Thursday, May 10, 2012


This is a rare case on the "human trafficking" sections of IRPA. In this case, the sentence was very light, and it did not include a jail term. Other offenders may not be as lucky, as the court indicates in noting the special circumstances of this case.

R. v. Lwamba

Her Majesty the Queen, and
George Lwamba
And between
Her Majesty the Queen, and
Lwamba Mbundanini, also known as Michel Mbundanini Lwamba

[2012] O.J. No. 1964
2012 ONCJ 263
Information Nos. S10-4594, S10-4595
 Ontario Court of Justice
J.S. Nadel J.
May 2, 2012.
(34 paras.)
J.S. NADEL J.:--
1     On January 10, 2012 each defendant, on a separate information, pleaded guilty, summarily, to committing the same offence, namely: attempting to aid or abet Clara Gumbo, a foreign national, to misrepresent a material fact that could induce an error in the administration of the Immigration and Refugee Protection Act (IRPA) by providing her with a Canadian passport which was fraudulently used by her to attempt to enter Canada, contrary to s. 126 of IRPA, thereby committing an offence contrary to s. 128 of the said Act.
2     The essential facts admitted by them were as follows. On July 23, 2010 the two defendants entered Canada by car at Niagara-On-The-Lake. They had a rear-seat female passenger, who feigned being asleep as the men attempted to clear inspection at the Canada Border Services primary booth. The two defendants presented valid Canadian passports. The Canada Border Services Officer insisted that the female get up so that he could check her passport. He noted that she did not match the photograph in the Canadian passport that she presented so the trio were referred for a secondary inspection, where they were interviewed separately.
3     The passport that the rear-seat female passenger presented had been issued to Edwine Lwamba Mokili. Under questioning the rear-seat female admitted that she was Clara Gumbo.
4     In the absence of Ms. Gumbo, the two defendants persisted in maintaining that Ms. Gumbo was Ms. Mokili. They maintained that their female passenger had been known to them for several years and that she was the woman identified by the passport she presented. The defendant George Lwamba went further and stated that she was Ms. Mokili and that she had been a member of his church choir for the past two years until he was told that Ms. Gumbo had admitted to her correct identity. At that point he conceded that she was Clara Gumbo.
5     The defendant, George Lwamba, is the father of Edwine Lwamba Mokili. He and his brother, Lwamba Mbundanini, had provided Ms. Mokili's validly issued Canadian passport to Clara Gumbo. The defendants attempted to smuggle Clara Gumbo into Canada because she had previously met and had been befriended by Lwamba Mbundanini's wife at a Kenyan religious conference.
6     Neither defendant has any prior criminal record. Each has become a Canadian citizen after emigrating from Africa in circumstances that will be discussed subsequently. Each defendant is gainfully employed and is otherwise law-abiding. There is a wide disparity in sentencing positions taken by counsel.
George Lwamba's Pre-Sentence Report
7     Among other things, Mr. Lwamba's pre-sentence report details all of the following. He was born in the Congo. He became a teaching assistant at Lubumbashi University until 1989 when he fled from the Congo to Kenya as a result of a massacre of students at that university. He was eventually joined in Kenya by his large family and lived there with them, in a refugee camp until 1999, when they immigrated to Canada, after being sponsored by a Saskatoon Baptist Church. After four years in Saskatoon and another four in Montreal he moved to Ajax, Ontario where, five years ago, he organized and remains the pastor of a Baptist congregation, called the City Wide Praise and Worship Baptist Church. He advised that his congregation has a membership of about 240 persons.
8     Mr. Lwamba is married and has four children. While disappointed in him, his wife remains supportive and their marriage and his family remain secure. Likewise, while the board of directors of his congregation are also disappointed by his crime, they, too, remain supportive of him and he has been allowed to continue in his position as pastor.
