R. v.
Saluma
Between
Her Majesty the Queen, and
Imelda Saluma
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.
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.
