Tuesday, September 25, 2012


Here is the decision on the immigration corruption case involving an officer in CIC Etobicoke who made Humanitarian and Compassionate grounds cases, which has been in the media repeatedly in the last few weeks:

R. v. Gonsalves-Barriero
Between Her Majesty the Queen, and
George Gonsalves-Barriero

[2012] O.J. No. 4369

 Ontario Court of Justice

A. Tuck-Jackson J.

Heard: June 27, August 28, 2012.
Judgment: September 20, 2012.

(65 paras.)


I. Overview

1     George Gonsalves-Barriero, a 55-year-old first offender, appears before me for sentencing in relation to three counts of breach of trust by a public officer, contrary to s. 122 of the Criminal Code, following a guilty plea to these offences on June 27, 2012, the morning of the scheduled commencement of his preliminary inquiry into these and other charges.

2     By way of sentence, Mr. Lockhart on behalf of the Crown seeks a global sentence of four years in custody. In contrast, Mr. Baratz on behalf of the defence seeks a global sentence of two years in custody.

II. Circumstances of the Offences

3     The parties proceeded on an Agreed Statement of Facts, marked as Ex. 1 in these proceedings. Those facts reflect the following.

4     Since 2000, George Gonsalves-Barriero has been employed at Citizenship and Immigration Canada (herein CIC). In 2005, he became an Immigration Officer. At the time of the allegations, he worked in the "Humanitarian and Compassionate" division, at the Etobicoke CIC officer. That office is located at 5343 Dundas Street West, in the City of Toronto. He has not worked there since his arrest in December of 2010.

5     Mr. Gonsalves-Barriero's duties included reviewing applicant files to see if they met the requirements for admission to Canada on humanitarian and compassionate grounds. As part of these duties, he had decision-making authority to grant or decline permanent resident status, to request further documentation, or to send applicants for a risk assessment.

6     Mr. Sidnei Ramalho was born in Brazil. In 2009, he applied to become a permanent resident of Canada.

7     On March 19, 2010, Mr. Ramalho received a telephone call from Mr. Gonsalves-Barriero. He asked Mr. Ramalho some perfunctory questions about documents and whether Mr. Ramalho's girlfriend could sponsor his citizenship. Mr. Ramalho answered the questions, including that his girlfriend could not sponsor him.

8     A few minutes later, Mr. Gonsalves-Barriero called Mr. Ramalho again. This time, he called from his personal cellular telephone. Notably, CIC's policies forbid their employees from contacting applicants via their personal telephones.

9     Mr. Ramalho accurately described this second conversation as follows:


·       ... he told me so, ah, do you know who is talking? I say no, and he say I just talked to you, my name is George, we just, ah, I just called you from immigration and I say yes, do you need anything, like other documents? And he said ah, what can you do for me? And I say what you mean? And he was like, no seriously, no bullshit here, what can you do for me? And he, he said you know what I'm talking about and I say no, I don't, and he say I can say yes or no for this, like I can get like a nice letter at your home, or and you can go from there, and I said no. 


·       I was like really shocked he was like asking for, for money ... and then I say ok, what do you want, I can, I told him this is like really important to me, it can change my life forever so what do you want, and he like ah, tell me what you can do for me and I'll do for you, like a favour, and I say five thousand and he was like no, no, no to five thousand, no it's too much, you are computer guy, you are smart, and let's say something else, and I say two thousand, and he was like yea that's good enough, like two thousand, I can do that for two thousand ... 

10     Mr. Ramalho was hesitant to conduct the transaction, and told Mr. Gonsalves-Barriero that he needed to think about it. Mr. Gonsalves-Barriero said he needed to get the transaction done that day, because he was going on vacation. The conversation ended with Mr. Ramalho agreeing to speak to Mr. Gonsalves-Barriero later that day.

11     Immediately after speaking with Mr. Gonsalves-Barriero, Mr. Ramalho spoke to his immigration consultant. She advised him to refuse to speak with Mr. Gonsalves-Barriero any further. Soon after, Mr. Ramalho brought the matter to CIC's attention.

12     During the ensuing investigation by the RCMP, it was discovered that, also on March 19, 2010,


·       (1) 

Mr. Gonsalves-Barriero had drafted a letter to Mr. Ramalho, advising him that the first stage of his permanent resident application had been approved, and 

·       (2) 

Mr. Gonsalves-Barriero deactivated his personal cellular telephone. 

