ONTARIO COURT OF JUSTICE

DATE: 2021 01 20 COURT FILE No.: Brampton 19- 000232

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAKIA MOJADIDDI

Before: Justice P.T. O’Marra

Heard on: October 19 and 20, 2020 Reasons for Judgment on Sentence released on: January 20, 2021

Counsel: C. Hackett and A. Mountjoy............................................................. counsel for the Crown W. Fox and S. Hassan............................... counsel for the defendant Sakia Mojadiddi

P.T. O’Marra, J.:

Introduction:

[1] In 1989, Ms. Mojadiddi emigrated to Canada from Afghanistan, with her three (3) children and husband. She left war torn Afghanistan after most of her family had been rounded up by Soviet invading forces and were never seen again. Ms. Mojadiddi witnessed and personally experienced the most unimaginable atrocities, including bearing witness to her older brother’s murder by government forces. These horrors have left her psychologically traumatized for the rest of her life.

[2] After her horrible plight in Afghanistan and arrival to Canada, the narrative that one would expect to hear is that Ms. Mojadiddi started a new life that was occupied with financial, humanitarian and philanthropic attainment. The stuff for a rag to riches novel. That was not to be. Rather this case is entirely about broken promises and shattered dreams caused by Ms. Mojadiddi’s fraudulent, predacious and greedy actions.

[3] On July 22, 2020, Ms. Mojadiddi plead guilty to committing fraud over $5000, contrary to section 380(1)(a) of the Criminal Code. These are my reasons for sentence.

Positions of the Parties:

[4] The Crown seeks a sentence in the range of four (4) years to four and a half (4 ½) years in the penitentiary. In addition, the Crown seeks the following ancillary orders:

(i) An Order pursuant to s.380.2 of the Criminal Code prohibiting Ms. Mojadiddi from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity that involves having authority over the real property, money or valuable security of another person for a period of ten (10) years.

(ii) An Order pursuant to s. 738 of the Criminal Code for restitution in the amount of $946,083.99, to be distributed pro-rata in accordance with Appendix C to the Agreed Statement of Facts and to take priority over the fine in lieu so that any monies paid towards the restitution order will be equally credited to reduce the fine.

(iii) An Order pursuant to s. 462.37(3) of the Criminal Code for a fine in lieu of forfeiture in the amount of $1,077,584.

(iv) An Order for the taking of DNA pursuant to s. 487.04 of the Criminal Code.

(v) An Order for the non-communication with the victims pursuant to s. 743.21. of the Criminal Code.

[5] The Defence submits a sentence of three (3) years in the penitentiary would be appropriate in the circumstances of this case. The Defence does not oppose the suggested ancillary orders.

Circumstances of the Offence:

[6] Ms. Mojadiddi plead guilty to the following facts:

[7] Between January 1st, 2007 and October 31st, 2017, a ten-year period, Ms. Mojadiddi defrauded 47 victims of $1,077,584.

[8] Ms. Mojadiddi was the President of the Afghani Refugee Relief Organization (ARRO), which was a charitable organization. Although Ms. Mojadiddi commenced her fraud in 2007, ARRO was not formerly incorporated until 2008. Her daughter, Mariam Qureshi and Ms. Mojadiddi’s friend, Macdonald Scott were named first directors. In 2010, ARRO Inc. was incorporated as a non-profit charitable organization under the Canada Corporations Act. At that time, four (4) additional directors were added and Mariam Qureshi was not named as a director. Ms. Qureshi was named Board Chairperson, and Ms. Mojadiddi was named as President. Ms. Qureshi, Ms. Mojadiddi and Mr. Scott had signing authority. Both corporations were really one company ARR, with Ms. Mojadiddi’s firm hand on the tiller.

[9] Ms. Mojadiddi was the “face” of ARR. She organized functions, to raise money and community awareness regarding ARR. She met with politicians and the Chief of Peel Regional Police Service to raise donations. She appeared on national and international radio and television ads to promote and advertise her ability to assist people in bringing their family members to Canada. Ms. Mojadiddi held herself out to be a knowledgeable, charitable and trustworthy individual.

[10] ARR purported to aid potential refugee claimants from Afghanistan. ARR’s application to incorporate included the following values and goals:

To give Refugees from Afghanistan a voice within our communities and within the larger society;
To save orphans, widows, disabled persons and youth who are displaced by war and civil strife in Afghanistan;
To assist Refugees from Afghanistan displaced by war and civil strife in settling in Canada;
To assist Refugees from Afghanistan in achieving better lives once they arrive in Canada, i.e. in terms of Education, Work placement; and English Language Skills;
To assist with coping skills and cultural adjustment for Refugees from Afghanistan once they arrive in Canada;
To preserve Afghani culture and promote Muslim ideals within the Afghani refugee community;
To help Afghani women to adjust to western culture and to promote women’s rights within our community and the larger society; and
To put Refugees from Afghanistan in our decision-making structure and to empower them within our organization.

[11] The application to incorporate also stated that the directors were providing their services on a voluntary basis and that they were all legally and financially liable to the corporation.

