Court File and Parties

Court File No.: CR-17-0034-0000 Date: 2024-01-26 Ontario Superior Court of Justice

Between: His Majesty the King And: Vezio Cardullo

Counsel: K. Frew, for the Crown I. McCuaig, for the Defence J. Kaldas, as amicus

Heard: November 27, 28, 29 and December 1, 2023

Reasons for Decision - Dangerous Offender Application

Reasons for Sentence

I. The Offences

[1] Mr. Vezio Cardullo (“Cardullo”), on February 24, 2021, before Fitzpatrick J., pleaded guilty to and was found guilty of three offences: (i) uttering threats contrary to section 264.1(1)(a) of the Criminal Code, (ii) sexual assault causing bodily harm contrary to section 272(1)(c) of the Criminal Code, and (iii) overcoming resistance by choking contrary to section 246(a) of the Criminal Code.

II. The Positions of the Crown and the Defence

[2] After Justice Fitzpatrick’s retirement, Cardullo came before this Court for sentencing. The Crown has, pursuant to section 753(1) of the Criminal Code, applied for a determination that Cardullo is a dangerous offender. Under section 753(4)(a) of the Criminal Code, the Crown seeks a sentence of detention in a penitentiary for an indeterminate period.

[3] The defence does not oppose the determination sought that Cardullo is a dangerous offender. The defence does oppose the indeterminate sentence of imprisonment sought by the Crown. The defence submits that the more appropriate sentence would be something under section 753(4)(b) of the Criminal Code, namely, 14 years’ imprisonment for the sexual assault causing bodily harm and the overcoming resistance by choking, concurrent; plus a jail sentence, consecutive, on the uttering threats (the maximum sentence would be 5 years’ imprisonment for that offence); less some credit for the time that Cardullo has served in custody to date (but not necessarily any enhanced credit above and beyond the actual number of days that Cardullo has been in detention since his arrest on September 18, 2016); and an order that Cardullo be subject to long-term supervision for the maximum length permitted by law, 10 years.

[4] The defence concedes that a sentence, from now, of at least 5 years’ imprisonment is probably required for Cardullo, followed by the long-term supervision order.

III. The Facts of the Predicate Offences

[5] The findings of guilt entered by Justice Fitzpatrick were on the basis of an agreed statement of facts.

[6] On September 18, 2016, Cardullo and the victim were strangers to each other. They both happened to be at the same park in Burlington, Ontario, in the evening hours. The victim was just 18 years old. Cardullo, born on October 13, 1981, was in his mid-thirties.

[7] Cardullo approached the victim in the park. He was drinking alcohol from a bottle. He touched the waistband of the victim’s pants. When she attempted to leave the area, he grabbed her cellular telephone and her bag. He took her by the arm and forcibly dragged her to a more secluded area. When she tried to escape, he grabbed her throat. He threw her to the ground. He continued to drag her on the ground. He said he had a knife and was going to kill her. He said that he would just rob her if she stayed quiet. When she tried to scream while laying on the ground, he choked her. He repeatedly threatened to kill her. She was having trouble breathing. She struggled to get away from him, but he was too strong. He continued to drag her along the beach. He told her that he had her wallet and would figure out where she lived so that he could kill her family and her friends if she ever told anyone about what was happening. She tried once more to escape, but he choked her again to prevent that resistance. Once in a more secluded area, he said he would “do whatever the fuck he wanted”. He put her on the ground, removed some of her clothing and some of his and started choking her again with two hands around her neck. She was unable to breathe and was about to lose consciousness. He told her he would rape her vaginally and anally. He demanded that she say things to him like that she was his “sex toy” and his “slut” and that she loved him. He said he would “destroy her pussy” and “fuck her all night long”. He called her “wifey” and “sex toy”, while he was forcing his penis into her vagina. He said that he would take her back to his apartment and keep her there. He demanded that she swallow his ejaculate in her mouth or else he would stab her in the throat. When she had to urinate, he demanded that she simply do it as he was forcing vaginal penetration, which she did. He said that he would rather kill her than take her back to his apartment. He continued to choke her on and off. She cried throughout. He threatened to kill her family if she screamed. He grabbed her bare breast underneath her shirt and bra. He stuck his fingers in her mouth. She felt like she was going to die. As others passed near them, he would choke her or place his hand over her mouth. Eventually, she was able to scream, stand up and run. He punched her in the left eye area, causing facial injuries. She was able to run to two men on the walkway. One of the men called 9-1-1.

[8] Police arrived, secured the area, and searched the park. About two hours after the 9-1-1 call, Cardullo was found about 80 yards away from where he violated the victim. An almost empty Crown Royal liquor bottle was found near him. After being awoken by the police, Cardullo was arrested.

[9] The victim was examined at the hospital. A sexual assault kit was performed. She had lasting injuries from the vicious attack – a very bruised and swollen face that persisted for a couple of months and broken blood vessels in her left eye that lasted four months. She also had scratches on her back and a small bruise on her head.

[10] Forensic analysis confirmed that Cardullo was the culprit.

IV. Victim Input

[11] Not surprisingly, the horrific events of September 18, 2016 have had a devastating effect on the victim.

