R. v. Nagendran, 2022 NSSC 14

SUPREME COURT OF Nova Scotia Citation: R. v. Nagendran , 2022 NSSC 14 Date: 20220120 Docket: CRH 505889 Registry: Halifax Between: Her Majesty the Queen v. Geevan Nagendran SENTENCE DECISION Judge: The Honourable Justice Jamie Campbell Heard: January 10, 2022, in Halifax, Nova Scotia Counsel: Rick Woodburn and Scott Morrison, for the Crown Hanna Garson, for the Defence of Geevan Nagendran By the Court (Orally): [ 1 ] Geevan Nagendran was found guilty of obstruction of a peace officer in the execution of their duties at the Central Nova Scotia Correctional Facility. The incident took place on December 2, 2019. Mr.

Nagendran is one of thirteen people being sentenced after two trials. The others have all been found guilty of aggravated assault. [ 2 ] As I have said regarding each of the other people who have been sentenced, Mr. Nagendran is being sentenced as an individual and not as a member of a group. Each person must be sentenced having regard to their own circumstances, including the nature of their involvement in the events of December 2, 2019. Mr. Nagendran was not found guilty of aggravated assault. He was found guilty of obstruction. It had not been proven that he was aware that Mr.

Anderson, or anyone for that matter, was being assaulted inside the cell from which correctional officers were being blocked. Remand Time [ 3 ] Mr. Nagendran’s circumstances are extraordinary and somewhat complicated.

Section 129 of the Criminal Code sets the maximum sentence for obstruction at 2 years of imprisonment. Mr. Nagendran has been on remand with respect to these charges since he was arrested on December 19, 2019. He has been on remand for well over 2 years. He has already served more time than any sentence that could legally be imposed. If he is given credit for remand time at the rate of 1.5 days for each day on remand, he has spent substantially more time in jail than any sentence could have required him to serve. [ 4 ] That does not mean that he will walk free when sentence is imposed. Mr.

Nagendran was charged with trafficking opium in June 2017. He was taken into custody. He was convicted in August 2018 and served a 2 year sentence with credit for time on remand. His statutory release date was October 24, 2018. As of that date, he was no longer serving a sentence but was in custody under the provisions of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 . When the incident took place on December 2, 2019, Mr.

Nagendran was in the Central Nova Scotia Correctional Facility in Burnside on an “immigration hold”. [ 5 ] Upon completion of the sentencing in this matter he will not be released but his status will return to being on immigration hold. [ 6 ] Both the Crown and Mr. Nagendran’s counsel agree that the sentence imposed in this case will be satisfied by time served. The Crown is concerned that a lenient sentence will in some way serve as a precedent in dealing with acts of defiance within correctional facilities. Defence counsel is concerned that the sentence imposed will have collateral consequences relating to Mr.

Nagendran’s immigration status. So, one side is worried about what this means for other cases while the other is worried about what it means for other legal matters involving Mr. Nagendran. And the practical result for this case is that Mr. Nagendran has already served his sentence and will remain on an immigration hold.

Immigration Status [ 7 ] Geevan Nagendran is 42 years old. He came from Sri Lanka to Canada in 1993, when he was 13. He has never gone back. His partner, 13-year-old daughter, 11-year-old son, mother, father, and sister reside in Ontario. Mr. Nagendran is a Convention Refugee. He is outside of his country of origin and has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. [ 8 ] He was ordered to be deported in 2004 because of a conviction in relation to possession and distribution of counterfeit money.

He was sentenced to a jail term of 6 months. He was then put on a stay of deportation by the Immigration Appeal Division of the Immigration and Refugee Board. He met the terms and conditions of the stay and the deportation order was lifted. [ 9 ] Then in November 2010 he was reported as inadmissible to Canada for participation in organized criminal activity related to a debit card skimming operation. While there has been no determination of that matter, the rules allow for deportation without a conviction. He was ordered deported on June 5, 2012.

