Ontario Court of Justice

Date: 2018-05-11

Court File No.: Toronto 18-15002725

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KOREY RUDDER

Before: Justice H. Pringle

Heard on: April 11, 2018; April 13, 2018; April 30, 2018; May 3, 2018

Reasons for Judgment released on: May 11, 2018

Counsel:

• Heather Keating, counsel for the Crown
• David Adanja, counsel for the defendant Korey Rudder

OVERVIEW

[1] On the morning of his Robbery trial, Mr. Rudder advised he wished to plead guilty to common Assault. Because of the possibility of immigration consequences, his case adjourned so Mr. Rudder could obtain independent legal advice. In the interim, a new information was sworn and on April 30, 2018, Mr. Rudder pled guilty to one count of common assault. The Crown proceeded summarily, meaning the maximum penalty of imprisonment must not exceed six months. The issue of immigration consequences made this sentencing a contested one.

FACTS OF THE OFFENCE

[2] The facts established that on November 14, 2016, at about 12:35 p.m., Mr. Rudder was part of a group fighting near Queen Street West and Jameson Avenue. The victim, A.H., stood nearby and watched the melee from a short distance away. A.H. was 17 years old at the time.

[3] After the fight broke up, the group, including Mr. Rudder, approached A.H. and accused him of stealing their property. The victim, whose first language was not English, could not understand what the problem was. Mr. Rudder then physically searched the victim, including pulling down his pants in public. It is agreed this physical search, and in particular forcibly pulling down the victim's pants, constitutes a common assault.

[4] Nothing was located. A female in the group then threatened the victim, telling him that if he didn't meet her in two weeks with $60, he was going to get hurt. The victim, obviously scared, went home and told his mother. His mother, similarly afraid for her son's safety, gave him $60 to pay her. Mr. Rudder had no knowledge of this "shake-down" and, on the agreed facts, did not participate in these later events. It was agreed that at the time he committed the assault, Mr. Rudder was bound by two probation orders.

[5] The victim, luckily, suffered no physical injury as the result of this offence. I cannot say the same when it comes to the emotional effects this assault had on him. In his victim impact statement, A.H. explained that after being assaulted in the street in the middle of the day, he no longer went outside alone. He fears the defendant. He fears the defendant's friends. After he was accosted on the street, his fear of going outside kept him from school for two weeks. Although the victim's mother did not tender a victim impact statement, A.H.'s statement established his fear has permeated through his whole family. I have no doubt that his mother, in particular, fears for her son's safety every single time he steps out the door.

MR. RUDDER'S PERSONAL CIRCUMSTANCES

[6] Mr. Rudder, who is 38 years old, has never been convicted of a criminal offence. He has four prior findings of guilt, incurred on two separate occasions. On June 17, 2015, he was found guilty of uttering threats and assault and was discharged conditionally, with a two year term of probation imposed. On April 18, 2016, he was found guilty of assault and failing to comply with a recognizance. Again, he was discharged conditionally and ordered to comply with a two year probation order. Thus on November 14, 2016, when Mr. Rudder assaulted the victim, he was bound by two separate probation orders.

[7] Mr. Rudder's status in Canada is that of a Convention refugee. This status was granted because he himself was the victim of persecution and violence in his home country. The details of that violence and persecution are unknown to me, but I need not know details in order to conclude that Mr. Rudder's past experiences have had a traumatic effect on him. A Convention refugee obtains that status because of a well-founded fear of persecution for reasons of race, nationality, membership in a particular social group or political opinion.

[8] Mr. Rudder came to Canada from Barbados in about 2011, and was granted refugee protection in 2012. He has not applied for permanent resident status, but has been residing here as a person in need of protection since that time. He hopes, one day, to open up a natural juice business.

[9] Counsel for Mr. Rudder advises me that Mr. Rudder has not dealt with his traumatic past but rather, sought to medicate it with crack cocaine. This has led to an addiction, which he is going to need help to overcome. Luckily, he has a close circle of friends, many of whom attended court to demonstrate their support and to show they will assist Mr. Rudder with his rehabilitation.