[12] Ms. Mojadiddi developed a reputation both at home and abroad as someone who could assist people who had family members suffering in other countries. People began to approach Ms. Mojadiddi and ARR to assist their family members, who were experiencing great hardship, to emigrate to Canada from countries such as Afghanistan, Pakistan, Iran, Russia, India and Tajikistan.

[13] Ms. Mojadiddi, at times alone and often with her daughter, Ms. Qureshi, met with families that were interested in sponsoring their foreign refugee family members. Ms. Mojadiddi made the following representations to these families:

Ms. Mojadiddi and her business, ARR, had the expertise and ability to sponsor people from abroad, typically as refugees.
Ms. Mojadiddi and/or her daughter, Ms. Qureshi would assist with the filling out and filing of refugee applications. Four people mentioned that Ms. Mojadiddi’s daughter, Ms. Qureshi, was represented to be either a lawyer, paralegal, or someone experienced in filling out immigration applications.
Ms. Mojadiddi charged a registration fee and an office paperwork fee. That fee was to be paid up front and was required to start the sponsorship process. The registration fee was $300. The paperwork fee was $1,000 for a family or $700 for a single person.
Ms. Mojadiddi also required a financial “deposit” to start the sponsorship process. The deposit was supposed to be calculated based on the number of family members. Ms. Mojadiddi represented that evidence of the deposit was required by the government to demonstrate that the sponsor had sufficient financial support for the impending refugees. Ms. Mojadiddi told people that the government would not approve the sponsorship without proof of the deposit. People were assured that the deposit would remain in trust for the exclusive use of the sponsored family members to use for housing or food or the like upon their arrival. Ms. Mojadiddi promised people that if the sponsored family members did not arrive or arrived but did not use the money for a year after their arrival, the money would be returned in full.

[14] The false promises and misrepresentations perpetrated on the victims were revealed in the following manner:

(i) Ms. Mojadiddi, Ms. Qureshi, all directors, all employees and the ARR organization did not hold a sponsorship designation or accreditation by Immigration, Refugee and Citizenship Canada (IRCC). In other words, no one was a certified immigration consultant.

(ii) None of the victims’ immigration applications were filed with the IRCC. The fees that were taken by Ms. Mojadiddi and ARR were never sent to the IRCC on behalf of the applicants. The victims’ fees were deposited in ARR’s accounts, then withdrawn in cash and used for household, personal or business expenses and transferred to the accounts of Ms. Mojadiddi, her daughters and others.

(iii) With respect to deposit monies provided on behalf of sponsored refugees, none were ever held in trust by Ms. Mojadiddi, but rather used for personal and business use by her, her daughters and others.

[15] Over the years, when family members of the sponsored refugee inquired about the delays or the status of their applications, or requested the file numbers from Ms. Mojadiddi, the following falsehoods were expressed:

(i) Ms. Mojadiddi was out of the country, at a seminar, had an accident, was sick or she would get back to them at a later date.

(ii) The immigration process was slow and IRCC or “lawyers” were to blame for the delays.

(iii) Requesting the IRCC for the assigned file number would jeopardize their applications.

(iv) Only the refugee’s family members could cancel the application or request the return of their money, in writing.

(v) In some cases, the victims were advised that the IRCC or the “government” lawyers were slowing down the process or the money could not be returned at all.

[16] In one instance, Ms. Mojadiddi had the temerity to threaten to call the police on one victim if she re-attended ARR’s offices to inquire about the status of her application for a family member. Another victim was subject to a peace bond application filed by Ms. Mojadiddi due to his repeated and persistent requests regarding the status of his family’s application.

[17] Another despicable act that was perpetrated by Ms. Mojadiddi, was her request from victim families for additional monies in order to “speed up” the process. Ms. Mojadiddi fraudulently claimed that the additional fees were for the lawyers and or Permanent Residence cards. These funds were commingled with other funds that were used and or transferred to Ms. Mojadiddi, her daughters and other family members.

[18] Not a single applicant that Ms. Mojadiddi sponsored ever came to Canada. In fact, on the advice of Ms. Mojadiddi many refugees left their homes to travel to other countries in order to make their refugee applications. Many of these applicants lost a substantial amount of money and had to endure psychological and physical hardships while waiting in other countries.

[19] After Ms. Mojadiddi was arrested for her fraudulent conduct in July 2017, after several victims reached out regarding the status of their files. Despite her arrest, Ms. Mojadiddi continued to request additional funds from victims and claim that she was still able to sponsor their families until her subsequent arrest for additional fraud charges in February 2018.

[20] The total proceeds taken from the 47 victims as a result of this swindle was the sum of $1,077,584. Six victims were able to recover $71,500. On November 14, 2019, Morassa Rizvi, a former co-accused, re-paid $60,000. Thus, the net amount that remains outstanding as a result of Ms. Mojadiddi’s criminal enterprise is $946,083.99.