[12] Her victim impact statement (Exhibit 4) reveals the following:

(i) fear of walking down the street alone, even in daylight hours; (ii) nervousness; (iii) being terrified by loud sounds; (iv) inability to work for close to one year afterwards; (v) inability to resume studies at school for 3.5 years afterwards, delaying career plans; (vi) trouble with relationships due to constant fear and anxiety; (vii) the feeling of having become a completely different person; (viii) depression; (ix) the feeling of having a lost young adulthood; (x) a distrust of the world at large; (xi) inability to date others; (xii) years of suicidal ideation including attempted suicide; (xiii) loneliness, reclusion, and a sheltered existence; (xiv) having to take medication for HIV for 28 days afterwards; (xv) facial injuries and pain and embarrassment because of those injuries; (xvi) sore legs; (xvii) vaginal pain; (xviii) injuries to her hands; (xix) an asthma flare-up during the sexual assault itself; (xx) injuries to her neck and back; (xxi) tension pain and sore muscles continuing to the present time; (xxii) troubles sleeping and the grinding of her teeth during sleep; (xxiii) months of having to get regular check-ups with a sexual assault nurse; (xxiv) severe financial losses, including but not limited to about $16,000.00 in lost employment income from being unable to work; and (xxv) constant fear that Cardullo will seek revenge against her, her family, and/or other women, generally, that he encounters on the street.

V. Cardullo’s Criminal History

[13] Cardullo’s criminal record begins in October 1996, before he turned 15 years old. It ends with his convictions for the predicate offences.

[14] Cardullo turned 42 years old in October 2023. Since becoming an adult on October 13, 1999, Cardullo has spent less than 6 years of his life out of jail. The remaining 18 plus years have been spent in custody.

[15] A brief sketch of the criminal convictions/dispositions that preceded the predicate offences is as follows:

• October 1996 – youth – attempted theft under $5000.00;
• May 1997 – youth – two counts of assault causing bodily harm;
• November 1997 – youth – take motor vehicle without consent;
• January 9, 1998 – youth – assault with a weapon and fail to comply with a disposition order;
• March 6, 1998 – youth - breach of probation;
• May 25, 1998 – youth – uttering threats;
• July 28, 1998 – youth – assault;
• February 19, 1999 – youth - break and enter and commit theft, assault, and perjury;
• December 22, 2000 – adult – assault, theft under $5000.00, possession of property obtained by crime under $5000.00, fail to appear, and fail to comply with probation;
• September 4, 2001 – adult – robbery;
• July 22, 2002 – adult – break and enter and commit theft, possession of property obtained by crime over $5000.00, careless transportation of a firearm, obstruct police, and possession of a prohibited firearm;
• December 11, 2002 – adult – two counts of break and enter;
• June 16, 2003 – adult - breach of probation;
• July 8, 2003 – adult – unlawfully at large;
• December 10, 2003 – adult – theft under $5000.00, possession of property obtained by crime under $5000.00, and obstruct police;
• March 9, 2004 – adult – robbery and breach of probation;
• April 7, 2005 – adult - two counts of sexual assault – guilty pleas – in one incident (Brampton), Cardullo had forced sexual intercourse with a 15-year-old girl that he knew previously – in the other incident (Hamilton), Cardullo approached a 20-year-old girl who was not known to him previously, and they went to a wooded area to drink alcohol, and she rejected his sexual advances and tried to leave, and he grabbed her by the throat and choked her, and he forced vaginal and anal intercourse and oral sex on her – Cardullo was sentenced by Justice Durno on a joint submission to 2.5 years in custody on top of 9 months of presentence time in jail which was credited at 18 months (Hamilton incident), plus 2 years’ imprisonment, consecutive, on the Brampton incident;
• April 8, 2005 – adult – aggravated assault – guilty plea – Cardullo assaulted a fellow inmate at Maplehurst Correctional Complex, causing multiple fractures to his face that required surgery to repair – Cardullo was sentenced by Justice Speyer on a joint submission to 2 years’ imprisonment to be served concurrently with the sentence imposed by Justice Durno;
• October 5, 2009 – adult – section 810.2 Criminal Code peace bond imposed for 24 months;
• August 24, 2010 – adult - two counts of mischief under $5000.00;
• January 4, 2012 – adult – four counts of breach of recognizance (peace bond);
• February 28, 2012 – adult – two counts of uttering threats;
• September 18, 2012 – adult – section 810.2 Criminal Code peace bond imposed for 2 years;
• May 9, 2013 – adult – multiple residential break and enters and commit theft, multiple breaches of probation, possession of break-in instruments, and possession of property obtained by crime under $5000.00; and
• November 30, 2014 and December 5, 2014 – parole revocations.

[16] In summary, as an adult, Cardullo has amassed 43 criminal convictions.

VI. Cardullo’s Institutional Disciplinary History

[17] In addition, the evidentiary record before this Court includes documents from the federal Correctional Service Canada and the Ontario Ministry of Community Safety and Correctional Services. Those files reveal many misconduct reports and several occurrence reports for findings of bad behaviour on the part of Cardullo, including but not limited to fighting and causing property damage, while Cardullo has been in detention.

[18] Some of these incidents of misconduct occurred well after Cardullo was arrested on the predicate offences.

[19] As just a few examples, all in the year 2020, in multiple incidents, Cardullo was found by staff at Maplehurst Correctional Complex to have thrown urine and feces at others, assaulted another inmate, been in possession of a contraband substance and a homemade weapon, and refused orders from and threatened staff.

VII. The Opinion Evidence of Dr. Brad Booth

[20] This Court received expert opinion evidence from Dr. Brad Booth. There was no challenge to his qualifications or to the admissibility of his evidence. There was no evidence tendered by the defence, whether expert or otherwise.

