See this interesting story in today's Globe and Mail: under Canadian immigration law, the child is NOT a Canadian citizen, as he was not born in Canada, and neither of his parents is a Canadian citizen. In fact, the child is not even a permanent resident, as the parents had not completed the residency process by landing in Canada prior to his birth and, in any event, the child had not been part of the immigration application.
So what is the child's status? it appears that he is a citizen of India, and that he will have to be sponsored by his parents after they complete landing in Canada. In the meantime, the child may be issued a visitor's visa and remain with the parents in Canada, but even that has its mechanical challenges given that the child will be at the Port of Entry. I believe, however, that discretionary entry may be granted.
Canadian pediatrician helps deliver baby in plane flying over Kazakhstan - The Globe and Mail
In-flight birth
Canadian pediatrician helps deliver baby in plane flying over Kazakhstan
Timothy Appleby
From Tuesday's Globe and Mail
Published Monday, Oct. 24, 2011 7:25PM EDT
Last updated Monday, Oct. 24, 2011 10:13PM EDT
Scotch whisky was used to sterilize the scissors that snipped the umbilical cord, and the baby’s swaddling clothes were warmed up in the microwave at the back of the Toronto-bound Air India jet.
The birthplace was high over Kazakhstan, and the baby’s citizenship is unclear so far.
Pediatrician Balvinder Singh Ahuja of Brampton, Ont., was just settling in for the long flight from Amritsar to Toronto’s Pearson airport on the weekend after a trip to his Punjab home town of Hoshiarpur to finish some business when the call was piped through the Boeing 777’s address system:
Was there a doctor in the house? There was.
Dr. Singh made his way to the back of the crowded plane, the world’s largest twin jet with seating for 300-plus passengers, and discovered that a woman in her mid-20s was about to give birth. Like most foreign-schooled doctors, he would have to be retrained and recertified to practise medicine in Canada, where he is now seeking work in the medical field or the trucking industry.
However, he has been in delivery rooms many times in India.
“I saw this lady, she was on the floor with her husband. She was having pains and she had started labour.”
Dr. Singh guesses he has attended nearly 1,000 births. But this was about to be a first, he said, “because my field [of expertise] starts when the baby is out.”
The captain offered to divert the plane to Frankfurt, which would have required dumping 60 or 70 tonnes of jet fuel.
But Frankfurt was three hours away, and Kuljeet Kaur was about to have the baby very soon.
Sheets and pillows were brought from the first-class section. Food boxes were used to prop up Ms. Kaur’s legs, and about 45 minutes later, a baby girl slipped into the world, weighing 2.8 or 2.9 kilos – about seven pounds.
Some improvisation was called for. The plane’s first-aid kit had rubber gloves, scissors and antiseptic ointment, but nothing with which to sterilize the scissors, so Dr. Singh used scotch, while a swaddling blanket was warmed in the microwave.
Mother and child, together with husband Ranjodh Singh Gill and the couple’s seven-year-old daughter, got an instant upgrade to first class. Breastfeeding began, and nine hours or so later, the plane touched down in Toronto, where paramedics were waiting.
For Air India, the in-flight birth appears to be a first, an airline spokesman said.
Dr. Singh estimates Ms. Kaur was about 37 weeks pregnant when she delivered. Airline guidelines usually require that after a pregnancy passes the 35-week mark, a doctor’s letter is required, stating that the mother is fit to travel.
As for the newborn’s citizenship, it appears that no Canadian passport will be forthcoming.
Had she been born on Canadian soil, citizenship would be all-but-automatic. And five years ago, a child born to an Egyptian-American woman in the skies above Maritime Canada was granted citizenship.
But the family was immigrating to Canada, and is believed to hold the status of non-citizen permanent residents.
Citizenship and Immigration Canada spokesman Bill Brown said that if a Canadian citizen gives birth outside the country, citizenship can usually be transferred to the baby.
But for non-citizens, including landed immigrants, the process is less clear, particularly if the child was not born in any country at all. So it may be that the baby girl begins life as an Indian citizen, or conceivably as a citizen of Kazakhstan, although her parents will be able to apply for her to be naturalized.
“This doesn’t happen every day,” Mr. Brown said.
For Dr. Singh, the main thing is that the unlikely tale had a happy ending.
“Everyone was quite thankful.”
Tuesday, October 25, 2011
Monday, October 24, 2011
CRIMINALITY AND IMMIGRATION: JUDGES FACED WITH PROBLEMS WHEN SENTENCING
I was quoted extensively in the Maclean's magazine story below.
Why are judges giving immigrants who commit serious crimes a second chance? - Canada - Macleans.ca
Categories: Canada
Why are judges giving immigrants who commit serious crimes a second chance?
‘How far are the courts prepared to go in bending those rules?’
by Michael Friscolanti on Monday, October 24, 2011 9:50am - 1 Comment
When his son was born, Hamidullah Barkza celebrated the occasion with an epic bender. For eight straight days, the Red Deer, Alta., resident skipped work and pounded the bottle, pausing only when he passed out. On the night it finally ended—April 18, 2008—Barkza stumbled into the bedroom and plopped down beside his wife. “He wanted to have sex,” a prosecutor would later tell a judge. “But she said no due to the fact he was intoxicated and she had recently given birth.”
Enraged, Barkza grabbed a kitchen knife and lunged at the mother of his two children. He stabbed her once in the chest before turning the blade on himself, again and again. By the time police arrived at the apartment, he was covered in blood and barely conscious. (Thankfully, his wife’s wounds were far less severe, requiring only a short hospital visit.)
Originally charged with attempted murder, Barkza pleaded guilty to aggravated assault and received a 26½-month prison sentence. Then came the real punishment: like hundreds of other landed immigrants convicted of serious crimes, the Afghanistan native was slapped with a deportation order. Canada, home since 2004, wanted him gone.
In theory, his removal should have been routine. According to the law, any non-citizen sentenced to more than two years cannot challenge his pending deportation at the Immigration and Refugee Board, paving the way for a supposedly swift ejection. But Barkza had one option left—a backdoor tactic that more and more foreign criminals are using to fight their deportations: he returned to court and appealed his sentence.
Last month, his wish was granted. Alberta’s highest court agreed to shave 2½ months off the original term, leaving Barkza with a final sentence of two years minus one day. That 24-hour distinction—the difference between two years, and two years less a day—was just enough to reinstate his appeal rights to the IRB, a process that will certainly delay, if not cancel, his flight out of Canada.
Since capturing their first majority in May, Stephen Harper’s Conservatives have unveiled a long list of headline-friendly immigration initiatives that target everything from human smugglers to citizenship fraudsters. At the heart of the crackdown is a pair of FBI-style “most-wanted” websites launched by the Canada Border Services Agency, urging the public to help track down dangerous immigrants on the run from deportation. So far, the mug shots have worked; more than a dozen war criminals and other high-risk felons have been arrested, including Satpal Singh Jhatu, a convicted killer who was supposed to be sent back to India seven years ago.
But while the feds have reason to boast—“Canada’s doors will not remain open to those who have broken the law and have endangered the safety of our citizens,” declared one press release—another story is quietly unfolding in courtrooms across the country. In case after case, judges are imposing lighter sentences on violent immigrants like Hamidullah Barkza because they are reluctant to quash their only real hope of remaining in Canada: a date with the IRB’s Immigration Appeal Division (IAD). In one controversial ruling, a South African national who was given 3½ years for savagely beating a man in Trenton, Ont., had his sentence trimmed by 18 months and one day so he could appeal his removal.
“I have some serious concerns with this,” says Sergio Karas, a prominent immigration lawyer in Toronto. “Parliament established that a non-citizen who is convicted of an offence and receives a sentence of two years or more should lose his right of appeal to the Immigration Appeal Division. Now the courts are saying: ‘Okay, Parliament wants these people to lose their appeal right, so we’ll just lower the sentence.’ How far are the courts prepared to go in bending those rules? And how far is the government prepared to push back?”
Not even the courts seem sure of the answer. While many provincial judges have followed the trend toward lighter sentences, Quebec’s highest court recently issued a landmark ruling on the issue, refusing to show leniency for three foreign-born criminals because “it would encourage courts to disregard the clear intent of Parliament.” But in August, the Supreme Court declined to review the case, leaving the matter very much unsettled.
