BRITISH COLUMBIA COURT OF APPEAL REJECTS ARGUMENT OF INEFFECTIVE ASSISTANCE OF COUNSEL

The immigration consequences of criminal convictions are always an important consideration sentencing, as per the Supreme Court of Canada decision in R.V. Pham. However, that decision did not offer a "free pass' to convicted criminals.  One argument that those convicted have tried to advance to escape the restrictive language in Pham is to rely on lack of knowledge of immigration consequences and "blame the lawyer" by arguing that counsel did not make them aware of those  consequences. In the case below , the BCCA rejects such argument.

R. v. Kitawine

Between
Regina, Respondent, and
Hemed Kassim Kitawine, Appellant

[2016] B.C.J. No. 752

2016 BCCA 161

Docket: CA41654

 British Columbia Court of Appeal
Vancouver, British Columbia

I.T. Donald, M.E. Saunders and R. Goepel JJ.A.

Heard: March 14 and 16, 2016.
Judgment: April 18, 2016.

(30 paras.)

Court Summary:

Appeal against a conviction for robbery following a guilty plea said to be without awareness of the immigration consequences. Held: appeal dismissed. While the legal advice the appellant received was incomplete, it did not cause him to plead guilty. He pleaded guilty in the hope of getting a lower sentence. The prospect of remaining in Canada after a conviction for robbery was too remote. No miscarriage of justice was shown.

Appeal From:

On appeal from an order of the Supreme Court of British Columbia, dated October 21, 2013 (R. v. Kitawine, Victoria Docket 155709-2).

---

Reasons for Judgment

·         The judgment of the Court was delivered by 

1     I.T. DONALD J.A.:-- The appellant pleaded guilty to robbery, hoping that if he received a sentence of six months he would keep alive his chances of remaining in Canada. His counsel was unaware that as a matter of law a conviction for an offence, like robbery, carrying a maximum penalty of ten years or more, would terminate the appellant's appeal from an immigration removal order, regardless of the length of sentence.

2     The appellant appeals for an order permitting him to withdraw the plea and for a new trial on the ground he was not informed of the consequences of his plea.

3     I would dismiss the appeal. The criminal process was not unfair. The appellant was well aware that his conviction would seriously jeopardize his immigration status. His position was not made worse by acting on incomplete advice about sentencing.

Background

4     The appellant is a Tanzanian national. He was granted permanent resident status in Canada on 31 March 2001. He is the father of two children who live with their mother in Alberta.

5     On 15 July 2011, a member of the Immigration Division of the Immigration and Refugee Board made a removal order on a finding that the appellant is inadmissible to Canada on grounds of serious criminality: s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). This refers to convictions for 12 offences recorded on 7 October 2010 for fraud and identity theft. He was sentenced to 15 months' imprisonment and one year of probation.

6     The appellant appealed the order and sought a stay on humanitarian grounds: s. 68(1) of the Act. After a hearing before the Immigration Appeal Division, a stay was granted for four years. The decision, dated 29 November 2011, contained a Notice of Decision which, in relevant part, reads as follows:

NOTICE OF DECISION

·         The removal order in this appeal is stayed. This stay is made on the following conditions -- the appellant must: 

[1]

Inform the Canada Border Services Agency (the "Agency") and the Immigration Appeal Division (the "IAD") in writing in advance of any change in your address.

The address of the Agency is:
 Canada Border Services Agency
 700 - 300 West Georgia Street
 Vancouver, BC V6B 6C8

The address of the IAD is:
 Immigration Appeal Division
 1600 - 300 West Georgia Street
 Vancouver, BC V6B 6C9

[2]

Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.

[3]

Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.

[4]

Not commit any criminal offences.

[5]

If charged with a criminal offence, immediately report that fact in writing to the Agency.

[6]

If convicted of a criminal offence, immediately report that fact in writing to the IAD.

* * *

·         [13] Keep the peace and be of good behaviour. 

FINAL RECONSIDERATION

·         Take notice that the IAD will reconsider the case on or about the 9th day of October, 2015 or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address. 

·         The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay. 

IMPORTANT WARNING

·         This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered. 

·         [Underlined emphasis added.] 

7     On 21 January 2013, the appellant was charged that, in Victoria, on 1 December 2011, he robbed a woman of her purse, contrary to s. 344(1)(b) of the Criminal Code. Robbery carries a maximum penalty of life imprisonment.

8     The appellant engaged Mr. Andrew Rafuse, who represented him at the immigration appeal hearing, to act for him at the preliminary inquiry. He was committed for trial. He engaged Mr. Timothy Russell as counsel for the trial. After discussing the immigration implications of the robbery case with Mr. Rafuse, Mr. Russell approached the Crown prosecutor for a plea bargain for a sentence of six months. The prosecutor was seeking a sentence of one year and the appellant was so informed. On the day of trial, Mr. Russell had a conflict in his schedule and arranged for Mr. Mathais Sarrazin to act for the appellant.

9     The trial proceeded on 21 October 2013 and the Crown called the complainant and her friend who witnessed the event. They testified they were walking down the street in Victoria at night when a man came from behind, grabbed the purse strap off the complainant's shoulder, and after a brief struggle ran away with the purse. He was apprehended by the police shortly thereafter.

10     Before the Crown was to call its last witness, a police officer, the court took a recess. According to Mr. Russell, he and Mr. Sarrazin explained to the appellant that the case against him was strong, and unless he testified, a conviction was inevitable. The appellant did not want to give evidence. Counsel then suggested he might receive a lesser sentence by pleading guilty as a show of remorse and acceptance of responsibility. He instructed counsel that he wished to plead guilty. The appellant and his lawyers have different versions of what happened next.

