will invariably be fact-specific and dependant on a given case.

In the case of R. v. McFarlen, 2008 BCSC 1848, the accused was convicted of several offences, including attempted murder and aggravated assault. The Crown argued that he committed assault when he choked the complainant to the point of unconsciousness. The Court stated that not every choking would endanger a person's life and constitute aggravated assault. However, in that case, an emergency room doctor testified that, if blood flow is obstructed for four minutes or longer, permanent neurological damage can result, and eventually death. In that case, there was no evidence regarding how long the victim was strangled for. Nonetheless, the Court concluded that the victim's life was endangered.

In the case of R. v. Phillips, 2009 CanLII 2922 (ON SC), [2009] O.J. No. 400, Justice Malloy of the Superior Court considered a situation where the accused drove his car directly at the victim, mounting the sidewalk to do so. The victim was able to jump out of the way. The accused then turned around and came after the victim again. The victim had to jump into the roadway to avoid being hit. The accused used his car as a weapon and his conduct constituted assault. The Court found that the victim was exposed to danger, peril, and the risk of death by the actions of the accused. His life was thereby endangered, within the meaning of the Criminal Code.

In the case of R. v. Sayers, 2008 ONCJ 406, the Ontario Court of Justice considered a situation where the victim was held under water until he lost consciousness. It is common ground that death can occur by drowning when an individual is held underwater for a sufficient period of time and the time may vary with different individuals. In that case, the Court held that the actions of the accused endangered the victim's life.

In this case, T.M. testified about how the accused compressed her neck. She stated that he placed his gloved hand in her mouth as far as he could and held her nose so she could not breathe. Most significantly, she testified about the neck compression that she described as so violent and dangerous she was gasping for air, gurgling, and then went unconscious. She described how the pressure and pain was intense. She could feel the air leaving her lungs. She blacked out and lost consciousness. She described it as prolonged, torturous, and life-threatening. She said it was horrifying and she felt like she was basically dying.

T.M. did not have any pre-existing medical conditions that could have caused any of the injuries that she received. She received the following injuries as a result of the attack, some of which are related to the issue of strangulation and others are related to other points in the attack:

1. Multiple red marks all over her face and neck. Some of the red marks on her neck resembled finger or thumbprints from the strangling.

2. Dark purple bruising above her right and left eye from attempts to gouge her eye and from punches.

3. Her mouth was swollen inside and outside from his hand being in her mouth.

4. The punches and the hand forced into her mouth tore open the side of her mouth from the force, which resulted in her having significant bleeding and later, having dried blood on her face. She also suffered small lacerations inside her lips.

5. Significant bruising under her chin from the punches.

6. Significant bruising and red marks on her throat from being strangled. Within four days to a week after the attack, she had dark bruising on her neck and it was very dark in the area of her windpipe. The darker bruising lasted for weeks.

7. Swelling to her face and nose from punches and open-hand strikes to the nose, causing her face to become puffy and disfigured after the assault.

8. Red areas on both her knees.

9. Red areas, which appeared to be scratches, on her shoulder blade.

10. Red areas on her buttocks.

11. Intense pain from being dragged, thrown on the ground, folded over in an awkward position, and sat on. She testified that her back continues to be painful at the time of trial.

12. Cut or laceration on the inside of her vagina, which was bleeding and sore.

13. When she was at the hospital, she observed blood dripping out of her anus.

14. When she was being treated at St. Mary's Hospital, she had trouble breathing because swelling in her neck continued to increase after the event. She was referred to the emergency room doctor for treatment.

Dr. D'Aloisio met with T.M. at Grand River Hospital. He made a notation of the laceration to her mouth. He examined her neck, which he observed to have full range of motion with no overt signs of trauma externally at that time. He ordered a CT scan to ensure there was no skull fracture, contusion or bleeding to the brain. The CT scan came back clear of any concerns.

Dr. D'Aloisio acknowledged that he may not have appreciated evidence of bruising or tissue swelling on an initial examination so soon after the event, as these injuries may develop hours afterwards.

Dr. D'Aloisio testified about the anatomy of the neck. He noted that there are major blood vessels in the neck like the carotid arteries and vertebral arteries. The carotid arteries are the largest conduit bringing blood to the brain. The vertebral arteries are more shielded and provide blood to the back of the brain. The jugular veins are also present and deliver deoxygenated blood from the brain back to the heart. The trachea, or windpipe, is another structure of the neck, which connects the larynx to each of the lungs.

Dr. D'Aloisio stated that any compression of the structures in the neck can constrict blood flow to the brain, depriving the brain of oxygen, which could ultimately lead someone to lose consciousness. Compression of the trachea could prevent someone from breathing, denying oxygenated air into the lungs. Where an individual has lost consciousness as a result of compression to the neck structures, the consequences vary depending on the scenario. If the loss of consciousness is due to a lack of oxygen delivery to the brain, then brain damage can occur or the heart could potentially stop.

