Would-be immigrants to Canada offer to pay for AIDS drugs
By Allison Cross, Canwest News Service
February 27, 2010
For three years, New Yorkers Ricardo Companioni and Andrew Grover have been eyeing Toronto as their new home.
Of the many things about Canada that appeal to the American couple, who are both HIV positive, the freedom to wed and access to universal health care are paramount.
But the pair has not yet been able to call Canada home.
Generally healthy and never hospitalized, the couple are nonetheless expected to have combined prescription drug costs of about $33,500 per year for the next 10 years.
It’s an expense they have promised to pay themselves if they can’t secure employer-based or private drug coverage when in Canada.
However, because there is nothing to stop the couple from enrolling in an Ontario drug program meant to help residents offset particularly high prescription costs, Citizenship and Immigration Canada rejected the couple’s application for permanent residence status.
Companioni and Grover were told they would place an “excessive demand” on the health-care system.
“It wasn’t denied right away. They kept asking us for more and more documents,” said Companioni, a music programmer who applied in the skilled-worker category for immigration.
“Tax returns. All of our assets. They even went so far as to make us sign a letter promising not to use their social services. And we had to get this letter notarized. Even after all that, they said no.”
But at the urging of their lawyer, the couple — who have amassed a half-million dollars in assets — appealed the decision in federal court and won the right to have a new immigration officer examine their case.
The appeal’s argument borrowed from a 2005 ruling by the Supreme Court of Canada on an immigration case, which set a precedent for ensuring immigration officers take into account plans made by applicants on how they will contribute to their, or their dependent’s, social services costs.
The couple’s lawyer, Michael Battista, argued this consideration should also be extended to something such as prescription drug costs.
The HIV & AIDS Legal Clinic in Ontario also formally intervened in the case on behalf of the couple.
Although Citizenship and Immigration then proceeded to file their own appeal, Battista said he’s confident Companioni and Grover will eventually become permanent residents.
“I am very optimistic about it,” he said. “This decision is really part of an evolution of the law with respect to immigration and health costs. It used to be, in my experience, that people with HIV were automatically refused, and, thankfully, we now have a more nuanced approach that actually looks at their capacity to contribute to their health costs.”
Citizenship and Immigration will not discuss specific immigration cases because of privacy concerns.
Canadian legislation doesn’t explicitly deny entry to people with HIV or AIDS, but it does deny applicants who will place “an excessive demand” on health services.
As HIV/AIDS is a costly, long-term illness, it often falls into this category.
Until its ban was lifted in January, the United States considered HIV/AIDS a communicable disease, and denied entrance to immigrants and travellers who tested positive for the virus.
All potential immigrants to Canada must undergo a medical examination, which includes an HIV test — which happens to be when many people discover they have the disease, said John Norquay, a lawyer for the HIV & AIDS Legal Clinic in Ontario.
Exceptions are made for some immigrants, however, often family members sponsored by relatives already residing in Canada.
Sergio Karas, a Toronto immigration lawyer, said accepting immigration applications on the basis of their ability to pay for any aspect of their health care or social services is problematic, particularly because it can’t be policed.
There is always a chance applicants will renege on their promise to pay for health care, Karas said, and once they’re on Canadian soil, there’s nothing the government can do to stop it.
“The basic problem is that unless there are mechanisms in place that can monitor this, whatever promises they make, can turn out to be meaningless,” he said. “And unfortunately, there are no mechanisms to monitor them. Once you receive residency, it becomes unconditional.”
Despite the hurdles and legal bills, Companioni said he hasn’t been discouraged from becoming a Canadian.
“I’d still like it to work out,” he said. “We want to move to Canada.”
© Copyright (c) Canwest News Service
Sunday, February 28, 2010
Saturday, February 27, 2010
Monday, February 22, 2010
MEXICO WILL REQUIRE PASSPORT TO TRAVEL
Mexico’s new passport law takes effect next month
Jared Taylor
2010-02-21 18:16:58
McALLEN — Foreign travelers will have to show a passport when traveling to Mexico’s interior beginning next month.
The new requirement takes effect March 1 and is expected to create few problems, given that all U.S. and Canadian travelers heading to Mexico already need a passport to re-enter their home countries, said Miriam Medel, spokeswoman for the Mexican Consulate in McAllen.
“We are not doing this to hassle Americans or bother them,” she said. “It is to have better order, be more organized and provide better services.”
Travelers destined for Mexico’s border cities, such as Reynosa or Nuevo Progreso, will not need passports to cross.
But travelers flying from Reynosa to Mexico City, or taking a bus to Monterrey, for example, will be required to show their passports to immigration officials, Medel said. When traveling overland, passports will be checked at the interior checkpoints — about 13 miles from the border.
“If you are just going shopping (along the border) or just to the dentist, you don’t need it,” Medel said.
The U.S. State Department began requiring all travelers — including citizens — at land and sea ports to present passports upon arrival at customs in June 2009. Air travelers already were required to present passports and U.S. permanent residents already had to present their permanent resident card upon arrival at U.S. customs.
U.S. or Canadian citizens traveling into Mexico’s interior still need to obtain a tourist card from an international crossing or port of entry to legally travel beyond the border area, Medel said.
Travelers returning to the U.S. or Canada within seven days can get a tourist card at no cost; otherwise a six-month tourist card costs about $20, she said.
Jared Taylor
2010-02-21 18:16:58
McALLEN — Foreign travelers will have to show a passport when traveling to Mexico’s interior beginning next month.
The new requirement takes effect March 1 and is expected to create few problems, given that all U.S. and Canadian travelers heading to Mexico already need a passport to re-enter their home countries, said Miriam Medel, spokeswoman for the Mexican Consulate in McAllen.
“We are not doing this to hassle Americans or bother them,” she said. “It is to have better order, be more organized and provide better services.”
Travelers destined for Mexico’s border cities, such as Reynosa or Nuevo Progreso, will not need passports to cross.
But travelers flying from Reynosa to Mexico City, or taking a bus to Monterrey, for example, will be required to show their passports to immigration officials, Medel said. When traveling overland, passports will be checked at the interior checkpoints — about 13 miles from the border.
“If you are just going shopping (along the border) or just to the dentist, you don’t need it,” Medel said.
The U.S. State Department began requiring all travelers — including citizens — at land and sea ports to present passports upon arrival at customs in June 2009. Air travelers already were required to present passports and U.S. permanent residents already had to present their permanent resident card upon arrival at U.S. customs.
U.S. or Canadian citizens traveling into Mexico’s interior still need to obtain a tourist card from an international crossing or port of entry to legally travel beyond the border area, Medel said.
Travelers returning to the U.S. or Canada within seven days can get a tourist card at no cost; otherwise a six-month tourist card costs about $20, she said.
Sunday, February 21, 2010
FOR THOSE WHO THINK THAT LAWYERS CHARGE TOO MUCH...
Consider the recent case below if you think that "lawyers charge too much". A non-lawyer charged a very large sum in this case, with little apparent justification. In the words of the court, "The costs are plainly exorbitant and out of line" and "The end result was "nil"." Draw your own conclusions from the language of the decision.
Apart from the specific facts of this case, there is an obvious lesson for clients seeking legal counsel: hire competent, knowledgeable licensed lawyers who specialize in immigration law, with a solid track record, and who will represent clients to the best of their ability, without making promises or raising unrealistic expectations. Of course, good legal representation costs money, but unfortunately, many times people seek the assistance of individuals or organizations that tell them what they wish to hear, rather than providing a realistic assessment, and understanding the many limitations that exist in what legal representatives can or should do. Do not expect miracles, be realistic.
One further matter to note: lawyers do not normally engage in finding employers for potential foreign workers, as it is outside the area of legal representation, and in many provinces, employment recruiters are regulated. In response to abuses by unlicensed "recruiters", new legislation in Ontario prohibits charging fees to foreign workers for finding jobs, as normally those costs are borne by employers.
Aspiring foreign workers should understand that finding a job is a separate matter from obtaining a visa or Work Permit, and should strive to find their own employment prospects before initiating a visa application. Beware of those who may offer "packages" that include both finding an employer and obtaining a Work Permit, and keep those matters separate, unless the employer undertakes to hire legal counsel to obtain the Work Permit, something that many reputable employers often do when hiring foreign workers. Alternatively, some employers offer to reimburse or share in the cost of hiring immigration lawyers to pursue Work Permits. Remember that , when applying for a Work Permit, the employer making the job offer is the driving force behind the application.
Rai v. Alliance (A.L.) Canada Inc.
Between
Gurpreet Rai, Plaintiff,
and
Alliance (A.L.) Canada Inc., Defendant
[2010] O.J. No. 603
Court File No. SC-08-02922-00
Ontario Superior Court of Justice
Small Claims Court - Brampton, Ontario
M. Klein Deputy J.
Heard: July 2 and September 10, 2009.
Judgment: February 16, 2010.
(11 paras.)
Judgment
M. KLEIN DEPUTY J.:--
The Facts
1 In June of 2006, the plaintiff retained the services of the defendant corporation. The corporation provides consultation in the areas of Canadian immigration and citizenship and secures work permits for foreign employees within various industries. Mr. Anoo Lal, President and chief consultant of the corporation gave evidence on behalf of the defendant corporation. The plaintiff, as agent for his brother-in-law, Bikram Singh Sidhu, resident, at all material times, in Debai, retained the defendant to secure a temporary work permit for Mr. Sidu in Canada.
2 Basically, the process involves (as in this case) the consultant finding an employer(s) in Canada willing to provide fulltime employment to the foreign worker (applicant). Once an offer is made, it is submitted to Service Canada (Human Resources and Skills Development Canada) with supporting documentation in order to obtain a Labour Market Opinion (LMO). Service Canada works in conjunction with Citizenship and Immigration Canada to ensure that the employment of foreign workers has an overall neutral or beneficial effect to the Canadian labour market. Generally it entails that the Canadian employer has made a significant effort to hire a Canadian for the position of employment, that efforts were unsuccessful and that the foreign worker is qualified for the position. Once validated, the matter is referred to the Canadian Visa office in the overseas country. The Canadian Visa office will then interview the applicant. There is an English proficiency test that must be passed by the applicant. I note that although a work permit is a temporary resident Visa and does not lead directly to a Canadian permanent resident Visa, there is no bar to an application for permanent resident status while residing in Canada as a temporary resident with a work permit. Once the LMO is granted, the Canadian employer can extend a temporary job offer to the foreign skilled worker. The employer must send a copy of the positive LMO along with a detailed job offer letter to the foreign skilled worker.
3 The parties entered into a written agreement, dated June 2, 2006 (Exhibit 1). The plaintiff was quoted an entire fee of $12,200.00 in US funds. The plaintiff paid a total of $9,350.00; funds which were borrowed by Mr. Bikram.
4 The plaintiff put forward a number of complaints with respect to the services rendered, including never being able to make contact with the defendant, delay (some two years), lack of concern or attention to his case, receiving no updates on the process and poor (no) results. The long and short of it, the plaintiff contends that the defendant was in breach of contract and looks to this court for return of his funds.
5 The defendant, on the other hand, states that he did everything possible to carry out his duties to the plaintiff and in fact, that much of the delay was caused by the plaintiff in not providing documentation in a timely matter. Additionally, the English test was not completed by Mr. Bikram. Mr. Lal explained that there was much ground work involved in his work, especially in securing potential employers, by conducting numerous interviews. Mr. Lal claimed that he spent at least 35 hours of work on the plaintiff's application.
Discussion
6 In reaching this decision, I have relied not only on the parties' pleadings and evidence at trial, but extensive written submissions submitted by the parties for which I thank counsel.
7 Re Solicitors, [1972] 3 O.R. 433-440 (SCJ) sets out factors that have been held through the years to constitute the framework within which a solicitor's fee should be assessed:
1. The time expended by the solicitor.
2. The legal complexity of the matters dealt with.
3. The degree of responsibility assumed by the solicitor.
4. The monetary value of the matters in issue.
5. The importance of the matters to the client.
6. The degree of skill and competence demonstrated by the solicitor.
7. The results achieved.
8.The ability of the client to pay.
Taxing Officer McBride states in Re Solicitors:
I emphasize that I have not set down these factors in any sense in order of importance. In my view most of these eight factors should be considered in every case. However, it is clear to me that in a particular case one or other of the factors might reasonably be given more prominence than the others. For instance, if one were advising a client in respect of a claim against him of several millions of dollars, it might be that the total time involved was only a few hours. It might also be that the claim was largely valid and that the solicitor's advice was, of necessity, to pay all or most of the claim, i.e., the result achieved could not be considered to be all that one might have hoped for. Surely, the facts that little time was expended and the result achieved was not obviously excellent should not operate to unduly restrict the fee properly chargeable for those services. It might well be that a proper consideration of factors 3, 4, 5 and 6 as listed above should, in the case referred to, outweigh substantially the effect of factors 1 and 7. All I am attempting to make clear is that the first factor listed above, time expended, is not, in most cases, the overriding factor, nor even the most important. On the other hand, there are comparatively few cases where the time factor can be completely ignored. I propose to consider each of the eight factors already listed as it relates to the solicitors' services in the present case.