Purpose and Principles of Sentencing:

[21] Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following statutorily imposed objectives:

(a) denunciation of the unlawful conduct and the harm caused to victims and the community;

(b) specific deterrence of the offender and general deterrence of others in the community who might be tempted to commit similar offences;

(d) rehabilitation of the offender;

(e) reparation for harm done to victims or the community; and,

(f) promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.

[22] A fundamental purpose in sentencing is that a fit sentence is proportionate to the gravity of the offence and degree of responsibility of the offender. (See: Section 718.1 of the Criminal Code)

[23] A sentencing judge has considerable discretion in making a fit sentence for a crime, but that discretion must be exercised within the parameters of the Criminal Code and prevailing jurisprudence and precedent.

[24] This means that for the sentence I impose to be appropriate, it must be tailored to Ms. Mojadiddi’s circumstances, and the circumstances of the offence she committed.

[25] Section 718.2 of the Criminal Code prescribes statutory factors that are deemed aggravating that I must take into consideration. The following aggravating principles have particular application to this case:

(a) evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim; and,

(b) evidence that the offence had a significant impact on the victim, considering their age and other circumstances, including their health and financial situation.

[26] Section 380.1 of the Criminal Code sets out principles of sentencing specific to fraud cases. The section describes various aggravating circumstances that the court must take into consideration on sentence including:

(a) the amount of the fraud exceeded $1 million;

(b) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(c) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;

(d) the offence involved a large number of victims;

(e) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(f) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(g) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and

(h) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

[27] As a sentencing judge, I am required to exercise restraint. Section 718.2 (d) of the Criminal Code mandates that any offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Furthermore, I must adhere to the principle of parity to ensure that there is consistency in sentencing. Section 718.2(b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[28] I intend to set out the aggravating factors, Ms. Mojadiddi’s personal circumstances and the mitigating factors. I will endeavour to balance the range sought by the Crown, with position of the defence, while taking into consideration Ms. Mojadiddi’s personal circumstances and the circumstances of other offenders who have committed similar crimes.

Aggravating Factors:

Statutory Provisions:

[29] As I have previously stated, Parliament enacted statutory aggravating factors in sentencing fraud cases. The newest provisions came into effect on November 23, 2011 which was generally the mid point of the duration of Ms. Mojadiddi’s fraud which spanned approximately a 10-year period from 2007 to 2017. Aside from codifying many of the common law aggravating principles in fraud cases, the maximum period of fraud over $5000 was increased to fourteen (14) years, and a mandatory minimum of two (2) years imprisonment was set when the subject matter exceeds one million dollars. The Crown does not rely on the mandatory minimum in this case but submitted that the creation of a mandatory minimum illustrates the seriousness of the offence.

[30] A number of the recent statutory factors did not exist before 2011 when Ms. Mojadiddi committed her crime. Nevertheless, those factors will apply in this case and, in my view, do not offend the rule against retrospective effect. There are no adverse consequences to Ms. Mojadiddi as the newest factors would be considered aggravating with or without the amendments. (See: R. v. Stone, [1999] 2 S.C.R. 290, at para. 241; R. v. Ajise, 2018 ONCA 494 and R. v. Pavao, 2018 ONSC 4889 at para. 42).

[31] It is aggravating that Ms. Mojadiddi abused the trust that the victims had placed in her pursuant to section 718.2 (a) of the Criminal Code.

[32] I also find the following statutorily aggravating factors apply in this case pursuant to section 380.1(1) of the Criminal Code:

(a) The magnitude, complexity, duration or degree of planning of the fraud committed was significant:

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and

(1.1) that the value of the fraud exceeded one million dollars.

Breach of Trust:

[33] I find that Ms. Mojadiddi was in a position of trust over the victims and their families. Ms. Mojadiddi cultivated a reputation for skill and ability in navigating the intricacies of the Canadian immigration system. It was that reputation that the victims relied upon in retaining her services.

The Offence Involved a Large Number of Victims:

[34] This offence involved 47 victims. Many of these individuals attempted to help family members.

The Nature, Complexity and Length of the Fraud:

[35] The length of the fraud lasted approximately 10 years that involved 47 victims. Primarily, the families of the victims resided in Ontario, however, many resided in British Columbia, the United States, Russia, Afghanistan, India, Iran and Tajikistan. The fraud amounted to a total of $1,077,584. The funds that were provided to ARR and Ms. Mojadiddi initially commenced the application, but more funds were demanded to complete or expedite the bogus applications.

[36] Ms. Mojadiddi promoted her services as a volunteer and used the legitimacy of the ARR as an incorporated not for profit company with a Board of Directors, to create the fraud. Ms. Mojadiddi created official looking documents such as invoices and receipts to perpetuate the fraud.

[37] Even after being initially arrested and charged with fraud, Ms. Mojadiddi continued to solicit funds from the victims, until further charges were laid.

The Number of Victims and the Impact:

[38] Many of the victims filed victim impact statements that were read by the Crown. The common theme was the abject sadness, and anger that each victim felt as a result of Ms. Mojadiddi’s fraudulent scheme.

