R v. De La Cruz, 2023 ONSC 314

COURT FILE NO.: CR-18-9524 DATE: 2023-01-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BRIAN DE LA CRUZ

Cynthia Jennison, for the Crown Melanie Webb and Anders Hoenisch, for Mr. De La Cruz

HEARD: January 6, 2021; May 9 & 10, 2022; June 27 & 28, 2022; October 25, November 28, December 1, 2022; and January 18, 2023

The Honourable Justice Catrina D. Braid

A ban on publication was previously made in this case, pursuant to s.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 The Order directs that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Reasons on Dangerous Offender Application

I. Overview

1On March 2, 2020, I convicted Brian De La Cruz of aggravated sexual assault, uttering death threats and overcome resistance by strangling. Mr. De La Cruz grabbed the female victim from behind while she was walking alone late at night. He dragged her off the street and violently beat, strangled, and raped her.

2The Crown has brought an application to have Mr. De La Cruz declared a dangerous offender, pursuant to s. 753 of the Criminal Code. The Crown seeks the dangerous offender designation based on the sexual offender and brutality provisions of ss. 753(1)(b) and (1)(a)(iii), and seeks the imposition of an indeterminate sentence pursuant to s. 753(4)(a).

3Part XXIV of the Criminal Code authorizes and governs the conduct of dangerous offender proceedings. The statutory scheme has two stages, which I shall address in my analysis:

A. The designation stage: Section 753(1) lists the statutory requirements that must be met before a court can designate an offender, convicted of a serious personal injury offence, as a dangerous offender.

B. The penalty stage: Sections 753(4) and (4.1) govern the sentencing of dangerous offenders.

R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 13-15.

4For reasons that follow, I find that Mr. De La Cruz meets the dangerous offender criteria and should be designated as a dangerous offender. Further, I find that Mr. De La Cruz should receive a determinate sentence and a long-term supervision order (“LTSO”), as opposed to an indeterminate sentence. I impose a sentence of approximately 15 years in custody, less time served, and an LTSO for 10 years.

II. Circumstances of the Offences

5The following paragraphs set out my findings of fact in this case. A further recitation of the findings of fact is set out in my reasons for judgment: R. v. De La Cruz, 2020 ONSC 8229.

6On April 15, 2018, at 2:15am, the victim was walking home alone along King Street in Waterloo after a night out with friends. Mr. De La Cruz drove past the victim twice, driving slowly the second time. He parked the car, ran across the street, and began following her. Mr. De La Cruz was 28 years old. The victim was 51 years old and a stranger to him.

7Mr. De La Cruz grabbed the victim from behind. He threatened to kill her. He grabbed her hair and yanked her down onto the sidewalk. He repeatedly punched her in the jaw until she was blacking out. He forced her to her feet and dragged her down a laneway.

8At the back of the building, he continued to punch her. He pulled her pants down, rubbed her genitalia really hard and used degrading language to describe women’s body parts.

9The victim was terrified. She told him that she had just lost her best friend and pleaded with him to leave her alone, but he did not respond.

10He sat on her lower back and repeatedly smashed her nose with his open hand, causing 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 that he would teach her not to walk alone at night.

11The victim tried to scream. 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. Her mouth was bleeding, and she was gurgling, almost choking on her own blood. He gouged her right eye.

12At various points during the attack, he placed his hands around her neck and compressed her neck, strangling her until she lost consciousness. She did not know how long she was unconscious, but when she regained consciousness, he had placed her on her back in a folded over position that was very painful. He raped her, both vaginally and anally. He completely confined her with his body during the attack so she could not escape.

13The entire attack lasted almost 40 minutes. When the attack was over, the victim stumbled to the hospital. The victim’s nose, mouth, jaw, and face were swollen; her eyes, chin, neck, and back had significant bruising; and she had lacerations to the sides of her mouth. She suffered intense back pain. She had a laceration inside her vagina, and she was bleeding from her anus. In committing the sexual assault, Mr. De La Cruz wounded and endangered the life of the victim.

14Mr. De La Cruz was convicted of aggravated sexual assault, utter threats, and overcome resistance by strangling.

III. Impact on the Victim

15The victim suffered significant physical injuries and was disfigured with bruises and swelling for quite a while after the attack. The injuries left scars inside her mouth and made eating very difficult. She suffers from chronic back pain because of this attack. She lives with chronic stress, insomnia, and fatigue.

16The victim’s quality of life has been greatly diminished. She states:

I am a shell of my former self. So much has been taken away from me. I live in constant fear, in a state of hyper-vigilance. I continue to suffer from anxiety and depression brought on by this attack. I panic if people walk too close to me on the sidewalk. I sometimes cannot leave home. What I experienced are what nightmares are made of...

17The attack has negatively impacted the victim’s relationships and work. She moved because she did not feel safe. No one can relate to the trauma that she has endured, and she feels isolated. At times, she feels like she can't go on.

IV. Circumstances of the Offender

18Psychiatric assessments, prepared by forensic psychiatrists Dr. Lisa Ramshaw and Dr. John Bradford, contain a thorough review of Mr. De La Cruz's personal, medical, and criminal history. I have also reviewed transcripts and other records regarding Mr. De La Cruz’s criminal history.

Personal Background/Family

19Mr. De La Cruz was 28 years old at the time of the predicate offences and is now 33 years old. He was born in the Dominican Republic. His father came to Canada the year that Mr. De La Cruz was born and brought Mr. De La Cruz to Canada when he was 10 years old. He has two sisters and two half sisters.

20As a child between grades 1 and 4 in the Dominican Republic, Mr. De La Cruz was in several fights and missed a lot of school. He was very far behind in school in the Dominican Republic and did not do well at school when he arrived in Canada.

21A heart murmur was discovered sometime after his birth, which caused seizures and tiredness. He had cardiac surgery at 10 years of age in Toronto.

22As a teenager, Mr. De La Cruz had behavioural problems and was physically and verbally aggressive toward his family. He had clinically significant oppositional behaviour. He threatened his father and older sister with a knife. He was described as inattentive, immature, and explosive when upset, which happened often, leading to verbal and physical aggression. He was suspended on several occasions due to persistent behavioural problems at school, and was expelled from high school after three months because of anger issues. He left school in grade 9.

23He was never sexually, physically, or psychologically abused. His family is religious. As far as he is aware, there is no family history of mental illness, suicide, or physical illness other than cardiac disease on the maternal side of the family.

24Mr. De La Cruz has significant family support from his siblings and his parents. Recently, his father and mother have reconciled, and his father is bringing his mother to Canada.

25Mr. De La Cruz was involved in a common law relationship with M.D. for seven years. He has three children with M.D., who are between four and seven years of age. He acknowledges that he was not faithful to her, which caused relationship difficulties. He would like to raise a family with M.D. when he is released. M.D. stated that she is open to trying their relationship and that she would give him a chance.

26Mr. De La Cruz has had unstable and intermittent employment at various construction and housekeeping/cleaning jobs. Prior to his arrest in April 2018, Mr. De La Cruz had been residing rent-free with his oldest sister, her husband, and their four children. He had been working as a roofer for a short time and was not yet paying child support.

Substance Abuse

27Mr. De La Cruz denied using any drugs to Dr. Ramshaw. However, Mr. De La Cruz later admitted to Dr. Bradford that he started consuming alcohol and smoking cannabis at 17 years of age. He also told Dr. Bradford that he started to use cocaine at the age of 19 and that he started using Molly (methylenedioxymethamphetamine/MDMA) two to three times a month in 2018 (through February, March, and April). Dr. Bradford stated that Mr. De La Cruz appears to be dependent on cocaine as well as MDMA. Family members are consistent in describing him as being a different person before the escalation of substance use.

Criminal History

28In 2007, Mr De La Cruz was charged as a young offender with taking a motor vehicle without consent and was diverted. There was a further series of offences in 2011, including assault and mischief. Those charges were also diverted.