8 Although I realize that Mr. Lal is not a lawyer or a paralegal, the services he and other immigration consultants provide, though not defined per se as "legal services," have every likeness to legal services and have a tremendous effect on persons. I therefore choose to look at these factors as applied in the case before this court.
1. The time expended
Mr. Lal states that he spent at least 35 hours on this case. From the evidence adduced, I find this hard to believe. I even noticed in court that the size of Mr. Lal's file was rather thin. More concerning is the lack of time dockets and/or notes on the work done. I am not convinced that 35 hours was ever spent on this file. Perhaps around ten hours as an upper limit (if that).
2. The legal complexity of the matters dealt with
This was a straight forward application - very standard. There was nothing complex about this case.
3. The degree of responsibility assumed
Mr. Lal assumed on account of his client all the responsibility that an immigration consultant would normally assume in agreeing to act for and advising with respect to a temporary work permit. There was nothing unusual or extraordinary about this case.
4. The monetary value of the matters in issue
Not applicable in this case.
5. The importance of the matters to the client
This matter was obviously of considerable importance to the plaintiff. Having said that, I am concerned and accept the evidence of the plaintiff, that he was not afforded the consideration that he ought to have. Mr. Lal owed it to his client to keep him informed of matters and weighing the evidence in my observing the plaintiff and Mr. Lal in my courtroom, coupled with the lack of notes on the part of Mr. Lal, I do not think he fulfilled this duty to his client.
6. The degree of skill and competence demonstrated
I see nothing from the evidence that convinces me that the defendant comes close to deserving $12,200.00 in US funds; the quoted fee.
7. The results achieved
There was none.
8. The ability of the client to pay
Neither Mr. Bikram nor the plaintiff were people of means. The evidence was that the funds had to be borrowed.
9 Immigration consultants "escaped" Paralegal Licensing by the Law Society of Upper Canada. They are, nevertheless, governed by the Canadian Society of Immigration Consultants (CSIC), a not-for-profit, self-regulatory body of which Mr. Lal is a member. There are standards that must be met and in my mind, these standards of care fell short:
(a) The work done was nothing out of the ordinary and I questioned, as the evidence unfolded, whether Mr. Lal truly went out of his way in seeking potential employers for the plaintiff. Quite frankly, I find that Mr. Lal simply collected names of employers for other clients; the plaintiff happening to be one of them.
(b) The end result was "nil," other than a bonus of $9,350.00 to the defendant.
(c) It's easy to blame the client, as did Mr. Lal, alleging documents were not provided on time. Why were there no letters to the client demanding these?
(d) The costs are plainly exorbitant and out of line. Not only were there no time records, there were no itemized or even non-itemized accounts rendered to show what work was done. It is has been said: "There are those who bill what the market can bear." In this case, the plaintiff did not bear it and issued his claim.
(e) Although it appeared from his evidence that Mr. Lal "knows his stuff," I cannot, in light of what I have seen and heard, see how he applied his special knowledge this in this case.
(f) There is no reason that this matter should have taken two years and then with no results.
10 In short, I find that the defendant breached his own contract and has not met the standards of providing fair and complete services to the plaintiff.
Order
11 I am ordering the defendant to pay to the plaintiff the sum of $10,000.00. This is all inclusive, that is, including:
(a) repayment of the $9,350.00 laid out by the plaintiff,
(b) prejudgment interest and
(c) costs.
M. KLEIN DEPUTY J.
Apart from the specific facts of this case, there is an obvious lesson for clients seeking legal counsel: hire competent, knowledgeable licensed lawyers who specialize in immigration law, with a solid track record, and who will represent clients to the best of their ability, without making promises or raising unrealistic expectations. Of course, good legal representation costs money, but unfortunately, many times people seek the assistance of individuals or organizations that tell them what they wish to hear, rather than providing a realistic assessment, and understanding the many limitations that exist in what legal representatives can or should do. Do not expect miracles, be realistic.
One further matter to note: lawyers do not normally engage in finding employers for potential foreign workers, as it is outside the area of legal representation, and in many provinces, employment recruiters are regulated. In response to abuses by unlicensed "recruiters", new legislation in Ontario prohibits charging fees to foreign workers for finding jobs, as normally those costs are borne by employers.
Aspiring foreign workers should understand that finding a job is a separate matter from obtaining a visa or Work Permit, and should strive to find their own employment prospects before initiating a visa application. Beware of those who may offer "packages" that include both finding an employer and obtaining a Work Permit, and keep those matters separate, unless the employer undertakes to hire legal counsel to obtain the Work Permit, something that many reputable employers often do when hiring foreign workers. Alternatively, some employers offer to reimburse or share in the cost of hiring immigration lawyers to pursue Work Permits. Remember that , when applying for a Work Permit, the employer making the job offer is the driving force behind the application.
Rai v. Alliance (A.L.) Canada Inc.
Between
Gurpreet Rai, Plaintiff,
and
Alliance (A.L.) Canada Inc., Defendant
[2010] O.J. No. 603
Court File No. SC-08-02922-00
Ontario Superior Court of Justice
Small Claims Court - Brampton, Ontario
M. Klein Deputy J.
Heard: July 2 and September 10, 2009.
Judgment: February 16, 2010.
(11 paras.)
Judgment
M. KLEIN DEPUTY J.:--
The Facts
1 In June of 2006, the plaintiff retained the services of the defendant corporation. The corporation provides consultation in the areas of Canadian immigration and citizenship and secures work permits for foreign employees within various industries. Mr. Anoo Lal, President and chief consultant of the corporation gave evidence on behalf of the defendant corporation. The plaintiff, as agent for his brother-in-law, Bikram Singh Sidhu, resident, at all material times, in Debai, retained the defendant to secure a temporary work permit for Mr. Sidu in Canada.
2 Basically, the process involves (as in this case) the consultant finding an employer(s) in Canada willing to provide fulltime employment to the foreign worker (applicant). Once an offer is made, it is submitted to Service Canada (Human Resources and Skills Development Canada) with supporting documentation in order to obtain a Labour Market Opinion (LMO). Service Canada works in conjunction with Citizenship and Immigration Canada to ensure that the employment of foreign workers has an overall neutral or beneficial effect to the Canadian labour market. Generally it entails that the Canadian employer has made a significant effort to hire a Canadian for the position of employment, that efforts were unsuccessful and that the foreign worker is qualified for the position. Once validated, the matter is referred to the Canadian Visa office in the overseas country. The Canadian Visa office will then interview the applicant. There is an English proficiency test that must be passed by the applicant. I note that although a work permit is a temporary resident Visa and does not lead directly to a Canadian permanent resident Visa, there is no bar to an application for permanent resident status while residing in Canada as a temporary resident with a work permit. Once the LMO is granted, the Canadian employer can extend a temporary job offer to the foreign skilled worker. The employer must send a copy of the positive LMO along with a detailed job offer letter to the foreign skilled worker.
3 The parties entered into a written agreement, dated June 2, 2006 (Exhibit 1). The plaintiff was quoted an entire fee of $12,200.00 in US funds. The plaintiff paid a total of $9,350.00; funds which were borrowed by Mr. Bikram.
4 The plaintiff put forward a number of complaints with respect to the services rendered, including never being able to make contact with the defendant, delay (some two years), lack of concern or attention to his case, receiving no updates on the process and poor (no) results. The long and short of it, the plaintiff contends that the defendant was in breach of contract and looks to this court for return of his funds.
5 The defendant, on the other hand, states that he did everything possible to carry out his duties to the plaintiff and in fact, that much of the delay was caused by the plaintiff in not providing documentation in a timely matter. Additionally, the English test was not completed by Mr. Bikram. Mr. Lal explained that there was much ground work involved in his work, especially in securing potential employers, by conducting numerous interviews. Mr. Lal claimed that he spent at least 35 hours of work on the plaintiff's application.
Discussion
6 In reaching this decision, I have relied not only on the parties' pleadings and evidence at trial, but extensive written submissions submitted by the parties for which I thank counsel.
7 Re Solicitors, [1972] 3 O.R. 433-440 (SCJ) sets out factors that have been held through the years to constitute the framework within which a solicitor's fee should be assessed:
1. The time expended by the solicitor.
2. The legal complexity of the matters dealt with.
3. The degree of responsibility assumed by the solicitor.
4. The monetary value of the matters in issue.
5. The importance of the matters to the client.
6. The degree of skill and competence demonstrated by the solicitor.
7. The results achieved.
8.The ability of the client to pay.
Taxing Officer McBride states in Re Solicitors:
I emphasize that I have not set down these factors in any sense in order of importance. In my view most of these eight factors should be considered in every case. However, it is clear to me that in a particular case one or other of the factors might reasonably be given more prominence than the others. For instance, if one were advising a client in respect of a claim against him of several millions of dollars, it might be that the total time involved was only a few hours. It might also be that the claim was largely valid and that the solicitor's advice was, of necessity, to pay all or most of the claim, i.e., the result achieved could not be considered to be all that one might have hoped for. Surely, the facts that little time was expended and the result achieved was not obviously excellent should not operate to unduly restrict the fee properly chargeable for those services. It might well be that a proper consideration of factors 3, 4, 5 and 6 as listed above should, in the case referred to, outweigh substantially the effect of factors 1 and 7. All I am attempting to make clear is that the first factor listed above, time expended, is not, in most cases, the overriding factor, nor even the most important. On the other hand, there are comparatively few cases where the time factor can be completely ignored. I propose to consider each of the eight factors already listed as it relates to the solicitors' services in the present case.
8 Although I realize that Mr. Lal is not a lawyer or a paralegal, the services he and other immigration consultants provide, though not defined per se as "legal services," have every likeness to legal services and have a tremendous effect on persons. I therefore choose to look at these factors as applied in the case before this court.
1. The time expended
Mr. Lal states that he spent at least 35 hours on this case. From the evidence adduced, I find this hard to believe. I even noticed in court that the size of Mr. Lal's file was rather thin. More concerning is the lack of time dockets and/or notes on the work done. I am not convinced that 35 hours was ever spent on this file. Perhaps around ten hours as an upper limit (if that).
2. The legal complexity of the matters dealt with
This was a straight forward application - very standard. There was nothing complex about this case.
3. The degree of responsibility assumed
Mr. Lal assumed on account of his client all the responsibility that an immigration consultant would normally assume in agreeing to act for and advising with respect to a temporary work permit. There was nothing unusual or extraordinary about this case.
4. The monetary value of the matters in issue
Not applicable in this case.
5. The importance of the matters to the client
This matter was obviously of considerable importance to the plaintiff. Having said that, I am concerned and accept the evidence of the plaintiff, that he was not afforded the consideration that he ought to have. Mr. Lal owed it to his client to keep him informed of matters and weighing the evidence in my observing the plaintiff and Mr. Lal in my courtroom, coupled with the lack of notes on the part of Mr. Lal, I do not think he fulfilled this duty to his client.
6. The degree of skill and competence demonstrated
I see nothing from the evidence that convinces me that the defendant comes close to deserving $12,200.00 in US funds; the quoted fee.
7. The results achieved
There was none.
8. The ability of the client to pay
Neither Mr. Bikram nor the plaintiff were people of means. The evidence was that the funds had to be borrowed.
9 Immigration consultants "escaped" Paralegal Licensing by the Law Society of Upper Canada. They are, nevertheless, governed by the Canadian Society of Immigration Consultants (CSIC), a not-for-profit, self-regulatory body of which Mr. Lal is a member. There are standards that must be met and in my mind, these standards of care fell short:
(a) The work done was nothing out of the ordinary and I questioned, as the evidence unfolded, whether Mr. Lal truly went out of his way in seeking potential employers for the plaintiff. Quite frankly, I find that Mr. Lal simply collected names of employers for other clients; the plaintiff happening to be one of them.
(b) The end result was "nil," other than a bonus of $9,350.00 to the defendant.
(c) It's easy to blame the client, as did Mr. Lal, alleging documents were not provided on time. Why were there no letters to the client demanding these?
(d) The costs are plainly exorbitant and out of line. Not only were there no time records, there were no itemized or even non-itemized accounts rendered to show what work was done. It is has been said: "There are those who bill what the market can bear." In this case, the plaintiff did not bear it and issued his claim.
(e) Although it appeared from his evidence that Mr. Lal "knows his stuff," I cannot, in light of what I have seen and heard, see how he applied his special knowledge this in this case.
(f) There is no reason that this matter should have taken two years and then with no results.
10 In short, I find that the defendant breached his own contract and has not met the standards of providing fair and complete services to the plaintiff.
Order
11 I am ordering the defendant to pay to the plaintiff the sum of $10,000.00. This is all inclusive, that is, including:
(a) repayment of the $9,350.00 laid out by the plaintiff,
(b) prejudgment interest and
(c) costs.