[39] M.M.A., M.M.M., O.A. and F.A. filed victim impact statements. They were written by O.A. In 2011, both M.M.A. and M.M.M., through their family, sought help from Ms. Mojadiddi and the ARR organization. At the urging of Ms. Mojadiddi, both left Afghanistan and travelled to Pakistan for interviews with the Canadian Consulate. This move was very difficult for them as life for an Afghani refugee in Pakistan was expensive and they experienced many years of racial discrimination. The cost for necessities of life were very high. It was very difficult to find employment. Despite all of the hardships, they waited many years. During that waiting period, their father became very ill. They wanted to move him to another country to seek proper medical treatment, however, Ms. Mojadiddi repeatedly told them not to leave Pakistan as a letter would be arriving very soon from the Canadian consulate. The letter never arrived, and their father passed away.

[40] When they discovered the fraud, it was “overwhelmingly heartbreaking” and they were “devastated”. They felt that all those years waiting in Pakistan “had gone to waste” and all of their hopes and dreams were shattered.

[41] According to their victim impact statement, in 2011 O.A. and F.A. invested and lost $15,400.00 in ARR on behalf of their brothers, M.M.A. and M.M.M. As a result of Ms. Mojadiddi’s actions, they have experienced “pain and devastation”. Frequently they called Ms. Mojadiddi for updates on their brothers’ application and questioned why it was taking so long. They were given one excuse after another by ARR employees and Ms. Mojadiddi. For example, Ms. Mojadiddi used the Syrian Refugee Crisis as an excuse for the delay in the sponsorship application. She claimed that Canada was prioritizing Syrian refugee claims and the Afghani refugee cases were being pushed to the bottom of the priority list. This was false, which left the family “confused and perplexed”. The money that was sent represented the A.’s entire life savings. The A.’s were trying to manage this situation from the United States which caused additional stress and financial hardship. F.A. stated the following:

Ms. Mojadiddi brought all of our hopes up only to have it be crushed when we later discovered the truth about her false organization and fraudulent actions. Her manipulative lies emotionally and financially affected us…she took all the money we had that could have been used in other ways to help support them. Ms. Sakia Mojadiddi’s actions and lies have cost my brothers’ future and I will have to live with this pain for the rest of my life. The amount of pain and revulsion I feel towards what she has done to us cannot even be described in words.

[42] While living in the United States, as a resettled refuge, S.A. paid and lost $20,850.00 to ARR in an effort to sponsor his sister, her husband and their child while they waited in Pakistan. From 2012 to 2017, S.A. borrowed and scrimped together funds to send to ARR. Since he learned that this was a fraudulent enterprise, he has experienced emotional trauma and financial devastation.

[43] H.A. filed a victim impact statement. In an effort to sponsor his cousins, he borrowed and lost $53,200.00. H.A. has lost the respect of his stranded cousins. He is “depressed” over the fact that his cousins blame him for everything. He feels guilty and sad. His depression led to his inability to finish school and maintain employment. When he called Ms. Mojadiddi to get his money returned, she berated him which caused him to have panic attacks.

[44] J.A. lost $12,000.00. In her victim impact statement submitted by her daughter, J.A. stated that she attempted to sponsor her sister and husband, Farid to come to Canada. J.A. stated that she admired Ms. Mojadiddi. She had never gone to school or learned how to read or write. She spoke very little English. However, given the notorious oppression of Afghani women, she saw Ms. Mojadiddi as the “embodiment of advocacy and empowerment” that could help a woman like Ms. Azad. Like most other victims, J.A. viewed Ms. Mojadiddi as a smart, educated, multilingual woman, who was the president of her own company. Based on her reputation, J.A. sought out and retained Ms. Mojadiddi to assist in her sponsorship application. During the five (5) year period that the application that she believed was pending, her sister gave birth to her first child, Z. J.A. was very excited and continued to call Ms. Mojadiddi about the application. Ms. Mojadiddi assured her that she was working towards “moving the process along”. A year after Z was born, her father, F was murdered. When J.A. advised of F’s death, Ms. Mojadiddi stated that Z’s and her sister’s application could be fast tracked. Even after hearing about F’s death, Ms. Mojadiddi maintained the charade and pressed her for more money in order to buy more time. All that J.A. needed to do was provide proof of death and Ms. Mojadiddi would submit the documentation in support of their application. J.A. provided many documents but learned that they were never submitted just as no application was ever submitted.

[45] M.E. filed a victim impact statement. He attempted to sponsor his parents who took Ms. Mojadiddi’ advice to pledge their house in Afghanistan and moved to Turkey. M.E. lost $36,113.00. He estimated that his parents lost approximately $80,000 after they guaranteed their house, sent money to Ms. Mojadiddi and paid the moving cost to relocate to Turkey. After his parents returned to Afghanistan, he had to sell his business in Canada, and he returned to Afghanistan in order to take care of his parents.

[46] F.H. prepared a victim impact statement. In 2010, she sponsored her brother in law and his family. F.H. lost $5,300.00. She described the impact as “not good, crying, stressed, thinking to much.” She felt that “the people that suppose to come to Canada lost their future…their kids lost their hope and future of having a good life in the land of freedom, so she took away their rights and freedoms”.