29On May 11, 2017, Mr. De La Cruz was found guilty of mischief under $5,000 and fail to attend court, for which he received a conditional discharge and probation for 12 months. This was a domestic incident in which he smashed his common law spouse's cell phone. Between January and May 2017, Mr. De La Cruz attended 12 sessions of the Partner Assault Response Program (PAR) through the John Howard Society and completed the program with satisfactory attendance and participation. However, during his probation period, he missed appointments, was intermittently employed, and was reported by his ex-common law spouse to have dropped off the children while under the influence of alcohol.

30While subject to the probation order on the above-noted charges, Mr. De La Cruz assaulted a female in March 2018. He was convicted of simple assault in April 2019 and sentenced to the equivalent of 30 days in jail (time served) plus a suspended sentence, 3 years’ probation, and a s.110 order for 10 years. Mr. De La Cruz was a stranger to the 18-year-old female victim. He entered her apartment, turned off the lights, pulled her hair, and pushed her to the ground. He was on top of her and tried to scratch her face. During the struggle, her head hit the wall and table. She screamed as loud as she could. He fled the apartment after a few minutes. She received minor scratches on her neck. This is the only conviction on Mr. De La Cruz's record.

31In September 2020, Mr. De La Cruz entered into a Common Law Peace Bond, which was not a conviction or a finding of guilt. The agreed facts read in to support the Peace Bond described three occasions in February and March 2018 when Mr. De La Cruz attended his ex-common law spouse’s residence uninvited. On the first occasion, he was intoxicated and physically aggressive toward her, insisting that they have sex. He slapped her face several times and said, “you don’t say no to me.” On the second occasion, when she told him she intended to find someone else to have a relationship with, he slapped her face and told her, “You belong to me.” On the third occasion, he was intoxicated and demanded to see the children. She refused, and he broke the basement window with a brick.

32Mr. De La Cruz has been in custody since his arrest on the predicate offences on April 21, 2018. There have been no reported aggression or behavioural disturbances while in custody.

V. Forensic Psychiatric Evaluations

33The Crown obtained the consent necessary to initiate dangerous offender proceedings against Mr. De La Cruz. Consequently, he underwent two forensic psychiatric evaluations. An Assessment Order was made to authorize the preparation of a report by Dr. Lisa Ramshaw. The defence obtained their own report from Dr. John Bradford. Each doctor met with Mr. De La Cruz for approximately 9 hours, spoke to collateral sources, reviewed file material, and conducted psychological testing.

a. Report and Evidence of Dr. Lisa Ramshaw

34Dr. Lisa Ramshaw testified at the dangerous offender hearing and her 49-page psychiatric assessment report, dated April 15, 2021, was filed. When Mr. De La Cruz met with Dr. Ramshaw, he was vague, presented himself in a morally virtuous light, and denied any significant history of wrongdoing. He had a very positive self-view and a strong exculpatory stance. He stated that the convictions of aggravated sexual assault, choking, and threatening death were wrongful convictions that he planned to appeal.

35Mr. De La Cruz denied having behavioural problems in school or engaging in fights at school. He denied any significant antisocial behaviour at any time in his life and stated that he had never been in a fight or assaulted anyone. When he was confronted with collateral information about his aggressive behaviour when he was in elementary and high school, he denied remembering any of it and said that he looks to the future. He stated that he is a very religious person.

36Mr. De La Cruz stated that he had never used any drugs including cannabis and denied having any issues with alcohol. He stated that he had only one sexual relationship, which was with his common law wife, and denied any other sexual partners including any casual sexual encounters. Mr. La Cruz indicated that he had never masturbated and even claimed that doing so would be harmful.

37In relation to the mischief charge, he denied smashing his ex-common law spouse’s cell phone, and stated that it fell out of his hand and cracked. He denied becoming angry or ever arguing with her and said that they had no physical fights.

38When he was asked about his participation in the PAR program, he said that he did not learn anything for himself. Even though the report from the completion of the PAR program stated that he identified abusive behaviours in his relationship and appeared to take responsibility, he said that he had no comment on that and that he is not abusive.

39Mr. De La Cruz told Dr. Ramshaw that he has no interest in changing, does not believe that he has a sexual problem, and is not interested in treatment for sex offenders. He said that he has no regrets and no feelings of guilt. Though he stated that he would likely take anger management programs, he also stated that he did not believe that he had any problems with anger or his behaviour. Mr. De La Cruz stated that he did not want to engage in any testing concerning sexual offending, sexual history, or in essence any test that would presume he had committed a sexual offence.

40Family members denied the history surrounding Mr. De La Cruz’s behavioural problems at school and with family, and suggested that there were errors in these reports. Mr. De La Cruz similarly viewed himself very positively with no history of aggression or problematic behaviour.

41Dr. Ramshaw provided the following diagnoses:

i. The test results revealed that Mr. De La Cruz is engaging in an extreme degree of positive impression management. These scores resulted in an extremely unreliable account of his history. If he admits setbacks, he is likely to blame external rather than personal factors, and his motivation for treatment and change is very low. ii. Mr. De La Cruz has a long history of anger problems, impulsivity, intermittent aggression, irresponsibility, lack of remorse, and failure to accept responsibility for his actions. He presented with low anxiety, a remarkably positive self-view, and a morally virtuous life, despite information to the contrary. Dr. Ramshaw diagnosed an antisocial personality disorder with antisocial and narcissistic traits. A coercive or sadistic sexual preference could not be ruled out.

42Dr. Ramshaw provided the following opinions about his risk to reoffend:

i. There are several protective and mitigating factors, including his family attachments and support, his reported interest in work, and his comfort in religion. His risk enhancing factors include his sexual offending history; lack of insight into his behaviours and sexual problems; failure to accept responsibility for his actions; lack of remorse; poor communication and problem-solving skills; intimacy deficits and sexual repression; anger, impulsivity, and general self-regulation problems; substance misuse; and his history of problematic cooperation with supervision in court orders, including offending while under a probation order. He has limited motivation to engage in any meaningful change, although it was acknowledged that he would likely be more accepting of treatment post-appeal if he is not successful. ii. Dr. Ramshaw concluded that Mr. De La Cruz is at a significant risk of sexually re-offending, absent appropriate risk management interventions. Dr. Ramshaw stated that he could likely be managed in the community with close supervision and appropriate programs, if and after he has engaged in intensive sexual behavioural therapy, anger management, communication and relationship skills development programs, and alcohol abuse treatment. Motivational interviewing could assist with Mr. De La Cruz’s readiness to change, as well as with his problems with sex offending, anger, and alcohol abuse. iii. After having considered Dr. Bradford's report and the information provided by Mr. De La Cruz during the preparation of that report, she noted that he acknowledged some of the behaviour. In her opinion, the risk remains the same, but he is moving more positively toward treatment interventions. She stated that he was in a pre-contemplative stage with limited insight.

43Dr. Ramshaw made the following recommendations:

i. Dr. Ramshaw was unsure whether sex drive reducing medication will ultimately be recommended, but that this should be assessed prior to transition into the community. ii. Dr. Ramshaw recommended motivational interviewing, sexual behaviour treatment, anger management and communication skills, drug and alcohol abuse treatment together with random urine screens, testing his fingernails or toenails, and hair samples for stimulants. Upon release to the community, Dr. Ramshaw recommended close supervision with monitoring and support through the parole system, and that he continue his sexual behaviour treatment, anger management and skills development in the community. Psychosocial supports and ongoing close contact with his family would also assist. Dr. Ramshaw also recommended that Mr. De La Cruz pursue gainful employment on a regular basis and that he obtain stable housing. Finally, once available, phallometric testing is recommended to understand his sexual preferences.

b. Report and Evidence of Dr. John Bradford

44Dr. Bradford testified at the dangerous offender hearing and his 29-page psychiatric assessment report, dated March 11, 2022, was filed. Mr. De La Cruz acknowledged to Dr. Bradford that he committed the predicate offences, although he minimized some of the aggravating factors. He stated that he had been drinking earlier that evening and was high on drugs, including MDMA and cocaine. He decided to look for a prostitute to pay for sex and explained that he was into prostitution himself. He admitted that he pulled the victim’s pants down, that he vaginally penetrated her with his penis, and that the sex was against her will. He stated that he punched her twice but not very hard. He denied strangling her and anally raping her. He described it as “violent” but not “vicious”, “it was not animalistic”. He believes that he started using MDMA in 2018, and he thinks this was part of why the sexual violence occurred.

45In speaking to Dr. Bradford, Mr. De La Cruz did not deny having perpetrated the sexual violence, but denied some aspects of it. He does not appear to understand the impact on the victim. Dr. Bradford stated that Mr. De La Cruz does not really understand how terrifying and awful this experience would have been for the victim. He spoke about taking responsibility, but his account of how his behaviour might have impacted the victim was superficial.

46Mr. De La Cruz admitted that he watched a lot of pornographic videos and paid for sex with sex workers. He stated that he has been involved in many sexual relationships and has probably slept with 30 women. He admitted to masturbation. He acknowledged casual one-night stands, sexual contact with a sex trade worker between six and 10 times, and cheating on a partner 6 to 10 times.

47Mr. De La Cruz told Dr. Bradford that he had been concerned that the Crown and Dr. Ramshaw were out to get him. He was more forthcoming with Dr. Bradford in terms of admitting his actions. Mr. De La Cruz may have found it easier to speak to a male doctor than to a female doctor.

48Mr. De La Cruz made certain statements during his interviews with Dr. Bradford that can be described as admissions against interest and that are admissible for their truth. Mr. De La Cruz acknowledged the sexual component to violence on the following occasions:

1. With respect to the assault on March 10, 2018, Mr De La Cruz acknowledged that he committed a sexual assault even though he was only convicted of simple assault. He stated that the victim was strong, so he couldn't pursue it.
2. With respect to incidents involving his common law wife in February and March 2018 leading up to the Peace Bond, he stated that he was drunk and admits forcing himself on her sexually, as part of a pattern of domestic violence.
3. Mr. De La Cruz acknowledged that he had coercive sexual intercourse with an adult female between two and five times in March and April 2018.

49Dr. Bradford provided the following diagnoses:

i. Dr. Bradford noted an escalation of violence leading up to the predicate offences in a relatively short time, which points to it being more of a situational than a personality trait. Dr. Bradford noted that this can be explained by increased substance use, specifically abuse of amphetamine-type drugs. ii. Dr. Bradford noted that amphetamine use is associated with mental illness. MDMA causes altered sensation and increased energy, which can impact sexual drive. Dramatic behavioural changes can develop rapidly with stimulant use disorder. Chaotic behaviour, social isolation, aggressive behaviour, sexual dysfunctions, and sexual stimulation can occur. There are documented increases in sexual drive and sexual violence related to amphetamine abuse, and studies regarding the relationship between amphetamine abuse and aggressive behaviour. iii. Dr. Bradford believes that the escalation in Mr. De La Cruz’s abuse of alcohol, cocaine, and MDMA has interfered with his psychosocial functioning and has been associated with an escalation in sexual violence that is out of control. Pharmacological and psychological treatment programs are available to treat and rehabilitate persons with amphetamine abuse and dependence. iv. Dr. Bradford stated that, since the violent behaviour and violent sexual behaviour was clustered, it was more likely related to a substance use disorder. Mr. De La Cruz will require treatment for his substance use disorder, which needs considerable amount of work to address. He will need to understand the risk and impact that the substance abuse will have on his behaviour in the future. v. Mr. De La Cruz has antisocial and narcissistic personality disorder traits. Dr. Bradford found significant evidence of an antisocial personality disorder, but not in the psychopathic range. He noted that Mr. De La Cruz's insight into his behaviour that led to his current charges is problematic. He tends to see things in an egocentric dimension. vi. During testing, Mr. De La Cruz endorsed cognitive distortions directed toward adult females that support sexual violence and justify rape against adult women. Dr. Bradford stated that there is some evidence of him having violent sexual thoughts, and that substance abuse worsens those distortions. vii. Although Mr. De La Cruz has some personality difficulties, he is not the most disturbed individual. He has admitted his problems with sexual behaviour. He talks about religion and family support as factors that will help him prevent problems in the future. When he was questioned, he agreed that substance abuse treatment and sex offender treatment would be helpful, but he did not say that spontaneously. viii. Dr. Bradford identified symptoms of adult ADHD in Mr. De La Cruz, and stated that if those symptoms were treated, it may reduce substance use disorder and criminal behaviour.

50Dr. Bradford provided the following opinions about his risk to reoffend:

i. Mr. De La Cruz can be treated for his amphetamine addiction and can be managed in the future and in the community without significant risk to members of the community. ii. Mr. De La Cruz is treatable and can be rehabilitated with a tolerable risk to the community at large. Mr. De La Cruz also has the support of his family and his ex-common law spouse, which is critical in relation to his rehabilitation and reducing recidivism.

51Dr. Bradford made the following recommendations:

i. Dr. Bradford recommended that phallometric testing be completed, since the more information that is available about Mr. De La Cruz’s sexual difficulties, the easier it will be to plan the appropriate treatment. Dr. Bradford would also recommend a brain MRI to rule out a brain abnormality. ii. Dr. Bradford would not recommend sex drive reducing medication at this time, but stated that it could be prescribed in the future. iii. Mr. De La Cruz will require one or both of the moderate or high intensity cognitive sex offender treatment programs. At a later point, he will likely require moderate or low intensity treatment from a psychiatrist geared towards entering the community or for relapse prevention while on parole. iv. If Mr. De La Cruz is released into the community, he needs to be referred to a psychologist or psychiatrist with a strong background in treating sexual offenders, preferably at a sexual behaviours clinic. These clinics can prescribe sex drive reducing treatment and monitor nail, urine, and blood for substance abuse. If Mr. De La Cruz receives a long term or dangerous offender designation, Correctional Service Canada (“CSC”) will refer him to a sexual behaviours clinic which has a psychologist/psychiatrist, social workers, relapse prevention, cognitive behavioural treatment, and pharmacological treatment. The clinic can offer a multi-faceted approach as opposed to what is available from an individual practitioner. v. Dr. Bradford stated that Mr. De La Cruz may have adult ADHD. Dr. Bradford noted that CSC in the Kingston area has a group of psychiatrists that could probably diagnose and treat the adult ADHD, which could have a significant impact on the offender’s ability to engage in treatment. If Mr. De La Cruz has ADHD and is treated appropriately, his substance use disorder can be reduced. vi. Mr. De La Cruz will have an opportunity to undergo treatment for substance use disorder and for sexual offender treatment while incarcerated. Dr. Bradford stated that, since he has never had any organized treatment, one must assume that he would respond positively to the opportunity to be treated. Dr. Bradford made this assumption based on these factors and from his own experience.

Common Elements to the Opinions of Dr. Ramshaw and Dr. Bradford

52Both Dr. Ramshaw and Dr. Bradford found that Mr. De La Cruz scored above the average risk for recidivism for male sexual offenders if released before the age of 40. If he is released after 40, the risk is reduced to a moderate high. If he is released after 50, the score goes down to a similar risk category of the average sex offender.

53Dr. Bradford and Dr. Ramshaw both agreed that, depending on Mr. De La Cruz’s level of motivation and cooperation, he could be reintegrated into the community after serving a sentence. Dr. Bradford agreed with Dr. Ramshaw that strict community conditions and monitoring would be required, including hair and nail samples for amphetamine-type drug abuse, as well as other factors (alcohol abuse treatment, gainful employment, stable housing) needed to reduce recidivism.

54Dr. Bradford and Dr. Ramshaw both agreed that Mr. De La Cruz has traits of antisocial personality disorder and narcissistic personality disorder. Dr. Ramshaw testified that Mr. De La Cruz does, in fact, qualify for an antisocial personality disorder diagnosis.

Conclusions Regarding the Opinions of Dr. Ramshaw and Dr. Bradford

55I have carefully considered the evidence and reports of Dr. Ramshaw and Dr. Bradford, who are both highly qualified and experienced forensic psychiatrists. I am mindful that I may accept all, some, or none of a witness’s testimony. Where the opinions differ, I prefer the opinions of Dr. Ramshaw.

56In my view, Dr. Bradford’s opinions were not always supported by the evidence. For example, at page 18 of his report, he stated that Mr. De La Cruz “admits what he did, and the impact that it had on the victims.” However, on the same page, he stated that Mr. De La Cruz “admits his sexually violent behaviour but is less convincing in terms of understanding the impact on the victims.” Not only are these two statements inconsistent with one another, Mr. De La Cruz significantly downplayed his sexually violent actions, and there is no recorded statement in the report where Mr. De La Cruz acknowledged the impact on his victims.

57Dr. Bradford relies on an “assumption” that Mr. De La Cruz would respond positively to the opportunity to be treated because he has never had any organized treatment. However, this assumption ignores the concerns regarding his lack of empathy for his victims, his cognitive distortions, his low motivation, and his personality disorder.

58I am concerned that Dr. Bradford’s diagnoses and risk analysis relies too heavily on the finding that “the problematic behaviour was clustered and was more likely related to substance use disorder.” However, during the predicate offences, Mr. De La Cruz appeared to be making conscious, deliberate decisions that seem inconsistent with extreme drug use. Mr. De La Cruz saw the victim walking alone while he was driving his vehicle, turned around to follow her with his vehicle, parked his car, and ran to her location before attacking her. In the security video, he can be seen running across the street and walking behind her without staggering.

59These factors cause me to be skeptical of Mr. De La Cruz’s claim that he had been drinking earlier that evening and was high on drugs, including MDMA and cocaine. However, I accept that the substances played some role in the incident.

60In my view, Dr. Bradford is overly optimistic regarding Mr. De La Cruz’s prospects for rehabilitation. I prefer Dr. Ramshaw’s more cautious approach, which recognized the steps forward that Mr. De La Cruz has made in admitting some of his behaviour. She stated that he in in the pre-contemplative phase, but Dr. Ramshaw was still cautious because of his inconsistencies in reporting and the challenges that he will need to overcome. Dr. Ramshaw commented on his significant lack of insight into taking responsibility for his actions and low motivation to change.

VI. Timeline for Programming

61I received written material and heard evidence about the different types of programming available from the CSC.

62Dangerous offenders are prioritized by the CSC to ensure that they receive their programming at the earliest possible time throughout their sentence. Within ten days or two weeks of arrival within the institution, specific assessments are completed, and programming needs are identified. Within this assessment period, inmates receive a primer program, which is an introductory program for all inmates. Based on the identified program needs for a specific inmate, they are placed in their parent institution and receive programming.

63The CSC offers the Integrated Correctional Program Model (“ICPM”), which is a rehabilitative program geared towards different streams of offenders. Salient to Mr. De La Cruz is the sex offender stream. This stream focuses on the risk factors associated with those individuals’ crime cycle, cognitive impairments specific to a sex offender, deviant behaviour, and sexual-offending related thinking.

64The high-intensity sex offender stream of the ICPM consists of 104 sessions. Each session is two and a half hours. The sessions are co-facilitated, meaning that there are two program officers facilitating the program due to its intensity. The maximum group size is 12 inmates, and there are six sessions per week. On average, it takes six months to complete the high-intensity sex offender program.

65The moderate-intensity program consists of 54 sessions. These are two to two and a half hours each. Unlike the higher intensity program, the moderate intensity program is only facilitated by one correctional program officer. The maximum group size is 10 inmates, and there are six sessions per week. On average, it takes four months to complete the moderate-intensity sex offender program. The only discernable difference between the two programs is the number of sessions: the high-intensity program has 104 sessions, and the moderate-intensity program has 54 sessions.

66The delivery schedule of the sessions may be impacted by numerous factors, including security concerns, weapons found inside the institution, and any other security-related incidents. The offender’s willingness to participate in the process may also elongate the rehabilitation process.

67To combat this, the CSC offers a motivational module, which is used with offenders who are unmotivated, have responsivity issues, or are having difficulties grasping program concepts in the way that it is delivered. This module is mandatory for offenders experiencing responsivity issues. The motivational sessions continue until the offender is ready to engage appropriately in the substantive sex offender program described above.

68For more than a quarter of dangerous offenders, it can take more than four years before they commence their first correctional program. CSC rarely has enough offenders to make a full program, so there is always lots of room for offenders to fit into a program. CSC has numerous inmates who refuse the program. If they choose not to participate in a program, they are put into a motivational module.

69Mr. De La Cruz may also take part in the ICPM multi-target adaptive program, which is for offenders who have deficits in functioning. This may to apply to Mr. De La Cruz as there is a possibility that he suffers from ADHD. The program consists of 66 sessions, with up to five sessions per week. Individuals with severe ADHD who have participated in this programming have been successful. This program is only available to Mr. De La Cruz if he is placed in the moderate-intensity sex offender program.

70Mr. De La Cruz may also participate in education programs offered by the CSC. The education programming would be scheduled around the sex offender programming such that it would not interfere with Mr. De La Cruz’s rehabilitation. Both programs can be completed simultaneously, but the sex offender program takes priority.

71If Mr. De La Cruz is unable to complete the sexual offender program prior to his release, he will be placed within the community program, which is a 25-session program. Assuming Mr. De La Cruz successfully completes the sex offender program, he may be required to participate in the maintenance program. The maintenance program can occur while in custody or in the community. It is a cycle of 12 weekly, structured two-hour sessions, each focusing on a specific theme or a specific skillset within the program.

VII. Positions of the Parties

72The Crown seeks to have Mr. De La Cruz declared a Dangerous Offender pursuant to the brutality pathway (s.753(1)(a)(iii)) or the sexual offender pathway (s.753(1)(b)). The Crown seeks an indeterminate sentence pursuant to s.753(4)(a).

73Defence counsel argues that the Crown has not met the test to designate Mr. De La Cruz as a dangerous offender. Even if he is designated a dangerous offender, defence counsel urges the court to exhaust the less coercive sentencing options before imposing an indeterminate sentence.

VIII. Analysis on the Designation Stage

74The designation stage is the first step of the statutory scheme governing dangerous offender proceedings. Section 753(1) of the Criminal Code lists the statutory requirements that must be met before a court can designate an offender, convicted of a serious personal injury offence, as a dangerous offender: Boutilier, at paras. 13-15.

75Designating an individual as a dangerous offender is a finding of last resort. It is a finding that should only be arrived at if no lesser determination is appropriate in all the circumstances. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous offenders and face the possibility of being sentenced to an indeterminate detention: R. v. Brown, 2021 ONCA 320, at para. 29.

76The primary purpose of the dangerous offender regime is the protection of the public. The dangerous offender provision is a preventative sanction that can be imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety. If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow: Boutilier, at para. 20.

77Section 753(1) of the Criminal Code describes four different pathways by which the offender may be declared a dangerous offender. These routes to a dangerous offender designation are not mutually exclusive and the Crown may resort to one or more of them. In this case, the Crown relies on the sexual offender pathway and the brutality pathway.

78The onus is on the Crown to prove each element beyond a reasonable doubt: R. v. Pike, 2010 BCCA 401, at para. 29.

The Sexual Offender Pathway – s. 753(1)(b)

79I shall begin by considering the sexual offender pathway, pursuant to s. 753(1)(b).