“The same question has come up over and over: is this criminal courts stepping on immigration law?” says Alias Sanders, Barkza’s lawyer. “We now have different results in different parts of Canada. This is something on which we should have unanimity.”
James Bissett, the former executive director of Canada’s immigration service, says the law as written should be clear enough. “Violent crimes that put you in jail for more than two years are very serious, and deportation is the consequence,” he says. “Everybody is supposedly equal under the law, so why should landed immigrants get a break that citizens don’t? It is ridiculous.”
What to do with immigrants who become convicts instead of citizens has been a decades-long struggle for the feds. The debate reached a boiling point in 1994 after two infamous murders in Toronto: the shotgun slaying at a Just Desserts café, and the killing of a police constable. It turned out that suspects in both cases were born somewhere else, never applied for citizenship, and had previously been ordered deported because of criminal activity. Jean Chrétien’s Liberals responded to the backlash with legislation that made it easier to remove dangerous foreign offenders, and in 2002 the law was toughened to include the no-appeal clause.
The change was subtle but significant. An independent body, the Immigration Appeal Division considers cases on humanitarian and compassionate grounds, and has the power to overturn a person’s deportation if, for example, the applicant is his family’s only breadwinner or has lived in Canada most of his life. By eliminating that appeal for criminals sentenced to two or more years, Ottawa’s intention was clear. “They wanted all these bad apples extricated from Canada,” Karas says. “And quickly.”
But for judges, the amendment raised a novel question: should a person’s potential deportation be considered at sentencing?
The Ontario Court of Appeal was the first to weigh in. Donna Mason, a Jamaican who has lived in Toronto since the age of seven, was caught trying to smuggle cocaine back into Canada after a holiday. Prosecutors asked for a term of two to three years, but the court ruled in 2004 that “the risk of deportation can be a factor taken into consideration” and sentenced her to two years less a day.
In 2005, British Columbia’s top court set its own precedent, ruling that Sritharan Kanthasamy, a Tamil migrant convicted of sexual assault and forcible confinement, deserved 24 hours knocked off his two-year sentence because losing his chance to appeal to the IAD was “a serious but unintended collateral effect of the penalty” that a citizen would not have to endure. “The matter of a single day, two years rather than two years less a day, is inconsequential in terms of denunciation, retribution and deterrence,” the court ruled. “But, in relation to the appellant’s immigration status and his personal safety, the difference of one day carries potentially enormous consequences.”
Similar rulings followed. Quoc Ai Mai, a Vietnamese national who imported 1,728 kilograms of marijuana from Ecuador, had his sentence cut by one day. So did Monir Leila, a Chilean-born heroin addict who pleaded guilty to possession of stolen property, and Suwalee Iamkhong, an HIV-positive stripper from Thailand who was convicted of criminal negligence causing bodily harm after infecting her husband.
The steepest reduction so far was granted to Dylan Lee Morgenrood, who came to Canada from South Africa as a 14-year-old and, nine years later, “committed a particularly vicious assault.” In cutting his sentence from 3½ years to two years less a day, the Ontario Court of Appeal ruled in May that Morgenrood has “a complete absence of any support” in his birth country and should be allowed to argue his case in front of the IAD.
That doesn’t mean, of course, that Morgenrood will succeed. As with all these files, the IAD still holds the final call when it comes to deportation. The decreased sentence simply ensures that offenders have a chance to argue their case—and remain in the country while the process slowly unfolds.
And unless the Supreme Court does decide to weigh in at some point, the IAD will hear from many more criminals who, according to Parliament, were not supposed to have that chance. People like Hamidullah Barkza.
“When you see a guy who had originally been charged with attempted murder who stabs his wife, you think: ‘Of course he should go,’ ” says Sanders, his lawyer. “The problem is that he had been a good father, a good husband, a good provider, and had no prior criminal record. What he did was absolutely out of character.”
Is that reason enough to let him in stay? “It shouldn’t be,” Bissett says. “The purpose of the law is to give protection and safety to Canadians, and if people come from another country and commit a serious offence, they should be removed, period.”
Why are judges giving immigrants who commit serious crimes a second chance? - Canada - Macleans.ca
Categories: Canada
Why are judges giving immigrants who commit serious crimes a second chance?
‘How far are the courts prepared to go in bending those rules?’
by Michael Friscolanti on Monday, October 24, 2011 9:50am - 1 Comment
When his son was born, Hamidullah Barkza celebrated the occasion with an epic bender. For eight straight days, the Red Deer, Alta., resident skipped work and pounded the bottle, pausing only when he passed out. On the night it finally ended—April 18, 2008—Barkza stumbled into the bedroom and plopped down beside his wife. “He wanted to have sex,” a prosecutor would later tell a judge. “But she said no due to the fact he was intoxicated and she had recently given birth.”
Enraged, Barkza grabbed a kitchen knife and lunged at the mother of his two children. He stabbed her once in the chest before turning the blade on himself, again and again. By the time police arrived at the apartment, he was covered in blood and barely conscious. (Thankfully, his wife’s wounds were far less severe, requiring only a short hospital visit.)
Originally charged with attempted murder, Barkza pleaded guilty to aggravated assault and received a 26½-month prison sentence. Then came the real punishment: like hundreds of other landed immigrants convicted of serious crimes, the Afghanistan native was slapped with a deportation order. Canada, home since 2004, wanted him gone.
In theory, his removal should have been routine. According to the law, any non-citizen sentenced to more than two years cannot challenge his pending deportation at the Immigration and Refugee Board, paving the way for a supposedly swift ejection. But Barkza had one option left—a backdoor tactic that more and more foreign criminals are using to fight their deportations: he returned to court and appealed his sentence.
Last month, his wish was granted. Alberta’s highest court agreed to shave 2½ months off the original term, leaving Barkza with a final sentence of two years minus one day. That 24-hour distinction—the difference between two years, and two years less a day—was just enough to reinstate his appeal rights to the IRB, a process that will certainly delay, if not cancel, his flight out of Canada.
Since capturing their first majority in May, Stephen Harper’s Conservatives have unveiled a long list of headline-friendly immigration initiatives that target everything from human smugglers to citizenship fraudsters. At the heart of the crackdown is a pair of FBI-style “most-wanted” websites launched by the Canada Border Services Agency, urging the public to help track down dangerous immigrants on the run from deportation. So far, the mug shots have worked; more than a dozen war criminals and other high-risk felons have been arrested, including Satpal Singh Jhatu, a convicted killer who was supposed to be sent back to India seven years ago.
But while the feds have reason to boast—“Canada’s doors will not remain open to those who have broken the law and have endangered the safety of our citizens,” declared one press release—another story is quietly unfolding in courtrooms across the country. In case after case, judges are imposing lighter sentences on violent immigrants like Hamidullah Barkza because they are reluctant to quash their only real hope of remaining in Canada: a date with the IRB’s Immigration Appeal Division (IAD). In one controversial ruling, a South African national who was given 3½ years for savagely beating a man in Trenton, Ont., had his sentence trimmed by 18 months and one day so he could appeal his removal.
“I have some serious concerns with this,” says Sergio Karas, a prominent immigration lawyer in Toronto. “Parliament established that a non-citizen who is convicted of an offence and receives a sentence of two years or more should lose his right of appeal to the Immigration Appeal Division. Now the courts are saying: ‘Okay, Parliament wants these people to lose their appeal right, so we’ll just lower the sentence.’ How far are the courts prepared to go in bending those rules? And how far is the government prepared to push back?”
Not even the courts seem sure of the answer. While many provincial judges have followed the trend toward lighter sentences, Quebec’s highest court recently issued a landmark ruling on the issue, refusing to show leniency for three foreign-born criminals because “it would encourage courts to disregard the clear intent of Parliament.” But in August, the Supreme Court declined to review the case, leaving the matter very much unsettled.
“The same question has come up over and over: is this criminal courts stepping on immigration law?” says Alias Sanders, Barkza’s lawyer. “We now have different results in different parts of Canada. This is something on which we should have unanimity.”