13     I have had the benefit of reviewing a Victim Impact Statement prepared by Mr. Ramalho. It appears at Tab 3 of the compendium of materials marked as Ex. 3 in these proceedings. Its contents reveal that Mr. Ramalho's interactions with Mr. Gonsalves-Barriero have caused the former to suffer paranoia and feel a lack of trust in others. The emotional impact that this incident has had on Mr. Ramalho, together with the underlying reason for same, is aptly summarized in the following excerpt from his Victim Impact Statement:


·       Just to stop and think about those days make me sick. I remember trying to understand the understandable, trying to figure out a way to tell me wife that it would be okay even though I had no idea how that would even be possible. I had no hope whatsoever, I did not know where to start and even if I started I had doubts if someone would believe in me. It was about to be the "No status Immigrant" against the "omnipotent Immigration Officer" The feeling of loneness [sic] and disappointment was part of my sad reality. And for hours, days, and even years, the same question is in my head still: "Why me?" 


·       Those following days were the worst in my life in Canada, a confident and optimist person has now turned into a person full doubt and disbelieve [sic]. For several times, I asked myself if it was worth to leave my home country and come here to try a new life. I was tired of corruption and people trying to take advantages of the others. And unfortunately enough, that came to happen here in Canada. 

14     Mr. Hassan Mohammed Farah was born in Somalia. In May of 2008, he applied to become a permanent resident of Canada.

15     In March of 2010, Mr. Gonsalves-Barriero contacted Mr. Farah using his personal cellular telephone. They arranged to meet at High Park, a large public recreational space in Toronto's west end.

16     Either that same day or the next day, Mr. Gonsalves-Barriero and Mr. Farah met at High Park. The two men sat and talked about Mr. Farah's application, including how long it had taken, how long it would take, and how much it meant to Mr. Farah. Mr. Farah told Mr. Gonsalves-Barriero that, to him, the application was priceless.

17     Mr. Gonsalves-Barriero then asked Mr. Farah how much he was willing to provide to expedite his application. He said that he was giving Mr. Farah "quite a chance" to speed the process up. Mr. Farah asked Mr. Gonsalves-Barriero to name an amount, but Mr. Gonsalves-Barriero tried to insist that Mr. Farah name the price. After some back and forth conversation on this topic, Mr. Gonsalves-Barriero told Mr. Farah that he could speed up his application for $1,500.

18     Either the next day or two days later, Mr. Farah contacted Mr. Gonsalves-Barriero to inform him that he had the money. Mr. Farah had taken out a line of credit to pay Mr. Gonsalves-Barriero. The two men met for a second time at High Park, where Mr. Farah gave Mr. Gonsalves-Barriero $1,500 in cash.

19     Soon after, Mr. Farah's application for permanent residency was approved.

20     I have also had the benefit of reviewing a Victim Impact Statement prepared by Mr. Farah. It appears at Tab 4 of Ex. 3. It reflects that since Mr. Farah's exposure to Mr. Gonsalves-Barriero, the former has experienced nervousness which manifested itself in problems with sleeping and concentration at school and work. It placed him in a vulnerable state while diminishing his self-esteem. In addition to this emotional impact, Mr. Farah has suffered an adverse financial impact. At the point Mr. Gonsalves-Barriero attempted to improperly solicit funds from Mr. Farah, the latter was struggling financially. Mr. Gonsalves-Barriero's solicitation caused Mr. Farah to incur further debt in order to pay off Mr. Gonsalves-Barriero. As noted in Mr. Farah's Victim Impact Statement, "As a result of [his] inadequate income, this has put [him] in a financial stress by striving to pay back the ever growing owing amount".

21     Mr. Fazeed Abraham was born in Trinidad and Tobago. In early 2009, he applied to become a permanent resident in Canada. As of the summer of 2010, his application remained outstanding. His wife, Mrs. Marlene Abraham, and their young son were already living in Canada. His son was born here and, in the result, was already a Canadian citizen.

22     On July 30, 2010, Mr. Gonsalves-Barriero conducted an interview with Mr. and Mrs. Abraham regarding Mr. Abraham's application. This interview was conducted at the Etobicoke CIC office. Such interviews are not an uncommon element of the permanent resident application process. Although, during the interview, Mr. Abraham "practically begged" Mr. Gonsalves-Barriero to do what he could to not break up their family.

23     Soon after that interview, in early August of 2010, Mr Gonsalves-Barriero contacted Mrs. Abraham by phone. Whether she was told so directly by Mr. Gonsalves- Barriero, or by his implication, Mrs. Abraham understood that he suspected their marriage was a "marriage of convenience" done for immigration purposes. Mr. Gonsalves-Barriero told Mrs. Abraham that, if this were the case, he could have her immigration papers revoked, and have her husband deported. Mr. Gonsalves-Barriero asked Mrs. Abraham what would happen to her son if these things happened to her and her husband. He told Mrs. Abraham that he had their files in his hands.

24     Soon after that call, Mr. Gonsalves-Barriero contacted Mr. Abraham by telephone. He told Mr. Abraham that he could make all his immigration problems go away if he gave Mr. Gonsalves-Barriero $4,000. The two men arranged to meet at Ossington Subway station in Toronto where Mr. Abraham gave Mr. Gonsalves-Barriero $4,000 in cash.