POSITION OF THE PARTIES

[10] The Crown, relying on the paramountcy of protecting society, the impact this offence had on the victim, and the statutorily aggravating feature of the victim's age, seeks a suspended sentence in light of the equivalent of 30 days of pre-sentence custody, plus an additional day. The defence, relying on immigration consequences, seeks a third conditional discharge in light of the equivalent of up to 60 days of pre-sentence custody.

[11] I have had the benefit of thorough submissions from both Crown and defence on the issue of immigration consequences. In addition, both sides helpfully provided me with a number of authorities on the topic. I am grateful for the fulsome record that counsel has provided, including their assistance in clarifying the precise immigration consequences at issue in this case.

IMMIGRATION CONSEQUENCES

[12] When Mr. Rudder first raised pleading guilty, his case was adjourned to allow for immigration advice about the proposed resolution. Independent legal advice was then provided, in written form, and included an opinion that if Mr. Rudder was convicted in this case, he would become inadmissible to Canada as a result of section 36(2) of the Immigration and Refugee Protection Act (IRPA).

[13] This letter did not, due to time restraints, provide me with a strong understanding of the immigration consequences in this case. In particular, I was concerned that the immigration consequences for Mr. Rudder included the possibility that he would be deported to a country where he faced physical harm or death. It frankly seemed incongruent that Canada would provide Mr. Rudder safe haven from harm in 2012, and yet return him, upon a conviction for common assault in 2018, to the same place where his life and safety were in jeopardy.

[14] Upon further consultation with immigration counsel, Mr. Adanja properly conceded that, given Mr. Rudder's Convention refugee status, there is virtually no possibility of Mr. Rudder being deported if he was convicted of common assault. On the evidence before me, Mr. Rudder would be at risk for deportation if:

(i) He was inadmissible on grounds of serious criminality, AND;

(ii) In the opinion of the Minister, he was a danger to the public in Canada in accordance with section 115(2)(a) of IRPA.

[15] This is, as I understand it, because the definition of "serious criminality" in section 36(1) of IRPA excludes a conviction for summary conviction common assault. The relevant definition of "serious criminality" in s. 36(1)(a) is "having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed".

[16] I am grateful for Mr. Adanja's further investigation into this question. In order to weigh immigration consequences properly, a sentencing judge must have a clear understanding of what exactly those consequences are.

[17] Defence counsel submitted that, although there is no realistic risk of deportation, a conviction will still attract immigration consequences. Mr. Rudder may, for example, have difficulty applying for permanent resident status in Canada, because a permanent resident must show they are not criminally inadmissible to Canada. Delay in becoming a permanent resident may cause difficulty in getting government grants to set up a business, or otherwise cause roadblocks to securing stable employment. The Crown does not concede this.

APPLYING IMMIGRATION CONSEQUENCES IN SENTENCING

[18] I have derived some broad principles from the wealth of cases put before me. I have, as a sentencing judge, the discretion to take immigration consequences into account as a factor relevant to the determination of sentence: R. v. Pham, 2013 SCC 15 at para. 13. Immigration consequences may not, however, overwhelm my analysis to the point where I impose a sentence that is disproportionate and unfit; Pham, supra, at para. 14. The sentencing process cannot be used to circumvent Parliament's will in enacting other legislation, including IRPA: R. v. Pham, supra, at para. 15 and R. v. Badhwar, 2011 ONCA 266 at para. 45.

[19] It is key to appreciate what, precisely, collateral immigration consequences may be caused in every case. As Pham states at para. 13, "their (immigration consequences) significance depends on and has to be determined in accordance with the facts of the particular case". This case is a perfect example of the need for a firm factual record of the issue. Weighing a consequence where the defendant would be deported and at risk of harm or death is far different than weighing a consequence where the defendant may have difficulty obtaining permanent residence status.

[20] Immigration consequences are not embedded in our traditional principles of sentencing and are neither an aggravating nor a mitigating factor. Therefore, procedurally speaking such consequences "might best be addressed separately, and only if necessary": R. v. McKenzie, 2017 ONCA 128 at para. 32. Thus my first step is to assess a fit sentence for this offence, and this offender, absent consideration of any immigration consequences.