James Bissett, the former executive director of Canada’s immigration service, says the law as written should be clear enough. “Violent crimes that put you in jail for more than two years are very serious, and deportation is the consequence,” he says. “Everybody is supposedly equal under the law, so why should landed immigrants get a break that citizens don’t? It is ridiculous.”
What to do with immigrants who become convicts instead of citizens has been a decades-long struggle for the feds. The debate reached a boiling point in 1994 after two infamous murders in Toronto: the shotgun slaying at a Just Desserts café, and the killing of a police constable. It turned out that suspects in both cases were born somewhere else, never applied for citizenship, and had previously been ordered deported because of criminal activity. Jean Chrétien’s Liberals responded to the backlash with legislation that made it easier to remove dangerous foreign offenders, and in 2002 the law was toughened to include the no-appeal clause.
The change was subtle but significant. An independent body, the Immigration Appeal Division considers cases on humanitarian and compassionate grounds, and has the power to overturn a person’s deportation if, for example, the applicant is his family’s only breadwinner or has lived in Canada most of his life. By eliminating that appeal for criminals sentenced to two or more years, Ottawa’s intention was clear. “They wanted all these bad apples extricated from Canada,” Karas says. “And quickly.”
But for judges, the amendment raised a novel question: should a person’s potential deportation be considered at sentencing?
The Ontario Court of Appeal was the first to weigh in. Donna Mason, a Jamaican who has lived in Toronto since the age of seven, was caught trying to smuggle cocaine back into Canada after a holiday. Prosecutors asked for a term of two to three years, but the court ruled in 2004 that “the risk of deportation can be a factor taken into consideration” and sentenced her to two years less a day.
In 2005, British Columbia’s top court set its own precedent, ruling that Sritharan Kanthasamy, a Tamil migrant convicted of sexual assault and forcible confinement, deserved 24 hours knocked off his two-year sentence because losing his chance to appeal to the IAD was “a serious but unintended collateral effect of the penalty” that a citizen would not have to endure. “The matter of a single day, two years rather than two years less a day, is inconsequential in terms of denunciation, retribution and deterrence,” the court ruled. “But, in relation to the appellant’s immigration status and his personal safety, the difference of one day carries potentially enormous consequences.”
Similar rulings followed. Quoc Ai Mai, a Vietnamese national who imported 1,728 kilograms of marijuana from Ecuador, had his sentence cut by one day. So did Monir Leila, a Chilean-born heroin addict who pleaded guilty to possession of stolen property, and Suwalee Iamkhong, an HIV-positive stripper from Thailand who was convicted of criminal negligence causing bodily harm after infecting her husband.
The steepest reduction so far was granted to Dylan Lee Morgenrood, who came to Canada from South Africa as a 14-year-old and, nine years later, “committed a particularly vicious assault.” In cutting his sentence from 3½ years to two years less a day, the Ontario Court of Appeal ruled in May that Morgenrood has “a complete absence of any support” in his birth country and should be allowed to argue his case in front of the IAD.
That doesn’t mean, of course, that Morgenrood will succeed. As with all these files, the IAD still holds the final call when it comes to deportation. The decreased sentence simply ensures that offenders have a chance to argue their case—and remain in the country while the process slowly unfolds.
And unless the Supreme Court does decide to weigh in at some point, the IAD will hear from many more criminals who, according to Parliament, were not supposed to have that chance. People like Hamidullah Barkza.
“When you see a guy who had originally been charged with attempted murder who stabs his wife, you think: ‘Of course he should go,’ ” says Sanders, his lawyer. “The problem is that he had been a good father, a good husband, a good provider, and had no prior criminal record. What he did was absolutely out of character.”
Is that reason enough to let him in stay? “It shouldn’t be,” Bissett says. “The purpose of the law is to give protection and safety to Canadians, and if people come from another country and commit a serious offence, they should be removed, period.”
INDIA INVESTIGATING IMMIGRATION AGENTS
Report by the Times of India below....is this possible corruption? How widespread are these issues?
2 immigration officials suspended - The Times of India
2 immigration officials suspended - The Times of India
ARREST OF ILLEGALS UP IN US NORTHERN BORDER
Interesting article from the Wall Street Journal.
Northern border agents see southern entrants, too - WSJ.com
OCTOBER 23, 2011, 12:52 P.M. ET.
Northern border agents see southern entrants, too .
Associated Press
BUFFALO, N.Y. — In upstate New York towns a short drive from the U.S.-Canadian border, federal agents, their numbers swelled by a post-Sept. 11 anti-terrorism strategy, have been a steady presence at train and bus stations and airports as they go about their duties securing the nation's boundaries.
Arrests are up in the busy sector that stretches 400 miles from the Ohio-Pennsylvania state line north through western and northern New York. But not because more people are trying to sneak into the country from Canada.
In a geographical twist, agents attached to the northern border and the 100-mile zone around it have in some instances become de facto southern border agents, frequently arresting people who have entered the country through Texas, New Mexico or Arizona some 2,000 miles away, according to agency statistics reviewed by The Associated Press.
"You're not going to find Mexicans coming in through Canada, generally," Border Patrol spokeswoman Kerry Rogers said.
The records, obtained through the Freedom of Information Act, show the Buffalo sector of the Border Patrol has become a perennial leader, among the eight segments that make up the 4,000-mile northern border, in the number of arrests of illegal immigrants from Mexico and Central America. In 2008, 1,618 Mexicans were among 3,339 total arrests, a high for the decade for the Buffalo sector, which has led in total illegal immigrant apprehensions each year since 2007.
Arrests by Detroit-based agents also comprise a high percentage of detained Mexicans, statistics show. In 2008, 664 of 961 total apprehensions involved Mexicans. The number jumped to 1,196 out of 1,669 arrests in 2010. In the Swanton, Vt., sector, only 157 of 1,422 people apprehended last year were from Mexico.
Some rural areas of upstate New York have seen a marked increase in the population of Mexican- and Central American-born residents, said Max Pfeffer, a Cornell University sociology professor and researcher who has examined immigration and farmworkers issues. But the increase is not as great as those seen in North Carolina and other Southern states, leading some to wonder what's behind the seemingly aggressive enforcement to the north.
"Relatively speaking, the concentration of immigrants in this area is relatively low," Pfeffer said. "Everyone's saying, 'Why are (agents) so active here?' and I don't know the answer either."
One factor is the number of agents. Since the Sept. 11 attacks, the number of officers assigned to the northern border has increased more than 650 percent, from about 340 in 2001 to more than 2,200 agents today, CBP Commissioner Alan Bersin told senators in May.
And in a December report, the government said the U.S.-Canada boundary poses a more significant terrorist threat than the southern border because of the expanse and limited law enforcement coverage. Last year, the U.S. spent $2.9 billion securing the northern border.
But critics say border agents, whose main job is to protect the country from terrorism, have no business asking passengers for proof of citizenship on trains and buses on routes that don't cross the northern border, even if they are within their agency's 100-mile coverage area.
"Their mission involves securing the border and they're treating their mission as just doing whatever they want within 100 miles of the border and often beyond that," said Nancy Morowetz, a clinical law professor at New York University.
The Border Patrol say it deploys people based on risk and threats posed along the border and that transportation checks, based on intelligence, allow the agency to use staff more effectively, especially in areas with limited resources. Smugglers, the agency said, are known to use trains and buses to move people and drugs deeper into the country.
Court documents indicate illegal immigrant cases frequently begin when Border Patrol agents are called to help interpret at traffic stops or crime scenes. Each year since 1996, 107 to 149 cases have landed in U.S. District Court in Buffalo where defendants are federally charged because they were arrested after having been previously removed from the country, according to the district's U.S. attorney's office. Most have resulted in convictions.
A typical federal case is that of Eduardo Antonio Gonzalez-Valencia, a citizen of El Salvador who pleaded guilty in U.S. District Court in Rochester in July and was ordered deported.
Gonzalez-Valencia was arrested May 21 on a train at the Amtrak station in Rochester. According to court documents, a uniformed Border Patrol agent was performing transportation checks on the train and talking to passengers in what's described as a "consensual, non-intrusive" manner. Gonzalez-Valencia produced an El Salvador passport and "freely stated that he was illegally present in the United States and without the proper immigration documentation," the agent wrote in an affidavit.