11     The appellant was cross-examined on his affidavit to support a claim of ineffective assistance of counsel. His evidence was that he pleaded guilty to get a sentence that allowed him to stay in Canada. That was his theme and he stuck to it. For the most part, his testimony was unconvincing. He was argumentative and unresponsive. His statement that he had a plea bargain for a sentence of six months does not fit in with the surrounding circumstances. He was not promised a six-month sentence in exchange for a plea. What does emerge from the evidence is that his lawyers thought, before trial, that a six-month sentence might have an impact on his immigration status and so advised him. I am satisfied that the appellant believed that if he received a six-month sentence he might be able to argue for a continuation of his stay of removal. But I am also satisfied that he knew the Crown was seeking a greater sentence and there was no plea bargain.

12     At sentencing, his counsel was still not fully briefed on the immigration implications of the sentence. The following is an excerpt from the transcript at the sentence hearing:

·         MR. RUSSELL: ... 

·         I wish to say something also about Mr. Kitawine's immigration circumstances, and I -- I had spoken to Mr. Rafuse a number of months ago, actually around the time that the plea was entered, and the advice at that time from Mr. Rafuse was that an offence of. . . 

·         THE COURT: Who's Mr. Rafuse? 

·         MR. RUSSELL: Sorry, Mr. Rafuse is the immigration counsel for Mr. Kitawine, and as a result of his last offence, he -- Mr. Kitawine is facing immigration issues with -- he's a permanent resident and so there -- there was a[n] effort to have him removed from Canada and that effort has been resisted, and what Mr. Rafuse advised just prior to the guilty plea was that a sentence of six months or less would be a significant advantage to him in his immigration pursuits and I -- in the sense that it would, as I understood, preserve a right of appeal. 

·         Now, I -- what I'd tried at the break, I -- I tried to contact Mr. Rafuse again today, this morning, and I was unable to. I was trying to get some material for Your Ladyship to point to the sections and to try to explain that to you, but unfortunately immigration law is a little bit more complicated than I'm able to put that altogether, but that -- I can tell you that I did have that conversation with Mr. Rafuse and that was the advice I received from him. 

·         Certainly, there's a reference in s. 36(1) to the definition of serious criminality, however in trying to -- and one of those definitions is being convicted of an offence for which a term of imprisonment of more than six months has been imposed. The other definition for that is being convicted of a[n] offence with a maximum term of imprisonment of at least 10 years. So I think both of them apply, so I'm not sure how the six-month limitation -- not sure how it, in fact, engages in this case, but that was the advice that had been provided to me earlier. 

·         And the reason I raise that is because I am asking this court to consider a sentence of six months and what -- the cases that my -- my friend referred to, in my submission, are all significantly worse cases... 

13     He was sentenced to a term of one-year imprisonment and two years' probation.

14     The Immigration Appeal Division issued a further Notice of Decision, Removal Order, cancelling the stay and terminating the appeal, on 8 May 2014.

15     This matter began as a sentence appeal and was converted to a conviction appeal when it appeared to a division of this Court that, after hearing him in person, the appellant's argument went to the validity of his guilty plea. Counsel was appointed for him under s. 684 of the Criminal Code and, in due course, an application was filed to admit as fresh evidence the affidavits of the appellant, Mr. Rafuse and Mr. Russell.

16     Counsel for the respondent was given leave to cross-examine all three affiants at the hearing of the appeal and did so.

Issues

17     The appeal raises the following issues:

·         1. 

Must an accused have complete awareness of the collateral consequences of a guilty plea? 

·         2. 

Was the process in which the appellant pleaded guilty of robbery unfair? 

Discussion

·         Awareness of Consequences

18     The elements of a valid guilty plea are prescribed in s. 606 of the Criminal Code which, in subsection (1.1), sets out the conditions for accepting a guilty plea:

·         (1.1) 

A court may accept a plea of guilty only if it is satisfied that the accused

·         (a) is making the plea voluntarily; and 

·         (b) understands

·         (i) 

that the plea is an admission of the essential elements of the offence, 

·         (ii) 

the nature and consequences of the plea, and 

·         (iii) 

that the court is not bound by any agreement made between the accused and the prosecutor. 

·         [Emphasis added.] 

19     Relevant consequences may, depending on the circumstances, include the effect of a sentence on matters collateral to the criminal process itself, such as immigration or licensing. Thus, in R. v. Quick, 2016 ONCA 95, the court set aside a guilty plea for dangerous driving on the ground that the appellant's plea was not informed because he was unaware of the indefinite suspension that automatically followed under the Highway Traffic Act, R.S.O. 1990, c. H.8. Mr. Justice Laskin, for the court, put the test this way:

·         [33] What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant. I draw support for this approach from the reasons of Lebel J. in R. v. Taillefer; R. v. Duguay, 2003 SCC 70; [2003] 3 S.C.R. 307 and the reasons of Watt J.A. in R. v. Henry, 2011 ONCA 289. 

20     Quick was a case of absence of knowledge. More difficult are those cases where the accused had a general awareness of the nature of the collateral consequences, but not necessarily an appreciation of the precise outcome. The general trend in such cases, beginning with R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tyler, 2007 BCCA 142, in this jurisdiction; and R. v. Shiwprashad, 2015 ONCA 577 in Ontario, is to uphold the plea as sufficiently informed.

