Court Information

Ontario Court of Justice

Date: March 27, 2014

Court File No.: Toronto

Parties

Between:

Her Majesty the Queen

— And —

Hyun Joo Kim

Before: Justice S. Nakatsuru

Heard on: March 4, 2014

Reasons for Judgment released on: March 27, 2014

Counsel

Chamberlain, A. — counsel for the Crown

Ross, A. — for the defendant Hyun Joo Kim

NAKATSURU J.:

[1]

Ms. Hyun Joo Kim pleaded guilty to an offence under s. 127(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The Crown and defence have submitted a joint submission that Ms. Kim serves a 3 month conditional sentence. For these reasons, I have rejected this joint submission and suspend the passing of sentence and place her on probation for 6 months.

A. SUMMARY OF THE FACTS

[2]

Ms. Kim was born on May 26, 1992. She emigrated from Korea and came to Canada in 2003 with her family. In 2009 she became a naturalized Canadian citizen. In March of 2012, Ms. Kim made a refugee claim using a fictitious name as she was lead to believe that she could receive some financial benefit from doing so. Due to the fact she was naturalized, her fingerprints were on file with Immigration and they soon found out her true identity. She was arrested in 2013. She received no benefit from her false representation.

[3]

Ms. Ross on her behalf submitted a number of materials and documents at her sentencing. Included in the package was a letter sent on June 10, 2013, by Ms. Kim to the Immigration and Refugee Board outlining her remorse for what she had done and the circumstances leading to her false refugee claim. She apologized for her mistake and any harm it caused the Board. This letter also provided some personal background.

[4]

Ms. Kim had lived with her parents in the city of Kingston, Ontario. After high school, she moved to Toronto much to the displeasure of her parents. She accepted admission to the University of Toronto rather than going to Queen's University in Kingston.

[5]

A psychiatrist, Dr. J. Caplan, who has treated Ms. Kim for depression, further outlined her family situation and the position Ms. Kim found herself at the time of the offence. Ms. Kim had controlling parents who pressured her constantly about her school work. She found her teenage years very difficult. She was a gloomy and unhappy teenager who felt pressured to get good marks and was verbally abused by her parents.

[6]

Once in Toronto, she changed her mind about school and obtained work as a waitress. As her parents did not want her to go to Toronto, at the time of the offence, Ms. Kim had not been in contact with her parents for a number of months and she was running out of money. She found her rent expensive and had not paid for some months. At the age of 19, Ms. Kim found it difficult to stand on her own. When she explained her situation to her landlady, her landlady suggested she apply for refugee status in order to get help with her rent. Given her landlady was forgiving about her delayed payment of rent, Ms. Kim felt her landlady was a friend and was trying to help. Her landlady provided her the address of Immigration and the details of how to use a false name and birthdate. Ms. Kim made the application but was soon discovered.

[7]

Ms. Kim then turned to her parents and begged for help. They did and she was able to move into a new place with her new boyfriend. Ms. Kim reported her landlady to a fraud line and when the Canadian Border Services Agency officers came to investigate Ms. Kim, she offered to cooperate with them.

[8]

In 2013, she married her boyfriend and now they are parents to a young baby boy who is a year old.

[9]

A Ms. Juli Kim presented a character letter on behalf of Ms. Kim. Ms. Juli Kim is a student at Queen's University and has known the defendant since high school and both have attended the same Korean Church. They are fast friends. Ms. Juli Kim writes that the defendant feels ashamed and "incredibly bad" about her mistake and she realizes how serious her actions in breaking the law were. She writes her friend is a good person and desirous of making amends.

[10]

Despite having a young child, Ms. Kim has done some volunteer work interpreting for the YMCA of Greater Toronto. Ms. Kim assisted an elderly lady in that capacity, one Ms. Sung Ja Choi, who was moved to write her a letter of support. Ms. Choi has been helped by Ms. Kim in her daily activities. This help was provided even outside any formal volunteering for the YMCA. Ms. Choi describes how generous and warm-hearted Ms. Kim is, helping her even while bringing her child on her back or in a baby carriage. She describes Ms. Kim as a good person and regretful of the mistake she has made. Ms. Choi asks that mercy be extended to Ms. Kim and hopes her letter helps Ms. Kim in her predicament even if but a little.

