Court File and Parties

Court File No.: St. Catharines - 2111-998-10-NR3585-02

Date: 2013-03-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ademola Oladapo

Before: Justice D.A. Harris

Heard: June 1, 2012 and January 18, 2013

Sentence: March 25, 2013

Counsel:

• D. Anger, for the Federal Crown
• V. Singh, for the accused, Ademola Oladapo

Reasons for Sentence

HARRIS J.:

Charges and Guilty Pleas

[1] Ademola Oladapo entered guilty pleas to:

1. Possessing a genuine Nigerian passport that could be used to establish identity, contrary to section 122(1)(a) of the Immigration and Refugee Protection Act, and

2. Misrepresenting or withholding material facts relating to the true identity of his passenger that could induce an error in the administration of the Act, contrary to section 127(a) of the Immigration and Refugee Protection Act.

[2] He is before me today to be sentenced.

[3] Crown counsel suggested that I should impose a global sentence of imprisonment in the range of nine months.

[4] Counsel for Mr. Oladapo suggested that I should impose a conditional sentence of imprisonment.

[5] I find that this is an appropriate case for a conditional sentence. My reasons for this are as follows.

Conditional Sentencing Framework

[6] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[7] The Supreme Court of Canada subsequently stated that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[8] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[9] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded under the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community would not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[10] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[11] In Mr. Oladapo's case, the first four prerequisite criteria have been satisfied.

[12] His offences are not excluded under section 742.1.

[13] Nor are they punishable by a minimum term of imprisonment.

[14] Both counsel agreed that I should impose a sentence of imprisonment for less than two years.

[15] Finally, I find that Mr. Oladapo serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has an unrelated and somewhat dated criminal record. He successfully completed a term of probation with respect to that matter and he has complied with the terms of his release and stayed out of trouble since being charged with the current offences. He should be aware of the heightened degree of police and Canada Border Services scrutiny that he now attracts. I am therefore satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

Sentencing Principles

[16] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[17] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[18] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[19] The determination of an appropriate sentence involves attempting to apply a blend of the above principles including specific and general deterrence, denunciation and rehabilitation.

[20] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[21] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…".

[22] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said at para. 36 that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[23] At para. 43 in Gladue, the Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[24] I must also note that the Supreme Court of Canada expressly said in Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[25] Finally, I note that section 123(2) of the Immigration and Refugee Protection Act states:

Aggravating factors

(2) The court, in determining the penalty to be imposed, shall take into account whether

(a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and

(b) the commission of the offence was for profit, whether or not any profit was realized.

[26] However, neither of these aggravating factors comes into play here. There was no evidence put before me to suggest that Mr. Oladapo was associated with any criminal organization or that he committed these offences for profit. In his letter to the court Mr. Oladapo specifically denies receiving any money.

[27] Before I can apply these principles of sentencing, I must look at the facts underlying the offences here and at Mr. Oladapo's background.

The Offences

[28] The facts in this case are that Mr. Oladapo drove up to the Canada Border Services primary inspection station at the Rainbow Bridge in Niagara Falls with a female passenger in his vehicle.

[29] He presented the Canada Border Services Officer with his own Canadian passport and a United States passport for a female person named "Amibola Adutayo". He said that they had been out of Canada for two or three hours and had purchased some perfume at the Duty Free Shop. The female passenger was a friend of his and a nurse.

[30] She said that she had driven from Maryland to Niagara Falls, New York to visit Mr. Oladapo for two or three days in Canada.

[31] They were sent to the secondary inspection station where Mr. Oladapo again presented the same passports. The female passenger stated that she had entered Canada two days earlier with her children, and had just returned to the United States with Mr. Oladapo for a visit.

[32] She did not resemble the person in the passport photograph. She could not explain why there were multiple stamps in the passport. When confronted with the fact that the same passport had been used by someone entering Canada the previous day as one of a group of seven people, she was unable to identify any of those people.

[33] When confronted with these discrepancies, she changed her story and identified herself as "Skerrett Parkinson". She did not present any documents in that name.