[47] A.S.R. sponsored several family members. In his victim impact statement, he estimated that he lost $78,947.00. Their mother resided in Canada. She was very anxious during the ten (10) year period she waited to see her other son and daughter emigrate to Canada. She died before that could happened. His brother was encouraged by Ms. Mojadiddi to move to Turkey. While doing so, he developed kidney failure.

[48] In Y.S.’s victim impact statement, he estimated that he lost his life savings in the amount of $21,560.00. He stated that Ms. Mojadiddi and her daughters “ruined my mother’s character and cost her a great amount of stress, depression not to mention hospitalization.” He attempted to sponsor his uncle to Canada. Y.S. is devastated by Ms. Mojadiddi’s actions and stated that her “disgusting abuse of trust can never be forgotten or forgiven”.

[49] M.S.I.U. filed a victim impact statement. He lost $24,390.00. He applied from outside of Canada. He has experienced depression and feels enormous amount of guilt for getting involved with Ms. Mojadiddi. He stated that he has let down his family. The hardest part was when he had to tell his children that he had been duped and they were not moving to Canada.

[50] T.S. lost $33,798. Some money was borrowed, and the rest was his life savings. He lived in the United States. He learned about ARR and Ms. Mojadiddi from her appearance on Afghan media through word of mouth. He was impressed with ARR’s website that depicted Ms. Mojadiddi in the company of influential government officials. In 2011, he contacted Ms. Mojadiddi. She promised him that she could arrange for his family to come to Canada in less than three (3) years. Ms. Mojadiddi’s advice had a devastating consequence to his father’s health. She insisted that he remain in Peshawar, Pakistan and not leave as this would have a negative effect on his application with the Canadian immigration authorities. They believed her lie that his father’s case interview with the Canadian Embassy in Islamabad was only a few months away. While waiting for an interview that would never take place, his father died. T.S. summed up the general harm and sentiment when he wrote that “Sakia Mojadiddi and ARR Organization have cheated the most vulnerable individuals and families who would do anything for a better life for themselves and their loved ones.”

[51] M.S. and N.S. filed victim statements and have lost $50,000. They filed a complaint against Ms. Mojadiddi with the New Delhi Interpol Police Office at the Canadian High Commission. Ms. Mojadiddi told them that their file was moved from New Delhi to the Canadian High Commission in London, England due to the Syrian refugee crisis. The day that they contacted the Canadian High Commission in New Delhi their world came crashing down. They wrote the following:

That was the day that our life changed for the worse. We already sold everything, we told everyone that we will be leaving India. We lost our job, everything.

[52] They gave Ms. Mojadiddi their life savings and borrowed money. Financially, they were crippled. They were homeless for over a year, sleeping in Mosques, in parks and shrines. They have lost control of their lives.

[53] The many victim impact statements represent the significant financial and emotional toll that Ms. Mojadiddi’s predatory, greedy and parasitical actions had on the victims. The victims were vulnerable and at the time were in need and suffering. The victims in this matter were self identified refugees and those trying to bring their family members to Canada for a new life. Prospective immigrants are recognized as a vulnerable group. (See: R. v. Codina #8, 2018 ONSC 2180 at para. 74 aff’d 2019 ONCA 986).

The offender took advantage of their high regard in the community:

[54] Ms. Mojadiddi cultivated her reputation in the Afghani community by raising her local and international profile. She was often photographed with politicians and even with the Chief of Peel Regional Police Service. People were drawn to Ms. Mojadiddi by reputation and trusted her to act in the best interest of their family members.

The offender did not comply with a licensing requirement or professional standard, that is normally applicable:

[55] Ms. Mojadiddi’s fraud involved taking advantage of the fact that refugee sponsorship is a technical and seemingly complicated and regulated endeavour. Immigration and the admittance of refugees into Canada falls under the mandate of IRCC, a governmental body that, among other things, can provide sponsorship designations to corporations. The Immigration and Refugee Protection Act regulates immigration and refugee activity. Sponsoring a refugee requires navigating government applications and procedures. People who work in the immigration field can be licensed immigration consultants with the Immigration Consultants of Canada Regulatory Council.

[56] While neither Ms. Mojadiddi, nor her daughters nor ARR held immigration consultant licenses and while ARR did not hold a sponsorship agreement with IRCC, Ms. Mojadiddi represented that they had the expertise and ability to sponsor people from abroad, typically as refugees. Ms. Mojadiddi’s daughter, Ms. Qureshi, held a paralegal license for a brief duration during the fraud from 2015 until June 2017 and four (4) victims mentioned that she was referenced as a lawyer, paralegal or someone with specific immigration experience.

Value exceeding one million dollars is statutorily aggravating:

[57] The fraud was in excess of 1 million dollars. Specifically, the total amount of the fraud was $1,077,584.