21     Where it is alleged that counsel failed to give any advice on immigration consequences, the extent of the accused's own knowledge of his jeopardy is a crucial factor: see, e.g., Shiwprashad at paras. 72-73. The instant case presents a different wrinkle; here, the appellant says he was wrongly led to believe by his lawyers that pleading guilty might help his immigration problem. It would appear that the bargaining for a six-month sentence before trial and the submission at sentence by Mr. Russell support the appellant's contention. Mr. Darnay, his counsel on appeal, submits that this misunderstanding deprived his client of the option of continuing with the trial and taking his chances on the outcome. This argument must be closely examined to determine whether there was a miscarriage of justice.

·         Fairness of the Process

22     During the break in the trial, the appellant found himself in a tight predicament. The Crown had put in a strong case which called for an answer. The appellant was unwilling to testify. He was left with two options: proceeding with the trial and advancing an argument that he did not intend any violence and should be found not guilty of robbery, but guilty of the lesser but included offence of theft under $5,000; or pleading guilty and hoping for a more lenient sentence.

23     The first option was not viable. Both Crown witnesses testified that the complainant resisted the theft and struggled with the appellant, so the violence element of the robbery offence was established. Their testimony was not shaken in cross-examination. This would have been obvious to the appellant.

24     The second option, pleading guilty, was the one he chose. I can put the appellant's position no higher than the following: the six-month issue may have been at the back of his mind and influenced his choice, but the immigration problem was not part of the discussion he had with his counsel at the break just before he pleaded guilty. This is how Mr. Russell described the discussion in his affidavit:

·         6. 

I was at the same Courthouse during the trial and I spoke with Mr. Kitawine and Mr. Sarrazin at the break after the critical crown evidence had been called. Mr. Sarrazin advised me that the crown witnesses were very strong and that, in his opinion, a conviction was inevitable. I was present when Mr. Sarrazin told Mr. Kitawine that unless he could testify and raise a reasonable doubt as to his actions and/or his intentions that it was very likely he would be convicted. Mr. Kitawine was clear that he did not want to testify. Mr. Sarrazin suggested to Mr. Kitawine that he might receive a lesser sentence by pleading guilty, as a show of remorse and an acceptance of responsibility. Mr. Kitawine then instructed Mr. Sarrazin that he wished to change his plea to guilty. 

25     The appellant's assertion that he thought he had a plea bargain for six months is not credible. He admitted in cross-examination that he knew the prosecutor intended to argue for a higher penalty. But what about his state of mind regarding his immigration plight?

26     The appellant acknowledged receiving the Immigration Appeal Division's stay decision with the notice attached stipulating a condition that he not commit any criminal offence (see para. 6 of these reasons). His immigration lawyer, Mr. Rafuse, said in cross-examination that he told the appellant any conviction would likely end the stay order regardless of the sentence.

27     In trying to measure the degree of influence that the confusion over the six-month sentence played in the appellant's decision to plead guilty, I note the following uncertainties that were known to him:

·         1. 

The sentencing judge would have to give him a sentence of six months. Mr. Russell told him a sentence of less than one year was unlikely. I quote from Mr. Russell's affidavit: 

·         3. 

I met with Mr. Kitawine before trial. I explained to him that if the crown witnesses appeared and testified in accordance with their statements to police that he would very likely be convicted of robbery, unless he could testify to a defence. I advised him that if convicted the Crown would seek a 1 year jail sentence and that I thought it unlikely he would receive less, given his record and all of the circumstances... 

·         2. 

Even if he succeeded in getting a sentence of six months, he had to face the Immigration Appeal Division when he had breached its condition not to commit an offence within six months of its issuance. 

28     I conclude that if, as the appellant says, he pleaded guilty to stay in Canada, he did so on wishful thinking, not from anything his lawyer said to him. The only incentive held out to him was the prospect of a lower sentence. He was not led to believe that he would get a sentence that would help his immigration problems. In my judgment, the appellant pleaded guilty to make the best of a bad situation.

29     For the foregoing reasons, I conclude that the process was not unfair and no miscarriage of justice occurred.

30     I would dismiss the appeal.

I.T. DONALD J.A.
M.E. SAUNDERS J.A.:-- I agree.
R. GOEPEL J.A.:-- I agree.

SERGIO R. KARAS MODERATES PANEL AT ABA CONFERENCE IN EW YORK

I was honored to chair and moderate a panel at the American Bar Association Section of International Law, "Till death do us part...or not? : international issues in marriage, divorce and custody". My sincere thanks to the panelists who did a superb job: Graeme Kirk, Jessica Sandberg, Jeremy Morley and Daniela Horvitz.

SERGIO R. KARAS QUOTED IN TODAY'S GLOBE AND MAIL ON EXPRESS ENTRY

I was quoited in today's Globe and Mail article on Express Entry. http://www.theglobeandmail.com/news/national/express-entry-program-skewed-too-heavily-toward-in-demand-jobs-critics/article29488413/

March 31, 2016

Express Entry program skewed too heavily toward in-demand jobs: critics

By SIMONA CHIOSE 

A government report shows majority of invitees were already in the country as temporary residents

Almost 80 per cent of the people who were invited to apply for permanent residence through Express Entry were already in Canada, the government said in its year-end report on the new immigration system, released on Thursday.

Slightly more than 31,000 invitations were issued in 2015, a number that will grow in coming years as Express Entry becomes the main pathway for economic immigrants. The system was designed to improve how well immigrants do in the labour market by better matching them with employers, but some say that the results from its first years show it is too skewed toward jobs in demand right now.