25     To get the money to pay Mr. Gonsalves-Barriero, Mr. and Mrs. Abraham withdrew funds from their savings. Mrs. Abraham's statement to the authorities indicated that those savings had been earmarked for their son's education.

26     I have read the Victim Impact Statements prepared by Fazeed and Marlene Abraham. They appear at Tabs 5 and 6 of Ex. 3, respectively. As was the case with Mr. Farah, the emotional impact of Mr. Gonsalves-Barriero's actions upon Mr. Abraham manifested itself in physical symptoms. Mr. Abraham wrote:


·       This offence has been very stressful on me and my family. I felt bullied and pressured. It affected my ability to function within the home circle. I could not eat or sleep as I would normally do. I was afraid for the safety of my wife and son. I begged and pleaded not to be in that situation. I hop [sic] and prayed for it to end. 

Mrs. Abraham expressed similar sentiments in her Victim Impact Statement.

27     It is common ground between the parties that the Crown's case against Mr. Gonsalves-Barriero was strong. In addition to the details set out above, the investigation into Mr. Gonsalves-Barriero's actions revealed the following:


·       (1) 

Cellular telephone records confirmed contact between Mr. Gonsalves-Barriero's personal cellular telephone and contact numbers associated with the above-parties consistent with the timing of the chronology of events outlined above. As already noted, contact between CIC employees and applicants via person telephone numbers is strictly forbidden by the CIC

·       (2) 

Mr. Gonsalves-Barriero took a vacation to Greece soon after his interaction with the Abrahams during which the latter provided the former with $4,000 in cash; and 

·       (3) 

The parties' applications for permanent residence bore Mr. Gonsalves-Barriero's initials in various places, thereby indicating that he had dealt with their files from time to time. 

28     By letter dated September 14, 2012, Mr. Gonsalves-Barriero's lawyer confirmed with the Court that he was in receipt of $5,500 from his client, an amount which has been earmarked to serve as full payment of restitution owed to Mr. Farah and the Abraham family.

29     It is a fundamental principle of sentencing that the penalty imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. See: s. 718.1 of the Criminal Code. In this case, the gravity of the offences in question is high. This category of offence strikes at the heart of the integrity of government and the trust the community places in its public officials. Similarly, the offender's degree of responsibility is very high. Mr. Gonsalves-Barriero acted alone. Further, in each case, he took the initiative to engage in a corrupt transaction. It was not as if he was responding to an improper overture by an applicant. Finally, there is no suggestion that Mr. Gonsalves-Barriero was motivated by financial need arising from a situation of duress, an addiction, mental health issue or other personal challenge in relation to which he had diminished control such that his actions would more properly be regarded as less morally blameworthy.

II. Circumstances of the Offender

30     In anticipation of this sentencing, I ordered the preparation of a Pre-Sentence Report. A copy of that report was marked as Ex. 2 in these proceedings. That report, together with a group of nine character letters, collectively forming Ex. 4 in these proceedings, paint a portrait of an individual with whom I find it difficult to reconcile the offender before the Court.

31     As noted at the outset of these Reasons for Sentence, Mr. Gonsalves-Barriero comes before the Court as a 55-year-old first offender. Like the parties he exploited, Mr. Gonsalves-Barriero was born outside of Canada and immigrated here, presumably in the hope of creating a better life for himself.

32     He was born in Antigua and raised there by his mother who passed away in 2004. He was also supported by his maternal grandmother and a maternal aunt. It would appear that he had limited contact with his biological father who passed away in 2008. As his mother and grandmother were nurses and his aunt was a teacher, the family had sufficient financial resources to provide well for Mr. Gonsalves-Barriero. To the author of Ex. 2, Mr. Gonsalves-Barriero described positive relationships with those who raised him and reported that he never experienced any abuse or neglect of any kind in his childhood.

33     Having completed high school in his country of birth, Mr. Gonsalves-Barriero came to Canada in 1975 to study accounting at Seneca College. Following the completion of his studies here, he briefly returned to Antigua. However, he ultimately came back to Canada and settled here. Mr. Gonsalves-Barriero has also pursued university studies at York University and is one credit short of completing his undergraduate degree.