M. KLEIN DEPUTY J.
Four Olympic spectators seeking refugee status in Canada
Invariably, this nonsense always happens every time Canada hosts any kind of major event.
The Canadian Press: Four Olympic spectators seeking refugee status in Canada
The Canadian Press: Four Olympic spectators seeking refugee status in Canada
Friday, February 19, 2010
COURT IMPOSSES STIFF SENTENCE ON HUMAN SMUGGLERS
This is a rare case, just released, on human smuggling under the Immigration and Refugee Protection Act. Noteworthy is the fact that the court did not accept most of the alleged "mitigating" circumstances which included past hardships, but instead took into account the aggravating factors of prior criminal convictions in both Canad and the United States.
R. v. Alzehrani
BetweenHer Majesty the Queen, andMaitham Alzehrani and Fran Gashaj
[2009] O.J. No. 5797
No. C50042 Ontario Superior Court of JusticeToronto, OntarioA.M. Molloy J.February 5, 2009.
(71 paras.)
REASONS FOR SENTENCE
A.M. MOLLOY J.:--
A. Particulars of the Offence
1 Both Mr. Alzehrani and Mr. Gashaj were convicted by a jury of several counts of conspiracy to assist persons to cross the border between Canada and the United States, knowing those persons did not have valid documents to do so. This type of activity is often referred to as "human smuggling" and I will use that term throughout these reasons. With respect to three of the incidents of human smuggling, both Mr. Alzehrani and Mr. Gashaj were involved together along with others in the conspiracy. Those are counts 2, 17 and 21. On each of those counts, arrangements were made to recruit drivers in Detroit, who were then paid to drive their cars across the border between Detroit and Windsor with one or more illegal aliens hidden in the trunk. Due to wiretap intercepts that were in place, the police were alerted to the plot and all three cars were intercepted at the border. On one occasion an Asian man and woman were in the trunk. On each of the other occasions one Asian male was in the trunk. All were without the necessary documents to enter Canada.
2 On another occasion, (count 11), Mr. Alzehrani conspired with others to bring a person named Issa across the border from Detroit to Windsor. When the driver of the car was stopped by border guards and directed to a secondary inspection centre, the driver sped up and ran the border, evading police and delivering Issa to Windsor, where he was picked up by Mr. Alzehrani. Issa was later arrested by immigration authorities on a separate matter and it was learned he was without proper documentation.
3 Similarly, Mr. Alzehrani was part of a conspiracy under count 23, with others, (not including Mr. Gashaj) to smuggle two illegal aliens from Walpole Island in Canada into the United States, hidden in the back of a car driven by a woman Mr. Alzehrani had recruited and paid for this task.
4 The most serious of the charges in which Mr. Alzehrani was implicated is count four. On that occasion, he conspired with others (not including Mr. Gashaj) to bring an Albanian woman and her 23 year old son across the Detroit River by jet ski into Canada. Tragically, as the group was coming across the river, the son's jet ski capsized. Nobody went to his rescue and he drowned. Mr. Alzehrani was not on the river with the smugglers. His role was in planning the crossing and retaining the individuals who accompanied the mother and son on this journey.
5 Likewise, in the other five counts in which Mr. Alzehrani was involved, he was not the one who actually crossed the border with the illegal aliens. His role was as an organizer. He received the individuals to be transported illegally from various sources, recruited and supervised the actual smugglers and arranged for them to be paid.
6 With these six offences, Mr. Alzehrani was involved in smuggling or attempting to smuggle nine individuals across the border.
7 In addition to the three counts also involving Mr. Alzehrani, (counts 2, 17 and 21) Mr. Gashaj was convicted on one further count, count 19, of conspiring with others (not including Mr. Alzehrani) to transport eight illegal aliens originally from China across the border from Canada into the United States hidden in the back of a large truck. The truck was ostensibly delivering a load of plastics to a plastics recycling plant in the United States. The truck with the eight individuals locked inside was left in the parking lot of the recycling plant and somebody was supposed to release the people in the back from there. However, that person failed to carry out his role, and the eight migrants were left in the truck without food or water for 24 hours. They were only released when an employee heard pounding from inside the truck and opened it to find them there.
8 Mr. Gashaj's role was as an organizer. He obtained these illegal migrants from a source and made arrangements for them to be transported. His role on the three occasions on which he was convicted along with Mr. Alzehrani was similar in nature - an organizer and a supplier of the persons to be transported. The total number of persons that Mr. Gashaj was involved in smuggling was 12.
B. Statutory Provisions Relevant to Penalty
9 The provision which both accused contravened is s. 117 of the Immigration and Refugee Protection Act, which provides:
" (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act."
10 The penalty provisions are at ss. 117(2) and (3) which provide as follows:
(2)
A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable
(a) on conviction on indictment
(i)
for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or
(ii)
for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and
(b)
on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.
(3)
A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.
11 Significantly stiffer penalties are provided for a person who organizes the coming into Canada by means of abduction, fraud, deception or the use of threat or force or coercion or if a person who is involved in disembarking persons at sea to assist their illegal entry into Canada. (See ss. 118 and 119 of IRPA). The maximum penalties for those offences are a $1,000,000 fine or life imprisonment, or both.
12 In this case, I am satisfied that s. 117(2)(a) applies, and not s. 117(3). The total number of persons transported by Mr. Alzehrani was under 10. Mr. Gashaj was involved in smuggling 12 people, but the largest number of people at any one time was 10. Section 117(2), when read in isolation, could conceivably be interpreted as being cumulative. However, I think the more logical interpretation is that it refers to the number of persons smuggled with respect to each individual offence. This interpretation is reinforced by the language used in s. 117(3) which refers to "a group of 10 persons or more", and not merely to "10 persons or more". In my view, the increased penalty in s. 117(3) is directed to the more dangerous situation of smuggling large groups of people at a time, rather than individuals or smaller groups.
13 Accordingly, since this matter proceeded by way of indictment, both Mr. Alzehrani and Mr. Gashaj are facing maximum penalties on each count of a $500,000 fine or imprisonment for 10 years, or both.
14 These provisions were enacted in 2002 when substantial amendments were made to Canada's immigration legislation. Under the legislation as it stood prior to 2002, the maximum penalty these accused would have been facing would have been 5 years. That maximum has now been doubled, and all of these offences were committed under the new regime. In my view, the amendment to the legislation is an indication of Parliament's concerns about the serious nature of human smuggling. The sentences imposed under the old regime must be looked at with caution for that reason.
15 The legislation stipulates circumstances that are to be taken as aggravating factors as follows at s. 121:
(1)
The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether
(a)
bodily harm or death occurred during the commission of the offence;
(b)
the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;
(c)
the commission of the offence was for profit, whether or not any profit was realized; and
(d)
a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence
(2)
For the purposes of paragraph (1)(b), "criminal organization" means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence.
C. The Position of the Parties
16 The Crown seeks the same sentence for both accused, the equivalent of six to eight years in prison. Counsel for Mr. Alzehrani, Mr. Tsimiklis, submits that an appropriate sentence for Mr. Alzehrani would be time served. Some of the time he has spent in custody has been allocated to another offence. He has 9 months of dead time left, for which he would get the usual 2:1 credit of 18 months. In addition, he has spent from February 14, 2007 until now at the Toronto West Detention Centre and the Don Jail rather than in a penitentiary, where the conditions would have been better and programs would have been available. Mr. Tsimiklis submits a further credit should be allowed to compensate for that lost benefit, which he submits should be on a 1:1 basis for a total credit of 42 months.
17 Mr. Girvin, counsel for Mr. Gashaj, submits a sentence in the range of two to three years would be appropriate for Mr. Gashaj, which would result in a sentence of time served.
D. Aggravating Factors
18 With respect to Mr. Alzehrani, I agree with the submission of the Crown that all four aggravating factors listed in s. 121 of IRPA are present. With respect to Mr. Gashaj, his offences feature three of the four specified aggravating factors but not bodily harm or death.
(i)
Bodily Harm or Death
19 With respect to Mr. Gashaj, none of the offences in which he was involved resulted in any actual bodily harm or death. However, the incident involving the eight men abandoned in the back of a locked truck could very easily have resulted in tragedy. It was sheer luck that bodily harm or death was averted in that situation.
20 For Mr. Alzehrani, the death of the 23 year old Albanian young man who drowned after the jet ski capsized during the smuggling activity is a serious aggravating factor. I recognize Mr. Alzehrani was not himself on the river and that he was not personally responsible for abandoning the drowning man. However, he was the one who organized this venture and hired the individuals involved. It was most likely the illegal nature of the activity that caused the perpetrators to abandon the drowning young man. In that sense, the illegal nature of the activity is directly related to the death. That said, I recognize that it was an accident and that the smuggling activity per se was not factors listed in s. 121 of IRPA are present. With respect to Mr. Gashaj, his offences feature three of the four specified aggravating factors but not bodily harm or death.
(i)
Bodily Harm or Death
21 With respect to Mr. Gashaj, none of the offences in which he was involved resulted in any actual bodily harm or death. However, the incident involving the eight men abandoned in the back of a locked truck could very easily have resulted in tragedy. It was sheer luck that bodily harm or death was averted in that situation.
22 For Mr. Alzehrani, the death of the 23 year old Albanian young man who drowned after the jet ski capsized during the smuggling activity is a serious aggravating factor. I recognize Mr. Alzehrani was not himself on the river and that he was not personally responsible for abandoning the drowning man. However, he was the one who organized this venture and hired the individuals involved. It was most likely the illegal nature of the activity that caused the perpetrators to abandon the drowning young man. In that sense, the illegal nature of the activity is directly related to the death. That said, I recognize that it was an accident and that the smuggling activity per se was not as inherently dangerous as some other human smuggling schemes.
23 The conduct of the smugglers who were responsible for bringing the mother and son across the river was particularly egregious when they discovered that the son who drowned had in his pockets the money that was to be used to pay them. In particular, their conduct towards the mother, who had just lost her child, was shockingly brutal. They were completely unconcerned about the death of her son and concerned only about how their fee would be paid. The taped telephone conversations in which they can be heard threatening the grieving mother are heartbreaking. It must be noted, however, that Mr. Alzehrani was not involved in threatening the mother and he did try to calm the others down.
24 Also, Mr. Alzehrani has expressed great remorse about the death of this young man, and based not only on his assertion at the time of the sentencing, but on his conduct and tone in the telephone conversations intercepted at the time of the events, I accept that this is genuine remorse.
(ii)
Association with a Criminal Organization
25 Both Mr. Alzehrani and Mr. Gashaj were engaged in human smuggling as a business proposition. They had a number of contacts above their level who passed on people who were looking for a way to cross the border illegally. In turn, Mr. Alzehrani and Mr. Gashaj had a group of people below them that they used to do the physical work of actually transporting people across the border. Various different methods of transportation were used and various different workers were used to do the actual transport. These were not isolated incidents of smuggling. There was a pattern of criminal activity. The criminal activity was planned and organized and carried out by a number of persons acting in concert. This type of activity clearly falls within the definition of "criminal organization" set out in s. 121(2) of IRPA.
26 On the other hand, this was not the kind of criminal organization that is a permanent association of criminals with an established hierarchy and code of behaviour. It was much less structured and less rigidly controlled than many other criminal organizations engaged in this kind of activity.
(iii)
Profit Motive
27 Clearly the activity in question was driven simply by profit. It is not clear how much these offenders earned for each deal. It seemed to vary considerably and specific numbers are not clear. However, it would seem that a substantial portion, if not all, of the income of both offenders was obtained through their criminal activity. This is particularly so for Mr. Alzehrani.
(iv)
Humiliating or Degrading Treatment
28 This category is also met, but not to a substantial degree. The very nature of human smuggling entails some degree of degrading treatment. For example, it is degrading to transport people across the border in the trunk of the car, but the nature of smuggling is that it is surreptitious; it is hardly possible to smuggle people across the border openly. There is no evidence of individuals being assaulted or verbally abused or forced to endure humiliating or degrading treatment with the possible exception of the eight Chinese men in the back of the plastics truck. However, there is considerable evidence from the wiretap intercepts of people being treated as commodities and described in racist and dehumanizing terms.
29 Again, this is an aggravating factor that was present to a certain degree, but not to as extreme an extent as is often seen in human smuggling cases. There is, for example, no indication that any of the people being smuggled across the border were destined for lives of essential slavery or the sex trade in either of the two countries.
E. Prior Criminal Records
30 Both offenders have prior criminal records, which is an aggravating factor.
31 Mr. Alzehrani was convicted of domestic battery in Illinois in May 1997 and was sentenced to two years probation. In April, 1998 he was convicted of sexual assault in Illinois, sentenced to six years, and served two and a half years in custody. Mr. Alzehrani entered Canada in 2003 and made a refugee claim. His claim was suspended on December 21, 2004 when he was charged with a sexual assault in Windsor, Ontario. The offences in this case were committed in 2005 and 2006 while he was on bail with respect to that sexual assault charge, a seriously aggravating factor. He has since been convicted on that sexual assault charge and was sentenced on February 14, 2007 to 78 months in addition to six months of pretrial custody.