[11]

Ms. Kim fell into depression as a result of her legal entanglements and saw Dr. Caplan in November of 2013. He has seen Ms. Kim on three occasions, most recently on February 26, 2014. He has diagnosed her as suffering from a mild depression due to her situation and prescribed a low dose anti-depressant. She has since remained stable. Her baby is healthy and Dr. Caplan is not concerned about her care of her child. Dr. Caplan noted her difficult upbringing but no other factor contributing to her present mental state. He reports that Ms. Kim presents as a bright young woman who is acutely aware of her mistake. In Dr. Caplan's view, Ms. Kim is embarrassed by her foolish behavior and is intelligent enough to realize the serious consequences of her actions. Dr. Caplan opines that repetition of this offence is unlikely.

B. ANALYSIS

[12]

This is a joint submission. It is worthy of serious consideration and judicial deference. My decision to "undercut" this joint submission has not been taken lightly. The Ontario Court of Appeal affirmed in R. v. DeSousa (2012), 2012 ONCA 254, 286 C.C.C. (3d) 152 that the test for "undercutting" a joint submission on sentence is the same as "jumping" a joint submission. The policy reasons for such a stringent test are well-known. In this particular case, I find the joint submission to be contrary to the public interest and would bring the administration of justice into disrepute.

[13]

Certainty of result is a laudable goal of acceding to joint submissions. However, I find that the harm caused by accepting this joint submission far exceeds the value of that certainty.

[14]

This joint submission is for a jail sentence of 3 months, albeit one served in the community, with the first two months under house arrest with some exceptions. This, for a first offender who was a teenager at the time of the offence.

[15]

I am alive to the fact that "undercutting" a joint submission may have a negative effect on the public confidence in the administration of criminal justice. As Doherty J.A. commented in DeSousa at para. 24:

As alluded to in the extract from the Martin Report set out above, where a judge is considering "undercutting" a joint submission, he or she must have regard to the community's reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission. Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain.

[16]

In this case, this concern about the defendant enjoying other benefits of the bargain but not requiring to serve the agreed upon sentence has no application. Ms. Kim has pleaded guilty to the only count on the information that is before the court. The Crown has not withdrawn any charges or accepted a plea to a lesser offence in proposing this joint submission. I inquired of the Crown specifically if there was anything that should be brought to my attention in assessing the suitability of this joint submission that counsel considered but I was not aware of. An example of this would have been some benefit extended to Ms. Kim, perhaps on other legal matters that were not before me. I was advised that there was nothing further. Plain and simple, Ms. Kim has pleaded guilty to the only charge she is facing and the joint position was arrived at without consideration of factors other than that material to this offence.

[17]

In assessing this joint submission, I take into consideration the aggravating and mitigating factors. The principles of general and specific deterrence, denunciation, and rehabilitation must be balanced to ensure the sentence is a proportional one. Overarching is the test to be applied on assessing a joint submission.

[18]

To start, in assessing the gravity of the offence, the nature of the offence as outlined in s. 127(a) of the Act must be considered:

127. No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act.

[19]

In committing this offence, Ms. Kim knowingly misrepresented her identity in order to claim refugee status in Canada. Clearly, as a naturalized Canadian, she was not entitled to claim or receive such status and, more relevant to her case, any benefits that attach to such a claim.

[20]

I am keenly sensitive to the general deterrence concerns at play. That said, it strikes me that the facts of this offence are unusual in the immigration context. In support of the joint submission, both counsel have referred to the cases of R. v. Hupang, [2008] B.C.J. No. 2264 (B.C.C.A.) and R. v. Zhao, [2013] B.C.J. No. 1893 (Prov. Ct.).

[21]

In Hupang Prowse J.A. overturned a 60 day jail sentence for a young first offender from China who on two occasions provided false information to Immigration contrary to s. 127(a) of the Act so that he could remain in Canada in order to continue his studies. On appeal, the Court found that the 17 days he had already spent in custody was sufficient to meet general deterrence concerns and left the $2,500 fine intact. In coming to this conclusion, Prowse J.A. held the following at para. 10:

In this case, Mr. Hupang accepted responsibility for his actions and pleaded guilty. The dearth of related authorities is some indication that this type of illegality is not widespread, or, if widespread, has not been regarded as a matter of sufficient seriousness to warrant strict enforcement. Having said that, I accept the submission of counsel for the Crown that this type of offence is serious, particularly because it arises in the context of a self-reporting system which is dependent on the honesty of applicants for student visas and other entrance documents for it to work effectively. In that sense, a person who attempts to circumvent the system through falsification of documents, as occurred here, participates in a form of breach of trust. It is for that reason I agree with the sentencing judge that a discharge would not have been an appropriate disposition in this case, where Mr. Hupang filed false documents on two occasions.