He was arrested and a fingerprint check revealed he'd been arrested at Miami International Airport in 2002 with false documents and immediately returned to El Salvador. It's unclear where he entered the country the second time; federal prosecutors don't track point of entry.
During a recent visit to Buffalo, the head of U.S. Citizenship and Immigration said the government is balancing the need to welcome and serve those in the country legally while protecting the nation.
"Those different responsibilities are not exclusive of one another," Alejandro Mayorkas said.
Given the numbers of Mexicans and Central Americans arrested in a region that relies heavily on migrant workers for its fruit and vegetable farms, there's concern the high numbers of arrests are negatively affecting even legal workers and permanent residents.
"The active enforcement puts a real chill in communities, especially how much immigrants are involved in communities," said Pfeffer. "A lot of people are staying out of sight because they're fearful even just of being stopped by the authorities, whether they have anything to hide or not."
That chilling effect isn't unique to New York.
Employers say Alabama's strict new immigration law has driven away construction workers, roofers and field hands in the country legally, either because family members don't have the proper papers or because of a hostile atmosphere.
An appeals court this month blocked parts of the law, preventing Alabama from checking the immigration status of students and police from charging immigrants who are unable to prove their citizenship.
For Morowetz, it doesn't matter whether those questioned are from Mexico or Poland or China, she said.
"There's still the question of where did they come into the country. Did they come across the northern border?" she said. "That's really the central question because if people are not coming across the border, what you really have is the Border Patrol in upstate New York engaging in interior enforcement of immigration law."
Northern border agents see southern entrants, too - WSJ.com
OCTOBER 23, 2011, 12:52 P.M. ET.
Northern border agents see southern entrants, too .
Associated Press
BUFFALO, N.Y. — In upstate New York towns a short drive from the U.S.-Canadian border, federal agents, their numbers swelled by a post-Sept. 11 anti-terrorism strategy, have been a steady presence at train and bus stations and airports as they go about their duties securing the nation's boundaries.
Arrests are up in the busy sector that stretches 400 miles from the Ohio-Pennsylvania state line north through western and northern New York. But not because more people are trying to sneak into the country from Canada.
In a geographical twist, agents attached to the northern border and the 100-mile zone around it have in some instances become de facto southern border agents, frequently arresting people who have entered the country through Texas, New Mexico or Arizona some 2,000 miles away, according to agency statistics reviewed by The Associated Press.
"You're not going to find Mexicans coming in through Canada, generally," Border Patrol spokeswoman Kerry Rogers said.
The records, obtained through the Freedom of Information Act, show the Buffalo sector of the Border Patrol has become a perennial leader, among the eight segments that make up the 4,000-mile northern border, in the number of arrests of illegal immigrants from Mexico and Central America. In 2008, 1,618 Mexicans were among 3,339 total arrests, a high for the decade for the Buffalo sector, which has led in total illegal immigrant apprehensions each year since 2007.
Arrests by Detroit-based agents also comprise a high percentage of detained Mexicans, statistics show. In 2008, 664 of 961 total apprehensions involved Mexicans. The number jumped to 1,196 out of 1,669 arrests in 2010. In the Swanton, Vt., sector, only 157 of 1,422 people apprehended last year were from Mexico.
Some rural areas of upstate New York have seen a marked increase in the population of Mexican- and Central American-born residents, said Max Pfeffer, a Cornell University sociology professor and researcher who has examined immigration and farmworkers issues. But the increase is not as great as those seen in North Carolina and other Southern states, leading some to wonder what's behind the seemingly aggressive enforcement to the north.
"Relatively speaking, the concentration of immigrants in this area is relatively low," Pfeffer said. "Everyone's saying, 'Why are (agents) so active here?' and I don't know the answer either."
One factor is the number of agents. Since the Sept. 11 attacks, the number of officers assigned to the northern border has increased more than 650 percent, from about 340 in 2001 to more than 2,200 agents today, CBP Commissioner Alan Bersin told senators in May.
And in a December report, the government said the U.S.-Canada boundary poses a more significant terrorist threat than the southern border because of the expanse and limited law enforcement coverage. Last year, the U.S. spent $2.9 billion securing the northern border.
But critics say border agents, whose main job is to protect the country from terrorism, have no business asking passengers for proof of citizenship on trains and buses on routes that don't cross the northern border, even if they are within their agency's 100-mile coverage area.
"Their mission involves securing the border and they're treating their mission as just doing whatever they want within 100 miles of the border and often beyond that," said Nancy Morowetz, a clinical law professor at New York University.
The Border Patrol say it deploys people based on risk and threats posed along the border and that transportation checks, based on intelligence, allow the agency to use staff more effectively, especially in areas with limited resources. Smugglers, the agency said, are known to use trains and buses to move people and drugs deeper into the country.
Court documents indicate illegal immigrant cases frequently begin when Border Patrol agents are called to help interpret at traffic stops or crime scenes. Each year since 1996, 107 to 149 cases have landed in U.S. District Court in Buffalo where defendants are federally charged because they were arrested after having been previously removed from the country, according to the district's U.S. attorney's office. Most have resulted in convictions.
A typical federal case is that of Eduardo Antonio Gonzalez-Valencia, a citizen of El Salvador who pleaded guilty in U.S. District Court in Rochester in July and was ordered deported.
Gonzalez-Valencia was arrested May 21 on a train at the Amtrak station in Rochester. According to court documents, a uniformed Border Patrol agent was performing transportation checks on the train and talking to passengers in what's described as a "consensual, non-intrusive" manner. Gonzalez-Valencia produced an El Salvador passport and "freely stated that he was illegally present in the United States and without the proper immigration documentation," the agent wrote in an affidavit.
He was arrested and a fingerprint check revealed he'd been arrested at Miami International Airport in 2002 with false documents and immediately returned to El Salvador. It's unclear where he entered the country the second time; federal prosecutors don't track point of entry.
During a recent visit to Buffalo, the head of U.S. Citizenship and Immigration said the government is balancing the need to welcome and serve those in the country legally while protecting the nation.
"Those different responsibilities are not exclusive of one another," Alejandro Mayorkas said.
Given the numbers of Mexicans and Central Americans arrested in a region that relies heavily on migrant workers for its fruit and vegetable farms, there's concern the high numbers of arrests are negatively affecting even legal workers and permanent residents.
"The active enforcement puts a real chill in communities, especially how much immigrants are involved in communities," said Pfeffer. "A lot of people are staying out of sight because they're fearful even just of being stopped by the authorities, whether they have anything to hide or not."
That chilling effect isn't unique to New York.
Employers say Alabama's strict new immigration law has driven away construction workers, roofers and field hands in the country legally, either because family members don't have the proper papers or because of a hostile atmosphere.
An appeals court this month blocked parts of the law, preventing Alabama from checking the immigration status of students and police from charging immigrants who are unable to prove their citizenship.
For Morowetz, it doesn't matter whether those questioned are from Mexico or Poland or China, she said.
"There's still the question of where did they come into the country. Did they come across the northern border?" she said. "That's really the central question because if people are not coming across the border, what you really have is the Border Patrol in upstate New York engaging in interior enforcement of immigration law."
Saturday, October 22, 2011
CONVICTED SERIAL CRIMINAL INVOLVED IN CREDIT CARD FRAUD GIVEN STIFF SENTENCE
In another recent case involving the application of sentencing principles that allow criminal courts to take into consideration the immigration consequences of sentences longer than two years, a serial convicted criminal with a long history of prior offences received no benefit from arguing that he would be deported. The court correctly applied the principles in dealing with this case.
R. v. Kanagalingam
Between Her Majesty the Queen, and
Nirmalarasan Kanagalingam
Nirmalarasan Kanagalingam
[2011] O.J. No. 4553
Court File No. 012409/10
Ontario Superior Court of Justice
Oshawa, Ontario
M.L. Lack J.
Oral judgment: September 9, 2011.
Ontario Superior Court of Justice
Oshawa, Ontario
M.L. Lack J.