When a gloved hand is placed into someone's mouth and their nose is pinched shut, or where they are strangled at the neck, the blood's oxygen content would fall, leading to a loss of consciousness. Dr. D'Aloisio agreed that there is a risk of death in this scenario. Furthermore, Dr. D'Aloisio stated that whether there has been repeated instances of short strangulations compared with one long compression to the neck, both pose a threat to life. When faced with a proposition that simply applying pressure to the neck itself does not create a risk of endangering life, Dr. D'Aloisio disagreed. He stated that in his opinion, it does.

Dr. D'Aloisio's examination was generally restricted to T.M.'s head and neck. She did not exhibit symptoms of a crushed trachea. During cross-examination, Dr. D'Aloisio agreed that when T.M. was at the hospital, she did not have any life-threatening injuries.

When there is insufficient oxygen delivered to the brain to support its normal function, the brain enters a hypoxic state. Dr. D'Aloisio stated that an individual's life is not automatically in danger once oxygen is cut off to the brain. The restriction of oxygen must be lengthy enough to lead to hypoxia. Furthermore, Dr. D'Aloisio stated that a life is not endangered when an individual loses consciousness and shortly thereafter regains consciousness, as hypoxia has not set in. Additionally, where pressure is released a few seconds after consciousness is lost, no heart damage occurs. Hypoxia requires approximately five to six minutes of oxygen restriction before irreparable brain damage begins. Dr. D'Aloisio agreed that there are combat sports where participants are placed in chokeholds and rendered unconscious. He commented that such activities were not safe.

During cross-examination, Dr. D'Aloisio was asked whether, at the point of irreversible damage, namely five to six minutes, the restriction of oxygen becomes life-threatening. He agreed with this proposition but clarified by stating the act of disallowing sufficient oxygen to enter the body could threaten life. In terms of using this five to six minutes, he stated this was the time period within which hypoxia to a tissue, namely the brain, produces irreversible damage. In my view, the doctor did not say that five to six minutes of strangulation is required for life to be threatened. He is simply saying that irreparable brain damage occurs at this point.

Having considered all of the evidence in this case, I find that the act of strangulation to the point of unconsciousness that occurred in this case endangered life. I find that T.M. was exposed to danger, peril, and the risk of death by the actions of Brian De La Cruz. T.M.'s life was endangered within the meaning of section 268(1) of the Criminal Code. As I have stated earlier, the word endanger does not have any special technical meaning. This is a case that is akin to the decisions in Phillips and Sayers. I adopt the reasoning in those cases and I do find that the Crown has proven that T.M.'s life was endangered by the actions of Mr. De La Cruz.

ii. Count Two – Threaten Death

Mr. De La Cruz stands charged that he did, by verbal means, knowingly utter a threat to T.M., contrary to section 264.1(1)(a) of the Criminal Code.

T.M. provided clear evidence that her life was threatened numerous times during the assault. She was unshaken in cross-examination on this point. I find, beyond a reasonable doubt, that Brian De La Cruz threatened the life of T.M. many times throughout the attack.

iii. Count Three – Choking

Mr. De La Cruz stands charged that he did, with the intent to commit a sexual assault, did attempt to strangle T.M. by using his hands, contrary to section 246(a) of the Criminal Code. The Crown must prove that the accused attempted to overcome resistance to enable or assist him in the commission of a sexual assault by attempting to strangle T.M.

In this case, the accused compressed T.M.'s neck. She described it as compression, choking, and strangling. She distinguished the strangling primarily as the event that caused her full loss of consciousness. She also described that her neck was compressed and choked at other times. She described how he put his gloved hand as far as he could into her mouth and pinched her nose so that she could not breathe properly.

She resisted the attack in multiple ways, by screaming, physically resisting, and trying to escape. At one point, she tried to strike out at his testicles. He continually tried to get her to stop screaming. He dragged her behind the building and began rubbing her genitals. It was clear, at that point, that he intended to commit a further sexual assault. He then strangled her to the point of her becoming unconscious. When she regained consciousness, he had repositioned himself. She was very weak at that point. He then vaginally and anally penetrated her with his penis.

I find that the Crown has established, beyond a reasonable doubt, that Brian De La Cruz attempted to overcome the resistance that T.M. was displaying to enable him or to assist him in the commission of the sexual assault by strangling her. I find that his attempts to strangle her were taken to assist or enable him to commit the sexual assault. When she continued to struggle, he strangled her to the point of unconsciousness in order to overcome her resistance. Once she was overcome, he vaginally and anally raped her.

IV. Conclusion

For all of these reasons, there will be findings of guilt on all three counts as charged.

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Tracy Graziotto, certify that this document is a true and accurate transcript of the recording of R. v. Brian De La Cruz, in the Superior Court of Justice, held at KITCHENER taken from Recording 4411_CrtRm-203_20200302_082951__10 which has been certified in Form 1.

April 6, 2020 ELECTRONIC COPY

(Date) Authorized Court Transcriptionist

The Typist

Certified Verbatim Transcription

519-721-1879