32 Mr. Gashaj has a criminal record from 2001 for alien smuggling in Texas, for which he was sentenced to two months in custody.
F. Mitigating Factors/Personal Circumstances
(i)
Fran Gashaj
33 Fran Gashaj was born in Albania in 1966, one of nine siblings. His family experienced difficulty during the years of Communist rule in that country. He married in 1989, and in 1990 he escaped from Albania to Yugoslavia with his wife and two other family members. Eventually the entire extended family, parents and siblings, found their way to the United States. Mr. Gashaj apparently operated a successful restaurant business in Michigan for a number of years prior to his arrest for human smuggling in Texas in 2001. In 2004, as a result of his criminal convictions, the United States deported him back to Albania. By then his wife was a U.S. citizen and the couple had four children, all born in the United States. Mr. Gashaj stayed in Albania only for a matter of weeks before illegally entering Canada using his United States Green Card as identification. He applied for refugee status in Canada. The offences now before the court were committed while the refugee application was pending.
34 Mr. Gashaj' wife and children remained in Detroit as they had no status in Canada and the children could not attend school here. Mr. Gashaj lived in Windsor so that they were close by and his wife and children visited him there.
35 After his arrest on these charges, Mr. Gashaj was released on bail. He reportedly did well on bail, maintaining employment and doing voluntary work with his church. He reports having given up drinking, but there is no indication that drinking was in any way a factor in his criminal behaviour. Mr. Gashaj has no legal status in Canada and there is a deportation order against him pending the outcome of these charges.
36 He appears to be close to his wife and children. The author of the presentence report refers to his "loving and supportive family". However, it is very unlikely his wife was unaware of what was going on. Mr. Gashaj often arranged for her to drop off payments for others engaged in his criminal activity.
37 I do not agree that Mr. Gashaj's desire to be reunited with his family is a factor supporting a shorter sentence in this case than would otherwise be the case. His wife and children are in the United States. He cannot go there because of his criminal record. The United States has already deported him to Albania. Further, he is also subject to a Canadian deportation order that would send him back to Albania upon the completion of these proceedings and any sentence for these offences. He will only be reunited with his family if they move to Albania with him, which is not what he is contemplating. I do not see how anything about this situation warrants any reduction in his sentence.
(ii)
Mr. Alzehrani
38 Maithan Alzehrani was born in Baghdad, Iraq in 1972 and is now nearly 37. There is little that can be said by way of mitigation. His former girlfriend, Ms. Aziz, described him to the author of the presentence report as being generous and helpful to people, and she said that his friends tried to create trouble between them because they knew she would not allow him to do "anything wrong". Ms. Aziz, however, was actively involved on more than one occasion in assisting Mr. Alzehrani in his criminal activity. It is certainly not the case that she would not allow him to do anything wrong.
39 Keyra Cokley, his current girlfriend and mother of his three year old child, told the author of the presentence report that he was "really nice" and gets taken advantage of by people he helps because of his kindness. She said she needs him back in the United States and would not allow him to go back to "whatever he was doing". Again, this is ridiculous. Mr. Alzehrani cannot go back to the United States because of his criminal record. Further, Keyra Cokley knows full well what he was doing. She was one of the people driving over the border at his behest with illegal aliens in the trunk of her car.
40 Although Mr. Alzehrani has little or no insight into the serious nature of these offences, I do accept, as I already mentioned, that he feels genuine remorse for the death of the young man on the jet ski.
G. Parity in Sentencing
41 As a general principle, it is important to have some parity in sentencing so that similar offenders who commit similar offence in similar circumstances receive similar sentences. However, the case law in this area does not identify a clear range for sentencing. Many of the cases are under the prior legislation. The fact that Parliament doubled the maximum range shows a clear legislative intention that these types of offences should be treated more seriously and attract more significant penalties. Cases under the old regime are of some, but only limited, guidance.
42 Of some assistance is the decision in R. v. Kola Bajraktari, Ontario Court of Justice, May 18, 2006, a decision of B. Brown, J., unreported. Mr. Bajraktari was involved in the same criminal group as Mr. Alzehrani and Mr. Gashaj and was doing the same type of activity during the same period of time. He was given an effective sentence of 2 1/2 years but after a guilty plea and based upon a joint submission. Clearly, Mr. Alzehrani and Mr. Gashaj are deserving of a more significant sentence than that.
43 In R. v. Damani, [2003] O.J. No. 5493, the offender was involved in smuggling from India and Pakistan into the United States via Canada. His role was similar to that of Mr. Alzehrani and Mr. Gashaj transporting migrants to smugglers who actually took them across the border. It is not completely clear from the case, but it does not appear that he had as much responsibility for the organization of the actual smuggling as Mr. Alzehrani and Mr. Gashaj did. Nor did he appear to have a supervisory role. He was involved in eight incidents with a total of 61 migrants, which is somewhat worse than Mr. Alzehrani and Mr. Gashaj. However, he was 63 years old, with a history of volunteer work for 15 years and no prior criminal record. He had health problems that were exacerbated by incarceration. He pleaded guilty and was sentenced to one year in addition to a credit of three years served, for an effective sentence of four years. There were more mitigating factors for Mr. Damani than either Mr. Gashaj or Mr. Alzehrani, but the number of migrants he was responsible for having smuggled was significantly more.
44 In R. v. Khalid Qummar, (Court File No. CR-03-007200-00, March 14, 2005, Ont. S.C.J., unreported), Van Melle J. imposed what was effectively a 22 month sentence for participation in a smuggling operation transporting illegal migrants from Windsor to Detroit. Mr. Qummar was involved to some extent in the planning, but his role was not much more than a courier. He was 38 years old, had no criminal record, and had a history of involvement in the community and with counselling young people. He expressed remorse for his actions. He had more mitigating factors and a lesser degree of involvement than either Mr. Gashaj or Mr. Alzehrani, warranting a higher sentence for both of these accused.
45 R. v. Tewana, [2005] O.J. No. 4676 (O.C.J.) involved an offender whose role in human smuggling was quite similar to Mr. Alzehrani and Mr. Gashaj. However, his activity related to approximately 120 people being smuggled over a period of time. He was 40 years old and had no criminal record. He pled guilty during the course of the preliminary and was sentenced to three years.
46 I have taken into account a number of other authorities cited by the Crown. I do not find those authorities to be as helpful to the situation before me either because they were prior to the new legislation coming into force or because the nature of the criminal smuggling in that case was significantly more serious and dangerous to the people involved.
H. Analysis
47 In determining an appropriate sentence in this case, it is relevant to consider the objectives of sentencing and guiding principles, as well as the factors I have already reviewed.
48 I do not see rehabilitation as being a significant factor in this case. Neither of the offenders shows any insight into the serious nature of their crimes, both minimizing both the crimes and their own involvement.
49 Specific deterrence is also not a significant factor. Mr. Gashaj will be deported to Albania after serving his sentence. The length of his sentence is unlikely to play a role in whether he reoffends. Mr. Alzehrani has expressed his willingness to be deported to Iraq, but it is unclear whether Iraq is a country to which he can be deported. In any event, he does not appear to be deterred by the prospect of prison time.
50 In my view, the most significant factors influencing sentence in this case are general deterrence and denunciation. The implications of human smuggling are profound and far-reaching. The integrity of Canada's borders are compromised when criminals such as these smuggle illegal aliens across. There are no checks on the type of people entering, making it possible for criminals and terrorists to move back and forth between these countries at will. In this particular case, there is no evidence that the individuals being transported were anything other than people who were desperate to get across the border but not entitled to do so. There is no evidence that any of them were criminals. However, these smugglers were completely unconcerned about who they were transporting. They were simply in it for the money. The risk to society generally of this kind of criminal activity are great. It is important for national security and public safety to send a message that those who would compromise our international borders in this manner will be dealt with severely. Illegal smuggling of human beings cannot be permitted to become a profitable business operation in Canada.
51 There are various aggravating factors involved for both these offenders and very little that can be said by way of mitigation.
52 Taking all of these factors into account, in my view, the appropriate sentence for Mr. Alzehrani, before adjustment for time served, is four-and-a-half years. I see Mr. Gashaj's situation as not quite as bad. There are more mitigating factors in his situation and his criminal record is less serious than Mr. Alzehrani. His sentence prior to adjustment for time served is four years.
53 Mr. Gashaj was held on these charges alone from his arrest on February 14, 2006 until March 10, 2006, a total of 24 days. Thereafter, he was released on a recognizance with respect to these charges but held in custody on an immigration hold until July 28, 2007, a further 16 months, 18 days. Finally, upon his conviction by the jury, I revoked his parole, and he has been in custody from October 24, 2008 until today, February 5, 2009, a total of 104 days.
54 Mr. Gashaj is entitled to the usual 2:1 credit for the first 24 days and also the last 104 days, for a total of 144 days. The Crown argues that there should be no credit for the 16 1/2 months in the middle, as Mr. Gashaj was detained only on an immigration hold. Defence counsel argues that Mr. Gashaj should get full credit because he would not have been placed on the immigration hold merely because of his immigration status. At the immigration bail hearing, evidence was led with respect to these smuggling offences. In my view, the critical point is that Mr. Gashaj was first held on these criminal charges, but then released. Although the existence of these charges was a factor in his subsequent detention, that detention was imposed under the IRPA, not under the Criminal Code, and flowed from the fact that he had entered Canada illegally and had no status to remain here. Accordingly, I agree with the Crown that he should not receive any credit for those 16 months.
55 Accordingly, the total credit against Mr. Gashaj four-year sentence will be 9 1/2 months, so the actual sentence will be three years in addition to time served. That sentence is imposed on each count concurrent.
56 Mr. Alzehrani has been in custody since his arrest on February 14, 2006. However, some of that dead time has already been taken into account at the time of his sentencing for his most recent sexual assault conviction, such that there are now only 9 months of time to be allocated to these charges. At a 2:1 credit, that would be a total credit of 18 months.
57 Since February 14, 2007, when he was sentenced on the sexual assault, Mr. Alzehrani has been serving his time on that offence. However, rather than serving that time in a penitentiary, he has been at the Toronto Don Jail where conditions are worse and no programming is available. His counsel submits that he should get some credit for that time because of where he is serving it.
58 I do not agree. I do not see the cases cited by counsel as supporting that proposition. (See R. v. Mitchell, (Ont.C.A.) September 26, 2003, unreported; R. v. Warren, (Ont. C.A.), November 25, 1999, unreported). Mr. Alzehrani is serving his time in Toronto because he committed these offences while on bail for the sexual assault offences. He needed to be in Toronto for his trial on these charges. While I recognize that he has not had access to the type of programming he would receive in a federal penitentiary, this is not, in my view, a basis for reducing the time he should serve on these charges. To do so would be to treat the fact that he committed these further offences while on bail for the sexual assault charge as being mitigating rather than aggravating. As I have already indicated, the fact that he was on bail while committing these offences is a seriously aggravating factor.
59 Accordingly, the only credit to which he is entitled on these charges is 18 months, so his sentence is three years plus time served. Does that work out right?
60 MR. TSIMIKLIS: Originally you had indicated four-and-a-half years and 18 months.
61 THE COURT: That's three years plus time served.
62 Did I have that right on Mr. Gashaj?
63 MR. GIRVIN: Yes, Your Honour.
64 THE COURT: Any other issues?
65 MR. TSIMIKLIS: No, Your Honour.
66 MR. CONNOLLY: So the bottom line for Mr. Gashaj was three years?
67 THE COURT: Plus time served.
68 MR. CONNOLLY: Right.
69 THE COURT: And Mr. Alzehrani, also three years plus time served.
70 MR. CONNOLLY: My request is that Mr. Alzehrani's time be consecutive to the time he's now serving.
71 THE COURT: Oh, yes. And with respect to both of them, those sentences are with respect to each count, all concurrent, but Mr. Alzehrani is consecutive to the time he has served.
R. v. Alzehrani
BetweenHer Majesty the Queen, andMaitham Alzehrani and Fran Gashaj
[2009] O.J. No. 5797
No. C50042 Ontario Superior Court of JusticeToronto, OntarioA.M. Molloy J.February 5, 2009.
(71 paras.)
REASONS FOR SENTENCE
A.M. MOLLOY J.:--
A. Particulars of the Offence
1 Both Mr. Alzehrani and Mr. Gashaj were convicted by a jury of several counts of conspiracy to assist persons to cross the border between Canada and the United States, knowing those persons did not have valid documents to do so. This type of activity is often referred to as "human smuggling" and I will use that term throughout these reasons. With respect to three of the incidents of human smuggling, both Mr. Alzehrani and Mr. Gashaj were involved together along with others in the conspiracy. Those are counts 2, 17 and 21. On each of those counts, arrangements were made to recruit drivers in Detroit, who were then paid to drive their cars across the border between Detroit and Windsor with one or more illegal aliens hidden in the trunk. Due to wiretap intercepts that were in place, the police were alerted to the plot and all three cars were intercepted at the border. On one occasion an Asian man and woman were in the trunk. On each of the other occasions one Asian male was in the trunk. All were without the necessary documents to enter Canada.