[34] A check of her cell phone turned up a text message from "Uncle Ademolo" directing her to meet him in Niagara Falls, New York. At that point, she deliberately bent the phone in half.

[35] Mr. Oladapo was arrested and searched. This led to the discovery of a Nigerian passport in the name of "Sekinatu Akinyemi" which was hidden in his sock. The photograph in that passport was a photograph of the female who was with Mr. Oladapo.

[36] Ms. Akinyemi declined to say anything further.

[37] Mr. Oladapo told the Canada Border Services Officers that he had in fact gone to the United States to pick up the female who was a friend. An unknown male had provided her with the passport that they had attempted to use. It was a very big mistake on Mr. Oladapo's part.

Background of Mr. Oladapo

[38] Mr. Oladapo was born and raised in Nigeria. His father was a lawyer with the federal government and his mother was employed in accounting. Mr. Oladapo completed a law degree in Nigeria in 1998 but did not qualify to practice law as he fled Nigeria and came to Canada as a refugee in 1999. He became a Canadian citizen in 2009.

[39] He lived with his first wife for two years before marrying her in 2001. They separated in August 2005 as a result of an incident that led to Mr. Oladapo being convicted of assault and given a suspended sentence in April 2006. They are divorced but Mr. Oladapo still maintains a relationship with his ex-wife and their seven-year-old daughter.

[40] He married his second wife in 2008. She has a nine-year-old daughter from a previous relationship.

[41] Mr. Oladapo worked for various law firms as a legal assistant. In September 2008, he began his own business called Easy Solutions Consulting Canada "providing assistance to new immigrants".

[42] Mr. Oladapo hopes to write the bar exams in order to be able to practice law in Ontario.

[43] The Pre-Sentence Report notes that Mr. Oladapo "has taken some responsibility for the offence and said he was remorseful".

[44] He volunteers weekly at the Above All Christian Gathering in Toronto.

[45] He complied with all of the conditions of his previous probation order, including a PARS counselling program.

[46] Counsel for Mr. Oladapo filed a number of reference letters with respect to Mr. Oladapo. Some of these did not make it clear whether the authors were aware of the charges against Mr. Oladapo. They did however make it clear that he is held in considerable esteem within his church and his community.

[47] The letter from Mr. Oladapo himself contains a clear apology for what he did. He expresses regret for his actions and states unequivocally that he has learned from this mistake and that he will not offend in the future.

Analysis

[48] I accept the fact that these offences are such that a jail term would be within the range of appropriate sentences.

[49] I note and agree with the comments of Belleghem J. of the Superior Court of Justice in Brampton in R. v. Xu that "this type of offence undermines the integrity of the immigration system" and "is a moral affront to legitimate immigrants who line up and wait patiently to enter either Canada or the United States".

[50] The Canada Border Services Agency relies heavily on the honesty of those attempting to enter Canada at any of the four bridges across the Niagara River and trusts them to provide accurate information. As a result, not everyone is required to verify the information that they provide to the Canada Border Services Officers. Even so, as anyone who has used those bridges can attest, there can be long line-ups of vehicles waiting for their occupants to be processed. I shudder to think how long those line-ups would be should the Canada Border Services Officers stop trusting everyone and conduct a full investigation in each and every case. The system would be brought to a standstill.

[51] So there is an element of trust with respect to each person who is asked to provide information and every lie such as those told by Mr. Oladapo is a clear breach of that trust as well as an offence.

[52] A sentence of imprisonment would certainly make it clear that we, as a society are not prepared to tolerate such behaviour, and would hopefully serve as a deterrent to such offences being committed in the future, either by Mr. Oladapo or by other like-minded individuals.

[53] However, I am aware of a number of cases where a non-custodial sentence was imposed with respect to similar or even more serious offences. In each of these cases, the sentencing judge was satisfied that the principles of denunciation and deterrence could both be met by either a large fine or by the imposition of a conditional sentence of imprisonment.

[54] In R. v. Wasiluk, Andre J. of the Ontario Court of Justice (as he then was), sentenced two offenders to a conditional sentence of imprisonment for 14 months. Unlike Mr. Oladapo, neither of these men had a prior criminal record. On the other hand, they had ferried a total of 30 aliens across the Detroit River from Canada into the United States on four separate occasions and they did so for monetary gain.

