R. v. Gonsalves-Barriero
Between
Her Majesty the Queen, and
George Gonsalves-Barriero
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.
A. Tuck-Jackson J.
Heard: June 27, August 28, 2012.
Judgment: September 20, 2012.
(65 paras.)
A. TUCK-JACKSON J.:--
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,
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
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:
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;
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
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:
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;
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;
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;
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;
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;
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
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:
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;
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;
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
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:
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;
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
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.
A. TUCK-JACKSON J
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