"You have to look at some of the human capital and there is not enough of that going on," said Stephen Green, a Toronto-based immigration lawyer.

Express Entry awards people 600 points in its ranking system if their employer has applied for a labour market impact assessment (LMIA), showing they tried to find a qualified Canadian for the job. Employers in many industries, from high tech to business, have said the process is slow and approval rates are low, leaving them increasingly unable to recruit much-needed workers from abroad.

"I don't believe that our selection of economic immigrants should be weighed so heavily on a labour-market test," Mr. Green said.

A review of Express Entry, Citizenship and Immigration Canada said in a statement, will look at all aspects of the program.

"The review will include ... job offers, the LMIA requirement, and how Express Entry can be used to better support former international students and family reunification," the statement said.

Any review of the system must give priority to labour market needs, Michelle Rempel, the Conservative immigration critic, said in a statement.

"Unfortunately, the current Liberal government plans to slash key streams of economic immigration, including 15,000 spots in the Federal Skilled Workers Program, 8,000 cuts to the Caregiver immigration class and 800 cuts to the Business Class stream," the statement said.

Express Entry is to become the main entry route for economic immigrants, but the report shows that last year it brought in only a fifth of this group. Most of those who were successful are in skilled jobs, with 40 per cent working as financial and investment analysts and 8 per cent in tech and design. But 16 per cent are cooks and supervisors in the food industry and 2 per cent are retail managers.

Many of the 80 per cent who were already in Canada were here as temporary residents, including temporary foreign workers, intracompany transfers and international students.

Over all, very few of all those who apply succeed. The new report shows that 95 per cent of 200,000 applicants have fewer than 450 points. No one with fewer than that number has been approved so far.

"We should stop the pretense that anyone can fill out a profile, because they are clogging the system," said Sergio Karas, a veteran immigration lawyer.
Mr. Karas says a more honest system would openly give priority to workers already in Canada, set aside a number of spots for international students and only then consider applications from elsewhere.
"Why would you pick someone who lives elsewhere, who has no experience, when you have people right here," he said.

Still, the low acceptance rate has led to frustration.

"If you are sitting in India and China and are a high-skilled person, you say 'my chances of being selected are pretty small,'" Mr. Green said.

International students in particular have said the system has closed the door to settling in Canada. Under a prior system, they were almost certain to be able to stay after graduation.

Under Express Entry, the report shows, less than 1 per cent of 8,000 people who had studied in Canada had a sufficient number of points to qualify.

SERGIO R. KARAS CHAIRS ETHICS AND IMMIGRATION LAW SESSION AT ONTARIO BAR ASSOCIATION

On March 9, 2016, Sergio R. Karas chaired and moderated a session at the Ontario Bar Association "Walking the tightrope: avoiding and resolving ethical issues in immigration law" attended by more than 88 lawyers from across Canada. 

INTERNATIONAL STUDENT WORK PROGRAM REFORM NEEDED

This article appeared today in the Globe and Mail.  The report is not surprising, given the number of international students and the diverse backgrounds they have, both in terms of language ability, type and field of studies, and their desire to find a job to gain the necessary experience to qualify for residency.  This program must be reformed, as not all programs of study are similar. Perhaps the work permits should be restricted to university graduates only, or to specific fields of study, such as engineering and sciences. http://www.theglobeandmail.com/news/national/international-student-work-program-needs-overhaul-report-says/article29463566/

March 31, 2016

International-student work program needs overhaul, report says

By SIMONA CHIOSE 

Citizenship and Immigration Canada finds the majority of those employed through a work permit are in low-skilled jobs in the service sector, and have median earnings that are less than half of other recent university and college graduates

A program that allows international students to work in Canada after graduation is creating a low-wage work force, encouraging low-quality postsecondary programs, and needs to be redesigned, says an internal report from Citizenship and Immigration Canada.
Under the Post-Graduation Work Permit Program international students with degrees from Canadian colleges and universities can work here for up to three years after their programs end. Between 50 per cent and 60 per cent of eligible international students applied for a work permit, the report says, with more than 70,000 people holding permits in 2014.
The program is designed to make Canadian postsecondary institutions an attractive destination and to give international students work experience, making it easier to apply for permanent residence.
But the 35-page report found that the majority of those employed through a work permit are in low-skilled jobs in the service sector, and have median earnings that are less than half of other recent university and college graduates.
"Facilitating this large pool of temporary labour, largely in low-paid positions, may be in conflict with the objectives of the Putting Canadians First strategy," the report states.
That strategy was initiated by the former Conservative government to prioritize employment for Canadians after abuses of the temporary-foreign-worker program came to light. The Post-Graduation Work Permit (PGWP) report was commissioned as part of a larger review of temporary-foreign-worker policies.
The Globe and Mail obtained the report after a nine-month battle. The government initially refused the request. After an appeal to the Information Commissioner of Canada and discussions between the commissioner, Citizenship and Immigration Canada and the newspaper, the government provided a partly redacted version of the report.
Marked "secret," the report reviews six years of the work-permit program, from 2008 to 2014. It raises many questions about how Canada attracts international students and how they transition to citizenship.
Its findings are likely to complicate the recently announced review of how the new Express Entry immigration system is treating international students who want to become permanent residents. Express Entry, introduced in January, 2015, does not award applicants any extra points for studying in Canada, as had been the case under a prior immigration program for international students. As a result, it has been heavily criticized for making it much harder for international students to become permanent residents.
Earlier this month, John McCallum, Minister of Citizenship and Immigration, said the government is launching¹ a federal-provincial task force to look at how Express Entry can better serve this group.
"International students have been shortchanged by the Express Entry system," he said at the time. "They are the cream of the crop in terms of potential future Canadians ..."
The PGWP report, however, suggests that most international students' investment in a Canadian education is not being rewarded by the labour market.
International students with a work permit had median earnings of $19,291 in 2010, compared with about $41,600 for 2013 domestic college graduates and $53,000 for Canadian university grads, according to the review.
There are no explanations for such a poor labour-market outcome in the report, but international students have said it is difficult to find good jobs before they have permanent residency.
Mr. McCallum was not available for comment.
CIC's provincial-federal task force has been widely applauded by advocates for international students and study-abroad groups.
"The new minister fully gets it," said Amit Chakma, the president of the University of Western Ontario and chair of a 2012 task force on Canada's international-student strategy. "In my view, tinkering with [Express Entry] will not help. My view is that a new program should be created targeting international students who study on our campuses," Dr. Chakma said.
About 47,000 international students graduated from Canadian universities last year, according to recent Statistics Canada numbers. They pay tuition fees three to five times higher than domestic students.
A small group of international students fare better than others. Four per cent of graduates who had a work permit went on to become permanent residents in 2014. The group that chose to stay had earnings that are much closer to those of domestic students.
The report also suggests that the current system is leading to issues of program integrity. Changes to the PGWP program in 2008 removed the requirement that students find jobs in their field of study and increased the possible duration of the work permit.
In response, some postsecondary institutions are now offering "low-quality education programs with minimal entry requirements" to take advantage of rules that match the length of the work permit to the length of the degree, the report says.
Canada is the only country to structure work permits for international students in this way.