Motivation:

[58] Ms. Mojadiddi was motivated by pure greed. There was nothing altruistic in her actions to help any refugees. Greed can be considered an aggravating factor on sentence. (See: R. v. Drabinsky, 2011 ONCA 582 at para. 173).

Circumstances of Ms. Mojadiddi and Mitigating Factors:

Guilty Plea:

[59] Ms. Mojadiddi did plead guilty. Her guilty plea is the most substantial mitigating factor. It demonstrates her remorse and contrition. Valuable resources have been saved as result of her guilty plea. A lengthy preliminary hearing and a trial were avoided. It was common ground that a trial would have taken approximately six (6) weeks. Many witnesses would have had to testify from other countries. I cannot say that this was an early plea given the fact that Ms. Mojadiddi was originally charged in 2017. Nevertheless, the Crown was notified near the end of 2019 that the matter would be resolved.

Previous Good Character:

[60] Ms. Mojadiddi did not have a previous criminal record, and as such is a first-time offender. Thirteen (13) letters were submitted on behalf of Ms. Mojadiddi. However, only four (4) were dated after Ms. Mojadiddi was charged. Many of the positive comments written by individuals that had contact with Ms. Mojadiddi and ARR, appear to have been written for the purpose of securing a Sponsorship Agreement Holder designation for ARR. These letters were written during the time frame of the commission of the offence.

[61] I place no weight on Ms. Mojadiddi’s reputation in the community as a mitigating factor in this case. In fact, s.380.1(2) of the Criminal Code prohibits me from considering as mitigating the offender’s reputation in the community that was used in the commission of the offence. Ms. Mojadiddi used her reputation to gain the confidence of the victims and sponsoring families.

Personal Circumstances, Age, mental and physical health:

[62] Ms. Mojadiddi was born in 1956 and is currently 64 years old. She achieved the equivalent of a post secondary high school education while in Afghanistan. She taught students in grade 4 to grade 10. In 1979, after the Soviet invasion, most if not her entire family were rounded up which included uncles, brothers and nephews. Ms. Mojadiddi came from a wealthy family of landowners and was taken into custody for six (6) months. These individuals were never seen again, and she has presumed that they were all killed. As previously mentioned, in 1989 she witnessed her brother murdered by government forces. Five months afterwards, Ms. Mojadiddi fled Afghanistan to Pakistan and eventually came to Canada with her husband and three (3) children. In 1990, Ms. Mojadiddi learned that another brother had been killed. The memories of her brother’s murder have haunted and continues to haunt Ms. Mojadiddi. She suffers from PTSD, anxiety and reoccurring nightmares over this traumatic event. In 1994, she attempted suicide on two occasions.

[63] After coming to Canada, she struggled with the difficulties of being a refugee. She gave birth to their fourth child. As result of her husband’s physical and verbal abuse, they eventually separated.

[64] Medical reports submitted on Ms. Mojadiddi’s behalf, suggested that she has symptoms of Post Traumatic Syndrome Disorder, psychosis and hypertension. Furthermore, Dr. Richa Sharma reported that Ms. Mojadiddi suffers from other ailments and conditions including diabetes, depression, anxiety, chronic pain, osteoarthritis, iron deficiency, gastroesophageal reflux disease (GERD), hyperlipidemia, right eye cataracts and intestinal metaplasia. Her symptoms and condition have worsened since she was charged but are managed with medication and psychotherapy.

[65] Ms. Mojadiddi, as a surviving victim of trauma, is mitigating given her experiences in Afghanistan, however, she victimized and took advantage of individuals that have endured similar trauma.

The Range:

[66] The Crown submitted 27 cases. I have reviewed the cases provided. I do not propose to review each case provided. However, the cases submitted establish that the range in sentencing for complex frauds is generally in the range of three (3) to five (5) years. (See: R. v. Davatgar-Jafarpour, 2019 ONCA 353 at para. 34). However, the trend in recent years is that the range has increased to eight (8) or even ten (10) years. (See: R. v. Pavao, 2018 ONSC 4889 at paras. 86-92 referencing R. v. Dhanaswar, 2016 ONCA 172 and R. v. Nowak, 2019 ONSC 5344 at para. 96).

The Appropriate Sentence in this case:

[67] The Crown seeks a penitentiary sentence in the range of 4 to 4 ½ years. This is certainly within the range. The defence seeks the lowest end of the range for Ms. Mojadiddi. It is obvious from the most recent case law that the range for complex frauds with devastating consequences is trending upward. Ranges are available as guidelines to sentencing judges, however, it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (See: R. v. Nasogaluak, 2010 SCC 6 at para. 44).

[68] Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[69] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. (See: R. v. Lacasse, 2015 SCC 64, at paras. 57-58).

[70] The Court of Appeal has made it clear that general deterrence and public denunciation are central considerations for large scale frauds with devastating consequences. The length of the jail sentence is reflective of the appropriate level of judicial condemnation. Rehabilitation is a secondary consideration.