[55] In his reasons, Andre J. noted the comments of Belleghem J. referred to in paragraph [49], above. He also stated that the illegal transportation of inadmissible persons across an international border must be treated seriously by the courts and that "In the wake of September 11th, 2001, there is an awareness of the dangers posed by the illegal entry of persons into the United States and Canada."

[56] R. v. Dhalla was a summary conviction appeal brought by the Crown against a $5,000.00 fine imposed by Duncan J.

[57] The facts were that Mr. Dhalla flew from India with a nine-year-old boy, landing at Toronto Pearson International Airport. Mr. Dhalla had counselled the boy to give a false name and he also produced a false passport and other documentation in order for the boy to gain entry into Canada. Mr. Dhalla was charged with counselling and misrepresentation pursuant to section 126 of the Immigration and Refugee Protection Act.

[58] Mr. Dhalla was convicted after trial and Duncan J. imposed a fine of $5,000.00.

[59] On appeal, Tulloch J. upheld that sentence stating:

While it was open to the trial judge to impose a custodial sentence, I am satisfied that the sentence imposed is within the appropriate range for this type of offence, taking into account both the nature and gravity of the offence as well as the particular circumstances and antecedents of the respondent.

[60] R. v. Lwamba was very similar to the case before me.

[61] There, the two defendants entered Canada by car via the Queenston – Lewiston Bridge in Niagara-On-The-Lake. They had a rear-seat female passenger. The two defendants presented valid Canadian passports both for themselves and the female passenger. She did not match the photograph in "her" passport. The three of them were sent to the secondary inspection station and questioned separately.

[62] The female passenger soon admitted that she was someone else and that the men had provided her with the passport.

[63] In her absence the two defendants stuck to their original story. They maintained that their female passenger had been known to them for several years and that she was the woman identified by the passport she presented. The defendant George Lwamba went further and stated that she had been a member of his church choir for the past two years until he was told that she had admitted to her correct identity.

[64] Nadel J. decided not to impose a jail term as requested by Crown counsel and instead imposed a fine of $5,000.00 on each offender.

[65] R. v. Thirunathan Rasaiah was also similar. There, Watson J. also decided not to impose a jail term as requested by Crown counsel, and instead imposed a conditional sentence of imprisonment for seven months.

[66] In this case, I am troubled by the fact that Mr. Oladapo has a prior criminal record. I note however that it is somewhat dated and unrelated to the offences before me. I also note that he responded well to community supervision and successfully completed his probation following his previous conviction.

[67] I am more troubled by the fact that Mr. Oladapo was employed as an advisor to people wishing to immigrate to Canada. In my view, anyone doing this should be well aware of the rules and the importance of complying with them. He must be held to a higher standard.

[68] Despite that, I cannot say that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[69] On the contrary, it would be entirely consistent with sections 718.2(d) and (e).

[70] In addition, terms and conditions can be crafted so as to satisfy the principles of denunciation and general deterrence. Further to that end, I can impose a conditional sentence that runs for a longer period than any jail term that I would have otherwise imposed. I can state here that had I sent Mr. Oladapo to jail, I would have imprisoned him for considerably less time than the nine months requested by Crown counsel.

[71] With respect to general deterrence, I suspect that Mr. Oladapo has learned a great deal from this process already. I further suspect that he will learn even more in the future as the full consequences of these convictions sink in. I expect, as I noted earlier, that he will find that the Canada Border Services officials will be watching his every move should he ever leave and re-enter Canada. I expect also that the Law Society of Upper Canada may not welcome him into the legal profession with open arms once they become aware of these convictions.

[72] With respect to the principles of restorative justice, I note that a significant community service order as part of a conditional sentence of imprisonment will allow Mr. Oladapo to give something back to the community. It will also provide him with ongoing reminders of the consequences of his actions.

[73] Finally, a conditional sentence will also allow Mr. Oladapo to continue working and to provide financial support to his dependents. He will suffer the consequences of his illegal actions and they will not.