[21] Dr. Booth is a forensic psychiatrist at the integrated forensic program, Royal Ottawa Healthcare Group, and an associate professor and the head of the forensic psychiatry division of the University of Ottawa’s department of psychiatry.

[22] Exhibit 3 is Dr. Booth’s Psychiatric Risk Assessment Report dated July 3, 2021. The penultimate conclusion of Dr. Booth in that report is found at page 77 of 90, in the last full paragraph: “from a psychiatric perspective, it is our opinion that a Dangerous Offender Designation with an indeterminate sentence would be required to adequately protect the public…[a] dangerous offender designation with determinate sentence with a 10-year supervision would pose an unacceptable risk to the public”.

[23] Dr. Booth testified at the sentencing hearing. In direct examination by the Crown, his evidence included these points:

(i) an anti-psychotic medication could help Cardullo; (ii) Cardullo appears to be motivated to change/to improve, and he appears to be open to treatment; (iii) the big problem for Cardullo has been his lack of follow-through with treatment; (iv) it is “doubtful” that Cardullo will collaborate with treatment providers; (v) Cardullo has only “partial insight” into his difficulties; (vi) in phallometric testing, Cardullo showed no clear pattern but did show increased sexual arousal to rape, assault, and incest; (vii) Cardullo has a diagnosis of attention deficit hyperactivity disorder – that is associated with impulsiveness, and medication can help; (viii) Cardullo has a diagnosis of antisocial personality disorder with narcissistic personality traits and psychopathic features; medication can help with some of the symptoms of that, like impulsiveness; therapy and natural aging can help with some of the symptoms as well, like a lack of empathy; (ix) Cardullo has a diagnosis of possible persistent depressive disorder (self-esteem deficits); (x) Cardullo has a diagnosis of two types of likely anxiety disorders; (xi) Cardullo’s victim profile is broader than many offenders, and thus, he poses a risk to a broader segment of the public; he has shown a “non-selectivity” in his victims and in the types of his crimes; (xii) Cardullo has shown a propensity to victimize strangers, and thus, he poses an increased risk to the public at large; (xiii) it is unlikely that Cardullo will get and complete treatment in the community, on his own; (xiv) the risk of recidivism generally goes down with age, particularly as an offender reaches his/her fifties and sixties; (xv) Cardullo’s alcohol/substance use disorder is treatable, although there is a high risk of relapse; (xvi) Cardullo’s personality disorder is “hard-wired” and not curable, but you can treat the symptoms like impulsiveness; (xvii) Cardullo may not “burn-out” as quickly as the average like-offender, given his history and his psychological make-up; and (xviii) in Dr. Booth’s opinion, nothing other than the indefinite incarceration of Cardullo is sufficient to protect the public.

[24] In cross-examination by Mr. McCuaig, Dr. Booth repeated that, in his opinion, an indeterminate sentence of imprisonment is the only reasonable outcome for Cardullo.

[25] In cross-examination, Dr. Booth expressed some hope for Cardullo. If in the community, Cardullo would need some residential treatment for his substance abuse, followed by outpatient treatment; and he would need some medications for his other disorders; and he would benefit from cognitive behavioural therapy to improve his self-esteem.

[26] Dr. Booth acknowledged to Mr. McCuaig that Cardullo scored higher on anti-social tests than on measures related to narcissism, and thus, he is more treatable than if that was the inverse. Further, Dr. Booth acknowledged that Cardullo has the capacity to engage in treatment/therapy if he makes the right relationship, as he did with the psychologist, Ms. Tousignant, at Maplehurst Correctional Complex. In addition, Dr. Booth testified that Cardullo showed sincere remorse when discussing the predicate offences, and that type of remorse is important for the ability of an offender to change. And Cardullo does have some insight into his substance abuse problems, Dr. Booth stated.

[27] Cardullo’s sincere remorse and his partial insight is a starting point for his rehabilitation, Dr. Booth stated in cross-examination. For someone like Cardullo, according to Dr. Booth, two to three years of rehabilitation could demonstrate significant improvements.

[28] The transition from jail to the community is difficult, Dr. Booth stated in cross-examination, however, that transition can be eased through programing and the parole system itself.

[29] According to Dr. Booth, as he said in cross-examination, Cardullo was very forthcoming with him and his team, and not just to try to get a good report, in Dr. Booth’s opinion.

[30] Near the conclusion of the cross-examination, Dr. Booth testified that “it’s possible” for Cardullo to be successful if given a seven-year sentence of imprisonment, for example, in order to stabilize before re-entering the community.

[31] In re-examination by the Crown, Dr. Booth explained that he is anxious to recommend a fixed sentence of imprisonment followed by a long-term supervision order for Cardullo because there is a lot of work yet to be done by this offender. Motivation to change is not the issue for Cardullo. The issue is follow-through.

[32] In terms of this Court’s assessment of the evidence of Dr. Booth, I found him to be a very impressive witness. He was fair and balanced in his approach. He did not come across as an advocate for the Crown or for the defence. His credentials are impeccable, and his evidence on the whole was clear and concise and coherent. He was everything that this Court would expect from an expert witness, particularly in a case where there is no competing expert on the other side.

VIII. The Other Evidence at the Sentencing Hearing

[33] Karen Thompson, Regional Manager of Conditional Release Programs at the Parole Board of Canada (“Board”), educated the Court a great deal about the types of releases available for offenders generally and whether a person designated a dangerous offender and serving an indeterminate sentence is eligible for those releases.

