Court of Appeal for Ontario

Date: 20210706 Docket: C65944

Judges: Watt, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Patrick Ruddy Appellant

Counsel: Eric Granger, for the appellant Maria Gaspar, for the respondent

Heard: June 28, 2021 by video conference

On appeal from the sentence imposed on September 7, 2018 by Justice Paul R. Currie of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was an officer with the Canada Border Services Agency (“CBSA”) for 13 years. On April 13, 2018, he entered guilty pleas to one count each of conspiring to import cocaine (*Controlled Drugs and Substances Act*, S.C. 1996, c. 19, s. 6(1)) and breach of trust (*Criminal Code*, R.S.C. 1985, c. C-46, s. 122). He was sentenced to 10 years’ imprisonment and made subject to other ancillary orders.

Background

[2] The investigation began after the appellant was seen at a secure cargo facility removing a package from a container sent from Pakistan. He provided no receipt or documentation when he removed the package. Over a seven-month period, from September 7, 2016 until the end of April 2017, RCMP investigators intercepted private communications between the appellant and three co-conspirators, including another CBSA officer and Roberto Leyva. The intercepts captured the co-conspirators planning to import multiple shipments of cocaine through Toronto Pearson International Airport. Drawing on his knowledge and experience as a CBSA officer, the appellant advised Leyva on an ongoing basis about how to import cocaine undetected, including means, methods, and opportune times.

[3] On April 20, 2017, the RCMP intercepted a conversation between the appellant and Leyva discussing a cocaine shipment that was arriving on a flight from Kingston, Jamaica, the next evening. The appellant confirmed that it was “five” that was coming on that flight. The following night, the CBSA seized 5.5 kilograms of cocaine from a flight from Kingston, Jamaica, shortly after it landed at Pearson. The circumstances of the seizure were consistent with many of the details discussed in the intercepted communications.

[4] At the time of the offence, the value of the cocaine that was seized, if sold at the kilogram or multi-kilogram level, was between $45,000 and $65,000.

[5] The appellant was 37 years old at the time of the offences. Being a trusted CBSA officer, he had no criminal record. The appellant is a member of the Bonnechere Algonquin First Nation, of Métis descent. At the time of sentencing, he was married. The appellant enjoyed the support of his family and friends. He expressed what the sentencing judge regarded as sincere remorse for his actions.

[6] The Crown sought a sentence of 10 to 12 years, whereas the appellant sought a sentence of 5 to 6 years.

The sentencing judge’s reasons

[7] In his reasons, the sentencing judge outlined the applicable principles of sentencing for this type of case, placing heavy reliance on the decision of this court in *R. v. Hamilton* (2004), 186 C.C.C. (3d) 129 (Ont. C.A.). He also referred to *R. v. Duncan*, 2016 ONSC 1319, in which Code J. identified ranges of sentence for cocaine importers, based on the role played by the accused in the enterprise and amount of cocaine involved. Based on that case, the sentencing judge identified the appropriate range as 12 to 19 years. However, given the appellant’s guilty plea, the Crown suggested a range of 10 to 12 years.

[8] The sentencing judge held that the appellant’s role as a CBSA officer “significantly increase[d] his moral culpability in this case.” After taking into account a number of mitigating circumstances, the sentencing judge imposed a sentence of 10 years’ imprisonment, at the lower end of the range submitted by the Crown.

Discussion

[9] The appellant submits that the sentencing judge did not correctly identify the proper range. Instead of a 10- to 12-year spread, he submits that the proper range was 8 to 12 years. Given the numerous mitigating factors, the appellant submits that he should fall at the lower end of this range. We disagree.

[10] Assuming that the range extends as low as the appellant submits on appeal, we are of the view that the appellant’s sentence is properly located within this range. The sentencing judge identified the applicable aggravating and mitigating circumstances in this case. The importation of cocaine requires a sentence that emphasizes the principles of denunciation and general deterrence. The egregious breach of trust in this case was a serious aggravating factor. We must show deference to how the sentencing judge balanced the aggravating and mitigating factors. It cannot be said that a sentence of 10 years’ imprisonment was demonstrably unfit: *R. v. Lacasse*, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 36-55; *R. v. Friesen*, 2020 SCC 9, at paras. 25-29.

[11] The appellant submits that the sentencing judge erred by failing to give credit for the time that the appellant spent on strict bail conditions that included roughly 15 months on house arrest. In *R. v. Downes* (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33, this court held that it is an “error in principle” for a judge to fail to take into account as a mitigating circumstance in sentencing time spent on stringent bail conditions, especially house arrest. See also: *R. v. Ijam*, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 67, per Sharpe J.A. (concurring). However, there is no prescribed formula for taking this mitigating factor into account; it is within the discretion of the sentencing judge: *R. v. Place*, 2020 ONCA 546, at para. 20.

[12] The sentencing judge did take house arrest into account in determining the ultimate sentence he imposed. He said, “In [defence counsel’s] submissions that an appropriate range of sentence would be some five to six years, he asks the court to look at the fact that Mr. Ruddy has been essentially on house arrest since his release from custody.” Later in his reasons, the sentencing judge said, “Mr. Ruddy, I give you full credit for all of the mitigating factors in your case.”

[13] It would have been preferable had the sentencing judge said more about the time the appellant spent on house arrest, however, we are satisfied that he took it into account in determining the ultimate sentence he imposed, which fell in the middle of the appropriate range submitted by the appellant on appeal.

[14] The appellant submits that the sentencing judge failed to credit the appellant for the five days he spent in pre-sentence custody before being released on bail. The sentencing judge made no mention of this time, even though it was raised in submissions. There was no reason to refuse credit for the time the appellant spent in pre-sentence custody. The five days spent will be credited on a 1.5:1 basis, for a total credit of eight days, rounded.

[15] At the sentencing hearing, the Crown requested a mandatory firearms and weapons prohibition under s. 109 of the *Criminal Code* for a period of 10 years. The sentencing judge made a lifetime order. On appeal, the Crown agrees that, pursuant to s. 109(2)(a), the order should be for 10 years.

[16] Finally, the sentencing judge imposed a victim surcharge. He made this order before the Supreme Court of Canada’s decision in *R. v. Boudreault*, 2018 SCC 58, [2018] 3 S.C.R. 599. The Crown concedes that this order should be set aside.

Disposition

[17] Leave to appeal sentence is allowed. The appellant is entitled to be credited with eight days of pre-sentence custody. Accordingly, the custodial portion of his sentence is reduced by eight days. The mandatory firearms and weapons prohibition is reduced to 10 years. The victim surcharge is set aside.

“David Watt J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”