34     In 1979, Mr. Gonsalves-Barriero married a woman who lived primarily in New York. The couple separated in 1983, in part because of the challenges presented by a long-distance relationship, but also by reason of Mr. Gonsalves-Barriero's personal struggles with his sexual identity. The couple eventually divorced in 1995. Between 1983 and 1995, Mr. Gonsalves-Barriero had a number of same-sex relationships. He found stability in one particular relationship that lasted five years. He has been involved with his current partner since 2002. Mr. Gonsalves-Barriero explained to the author of the Pre-Sentence Report that, regrettably, the relationship has been difficult at times. On occasion the police have been called when his partner has been drinking excessively and then wanting to fight Mr. Gonsalves-Barriero. He further indicated that, at times, he has felt trapped in the relationship. The authors of a number of the character letters filed with the Court confirmed that Mr. Gonsalves-Barriero has not always enjoyed what may fairly be described as a healthy relationship with his current life partner. Mr. Gonsalves-Barriero declined through his counsel to expand on the challenges which presented themselves within his home. When invited to address the Court directly, Mr. Gonsalves-Barriero alluded to strife he had experienced with his life partner, but clearly did not wish to shift, or be seen to be shifting, the blame for the behaviour that brought him to Court to the impact of his life partner's actions. He stated:


·       ... Through the year I've been seeing a therapist and trying to come to grips with - come to grips with all that I have done, all the people that I've hurt, the different individuals. I guess, I swore an oath, it just - it just tore me up. Throughout that time, I experienced - I don't want to point to anyone or anything, I just say that this is why, because I do take full responsibility for it, because I'm responsible. 


·       But things were happening, and I suppose I just couldn't deal with them, and in the statement that I wrote to my lawyer, it - it states that the - I just wanted to escape them (ph). He mentioned the situation with my own, and I'm not blaming my partner because it's about me, it's strictly about the individual ... 

In his remarks to the Court, Mr. Gonsalves-Barriero referred to counselling he was receiving. The defence has not produced any report or summary authored by Mr. Gonsalves-Barriero's therapist in relation to the issues which the counselling is designed to address. The author of the Pre-Sentence Report did, however, have an opportunity to speak with Carl Lyons, Mr. Gonsalves-Barriero's counsellor. Mr. Lyons advised that his patient:


·       ... had attended for counselling to address issues related to his domestic situation, which was reportedly problematic and the subject was not finding it supportive or satisfactory, but he felt the subject appeared afraid of being alone. In addition, they focussed on the subject's shame and guilt and coping with anxiety and depression. He advised that the subject appeared motivated and eager to address these issues. 

During the course of sentencing submissions, counsel for Mr. Gonsalves-Barriero clarified that his client's anxiety and depression arose following his arrest in this matter. Put another way, the defence has not suggested that the offences before the Court were, somehow a response, or otherwise connected, to these conditions.

35     By all accounts placed before the Court, Mr. Gonsalves-Barriero suffers from no substance abuse issues.

36     Mr. Gonsalves-Barriero's extended family continues to remain important to him. Though he has no children of his own, he has provided financial and other support to a foster child in Antigua who is now an adult. As is evident in the voices of the authors of the character letters filed with the Court, he enjoys the support of a close circle of longstanding friends who, themselves, enjoy fine reputations within the community.

37     Before settling into a career as a public servant, Mr. Gonsalves-Barriero worked for several law firms. As noted above, Mr. Gonsalves-Barriero has been employed with CIC since 2000 and for five years worked as an Immigration Officer. A co-worker interviewed for the purpose of preparing the Pre-Sentence Report described Mr. Gonsalves-Barriero as forthright and humorous. He was well-liked and respected at his workplace. Indeed, as confirmation of same, in 2008 he received an award from his employer for peer recognition.

38     Mr. Gonsalves-Barriero has supplemented his work responsibilities with considerable and varied volunteer work. He has been involved with the Black Coalition for AIDS Prevention, the AIDS Committee of Toronto, an Adult Literacy Program offered through the YMCA, a speech pathology program operating out of a local hospital, the Good Shepherd Ministries, and Cause For Us, which is an organization that fundraises for Princess Margaret Hospital. He was a founding member of AYA, a support group for gay men of African Canadian descent. He has volunteered his time with provincial and national netball associations as a board member and umpire. For the past two years he has volunteered his time with the Enbridge Ride to Conquer Cancer and for the Weekend to End Women's Cancers. The generosity Mr. Gonsalves-Barriero has shown through his contributions to the community appear to reflect the good character he has demonstrated to his friends and associates. I note, for example, that the authors of the character letters filed on Mr. Gonsalves-Barriero's behalf variously describe him as generous in opening up his home to others in financial need, passionate about his work and sensitive to the needs of his clients, dependable, intelligent, non-judgmental, self-sacrificing, compassionate, responsible, hardworking, courteous and as a caring, devoted and loyal friend, family member and life partner.

39     I am given to understand that in the future, Mr. Gonsalves-Barriero wishes to finish his undergraduate degree, continue his volunteer work in the community, and become an ESL teacher.

40     I reiterate that it is very difficult to reconcile this individual with the man who exploited Mr. Ramalho, Mr. Farah and the Abrahams.

III. Relevant Sentencing Principles

41     Section 718 of the Criminal Code provides that the fundamental purpose of sentencing an adult offender is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have certain objectives.

42     It is common ground between the parties that the relevant sentencing objectives in this case are to denounce Mr. Gonsalves-Barriero's unlawful conduct and to deter him and like-minded individuals from engaging in such conduct. Those sentencing principles must inform the nature and length of the sentence I impose in this case. I will now turn to a brief discussion of each of those sentencing objectives and how they apply to this case.