[34] Such a person is eligible for (i) escorted temporary absences from a federal correctional facility, (ii) unescorted temporary absences from a federal correctional facility, (iii) day parole, and (iv) full parole.

[35] Such a person is not eligible for, however, statutory release – the last one-third of a federal sentence of imprisonment.

[36] Ms. Thompson also told us about what a long-term supervision order is. It is non-custodial. It commences once the custodial portion of the sentence ends (when the warrant expiry date is met). The Board imposes special conditions. There can be a residency condition for 365 days, which condition can then be extended. Counseling and treatment can be included in the special conditions. The order may be up to a maximum of 10 years in length, and there is no supervision of the offender once the order expires.

[37] The latter point is in contrast to the situation with a dangerous offender who is serving an indeterminate sentence. That person, even after being granted full parole, will continue to be subject to some conditions for the remainder of his/her lifetime.

[38] Where a long-term supervision order has been breached, revocation of parole cannot be ordered by the Board. Instead, the Board would recommend to corrections authorities that an Information be laid for the breach. While the long-term supervision order is suspended, that is after the Information has been laid, the offender is in custody. The maximum sentence for an offender who is found guilty of breaching a long-term supervision order is 10 years in custody.

[39] Further, the supervisor of a long-term supervision order has the authority to suspend the order, even without an Information being laid for a suspected breach. Corrections authorities then have a limited period of time to lay an Information. During that period of suspension, again, the offender is in custody.

[40] Finally, Sarah Low, Parole Office Supervisor for Hamilton and Halton Region, testified at the sentencing hearing.

[41] Ms. Low described for the Court what happens after an offender receives a federal sentence of imprisonment (2 years or longer, from the date that the sentence is imposed).

[42] A parole officer will meet with the offender as soon as possible. Over the course of three or four months, at Joyceville Institution, the offender will be assessed. The offender is then referred to specific programming offered at a particular federal penitentiary.

[43] A correctional plan is developed for each offender – a “roadmap” of sorts. An offender cannot be forced to take programming, however. Usually, a “primer program” precedes the core programming for an offender who has been sentenced to less than 4 years’ imprisonment from the date that the sentence is imposed.

[44] Ms. Low outlined a specific program that is available for high-risk sexual offenders. It consists of 104 group sessions, 2.5 hours every day, over six months. A dangerous offender serving an indeterminate sentence is eligible for that program. Cardullo would likely be placed into that program, given his criminal record and the facts of the predicate offences.

[45] There is also a special sex offender program. Cardullo would likely be eligible for that program as well.

[46] After completing the high-risk sex offender program, the offender can then take a maintenance program, once or more than once.

[47] Ms. Low explained that Correctional Service Canada has “far less control” over an offender on a long-term supervision order as compared to an offender on conditional release. For example, where an offender on conditional release refuses to take programming that is recommended, corrections authorities can suspend the release. During the period of suspension, the offender is in custody. The Board can then revoke the parole. On a long-term supervision order, however, if the offender refuses programming, corrections authorities can still suspend the release, and during the period of suspension the offender is in custody, but if there is no new charge laid within 90 days then the release resumes, and the Board has no authority to revoke the parole.

[48] Ms. Low testified that most offenders on long-term supervision orders are subject to a residency condition. There are two community correctional centres in Ontario – one in Kingston and one in Toronto. Most of the residents of those two facilities are long-term supervision order offenders. Halfway houses are different than those two facilities in that they are private residences in the community. Resident offenders must be inside the halfway house every night.

[49] Exhibit 5 is correspondence from Ms. Low which summarizes when a dangerous offender is eligible for parole. Cardullo, if designated a dangerous offender and sentenced to an indeterminate sentence, would have been eligible for full parole in 2023 – seven years from the date of his arrest in 2016. He would then be entitled to a review by the Board every two years thereafter. On the other hand, Cardullo, if designated a dangerous offender and sentenced to a determinate sentence and a long-term supervision order, would be entitled to full parole after serving the lesser of one-third of the sentence of imprisonment or 7 years from the date of sentencing.

IX. The Law Regarding a Dangerous Offender Application

[50] There are two stages to a dangerous offender application – the designation stage and the penalty stage.

[51] At the designation stage, the burden of proof is on the applicant, the Crown. The standard of proof is beyond a reasonable doubt. Where the Crown has met its burden, the court must find the offender to be a dangerous offender (there is no discretion).

[52] In our case, the Crown relies upon sections 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b) of the Criminal Code. The Crown submits that Cardullo meets the test to be designated a dangerous offender under any or all of those three pathways. Those sections are set out below:

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

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

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

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

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

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[53] Both sections 753(1)(a)(i) and 753(1)(a)(ii) are premised on two findings: (i) that the offender has been convicted of a serious personal injury offence (not disputed in our case), and (ii) that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing one of two categories of behaviour, which must include a predicate offence (also not disputed in our case). R. v. Ahmed, 2023 ONCA 676, at paragraph 19.

[54] Section 753(1)(b) is also premised on two findings, one of which is different than the other two pathways to designation: (i) that the offender has been convicted of a serious personal injury offence (not disputed in our case), and (ii) that the offender by his conduct in a sexual manner, including a predicate offence, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses (that is disputed in our case). Ahmed, supra, at paragraph 20.

