R v Dela Cruz, 2023 SKCA 36

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3640 Citation: R v Dela Cruz , 2023 SKCA 36 Date: 2023-03-22 Between: Giustevens Dela Cruz Appellant And His Majesty the King Respondent Before: Schwann, Leurer and Drennan JJ.A.

Disposition: Leave denied Written reasons by: The Court On appeal from: CRM-SC-00019-2021 (KB), Swift Current Appeal heard: February 13, 2023 Counsel: Thomas Hynes for the Appellant Andrew Davis for the Respondent The Court [ 1 ] Giustevens Dela Cruz was convicted of sexual assault contrary to s. 271 of the Criminal Code and sentenced to 14 months of imprisonment, less credit for pre-sentence custody, followed by a 12-month period of probation: R v Dela Cruz (10 March 2021) Swift Current (Sask PC) [ Trial Decision ], and R v Dela Cruz (10 November 2021) Swift Current (Sask PC) [ Sentencing Decision ]. Mr.

Dela Cruz appealed both the Trial Decision and the Sentencing Decision to the Court of Queen’s Bench pursuant to s. 813 of the Criminal Code . By a decision rendered on November 11, 2022, a

summary conviction appeal court judge [KB judge] dismissed Mr. Dela Cruz’s appeal: R v Dela Cruz (11 November 2022) Swift Current, CRM-SC-00019-2021 (Sask KB) [ KB Decision ]. [ 2 ] Mr. Dela Cruz seeks leave to appeal the KB Decision to this Court pursuant to s. 839 of the Criminal Code .

Section 839 provides for a right of appeal against a

summary conviction appeal decision on questions of law alone, with leave from this Court. Leave to appeal is granted sparingly and is dependent on an applicant establishing that “the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally – i.e., beyond the four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question” ( R v Bray , 2017 SKCA 17 at para 2 ). [ 3 ] We are not satisfied that the test to grant leave to appeal has been met. While, in the usual course, no reasons for the denial of leave to appeal are given, in the circumstances of this case, some explanation for our decision is warranted. [ 4 ] With respect to his appeal from conviction, Mr. Dela Cruz seeks leave to appeal in order to argue that the KB judge erred by endorsing an expansive approach to the trial judge’s

interpretation of what he refers to as witness demeanor . More specifically, he says the trial judge assessed the complainant’s testimony as if she had cognitive deficits, even though no evidence to that effect was adduced at trial. He says that the record only supported a finding that the complainant was hearing-impaired and nothing more. Mr.

Dela Cruz says that impairment was extrapolated by the trial judge in a way that caused him to act on assumptions and stereotypes by imputing a mental disability to the complainant, which, in turn, coloured his credibility assessment of her. [ 5 ] However, that was not the same issue that was posed to the KB judge. It was described in the KB Decision as an argument that “the learned trial judge erred by doing his own psychological assessment of [the complainant] as though he was a registered psychologist” (at para 14). Setting aside the fact that the argument Mr.

Dela Cruz proposes to bring forward on an appeal to this Court has been recast, it fails on the significance to the administration of justice prong of the Bray test, and it is also not, in our view, compellingly meritorious. In this regard, having read the transcript, the KB judge was satisfied the trial judge “understood that there was no evidence regarding cognitive function presented at the trial” (emphasis added, at para 15).

As the KB judge went on to note – based on his thorough reading of the transcript – the trial judge had merely observed that the complainant gave the impression that she had a cognitive deficit in reference to her difficulties communicating answers to the questions put to her, particularity under cross-examination. That impression was illustrated by trial judge’s observations about the complainant’s speech patterns and mannerisms, which he explained at length in the Trial Decision .

Based on all of this, we are satisfied that the KB judge did not err by finding that the trial judge did not find the complainant credible because he believed she was cognitively impaired, nor did he apply stereotypical reasoning in assessing her evidence. [ 6 ] Mr. Dela Cruz also seeks leave to appeal his sentence, arguing that the KB judge erred in law by upholding the trial judge’s finding that the Court has no jurisdiction to order a psychological report at the sentencing stage.

His argument centers on the statement made by the KB judge that this Court’s decision in R v Bouvier , 2011 SKCA 87 , 274 CCC (3d) 406, “makes it clear that a sentencing judge in a conventional hearing under

Part XXIII of the Criminal Code does not have the authority to order a psychological assessment” ( Sentencing Decision at para 21). [ 7 ] In Bouvier , this Court held that there was no jurisdiction pursuant to s. 723(3) of the Criminal Code to order a psychological

assessment of an offender in a

Part XXIV dangerous offender sentencing proceeding. Mr. Dela Cruz argues that Bouvier did not settle thelaw with respect to this issue in

Part XXIII sentencing proceedings. He notes that s. 721(4) and s. 723(3) of the Criminal Code have beenutilized by courts elsewhere in Canada to commission psychological assessment reports in conventional sentencing proceedings: see R vDuyck, 2019 BCPC 330; R v Goldberg, 2011 BCSC 1926; R v Gibbons, 2009 NUCJ 30; R v Challes, (Ont Sup Ct); Rv Blackwell, 2007 BCSC 1486, 227 CCC (3d) 275; R v Hunter, (AB KB), [1998] 2 WWR 57 (Alta QB); R v MB,2014 ABQB 683, 601 AR 148; and R v Swaby, 2016 BCPC 478, aff’d 2018 BCCA 416, leave to appeal to SCC refused,.

He says that while mental health legislation in other provinces provides an alternate route for such reports The Mental HealthServices Act, SS 1984-85-86, c M-13.1, does not. We agree that the issue of whether Bouvier has the scope and effect described by the KBjudge is a live one. At some point, it should likely come before this Court for consideration. [8] However, we are not persuaded that leave to appeal on this issue should be granted. We say this for two reasons. First, thetrial judge did not deny Mr. Dela Cruz’s request for a psychological assessment solely due to a lack of jurisdiction.

He also denied it onthe basis that he had adequate information to properly apply the sentencing principles under s. 718.2 of the Criminal Code to thecircumstances at hand. The trial judge was well-positioned to assess what information was required to impose a fit sentence on Mr. DelaCruz.

Second, the argument engages the question of the Charter-protected rights of an offender, and we are not satisfied that there is asufficient evidentiary foundation for this issue to be decided in the circumstances of this case. [9] Leave to appeal is denied. “Schwann J.A.” Schwann J.A. “Leurer J.A.” Leurer J.A. “Drennan J.A.” Drennan J.A.