2 On another occasion, (count 11), Mr. Alzehrani conspired with others to bring a person named Issa across the border from Detroit to Windsor. When the driver of the car was stopped by border guards and directed to a secondary inspection centre, the driver sped up and ran the border, evading police and delivering Issa to Windsor, where he was picked up by Mr. Alzehrani. Issa was later arrested by immigration authorities on a separate matter and it was learned he was without proper documentation.
3 Similarly, Mr. Alzehrani was part of a conspiracy under count 23, with others, (not including Mr. Gashaj) to smuggle two illegal aliens from Walpole Island in Canada into the United States, hidden in the back of a car driven by a woman Mr. Alzehrani had recruited and paid for this task.
4 The most serious of the charges in which Mr. Alzehrani was implicated is count four. On that occasion, he conspired with others (not including Mr. Gashaj) to bring an Albanian woman and her 23 year old son across the Detroit River by jet ski into Canada. Tragically, as the group was coming across the river, the son's jet ski capsized. Nobody went to his rescue and he drowned. Mr. Alzehrani was not on the river with the smugglers. His role was in planning the crossing and retaining the individuals who accompanied the mother and son on this journey.
5 Likewise, in the other five counts in which Mr. Alzehrani was involved, he was not the one who actually crossed the border with the illegal aliens. His role was as an organizer. He received the individuals to be transported illegally from various sources, recruited and supervised the actual smugglers and arranged for them to be paid.
6 With these six offences, Mr. Alzehrani was involved in smuggling or attempting to smuggle nine individuals across the border.
7 In addition to the three counts also involving Mr. Alzehrani, (counts 2, 17 and 21) Mr. Gashaj was convicted on one further count, count 19, of conspiring with others (not including Mr. Alzehrani) to transport eight illegal aliens originally from China across the border from Canada into the United States hidden in the back of a large truck. The truck was ostensibly delivering a load of plastics to a plastics recycling plant in the United States. The truck with the eight individuals locked inside was left in the parking lot of the recycling plant and somebody was supposed to release the people in the back from there. However, that person failed to carry out his role, and the eight migrants were left in the truck without food or water for 24 hours. They were only released when an employee heard pounding from inside the truck and opened it to find them there.
8 Mr. Gashaj's role was as an organizer. He obtained these illegal migrants from a source and made arrangements for them to be transported. His role on the three occasions on which he was convicted along with Mr. Alzehrani was similar in nature - an organizer and a supplier of the persons to be transported. The total number of persons that Mr. Gashaj was involved in smuggling was 12.
B. Statutory Provisions Relevant to Penalty
9 The provision which both accused contravened is s. 117 of the Immigration and Refugee Protection Act, which provides:
" (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act."
10 The penalty provisions are at ss. 117(2) and (3) which provide as follows:
(2)
A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable
(a) on conviction on indictment
(i)
for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or
(ii)
for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and
(b)
on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.
(3)
A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.
11 Significantly stiffer penalties are provided for a person who organizes the coming into Canada by means of abduction, fraud, deception or the use of threat or force or coercion or if a person who is involved in disembarking persons at sea to assist their illegal entry into Canada. (See ss. 118 and 119 of IRPA). The maximum penalties for those offences are a $1,000,000 fine or life imprisonment, or both.
12 In this case, I am satisfied that s. 117(2)(a) applies, and not s. 117(3). The total number of persons transported by Mr. Alzehrani was under 10. Mr. Gashaj was involved in smuggling 12 people, but the largest number of people at any one time was 10. Section 117(2), when read in isolation, could conceivably be interpreted as being cumulative. However, I think the more logical interpretation is that it refers to the number of persons smuggled with respect to each individual offence. This interpretation is reinforced by the language used in s. 117(3) which refers to "a group of 10 persons or more", and not merely to "10 persons or more". In my view, the increased penalty in s. 117(3) is directed to the more dangerous situation of smuggling large groups of people at a time, rather than individuals or smaller groups.
13 Accordingly, since this matter proceeded by way of indictment, both Mr. Alzehrani and Mr. Gashaj are facing maximum penalties on each count of a $500,000 fine or imprisonment for 10 years, or both.
14 These provisions were enacted in 2002 when substantial amendments were made to Canada's immigration legislation. Under the legislation as it stood prior to 2002, the maximum penalty these accused would have been facing would have been 5 years. That maximum has now been doubled, and all of these offences were committed under the new regime. In my view, the amendment to the legislation is an indication of Parliament's concerns about the serious nature of human smuggling. The sentences imposed under the old regime must be looked at with caution for that reason.
15 The legislation stipulates circumstances that are to be taken as aggravating factors as follows at s. 121:
(1)
The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether
(a)
bodily harm or death occurred during the commission of the offence;
(b)
the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;
(c)
the commission of the offence was for profit, whether or not any profit was realized; and
(d)
a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence
(2)
For the purposes of paragraph (1)(b), "criminal organization" means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence.
C. The Position of the Parties
16 The Crown seeks the same sentence for both accused, the equivalent of six to eight years in prison. Counsel for Mr. Alzehrani, Mr. Tsimiklis, submits that an appropriate sentence for Mr. Alzehrani would be time served. Some of the time he has spent in custody has been allocated to another offence. He has 9 months of dead time left, for which he would get the usual 2:1 credit of 18 months. In addition, he has spent from February 14, 2007 until now at the Toronto West Detention Centre and the Don Jail rather than in a penitentiary, where the conditions would have been better and programs would have been available. Mr. Tsimiklis submits a further credit should be allowed to compensate for that lost benefit, which he submits should be on a 1:1 basis for a total credit of 42 months.
17 Mr. Girvin, counsel for Mr. Gashaj, submits a sentence in the range of two to three years would be appropriate for Mr. Gashaj, which would result in a sentence of time served.
D. Aggravating Factors
18 With respect to Mr. Alzehrani, I agree with the submission of the Crown that all four aggravating factors listed in s. 121 of IRPA are present. With respect to Mr. Gashaj, his offences feature three of the four specified aggravating factors but not bodily harm or death.
(i)
Bodily Harm or Death
19 With respect to Mr. Gashaj, none of the offences in which he was involved resulted in any actual bodily harm or death. However, the incident involving the eight men abandoned in the back of a locked truck could very easily have resulted in tragedy. It was sheer luck that bodily harm or death was averted in that situation.
20 For Mr. Alzehrani, the death of the 23 year old Albanian young man who drowned after the jet ski capsized during the smuggling activity is a serious aggravating factor. I recognize Mr. Alzehrani was not himself on the river and that he was not personally responsible for abandoning the drowning man. However, he was the one who organized this venture and hired the individuals involved. It was most likely the illegal nature of the activity that caused the perpetrators to abandon the drowning young man. In that sense, the illegal nature of the activity is directly related to the death. That said, I recognize that it was an accident and that the smuggling activity per se was not factors listed in s. 121 of IRPA are present. With respect to Mr. Gashaj, his offences feature three of the four specified aggravating factors but not bodily harm or death.
(i)
Bodily Harm or Death
21 With respect to Mr. Gashaj, none of the offences in which he was involved resulted in any actual bodily harm or death. However, the incident involving the eight men abandoned in the back of a locked truck could very easily have resulted in tragedy. It was sheer luck that bodily harm or death was averted in that situation.
22 For Mr. Alzehrani, the death of the 23 year old Albanian young man who drowned after the jet ski capsized during the smuggling activity is a serious aggravating factor. I recognize Mr. Alzehrani was not himself on the river and that he was not personally responsible for abandoning the drowning man. However, he was the one who organized this venture and hired the individuals involved. It was most likely the illegal nature of the activity that caused the perpetrators to abandon the drowning young man. In that sense, the illegal nature of the activity is directly related to the death. That said, I recognize that it was an accident and that the smuggling activity per se was not as inherently dangerous as some other human smuggling schemes.
23 The conduct of the smugglers who were responsible for bringing the mother and son across the river was particularly egregious when they discovered that the son who drowned had in his pockets the money that was to be used to pay them. In particular, their conduct towards the mother, who had just lost her child, was shockingly brutal. They were completely unconcerned about the death of her son and concerned only about how their fee would be paid. The taped telephone conversations in which they can be heard threatening the grieving mother are heartbreaking. It must be noted, however, that Mr. Alzehrani was not involved in threatening the mother and he did try to calm the others down.
24 Also, Mr. Alzehrani has expressed great remorse about the death of this young man, and based not only on his assertion at the time of the sentencing, but on his conduct and tone in the telephone conversations intercepted at the time of the events, I accept that this is genuine remorse.
(ii)
Association with a Criminal Organization
25 Both Mr. Alzehrani and Mr. Gashaj were engaged in human smuggling as a business proposition. They had a number of contacts above their level who passed on people who were looking for a way to cross the border illegally. In turn, Mr. Alzehrani and Mr. Gashaj had a group of people below them that they used to do the physical work of actually transporting people across the border. Various different methods of transportation were used and various different workers were used to do the actual transport. These were not isolated incidents of smuggling. There was a pattern of criminal activity. The criminal activity was planned and organized and carried out by a number of persons acting in concert. This type of activity clearly falls within the definition of "criminal organization" set out in s. 121(2) of IRPA.
26 On the other hand, this was not the kind of criminal organization that is a permanent association of criminals with an established hierarchy and code of behaviour. It was much less structured and less rigidly controlled than many other criminal organizations engaged in this kind of activity.
(iii)
Profit Motive
27 Clearly the activity in question was driven simply by profit. It is not clear how much these offenders earned for each deal. It seemed to vary considerably and specific numbers are not clear. However, it would seem that a substantial portion, if not all, of the income of both offenders was obtained through their criminal activity. This is particularly so for Mr. Alzehrani.
(iv)
Humiliating or Degrading Treatment
28 This category is also met, but not to a substantial degree. The very nature of human smuggling entails some degree of degrading treatment. For example, it is degrading to transport people across the border in the trunk of the car, but the nature of smuggling is that it is surreptitious; it is hardly possible to smuggle people across the border openly. There is no evidence of individuals being assaulted or verbally abused or forced to endure humiliating or degrading treatment with the possible exception of the eight Chinese men in the back of the plastics truck. However, there is considerable evidence from the wiretap intercepts of people being treated as commodities and described in racist and dehumanizing terms.
29 Again, this is an aggravating factor that was present to a certain degree, but not to as extreme an extent as is often seen in human smuggling cases. There is, for example, no indication that any of the people being smuggled across the border were destined for lives of essential slavery or the sex trade in either of the two countries.
E. Prior Criminal Records
30 Both offenders have prior criminal records, which is an aggravating factor.
31 Mr. Alzehrani was convicted of domestic battery in Illinois in May 1997 and was sentenced to two years probation. In April, 1998 he was convicted of sexual assault in Illinois, sentenced to six years, and served two and a half years in custody. Mr. Alzehrani entered Canada in 2003 and made a refugee claim. His claim was suspended on December 21, 2004 when he was charged with a sexual assault in Windsor, Ontario. The offences in this case were committed in 2005 and 2006 while he was on bail with respect to that sexual assault charge, a seriously aggravating factor. He has since been convicted on that sexual assault charge and was sentenced on February 14, 2007 to 78 months in addition to six months of pretrial custody.
32 Mr. Gashaj has a criminal record from 2001 for alien smuggling in Texas, for which he was sentenced to two months in custody.
F. Mitigating Factors/Personal Circumstances
(i)
Fran Gashaj
33 Fran Gashaj was born in Albania in 1966, one of nine siblings. His family experienced difficulty during the years of Communist rule in that country. He married in 1989, and in 1990 he escaped from Albania to Yugoslavia with his wife and two other family members. Eventually the entire extended family, parents and siblings, found their way to the United States. Mr. Gashaj apparently operated a successful restaurant business in Michigan for a number of years prior to his arrest for human smuggling in Texas in 2001. In 2004, as a result of his criminal convictions, the United States deported him back to Albania. By then his wife was a U.S. citizen and the couple had four children, all born in the United States. Mr. Gashaj stayed in Albania only for a matter of weeks before illegally entering Canada using his United States Green Card as identification. He applied for refugee status in Canada. The offences now before the court were committed while the refugee application was pending.
34 Mr. Gashaj' wife and children remained in Detroit as they had no status in Canada and the children could not attend school here. Mr. Gashaj lived in Windsor so that they were close by and his wife and children visited him there.
35 After his arrest on these charges, Mr. Gashaj was released on bail. He reportedly did well on bail, maintaining employment and doing voluntary work with his church. He reports having given up drinking, but there is no indication that drinking was in any way a factor in his criminal behaviour. Mr. Gashaj has no legal status in Canada and there is a deportation order against him pending the outcome of these charges.