[55] At the penalty stage, the court must (again, there is no discretion) impose one of three available sentences on a person who has been designated a dangerous offender. Section 753(4) of the Criminal Code provides as follows:

Sentence for dangerous offender

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

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

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

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

[56] Where there is some exercise of discretion on the part of the court is in deciding which of the three available sentences ought to be imposed on the dangerous offender. Section 753(4.1) of the Criminal Code provides some guidance to a court as to how that discretion ought to be exercised. That provision is set out below:

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[57] Despite what might appear otherwise from the wording of section 753(4.1), it is important to note that the provision does not create a presumption in favour of an indeterminate sentence, and it also does not impose a burden on the offender to demonstrate that a lesser measure will adequately protect the public. R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paragraphs 64-69.

[58] At the penalty stage, the sentencing judge must conduct a “thorough inquiry” into the possibility of control of the offender in the community. The court has to consider all of the evidence presented at the hearing and decide what is the fittest sentence for the offender. There is no obligation on any of the parties, the Crown or the offender, to prove on any standard the adequate sentence, one way or another. Ahmed, supra, at paragraph 134, citing Boutilier, supra, at paragraph 68.

[59] Treatability of the offender and intractability of the offender’s pattern of conduct are two concepts that are relevant at both stages of a dangerous offender application, but it is important to observe that a court could conclude that the offender’s treatment prospects are not strong enough to affect the decision on dangerousness but are strong enough to avoid an indeterminate sentence. That is precisely what the Supreme Court of Canada held at paragraph 45 of its judgment in Boutilier, supra, where it stated the following, “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”.

[60] The phrase “reasonable expectation” in section 753(4.1), in terms of whether something less than an indeterminate sentence will adequately protect the public, is more stringent than a reasonable possibility. Reasonable expectation means a likelihood or a confident belief, for good and sufficient reasons. R. v. Sawyer, 2015 ONCA 602, at paragraphs 33-37, citing R. v. Taylor, 2012 ONSC 1025, at paragraph 344; R. v. Groves, 2020 ONCA 8, at paragraph 15; R. v. Straub, 2022 ONCA 47, at paragraph 62.

[61] At the penalty stage, in assessing the offender’s treatability, the evidence of treatability must extend beyond mere expressions of hope. It must extend beyond speculative hope about successful treatment. The evidence must give some indication that the offender can be treated within an ascertainable time. Straub, supra, at paragraph 63, citing other authorities including R. v. Little, 2007 ONCA 548, 87 O.R. (3d) 683, at paragraph 42, leave to appeal refused, [2008] S.C.C.A. No. 39.

X. The Law as Applied in our Case

The Designation Stage

[62] Cardullo had experienced counsel representing him throughout the hearing of the Crown’s dangerous offender application.

[63] In addition, before Cardullo had retained Mr. McCuaig, this Court made an order appointing amicus curiae to assist the Court, particularly with regard to the law as it pertains to the test for finding someone to be a dangerous offender. Mr. Kaldas, also an experienced criminal lawyer, accepted that appointment. Mr. Kaldas dutifully attended throughout the hearing.

[64] Neither Mr. McCuaig nor Mr. Kaldas made any submissions against the Crown’s assertions that Cardullo should be found to be a dangerous offender under both sections 753(1)(a)(i) and 753(1)(a)(ii) of the Criminal Code. In fact, Mr. McCuaig expressly conceded that in his closing submissions.

[65] Given that, I will be relatively brief.

[66] First, there is no question that Cardullo has been convicted of a serious personal injury offence. That term is defined in section 752 of the Criminal Code to specifically include the offence of sexual assault causing bodily harm.

[67] Second, I have no hesitation in concluding that the Crown has proven beyond a reasonable doubt that Cardullo constitutes a threat to the life, safety or physical or mental well-being of other persons based on evidence establishing one of two categories of behaviour, which must include a predicate offence.

[68] The first category is a “pattern of repetitive behaviour…showing a failure to restrain his behaviour and a likelihood of causing death or injury to other persons…through failure in the future to restrain his behaviour”.

[69] The second category is a “pattern of persistent aggressive behaviour…showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour”.

[70] In Ahmed, supra, the Court of Appeal for Ontario reminded us about the meaning of “a pattern of repetitive behaviour”. Paragraph 121 of that decision is set out below:

[121] More recently, in R. v. Wong, 2023 ONCA 118, citing Hogg at para. 40 and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56, this court said the following about the essential elements of “a pattern of repetitive behaviour” at para. 36:

For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains “enough of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in the same way in the future. … However, the offences need not be the same in every detail; that would unduly restrain the application of the section. [Emphasis added.]

[71] Section 753(1)(a)(i) is satisfied, beyond a reasonable doubt, with reference to only the predicate offences and a single date of convictions among Cardullo’s very lengthy criminal history. There is a striking similarity between what Justice Durno sentenced Cardullo for in April 2005 (the Hamilton sexual assault incident) and the predicate offences. There is less similarity but still common elements of unrestrained dangerous conduct on the part of Cardullo when considering all three of the sexual assaults committed by Cardullo – the Brampton incident that he was sentenced for by Durno J., the Hamilton incident, and the predicate offences.

[72] Section 753(1)(a)(ii) is satisfied even without regard for anything in Cardullo’s criminal history as a youth. This Court will take the suggestion of the British Columbia Court of Appeal in R. v. George (1998), 126 C.C.C. (3d) 384 and focus only on Cardullo’s adult criminality.

[73] The three convictions from April 2005 (the Brampton sexual assault, the Hamilton sexual assault, and the serious aggravated assault committed by Cardullo inside the jail for which he was sentenced by Justice Speyer) and the predicate offences satisfy, beyond a reasonable doubt, section 753(1)(a)(ii). Those were all violent offences. They depict someone who, over and over again, persists in physically aggressive behaviour towards others.