Oral judgment: September 9, 2011.
(37 paras.)
REASONS FOR SENTENCE
1 M.L. LACK J. (orally):-- Nirmalarasan Kanagalingam was convicted on July 13, 2011 by a jury of one count of conspiracy to commit fraud over $5,000 contrary to s. 465(1)(c) of the Criminal Code, five counts of unauthorized use of credit card data, permitting another to use, contrary to s. 342(3) of the Criminal Code, five counts of fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code, five counts of unauthorized possession of credit card data contrary to s. 342 (3) of the Criminal Code, and one count of participating in the activities of a criminal organization contrary to s. 467.11(1) of the Criminal Code. He is before me today for sentencing on these convictions.
The General Nature of the Fraud
2 These convictions all relate to Mr. Kanagalingam's participation in a debit card skimming operation targeting point-of-sale terminal pin pads. Before outlining Mr. Kanagalingam's actual participation, it is necessary to describe the nature of the operation, in general, to appreciate its organization and sophistication. The scheme involves a number of people each of whom plays one or more roles in implementing it.
3 The evidence established that first a person involved in the scheme solicits and obtains the complicity of an employee working in a commercial establishment. Thus, the scheme involves that employee's breach of his trust relationship with his employer and the employer's customers. A point-of-sale pin pad is the data-collection device through which a customer passes his or her debit card at the time of a retail purchase to make payment. After the customer keys his pin number into the device and the transaction is approved by the financial institution accessed, payment is completed. With the employee's complicity, the person involved in the illicit operation removes the pin pad from the store for a brief period of time. It is taken to a location, perhaps a hotel, where an involved party inserts a chip in it. The altered pin pad is then returned to the retail unit and plugged back in for operation. The inserted chip then records the numbers of all debit cards used in it thereafter. The altered pin pad is left in the commercial establishment to do its work for some time, usually a matter of weeks.
4 There are two ways to remove the recorded data. The old way was for an involved party to simply snatch the pin pad from the store and download the data. The new way involves using technology which allows an involved party to download the data directly to his "smart phone" without physical removal of the pin pad from the store. Either way, the collected data is ultimately processed using a computer program. An involved party can write a captured debit card account number to a blank card containing a magnetic strip, like a blank gift card. The result is that each debit card that has passed through the pin pad and been recorded can be duplicated. It remains to get the pin number. By manually reviewing the collected data the maker of the bogus card can match the pin pad number keyed into the pin pad with the account number associated with it. That pin number is written on a label and that label is affixed to the bogus debit card. It is then possible to use the bogus debit card with the pin number to access the customer's bank account.
5 The bogus debit cards are distributed among lock boxes. The boxes are secured. One box is given to each of a number of individuals. At a predetermined time and in unison, these people are texted the code to open the lock boxes. Each individual opens his box and divides the bogus cards among people known as "runners" who each take about six cards to a nearby ATM machine and raid the account of the legitimate card owner to the card limit. This is called a "fraud spend". The fraud spend must be carefully planned to take place over a coordinated, short period of time because financial institutions have now developed computer programs which can detect a "fraud spend" and shut down the withdrawals. However, it takes time for the institution's computer to detect the pattern, somewhere between fifteen minutes and half an hour, and in that time a lot of damage can be done.
6 Finally, it should be noted that at every level of the operation those involved receive a share of the funds ultimately gathered as a result of the fraud spend.
7 So, that is the general nature of a debit-card skimming operation targeting point-of-sale terminal pin pads. My summary is based on the evidence that I heard during this trial.
Mr. Kanagalingam's Participation in the Fraud
8 The charge of conspiracy to commit fraud, Count 1, relates to events centering on the taking of a pin pad from a Sunoco gas station in Whitby on about November 28, 2008. The night employee, a student, was approached seeking his complicity in a scheme to remove the pin pad from the station for a short period of time to alter it. The employee alerted police, who monitored what happened thereafter. The parties dealing with the removal were Kajenthiran Vijayakumar and Vigitharam Selvaraj. The pin pad was taken to a nearby hotel for alteration. It is obvious from the verdict that the jury found that Mr. Kanagalingam was the individual for whom these men and others waited for quite some time that evening. Mr. Kanagalingam ultimately received the pin pad and was about to compromise it when police intervened. It appears he travelled from Brampton to Whitby late that night to do the alteration. He received the pin pad from Mr. Selvaraj in direct violation of the terms of his probation, which I'll discuss in a minute. The evidence established that Mr. Kanagalingam played a key role in events. Everyone was waiting for him. On Mr. Selvaraj's agreed statement of facts, which he acknowledged under oath in Provincial Court and which the jury was entitled and, in fact, required to consider, which I am satisfied beyond a reasonable doubt the jury accepted as true, members of the organization worked under the direction of Mr. Kanagalingam. Following further investigation, Mr. Kanagalingam was charged with five counts of fraud and related offences in connection with the compromising of pin pads in the Yorkdale Guess store in the summer of 2008 and in the Woodbridge Guess store on two occasions in May 2008 and at the end of August 2008. Mithun Indrakumaran installed the pin pad at Yorkdale. It is implicit in the jury's findings of guilt that they accepted that Mr. Indrakumaran worked for Mr. Kanagalingam in doing so. Mr. Kanagalingam was "the handyman" who altered the pin pad. That was an expression used to describe him. He counselled Mr. Indrakumaran on what to do. He advised him throughout. He received the bulk of the funds from the fraud spend and he paid Mr. Indrakumaran his share when it was completed.
9 Aruncumar Ravindran was responsible for installing the pin pad at the Woodbridge store. His evidence at the preliminary hearing and at his plea of guilty, which the jury had to consider as part of the evidence at trial, established a link between Mr. Kanagalingam and the Woodbridge frauds. However, in view of the fact that the jury acquitted Mr. Kanagalingam of the charge of instructing the commission of a criminal offence for the benefit of a criminal organization, I find that the jury had a reasonable doubt that Mr. Kanagalingam directly instructed Mr. Ravindran. The particulars of the count, the instructing commission of a criminal offence for the benefit of a criminal organization, required the jury to be satisfied beyond a reasonable doubt that Mr. Kanagalingam instructed both Mr. Ravindran and Mr. Indrakumaran directly. Mr. Ravindran testified that Mr. Indrakumaran and his lawyer drew up the agreed statement of facts to which he agreed in the Provincial Court. Mr. Ravindran said that he did not give his lawyers the detail. In light of this it is difficult to know the extent to which the jury found that Mr. Kanagalingam was involved with Mr. Ravindran in the Woodbridge frauds. Therefore, for the purposes of sentencing, I am not taking the Woodbridge frauds into consideration.
The Loss and the Impact of the Frauds
10 Crown counsel filed an impact statement from Robert Fodor who is Vice President of fraud management at Interact Association, which provides ATM services across Canada. Canadians use automated banking machines extensively. Mr. Fodor wrote that in 2009 cardholders withdrew cash from automated banking machines that did not belong to their own financial institution - I think by that he meant they used ATM machines away from the bank, he's not counting when people go to the bank and use the machine at the bank. He said that away from the bank they used these machines over 244,000,000 times that year, using one of 58,217 ABMs available in the Canadian marketplace. He provided statistics that show the magnitude of the fraud problem over the period 2003 to 2009. In 2003, $44,000,000 was reimbursed to fraud victims. That represented 29,000 exploited debit cards. In 2008, reimbursement had increased to $104,000,000 reimbursed on 148,000 exploited cards. So, between 2003 and 2008 it had more than doubled. In 2009, which is the next year, reimbursement had increased to $142,000,000 reimbursed on 238,000 exploited cards. Mr. Fodor noted that the time and effort to investigate each fraud is a significant burden on his association as well as financial institutions, terminal deployers and merchants.
11 This is not a victimless crime. The impact on cardholders is significant. Money is taken directly from their bank accounts. They can be burdened in the short term with being unable to meet basic living requirements. How do you pay your rent or buy groceries when there is no money in your account? How do you pay for something, some good, that you've picked up at a store when you suddenly find that your card has been blocked because of a fraud investigation? Ultimately, the customer will be reimbursed, but that is in the long term after he or she proves that they are the victim of a fraud. And ultimately, it is the user that pays for reimbursement in the form of increased charges to insure these losses.