He could not be removed from Canada though because of his status as a Convention Refugee. He could only be removed if a determination was made that he was inadmissible on grounds of serious criminality and constituted in the opinion of the Minister, “a danger to the public in Canada”. [ 10 ] In October 2018 Mr. Nagendran was convicted of trafficking drugs, specifically about 5 kilograms of heroin and two other drugs. He was sentenced to two years in jail.

He had been on remand for those charges since June 2017, so soon came off remand and was in detention on an immigration hold. [ 11 ] In 2019, immigration officials started proceedings against Mr. Nagendran to assess whether he was a danger to the public. That determination is still pending. The assessment of whether Mr.

Nagendran poses a danger to the Canadian public will include consideration of his criminal history, including his convictions for serious offences, documents demonstrating whether his violence has been escalating, whether there are multiple convictions, proof of rehabilitation, and any factor demonstrating the nature and severity of the acts committed – including, his sentence for this offence. [ 12 ] Mr. Nagendran’s counsel in his immigration matters, David Orman, provided an explanation of the impact of sentencing on his client’s ability to remain in Canada. The sentence assigned to Mr.

Nagendran, even if it does not affect the amount of time that he spends in jail, will reflect the gravity of his offence and his moral culpability. In assessing whether a person poses a danger to the Canadian public, the Minister considers custodial sentences. [ 13 ] If Mr. Nagendran is sentenced to 6 months or more that would be considered very seriously as part of the ongoing immigration matters. That period of 6 months can be significant because it is the term of imprisonment that disentitles a permanent resident to an appeal of a deportation order. While that does not apply to Mr.

Nagendran it can form part of the determination of whether he poses a danger to the public. Even a sentence of less than 6 months would make it difficult for Mr. Nagendran to overcome the presumption that he has not been rehabilitated. [ 14 ] Any sentence that Mr. Nagendran receives will be considered in the determination of whether he poses a risk to public safety. A sentence of 6 months or more could have a direct affect on the determination. This is not a situation in which the sentence imposed will have a statutory or predetermined effect on the outcome of the immigration determination.

Collateral Consequences [ 15 ] The Supreme Court of Canada in R. v. Pham , 2013 SCC 15 , addressed the issue of collateral sentencing consequences on immigration matters. The accused was convicted of two drug related offences and sentenced to two years of custody. The sentencing went ahead without knowledge that Mr. Pham as a non-citizen, sentenced to imprisonment of a term of two years or more, would lose the right to appeal any removal order against him. To protect him from these collateral consequences, the sentence as originally ordered needed only to be varied by one day, to become two years less a day.

The varied sentence could account for the collateral consequences and still remain within the range of appropriate sentences. [ 16 ] In that case the Supreme Court of Canada determined that collateral consequences should be considered at sentencing. They may be considered in sentencing as personal circumstances of the offender.

They are not aggravating or mitigating factors, since such factors are related only to the gravity of the offence or to the degree of responsibility of the offender. [ 17 ] The mitigation of consequences like these depends on weighing the collateral negative consequences against the degree of denunciation that is necessary for the offence. The result must still be a sentence that is within the appropriate range. [ 18 ] In Pham a minor amendment to the sentence allowed for an appeal of the removal order. The criminal sentence was not adjusted for the purpose of influencing the outcome of the immigration matter.

The court noted that the flexibility of the sentencing process should not be misused by imposing inappropriate and artificial sentences for the purpose of avoiding collateral consequences. Collateral consequences should not dominate sentencing or “skew the process either in favour of or against deportation” (at para. 16). There is no special range of sentencing where deportation is a risk. [ 19 ] That suggests that the court should not place its finger on the scales of the immigration process.

Sentencing should not be adjusted to allow the judge in the criminal sentencing process to assume de facto jurisdiction over immigration matters. Those immigration consequences may be taken into consideration in determining a sentence within the range of otherwise appropriate sentences. Within that range, if one sentence has significant immigration consequences and another does not, the court may use that factor in setting the sentence. If the sentence remains within the appropriate range the process has not then been dominated by the collateral consequences. [ 20 ] In this case, Mr.

Nagendran faces deportation and removal to Sri Lanka. Whatever sentence is imposed, that may be the result. An independent determination is made in that process. The determination made by the court in a sentencing may be a factor. But the purpose of this sentencing is not to influence that process. [ 21 ] Mr. Nagendran’s sentence should not be reduced outside the range of appropriate sentences for the offence of obstruction,

having regard to the circumstances in which this obstruction took place. But in fixing a sentence the profound consequences to him and tohis family must be considered as well. The principles of sentencing may require or demand the imposition of a sentence that will bringwith it collateral consequences. But if a sentence can be imposed that is within the range of appropriate sentences and does not expose Mr.Nagendran to those consequences which would be far more drastic than the consequences which most other offenders would face, fairnessand restraint demand that judicial discretion be exercised humanely.

Range of Sentences [22] The range of sentences imposed for obstruction takes into account the fact that the maximum penalty is two years ofincarceration. Neither Crown nor Defence counsel could provide any case law in which a sentence greater than 6 months incarceration wasimposed. Obstruction convictions often accompany convictions for other offences. [23] In R. v. Ferris, 2011 SKCA 20, Mr. Ferris and some friends were at a party where drugs and alcohol were consumed. He and hisfriends left the party, and decided to have an unlicensed 15-year-old drive the car because he was the least intoxicated.

He crashed thevehicle and one of the passengers died. Mr. Ferris told the police that he was the driver. Later, Mr. Ferris admitted to lying to policeofficers about being the driver. He was charged with obstruction. [24] The Court of Appeal determined that despite the significant consequences of the actions of the appellant, he likely did notappreciate the significance of his actions at the time. The Court also noted that Mr.

Ferris’ case was unusual, because sentences forobstruction are generally imposed contemporaneously with sentences for the primary offence from which the accused had sought to avoidcriminal liability by obstructing police. They run concurrent with those sentences or form part of a global sentence. The Court of Appealfound the trial judge erred in determining the seriousness of the appellant’s offence by tying it to the traffic accident and its consequences,instead of what Mr. Ferris himself had done. He could not have known of the passenger’s death and that could not be used in assessing thegravity of his conduct.

At the time of the incident, the appellant had a limited criminal record, including impaired driving and assault. TheCourt of Appeal substituted the initial sentence with a Conditional Sentence Order of 8 months. [25] In R. v. Stone, 2015 NLPC 1314 A00869, the accused was convicted of resisting a peace officer who came to his residence toarrest him. After inviting police in, Mr. Stone became aggressive, and made contact with a police officer with one of his arms. Thatcontact provided the grounds for arresting Mr. Stone for assaulting a peace officer. The arrest led to resistance and a struggle. Mr.

Stoneand the officers fell to the floor. One constable’s forehead was cut, and bleeding and he was taken to the hospital. [26] Mr. Stone was 51 years old at the time of sentencing and had a long criminal record of sixteen previous convictions, includingassault, threats, and breaches of undertakings. Mr. Stone was sentenced to thirty days’ imprisonment and 12 months of probation. [27] In R. v. Mawuli, 2011 ABPC 258, Mr. Mawuli was convicted of obstructing justice and breaching a bail condition and sentencedto a conditional discharge with two years of probation.

In reaching this sentence, the Court considered the collateral consequences on Mr.Mawuli’s application for permanent residency. The obstruction charge was prosecuted by indictment and was related to a 911 call duringwhich Mr. Mawuli lied to the 911 operator over the phone and continued to lie to the police when they arrived. Mr. Mawuli was sentencedto a conditional discharge with two years of probation. [28] In R. v. Flor, 2014 ONSC 2422, the appellant appealed his conviction and sentence of 30 days in jail and 12-month term ofprobation involving a single count of obstructing a peace officer. Mr.