36 He appears to be close to his wife and children. The author of the presentence report refers to his "loving and supportive family". However, it is very unlikely his wife was unaware of what was going on. Mr. Gashaj often arranged for her to drop off payments for others engaged in his criminal activity.
37 I do not agree that Mr. Gashaj's desire to be reunited with his family is a factor supporting a shorter sentence in this case than would otherwise be the case. His wife and children are in the United States. He cannot go there because of his criminal record. The United States has already deported him to Albania. Further, he is also subject to a Canadian deportation order that would send him back to Albania upon the completion of these proceedings and any sentence for these offences. He will only be reunited with his family if they move to Albania with him, which is not what he is contemplating. I do not see how anything about this situation warrants any reduction in his sentence.
(ii)
Mr. Alzehrani
38 Maithan Alzehrani was born in Baghdad, Iraq in 1972 and is now nearly 37. There is little that can be said by way of mitigation. His former girlfriend, Ms. Aziz, described him to the author of the presentence report as being generous and helpful to people, and she said that his friends tried to create trouble between them because they knew she would not allow him to do "anything wrong". Ms. Aziz, however, was actively involved on more than one occasion in assisting Mr. Alzehrani in his criminal activity. It is certainly not the case that she would not allow him to do anything wrong.
39 Keyra Cokley, his current girlfriend and mother of his three year old child, told the author of the presentence report that he was "really nice" and gets taken advantage of by people he helps because of his kindness. She said she needs him back in the United States and would not allow him to go back to "whatever he was doing". Again, this is ridiculous. Mr. Alzehrani cannot go back to the United States because of his criminal record. Further, Keyra Cokley knows full well what he was doing. She was one of the people driving over the border at his behest with illegal aliens in the trunk of her car.
40 Although Mr. Alzehrani has little or no insight into the serious nature of these offences, I do accept, as I already mentioned, that he feels genuine remorse for the death of the young man on the jet ski.
G. Parity in Sentencing
41 As a general principle, it is important to have some parity in sentencing so that similar offenders who commit similar offence in similar circumstances receive similar sentences. However, the case law in this area does not identify a clear range for sentencing. Many of the cases are under the prior legislation. The fact that Parliament doubled the maximum range shows a clear legislative intention that these types of offences should be treated more seriously and attract more significant penalties. Cases under the old regime are of some, but only limited, guidance.
42 Of some assistance is the decision in R. v. Kola Bajraktari, Ontario Court of Justice, May 18, 2006, a decision of B. Brown, J., unreported. Mr. Bajraktari was involved in the same criminal group as Mr. Alzehrani and Mr. Gashaj and was doing the same type of activity during the same period of time. He was given an effective sentence of 2 1/2 years but after a guilty plea and based upon a joint submission. Clearly, Mr. Alzehrani and Mr. Gashaj are deserving of a more significant sentence than that.
43 In R. v. Damani, [2003] O.J. No. 5493, the offender was involved in smuggling from India and Pakistan into the United States via Canada. His role was similar to that of Mr. Alzehrani and Mr. Gashaj transporting migrants to smugglers who actually took them across the border. It is not completely clear from the case, but it does not appear that he had as much responsibility for the organization of the actual smuggling as Mr. Alzehrani and Mr. Gashaj did. Nor did he appear to have a supervisory role. He was involved in eight incidents with a total of 61 migrants, which is somewhat worse than Mr. Alzehrani and Mr. Gashaj. However, he was 63 years old, with a history of volunteer work for 15 years and no prior criminal record. He had health problems that were exacerbated by incarceration. He pleaded guilty and was sentenced to one year in addition to a credit of three years served, for an effective sentence of four years. There were more mitigating factors for Mr. Damani than either Mr. Gashaj or Mr. Alzehrani, but the number of migrants he was responsible for having smuggled was significantly more.
44 In R. v. Khalid Qummar, (Court File No. CR-03-007200-00, March 14, 2005, Ont. S.C.J., unreported), Van Melle J. imposed what was effectively a 22 month sentence for participation in a smuggling operation transporting illegal migrants from Windsor to Detroit. Mr. Qummar was involved to some extent in the planning, but his role was not much more than a courier. He was 38 years old, had no criminal record, and had a history of involvement in the community and with counselling young people. He expressed remorse for his actions. He had more mitigating factors and a lesser degree of involvement than either Mr. Gashaj or Mr. Alzehrani, warranting a higher sentence for both of these accused.
45 R. v. Tewana, [2005] O.J. No. 4676 (O.C.J.) involved an offender whose role in human smuggling was quite similar to Mr. Alzehrani and Mr. Gashaj. However, his activity related to approximately 120 people being smuggled over a period of time. He was 40 years old and had no criminal record. He pled guilty during the course of the preliminary and was sentenced to three years.
46 I have taken into account a number of other authorities cited by the Crown. I do not find those authorities to be as helpful to the situation before me either because they were prior to the new legislation coming into force or because the nature of the criminal smuggling in that case was significantly more serious and dangerous to the people involved.
H. Analysis
47 In determining an appropriate sentence in this case, it is relevant to consider the objectives of sentencing and guiding principles, as well as the factors I have already reviewed.
48 I do not see rehabilitation as being a significant factor in this case. Neither of the offenders shows any insight into the serious nature of their crimes, both minimizing both the crimes and their own involvement.
49 Specific deterrence is also not a significant factor. Mr. Gashaj will be deported to Albania after serving his sentence. The length of his sentence is unlikely to play a role in whether he reoffends. Mr. Alzehrani has expressed his willingness to be deported to Iraq, but it is unclear whether Iraq is a country to which he can be deported. In any event, he does not appear to be deterred by the prospect of prison time.
50 In my view, the most significant factors influencing sentence in this case are general deterrence and denunciation. The implications of human smuggling are profound and far-reaching. The integrity of Canada's borders are compromised when criminals such as these smuggle illegal aliens across. There are no checks on the type of people entering, making it possible for criminals and terrorists to move back and forth between these countries at will. In this particular case, there is no evidence that the individuals being transported were anything other than people who were desperate to get across the border but not entitled to do so. There is no evidence that any of them were criminals. However, these smugglers were completely unconcerned about who they were transporting. They were simply in it for the money. The risk to society generally of this kind of criminal activity are great. It is important for national security and public safety to send a message that those who would compromise our international borders in this manner will be dealt with severely. Illegal smuggling of human beings cannot be permitted to become a profitable business operation in Canada.
51 There are various aggravating factors involved for both these offenders and very little that can be said by way of mitigation.
52 Taking all of these factors into account, in my view, the appropriate sentence for Mr. Alzehrani, before adjustment for time served, is four-and-a-half years. I see Mr. Gashaj's situation as not quite as bad. There are more mitigating factors in his situation and his criminal record is less serious than Mr. Alzehrani. His sentence prior to adjustment for time served is four years.
53 Mr. Gashaj was held on these charges alone from his arrest on February 14, 2006 until March 10, 2006, a total of 24 days. Thereafter, he was released on a recognizance with respect to these charges but held in custody on an immigration hold until July 28, 2007, a further 16 months, 18 days. Finally, upon his conviction by the jury, I revoked his parole, and he has been in custody from October 24, 2008 until today, February 5, 2009, a total of 104 days.
54 Mr. Gashaj is entitled to the usual 2:1 credit for the first 24 days and also the last 104 days, for a total of 144 days. The Crown argues that there should be no credit for the 16 1/2 months in the middle, as Mr. Gashaj was detained only on an immigration hold. Defence counsel argues that Mr. Gashaj should get full credit because he would not have been placed on the immigration hold merely because of his immigration status. At the immigration bail hearing, evidence was led with respect to these smuggling offences. In my view, the critical point is that Mr. Gashaj was first held on these criminal charges, but then released. Although the existence of these charges was a factor in his subsequent detention, that detention was imposed under the IRPA, not under the Criminal Code, and flowed from the fact that he had entered Canada illegally and had no status to remain here. Accordingly, I agree with the Crown that he should not receive any credit for those 16 months.
55 Accordingly, the total credit against Mr. Gashaj four-year sentence will be 9 1/2 months, so the actual sentence will be three years in addition to time served. That sentence is imposed on each count concurrent.
56 Mr. Alzehrani has been in custody since his arrest on February 14, 2006. However, some of that dead time has already been taken into account at the time of his sentencing for his most recent sexual assault conviction, such that there are now only 9 months of time to be allocated to these charges. At a 2:1 credit, that would be a total credit of 18 months.
57 Since February 14, 2007, when he was sentenced on the sexual assault, Mr. Alzehrani has been serving his time on that offence. However, rather than serving that time in a penitentiary, he has been at the Toronto Don Jail where conditions are worse and no programming is available. His counsel submits that he should get some credit for that time because of where he is serving it.
58 I do not agree. I do not see the cases cited by counsel as supporting that proposition. (See R. v. Mitchell, (Ont.C.A.) September 26, 2003, unreported; R. v. Warren, (Ont. C.A.), November 25, 1999, unreported). Mr. Alzehrani is serving his time in Toronto because he committed these offences while on bail for the sexual assault offences. He needed to be in Toronto for his trial on these charges. While I recognize that he has not had access to the type of programming he would receive in a federal penitentiary, this is not, in my view, a basis for reducing the time he should serve on these charges. To do so would be to treat the fact that he committed these further offences while on bail for the sexual assault charge as being mitigating rather than aggravating. As I have already indicated, the fact that he was on bail while committing these offences is a seriously aggravating factor.
59 Accordingly, the only credit to which he is entitled on these charges is 18 months, so his sentence is three years plus time served. Does that work out right?
60 MR. TSIMIKLIS: Originally you had indicated four-and-a-half years and 18 months.
61 THE COURT: That's three years plus time served.
62 Did I have that right on Mr. Gashaj?
63 MR. GIRVIN: Yes, Your Honour.
64 THE COURT: Any other issues?
65 MR. TSIMIKLIS: No, Your Honour.
66 MR. CONNOLLY: So the bottom line for Mr. Gashaj was three years?
67 THE COURT: Plus time served.
68 MR. CONNOLLY: Right.
69 THE COURT: And Mr. Alzehrani, also three years plus time served.
70 MR. CONNOLLY: My request is that Mr. Alzehrani's time be consecutive to the time he's now serving.
71 THE COURT: Oh, yes. And with respect to both of them, those sentences are with respect to each count, all concurrent, but Mr. Alzehrani is consecutive to the time he has served.
QUEBEC CRACKS DOWN ON UNSCRUPULOUS IMMIGRATION CONSULTANTS
The Canadian Press: Province moves to crack down on unethical immigration consultants
Province moves to crack down on unethical immigration consultants
By Bernard Barbeau (CP) – 17 hours ago
MONTREAL — Quebec has announced a crackdown on shady immigration consultants while similar nationwide action is expected from the federal government.
The announcement vaults Quebec to the forefront of the battle against businesses that mislead newcomers into thinking they can be fast-tracked into Canada, or encourage them to lie on their applications.
The federal government has repeatedly promised it will take similar steps but has not provided a firm indication yet about when that might happen.
In the meantime, it's applauding Thursday's announcement from Quebec.
To have a right to practice in the province, consultants will need to pass a test, demonstrate a knowledge of French, have a track record free of malpractice, and register with the Canadian Society of Immigration Consultants.
Quebec will also create a public registry listing recognized consultants and those whose right to practice has been suspended.
The provincial government says it could also impose fines of up to $50,000 - or up to $100,000 for a repeat offender - and revoke someone's right to practice.
"We're sensitive to the fact that there are vulnerable people falling victim to the schemes of some ill-intentioned people," Immigration Minister Yolande James said.
"We understand that there are consultants who do their job very well. But for consultants who have poor practices, or others, the message is clear: You must follow Quebec's guidelines or shut your doors."
The provincial government said only lawyers, notaries, and members of the Canadian Society of Immigration Consultants will be allowed to represent immigration candidates in Quebec.
The federal government also introduced a requirement in 2004 that consultants belong to the CSIC.
But critics say there are no enforcement mechanisms. There are a variety of estimates, but the CSIC itself says there are 2,000 unregistered companies - so-called "ghost consultants" - operating in Canada.
Some of those companies provide unethical advice while charging immigrants thousands of dollars.
One apparent practice, for instance, had consultants encouraging immigrants to falsely claim they were homosexual and to request refugee status because they were being persecuted in their home country.
Immigration Minister Jason Kenney is saluting Quebec's move, and is promising federal action on the issue. Ottawa suggests it might introduce its own policy within months.
"We welcome the measures announced by the province of Quebec," said Alykhan Velshi, a Kenney spokesman.
"Immigration consultants must be more severely punished. . .
"As minister Kenney has stated, (Ottawa) intends to tighten the rules to make it more difficult for unauthorized third parties to operate. It is important that we combat fraud to maintain the integrity of Canada's immigration system."