[71] Ms. Mojadiddi has not made any restitution to any victims. Some monies were returned to several victims; however, those funds were traced to payments made by other victims. The victims have not just been impacted financially but also psychologically harmed. Ms. Mojadiddi’s callous treatment of the victims is far reaching. Many of the refugees have to start fresh applications in order to come to Canada. Many victims feel ashamed and guilty for being so easily duped and manipulated by Ms. Mojadiddi and the ARR organization.

[72] The final factor to be addressed is Ms. Mojadiddi’s current health status. I find that her mental health issues were not causally linked to the commission of this offence, but rather to her life experiences. Nonetheless, her current difficulties are relevant because they speak to her fragility and the potential impact of any given sentence.

[73] The sentence imposed by the court must reflect the gravity of the crime and the moral blameworthiness of Ms. Mojadiddi. But it must not ignore rehabilitation, and it must not be crushing. In R. v. Holt, 2012 BCSC 545, Justice Dickson stated;

The role of compassion in sentencing requires particular attention and comment in certain cases. On occasion, justice without clemency may be injustice. Injustice in any form is to be assiduously avoided. As Shakespeare and others have observed over the centuries, we are elevated when mercy seasons justice.

[74] I am satisfied that there can be a modest reduction of sentence on compassionate grounds given Ms. Mojadiddi’s age and health. But not so much that it warrants a sentence outside of the range.

[75] In my opinion, given the facts and circumstances of this case as set out above, the mitigating and aggravating factors, and the principle of proportionality, a sentence of 3 ½ years is fit and appropriate. Anything less in my view would not be proportional to the seriousness of the offence and the degree of harm done by Ms. Mojadiddi to the 47 victims. A lesser sentence, or that matter a sentence outside of the range, would not also properly denounce the offence and deter others from engaging in similar behavior.

COVID-19:

[76] Since the date of submissions in this matter, Ontario is experiencing a second wave of Covid-19. The infection and hospitalization rate are at an all time high. The Government has issued a stay at home order for most of the province. Nonetheless, new vaccinations for Covid-19 have been developed. They are slowly being administered to our most vulnerable members of society and front-line workers.

[77] Ms. Mojadiddi will be serving a sentence during the Covid-19 pandemic. The Covid-19 pandemic is considered under the category of “collateral consequence” when determining a sentence.

[78] In R. v. Morgan, 2020 ONCA 279, at paragraph 8, the Court of Appeal found that courts could take judicial notice “to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.” The collateral consequence is determined by examining the impact on the offender’s personal circumstances. However, an otherwise fit sentence cannot be reduced absent any unique personal circumstances that would leave the offender vulnerable to the virus. (See: R. v. Lariviere, 2020 ONCA 324).

[79] With respect to Ms. Mojadiddi’s personal circumstances, she is a 64-year-old woman that has diabetes and other medical difficulties. Her doctor has written that “given Ms. Mojadiddi’s current medical condition of diabetes, she is at an increased risk for complications should she contract Covid-19”. The Crown characterized this statement as a general conclusion and compared Ms. Mojadiddi’s situation to the circumstances in R. v. Thompson, 2020 ONCA 361. I agree. The offender, in that case, sought a sentence reduction at the Beaver Creek Medium Federal Institution due to his asthma, where there were no active Covid-19 cases. The Court of Appeal refused to reduce, what was considered a fit and appropriate sentence and then went on to state that the issue could be effectively dealt with by the Parole Board. (See: Thompson, at para. 18).

[80] The Covid-19 pandemic has led to very difficult conditions in jails and correctional facilities. There have been frequent lockdowns in lieu of social distancing. Family and friend visitations have been cancelled. All rehabilitation programs have been cancelled. There is a lack of availability and control over wearing personal protective equipment. There is a higher risk of transmission of the virus due to congregate living conditions and the inability for physical distancing.

[81] As well, there is serious concerns about asymptomatic prisoners or prison employees inadvertently spreading the virus by touching surfaces in common areas which would lead to an outbreak in the facility.

[82] The concerns are real and pressing, for example, two days ago, the Maplehurst Correctional and Detention Facility, quarantined and isolated 200 inmates due to Covid-19.

[83] I agree with the Crown’s submission that many of the concerns raised by the Defence were accurate at the outset of the Covid-19 pandemic and currently exist in the detention and correctional facilities in Ontario, but with respect to the Federal institutions the Federal government has taken measures to improve conditions. A letter dated June 29, 2020, from Correctional Service of Canada, written by Kevin Snedden, the Deputy Commissioner for the Ontario Region submitted by the Crown, outlined the measures that have been invoked to protect the health and safety of the inmates and staff, including;