A. Has Mr. De La Cruz been convicted of a serious personal injury offence?

80The offences of aggravated sexual assault (s. 273(2)(b)) and overcome resistance by strangling (s. 246(a)) both qualify as serious personal injury offences pursuant to s. 752 of the Criminal Code. Aggravated sexual assault is enumerated as a primary designated offence under s. 752 (a). This element is conceded by the defence.

B. Has Mr. De La Cruz shown a failure to control sexual impulses?

81With respect to the predicate offences, Mr. De La Cruz clearly failed to control sexual impulses. Although he has denied some of the aggravating facts, he has admitted to sexually assaulting a stranger and to using violence during the predicate offences. He has also admitted to sexually assaulting an 18-year-old female stranger in March 2018 and having coercive sexual intercourse with an adult female between two and five times in March and April 2018.

82The Crown has proven, beyond a reasonable doubt, that Mr. De La Cruz has shown a failure to control sexual impulses.

C. Has Mr. De La Cruz shown a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses?

83In addition to examining past conduct, the court must conduct an assessment of evidence of future risk. A judge must be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before they can impose the dangerous offender designation: Boutilier, at paras. 36 and 38.

84There is no doubt that coercive sexual intercourse causes serious bodily harm to women. The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame, and loss of self-esteem. It is a crime committed against women which has a dramatic and traumatic impact: R. v. McCraw, [1991] 3 S.C.R. 72, at pp. 84-85.

85If Mr. De La Cruz is unable to control his sexual impulses, it will likely cause injury, pain, or other evil to other persons. I must determine whether he is likely to fail, in the future, to control his sexual impulses.

86I am satisfied beyond a reasonable doubt that there is a likelihood that Mr. De La Cruz will engage in harmful recidivism by failing to control his sexual impulses in the future. I say this for the following reasons:

a. He has disturbing cognitive distortions about women. He agreed with statements such as “women often falsely accused men of rape” and “a lot of women claim they were raped just because they want attention”. He has no insight into how those distortions have led to the sexual offending. b. The severe physical violence perpetrated by Mr. De La Cruz was sexually motivated. c. Mr. De La Cruz must have been aware of the immediate pain and distress that each incident of physical domination and harm caused the victims. However, he has demonstrated a lack of empathy for the victims, and a lack of responsibility and remorse for his actions. He has been indifferent to the harm he caused his victims and has no insight into the impact of his actions on them. d. Dr. Ramshaw diagnosed Mr. De La Cruz as having an antisocial personality disorder and as having traits of a narcissistic personality disorder. A coercive or sadistic sexual preference could not be ruled out. e. Considering his age, he is above the average risk for recidivism for male sexual offenders. f. Mr. De La Cruz has stated that drugs and alcohol played a role in the offences. However, the degree to which he struggles with alcohol and drugs in general is somewhat unclear, given his inconsistent reporting on his relationship with drugs and alcohol. However, the preponderance of information suggests that he has a drug and alcohol problem. There is no evidence that he has engaged in any counselling to address these addictions. g. He previously attended PAR but is unable to say what he personally learned and denied having an anger management problem. It appears that there was a lack of engagement in that program. h. As noted by Dr. Ramshaw, engaging in extreme sex offending against a stranger female creates an independent high-risk factor. i. During the commission of the predicate offences, Mr. De La Cruz committed a horrific and violent sexual attack on the victim. He has admitted to driving past the victim on the street and then coming back on foot to pursue her. He attacked a stranger from behind and forced her behind a building. He committed a serious physical assault with the intent to overcome her resistance, with the violence integrated into the sexual behaviour. He vaginally and anally raped her. The attack was prolonged, and the victim’s life was endangered. j. Mr. De La Cruz has recently acknowledged having sex with the victim without her consent, although he denies strangling or anally penetrating her. He also acknowledged that there was a sexual assault component to two other charges with females, one that involved his common law spouse and another that involved a stranger. Mr. De La Cruz has admitted to sexually offending against an adult female on two to five occasions. This is aligned with his cognitive distortions about women. k. Mr. De La Cruz states that he was intoxicated by alcohol, MDMA and cocaine at the time of the offences. He committed several offences during a short period of months in 2018 when he says he was abusing alcohol and cocaine heavily and had started to abuse MDMA. Mr. De La Cruz appears to blame his offending behaviour on the consumption of drugs without recognizing his underlying issues. l. It appears that Mr. De La Cruz’s insight has improved, especially because he is taking responsibility for some offences that he has not been convicted of. At sentencing, he apologized for his actions and the pain that he caused. However, he still lacks insight into his offending behaviour, the impact on the victims, or his need for treatment. He does not fully accept responsibility for his actions. He attributes his actions to something external and does not understand internal factors that contributed to his behaviour. It is unclear how much Mr. De La Cruz believes he needs to make an internal change, which would make the programs more effective. m. He has never lived on his own, paid rent, or paid child support. He had unstable and intermittent employment. According to Dr. Ramshaw, the lack of stability in his life is a risk factor.

87The Crown has proven, beyond a reasonable doubt, that Mr. De La Cruz’s inability to control his sexual impulses will likely cause injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.

D. Is Mr. De La Cruz’s behaviour intractable?

88Prior to designating a person as a dangerous offender, the sentencing judge must consider the person's future treatment prospects and whether the conduct is intractable. Intractable conduct is behaviour that the offender is unable to surmount. At the designation stage, a judge must consider whether the offender's treatment prospects are so compelling that they cast doubt on whether the offender poses a high likelihood of harmful recidivism. The Crown must demonstrate, beyond a reasonable doubt, a high likelihood of harmful recidivism and the intractability of the violent pattern of conduct: Boutilier, at paras. 27 and 46.

89The objective of the dangerous offender regime is the protection of the public from the risk of violent harm. To find that the offender’s behavior is not intractable requires evidence of treatability that is more than mere speculative hope and indicates that the specific offender can be treated within an ascertainable time: R. v. A.R., 2022 ONCA 553, at para. 33.

90In addition to the above-listed factors regarding his future inability to control his sexual impulses, the following factors demonstrate that Mr. De La Cruz’s behaviour is intractable:

a) Dr. Ramshaw believes that Mr. De La Cruz has a significant risk of sexually reoffending absent appropriate risk management interventions. However, he has not demonstrated any self-motivation to partake in drug and sex offender treatment. b) Dr. Ramshaw found that Mr. De La Cruz’s testing scores indicated an extremely unreliable account of his history and a low motivation for treatment and change. c) Dr. Ramshaw found that Mr. De La Cruz has an elevated sense of self worth. This will likely lead him to blame any admitted setbacks on external rather than personal factors. d) Although he took programs while in custody, he was unable to tell the psychiatrist what he had learned from those programs and from the PAR program that he participated in prior to his incarceration. e) Motivation to engage in treatment should include the offender's ability to internalize the principles of the treatment itself, rather than mere attendance or participation in the treatment. Mr. De La Cruz’s statements to Dr. Bradford regarding treatment were not independently raised and did not demonstrate motivation to attend treatment. Mr. De La Cruz is not motivated to fully participate in, and to learn from, sex offender treatment programs, substance abuse counseling, psychotherapy, and other forms of treatment.

91To warrant a long-term offender designation rather than a dangerous offender designation, there must be a reasonable possibility of eventual control in the community of the risk of reoffending posed by the offender. The mere possibility that the offender might benefit from treatment is not sufficient; there must be something more than hope or conjecture. A dangerous offender designation is not contingent on a finding that the offender has absolutely no prospect of successful treatment while incarcerated: R. v. Goforth, 2007 SKCA 144, at paras. 43-44, 53-54.

92There must be evidence, specific to the offender, of treatability that is more than an expression of hope and that the offender can be treated within a definite period of time: R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683, at paras. 40-44, leave to appeal dismissed, [2008] S.C.C.A. No. 39.

93If the court is sentencing an offender who meets the dangerous offender criteria but understands the source of the problem, and their treatment prospects are compelling, the court should not designate the person a dangerous offender.