US PRECLEARANCE FOR TORONTO ISLAND AIRPORT BEING DISCUSSED

http://news.nationalpost.com/news/canada/u-s-customs-preclearance-being-discussed-for-toronto-island-and-quebec-city-airports

FRAUDSTER WHO PREYED ON ASPIRING TEMPORARY FOREIGN WORKERS SENTENCED

Here is the decision on the massive fraud case. The sentence was six years in jail. 

R. v. Saluma

Between
Her Majesty the Queen, and
Imelda Saluma

[2015] O.J. No. 6977

2015 ONCJ 754

 Ontario Court of Justice

L.C. Pringle J.

Heard: November 10 and 25, 2015.
Judgment: December 11, 2015.

(52 paras.)

---

Reasons for Sentence

·         L.C. PRINGLE J.:-- 

1. Introduction and Overview

1     Imelda Saluma has entered a guilty plea to fraudulent activity carried out between July 1, 2012 and January 7, 2015, resulting in over $2.4 million in funds received by her. The majority of the monies were obtained through a large and sophisticated fraud involving the Canadian Temporary Foreign Worker Program, and included over 900 victims. Other funds were obtained by asking unsuspecting friends or acquaintances to cash cheques for her while Ms. Saluma knew that she had no monies to cover the cheques.

2     Although some money has been repaid to a few victims, almost $2 million remains outstanding. There is little hope of restitution: in and around the period of the fraud, Ms. Saluma incurred gambling losses at casinos estimated in the range of $2.6 million.

3     Ms. Saluma is 47 years old. She has a prior record for frauds in 2008 and in 2010. She has been in jail since her arrest on the current charges since January 29, 2015.

4     The Crown submits that a jail sentence of 6-8 years is appropriate. The Defence position is that 4-5 years in jail is the right sentence. Both parties agree that a restitution order in the amount of $1.5 million should form part of the sentence.

5     I have determined that the sentence should be one of 6 years, less credit for pre-sentence custody. I will make the restitution order as agreed.

2. The Temporary Foreign Worker Fraud

6     The Temporary Foreign Worker Program has been in place since 2002, and is jointly managed by Human Resources and Skills Development Canada, and Citizenship and Immigration Canada. The program allows Canadian employers to hire foreign nationals to fill temporary labour and skill shortages when qualified Canadian citizens or permanent residents are not available.

7     In order to hire a foreign worker, employers require a Labour Market Opinion or Labour Market Impact Assessment from Human Resources. A positive Labour Market Opinion or Assessment means that the employer has tried but has been unable to find a Canadian or permanent resident for the job, that the job offer is genuine, and that the employer has met job offer commitments to temporary foreign workers they have hired in the past.

8     After obtaining a positive Labour Market Opinion or Assessment, the employer contacts the worker, who then needs to apply to Citizenship and Immigration for a work permit. The employer must provide a copy of the positive Opinion or Assessment from Human Resources for inclusion with the worker's application for a work permit.

9     Imelda Saluma began operating a Temporary Foreign Worker recruiting business in Toronto under the name Go West Jobs/Go West International on July 1, 2012. The company was supposed to assist workers, mostly from the Philippines, to obtain temporary employment in Canada. When Ms. Saluma began her business, contacts in the Filipino community began asking if they could become recruiters for her. The premise was that she had Canadian companies looking for foreign workers who either had or were waiting for Canadian government approval. The recruiters were asked to begin building lists of interested applicants.

10     Ms. Saluma recruited 10 agents, who in turn recruited 8 sub-agents, to assist in the business. As part of the scheme, she enlisted members of her family and a business associate, (Rosemary Walters), to receive some of the funds. In some circumstances, she instructed the agents to pay her directly in cash.

11     The foreign worker applicants usually were expected to pay the following fees to Go West:

·         1. 

$1500 to start the application process and have their name added to the list. The recruiter would receive $500; 

·         2. 