[22]

In addition, Prowse J.A. made it clear that the court's decision should not stand as authority for the proposition that a term of imprisonment was appropriate for similar contraventions of the section, noted that the Act did not set forth any minimum penalty, and held that each case should be dealt with on its own facts.

[23]

In Zhao the defendant, when he was a teenager, obtained a Canadian study permit using false documentation. The offender studied at various institutions and then filed a refugee claim under his real name on the basis he feared persecution in China because of his affiliation with an organization known as the Falun Gong. In making that application, Mr. Zhao failed to disclose the fact he had been studying in Canada under a false identity during the period of time he claimed he was being persecuted in China. His refugee claim was approved and he subsequently became a permanent resident, married, and sponsored his wife and had two children. It was some ten years later that his misrepresentations came to light when he was renewing his driver's licence after new facial recognition technology was being utilized. Mr. Zhao had no prior criminal record and pleaded guilty. The Crown sought a 9 month jail sentence while the defence argued for a conditional sentence or a discharge. Judge Chen sentenced Mr. Zhao to a conditional sentence of 3 months. In doing so, he noted that in committing the two offences under s. 127(a), Mr. Zhao had committed a breach of trust in that the immigration system is dependent on the truthfulness and honesty of applicants in providing accurate information about them.

[24]

In my opinion, these cases are distinguishable. I acknowledge the significant harm that can be caused to our immigration and refugee system when individuals provide false information in an attempt to circumvent the rules in place for individuals seeking to enter and remain in our country. Our sovereignty and our safety demand that the rules be respected. Ms. Kim's case is somewhat different. She is a Canadian and her right to enter and remain in Canada is a constitutional one. Her actions were not designed to avoid, undermine, or harm the objectives of the Act. Her motive was purely financial. One arising out of economic and personal distress.

[25]

I appreciate that the Crown has argued that Ms. Kim is not an isolated case. He submitted that he had been involved in a prior case where an offender tried to use the immigration and refugee system to create a false identity and to receive benefits. While I readily accept that there are likely other cases that have been through the justice system that are similar in some respect to Ms. Kim, I am not persuaded that based upon this single representation that it is such a significant problem that Ms. Kim's case should attract the full weight of the principle of general deterrence. In just exercising common sense, it strikes me that it is unlikely Canadian citizens would commonly resort to making false refugee claims in order to gain financial benefit in terms of rental assistance.

[26]

In addition, Ms. Kim was readily apprehended. No loss was suffered by any government institution. No other non-economic harm resulting from her actions has been identified. This offence by Ms. Kim, described by others in the defence materials as foolish, seems to me just that; foolish actions by a naïve and immature young girl. There was no sophistication involved. The fact that she did not realize that someone would likely check her fingerprints against those she had given years earlier supports this conclusion.

[27]

The Crown further submits that the fact that the immigration and refugee system depends upon the honesty of the applicants is an aggravating factor. I agree. It is an aggravating factor that the offence involves a breach of trust. I further agree that many individuals who make refugee claims understandably lack the proper documentation and credentials that make identity fraud more difficult to detect. It is this unavoidable circumstance that refugee claimants often find themselves in that permits unscrupulous individuals to attempt to take advantage of the system. A sentence must deter those individuals.

[28]

That being said, as this case illustrates, there are checks and safeguards in place. The system does not blindly trust the statements of refugee applicants. It is well-known that a significant number of applicants are not awarded refugee status in this country despite their claims of persecution.

[29]

Lastly on this point, while the breach of trust is a factor that warrants serious consideration, it is nonetheless, one factor out of many that must be assessed in finding the appropriate sentence.

[30]

In assessing the gravity of the offence, while the offence involves a bogus refugee claim, the overall circumstances seem more similar to social assistance fraud. Such offences also involve a breach of trust. Seeking rental assistance and funds that she was not entitled to was Ms. Kim's objective. She was not seeking entitlement to admission to or status in this country. She was seeking public monies to help her with her rent. In crafting appropriate sentences for social assistance fraud general deterrence is equally important. In such cases, a wide variety of individuals may succumb to the temptation to misrepresent information in order to receive benefits. Individuals' economic duress has been considered to be a relevant factor to take into account. In such cases, non-custodial sentences have been given when the facts warranted them: see R. v. Myles (1977), 20 C.L.Q. 147 (B.C. Prov. Ct.); R. v. Bates (1972), 9 C.C.C. (2d) 74 (Ont. Co. Ct.); R. v. Laybolt (1985), 20 C.C.C. (3d) 263 (P.E.I.S.C.).