94The Crown has proven, beyond a reasonable doubt, that Mr. De La Cruz’s behaviour is intractable. I have considered the Supreme Court of Canada’s ruling in Boutilier, and I find that Mr. De La Cruz’s treatment prospects are not so compelling that they create a reasonable doubt on this element.

E. Conclusions re: Sexual Offender Pathway

95On a totality of the evidence, I find that the Crown has proven the necessary elements of s. 753(1) beyond a reasonable doubt. I am therefore required to find that Mr. De La Cruz is a dangerous offender, pursuant to s. 753(1) of the Criminal Code.

The Brutality Pathway – s.753(1)(a)(iii)

96In light of my findings, it is unnecessary for me to make findings under the brutality pathway, and I decline to do so.

IX. Analysis on the Penalty Stage

A. Legal Principles When Sentencing a Dangerous Offender

97When an offender is found to be a dangerous offender, the court then moves to the second step of the statutory scheme governing dangerous offender proceedings: the penalty stage. Sections 753(4) and (4.1) of the Criminal Code govern the sentencing of dangerous offenders: Boutilier, at paras. 13-15.

98Section 753(4) of the Criminal Code create an exhaustive list of the available punishments, which may be summarized as:

i. an indeterminate sentence of imprisonment in a penitentiary; ii. a composite sentence consisting of a term of imprisonment of at least two years, followed by an LTSO of not more than ten years; or iii. a determinate sentence for the predicate offence(s).

99Section 753(4.1) requires a sentencing judge to impose an indeterminate sentence to be served in the penitentiary unless the judge is satisfied by the evidence adduced at the hearing that there is a reasonable expectation that some lesser sentencing measure will adequately protect the public against the offender's commission of murder or a serious personal injury offence.

100Section 753(4.1) codifies the exercise of the sentencing judge's discretion in light of the general purpose of the dangerous offender regime: to protect the public from offenders who have demonstrated a very high degree of harmful recidivism. To properly exercise their discretion, sentencing judges must impose the least intrusive sentence required to achieve the primary purpose of the dangerous offender scheme - the protection of the public from offenders with a very high likelihood of violent recidivism: Boutilier, at paras. 60, 65; R. v. Straub, 2022 ONCA 47, at para. 58.

101In sentencing a person who has been designated a dangerous offender and in deciding amongst the different sentencing options, the following principles are applicable:

1. A sentencing judge must consider all the sentencing objectives and principles set out in ss. 718 - 718.2 of the Criminal Code.
2. However, sentencing an offender who has been designated a dangerous offender is not the same as a conventional sentencing. In a dangerous offender proceeding, the sentencing judge must assign paramount consideration to the protection of the public.
3. In determining the sentence, the judge must conduct a thorough inquiry into the prospect that the offender can be controlled and managed in the community.
4. The sentencing judge must impose the least intrusive sentence required to reduce the public threat posed by the offender to the level statutorily required. An indeterminate sentence is but one of the sentencing options available.
5. An indeterminate sentence must be imposed unless there is a reasonable expectation that a lesser sentence will adequately protect the public against the dangerous offender's violent recidivism. The standard is reasonable expectation, not reasonable possibility. The term "reasonable expectation" suggests a "likelihood""a belief that something would happen", or "a confident belief, for good and sufficient reasons". The standard of "reasonable expectation" is more stringent than "reasonable possibility".
6. Prospective evidence of treatability plays a different role at the different stages of a dangerous offender hearing. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Even where the treatment prospects are not compelling enough to affect the judge's conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public.
7. Manageability of the offender's behaviour is also a factor to be considered at the penalty stage. On this issue, the following is relevant: evidence that the offender avoided treatment, failed to respond to or terminated treatment, breached court orders, lacked motivation, continued to be involved in high-risk conduct, had a serious personality disorder, and was at a high risk to engage in violent recidivism. The moral culpability of a dangerous offender also remains relevant at the penalty stage of the proceedings.

Boutilier, at paras. 45, 55-56, 63, 69; Straub, at paras. 59-64; and R. v. Obermeier, 2022 ONSC 1840, at para. 76.

102The sentencing judge must consider the less coercive sentencing options before imposing an indeterminate sentence. In exercising their discretion under s. 753(4.1) of the Criminal Code, a sentencing judge should adopt the following framework:

i. If the court is satisfied that a conventional sentence will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. ii. If not, the court must determine whether a conventional sentence of at least 2 years’ imprisonment, followed by a LTSO for up to 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. iii. If the answer is “no”, then the court must impose detention in a penitentiary for an indeterminate period of time: Boutilier, at paras. 60, 70.

103In this case, I find that a determinate sentence would be wholly inadequate to protect the public. Mr. De La Cruz will continue to be an elevated risk to the community for many years. Dr. Ramshaw stated that Mr. De La Cruz could likely be managed in the community with close supervision and appropriate programing, as long as appropriate risk management strategies are in place. At minimum, a determinate sentence and an LTSO will ensure that there is adequate support and supervision to hold him accountable if he does not comply with strict terms of release.

104Practically, the issue at the penalty stage in this case is whether the sentencing disposition should be detention in a penitentiary for an indeterminate period or a determinate term of imprisonment of more than two years followed by an LTSO of not more than ten years. The resolution of this question depends upon whether the evidence adduced at the hearing satisfied the standard put in place by s. 753(4.1): a reasonable expectation that a lesser measure (a composite sentence of imprisonment and an LTSO) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence: Straub, at para. 28.

B. Is there a Reasonable Expectation that a Measure Less Than an Indeterminate Sentence Would Protect the Public?

105I find that there is a reasonable expectation that Mr. De La Cruz’s risk can be controlled in the community, and a measure less than an indeterminate sentence would adequately protect the public against sexual offence recidivism by Mr. De La Cruz. I make this finding for the following reasons:

i. Mr. De La Cruz's case is unique in the dangerous offender context in that, apart from the predicate offences, there is little else on his criminal record. ii. The sex offences were clustered within a very short period of time (approximately two months). iii. He has been incarcerated for almost five years and there have been no apparent issues while in custody. iv. With respect to manageability of his behaviour, I note that Mr. De La Cruz does not appear to be particularly motivated to attend counselling and that he had difficulties following court orders. However, he has not avoided, failed to respond to, or terminated treatment, and he does not have a serious personality disorder. v. Mr. De La Cruz stated that he would accept treatment programs for sexual, behavioural, and substance use difficulties. vi. I have accepted that MDMA, cocaine and alcohol played some role in the sexually violent behaviour. The evidence suggests that the use of MDMA combined with cocaine and alcohol was fairly new to Mr. De La Cruz. There is no evidence that Mr. De La Cruz’s substance abuse problem is entrenched or insurmountable. vii. Mr. De La Cruz has never had any psychiatric or mental health treatment of any significance and has not been offered treatment for any sexual problems. viii. While Dr. Ramshaw diagnosed an antisocial personality disorder with antisocial and narcissistic traits, he does not fit into a natural history of paraphilia or sexual deviation. ix. Mr. De La Cruz has strong family support in the community. x. Mr. De La Cruz has completed numerous programs while in the institution. When prompted, he agreed to engage in sexual offender treatment. xi. Dr. Ramshaw stated that he could likely be managed in the community with close supervision and appropriate programs, if and after he has engaged in intensive sexual behavioural therapy, anger management, communication and relationship skills development programs, and alcohol abuse treatment. As noted by Dr. Ramshaw, his willingness to acknowledge some of his actions is a positive step forward and demonstrates that he may be willing to continue to think about or be open to the idea of needing to take more responsibility. xii. Mr. De La Cruz attended 43 courses while in custody, including 34 Bible study courses in which he achieved grades in the 80s and 90s. He also attended 8 correctional services educational sessions, including substance use, anger management, and parenting. However, I do not give this factor much weight, since Mr. De La Cruz told Dr. Ramshaw that he attended random programs in custody to stay busy and he was unable to tell her what he had learned in the programs. In addition, the evidence provided by Maplehurst suggests that the following programs are available to remanded inmates: Psychiatrist, Alcohol Anonymous, Managing Anger and Narcotics Anonymous. It is not clear to what extent these programs were available during COVID lockdown periods. However, there is no evidence that Mr. De La Cruz took part in any of those programs offered by Maplehurst.