$2000 once the applicant was advised there had been Canadian government approval. The recruiter would receive another $500; 

·         3. 

$1500 for a work visa and plane ticket (no one ever got to this stage). 

12     All recruiters were offered a 30% fee, however some charged a higher commission. Some recruiters charged no commission.

13     In fact, there was never any Canadian government approval of these applications. Ms. Saluma would forward the recruiters what appeared to be a positive Labour Market Opinion or Assessment, but they were all fraudulent. Foreign workers began to apply to their local Canadian Immigration Office for their work permits, the majority of which were in the Philippines. Soon after, the foreign workers began receiving letters of rejection from Immigration Canada, advising them that the Labour Market Opinion or Assessment was fraudulent. As a result of the fraud, the foreign workers were advised they were banned from applying to work in Canada for another 2 years.

14     The foreign workers began to demand refunds and an explanation from the recruiters, who in turn attempted to obtain them from Ms. Saluma. Some monies were repaid, but the vast majority remain outstanding. During this time until at least October 2014, Ms. Saluma continued to solicit new funds for Labour Market Impact Assessments: for example she received money from Juriphie Maristela in October 2014 for a purported meeting with a contractor named Guido, whom she represented would be providing employment to Temporary Foreign Workers.

15     Ms. Saluma's company Go West International was barred by the Philippine authorities from further recruiting Filipino workers in January 2013. An advisory was issued to Filipino overseas job applicants concerning the alleged fraudulent recruitment activities of Go West Jobs.

16     In total, there were 979 applicants for whom Ms. Saluma did not find employment.

3. Cheque Cashing Fraud

17     During the course of the fraud, Ms. Saluma convinced various friends, acquaintances or contacts, and in one case, National Money Mart, to cash cheques for her or accept money transfers in return for cash in varying amounts from $2,800 up to $10,300, knowing that she did not have the funds available to cover the cheque or transfer.

18     The total number of victims was 20, for a total fraud of $98,350.00. Some of this money was repaid, however, most was not ($82,750.00 remains outstanding). These frauds continued well into December 2014, when Ms. Saluma succeeded in borrowing money from Juhan Luik and Maria Tolentino on false pretences.

19     The figures for the cheque cashing fraud are included in the totality of the fraud indicated by the Crown, along with the Temporary Foreign Worker fraud.

4. Total Fraud and Amounts Outstanding

20     Together, the fraud involving the Temporary Foreign Worker Program and the cheque cashing fraud amounted to $2,423,350.00. Of that, $1,995,750.00 remains outstanding.

5. The Victim Impact Statements

21     Twenty-eight victims filed statements, and some read them to the court. What emerged from these statements was an overwhelming sense of betrayal from people who had tried to help Ms. Saluma when she plied them with tales of temporary financial hardship and begged them for help, and from people who had trusted her with their savings and that of their family who hoped to come to work in Canada. The statements revealed the immeasurable pain and hardship caused by Ms. Saluma's crimes, with far-reaching effects both here in Canada and in the Philippines.

22     I will quote from just a few that provide a glimpse into the hardship caused:

·         ...She preyed on my honesty, my obvious willingness to help someone in need, and at a time when we are all thinking about everything good in everyone... Financially this became worse every day. The bank froze my accounts, held my cheques, and took any money I deposited to apply against the bad cheque... I took on extra jobs, worked evenings and weekends away from my family. I did everything I could to try and keep my house and begin to correct the damage done by Imelda. We are still trying to recover. I know $3,500 doesn't sound like much but when you are already financed to the max, and are living paycheque to paycheque, $20 makes a difference. 

·         ...she wouldn't answer her phone or return my messages trying to get updates on the status of my sister's application. This began to worry me as the money I had given this woman was the sum total saving for two years, working up to 4 jobs living off the very basics of life. Some weeks I would eat only one meal a day for weeks at a time. Other times I would work 7-14 days straight. I did this just to have the chance of bring my family here. 

·         ...Imelda shuttered the dreams of everyone, and extremely destroyed the good reputation I have, the good reputation that I always protect. People do not trust me anymore and it put risk on my personal business. The humiliation that Imelda put me thru is unbearable that I thought of killing myself. I received death threats and unbearable accusations. 

·         ...I had no idea behind her face filled with smiles and reassurance lied another, one laughing at me with eyes only for my money. 

·         ...it was difficult to see her wearing expensive clothes, eating and drinking good food and wine, taking many holidays and generally spending other people's money! 

·         ...I come from a family of hard workers and have come from humble beginnings. I do not have much income as it is and the shear sum of money lost financially crippled not just me, but my entire family too. 

·         ...this woman destroyed people dreams & future & make the government of Canada law as a joke for here! 

·         ...Imelda Saluma has completely turned my life and my business upside down; my family and I have never been the same since she stole $9,500 from me on Sep 24/2014. I spent 4 months chasing, begging and pleading with her to please give the money back. Instead all she would continue to do for the next few months was make unlimited amounts of false promises. 

6. Imelda Saluma's Background

23     Ms. Saluma is 47 years old. She is divorced, and has 3 children ages 24, 22 and 17. According to Ms. Lipson, Ms. Saluma's mother and sisters had gambling problems, and Ms. Saluma's own problems in relation to gambling began in 1996, triggered by her mother's death from an aneurism. According to the Defence, coping with difficult issues such as her mother's death, her husband's infidelity and her father's death served as triggers for gambling by Ms. Saluma.