[74] This Court, therefore, finds that Cardullo is a dangerous offender under both sections 753(1)(a)(i) and 753(1)(a)(ii) of the Criminal Code.

[75] This Court also finds that Cardullo is a dangerous offender under section 753(1)(b) of the Criminal Code.

[76] The Crown has proven beyond a reasonable doubt that Cardullo has been convicted of a serious personal injury offence described in paragraph (b) of the definition of that term found in section 752 of the Criminal Code – sexual assault causing bodily harm. That is not disputed.

[77] What is disputed is whether the Crown has proven beyond a reasonable doubt that Cardullo, by his conduct in any sexual manner, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses.

[78] In my opinion, the Crown has proven that beyond a reasonable doubt.

[79] Three times now, Cardullo has demonstrated a failure to control his sexual impulses: (i) in Brampton, with a young girl known previously to him, (ii) in Hamilton, with a complete stranger, and (iii) in Burlington, with a complete stranger. In all three incidents, Cardullo has been unable or unwilling to keep his hands to himself. Instead, he has forced sexual activity on females, failing on each occasion to restrain himself in the face of a clearly non-participating female in his company.

[80] Further, the fact that Cardullo has not been diagnosed with a specific sexual disorder does not shake my conclusion that there is a likelihood of him causing injury to others through failure in the future to control his sexual impulses.

[81] The uncontradicted evidence of Dr. Booth amply supports that conclusion. The phallometric testing showed that Cardullo had low but significant arousal to rape and assault scenarios – Dr. Booth’s report, page 52 of 90, second full paragraph. Cardullo’s history of offences has his “entitlement to sex” as one similar theme – Dr. Booth’s report, page 73 of 90, second full paragraph. Cardullo has a history of “primarily impulsive and unplanned sex offences” – Dr. Booth’s report, page 73 of 90, last full paragraph. Cardullo will have difficulty exerting control over his sexual impulses in the future, and he remains at high risk of future sexual violence – Dr. Booth’s report, page 76 of 90, second last full paragraph.

[82] Thus, in summary, at the designation stage of the application, this Court finds that Cardullo is a dangerous offender under each of sections 753(1)(a)(i), 753(1)(a)(ii), and 753(1)(b) of the Criminal Code.

The Penalty Stage

Short Conclusion

[83] This is a difficult decision, as the positions advanced by both sides are justifiable.

[84] Having carefully considered the matter, conducting as thorough an inquiry as I can with regard to the evidence adduced at the hearing, I have concluded that there is a reasonable expectation, that is a likelihood or a confident belief, that something less than an indeterminate sentence will adequately protect the public.

[85] That “something less” is, pursuant to section 753(4)(b) of the Criminal Code, a very lengthy penitentiary sentence of imprisonment for the predicate offences and an order that Cardullo be subject to long-term supervision for the maximum duration prescribed by law.

The Sentence Imposed on Cardullo

[86] In terms of what sentence is a fit one for this offender on these facts, I have decided that Cardullo should be sentenced to the maximum 14 years’ imprisonment on the sexual assault causing bodily harm conviction; 14 years’ imprisonment, concurrent, on the overcoming resistance by choking conviction; 3 years’ imprisonment, consecutive, on the uttering threats conviction; for a global sentence of 17 years’ imprisonment; less time served of 2685 days since September 18, 2016 which this Court will enhance only slightly to the equivalent of 7.5 years; for a net sentence from today of 9.5 years’ imprisonment – the Warrant of Committal will show the net sentence from today as 3467 days in custody.

[87] Further, this Court orders that Cardullo shall be the subject of long-term supervision for a period of 10 years.

Reasons for the Sentence Imposed on Cardullo

[88] Why has the Court sentenced Cardullo to the maximum punishment on the sexual assault causing bodily harm conviction and to such a lengthy period of time, concurrent, on the overcoming resistance by choking conviction?

[89] The defence invited the Court to do so. More important, however, it is my view that such a severe sentence is required to properly reflect the aggravating factors in this case, including Cardullo’s related criminal record, the horrific facts of this protracted sexual assault of a young woman, a complete stranger, in a public park, and the immense impact that the offences have had on the victim. But for the guilty pleas, there are no mitigating factors to speak of. Anything short of 14 years’ imprisonment would not be commensurate with the very high degree of moral blameworthiness of Cardullo, nor would it pay proper respect to the paramount principles of sentencing in this matter – denunciation, specific deterrence, general deterrence, and the need to separate this offender from society.

[90] Why has the Court imposed a consecutive, rather than concurrent, sentence on the uttering threats conviction? Again, the defence invited the Court to do so. More important, however, this Court has the discretion to impose a consecutive sentence for the uttering threats, even in these circumstances where there is a close factual and temporal nexus between the threatening conduct and the other two offences.

[91] There is nothing wrong with the Court fixing an appropriate global sentence, which I think must be considerably more than 14 years’ imprisonment for this chronic offender and on these terrible facts – I would place the appropriate range of global sentence at something between 17 and 19 years in the penitentiary, and then assigning sentences for each individual offence and designating them concurrent or consecutive in order to fit within the already determined global sentence. R. v. Jewell (1995), 83 O.A.C. 81 (C.A.); R. v. Smith, 2011 ONCA 564, at footnote [2].