106In the case of Straub, the Ontario Court of Appeal allowed the Crown’s appeal and imposed an indefinite sentence on a dangerous offender. The Crown relies on Straub, and submits that the court must impose an indeterminate sentence. However, Straub is distinguishable on the following facts which are not present in this case:

i. Mr. Straub had a history of failing to consistently follow through with or complete treatment programs. He was described as a “devoted abstainer from treatment programs”. ii. He suffered from chronic substance abuse. iii. He had a decade long history of offences.

107Mr. Straub failed to make stable lifestyle choices; Mr. De La Cruz also had a somewhat unstable lifestyle, although he has the stability of his family and a supportive ex-common law spouse. Mr. De La Cruz has not had substance abuse treatment or sexual offender treatment while in custody.

108To some extent, Mr. De La Cruz has demonstrated his willingness to take responsibility by admitting some elements of the offences. However, further work is needed, especially respecting his lack of insight and his distorted views about women.

109Mr. De La Cruz’s family support is critical in relation to his rehabilitation and will be a key factor in reducing recidivism. However, I have concerns that his eldest sister Lorena has entrenched views about his innocence. His sisters are overly protective and spoke about him as though he has never caused conflict within the family. For the family members to truly help in his rehabilitation, they must recognize the seriousness of Mr. De La Cruz's conduct. I agree with and adopt Dr. Ramshaw’s recommendation for family therapy. It will be difficult if information from family members cannot be relied on to assist with his rehabilitation.

110I adopt the opinions of Dr. Ramshaw and find that Mr. De La Cruz could likely be managed in the community with close supervision and appropriate programs. He needs intensive treatment for substance abuse, intensive sexual behaviour therapy, anger management, and communication and relationship skills development programs. He requires continuous supervision and monitoring once he is released into the community to ensure that he is abstinent from drugs and alcohol. The CSC has the tools to continue counselling and enforce the terms of release.

111There is a reasonable prospect that the intractable risk that Mr. De La Cruz poses can be controlled in the community by something short of an indeterminate sentence. I find that there is a reasonable expectation that a measure less than an indeterminate sentence would protect the public against sexual offence recidivism by Mr. De La Cruz. I must therefore consider what is the appropriate duration of the determinate sentence and the LTSO.

C. What is the Fit and Proportionate Sentence?

112In sentencing a dangerous offender, a judge must still consider the sentencing principles set out in ss. 718 - 718.2 of the Criminal Code. I have considered these factors.

113In sexual offences, the moral blameworthiness of the offender is high. All forms of sexual violence involve the offender wrongfully exploiting the victim and disregarding their human dignity: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 89.

114Sentencing in sexual assault cases must denounce this conduct and deter likeminded individuals from committing such offences. Sexual assault is still among the most highly gendered and underreported crimes: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37.

Pre-Sentence Credit

115I received records from the detention facilities in which Mr. De La Cruz was housed since his arrest. Mr. De La Cruz has been in custody since April 21, 2018. The total time spent in custody to today’s date (January 18, 2023) is 1,734 days. Twenty days should be deducted for the simple assault conviction, making it 1,714 days. At a rate of 1.5 to 1, he has been in custody for the equivalent of 2,571 days or 7 years and 15 days. He has been triple bunked for 138 days, on full lockdown for 209 days and on partial lockdown for 87 days.

116In the appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation beyond the 1.5 to 1 credit referred to in s. 719(3.1) of the Criminal Code. In considering whether any enhanced credit should be given, the court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, at para. 6.

117Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects that go beyond the circumstances when serving usual pretrial custody: R. v. Bristol, 2021 ONCA 599, at para. 11.

118The Duncan credit is not a mathematical deduction from the otherwise appropriate sentence, but is one of the factors to consider in determining the appropriate sentence. Because the Duncan credit is one of the mitigating factors to be considered, it cannot justify the imposition of a sentence which is inappropriate, having regard to all the relevant mitigating or aggravating factors: R. v. Marshall, 2021 ONCA 344, at para. 52. In this case, I shall consider the lockdowns and triple bunking as a mitigating factor.

Aggravating and Mitigating Factors

119Mr. De La Cruz was convicted following a trial. I will not treat this as an aggravating factor. However, he is not entitled to any mitigation that may have been available after a plea of guilt. He admitted to Dr. Bradford that he sexually assaulted the victim, although he did not acknowledge many of the aggravating factors.

120Mr. De La Cruz has a minor criminal record, although the more recent criminal history appears to be sexually motivated.

121The following are the aggravating factors in this case:

1. Mr. De La Cruz is a dangerous offender. He is a threat to the life, safety, physical or mental well-being of other persons.
2. Sexual abuse is an act of violence. This was a particularly violent and horrific sexual assault on a vulnerable stranger. Mr. De La Cruz grabbed the victim off the street and took her behind a building to commit the sexual assault. The crime that Mr. De La Cruz committed was profoundly serious.
3. When Mr. De La Cruz attacked the victim, he told her that he would teach her not to walk alone at night. He threatened to kill her. The words used by Mr. De La Cruz during the attack were intended to degrade and terrify the victim.
4. Mr. De La Cruz employed a significant degree of brutality and violence during the assault. Mr. De La Cruz confined the victim and attacked her in several ways, including punching and smashing her face, gouging her eye, gagging her with his fist, and strangling her until she lost consciousness. The photos filed at trial show the horrific injuries inflicted on the victim.
5. Mr. De La Cruz took numerous steps to overcome the resistance of the victim, including punching and strangling her.
6. Mr. De La Cruz caused severe physical, psychological, and emotional harm to the victim, both in the short and long term. She still struggles with scarring and chronic back pain. Her quality of life has been greatly diminished. The fact that the offences had a significant impact on the victim is a statutory aggravating factor under s. 718.2(a)(iii.1).
7. When women are attacked at random, the harm caused is far-reaching. A random attack on an innocent stranger shakes the community and breeds fear that anyone is a potential target. This is an aggravating factor in sentencing and adds to Mr. De La Cruz’s moral blameworthiness through the harm that it caused. It calls for a sentence that emphasizes denunciation and deterrence: R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650 (“Brown (ONCA 2020)”), at para. 62.
8. During sentencing submissions, the Crown asked me to make a finding of fact that Mr. De La Cruz was not wearing a condom during the sexual assault. The only evidence that would support this conclusion is that the doctor found seminal fluid in the vaginal swab. There is no evidence from the complainant that the attacker did not wear a condom. I have considered the evidence and find that the Crown has not proven this aggravating fact beyond a reasonable doubt. However, it is an aggravating fact that the seminal fluid in the victim’s vaginal cavity put her at risk of contracting a sexually transmitted disease.

122The following are mitigating factors in this case:

i. Mr. De La Cruz wishes to reunite with his ex-common law spouse and young children, and to live as a family. His ex-common law spouse is still supportive of him. His children provide a positive influence. ii. Mr. De La Cruz has the support of his family, many of whom have attended at almost every court appearance. iii. Mr. De La Cruz has admitted some of the behaviour, although he downplays the seriousness of his conduct. iv. He was subject to numerous lockdowns and triple bunking while in custody. v. Mr. De La Cruz attended 43 courses while in custody. vi. When I asked Mr. De La Cruz if he had anything that he wished to say, he apologized for his actions and the pain that he caused.

Kind of Sentence to be Imposed

123The maximum sentence for the offences of aggravated sexual assault and overcome resistance by strangling is life imprisonment. The maximum sentence for utter threats is five years.