24     In April 2008, Ms. Saluma pleaded guilty to fraud under $5000; fraud over $5000; fail to comply recognizance; and uttering a forged document. While the nature of the fraud was not discussed directly in the transcript of the reasons for sentence, the judge referred to the scheme as "very sophisticated", noting that it required some planning. It appears there were 18 victims in all, including four financial institutions. A report prepared by Dr. Ilacqua indicated that Ms. Saluma had a severe gambling addiction. On top of 190 days of pre-sentence custody, Ms. Saluma received a suspended sentence and 1 year of probation. A restitution order in the amount of $61,820.00 was made.

25     I am advised $59,600 remains outstanding.

26     In May to July 2008 after sentencing, Ms. Saluma completed a treatment program for Problem Gambling, with both group and individual counselling.

27     In October 2010, she reconnected with the program, and attended group support for gamblers on November 1, 2010, January 20, 2011 and June 2, 2011.

28     In December 2010, Ms. Saluma pleaded guilty to 2 counts of fraud under $5000, and received a conditional sentence of 6 months.

29     Since her arrest on these charges, Ms. Saluma has taken a further "Addiction and Harm Reduction" workshop, as well as a number of other programs, while in custody.

30     On sentencing, Ms. Saluma addressed the court and indicated that she is full of remorse and shame for her actions. She said that in the last 10 months, while in custody, she has obtained the tools she believes she will need to abstain from gambling in future.

7. Positions of the Parties

31     On behalf of the Crown, Mr. Wright submits that this was a large and sophisticated fraud that operated like a Ponzi scheme. When some victims complained, Ms. Saluma was prepared to pay their money back, but she continued to solicit further funds from other victims to do so, as well as to gamble. In the Crown's submission, Ms. Saluma was a fraudster in the truest sense: beguiling, manipulating and tricking people into giving her money which she used for gambling and greed. As a result, the Crown submits she created havoc in the lives of people who were in dire need and besmirched the reputation of the Canadian Temporary Foreign Worker Program abroad. Taking into account her prior criminal record, Mr. Wright submits the sentence should be 6-8 years in the penitentiary.

32     On behalf of Ms. Saluma, Ms. Lipson notes that Ms. Saluma has entered a guilty plea and accepted responsibility. She has made restitution in the amount of more than $400,000, and avoided a long trial. Ms. Lipson also asks me to take into account that Ms. Saluma didn't hide the Philippine government's warnings about her business from the victims, who still came to her and asked for her help in applying for the Temporary Foreign Worker Program in Canada notwithstanding the warnings. The Defence further submits that since the agents were not Ms. Saluma's employees, this was not a true breach of trust situation. Finally, Ms. Lipson submits that Ms. Saluma has an addiction to gambling which should be seen as a mitigating factor. In the Defence submission, a sentence of 4-5 years is appropriate.

33     The parties have agreed and jointly submitted that a restitution order in the amount of $1.5 million is appropriate.

8. Law and Analysis

34     In R. v. Drabinsky, 2011 ONCA 582, our Court of Appeal confirmed that denunciation and general deterrence must dominate sentencing for large scale commercial frauds involving public companies. The trial judge in Drabinsky found the appropriate range of sentence in those situations to be between five and eight years. The Court of Appeal noted that while "one might quibble about both ends of that spectrum", significant penitentiary terms well beyond two years would normally be appropriate.

35     In R. v. Cunsolo, 2012 ONSC 114, at para.37, Justice Hill indicated that a sentence of six years is within the correct range of sentences for major frauds, and sentences in the three to five year range are common. Penitentiary sentences in the six-year range have been imposed in cases involving millions of dollars.

36     In R. v. Dhanaswar and Saheed, [2014] O.J. No. 6388 (S.C.J.), Justice Ducharme sentenced the two accused persons after a long trial in relation to frauds connected to real estate deals and loans in relation to promissory notes with unsophisticated victims, with losses of $2.3 million. He noted that while it is difficult to define a clear range of sentence for these types of fraud, his review of the case law suggested it was in the range of three to eight years. He sentenced Mr. Saheed to 7 years, and Ms. Dhaneswar to 6 years.

37     In this case involving Ms. Saluma, there are numerous aggravating factors:

·         1. 

Ms. Saluma has a criminal record and was been convicted of a series of fraud-related offences on two prior occasions, in 2008 and 2010; 

·         2. 

The fraud in relation to the Temporary Foreign Worker Program in this case was of long duration, lasting for over 2 years; 

·         3. 

There is merit to the Crown's submission that while Ms. Saluma made some restitution, she continued to solicit fraudulent funds into late 2014 in order to do so, and in essence, was simply "robbing Peter to pay Paul"; 

·         4. 

There were literally hundreds of victims (979); 

·         5. 

The impact on the victims has been devastating. The financial and emotional costs to these people has been life-changing and will be long lasting; for some, they have now been banned from applying to the Temporary Foreign Worker Program as a result of Ms. Saluma's fraudulent scheme; 

·         6. 

I agree with the Crown that this fraud besmirched the integrity of the Canadian government and the Temporary Foreign Worker program, causing the Philippine government to issue warnings about this Canadian company. As one victim put it, the law of the government of Canada was made to appear "a joke" by her actions; 

·         7. 

The fraud was a bold one, involving numerous forged Labour Market Opinions or Assessments that purported to be from Canadian authorities. While other people may have benefited in part from this fraud (there are several co-accused parties), Ms. Saluma was clearly the "mastermind" of the operation, and the primary beneficiary of the funds; 

·         8. 

The cheque-cashing frauds in relation to Ms. Saluma's friends, acquaintances and contacts traded upon their good will in response to her pleas for a "favour", and had high moral culpability; 

·         9. 