43     The objective of denunciation requires that a sentence communicate society's condemnation of the offender's conduct. This concept was best explained by the Supreme Court of Canada in R. v. C.A.M., [1996] S.C.J. No. 28 at para. 81:


·       In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". 

44     The Supreme Court went on to explain:


·       The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code

45     By reason of its purpose, denunciation necessarily focuses on the impugned conduct and not the circumstances of the offender. However, the focus cannot simply be on the delict which satisfies the elements of the offence: instead, to be meaningful, the inquiry must consider the context of the offence. In this case, the offences involve the repeated exploitation of a vulnerable category of individuals by a public servant in whom the community places its trust that he will act with the utmost integrity and uphold the reputation of Canada as a nation which will not tolerate corruption within government.

46     The objective of a deterrent sentence is its operational value. A sentence informed by the principle of specific deterrence must function to discourage the particular offender before the Court from reoffending. A sentence focused on general deterrence operates to discourage like-minded members of the community, as distinguished from the particular offender who is being sentenced, from ever engaging in the proscribed conduct. As noted in Sentencing, 7th Ed. by Clayton Ruby, et al. at page 7, s. 1.21, "the assumption underlying deterrence as a goal of sentencing is that the threat or example of punishment discourages crime." I have been mindful, however, that the Supreme Court of Canada in R. v. Proulx, [2000] S.C.J. No. 6 has cautioned against over-reliance on deterrence as a principle of sentencing.

47     Counsel for the Crown has invited the Court to impose consecutive sentences in relation to multiple offences. In the circumstances of this case, the law entitles me to impose consecutive sentences of imprisonment. Nonetheless, I retain a discretion to consider the appropriateness of concurrent, as distinguished from consecutive, sentences of imprisonment. Even if I feel compelled to impose consecutive sentences, I must be mindful that the total sentence not be unduly long or harsh, such that its length undermines the value sought to be achieved in the first place through the imposition of a sentence of imprisonment.

IV. Summary of Aggravating & Mitigating Factors

48     Counsel to the parties have provided a range of sentence for my consideration. I agree that a fair and appropriate sentence that can fully advance the relevant sentencing principles falls somewhere within the proposed range. Where within that range the sentence ought to fall is a function, in part, of the aggravating and mitigating factors disclosed by the circumstances of Mr. Gonsalves-Barriero and his offences. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. See: para. 718.2(a) of the Code.

49     Aggravating factors are those that push the fair and appropriate sentence towards the higher end of the range. Mitigating factors are those that push the fair and appropriate sentence towards the lower end of the range.

50     The aggravating factors in this case may be summarized as follows:


·       (1) 

As noted above, this category of offences strikes at the heart of government integrity and the trust that the community at large, including applicants for permanent residence, places in its public officials. As is made clear in para. 


·       718.2(a)(iii) of the Criminal Code, that these transactions were committed while abusing a position of trust or authority in relation to the victim must be regarded as an aggravating circumstance on sentencing; 


·       (2) 

In the particular circumstances of these offences, Mr. Gonsalves-Barriero exploited a particularly vulnerable category of people. For personal, monetary gain, he took advantage of these individuals' desperate desire to remain in Canada and/or relieve the stress associated with the uncertainty of their application and, in the case of the Abrahams, to also keep their family intact. In my respectful view, he metaphorically brought these individuals to their knees; 

·       (3) 

The impact upon Mr. Ramalho, Mr. Farah and the Abrahams has been not insignificant. They are left with a feeling of profound distrust. The emotional impact has adversely affected the way they carry on their day-to-day lives. In the cases of Mr. Farah and the Abrahams, they have endured considerable financial impact; 

·       (4) 

It is reasonable to conclude that Mr. Gonsalves-Barriero has placed at risk the reputation of the screening process within the Humanitarian and Compassionate Division of CIC, certainly in the eyes of those whose applications sit within that division. In sullying his reputation, Mr. Gonsalves-Barriero has tarnished the reputation of his colleagues who administer the process for applying for permanent residence. That impact of his actions must not go unrecognized; 

·       (5) 

It is particularly troubling that Mr. Gonsalves-Barriero preyed upon more than one target. He took advantage of three different applicants over a mere five- month period. Clearly, his initial experience with Mr. Farah did not deter him from seeking out his additional two victims; 

·       (6) 

The incidents be-spoke a degree of pre-meditation and planning. Put simply, it is not as if these transactions were the product of a momentary lapse in judgment. Mr. Gonsalves-Barriero's use of his personal cell phone when engaging with the applicants and his meeting some of them beyond CIC property supports the irresistible inference that he knew what he was doing was wrong and was seeking to cover his tracks such that he could not be held accountable for his behaviour; and 

·       (7) 

It was Mr. Gonsalves-Barriero who, in all instances, took the initiative to solicit compensation for ensuring favourable consideration for the impugned applications for permanent residence. It was not as if he succumbed to temptation in the face of an offer of a bribe by an applicant. In this respect, the case is distinguishable from the circumstances in R. v. MacInnis, [1991] N.J. No. 306 (Sup. Ct.) wherein a global sentence of nine months in custody was imposed for a series of improper transactions engaged in by an immigration officer. 