[74] Before concluding, I must observe that Crown counsel argued that Parliament had recently increased the maximum penalty for these offences to imprisonment for 14 years and that while these new maximums did not apply to Mr. Oladapo, I should view the amendment as a reflection of Parliament's intention that the offences be treated more seriously than they were before.

[75] Andre J. certainly accepted that argument in Wasiluk, stating that

In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.

[76] I too have accepted that premise in other cases involving other legislation.

[77] However, my reading of the Immigration and Refugee Protection Act indicates that the amendments referred to by Crown counsel only applied to sections 122(b) and (c). The maximum sentence with respect to section 122(a) was and still is imprisonment for five years. The maximum sentence by indictment for the section 127(a) offence is a $100,000.00 fine and/or imprisonment for five years.

[78] I note that the Information shows that the female passenger Sekinatu Akinyemi entered a guilty plea to an offence contrary to section 122(b) and she was sentenced by Coroza J. on January 20, 2011 to time served being 60 days pre-sentence custody. I know nothing else about her however other than what has been set out in these reasons.

Sentence

[79] For all of these reasons, I sentence Mr. Oladapo to concurrent conditional sentences of imprisonment for one year to be served in the community.

[80] During that time, he will:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Report to a supervisor in person within two working days and thereafter, when required by the supervisor and in the manner directed by the supervisor;

4. Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;

5. Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor;

6. Reside at an address approved by his supervisor;

7. For the first six months of this conditional sentence, he shall remain within his place of residence at all times except:

   (a) for reporting to his supervisor and travelling directly to and from that office;

   (b) for purposes of employment or education that is verified in writing by his supervisor and travelling directly to and from the place of employment or education;

   (c) for the purpose of seeking employment in the manner and during the period as his supervisor may direct in writing;

   (d) for purposes of performing community service as directed by his supervisor and travelling directly to and from the place of community service;

   (e) for the purpose of attending a dental or medical appointment with the prior written permission of his supervisor, or for a medical or other emergency;

   (f) for the purpose of engaging in shopping for food, medicine, clothing or other necessities for one continuous period of up to but not exceeding four hours on no more than one occasion in any seven day period. Unless otherwise specified in writing by the supervisor this four hour period shall occur between the hours of 1:00 pm and 5:00 pm on Saturdays;

   (g) for the purpose of religious observance at the Above All Christian Gathering in Toronto at such times as are specified in writing by his supervisor;

   (h) for the purpose of exercising access to his children with the prior written permission of his supervisor and travelling directly to and from the place of that access;

   (i) for such other purposes and on such written terms and conditions as his supervisor may permit;

8. For the remainder of this conditional sentence, be in his place of residence daily between the hours of 11:00 pm and 5:00 am except for purposes of employment that has been confirmed by his supervisor or with the written permission of his supervisor;

9. Answer any telephone calls placed to his residence by his supervisor or any person designated as the agent of the supervisor for the purpose of confirming compliance with and for the purpose of enhancing enforcement of this order including the determination of his presence and condition in his residence;

10. Upon the request of his supervisor or upon the request of any peace officer or other person acting as agent for the supervisor, present himself at the door of his residence for the purpose of confirming his presence and condition in his residence;

11. If, after waiting he fails to present himself at the door within a reasonable period of time as requested, his supervisor or agent may use reasonable force to enter his residence to determine his presence and condition in that residence;

12. His supervisor may deliver a copy of this order to any person for the purpose of confirming compliance with and for the purpose of enhancing the enforcement of this order, including but not limited to neighbours and employers as well as to any policing agencies;

13. When away from his residence, as allowed by the terms of this order, carry a copy of this order with him and produce it on the request of his supervisor or any peace officer;

14. Make reasonable efforts to find and maintain suitable employment or attend school or other educational program full-time and provide proof and show progress reports to his supervisor as required;

15. Provide for the support or care of dependants;

16. Perform 100 hours of community service. The work is to commence within 30 days and shall be completed to the satisfaction of his supervisor or designate within 11 months at a rate of at least 10 hours per month.

Released: March 25, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris