A judge has ruled he couldn't take a Liberian man's immigration status into account while sentencing him for a violent sexual assault.
Eastman Tamba Kotio got together with a woman on Aug. 20, 2017, in Halifax and they had consensual sex until it "got too rough," Nova Scotia Supreme Court Justice Richard Coughlan said in a written decision released Wednesday.
Both the Crown and Kotio's legal aid lawyer agreed a three-year prison sentence was appropriate, Coughlan said, noting Kotio is an immigrant with permanent residency status in Canada.
“The issue of collateral immigration consequences of the sentence on Mr. Kotio has been raised,” Coughlan said.
Permanent residents of Canada can lose their status and be deported if they’re sentenced to more than six months in custody.
But the judge ruled three years in prison was an appropriate sentence for Kotio.
“Any sentence varied to avoid collateral consequences must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” Coughlan said.
“In this case, both Crown and defence counsel submit a sentence within the appropriate range will not change the consequences of the sentence on Mr. Kotio’s immigration status.”
The Crown doesn’t make the decision about whether Kotio might be deported, said Chris Hansen, who speaks for the Public Prosecution Service.
“He serves his time and whatever happens happens,” Hansen said. “But that’s up to Canada Border Services.”
The agency did not respond on Wednesday but sent a statement on Thursday.
"Given that Mr. Kotio is incarcerated, his removal is not imminent,” said the statement from Canada Border Services. “We will remove the individual as expeditiously as possible, once due process has been completed, as this type of case falls within our priority areas for removal.”
The Immigration and Refugee Board makes the final decision on whether Kotio will be deported, said Lee Cohen, an immigration lawyer who has been consulted on the case.
But an adjudicator has very few options but to issue a deportation order to a person convicted of a serious crime, he said.
“This almost is the kiss of death for this chap to remain in Canada,” Cohen said.
The woman Kotio sexually assaulted, whose name is protected by a publication ban, testified that she had seen Kotio twice in person before they made arrangements to meet in Halifax, where she thought she would spend the night with him. They had consensual oral sex and vaginal intercourse before the situation changed and things got rough.
"It made her uncomfortable and sore. She told Mr. Kotio it hurt. Mr. Kotio was videotaping her with his phone," said Coughlan, who gave his decision orally earlier this month.
The woman didn't consent to the recording.
"She asked Mr. Kotio to delete it," said the judge. "He refused, saying it was for his personal use."
Kotio then tried to sodomize the woman.
"She told Mr. Kotio to stop, it hurt," Coughlan said, noting the woman "tried to move away and was scared."
"Mr. Kotio laughed saying she should not be crying, he had done it with other people before."
The woman went to the bathroom and Kotio followed her, saying he hadn't finished yet.
He leaned her over the bed and resumed having vaginal sex with her, said the judge.
The woman felt violated, Coughlan said.
"She did not consent to the anal sex or the vaginal sex after the penetration of her anus. The pain from the activity lasted a week and a half."
Kotio did not have a prior criminal record.
"A pre-sentence report prepared January 23, 2020, sets out Mr. Kotio has been in a common-law relationship since October 2017," Coughlan said. "He graduated from high school in 2013. He attended Dalhousie University from September to December 2016 and from January 2017 until April 2019 he attended St. Mary’s University. He put his university study on hold because of the charge we are dealing with today."
Kotio tried out for the SMU Huskies football team as a running back in 2017, but didn't make the cut, Coach James Colzie said Wednesday.
"He never even made it past training camp," Colzie said.