[92] The range of sentence here, globally, as I stated above, I would place at 17-19 years in custody - the maximum for the sexual assault causing bodily harm (14 years), something equivalent to be served concurrently on the overcoming resistance conviction, plus 3-5 years consecutive on the uttering threats conviction.

[93] This Court has settled on 17 years, the low end of the range, as the appropriate global sentence of imprisonment in part because the Court is not giving Cardullo any material grossed-up credit for the time in custody that he has already served.

[94] In addition, in terms of why the Court imposed a consecutive sentence on the uttering threats conviction, it should be noted that Cardullo’s threats were not all simply a part of his attempts to have the victim submit to his violence. The threatening remarks persisted even after the forced sexual intercourse had effectively ended.

[95] Why has the Court imposed a rather lengthy term of imprisonment, 3 years, on the uttering threats conviction? Because there were multiple threats made by Cardullo, aimed at multiple persons, uttered throughout the entire encounter with the victim at the park, and because Cardullo has a history of criminal convictions for uttering threats, including two convictions as an adult in February 2012.

[96] Finally, why has the Court not given Cardullo anything more than a slight enhancement of his actual time served in presentence detention? The defence did not suggest that the Court could or should not do so when the issue was raised by the Court during oral submissions at the conclusion of the sentencing hearing. In fact, neither side suggested that the Court would be in error if it elected to give Cardullo only 1:1 credit for his “dead-time”. More important, however, this Court has the discretion to not give to Cardullo any enhanced credit for his presentence custody. R. v. J.W., 2023 ONCA 552, at paragraph 22. Given Cardullo’s lengthy and serious criminal history, the fact that he would have very likely not been eligible for early release from custody after sentencing in any event, and his multiple incidents of misconduct while in presentence custody for the predicate offences, it would be unreasonably charitable, in my view, to give to Cardullo any more enhanced credit for his time served to date than what I have given him, which amounts to a slight gross-up of 2685 actual days of presentence custody to arrive at a round figure of 7.5 years of “dead-time”.

Why has the Court Not Imposed an Indeterminate Sentence on Cardullo?

[97] The evidence of Cardullo’s treatability, though not compelling enough to avoid a designation as a dangerous offender, is strong enough to make this Court conclude, with confidence, that the sentence imposed is adequate to protect the public. Put another way, I am satisfied that an indeterminate sentence is not necessary to adequately protect the public.

[98] This Court acknowledges that Dr. Booth has opined that an indeterminate sentence is necessary to protect the public. But it is critical to observe that Dr. Booth was very fair in his report and in his viva voce evidence at the hearing. In his report (Exhibit 3), at page 77 of 90, in the last full paragraph, Dr. Booth rightly notes that the question of whether there is a reasonable expectation that a measure other than an indeterminate sentence is adequate to protect the public is a question for the Court to decide. It is a juridical determination, though one that must consider the psychiatric perspective.

[99] This Court is aware of expert reports in cases like this one that are markedly different than Dr. Booth’s report.

[100] It is sometimes said that an offender is simply untreatable, or that there is no realistic prospect that the offender could be treated, or that any hope of successful treatment of the offender is negligible, or that the risk of re-offending is certain or very near certain, as just a few examples. R. v. Higginbottom, at paragraph 25.

[101] It is sometimes said that an offender’s prognosis for treatment is very poor compared with other offenders, or that the offender’s problems are so debilitating that his positive expressions of motivation to take treatment are largely unhelpful or even irrelevant to the question of whether the offender is likely to be capable of successful rehabilitation, or that the offender’s history of having participated in many treatment programs with little or no success is bound to repeat itself in the future. That was the situation in R. v. Drake, 2024 ONCA 4, a very recent decision of the Court of Appeal for Ontario that upheld the indeterminate sentence imposed by the sentencing judge.

[102] Where those types of descriptions, as examples the ones present in the Higginbottom, supra and Drake, supra decisions, are apt, an indeterminate sentence most often results.

[103] That is not at all the evidence before this Court, however. Based on the evidence of Dr. Booth, which evidence I accept in order to make the following findings, Cardullo is treatable if he follows-through with the service provider(s). Cardullo is genuinely motivated to get treatment and to change. He has the psychological capacity to engage with treatment. His two major difficulties, which are related to each other, are his alcohol abuse and his impulsiveness. Both of those disorders can be treated.

[104] We know from the evidence of Dr. Booth that there are interventions that could help manage Cardullo’s risk in the community, some while he is incarcerated and some after his release from custody (see, for example, pages 78-79 of Dr. Booth’s report). I accept that evidence. We also know from the evidence of Ms. Low that Cardullo would likely be eligible for the high-risk sexual offender program while serving his penitentiary sentence. I accept that evidence.

[105] Dr. Booth testified specifically, and I accept, that Cardullo could demonstrate significant improvements if he had the benefit of two or three years of rehabilitative assistance; and that Cardullo could be successful in his rehabilitation efforts if he had sufficient time to stabilize before re-entering the community, if given a lengthy penitentiary sentence of seven years for example.

[106] Two or three years is the type of ascertainable treatment time that the Court of Appeal for Ontario referred to in Straub, supra.

[107] Further, the custodial sentence that has been imposed on Cardullo is markedly longer than seven years, giving even more time to reinforce the need for Cardullo to stabilize while in a structured setting.

[108] The other side of these arguments is that could does not necessarily equate to a likelihood, and Cardullo’s criminal history is chock-full of his past promises to correctional authorities, to judges, and to others, to get treatment and to stop offending. In fact, Ms. Frew went through, very ably, numerous examples of that between 1997 and 2023.