12 Moreover, an individual's privacy is invaded when these frauds are investigated. One only has to look at Exhibit 53 in this case, which are details of the bank's financial spreadsheet, to see the details about an individual's banking that must be publicly disclosed as part of the investigation and presentation of a case such as this. Public confidence in the banking system on which everyone relies is eroded by these frauds. Merchants' reputations are jeopardized when investigations trace these frauds back to the specific sites where an ABM has been compromised.
13 Anecdotally, the prevalence of this type of fraud could be gleaned from the jury panel. The number of potential jurors who reported that their credit or debit cards had been compromised was very surprising.
14 Focusing on the offences here, there was no actual financial loss in connection with the Whitby gas station scenario since the matter was nipped in the bud. However, the Yorkdale and two Woodbridge frauds resulted in total loss of $476,000. I am only considering Yorkdale. The Yorkdale fraud amounted to $129,775 lost.
Mr. Kanagalingam's Personal History
15 I don't think that either of the lawyers told me how old he is, but I reviewed the transcript that was made an exhibit. I deduced that he is approximately 35 years old. He came to Canada in 1991 as a refugee from Sri Lanka. He is a landed immigrant. He married in 2006. He and his wife have three children. The children are ages five, four and the youngest is a few months old. He lives with his wife in Brampton.
16 Mr. Kanagalingam has a criminal record. On May 3, 1999 he was convicted of assault causing bodily harm for which he was sentenced to six months in jail and placed on probation for three years. At the same time, he was convicted of assault with a weapon and sentenced to six months concurrent.
17 On May 13, 2002 he was convicted of attempting to use a forged credit card and given a suspended sentence and one year probation in addition to 49 days he had served in pre-sentence custody. He was also convicted of attempted possession of a forged credit card and given a suspended sentence and one year probation, concurrent.
18 On June 6, 2006 he was convicted of attempted fraud over $5,000 and received a six-month conditional sentence and three years probation in addition to six days he had served in pre-sentence custody. That sentence reflected a joint submission. The transcript from the sentencing hearing was made an exhibit in this case on sentencing and shows that the conviction relates to events that took place on December 22, 2004. Mr. Kanagalingam apparently approached an employee of a Sunoco gas station in Whitby and offered him $20,000 in cash every two weeks if he would allow him to install an attachment to the credit/debit card reader and to install a pinhole camera in the ceiling over the reader to capture personal identification numbers used in the key pad. The employee notified police. It is noteworthy that one of the terms of his probation at the time, to quote from the judge on the sentencing at page 43 of the transcript was: "You'll not possess any credit card, debit card, credit card data or document of identity not in your own personal name, and you'll not possess any blank credit card, blank debit card, devices for reading, recording or imprinting a credit card, or equipment for surreptitious video recording." So, Mr. Kanagalingam was on probation at the time he committed the offences for which he is being sentenced today. The offence for which he was on probation relates to the same kind of scheme, being set up in a similar manner to what we have here. Moreover, the offences before me are in direct violation of a specific term of his probation. In June 2006, at the time of the sentencing, Mr. Kanagalingam's counsel told the court that Mr. Kanagalingam's wife was about to give birth to their first child. He and his wife were involved in a small café business which was not doing well. They owned a house at the time. His counsel here told me that the café did not do well. The couple sold their house to his father-in-law who served as his surety on his bail on the current charges. Mr. Kanagalingam works for his father-in-law now and assists with an accounting business. Mr. Kanagalingam's wife works as a cashier at a local Tim Horton's shop in Brampton.
19 At the sentencing hearing I was provided with a letter of support for Mr. Kanagalingam from his sister attesting to his role as a caring and responsible family man and friend. A letter from the head priest at his temple was also filed. He wrote that Mr. Kanagalingam is a courteous and well-mannered member of the temple community who attends regularly with his children and helps at the temple. A letter was also filed from his father-in-law who describes him as a very obedient, loyal and respectful family member. The father-in-law acted as surety for Mr. Kanagalingam over the last two and half years and writes that there were no breaches. He writes that he would be prepared to sign a "bail-out agreement again", meaning, I believe, that he would support an arrangement to keep Mr. Kanagalingam out of jail. A letter of support was also filed authored by his wife's uncle. He also described Mr. Kanagalingam as a family-oriented person who cares dearly for his children. He believes that Mr. Kanagalingam was in the "wrong place at the wrong time".
20 Mr. Kanagalingam was arrested on the conspiracy charge, that is, the offence relating to the Whitby gas station, in November 2008. He was in custody for 10 days and released December 10, 2008. He was arrested for breaching his bail in January 2009. The term he breached was not to be out his house except in the company of his wife. His father-in-law's letter gives the impression that he fully complied with his bail. That is not correct. On April 21, 2011 he was convicted of breach of recognizance and received a $100 fine in addition to one day pre-sentence custody. On February 24, 2011 he was arrested on the charges relating to the Yorkdale and Woodbridge offences and re-released on March 2, 2011.
21 Mr. Kanagalingam has therefore been on bail since November 2008. The terms were stringent, house arrest. At one point, the Crown offered to loosen up on the terms of the bail but Mr. Kanagalingam's surety declined to agree to a change.
22 I am told that Immigration Canada has given Mr. Kanagalingam notice that it intends to deport him. I am told that once a deportation order is issued, he may appeal to the Immigration Appeal Division to stay the deportation order, but he may only do that if any term of imprisonment he receives in connection with these charges is less than two years.
The Position of the Crown on Sentencing
23 Crown counsel seeks a sentence of five years on the five counts of fraud over $5,000, that is, Counts 8 to 12, concurrent one to the other. He seeks a sentence of two years on the conspiracy to commit fraud, Count 1, concurrent to the other counts. He seeks a sentence of two years on the offence of participating in a criminal organization, Count 7. He asked that that sentence be consecutive. He seeks a sentence of six months on the possession of credit card data, Counts 13 to 17, concurrent one to the other, and consecutive to the other sentences. He concedes that sentencing on Counts 2 to 6, that is, permit use of credit card data to enable use of credit card, should be stayed on Kienapple principles in light of Counts 13 to 17. He also asks that a DNA order be made under s. 467.11(2) since Mr. Kanagalingam has been found guilty of a primary designated offence under s. 487.03. He asks that Mr. Kanagalingam be ordered to serve half of his sentence to obtain parole eligibility given the conviction under s. 467.11(1) which is what happens presumptively by virtue of s. 746.6(1.2). He also seeks a restitution order of $100,000 under s. 738(1)(a) payable $20,000 to each of the financial institutions which were defrauded.
The Position of the Defence on Sentencing
24 The defence concedes that a conditional sentence is probably not appropriate here in light of the fact that Mr. Kanagalingam was previously given a conditional sentence for a cognate offence. Defence counsel asks me to consider Mr. Kanagalingam's immigration status and consider a sentence of two years less a day so to preserve his immigration appeal rights. However, if that is not appropriate defence counsel submits that the appropriate sentence is in the range of three to three and half years globally. There is no issue that the requested DNA order should issue. Defence counsel takes exception to the ancillary orders requested, namely those relating to parole eligibility and restitution.
The Aggravating and Mitigating Circumstances
25 These are serious offences. The Yorkdale fraud occasioned a substantial loss and the Whitby conspiracy had the potential to have occasioned a substantial loss if carried out. By that I mean if the fraud had been carried out. I have already mentioned the serious impact these offences have on the community. Mr. Kanagalingam's record is an aggravating circumstance. It shows convictions on two previous occasions for cognate offences. Moreover, it shows that at the time that the offences at issue in this proceeding were committed, Mr. Kanagalingam was on probation for a cognate offence and these offences before the Court here were in direct violation of the terms of his probation. His track record shows that he is at great risk to re-offend as his prior involvement with the criminal justice system shows. The fact that these offences were committed as part of a criminal organization with a number of people working together is a serious aggravating factor. The involvement in Yorkdale followed by the involvement in Whitby over the time periods here is an aggravating factor, two times, two locations in other words. These were not impulse crimes, but were planned, deliberate and show a high level of organization, sophistication and skill on Mr. Kanagalingam's part. He has a high level of knowledge and expertise. He was one of the masterminds of what took place. These are crimes that are motivated by greed, pure and simple.