Flor was observed to be operating a vehicle in a careless anddangerous manner. He was stopped by the police but refused to open the door or roll down the windows and acted belligerently. Theofficers knew him. They were concerned for their own safety and waited for more units to arrive. Mr. Flor surrendered after a 4-hourpolice stand off. He was sentenced to 15 days in jail. [29] In R. v. Brown, (BCCA), the appellant appealed his sentence of three months consecutive to each other to twocharges of unlawfully obstructing a peace officer. He had a lengthy criminal record.

He was driving and was stopped by a police officerfor a traffic infraction. He was again stopped the next day for another traffic infraction. At both instances, he produced identification foran individual named Peter Johnson. Earlier, a Peter Johnson had called the police to report his wallet stolen. The appellant was chargedwith two counts of obstruction, as well as theft, being unlawfully at large, and being in possession of stolen property. The appeal wasgranted, and Mr.

Brown was resentenced to a period of 3 months on each charge of obstruction, running concurrent to each other. [30] Obstruction of peace officers can range from being a nuisance to a public danger. It depends on the context. It is important tobear in mind that the person is sentenced for the act of obstruction and not for the unforeseen consequences of that obstruction. [31] The lower end of the range involving lying and distraction might result in a noncustodial sentence. The maximum sentence oftwo years should be reserved for the most serious obstruction. Context [32] The context in this case is serious.

It was not proven that Mr. Nagendran knew that a person was being assaulted but he didknow that he was preventing correctional officers from intervening in whatever was happening in the cell. He was part of the effort toexert control over that portion of the facility. That was done not by misleading or lying but by direct physical confrontation. Mr.Nagendran did not assault any correctional officer. There was no overt act of violence. But Mr. Nagendran, like the others, acted in a waythat took advantage of the fact that the correctional officers could not use physical force to move them.

There was a level of intimidationinvolved. Mr. Nagendran was acting as part of a group, propelled partly by impetuosity and partly by the need to be seen as part of thegroup. [33] The fact that this happened inside a jail is a significant factor. Safety within those institutions depends on the enforcement of therule of law. Inmates cannot be permitted to impose their will on each other or on those whose job it is to guard them. Acts of defiance maybe part of prison culture but when that defiance manifests itself by a group of inmates preventing correctional officers from doing theirjobs, that is a serious matter.

It cannot be allowed to be considered as just routine. [34] Mr. Nagendran is not a first-time offender. He was convicted in 1999 of obstruction of a peace officer and in 2000 of failure to

comply with a recognizance. In 2004 and 2005 he was convicted of impaired driving. And in 2004 he was convicted of uttering, using or exporting counterfeit money. For that he was sentenced to 6 months. He was convicted of trafficking drugs in 2018. The prospect of removal from Canada should be of grave concern to Mr. Nagendran and his family. He would be required to go to what is essentially a foreign country and make his way as best he can. But he cannot deny his responsibility.

His involvement in criminal activity has brought him to this. [ 35 ] Sentencing is a subjective process and regard must be had to the circumstances of the offender. Context is always important. Part of the context here is the fact that Mr. Nagendran has been on remand since December 2019. With credit for remand time, he has been in jail for about a year longer than the maximum sentence that could legally be imposed on him. That is part of the context that must be considered in his sentencing. [ 36 ] Sentencing is not done by algorithm. Each factor is not assigned a weight or an amount to be attributed to it.

It is not possible to say what a sentence would have been but for the presence of one factor or one piece of context. While everyone who is sentenced is unique and every offence is unique, Mr. Nagendran’s circumstances are unlikely to be a precedent for anything. His circumstances are extraordinary. He committed this offence while in custody on an immigration hold and had that status converted to remand. He served very substantially more time on remand that he could have been required to serve as a sentence and once sentence is imposed, he will not be released but will remain on an immigration hold.

It is unlikely that such a confluence of circumstances will be repeated. [ 37 ] Having regard to the nature of the offence and Mr. Nagendran’s circumstances a sentence of 5 months’ incarceration will be imposed. In the circumstances that is the sentence that should be formally entered on the record. It has already been served through the period of remand. Campbell, J.