But one critic said the feds, who have offered no specific date for when they might have a new policy, should follow Quebec's example.
"Nothing's happening in Ottawa," said Olivia Chow, the NDP's immigration critic.
"(Kenney) first promised something last spring. Then it was the summer. Then he promised it a third time in the fall. Now he's promising it in the spring again.
"I'm pleased that the Quebec government is moving on this issue. Because the federal Conservative government is soft on crime - against immigrants."
Both the federal and provincial governments share a similar message: that there's little benefit in hiring a consultant, and in paying the sometimes-exorbitant fees they charge.
"People can defend their case themselves with the department (of immigration)," James said.
She said the 10 to 30 per cent of candidates who hire consultants get "absolutely no preferential treatment" in the way their file is treated.
From now on, candidates who hire a consultant will, in Quebec, be required to disclose that party's name on their application papers. Under the new guidelines, approved this week by the provincial cabinet, the names on those applications could then be checked against the public registry.
Copyright © 2010 The Canadian Press. All rights reserved.
Province moves to crack down on unethical immigration consultants
By Bernard Barbeau (CP) – 17 hours ago
MONTREAL — Quebec has announced a crackdown on shady immigration consultants while similar nationwide action is expected from the federal government.
The announcement vaults Quebec to the forefront of the battle against businesses that mislead newcomers into thinking they can be fast-tracked into Canada, or encourage them to lie on their applications.
The federal government has repeatedly promised it will take similar steps but has not provided a firm indication yet about when that might happen.
In the meantime, it's applauding Thursday's announcement from Quebec.
To have a right to practice in the province, consultants will need to pass a test, demonstrate a knowledge of French, have a track record free of malpractice, and register with the Canadian Society of Immigration Consultants.
Quebec will also create a public registry listing recognized consultants and those whose right to practice has been suspended.
The provincial government says it could also impose fines of up to $50,000 - or up to $100,000 for a repeat offender - and revoke someone's right to practice.
"We're sensitive to the fact that there are vulnerable people falling victim to the schemes of some ill-intentioned people," Immigration Minister Yolande James said.
"We understand that there are consultants who do their job very well. But for consultants who have poor practices, or others, the message is clear: You must follow Quebec's guidelines or shut your doors."
The provincial government said only lawyers, notaries, and members of the Canadian Society of Immigration Consultants will be allowed to represent immigration candidates in Quebec.
The federal government also introduced a requirement in 2004 that consultants belong to the CSIC.
But critics say there are no enforcement mechanisms. There are a variety of estimates, but the CSIC itself says there are 2,000 unregistered companies - so-called "ghost consultants" - operating in Canada.
Some of those companies provide unethical advice while charging immigrants thousands of dollars.
One apparent practice, for instance, had consultants encouraging immigrants to falsely claim they were homosexual and to request refugee status because they were being persecuted in their home country.
Immigration Minister Jason Kenney is saluting Quebec's move, and is promising federal action on the issue. Ottawa suggests it might introduce its own policy within months.
"We welcome the measures announced by the province of Quebec," said Alykhan Velshi, a Kenney spokesman.
"Immigration consultants must be more severely punished. . .
"As minister Kenney has stated, (Ottawa) intends to tighten the rules to make it more difficult for unauthorized third parties to operate. It is important that we combat fraud to maintain the integrity of Canada's immigration system."
But one critic said the feds, who have offered no specific date for when they might have a new policy, should follow Quebec's example.
"Nothing's happening in Ottawa," said Olivia Chow, the NDP's immigration critic.
"(Kenney) first promised something last spring. Then it was the summer. Then he promised it a third time in the fall. Now he's promising it in the spring again.
"I'm pleased that the Quebec government is moving on this issue. Because the federal Conservative government is soft on crime - against immigrants."
Both the federal and provincial governments share a similar message: that there's little benefit in hiring a consultant, and in paying the sometimes-exorbitant fees they charge.
"People can defend their case themselves with the department (of immigration)," James said.
She said the 10 to 30 per cent of candidates who hire consultants get "absolutely no preferential treatment" in the way their file is treated.
From now on, candidates who hire a consultant will, in Quebec, be required to disclose that party's name on their application papers. Under the new guidelines, approved this week by the provincial cabinet, the names on those applications could then be checked against the public registry.
Copyright © 2010 The Canadian Press. All rights reserved.
Thursday, February 18, 2010
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Wednesday, February 10, 2010
Saturday, February 6, 2010
Friday, February 5, 2010
MORE ALLEGATIONS OF FRAUD, THIS TIME IN QUEBEC
This appeared in the Montreal Gazette. By now, everyone should realize that immigration and citizenship fraud is massive, and that enforcement measures are a must, particularly against abusers and those who assist them.
Massive fraud uncovered by Quebec's medicare insurance board
By Aaron Derfel, The Gazette
February 4, 2010
Quebec’s medicare insurance board has set up a special investigative unit as a result of the largest fraud in its history in which nearly 750 foreigners obtained free health care at a cost to taxpayers of more than $500,000.
An official with the Régie de l’assurance-maladie du Québec on Thursday described a “sophisticated” scam that lasted five years in which people from the Middle East, almost all from Lebanon, used bogus documentation to obtain medicare cards.
“These people simulated their residence here in Quebec,” said Marc Lortie, a RAMQ spokesperson.
“These individuals, with the complicity of an immigration consultant, procured automatic banking cards, telephone cards and other documents to show proof of residence.”
An 18-month-long investigation by RAMQ revealed that 1,451 individuals had falsely obtained medicare cards. Of that number, 747 received medical services that cost $508,768.
Lortie said that all the people involved had received permanent residency status by Citizenship and Immigration Canada. “In addition to defrauding RAMQ, they also lied to the federal government,” he added.
With their permanent residency papers in hand, they showed up at RAMQ offices in Montreal to get their medicare cards. But they then returned to Lebanon, Lortie said.
Under RAMQ regulations, if a resident of Quebec is out of the country for at least 183 days in a given year, he or she loses their right to medicare coverage, and must reapply.
RAMQ has so far recovered about $42,000. Lortie said that individuals will have to pay back all illegally obtained health-care expenses if they want to reclaim their medicare coverage.
“The first objective of these individuals was to obtain Canadian citizenship, not necessarily to obtain free health care,” Lortie explained.
Citizenship and Immigration Canada officials were not available for comment. But in general, the department refrains from discussing personal cases.
Karine Rivard, press attache to Health Minister Yves Bolduc, said the government continues to have full confidence in RAMQ despite the massive fraud.
“RAMQ has been doing everything it can to fight fraud, from inspections to adding a bar code to the medicare card,” Rivard said. “We can never avoid fraud completely, but the important thing is to react to fraud and to recover money.”
Asked to explain how the fraud could have lasted five years, Lortie replied that the operation was “highly sophisticated and the immigration consultant had many accomplices.”
As part of its response to the fraud, RAMQ established a team of four full-time inspectors in October to investigate suspicious cases. Lortie said RAMQ has taken other measures, but declined to disclose them for fear of tipping off those who want to take advantage of the system.
In 2008-2009, RAMQ reclaimed $1.1 million in fraudulent or irregular claims.
“I don’t want to minimize anything, but $1 million out of a budget of $7.8 billion is not enormous,” Lortie said.
Massive fraud uncovered by Quebec's medicare insurance board
By Aaron Derfel, The Gazette
February 4, 2010
Quebec’s medicare insurance board has set up a special investigative unit as a result of the largest fraud in its history in which nearly 750 foreigners obtained free health care at a cost to taxpayers of more than $500,000.
An official with the Régie de l’assurance-maladie du Québec on Thursday described a “sophisticated” scam that lasted five years in which people from the Middle East, almost all from Lebanon, used bogus documentation to obtain medicare cards.
“These people simulated their residence here in Quebec,” said Marc Lortie, a RAMQ spokesperson.
“These individuals, with the complicity of an immigration consultant, procured automatic banking cards, telephone cards and other documents to show proof of residence.”
An 18-month-long investigation by RAMQ revealed that 1,451 individuals had falsely obtained medicare cards. Of that number, 747 received medical services that cost $508,768.
Lortie said that all the people involved had received permanent residency status by Citizenship and Immigration Canada. “In addition to defrauding RAMQ, they also lied to the federal government,” he added.
With their permanent residency papers in hand, they showed up at RAMQ offices in Montreal to get their medicare cards. But they then returned to Lebanon, Lortie said.
Under RAMQ regulations, if a resident of Quebec is out of the country for at least 183 days in a given year, he or she loses their right to medicare coverage, and must reapply.
RAMQ has so far recovered about $42,000. Lortie said that individuals will have to pay back all illegally obtained health-care expenses if they want to reclaim their medicare coverage.
“The first objective of these individuals was to obtain Canadian citizenship, not necessarily to obtain free health care,” Lortie explained.
Citizenship and Immigration Canada officials were not available for comment. But in general, the department refrains from discussing personal cases.
Karine Rivard, press attache to Health Minister Yves Bolduc, said the government continues to have full confidence in RAMQ despite the massive fraud.
“RAMQ has been doing everything it can to fight fraud, from inspections to adding a bar code to the medicare card,” Rivard said. “We can never avoid fraud completely, but the important thing is to react to fraud and to recover money.”
Asked to explain how the fraud could have lasted five years, Lortie replied that the operation was “highly sophisticated and the immigration consultant had many accomplices.”
As part of its response to the fraud, RAMQ established a team of four full-time inspectors in October to investigate suspicious cases. Lortie said RAMQ has taken other measures, but declined to disclose them for fear of tipping off those who want to take advantage of the system.
In 2008-2009, RAMQ reclaimed $1.1 million in fraudulent or irregular claims.
“I don’t want to minimize anything, but $1 million out of a budget of $7.8 billion is not enormous,” Lortie said.
Thursday, February 4, 2010
MORE DEVELOPMENTS IN CITIZENSHIP FRAUD ALLEGATIONS
More on the problem of unregulated consultants in today's Globe and Mail newspaper. The comments by the consultants' regulator are somewhat naive and self-serving. The problem extends not only to unregulated consultants, but also to their own membership, as the CSIC standards are manifestly lax, and they "grandfathered" hundreds of "consultants" whose knowledge of the law and ethical standards are questionable. CSIC was created as a result of a flawed Advisory Report that assumed that the prohibition of "consultants" was not a tenable political option, as many of them have considerable sway in their own ethnic communities and have been aligned with Liberal party politicians for decades, so the then Liberal government did not wan to impose an outright ban, something that can be done by amending the Immigration and Refugee Protection Act.
Ms. Chow's comments in the article also reflect a lack of understanding of the regulatory process, as she seems to imply that the government should regulate the consultants directly, which would create a conflict of interest situation, because those who are regulated will be making representations to their own regulator in immigration cases and there would be no arm's length dealings. However, her comments are understandable, because she is with the NDP which wishes for the government to control every facet of life, over-regulate and socialize the law.
The best solution is an outright prohibition of non lawyers who practice immigration law, as done in the United States, and to enforce that strictly by requiring government agencies to refuse to deal with any non-lawyer. Lawyers practice law, doctors practice medicine, etc. That is why professionals are trained and regulated in their own filed. There is absolutely o need to allow non lawyers to practice law, it is dangerous to the public and, as the current allegations of fraud show, it opens up the system to rampant abuse. We, as members of the Bar have been warning about situations such as this one for decades. This is not new, and the government is at fault for tolerating constant irregularities.
The second best alternative would be for the federal government to allow the provincial Law Societies to regulate immigration consultants in the same manner that they are now regulating otter areas of law, such as family, criminal and small claims, imposing strict limits on what the paralegals can and cannot do. There is absolutely no reason why immigration law should be treated any differently from other types of law, particularly when it has such a large impact on people's lives and aspirations. It is time for the federal government to admit that the CSIC regulatory experiment has failed, that the problem of immigration fraud is getting larger every day, and that strict measures are now necessary before people develop the impression that committing fraud is more rewarding than telling the truth when applying for immigration or citizenship.
Of course, there should also be strict penalties for those who participate and stand to benefit form fraudulent schemes by obtaining citizenship or immigration status fraudulently to protect the integrity of the system and the value of immigration and citizenship for those law abiding. Such penalties should include an automatic withdrawal of status, fines, administrative and criminal penalties. What is lost in this debate now is that"it takes two to tango" to commit this kind of fraud: those who counsel and provide the means to do it, and those who go along with it knowingly to gain from it.
‘Ghost' immigration consultants unacceptable, regulator says - The Globe and Mail
Ms. Chow's comments in the article also reflect a lack of understanding of the regulatory process, as she seems to imply that the government should regulate the consultants directly, which would create a conflict of interest situation, because those who are regulated will be making representations to their own regulator in immigration cases and there would be no arm's length dealings. However, her comments are understandable, because she is with the NDP which wishes for the government to control every facet of life, over-regulate and socialize the law.