9     In addition to the demand on his time that the preparation of his weekly sermons exacts, his church is involved in working with new immigrants to integrate them into the community as well as doing other charitable work. But for his crime, given law-abidingness and his community involvement, while the pre-sentence reporter deemed him suitable for community supervision, the pre-sentence reporter did not recommend any non-statutory terms of probation since "the information gathered for the Pre-Sentence Report has not revealed any significant areas of concern for the subject to address."
Lwamba Mbundanini's Pre-Sentence Report
10     Mr. Mbundanini's pre-sentence report was prepared by a different probation officer than the one who wrote George Lwamba's pre-sentence report. As a result, or perhaps because Mr. Mbundanini was less reticent to speak of the political and social troubles encountered by his brother and family in the Congo, it contains more detail about that period in their lives.
11     Mr. Mbundanini reported that their father was an advisor to the president of the Democratic Republic of the Congo. His father resigned his post which invited the enmity of his former employer resulting in mortal danger to his family. There was civil unrest spearheaded by university students which was quelled by the army in a massacre of students. Like his brother, George Lwamba, he fled to Kenya, where he lived as a refugee for five years and became religious, following a Christian faith. When he fled to Kenya, he believed that his wife and much of his family had been killed in the civil disorder of that time and place.
12     He was allowed to become a "landed" immigrant to Canada and learned shortly before emigrating that his wife had survived but had been living in a different refugee camp. Too late to change plans he and a sister and a daughter travelled to Saskatoon in 1996.
13     Other family members were later located and allowed to immigrate to Canada and his wife joined him in 1997. He became active in his church and began singing as part of that involvement. He moved his family to Ontario in 2004, ultimately ending up in Ajax with his brother, where he is the vice-pastor in charge of music for the congregation that is mostly comprised of immigrants to Canada, who "dance and shout" during services. In addition to his pastoral and missionary activities, Mr. Mbundanini began a music recording business with one of his brothers.
14     He and his wife of 22 years have a strong marital union. They continue to raise their five children, all of whom still live at home. He remains close to and in contact with one sister who remains in Saskatoon and four other siblings who live around Durham, Ontario.
15     Mr. Mbundanini obtained a degree in Political Science from the Congo. His wife is employed as a computer programmer and he contributes to the family finances through an honorarium from his church and his income from his Christian artists recording company, Krystaal Inc. Mr. Mbundanini and two of his brothers also perform under the same name. The pre-sentence reporter satisfied herself that "the group has been the recipient of a number of prestigious awards and has toured internationally."
16     Like the other pre-sentence reporter, the writer of Mr. Mbundanini's report also took the position that despite his offence, he did not require the benefit of community supervision.
The Position Of The Crown
17     The Federal Crown submits that each accused should be sentenced to a period of actual incarceration of six months in the reformatory. The prosecutor, Mr. Anger, notes that Clara Gumbo received a 90 day jail sentence for her part in attempting to enter Canada illegally. In addition, he submits that the crime was clearly well planned in that they had to arrange to meet Ms. Gumbo in the USA and provide her with Ms. Mokili's passport. While there is no evidence that Ms. Mokili played any role in parting with her passport, the Crown submits that involving a family member in this plot aggravates its seriousness, given the fraudulent use of a family member's authentic Canadian passport. Likewise, the Crown submits that the two offenders were prepared to and did persist in attempting to mislead Canada Border Services Officers, at least for a short period of time and in doing so George Lwamba traded on his position as a man-of-the-cloth to try and perpetrate the offence by vouching for the female imposter as being a long-term member of his choir.
The Position Of The Defence
18     Mr. DelGobbo submits that a fine or in the alternative a conditional sentence ought to be imposed. He notes that neither offender has a prior criminal record and that both men pleaded guilty and the Crown proceeded summarily. Further, Ms. Gumbo may not have been legally admissible to Canada but she was not a criminal or a terrorist and the offenders' actions in attempting to assist her in gaining admission to Canada was not motivated by any desire for financial gain nor to effect any other independent unlawful purpose nor to mistreat Ms. Gumbo. The acts of both men were ill advised and admittedly criminal attempts to bring about a humanitarian result, from their perspective. Moreover, both of their pre-sentence reports are very positive, so much so that two probation officers independently arrived at the same recommendation; namely, that neither offender required probationary supervision to effect their rehabilitation. It was the position of the defence that the principles of sentencing and prior persuasive precedents demonstrate that no actual incarceration is required and the matter can properly be dealt with by the imposition of a fine or a conditional sentence.
