ONTARIO COURT OF JUSTICE
DATE: 2025-01-09
COURT FILE No.: 21-75000278
BETWEEN:
HIS MAJESTY THE KING
— AND —
RUBENS DE OLIVEIRA HENDERSON
Before Justice David S. Rose
Heard on January 6, 2025
Reasons for Judgment released on January 9, 2025
Ms. Boehr ............................................................................................. counsel for the Crown
Mr. Orr .................................................................. for the defendant Rubens Henderson
Rose J.:
Mr. Henderson was found guilty after trial of Dangerous Driving; Refuse Roadside Testing; and Assault Police Officer. On January 6, I imposed sentence and gave oral reasons. At that time I reserved the right to release further reasons.
The facts I found were essentially that Mr. Henderson was seen on January 14, 2021 driving a Nissan on QEW at 5pm. He hit a median wall on the right side of the highway. He then sped off at speeds estimated to be as fast as 140 km/h. Another driver called 911 and followed him as he left the Gardiner Expressway at Lakeshore Blvd. Sgt. Young pulled him over on Carlaw and began a standard roadside driver investigation. Mr. Henderson displayed bizarre behavior from the start, screaming, putting his hands to the sky referring to Allah and wanting to kiss Sgt. Young’s feet, and falling to the ground. Mr. Henderson was yelling, screaming and flailing about chaotically. He poked Sgt. Young in the chest.
Ultimately Sgt. Young obtained a pass result on an Approved Screening Device (“ASD”), which led to a demand for a Standard Field Sobriety Test (“SFST”), because Sgt. Young believed that Mr. Henderson’s behavior was sufficiently bizarre that he suspected he had drugs in his system.
At that point Mr. Henderson was taken to a nearby area and given an SFST demand. Because of Mr. Henderson’s behavior other officers arrived on scene. One of them was PC Ng who became the demanding officer for the SFST. Ng read instructions to Mr. Henderson but Mr. Henderson took a defiant posture. PC Ng described Mr. Henderson as being cyclical, one minute he was cooperative, and the next he was not.
Mr. Henderson did not comply with the SFST demand. He was cautioned by PC Ng and was told to comply. Mr. Henderson called the officers “mother fucker.” About 2 minutes later Mr. Henderson tried to walk away from the testing scene but was blocked by two officers. Mr. Henderson then pushed PC Angus with his right hand and PC Ng with his left to get them out of the way. There was then a scuffle and Mr. Henderson was taken to the ground and arrested for assault police. At that time the refusal to comply with the SFST crystallized.
Once he was arrested and handcuffed to the rear he called PC Ng “noodles,” which PC Ng took to be a racial slur. He was heard to say that the police officers are “stupid fucking fools.”
When Mr. Henderson was booked into the police detachment he was uncooperative in the extreme. He would not answer any questions and threw racially charged terms about himself and PC Ng.
The Pre-Sentence Report (“PSR”) discloses that Mr. Henderson had a very difficult upbringing. He was orphaned as a child and spent his first several years in an orphanage in Brazil. He was eventually adopted into a home in Ottawa. His mother Ida is quite supportive of Mr. Henderson and describes him as a wonderful adult.
Mr. Henderson has a youth record. Notably he was found guilty of second degree murder in 1996 with life imprisonment and parole eligibility set at 7 years. In submissions it was agreed that this was a youth offence for which Mr. Henderson was prosecuted as an adult. I was told that Mr. Henderson was released on full parole in 2018. The balance of his youth record covers minor property offences and is of no moment given the substantial gap and nature of those entries.
Mr. Henderson was working gainfully at contracting with a specialty in drywalling before his arrest. He now works building fences.
At the sentencing hearing Mr. Orr called one of Mr. Henderson’s friends, Mr. Liu, who self-described as of Chinese heritage. Mr. Liu employed Mr. Henderson from 2018 to 2021 at his contractor firm. Mr. Liu said that his nickname is ‘noodle’ and that when Mr. Henderson called him that he did not take it as a racial epithet. It is just a nickname.