[109] The evidence demonstrates, however, that two significant things have changed since the vast majority of those examples outlined by Ms. Frew occurred.

[110] First, Cardullo is older now (42 plus years of age), and he will be well into the burn-out years, even if delayed somewhat as Dr. Booth opined, by the time that he has completed his custodial sentence and the 10-year period of long-term supervision afterwards.

[111] Second, the records of Ms. Tousignant, psychotherapist at Maplehurst Correctional Complex, are tangible evidence, and recent evidence, that Cardullo is capable of following-through with treatment and making significant improvements. Dr. Booth acknowledged the latter in his report, at page 64 of 90, and in his viva voce evidence during the hearing.

[112] This is not just an expression of hope with nothing to ground it. Cardullo has shown, recently, that he can do the follow-through, and that is the issue that is most concerning to Dr. Booth.

[113] On the totality of the evidence, I think that it is likely that Cardullo can do it again, and do it persistently, with,

(i) the supports in place as recommended by Dr. Booth; (ii) a lengthy custodial sentence, from today, to aid in stabilization, which sentence has been imposed by this Court; (iii) a proper comprehensive treatment plan put together by correctional authorities during the assessment phase that will begin immediately after the federal sentence is imposed, as spoken about by Ms. Low, which plan I am confident will be developed for Cardullo; (iv) intensive programming while in the penitentiary that Cardullo will likely be eligible for, such as the high-risk sexual offenders program as spoken about by Ms. Low, which program I am confident Cardullo will be referred to; (v) a long-term supervision order of the maximum duration, which order has been imposed by this Court; and (vi) the conditions that we can reasonably expect will be a part of that long-term supervision order, including a specific residency condition and including community-treatment terms, as spoken about by both Ms. Thompson and Ms. Low.

[114] No sentence under section 753(4)(b) of the Criminal Code is fail-safe.

[115] At the same time, a sentence under section 753(4)(a) is not fail-safe either. An indeterminate sentence, as the evidence of both Ms. Thompson and Ms. Low makes clear, does not mean that Cardullo would not be released into the community sometime in the future, and it also does not necessarily mean that Cardullo would not be eligible for release into the community until a longer period of time has passed as compared to the sentence imposed by this Court.

[116] Ms. Frew very ably presented this case on behalf of the Crown. It was not the only argument that she made in favour of an indeterminate sentence, but a key submission that she made, more than once, and a key consideration that she put to Dr. Booth during his examination-in-chief at the hearing, which key consideration must be taken to have influenced Dr. Booth’s opinion about the advisability of an indeterminate sentence, is that there is simply not enough time for Cardullo to reasonably do what he needs to do before being released from custody, on the understanding that he might be given a 14-year sentence of imprisonment less close to 11 years of credit for his presentence custody, leaving a net sentence of about 3 years in prison from today.

[117] That is not the result of this Court’s decision, however. Rather, this Court’s decision, 9.5 years in custody from today plus 10 years of long-term supervision, although it can be labelled a “lesser measure” than an indeterminate sentence, I am satisfied meets the test of a sentence reasonably expected to adequately protect the public.

[118] The law is important here. There is a tendency, I say with respect, for one to jump too quickly from the designation of someone as a dangerous offender to the imposition of an indeterminate sentence. That is wrong. There is a tendency to think that an offender must have to work really hard to persuade the judge to not impose an indeterminate sentence, once the Crown clears the hurdle at the designation stage. That is wrong. There is a tendency, perhaps even impliedly, to shift the legal or evidentiary burden to the offender at the penalty stage. That is wrong. There is a tendency to think that an indeterminate sentence is just plain safer for everyone concerned, as by its plain expression it must mean that the dangerous offender will be locked-up for good. Not necessarily.

[119] I have reminded myself that the “reasonable expectation” referred to in section 753(4.1) of the Criminal Code must be based on the evidence. Not some faint hope that the offender might succeed, somehow, someday. That could be said of nearly every dangerous offender.

[120] The evidence here, not exclusively but most notably that of Dr. Booth regarding Cardullo’s treatability and that of Ms. Tousignant’s records, summarized in part in Dr. Booth’s report, regarding Cardullo’s real-life follow-through, supports the sentence imposed.

[121] Those are the reasons why this Court, having considered all of the evidence adduced at the hearing, the submissions of counsel, and the jurisprudence and the legislation, including section 753(4.1), has imposed a sentence under section 753(4)(b) instead of an indeterminate sentence under section 753(4)(a) of the Criminal Code.

[122] At the penalty phase of a dangerous offender application hearing, a court is required to consider all of the sentencing principles set out in sections 718 to 718.2 of the Criminal Code, and a court must remember that, although all of the sentencing principles are relevant, it is the protection of the public that is the primary purpose of dangerous offender proceedings. Boutilier, supra, at paragraph 106; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paragraphs 19, 23, and 29; R. v. Drake, 2024 ONCA 4, at paragraph 8.

[123] That primary purpose, in my view, is satisfied with the sentence imposed herein.

XI. Conclusion

[124] In the result, the Crown’s dangerous offender application is allowed in part. Cardullo is found to be a dangerous offender. He is sentenced to a term of imprisonment and a long-term supervision order, in accordance with these reasons.

[125] I would like to thank all counsel for their assistance in this difficult matter.

[126] I will entertain further submissions by counsel on any ancillary orders sought by the Crown and with regard to an order under section 743.21(1) of the Criminal Code.

Conlan J. Released: January 26, 2024