[31]

Noteworthy as well are sentencing cases where offenders found guilty of counselling or misrepresenting facts in order to illegally obtain entry into the country contrary to the Act, received fines rather than any form of custody: see R. v. Lwamba, [2012] O.J. No. 1964 (Ont. C.J.); R. v. Dhalla, [2007] O.J. No. 1362 (Ont. S.C.).

[32]

In sum, in my opinion, the circumstances of this offence are not such that a custodial sentence, even one served in the community, is necessarily warranted.

[33]

The mitigating factors include the fact that Ms. Kim has pleaded guilty and shown genuine remorse. She offered to cooperate with the authorities. She was 19 years old at the time of the offence and without any prior record. The materials filed demonstrate that this offence is out of character for her. Since then, she has sought psychiatric help, married, and is responsibly taking care of her young child.

[34]

At the time of the offence, she had lost the support of her parents and found herself living in an unfamiliar large urban environment unable to afford her rental payments. I find that the moral blameworthiness of Ms. Kim is diminished by her age and immaturity, the financial and social situation she found herself in, and the influence of her landlady in suggesting that she commit this offence. With respect to the latter fact, this is an important mitigating factor. While of course, Ms. Kim is responsible for her own actions, it was the combination of her personal and economic circumstances that made her vulnerable to her landlady's suggestions. Given Ms. Kim's unworldliness, it would have been highly unlikely that she would have embarked on this illegal venture on her own initiative.

[35]

I find that Ms. Kim is very unlikely to repeat this offence or any criminal offence. Specific deterrence is not a concern. There is a strong prospect of rehabilitation. She has reconnected to her parents. She has taken to her maternal role responsibly. She now has the support of her husband who works in construction. Her volunteer work even while caring for her child shows determination and character. I find that Ms. Kim has made great strides and has substantially if not completely rehabilitated herself. In my view, this was an isolated offence committed by a young person who succumbed to suggestion and temptation while in difficult straits.

[36]

In summary, this is a case where there are significant mitigating factors. While deterrence concerns exist given the breach of trust, they are diminished by the rather unique circumstances in which the offence was committed, the fact no economic loss was suffered to the public purse, and the integrity of the immigration system was not harmed by Ms. Kim's actions. Rehabilitation is a strong consideration.

[37]

Looking at the whole of the case, I find that a period of custody for this offence and this offender, even if served in the community, is contrary to the public interest and would bring the administration of justice into disrepute. A conditional sentence remains a custodial sentence and can lead to actual custody if breached: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. There is no public interest in imposing such a sentence for a young first time offender like Ms. Kim when no significant harm resulted; when sentences imposed in other cases in the social assistance fraud context and in the immigration context where similar or more grave facts existed, have resulted in mere fines or probation. It is noteworthy in DeSousa that although Doherty J.A. found that the trial judge erred in principle in his approach to "undercutting" a joint submission, the joint submission for jail, even one served in the community, was contrary to the public interest for a first time offender with a promising future for the offence of importing an illegal substance known as "khat". In approaching the sentence on the facts existing at the time of the appeal, Doherty J.A. dismissed the appeal leaving the absolute discharge intact.

[38]

I have seriously considered whether a discharge should be granted to Ms. Kim. However, although it would be in her best interest, I find it would be contrary to the public interest. Regardless of the mitigating factors and the unique circumstances that exist, general deterrence concerns and the importance of maintaining adherence to and respect for the immigration laws of our nation, leads me to conclude it would be contrary to the public interest to grant a discharge.

[39]

Consequently, sentence will be suspended and Ms. Kim will be placed on probation for 6 months. In addition to the statutory terms, Ms. Kim will observe the following conditions:

1. Report forthwith to a probation officer and thereafter as directed;
2. Take such counselling as recommended by the probation officer and sign all releases in order to monitor her attendance and progress;
3. Perform 20 community service hours commencing within 30 days at no less than 4 hours per month.

Released: March 27, 2014

Signed: "Justice S. Nakatsuru"