Cases Referred To By Counsel
19     R. v. Wasiluk, [2005] O.J. No. 4148 (O.C.J.) is a sentencing decision by Andre J. In it he reviews several sentences imposed in human smuggling cases. A number of comments and principles can be drawn from that decision including the following:
• *
The illegal transportation of inadmissible persons across an international border is an offence that merits serious treatment by the court. (Wasiluk at [16])
• *
"Such an offence ... is a moral affront to legitimate immigrants who line up and wait patiently to enter ... Canada. ...[L]egitimate immigrants who quite properly participate in sponsoring loved ones from their homeland to join them here, face the genuine prospect that political pressure, as the result of unabated illegal immigration, could result in the immigration authorities taking a far stricter position on immigration quotas." (Wasiluk at [17])
• *
"In the wake of September 11th 2001, there is an awareness of the dangers posed by the illegal entry of persons into ... Canada. " (Wasiluk at [18])
• *
Sentences will increase based, among other things, on the degree of the sophistication of the smuggling operation and the place of the offender within the hierarchy of that operation.
• *
The increase in the penalties provided by IRPA as compared to its predecessor demonstrate Parliament's signal that a sentencing regime should shift towards more severe sentences than those provided for and imposed previously. (Wasiluk at [25])
20     Speaking generally, the facts of the cases reviewed in Wasiluk deal with instances of commercially motivated human smuggling on a large scale. While actual and substantial periods of incarceration, including penitentiary sentences, were imposed in some of the cases, most of the sentencing decisions reviewed by Justice Andre resulted in conditional sentences. A factual comparison between the cases reviewed in Wasiluk to the facts admitted to on the guilty pleas in the case at bar demonstrate that, while there are some aggravating features present - as submitted by the Crown - Mr. Lwamba and Mr. Mbundanini committed a crime that was easily and indeed likely, in my view, to be detected. It was apparently obvious that Clara Gumbo did not resemble Edwine Mokili.
21     In R. v. Lin, [2007] N.J. No. 74 (NLCA) the Court upheld an eight month sentence imposed on Lin's guilty plea to using a false passport to enter Canada, contrary to s.122(1)(b) of IRPA. That eight-month sentence was made consecutive to five concurrent sentences of nine months each imposed on Lin upon his prior pleas of guilty to counselling and assisting others to enter Canada with false passports, contrary to s.126 of IRPA, which is the same offence that Mr. Lwamba and Mr. Mbundanini have pleaded guilty to. While this case clearly demonstrates that actual jail can and should be imposed in appropriate circumstances, the facts, even on the spare recitation provided in Lin are clearly distinguishable.
22     R. v. Zelaya, [2009] A.J. No. 33 (Alta. Prov. Ct.), somewhat like Wasiluk, contains thumbnails of the fact patterns and the sentences imposed in ten cases, in addition to a full recitation of Mr. Zelaya's crimes and circumstances. Many of the decisions reviewed deal with a person in Clara Gumbo's situation and the 90-day jail sentence imposed on her, (by me according to Mr. Anger,) sits well within the parameters of the sentences reviewed in the cases cited in Zelaya. However, Zelaya does not offer much assistance on what sentence would be appropriate for offenders like Mr. Lwamba and Mr. Mbundanini.
23     The last case I propose to refer to is R. v. Dhalla, [2007] O.J. No. 1362 (S.C J.). Dhalla is a Crown appeal from a sentence of a $5,000.00 imposed by Duncan J. on Dhalla on one count of counselling, aiding or abetting contrary to s. 126 of IRPA, which is the same offence that these offenders committed.