51     To be fair to Mr. Gonsalves-Barriero, it is appropriate to note the absence of any aggravating factors in this case. In particular, I note that it was never suggested that he threatened those he exploited with any adverse consequences should they disclose to the authorities that he had proposed these arrangements. Further, there is no suggestion that by not properly exercising his discretion as a gatekeeper within CIC that he put national security at risk. In this respect the case is very different from that which justified what was, effectively, a sentence of four-and-a-half years in custody for a single transaction involving the theft of a large number of blank passports in R. v. Blanas, [2006] O.J. No. 364 (C.A.).

52     The mitigating factors in this case may be summarized as follows:


·       (1) 

Mr. Gonsalves-Barriero has no criminal antecedents. Indeed, those who have known him through work, through friendship and through community outreach concur that the offences which bring this gentleman to Court are very much out of character for him. His previous contributions to the community, in addition to his otherwise unblemished record as a public servant, must be regarded as mitigating factors on sentence; 

·       (2) 

Mr. Gonsalves-Barriero has pled guilty to these offences. In so doing, he has taken responsibility for his actions. A guilty plea also evinces a degree of remorse. The expression of remorse has manifested itself in other ways. In his conversations with those who have enjoyed longstanding relationships with Mr. Gonsalves-Barriero, he has left them with the impression that he genuinely feels terrible for what he has done and understands the magnitude of the impact of his actions. Further, he expressed a sense of responsibility and regret to the author of the Pre-Sentence Report. Finally, in addressing the Court directly, Mr. Gonsalves-Barriero presented as genuinely contrite in his apologies for his actions. It must also be said that in entering a plea of guilt to these charges, he has saved Mr. Ramalho, Mr. Farah and the Abrahams the task of reliving the horror of their experiences through testifying at possibly as many as two different hearings; 

·       (3) 

Mr. Gonsalves-Barriero has already incurred a degree of punishment for his actions from the process of arrest and prosecution. I am given to understand, for example, that this matter has attracted a degree of media attention and Mr. Gonsalves-Barriero has felt the weight of that spotlight. The toll that the last two years has taken on him is reflected in the observation of Neil Edwards, an author of one of the character letters that comprises Ex. 4 in these proceedings, wherein he writes at page 2 of his letter: 


·       ... I can also say as a friend that the past two years have taken a toll on his mental capacity; this I have observed as I have been to court each day with him. George has been completely broken by his action or actions and extremely remorseful for having breached the public trust which was entrusted to him. 


·       I am mindful that following his arrest in this matter, Mr Gonsalves-Barriero has been coping with both depression and anxiety associated with the stress of this prosecution. Finally, I note that he has also jeopardized his career within the public service; and 


·       (4) 

Mr. Gonsalves-Barriero has made restitution for the financial losses he caused Mr. Farah and the Abrahams to incur. This serves as a powerful indicator of his remorse. Hopefully, this effort towards restorative justice will serve to relieve Mr. Farah and the Abrahams of some of the adverse impact his actions have caused them; 

53     Just as it is important to note the absence of certain aggravating factors, it is equally important to make mention of the absence of certain mitigating factors. For example, there is no concrete evidence before me to support the conclusion that Mr. Gonsalves-Barriero's behaviour was somehow temporally and/or causally linked to a pre-existing condition or other set of personal circumstances, such as an unaddressed addiction, unresolved mental health issues, or other personal challenges over which he had limited control. The record before me alludes to the existence of some challenges. I noted, for example, that one of the character letters indicated that Mr. Gonsalves-Barriero has had to cope with the symptoms associated with Grave's Disease. A number of sources have referred to the ongoing stress he has experienced as a result of his current common law relationship. In this regard, I note that page 2 of the letter written by Marlon A. Whyte, one of Mr. Gonsalves-Barriero's longstanding friends, reflects the following:


·       Geo had been under tremendous stress for a number of years now, because while there has been no professional medical diagnosis, his partner does exhibit signs of manic depression which has caused immense stress and anxiety to Geo. The carefree, laissez-faire, exuberance that he had so easily displayed in the past has been tempered with a severe concern for his partner's erratic and consistently abusive behaviour. All of his, coupled with the associated lack of sleep has no doubt impacted his focus and decision making process. 

However, as noted above, Mr. Gonsalves-Barriero does not appear to be relying upon the negative impact of his common law relationship to explain the behaviour which brings him to Court.