124A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing is a highly individualized process, and each case must turn on its own specific facts. The Court of Appeal for Ontario has stated that sentencing judges have wide discretion when imposing sentences: R. v. Kerr, [2001] OJ No. 5085 (Ont. C.A.), at para. 15.

125In this case, the sentencing objectives of denunciation, general and specific deterrence, and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. A significant sentence is needed to denounce Mr. De La Cruz’s behaviour and to deter like-minded individuals from committing similar offences.

126This case calls for an exemplary sentence that properly reflects the wrongfulness inherent in sexual violence, and the harm that it causes to the victims and to society at large: Brown (ONCA 2020), at para. 71.

Length of Sentence

127Defence counsel has provided numerous aggravated sexual assault sentencing cases, in which the sentences range between 5 years and life imprisonment. Although these cases provide some guidance, the facts in those cases are quite different from the matter before the court.

128The Crown provided the decision in R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, in which the facts of the offences are similar to this case. Mr. Brown attacked and raped a woman at random. He bashed the victim's head against some rocks and choked her until she was unconscious. She suffered serious injuries. In that case, the offender pled guilty, accepted responsibility for his actions even though he had no memory of them because of intoxication, and expressed remorse. He had experienced a difficult childhood of violence and addiction. He had a minimal record and there were Gladue factors. He had participated in substance abuse programming while in presentence custody. The Court of Appeal for Ontario upheld a sentence equivalent to 12 years in custody.

129Although the facts of the offences in Brown are similar to the case before the court, there were significant mitigating factors that are not present in this case. The sentence in this case must be higher than the 12-year sentence imposed in that case.

130In determining the length of a fixed term custodial component of a composite sentence under s. 753(4)(b), a sentencing judge is not restricted to imposing a custodial term that would be appropriate on a conviction for the predicate offences in the absence of a dangerous offender designation. Once the designation is made, the custodial component of the sentence must be a minimum of two years. Public protection concerns may make a lengthier sentence appropriate. The court is also entitled to consider access to rehabilitative programming and treatment in a penitentiary when deciding upon the length of the custodial component of the determinate sentence: R. v. Spilman, 2018 ONCA 551, at paras. 32-38.

131In sentencing a dangerous offender, an enhanced objective is the protection of the public. This objective distinguishes dangerous offenders from other offenders and warrants sentencing dispositions that are beyond those ordinarily available for non-dangerous offenders: Spilman, at paras. 42, 54.

132The length of the sentence imposed must be responsive to evidence adduced at the hearing. The evidence about treatment programs should be specific, preferably indicating an approximate length or range of time within which the offender may be expected to complete the programming said to be necessary to protect the public. There must be a clear nexus between that programming and future public safety, sufficient to support a "reasonable expectation" that the overall sentence will "adequately protect the public against the commission by the offender of murder or a serious personal injury offence": s. 753(4.1). The evidence must account for the offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending: R. v. G.L., 2007 ONCA 548, 87 O.R. (3d) 683, at para. 40.

133Mr. De La Cruz requires extensive psychological, behavioural, and drug treatment prior to release, and he needs to be motivated to even engage and internalize this treatment. I received evidence that dangerous offenders are prioritized by the CSC to ensure that they receive their programming at the earliest possible time throughout their sentence. Twenty five percent of dangerous offenders take their programming in their first year. For another twenty-five per cent of dangerous offenders, it can take more than four years before they commence their first correctional program because many offenders refuse to participate in the programs. Those offenders are placed in motivational modules until they are ready to participate. Dr. Ramshaw stated that Mr. De La Cruz will require motivational interviewing as he is still not considering that he needs to change or that he has a problem, although there may be some positive movement in his willingness to talk.

134The sentence must be sufficient to permit the programming as recommended by the two forensic psychiatrists, including sexual offender programming, drug treatment programming, and anger management. Time is also required to permit correctional authorities to develop and implement a plan to control and monitor Mr. De La Cruz while he is in the community.

135I find that a determinate sentence of 8 years, in addition to credit for the equivalent of 7 years and 15 days time served, is a fit and proportionate sentence. This sentence is the equivalent of approximately 15 years in custody. This sentence will permit Mr. De La Cruz to receive the benefit of intensive treatment and programming available through the CSC. Programming and treatment will reduce his risk and contribute to the protection of the public. This will also facilitate Mr. De La Cruz’s reintegration into the community. I am imposing a sentence that will make it likely that he will serve at least 5 years in custody, to maximize his opportunities for treatment before being released into the community.

136I also find that the maximum LTSO of 10 years should be imposed in this case, to ensure that he is supervised in the community and has access to continuous treatment and programming. The combination of the 8-year determinate sentence and the 10-year LTSO will mean that he will be 51 years of age when the sentence expires. As noted by Dr. Ramshaw, releasing Mr. De La Cruz after the age of 50 reduces the risk of recidivism to a similar level as the average sex offender.

137I recognize that the Parole Board of Canada will decide the terms of Mr. De La Cruz’s LTSO. However, I recommend that the Parole Board closely examine the recommendations made by Dr. Ramshaw and Dr. Bradford, and consider imposing the following terms in the LTSO:

i. Follow his treatment plan and psychiatric counselling, including sex offender treatment, sex offender relapse prevention, substance abuse programming, and anger management. ii. Referral to sexual behaviours clinic. iii. Take prescribed pharmacological treatment, including sex drive reducing medication if prescribed. iv. Abstain from alcohol and drugs. v. Not to attend bars or any facility where alcohol is served. vi. Random drug and alcohol testing through nail, hair, and urine samples. vii. Stable housing. When not residing at CSC housing, reside with family. viii. Stable employment. ix. Psychosocial supports. x. Ongoing close contact with family. xi. No contact with victims and their families.

X. Conclusion

138Sir, would you please stand. On these charges, I sentence you as follows:

1. Count 1 aggravated sexual assault: Mr. De La Cruz is designated a dangerous offender. I impose a fixed sentence of 8 years in custody, in addition to credit for the equivalent of 7 years and 15 days time served. He is also placed on a 10-year Long Term Supervision Order.
2. Count 2 utter threats: 2 years concurrent.
3. Count 3 overcome resistance by strangling: Mr. De La Cruz is designated a dangerous offender on count 3 as well. I impose a fixed sentence of 8 years in custody, in addition to credit for the equivalent of 7 years and 15 days time served. He is also placed on a 10-year Long Term Supervision Order. The sentence on count 3 is concurrent to the sentence on count 1.

139I also make the following ancillary orders. These orders are made on all counts unless otherwise specified:

1. Non-communication Order s. 743.21

140There will be an order pursuant to s. 743.21 of the Criminal Code prohibiting Brian De La Cruz from communicating directly or indirectly with T.M. while he is serving his sentence.

2. DNA Order

141As aggravated sexual assault and overcome resistance by strangling are both primary compulsory DNA eligible offences pursuant to s. 487.04 of the Criminal Code, there will be an order pursuant to s. 487.051 of the Criminal Code authorizing the taking from Brian De La Cruz, for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that is reasonably required for that purpose.

142In addition, utter threats is a secondary designated offence. I am satisfied that it is in the best interests of the administration of justice to obtain DNA samples from Brian De La Cruz. There will be an order pursuant to s. 487.051 of the Criminal Code authorizing the taking from Brian De La Cruz, for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that is reasonably required for that purpose.

3. Weapons Prohibition Order

143There will be an order pursuant to s. 109 of the Criminal Code prohibiting Brian De La Cruz from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life.

4. SOIRA Order (Counts 1 and 3)

144Aggravated sexual assault and overcome resistance by strangling both attract possible life sentences. There will be an order on both counts, pursuant to s. 490.013(2)(c) of the Criminal Code, requiring the Brian De La Cruz to comply with the provisions of the Sex Offender Information Registration Act for life.

Braid J.