Helpful as Mr. Liu’s evidence was it does not explain why Mr. Henderson chose to call a stranger, PC Ng, in the same manner. What I am left with is that Mr. Henderson hurled a common racial epithet at a police officer simply who was trying to conduct a standard field sobriety test. His assertion that the investigating officers were “stupid fucking fools” supports my finding that Mr. Henderson was extremely belligerent to officers who displayed professionalism throughout. Mr. Orr suggests that Mr. Henderson was suffering from some form of mental break at the time but there is no other evidence of that. The PSR identifies possible anger management issues, poor problem solving deficits, coping deficits and self-management deficits. None of that rises to the level of mental health concerns.
The Crown says that an appropriate sentence is 90 days of intermittent custody with ancillary orders. Mr. Orr argues for a non-custodial sentence but does not specify any more than that.
I find that the aggravating circumstances in this case are:
i) The manner of driving. Mr. Henderson crashed his car on a highway where cars are travelling at 100 km/hr. He was seen driving well beyond the speed limit after crashing his car. No one was injured by Mr. Henderson’s driving that day but that is only by sheer luck.
ii) Mr. Henderson’s level of belligerence toward the investigating officers is aggravating. This is one of many drinking and driving cases I have heard in recent months which involve overt belligerence and, all too often, the use of racial epithets towards a police officer. Mr. Henderson was in the habit of calling his friend Mr. Liu “noodles.” Be that as it may, PC Ng was a complete stranger to Mr. Henderson and there was no such intimacy which might permit the use of a racial term. What is concerning is that a term which is racial and derogatory is hurled in a situation which has no apparent connection to the police-civilian interaction. PC Ng took it as a racially charged label. Mr. Henderson denied at sentencing being a racist. I accept that but there is no explanation for his words that night. Hurling racial insults at officers making lawful demands under Part VIII.1 of the Criminal Code can be seen as attempting to push back or intimidate the demanding officer and therefore avoid taking a breath test. That is an additional reason to denounce such conduct.
Being arrested is often an emotionally charged situation, and police officers are expected to perform their functions professionally in the face of difficult arrestees. An arrest is not an exercise in civility, but nor can it be taken as licence by the arrestee to hurl racial insults and abusive language at police officers. Sentencing has a denunciatory function and will in this case.
The assault police officer is at the lower end of gravity. It is a push and there was, not surprisingly, no evidence of injury to the officer.
I find that Mr. Henderson’s criminal record is so dated as to not be aggravating. With that said, Mr. Henderson is serving a life sentence and a federal parolee. He is not a first offender and my normal reluctance to incarcerate a first time offender does not apply here. In submissions Mr. Orr asked that I mete out a sentence which would not put Mr. Henderson in a poor light before his inevitable parole board hearing. This sentence must conform with statutory and common law principles. Adjusting a sentence for purposes of a future parole board hearing is not a consideration.
For these reasons the appropriate sentence in this case is:
i) Dangerous Driving: 40 days in jail;
ii) Refuse Breath Sample: 40 days concurrent;
iii) Assault Peace Officer: 40 days concurrent.Mr. Henderson is gainfully employed so he will be permitted to serve his sentence on weekends. He will be taken into custody today and released after processing. He will serve his sentence starting this Friday at 7pm until 6am Monday until it is served.
There will be a one year driving prohibition concurrent on the Refuse Roadside Test and Dangerous Driving. Mr. Henderson’s driving privileges stopped on the day of his conviction on July 23, 2024 because his release was amended to reflect his impending driving prohibition. He therefore has 5.5 months of pre-sentencing driving prohibition, which must be deducted from the statutory driving prohibition, see R. v. Basque, 2023 SCC 18. The net driving prohibition is therefore 6.5 months from this point. When I handed down this sentence in Court I referred to R. v. Wolfe, 2024 SCC 34 as the authority for deducting the pre-sentence driving prohibition from the statutory period, but that is not the correct authority.
There will be a s. 110 order for 5 years, and DNA orders. When Mr. Henderson completes his sentence he will be on probation for 12 months with the following conditions:
- report within 48 hours and thereafter as directed;
- attend for counselling, complete assessments;
- take back on track program;
- no weapons;
- abstain from the consumption of alcohol and illicit substances.
- There is a victim fine surcharge.
Released: January 9, 2025
Signed: Justice David Rose