54     Without the benefit of legally admissible evidence which ties together the impugned behaviour with these stressors, I am left to speculate as to whether these challenges did, in fact, play a role in the commission of these offences. Obviously I cannot base a sentence on mere speculation. I do have evidence that Mr. Gonsalves-Barriero took a trip overseas soon after his interactions with the Abrahams. The inference open to the Court on the record generated by the parties is that Mr. Gonsalves-Barriero's actions were motivated, at least in some measure, by personal greed.

55     Finally, I note that while Mr. Gonsalves-Barriero did serve two days of pre-trial detention, it has not been suggested that his conditions of pre-sentence release were so onerous that they ought to be regarded as a mitigating factor on sentence.

56     In support of their respective positions, counsel for the parties have provided a sampling of case law which is, in one or more respects, arguably analogous to the underlying facts in this case. In reviewing these decisions, I have been mindful of the sentencing principle of parity which requires that the sentence I impose today be similar to others imposed on similar offenders for similar offences committed in similar circumstances. See: para. 718.2(b). I accept Mr. Lockhart's submission on behalf of the Crown that the range of sentence for a single act of breach of trust by a public official can attract a sentence anywhere in the range of nine to 24 months in custody. Of those provided, I have found the decision of R. v. Driscoll, [1984] N.J. No. 121 (C.A.) to be the most factually analogous. In that case the Court of Appeal upheld a 15-month sentence of custody, imposed following a trial, for a single attempt to extort a landed immigrant. The offender threatened the victim with deportation unless money was paid to him. The following comments of Gushue J.A., who authored the Court's judgment, and which appear at page 2 of the judgment, are apt:


·       There can be no doubt that the appellant was seriously in breach of the trust reposed in him by the Department of Citizenship and Immigration and the gravity of his offence was compounded by his utilizing his position as a perceived person in authority over the complainant to have him deported from Canada if money were not paid to obviate that possibility. Needless to say, in the minds of immigrants from some countries, the extent of the authority and power of a person in the appellant's position may very well be magnified. 


·       Attempted extortion, or blackmail as it is commonly called, of an innocent victim is one of the most insidious and contemptible of crimes and should, in our view, attract a substantial prison term by way of sentence. 

57     I have, however, been mindful that the facts in Driscoll, supra, are distinguishable from Mr. Gonsalves-Barriero's case in three material areas. Firstly, unlike Mr. Gonsalves-Barriero, Mr. Driscroll did not accept responsibility for his actions through the entering of a plea of guilt. In this respect, Mr. Gonsalves-Barriero's circumstances are more favourable. Secondly, Mr. Driscoll attempted, in a subtle fashion, to discourage his victim from coming to court to testify against him. Once again, in this respect, Mr. Gonsalves-Barriero's circumstances are more favourable. Thirdly, unlike Mr. Gonsalves-Barriero, Mr. Driscoll did not profit from his impugned conduct and, thus, it can be inferred that Mr. Driscoll's actions had no adverse financial impact upon his victim. In this respect, Mr. Gonsalves-Barriero's circumstances are less favourable. I am reminded that Mr. Farah had to take out a line of credit in order to pay off Mr. Gonsalves-Barriero and the Abrahams had to dip into the savings they had set aside for their son's education.

V. Conclusion

58     Having taken into consideration the circumstances of the offences and the personal circumstances of Mr. Gonsalves-Barriero, I have concluded that the primary sentencing principles in operation in this case are denunciation and general deterrence. The combination of Mr. Gonsalves-Barriero's personal circumstances, including his previous exemplary good character, together with his genuine remorse and the impact that his arrest and prosecution have had upon him, support the inference that he is not likely to re-offend. Accordingly, the principle of specific deterrence plays virtually no role in this sentencing.

59     It is common ground between the parties that a sentence of custody within the penitentiary is the least onerous punishment that I can impose in this case. I agree. The parties are, however, quite far apart, as to the appropriate duration of that sentence. If I impose a sentence of no more than two years, it would also be open to me to order that Mr. Gonsalves-Barriero be placed on probation for up to three years following the completion of his custodial sentence. Rehabilitation as a sentencing objective is aimed at treating and hopefully curing an offender of the risk factors that caused him or her to engage in the criminal conduct in the first place. The goal of rehabilitation is generally best achieved through the imposition of probation whereby the offender is supervised within the community and has ready access to support systems and other resources, which can include counselling programs, designed to address the offender's criminogenic factors. To a lesser extent, rehabilitative goals can be addressed in a custodial environment, provided, of course, that the offender avails himself of counselling opportunities which are available within the institution. In the absence of meaningful and enlightening evidence regarding Mr. Gonsalves-Barriero's motive in committing these offences, it strikes me that this sentence should not be as informed by the principle of rehabilitation as might otherwise be the case.