The best solution is an outright prohibition of non lawyers who practice immigration law, as done in the United States, and to enforce that strictly by requiring government agencies to refuse to deal with any non-lawyer. Lawyers practice law, doctors practice medicine, etc. That is why professionals are trained and regulated in their own filed. There is absolutely o need to allow non lawyers to practice law, it is dangerous to the public and, as the current allegations of fraud show, it opens up the system to rampant abuse. We, as members of the Bar have been warning about situations such as this one for decades. This is not new, and the government is at fault for tolerating constant irregularities.
The second best alternative would be for the federal government to allow the provincial Law Societies to regulate immigration consultants in the same manner that they are now regulating otter areas of law, such as family, criminal and small claims, imposing strict limits on what the paralegals can and cannot do. There is absolutely no reason why immigration law should be treated any differently from other types of law, particularly when it has such a large impact on people's lives and aspirations. It is time for the federal government to admit that the CSIC regulatory experiment has failed, that the problem of immigration fraud is getting larger every day, and that strict measures are now necessary before people develop the impression that committing fraud is more rewarding than telling the truth when applying for immigration or citizenship.
Of course, there should also be strict penalties for those who participate and stand to benefit form fraudulent schemes by obtaining citizenship or immigration status fraudulently to protect the integrity of the system and the value of immigration and citizenship for those law abiding. Such penalties should include an automatic withdrawal of status, fines, administrative and criminal penalties. What is lost in this debate now is that"it takes two to tango" to commit this kind of fraud: those who counsel and provide the means to do it, and those who go along with it knowingly to gain from it.
‘Ghost' immigration consultants unacceptable, regulator says - The Globe and Mail
Wednesday, February 3, 2010
MORE REASONS TO REFORM REFUGEE SYSTEM
By now, practically everyone in the world knows that Canada's refugee determination system is a joke and broken beyond repair, and that when people who fail to even meet its low threshold for acceptance, chances of getting deported are slim. Even when they are in fact deported, it takes years to do so. The end result is that Canada constantly attracts to its shores individuals of questionable backgrounds from around the world, who manage to tangle the Justice system for years, if not decades. In the end, the government gives up in its deportation efforts, as the cases become more complex, people invoke dubious "Humanitarian and Compassionate grounds", marry and have Canadian children, etc.. There are hundreds of cases in the system at any time, dealing with alleged terrorists, convicted and suspected criminals, potential national security threats, etc., and for some strange reason that may have to do with the Canadian psyche, the country never gets around to finally rid itself of those who just do not meet our low threshold for protection. Needless to say, the entire system suffers because those who truly deserve protection do not get it, or must wait for years until their cases are dealt with., as substantial resources need to be devoted to those who manage to stall. We need a new system that is fast, fair and final.
Rwandan refugee allegedly linked to family’s killing in sixth appeal
Adrian Humphreys/National Post
A man fighting to stay in Canada after being found complicit in the Rwandan genocide said yesterday on Tuesday he deserves another chance to convince the government he has been wrongly branded a fiend who murdered a neighbour and her children because she refused to have sex with him.
At least six times, Henri Jean-Claude Seyoboka has been told in judicial and tribunal proceedings that he is ineligible to remain in Canada because of his complicity in crimes against humanity during the 1994 Rwandan genocide.
On Tuesday, Mr. Seyoboka, 43, who had driven five hours from his home in Gatineau, Que., was in the Federal Court of Canada in Toronto. Well-dressed in a jacket and tie, and with a leather attaché case resting at his feet, he leaned forward and listened intently, occasionally nodding in support of his lawyers' arguments.
"The finding that he is implicated in crimes against humanity goes beyond the immigration process and affects all aspects of his life. He has been branded as a war criminal in Canada," his lawyer, Lorne Waldman, told Justice James O'Reilly.
"He will always be considered complicit in crimes against humanity as far as Canada is concerned, unless he gets a chance to put his case, again, before the [Immigration and Refugee Board]."
Mr. Waldman says the evidence used to implicate his client in the murders has since been discredited and to ignore this and still deport him would be a breach of natural justice.
Mr. Seyoboka came to Canada in 1996, where he lives with his wife and children, and was granted refugee protection without mentioning his service in the Rwandan army at the time of the genocide. An estimated 800,000 people were killed in 100 days, mainly members of the Tutsi ethnic minority by Hutu soldiers and militia.
Two years later, he came to the attention of the International Criminal Tribunal for Rwanda (ICTR) in its investigation of another man. He then admitted his military service, but denied engaging in atrocities.
Ottawa moved to revoke his refugee status in 2005.
In 2006, the IRB found Mr. Seyoboka was complicit, if not directly involved, in the slaughter. Based on gruesome evidence before the ICTR from a witness in Rwanda, he was also found by the IRB to have been personally involved in the killing of a neighbour named Francine and her two children because she refused to have sex with him.
Jamie Todd, lawyer for the government, said that Mr. Seyoboka was now angling for one more "kick at the can" in his fight to remain in Canada and trying to "wriggle out" of his responsibility.
Even if the evidence on the murder of Francine was ignored, it would make no difference to the outcome because Mr. Seyoboka had also been ruled inadmissible to Canada by virtue of being a high-ranking member of the Rwandan regime at the time of the massacre, Mr. Todd said.
Judge O'Reilly reserved his decision on the case.
After court, Mr. Seyoboka denied being the man the government paints him as.
"It is not true," Mr. Seyoboka told the National Post.
He had nothing to do with Francine's death and was not involved in the atrocities of the genocide. He also denies that his father-in-law played any role in promoting extremism prior to the start of the genocide.
Mr. Seyoboka is the son-in-law of Colonel Elie Sagatwa, who was a relative of the former first lady of Rwanda. He was appointed head of presidential security and the president's personal secretary. Reports in Rwanda say Col. Sagatwa was an early advocate of Hutu extremism.
When the an airplane carrying Rwandan president Juvenal Habyarimana was shot down on April 6, 1994 -- seen as the catalyst for the genocide -- Mr. Seyoboka's father-in-law was also on board.
"On the sixth of April, they killed him too, so he could not have been involved [in the genocide]," Mr. Seyoboka said.
As important as the case is to Mr. Seyoboka, it could also have a wide impact on Canada's immigration and refugee law, potentially allowing people ordered out of Canada to have yet another layer of appeal should they proffer fresh evidence to the IRB to overcome an unfavourable decision.
Judge O'Reilly raised that spectre on Tuesday, asking the lawyers about the importance of "finality" in the deportation process, alluding to the multiple challenges Mr. Seyoboka has already mounted.
"I hesitate to create new law that would cause it to happen more often," Judge O'Reilly said on Tuesday.
Mr. Waldman said he did not think such a precedent-setting ruling would "open the floodgates" on new appeals: "I've been practising immigration law for 30 years and this is the first time I've come across this scenario," he said.
Regardless of the decision, Mr. Seyoboka's fight is far from over. Even if Judge O'Reilly turns down his request for a judicial review, Mr. Seyoboka can seek relief on humanitarian and compassionate grounds and also undergo a Pre-Removal Risk Assessment to determine if his deportation would put him in danger in his homeland.
Both of those decisions can be further appealed in court.
National Post
Rwandan refugee allegedly linked to family’s killing in sixth appeal
Adrian Humphreys/National Post
A man fighting to stay in Canada after being found complicit in the Rwandan genocide said yesterday on Tuesday he deserves another chance to convince the government he has been wrongly branded a fiend who murdered a neighbour and her children because she refused to have sex with him.
At least six times, Henri Jean-Claude Seyoboka has been told in judicial and tribunal proceedings that he is ineligible to remain in Canada because of his complicity in crimes against humanity during the 1994 Rwandan genocide.
On Tuesday, Mr. Seyoboka, 43, who had driven five hours from his home in Gatineau, Que., was in the Federal Court of Canada in Toronto. Well-dressed in a jacket and tie, and with a leather attaché case resting at his feet, he leaned forward and listened intently, occasionally nodding in support of his lawyers' arguments.
"The finding that he is implicated in crimes against humanity goes beyond the immigration process and affects all aspects of his life. He has been branded as a war criminal in Canada," his lawyer, Lorne Waldman, told Justice James O'Reilly.
"He will always be considered complicit in crimes against humanity as far as Canada is concerned, unless he gets a chance to put his case, again, before the [Immigration and Refugee Board]."
Mr. Waldman says the evidence used to implicate his client in the murders has since been discredited and to ignore this and still deport him would be a breach of natural justice.
Mr. Seyoboka came to Canada in 1996, where he lives with his wife and children, and was granted refugee protection without mentioning his service in the Rwandan army at the time of the genocide. An estimated 800,000 people were killed in 100 days, mainly members of the Tutsi ethnic minority by Hutu soldiers and militia.
Two years later, he came to the attention of the International Criminal Tribunal for Rwanda (ICTR) in its investigation of another man. He then admitted his military service, but denied engaging in atrocities.
Ottawa moved to revoke his refugee status in 2005.
In 2006, the IRB found Mr. Seyoboka was complicit, if not directly involved, in the slaughter. Based on gruesome evidence before the ICTR from a witness in Rwanda, he was also found by the IRB to have been personally involved in the killing of a neighbour named Francine and her two children because she refused to have sex with him.
Jamie Todd, lawyer for the government, said that Mr. Seyoboka was now angling for one more "kick at the can" in his fight to remain in Canada and trying to "wriggle out" of his responsibility.
Even if the evidence on the murder of Francine was ignored, it would make no difference to the outcome because Mr. Seyoboka had also been ruled inadmissible to Canada by virtue of being a high-ranking member of the Rwandan regime at the time of the massacre, Mr. Todd said.
Judge O'Reilly reserved his decision on the case.
After court, Mr. Seyoboka denied being the man the government paints him as.
"It is not true," Mr. Seyoboka told the National Post.
He had nothing to do with Francine's death and was not involved in the atrocities of the genocide. He also denies that his father-in-law played any role in promoting extremism prior to the start of the genocide.
Mr. Seyoboka is the son-in-law of Colonel Elie Sagatwa, who was a relative of the former first lady of Rwanda. He was appointed head of presidential security and the president's personal secretary. Reports in Rwanda say Col. Sagatwa was an early advocate of Hutu extremism.
When the an airplane carrying Rwandan president Juvenal Habyarimana was shot down on April 6, 1994 -- seen as the catalyst for the genocide -- Mr. Seyoboka's father-in-law was also on board.
"On the sixth of April, they killed him too, so he could not have been involved [in the genocide]," Mr. Seyoboka said.
As important as the case is to Mr. Seyoboka, it could also have a wide impact on Canada's immigration and refugee law, potentially allowing people ordered out of Canada to have yet another layer of appeal should they proffer fresh evidence to the IRB to overcome an unfavourable decision.
Judge O'Reilly raised that spectre on Tuesday, asking the lawyers about the importance of "finality" in the deportation process, alluding to the multiple challenges Mr. Seyoboka has already mounted.
"I hesitate to create new law that would cause it to happen more often," Judge O'Reilly said on Tuesday.
Mr. Waldman said he did not think such a precedent-setting ruling would "open the floodgates" on new appeals: "I've been practising immigration law for 30 years and this is the first time I've come across this scenario," he said.
Regardless of the decision, Mr. Seyoboka's fight is far from over. Even if Judge O'Reilly turns down his request for a judicial review, Mr. Seyoboka can seek relief on humanitarian and compassionate grounds and also undergo a Pre-Removal Risk Assessment to determine if his deportation would put him in danger in his homeland.
Both of those decisions can be further appealed in court.
National Post
Tuesday, February 2, 2010
INVESTIGATION WIDENS ON CITIZENSHIP CASES
About time....let's see if there is the political will to do what is right and impose meaningful penalties on abusers of the system. I also think that Canada needs to rethink its qualification timeline for citizenship and align it with most Western nations, which require longer residency periods before granting citizenship, to ensure establishment and integration into society. Citizenship should be awarded based on merit and compliance, not to ingratiate the government with potential voters.
Minister promises crackdown on immigration consultants who counsel fraud - The Globe and Mail
Minister promises crackdown on immigration consultants who counsel fraud - The Globe and Mail
Monday, February 1, 2010
More than 300 people linked to suspected case of citizenship fraud - The Globe and Mail
This article appeared in today's Globe and Mail newspaper. It is extremely troubling but not surprising that many people take advantage of a citizenship acquisition system that is full of holes and extremely lax. Freud in citizenship applications results in a general depreciation of the value of citizenship for all of us, as people who are undeserving acquire citizenship while they have no attachment to Canada. Perhaps it is time for the government to change the current system and make citizenship more meaningful, rather than being obsessed with doling it out like lolly pops. Citizenship acquisition should be based on merit and compliance with the law, not on a numbers game that rewards those who do not wish to contribute to Canada.
More than 300 people linked to suspected case of citizenship fraud - The Globe and Mail
More than 300 people linked to suspected case of citizenship fraud - The Globe and Mail
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