Leveraging technology wherever possible to facilitate inmates' contact with family members and access to legal counsel.
In the event of positive Covid-19 test, movement within the institution, is being limited to the extent possible in order to mitigate the potential spread throughout the institution. For example, each unit/range within a penitentiary are moved together in small numbers; meals, medications and yard activities are provided in a controlled manner. Staff are assigned to specific units wherever possible, etc.
Enhanced cleaning, disinfecting, laundry, and waste disposal processes.
Cleaning protocols that include the regular disinfecting of common areas of contact, high touch areas are done twice daily, and institutional cleaners clean and disinfect living units daily.
Staff and inmates are provided with masks to wear when within 2 meters of another individual.
Hand hygiene has been increased with the safe location of Alcohol-based hand sanitizer as well as ensuring inmates have consistent access to hygiene items.
Extensive education and messaging are provided to both staff and inmates so that they are kept apprised of the most up to date Covid-19 information in order that they are aware of the steps that can be taken to protect themselves and others.
Any inmates that enter federal custody from provincial custody are medically isolated from the established federal inmate population in an assessment unit for fourteen (14) days as a precautionary measure. If, an inmate from the established population or an inmate received from provincial custody shows symptoms of COVID-19, the inmate is promptly medical isolated to prevent the spread of infection.
Any inmates that test positive for COVID-19 are placed in an area specifically set-up to receive infected inmates.
Different zones within an institution are used to manage different group of inmates, such as symptomatic inmates and inmates who tested positive to COVID-19.
Each institution has dedicated health care with nurses and doctors on hand to monitor, assess and provide care to all inmates.
Screening on all inmates when they transition levels of care, go to interviews or prepare to return to the community.
To reduce the spread of COVID-19, contact tracing is done at every site for individuals who have COVID-19-like symptoms, have gone for testing or for cases that are positive for COVID-19.
To alleviate some of the impact of these measures, Correctional Service of Canada has temporarily waived food, accommodation and telephone deductions, added additional minutes to the inmates' calling cards and maintained the inmates' level of pay. Other options are available to inmates to connect with their family and support networks such as video visitation or telephone.
Any correspondence arriving at an institution is subject to a 72-hour quarantine period before it can be distributed to inmates, unless it is believed to be privileged correspondence.

[84] Of note, with respect to all inmates, newly sentenced or established, Correctional Service of Canada will continue to work closely with the Parole Board of Canada to examine all options regarding the safe release of eligible and suitable offenders into the community. (See: Letter dated June 29, Kevin Snedden Deputy Commissioner, Ontario Region).

[85] Ms. Mojadiddi will be serving her sentence at Grand Valley Institution for Women. On April 15th, 2020, there was a Covid-19 outbreak at this facility where 8 inmates tested positive for the Covid-19 virus. All inmates recovered. According to the Government of Canada website Inmate COVID-19 testing in federal correctional institutions as of January 18, 2021, there have been no further positive tests at Grand Valley Institution for Women. In the five (5) of the six (6) Federal institutions that house male inmates in Ontario, as of January 18, 2021 there are no active Covid-19 cases. Currently, the Joyceville Institution has ten (10) active cases. (See https://www.csc-scc.gc.ca/001/006/001006-1014-en.shtml).

[86] The defence submitted material that on its face was indicative of an argument for a Covid-19 reduction, which the Crown vigorously opposed. However, the defence submission was not so much for a reduction but to emphasize the fact that serving a sentence during Covid-19 is much more onerous than it was before the pandemic. In my view, considering the measures taken by Correctional Services of Canada, the complete absence of active Covid-19 cases at the Grand Valley Institution for Women notwithstanding two waves of the Covid-19 virus, and the development of several Covid-19 vaccinations, any possible risk due to Ms. Mojadiddi’s health due to Covid-19 has been reduced and therefore, does not warrant a reduction in the appropriate sentence of three and a half years (3 ½) years imprisonment. Finally, it would be improper for me to reduce what I consider a fit and appropriate sentence because there is clearly an end to the pandemic on the horizon in 2021. However, should an increased risk present itself that puts Ms. Mojadiddi’s health and safety at risk, the National Parole Board can address the issue.

The Ancillary Orders:

[87] There is an order pursuant to s. 380.2 of the Criminal Code prohibiting Ms. Mojadiddi from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity that involves having authority over the real property, money or valuable security of another person for a period of ten (10) years.

[88] While Ms. Mojadiddi is serving her term of imprisonment, there is an order pursuant to s. 743.21 of the Criminal Code that she abstain from communicating directly or indirectly with all persons listed in Appendix A, except for the purpose of any civil litigation.

[89] There is a restitution order pursuant to s. 738 of the Criminal Code, for Ms. Mojadiddi to pay the sum of $946,083.99 to the victims on a pro-rata basis set out in Appendix B. This restitution order shall take priority over the fine in lieu of forfeiture. It is to be paid within five (5) years.

[90] Since it is my understanding that the proceeds of crime are not available for forfeiture to the Crown, there is an order for a fine in lieu of forfeiture pursuant to s.462.37(3) of the Criminal Code, in the total amount of $1,077,584.00. In accordance with s. 462.37(4)(a) and (b), in default of payment of the fine, a five (5) year term of imprisonment is hereby imposed, to be served consecutively to any other term of imprisonment.

[91] Finally, there will be a DNA order pursuant to s. 487.04 of the Criminal Code.

Appendix A to the Non-Communication Order

The names of the victims have been removed to protect their identity.

Appendix B to the Restitution Order (Chart of Apportionment)