24     The facts in Dhalla are very roughly analogous to this case. Dhalla arrived from India at Pearson International with a nine-year-old boy, who had a false passport. Dhalla had counselled him to provide that false name and other documentation to gain illegal entry into Canada. Dhalla did not plead guilty. He was convicted after a trial. The Crown in Dhalla, as here, asked for a six month jail sentence citing the seriousness of child smuggling, child abandonment and the financial benefit received by Dhalla for his crime.
25     After Justice Duncan imposed a fine of $5,000.00 the Crown appealed the sentence on the basis that it was unfit, arguing that a fine failed to reflect the seriousness of the crime and that such a sentence did not fall within the established range of sentences for this offence.
26     The Crown's appeal was dismissed. Tulloch J., at paragraph [8] ruled that "[w]hile it was open to the trial judge to impose a custodial sentence ... the sentence imposed is within the appropriate range for this type of offence, taking into account both the nature and gravity of the offence as well as the particular circumstances and antecedents of the respondent."
27     In dismissing the Crown's appeal, Tulloch J. implicitly accepted Justice Duncan's categorization of two basic types of offenders that engage in this type of offence:
• (i)
the more serious offenders such as those who are sophisticated child traffickers; and,
• (ii)
the less serious offenders, such as those who smuggle ... for humanitarian reasons. (Dhalla at [14]).
28     Notwithstanding that Justice Tulloch accepted the Crown's submission "that child trafficking is a serious crime which ought to attract a sentence which reflects both denunciation and specific and general deterrence" and notwithstanding that Tulloch J. also agreed that misrepresentations to border authorities during people smuggling crimes also "adversely impact on all legitimate migrants and Canadian citizens when others jump the queue ..." nonetheless, the learned justice sitting in appeal was satisfied that the sentence imposed by Duncan J. properly reflected the principles of denunciation and deterrence. (Dhalla at [17] and [18]) Given that Duncan J.'s sentence was within the appropriate range and that at the time of sentencing the offender had been on bail for one and a half years, a fine of $5,000.00 was a significant sentence, which appropriately reflected the principles of denunciation and deterrence.
The Sentence
29     Sentencing is an individualized process informed by the principles of sentencing and the particular circumstances of the offender. In short, a sentence must be proportionate, as required by s. 718.1 of the Code. In arriving at the sentences I am about to impose upon George Lwamba and Lwamba Mbundanini, I have considered the facts of their crimes, and their personal circumstances. I have taken the aggravating features of these crimes into account. Those features were identified by the Crown at paragraph [17], above. In addition, I have considered the mitigating features of these crimes, which include the pleas of guilty entered, the lack of any prior criminal records, the otherwise productive nature of the offenders' lives, the lengthy period of time the offenders have been under charge without incident and the fact that while there was some planning involved in the carrying out of the crimes ultimately the crime was bound to fail, as carried out.
30     I am of the view that the principle of parity does not require that I impose the same sentence upon them that I imposed upon Clara Gumbo despite the fact that they aided her in attempting to enter Canada illegally. They are differently situated than she was.
31     I take their pleas of guilty into account and the fact that they have no prior criminal records. I weigh the fact that they are, otherwise, law-abiding and productive Canadian citizens. I consider the public shame and embarrassment they have brought upon themselves together with the fact that they will now have criminal records of conviction and that they will undoubtedly be flagged by Canada Border Services, if and when they attempt to re-enter Canada, should they ever elect to go abroad.
32     Beyond all of that I accept that they fall into the less serious category of this type of offender. Their crimes were not motivated by financial gain. I find that they were attempting to assist an apparently harmless woman in jumping the queue to get into Canada, in a misguided effort to effect a humanitarian purpose.
33     The maximum penalty for breaching s. 126 of IRPA, where the Crown proceeds summarily, is to a fine of not more than $50,000.00 or to imprisonment for a term of not more than two years, or to both. There is no minimum penalty.
34     In the result, I impose a fine on each offender in the amount of $5,000.00.

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