ASSESSING A FIT SENTENCE FOR MR. RUDDER

[21] Absent consideration of any immigration consequences, I would not impose a conditional discharge for this assault. Defence counsel was unable to point to any authority justifying a third conditional discharge, but submitted it has occurred in unreported cases. I have no doubt that it has, and that there is no limit to the number of discharges a person may receive. That said, the more findings of guilt a person incurs, the harder it is for a judge to conclude that imposing yet another conditional discharge is not contrary to the public interest.

[22] The offence here is serious. It is one of violence, whether or not the victim suffered any physical injury. This was a group effort. A number of people, including Mr. Rudder, approached a 17-year old boy and demanded property. English being his second language, the victim could not understand what they wanted from him. Mr. Rudder, who is certainly much older than the victim, then physically searched the victim which included forcibly pulling his pants down in public. The victim must have been humiliated, degraded, and terrified.

[23] While I disagree with Crown counsel's characterization of the victim as a "child", I agree his age is a statutorily aggravating circumstance here. A.H. is still just a kid, and kids should not have to be afraid to go to school. Also aggravating is the fact that Mr. Rudder has four prior findings of guilt, including two separate assault offences. Further aggravating sentence is the fact that Mr. Rudder was bound by two separate probation orders, both for assault, at the same time that he committed the assault against A.H. This hints at the start of a pattern of behaviour, and makes protecting the public a key consideration. It also demonstrates that specific deterrence has not been achieved by the two prior discharges. I agree with the Crown that specific deterrence and denunciation is only served by imposing a conviction here.

[24] Mr. Rudder's past cannot serve as an excuse for his behaviour that day. However, it remains a relevant factor that Mr. Rudder himself has been a victim. Whatever the nature of his victimization, it was serious enough that Mr. Rudder fled the country of his birth. It is not a stretch to conclude, as Mr. Adanja submitted, that Mr. Rudder has been traumatized and counseling is needed to address that trauma. I accept Mr. Rudder has been medicating that trauma with crack cocaine, which in turn led to an addiction. If Mr. Rudder were to curb the drug addiction, I have no doubt he has the ability to become a productive member of Canadian society. It is not too late for him to change the path he is on here, particularly given the community support he has standing behind him.

[25] Mr. Rudder has pled guilty and saved a young victim from having to testify. While his plea may not have been at the earliest opportunity, it remains an important factor and serves to Mr. Rudder's credit. Every guilty plea, no matter its timing, is indicative of remorse and regret and Mr. Rudder's case is no different. His remorse, in turn, shows that rehabilitating Mr. Rudder is a live possibility. There is still much light at the end of the tunnel here.

[26] Balancing all of these factors, imposing a third conditional discharge would be contrary to the public interest. After considering the immigration consequences, I have reached the same conclusion. To be clear, the immigration consequences established on this record are that Mr. Rudder may have difficulty obtaining permanent resident status, and may have difficulty obtaining government grants to start up a business as a result. Were the immigration consequences as serious as defence counsel initially believed, and Mr. Rudder at risk of bodily harm or death after being deported, I may have reached a different conclusion.

[27] Had Mr. Rudder come before me as a Canadian citizen, out of custody, and in otherwise identical circumstances, I would have imposed a suspended sentence and probation. I would not, given his antecedents, his own victimization, the drug addiction, the community support, and the deterrent and denunciatory effect of registering a first conviction, have sent him to jail. The immigration consequences which may result here are so minor that it does not impact upon my opinion that a suspended sentence and probation remains the right result. But deterrence and denunciation can be accomplished without incarceration.

[28] I have given some thought to the fact that defence counsel's position included the equivalent of up to 60 days presentence custody. This position, however, was obviously a "trade-off", in that Mr. Adanja wanted this presentence custody to serve as deterrence and denunciation if a discharge were to be imposed. My understanding of this position was confirmed by Mr. Adanja at the end of submissions. Accordingly, I do not see the sentence I am imposing as straying outside any suggested or agreed-upon range.

[29] In relation to the offence of assault, I am suspending the passing of sentence and imposing a probation order of thirty months in length. I am not noting any presentence custody served.

Released: May 11, 2018

Signed: Justice Heather Pringle