There is little prospect of restitution. 

38     I cannot agree with Ms. Lipson that it is a mitigating factor, or even a relevant factor, that recruiters continued to seek out Ms. Saluma despite the public internet warnings made about her company by the Philippine government in 2013. Indeed, there is no evidence that the victims knew that Go West Jobs was barred from recruiting Filipino workers for placement in Canada; and it seems contrary to common sense that the recruiters or applicants would have given her their hard earned savings if they had known that Go West Jobs was being investigated for fraudulent job offers and Labour Market Opinions with forged signatures.

39     Similarly, I do not see any mitigating value to the fact that the recruiters were not employees of Ms. Saluma's company. While this fraudulent scheme may not have been a breach of a position of trust by Ms. Saluma, it was certainly a thorough scam involving completely false misrepresentations and forged documents. Not one applicant got work as a result of Ms. Saluma's "business", and it bears repeating that the victims numbered close to a thousand. As the Court of Appeal noted in Drabinsky at para. 173, "cases properly characterized as "scams" will normally call for significantly longer sentences than frauds committed in the course of the operation of a legitimate business". This business was a complete scam.

40     Finally, while an illness or addiction such as gambling may be seen as a mitigating factor in some cases, I cannot agree that is extenuating in this case.

41     Ms. Saluma has known of her gambling problems for many years. In fact, Justice Clark identified the gambling addiction at the time of Ms. Saluma's offences in 2008, and imposed counselling as a term of probation. While Ms. Saluma did take some counselling immediately after her release from jail, and sporadically again during the following year, it was minimal. Tragically, it appears to have had no effect on her behaviour in this case.

42     The scope of that gambling problem is rather breath-taking. Over a period of two and a half years, Ms. Saluma gambled away $2.6 million dollars of other people's money at Niagara area casinos. At the same time, it appears she was also living the high life, as one victim remarked that Ms. Saluma was wearing expensive clothes, eating good food, drinking fine wine, and taking many holidays.

43     This case stands in contrast to a case such as R. v. Kuenzler, 2010 ONSC 4016, where the trial judge found that the accused's motivation to engage in drug activity arose from his gambling addiction. Within two weeks after his arrest, he began therapy at CAMH. He also self-excluded at casinos, saw a psychiatrist, and participated in treatment for over two years. In such circumstances, the trial judge found that his motivation to change was a significant mitigating factor on sentence, noting his "enormous effort to address his addiction", and his "remarkable progress including the absence of relapse".

44     Unfortunately, the same cannot be said for Ms. Saluma, whose efforts at rehabilitation were minimal. Her relapse was monumental and long-lasting. Accordingly, in the circumstances of this case, gambling can explain why Ms. Saluma orchestrated these frauds, but it cannot be seen as a mitigating factor.

45     However, I do agree that there is one significant mitigating factor here, and that is that Ms. Saluma has pleaded guilty and accepted responsibility for her crime. In Drabinsky, the Court of Appeal stated at para.166:

·         It is impossible to catalogue the factors that in combination could justify a sentence below the usually applicable range. We would however, make two observations. First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range. 

46     Looking at the range of three to eight years noted above for this kind of massive fraud, it is immediately obvious that Ms. Saluma is not at the top end of the range by virtue of her guilty plea. Similarly, she is clearly not at the lower end of the range, taking into account the size of the fraud, the nature of the fraud, and the prospect that there will be little or no restitution. However, perhaps most significantly, Ms. Saluma's case is distinguishable from all of the cases referred to by either party, by virtue of her prior criminal record.

47     Ms. Saluma's prior criminal record for related offences in 2008 and again in 2010 puts her moral and legal culpability for these current offences at the high end. While there is no doubt that she is a gambling addict, she has previously been provided with the opportunity to take counselling and address the root of her problem. Yet, I would characterize her efforts at rehabilitation as minimal at best, and find that her meagre efforts to address her gambling pale in comparison to the massive toll of misery and hardship she imposed on others in committing these offences.

48     Accordingly, notwithstanding her plea, it is my view that a sentence of 6 years is warranted.

9. Credit for Pre-trial Custody

49     I agree with the parties that Ms. Saluma should be given credit for the time she has already served at the rate of 1.5:1 in accordance with the principles set out in R. v. Summers, 2014 SCC 26. Ms. Saluma has been in custody from January 29, 2015 to December 11, 2015, which is a total of 317 days. At the rate of 1.5:1, that is the equivalent sentence of 476 days, or 1 year and 111 days, already served.

50     Accordingly on today's date the sentence will be 6 years less 476 days (2190 - 476 =1714 days) or 4 years and 254 days.

10. Restitution

51     In accordance with the joint submission, I will impose a restitution order of $1,500,000. It is a sad reality that in light of Ms. Saluma's gambling losses, it does not appear that she has any monies or assets to satisfy this debt. However, in default of payment within 90 days, the victims may seek to have the restitution order filed in the Ontario Superior Court to have judgement registered for civil enforcement should any money or assets be discovered in future.

11. Summary

52     This is a sad day for everyone. I know that the sentence imposed on Ms. Saluma will not bring back the money she squandered or erase the pain and hardship felt by the victims. I am unsure whether the time in jail will assist Ms. Saluma in wrestling with her demons or rehabilitate her. As the Court of Appeal noted in Drabinsky, the deterrent value of any sentence is a matter of controversy and speculation. However, as the Court explained, denunciation and general deterrence most often find expression in the length of the jail term imposed, and that is why the sentence is 6 years here.

L.C. PRINGLE J.