26 Mr. Kanagalingam's attachment to his family and his family responsibilities are mitigating circumstances. However, I note that he had family responsibilities at the time of his last conviction. He appreciated those responsibilities then. He acted the way he did in spite of them and with the birth of two children since he has added to those responsibilities despite his knowledge that he was putting himself and his family in jeopardy with his actions.
The Sentencing Objectives
27 The case law establishes that the primary objectives in sentencing an offender for fraud and related offences on the scale that took place here are denunciation and specific and general deterrence. The sentence should reflect society's aversion to these crimes. The public in general is vulnerable to them and needs to be protected from these crimes. Mr. Kanagalingam must be specifically deterred from committing such crimes again. Other like-minded individuals must also be discouraged from committing such crimes. The financial rewards associated with these crimes are great. These crimes are rampant today. The offenders are difficult to detect. The crimes are difficult to investigate and to prosecute.
The General Range of Sentence
28 The case law establishes that in the case of relatively large frauds a sentence in the range of three to five years is appropriate. However, in this case the accused has a cognate record. There is the Whitby conspiracy and the Yorkdale fraud to consider, two separate factual scenarios committed at different times and places, and the added component of group activity and the involvement of a criminal organization.
Deportation
29 Mr. Kanagalingam will likely be ordered deported. In dealing with him, I must take into consideration that if he were sentenced to a term longer than two years less a day, he will not be able to appeal his deportation. In R. v. Hamilton and Mason, (2004), 71 O.R. (3d) 1, Doherty, J.A. of the Ontario Court of Appeal, wrote that there is room for consideration of the potentially added risk of deportation in appropriate cases.
30 When I balance the mitigating and aggravating factors in Mr. Kanagalingam's case, the nature and scale of his offences, his participation in them, and the need for denunciation and deterrence, taking into account the sentence that others received in connection with charges arising from these events, and particularly here I'm talking about Mr. Selvarj, I conclude that a sentence of two years less a day would negatively impact on the broader interests of the community, which I have tried to identify here, including the need to protect the community from these types of offences by deterring potential offenders. It would also offend the community's expectation that similar punishment be meted out to similar offenders for similar crimes.
House Arrest
31 I have also taken into account that Mr. Kanagalingam has been on stringent bail conditions since his arrest. However, I note that he has been charged and convicted of failing to comply with a provision of his bail. To a large degree that ameliorates the mitigating aspect of the regulation.
Conclusion
32 In all of the circumstances, I find that the appropriate sentence on Counts 8 to 12, the convictions for fraud over $5,000, is 4 years, concurrent one to the other. The appropriate sentence on Count 1, that is, the conviction for conspiracy to commit fraud is two years. That should run concurrent to the other penalties. On the conviction of Count 7, participating in the activities of the criminal organization the appropriate sentence is two years to run consecutive to the other penalty. On the convictions on Counts 13 to 17, for possession of credit card data, the appropriate sentence is 6 months, but I am going to reduce that to "time served" to take into account the approximate ten to twenty days of pre-trial custody that Mr. Kanagalingam served, as well to take into account that he has been in custody since he was convicted by the jury, and as well to recognize his stringent bail terms. In the result, the total sentence is six years.
33 Sentencing on Counts 2 to 6, permit use of credit card data to enable use of credit card, shall be conditionally stayed on Kienapple principles in light of Counts 13 to 17.
34 A DNA order shall go in accordance with s. 467.11(1) since Mr. Kanagalingam has been found guilty of a primary designated offence under s. 487.03.
35 I am not satisfied, having regard to the commission of the offence, the character and circumstance of the offender and the expression of society's denunciation of the offence that the objectives of specific and general deterrence can be satisfied by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act and therefore in accordance with s. 743.6(1.2) of the Criminal Code, Mr. Kanagalingam must serve one half of his sentence on Count 7 before he is released on full parole.
36 Now, the question of the restitution order. I am of the view that this is an appropriate case for a restitution order. As I said, the motivation here was greed, pure and simple. The amount involved in the Yorkdale fraud was $129,775. There is no evidence of Mr. Kanagalingam's ability to pay a restitution order. However, there is also no evidence about what he did with the money. We know that number of people shared in the funds. As I understood the evidence roughly half of it is used to pay others. Taking that into consideration on the issue of Mr. Kanagalingam's ability to pay, I make an order for restitution of $50,000 under s. 738(1)(a) payable $10,000 to each of the five financial institutions which were defrauded.
37 Those are my reasons on sentencing.
Friday, October 21, 2011
CITIZENSHIP APPLICANTS BEWARE: GOVERNMENT ANNOUNCES LANGUAGE TESTING
See Notice of Intent published by the Government of Canada. Language testing is coming, and it is inevitable.
GOVERNMENT NOTICES
DEPARTMENT OF CITIZENSHIP AND IMMIGRATION
CITIZENSHIP ACT
Notice requesting comments on a proposal to require applicants to furnish upfront evidence of language ability showing achievement of at least Canadian Language Benchmarklevel 4 in speaking and listening with their citizenship application
Summary
The Citizenship Act (Act) requires that applicants for an adult grant of citizenship demonstrate that they have an “adequate knowledge of one of the official languages of Canada” (paragraph 5(1)(d) of the Act). Citizenship and Immigration Canada (CIC) is inviting written comments from all interested parties on a proposal to amend the Citizenship Regulations (Regulations) which would introduce a requirement for applicants to provide evidence that they meet this legislative requirement when they submit their application for citizenship. This proposed measure would apply to all adult citizenship applicants who must meet the language requirement. Currently, those between the ages of 18 and 54, representing approximately 134 000 applicants per year, must meet the language requirement. All such applicants would be impacted by the proposed requirement and would be asked to provide evidence showing that they have achieved at least Canadian Language Benchmark (CLB) level 4 with their citizenship application. The proposal would not increase the language level required for citizenship but would provide citizenship officials and judges with objective evidence of an applicant’s language ability.
Background
The acquisition of citizenship is a significant step in the integration process for newcomers to Canada. Given the vital importance of newcomers’ language abilities in their successful settlement and integration, the Citizenship Act (Act) requires that applicants for an adult grant of citizenship demonstrate that they have an “adequate knowledge of one of the official languages of Canada” (paragraph 5(1)(d) of the Act).
Under the current system, language is largely assessed through a multiple choice written test which also assesses an applicant’s knowledge of Canada and of the responsibilities and privileges of citizenship (a separate requirement under paragraph 5(1)(e) of the Act). The written test is an inadequate proxy for assessing language as it does not adequately assess listening and speaking skills, which are the essential language skills for effective communication with fellow Canadians and for effective integration. If an applicant fails the written test, or if concerns about their speaking or listening ability are flagged following oral interactions with a citizenship official, the applicant is referred for an interview with a citizenship judge. This is inefficient for citizenship processing and does not provide good client service as the processing fee has been paid and there can be a substantial time delay between submission of the application and a subsequent hearing for language. Interviews in these cases contribute to processing pressure and application inventories.
This Notice of Intent is to signal an intention to add a regulatory requirement for applicants to include evidence of compliance with the official languages criteria when submitting their application. The objective of the proposed regulations would be to require applicants to meet the language requirement when they file their application, thus strengthening the integration of newcomers by improving language outcomes and encouraging their full participation in Canadian society. This proposed requirement would also make the application process more efficient and reduce administrative burden by enabling CIC to return applications with the complete fee and a letter advising the applicant that they have not submitted satisfactory evidence of compliance with the official languages requirement. Furthermore, requiring evidence of language ability would provide citizenship judges, who are the decision-makers on citizenship applications, with additional objective evidence on which to base their decisions.
Along with the proposal to introduce a regulatory authority to require that evidence of language be submitted with an application, CIC is also proposing a specific amendment to the Regulations to establish clearer language assessment criteria that align with the established CLB 4, which is the current required level for citizenship. The CLBs are the nationally accepted benchmarks to measure the proficiency of adult immigrants in both official languages as a second language. Moreover, clarifying that the language skills required are listening and speaking would enable greater transparency and consistency in language assessment. These proposed changes would not increase the language level required for citizenship.
Description
Citizenship and Immigration Canada proposes to introduce amendments to section 3 of the Regulations to require applicants to furnish evidence of language ability with their citizenship application. Such evidence could include third-party language tests or alternative evidence. Administrative guidelines would provide a list of preferred language tests which are correlated with the Canadian Language Benchmarks, such as tests which are currently accepted for immigration purposes to Canada. Alternative evidence could include completion of secondary or post-secondary education in French or English or achievement of a certain level in a language training course like the federally funded Language Instruction for Newcomers to Canada (LINC).
It is proposed that tests previously done by the applicant and accepted for other purposes, such as immigration to Canada, would also be considered acceptable for citizenship purposes. It is expected that the majority of citizenship applicants would already have evidence that they could submit with their application. Therefore, the requirement is not anticipated to pose a burden on the majority of applicants who would already have available to them the evidence of complying with the official languages requirement.
It is also proposed to amend section 14 of the Regulations to provide the ability to assess speaking and listening skills and to capture the key elements of CLB 4 descriptors, such as the ability to take part in routine conversations about everyday topics, use basic grammatical structures and tenses, have sufficient vocabulary for routine oral communication and follow simple instructions and directions.
Finally, the proposed amendment to section 14 of the Regulations would also remove the current requirement that questions be prepared by the Minister, thereby allowing the use of external evidence.
Comments
Any person (including citizenship lawyers, stakeholders, provincial, territorial and municipal governments, interested groups, and the general public) may, within 30 days of the publication of this notice, provide their comments on this Notice of Intent, in writing, to the person named below at the address provided.
Comments would be appreciated on the proposed regulatory amendments to require that applicants provide up-front evidence of language ability showing achievement of at least CLB 4 level in speaking and listening with their citizenship application.
Questions and requests for additional information, as well as comments regarding this Notice of Intent, may be directed to Mary-Ann Hubers, Acting Director, Citizenship Legislation and Program Policy, Citizenship and Immigration Canada, 180 Kent Street, 6th Floor, Ottawa, Ontario K1A 1L1, 613-998-1756 (telephone), 613-991-2485 (fax), mary-ann.hubers@cic.gc.ca (email).
NICOLE GIRARD
Acting Director General
Citizenship and Multiculturalism Branch
GOVERNMENT NOTICES
DEPARTMENT OF CITIZENSHIP AND IMMIGRATION
CITIZENSHIP ACT
Notice requesting comments on a proposal to require applicants to furnish upfront evidence of language ability showing achievement of at least Canadian Language Benchmarklevel 4 in speaking and listening with their citizenship application
Summary
The Citizenship Act (Act) requires that applicants for an adult grant of citizenship demonstrate that they have an “adequate knowledge of one of the official languages of Canada” (paragraph 5(1)(d) of the Act). Citizenship and Immigration Canada (CIC) is inviting written comments from all interested parties on a proposal to amend the Citizenship Regulations (Regulations) which would introduce a requirement for applicants to provide evidence that they meet this legislative requirement when they submit their application for citizenship. This proposed measure would apply to all adult citizenship applicants who must meet the language requirement. Currently, those between the ages of 18 and 54, representing approximately 134 000 applicants per year, must meet the language requirement. All such applicants would be impacted by the proposed requirement and would be asked to provide evidence showing that they have achieved at least Canadian Language Benchmark (CLB) level 4 with their citizenship application. The proposal would not increase the language level required for citizenship but would provide citizenship officials and judges with objective evidence of an applicant’s language ability.
Background
The acquisition of citizenship is a significant step in the integration process for newcomers to Canada. Given the vital importance of newcomers’ language abilities in their successful settlement and integration, the Citizenship Act (Act) requires that applicants for an adult grant of citizenship demonstrate that they have an “adequate knowledge of one of the official languages of Canada” (paragraph 5(1)(d) of the Act).
Under the current system, language is largely assessed through a multiple choice written test which also assesses an applicant’s knowledge of Canada and of the responsibilities and privileges of citizenship (a separate requirement under paragraph 5(1)(e) of the Act). The written test is an inadequate proxy for assessing language as it does not adequately assess listening and speaking skills, which are the essential language skills for effective communication with fellow Canadians and for effective integration. If an applicant fails the written test, or if concerns about their speaking or listening ability are flagged following oral interactions with a citizenship official, the applicant is referred for an interview with a citizenship judge. This is inefficient for citizenship processing and does not provide good client service as the processing fee has been paid and there can be a substantial time delay between submission of the application and a subsequent hearing for language. Interviews in these cases contribute to processing pressure and application inventories.
This Notice of Intent is to signal an intention to add a regulatory requirement for applicants to include evidence of compliance with the official languages criteria when submitting their application. The objective of the proposed regulations would be to require applicants to meet the language requirement when they file their application, thus strengthening the integration of newcomers by improving language outcomes and encouraging their full participation in Canadian society. This proposed requirement would also make the application process more efficient and reduce administrative burden by enabling CIC to return applications with the complete fee and a letter advising the applicant that they have not submitted satisfactory evidence of compliance with the official languages requirement. Furthermore, requiring evidence of language ability would provide citizenship judges, who are the decision-makers on citizenship applications, with additional objective evidence on which to base their decisions.
Along with the proposal to introduce a regulatory authority to require that evidence of language be submitted with an application, CIC is also proposing a specific amendment to the Regulations to establish clearer language assessment criteria that align with the established CLB 4, which is the current required level for citizenship. The CLBs are the nationally accepted benchmarks to measure the proficiency of adult immigrants in both official languages as a second language. Moreover, clarifying that the language skills required are listening and speaking would enable greater transparency and consistency in language assessment. These proposed changes would not increase the language level required for citizenship.
Description
Citizenship and Immigration Canada proposes to introduce amendments to section 3 of the Regulations to require applicants to furnish evidence of language ability with their citizenship application. Such evidence could include third-party language tests or alternative evidence. Administrative guidelines would provide a list of preferred language tests which are correlated with the Canadian Language Benchmarks, such as tests which are currently accepted for immigration purposes to Canada. Alternative evidence could include completion of secondary or post-secondary education in French or English or achievement of a certain level in a language training course like the federally funded Language Instruction for Newcomers to Canada (LINC).
It is proposed that tests previously done by the applicant and accepted for other purposes, such as immigration to Canada, would also be considered acceptable for citizenship purposes. It is expected that the majority of citizenship applicants would already have evidence that they could submit with their application. Therefore, the requirement is not anticipated to pose a burden on the majority of applicants who would already have available to them the evidence of complying with the official languages requirement.
It is also proposed to amend section 14 of the Regulations to provide the ability to assess speaking and listening skills and to capture the key elements of CLB 4 descriptors, such as the ability to take part in routine conversations about everyday topics, use basic grammatical structures and tenses, have sufficient vocabulary for routine oral communication and follow simple instructions and directions.
Finally, the proposed amendment to section 14 of the Regulations would also remove the current requirement that questions be prepared by the Minister, thereby allowing the use of external evidence.
Comments
Any person (including citizenship lawyers, stakeholders, provincial, territorial and municipal governments, interested groups, and the general public) may, within 30 days of the publication of this notice, provide their comments on this Notice of Intent, in writing, to the person named below at the address provided.
Comments would be appreciated on the proposed regulatory amendments to require that applicants provide up-front evidence of language ability showing achievement of at least CLB 4 level in speaking and listening with their citizenship application.
Questions and requests for additional information, as well as comments regarding this Notice of Intent, may be directed to Mary-Ann Hubers, Acting Director, Citizenship Legislation and Program Policy, Citizenship and Immigration Canada, 180 Kent Street, 6th Floor, Ottawa, Ontario K1A 1L1, 613-998-1756 (telephone), 613-991-2485 (fax), mary-ann.hubers@cic.gc.ca (email).
NICOLE GIRARD
Acting Director General
Citizenship and Multiculturalism Branch
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