



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruddy, 2021 ONCA 490

DATE: 20210706

DOCKET: C65944

Watt, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Ruddy

Appellant

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 judges 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 appellants guilty
    plea, the Crown suggested a range of 10 to 12 years.

[8]

The sentencing judge held that the appellants
    role as a CBSA offer 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 appellants 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
    counsels] 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 Canadas 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.