60     I cannot emphasize enough the gravity of these offences and Mr. Gonsalves-Barriero's high degree of responsibility for them. What is so profoundly troubling about this case is that Mr. Gonsalves-Barriero, who was vested with a considerable amount of discretion in the execution of his duties, not only betrayed the trust that the community at large and applicants for permanent residence place in our public officials, but also he sought personal gain in the context of a profound power imbalance. This is not simply a case where a public official sought to exploit another individual's desire to profit financially, as was the case in R. v. Gyles, [2005] O.J. No. 5513 (C.A.) wherein a global sentence of two-and-a-half years in custody, concurrent on each count, imposed after trial was upheld in relation to a municipal councillor who sought and received substantial financial benefits from two separate individuals in exchange for the former's support of their rezoning applications. Here, Mr. Gonsalves-Barriero, a gatekeeper within Canada's immigration system, took advantage of the applicants' desperate desire to remain in this country and not be deported to their countries of origin. It is tragically ironic that, for example, Mr. Ramalho, in immigrating to Canada, was attempting to flee from the very corruption he faced during his encounters with Mr. Gonsalves-Barriero. In the case of the Abrahams, Mr. Gonsalves-Barriero not only exploited their profound desire to do whatever it took to gain permanent residence status, but also he, effectively, forced Mr. Abraham and his wife to choose between paying a bribe or risk having their family torn apart. Such exploitation is nothing short of shocking. It is by reason of the aggravating factors in this case, and, in particular, the repetition of Mr. Gonsalves-Barriero's behaviour, that I have concluded that the sentence proposed by the defence falls far short of what the principles of denunciation and general deterrence require.

61     I have been mindful of the mitigating factors in this case. In the absence of Mr. Gonsalves-Barriero's acceptance of responsibility for his actions, his efforts towards full restitution and his previous contributions to the community, I would have no hesitation in imposing the sentence sought by the Crown. However, in my view a global sentence of 48 months in custody is somewhat high.

62     Having given careful consideration to the matter, I have concluded that a global sentence of 44 months in custody is the least restrictive global sentence that I can impose having regard to the circumstances of the offences and of the offender. The sentence will be broken down as follows:


·       (1) 

In respect of count 4, a breach of trust by a public officer in relation to Mr. Ramalho, I sentence Mr. Gonsalves-Barriero to 13 months in custody; 

·       (2) 

In respect of count 6, a breach of trust by a public officer in relation to Mr. Farah, I sentence Mr. Gonsalves-Barriero to 14 months in custody, consecutive to the sentence imposed for count 4. In my view, the impact of Mr. Gonsalves-Barriero's actions upon Mr. Farah were more severe than they were for Mr. Ramalho and, accordingly, a more severe sentence is justified; and 

·       (3) 

In respect of count 8, a breach of trust by a public officer in relation to Mr. and Mrs. Abraham, I sentence Mr. Gonsalves-Barriero to 17 months in custody, consecutive to the sentences imposed for counts 4 and 6. In my view, Mr. Gonsalves-Barriero's conduct in relation to this couple was particularly pernicious and justifies an even higher sentence than what was imposed in relation to the transaction involving Mr. Farah. 

63     This sentence is on top of the two days of pre-sentence detention which I am prepared to credit applying a factor of 1:1. I would ask that the pre-trial detention be noted on the face of the information.

64     Finally, by way of ancillary orders, I note that the Crown has requested that the three counts of fraud on the government to which Mr. Gonsalves-Barriero pled guilty on June 27, 2012 be stayed in accordance with the principles set out in R. v. Kienapple. Having regard to the underlying facts of these offences, that request is appropriate and those three counts will be stayed. Further, the Crown has asked that I order Mr. Gonsalves-Barriero provide a sample of his DNA to the appropriate authorities in relation to the three counts of breach of trust by a public officer. Having regard to the classification of the offence of breach of trust by a public officer within s. 487.04 of the Code, I cannot make the order unless satisfied that it is in the best interests of the administration of justice to do so. See: s. 487.051(3) of the Code. In considering that test, I have taken into account that Mr. Gonsalves-Barriero has no previous criminal history. I have further taken into account the category of the offence, together with the circumstances surrounding the commission of each offence. As noted above, there are numerous troubling aspects to those circumstances. I have been mindful of the impact such an order would have on Mr. Gonsalves-Barriero's privacy interests. Finally, I have borne in mind the direction of the Ontario Court of Appeal in its decision, R. v. Hendry (2001), 161 C.C.C. (3d) 275 (Ont. C.A.) that in the case of an adult offender, found guilty of what is commonly referred to as a secondary designated offence, in the vast majority of cases, it would be in the best interests of the administration of justice to make the order. On balance, I have decided that such an order ought to be made in the circumstances of this case.

65     Having regard to the fact that Mr. Gonsalves-Barriero has not been receiving an income from his employer for quite some time now, the victim-fine surcharge will be waived.

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