R. v. Alli, 2015 ONSC 2957

CITATION: R. v. Alli, 2015 ONSC 2957 COURT FILE NO.: CRD-13-119 DATE: 2015/06/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Yavar Alli

COUNSEL: Linda Bianchi and Melody Foerster, for the Federal Crown Steven Stauffer, for the Accused

HEARD: April 21, 2015

REASONS ON SENTENCING

LEROY, J.

INTRODUCTION AND FACTS

[1] Mr. Alli was convicted on April 2, 2015 for his part in an operation whose purpose was to smuggle six Nigerians from the United States’ side of the border into Canada at Cornwall on May 24, 2012. His role was to drive one car load from Cornwall to Toronto. He was drafted into this venture by his brother and misplaced loyalty and wilful blindness to the circumstances placed him in his vehicle with the illegal Nigerians.

[2] It is an offence under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to facilitate entry to Canada of persons without examination by an officer, without timely appearance before an officer at a port of entry and without visas or passports. This type of activity is referred to as human smuggling.

[3] This is Mr. Alli’s first offence under the Act.

SENTENCE PROVISIONS

[4] There is no minimum sentence. A suspended or conditional sentence is an available disposition. The facts here are such that a sentence of less than two years is fit and appropriate.

[5] Section 117(2) provided that anyone convicted of inducing, aiding or abetting the coming into Canada of fewer than 10 persons who are not in possession of a visa or passport may be fined on a first conviction of not more than $500,000 or to a term of imprisonment of not more than 10 years or both.

[6] Section 125 provides that anyone convicted of an offence under the Act for which a penalty is not specifically provided – here s. 18 – failure to appear for examination, may be fined not more than $50,000 and imprisoned for not more than two years or to both.

POSITIONS OF COUNSEL

[7] The Crown position advanced by Ms. Bianchi is that the particular facts of this case merit a conditional sentence in the range of 15 – 18 months, involving house arrest for the first half, save for work, religious and medical exigencies. The priority sentencing purposes are directed at deterrence and denunciation necessary to the residents of this border city. The jurisprudence emphasizes the seriousness and gravity of offences, involving cross border human smuggling reflected in statutory amendment on January 20, 2015, providing for minimum imprisonment for such offences where there is a criminal organization smuggling for profit.

[8] The defence position is that the facts are unique and distinguishable from the sentencing jurisprudence amassed under this Statute and that sentencing principles and purposes will be met satisfactorily by suspended sentence and probation. Mr. Alli’s involvement in the operation was minimal, he was duped by his brother with mere minutes to elect, he was unfamiliar with any of the details of the organization and remuneration was token. None of the aggravating factors applicable to his brother and others immersed in it attach to the offender. He could not know of the danger to the Nigerians involved in the after dark traverse of the river. He treated the Nigerians placed in his charge compassionately.

[9] As a fallback position, defence submits that a conditional sentence of six months satisfies concern for deterrence and denunciation.

YAVAR ALLI

[10] The offender is 35, married with one child. He resides with his in-laws in North York. In May 2012, he earned his living as a tow truck driver. At the time of trial, he worked in building maintenance and is a recognized valuable employee.

[11] He was born in Canada and raised in Guyana. He returned to Canada at age 15 in the care of his brother. By the age of 20 years, Mr. Alli began amassing a criminal record. He encountered nine separate sets of convictions between 1999 and March 2005, four in 1999 and one each in the years 2000 – 2003 and penultimate convictions in 2005. At trial, he asserted to legal income sources over the ensuing seven plus years.

[12] Mr. Alli emphasized the significance of the behavioural reversal over the seven years. Having a spouse, child and supportive extended family had a role to play in his rehabilitation. He said he worked the scheduled tow truck shift earlier in the day on May 24th. His attendance in Cornwall was altruistic response to his brother’s solicitation. When he departed the GTA, he did not expect to become entangled in an illegal venture. He trusted his brother to his detriment. These convictions have no doubt been a big disappointment to his spouse and her family.

SENTENCE PRINCIPLES

[13] Mr. Justice LeBel in R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6 summarized the Criminal Code sentencing calculus. The following synopsis drives these reasons. The sentencing judge in passing sentence has broad discretion having regard to the array of considerations available in the Criminal Code. The citations are omitted.

[14] The objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Criminal Code. Judges are directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

[15] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”.

[16] The principle of proportionality has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency.

[17] Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. The rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. Understood in this sense, sentencing is a form of judicial and social censure. The degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[18] The determination of a “fit” sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

AGGRAVATING FACTORS

[19] Mr. Alli’s criminal history is an aggravating factor. One would have thought that a person with a criminal record and experience with the consequences would have been more vigilant in respect to his best interests.

[20] Human smuggling into Canada is a serious security challenge and needs to be staunched. Parliament has seen fit to amend the sentencing provisions of the Act to include minimum periods of imprisonment.

MITIGATING FACTORS

[21] Mr. Alli’s moral blameworthiness was low-end. He left Toronto with good intentions planning to assist his brother, a person he trusted to be protective of his interests. On arrival at the motel, he was thrust, with little time to consider the consequences, into a moral dilemma and chose incorrectly. He was not part of the planning. He was a back end aider.

[22] For the most part, he comes to court with previous good behaviour. Mr. Alli effectively turned his life around over the last seven years. He has good employment and his spouse’s loyalty indicates him as a good partner. He responded to his brother’s call for assistance dutifully. This conviction is anomalous. He has the support of extended family. He expressed appropriate remorse.

[23] His statement was inculpatory.

JURISPRUDENCE

[24] These offences threaten national security. The gravity of human ingress smuggling across our national border was effectively articulated by Justice Molloy in R. v. Alzehrani, [2009] O.J. No. 5797 at paragraph 50 when she wrote:

“50. …, the most significant factors influencing sentence in this case are general deterrence and denunciation. The implications of human smuggling are profound and far-reaching. The integrity of Canada’s borders is compromised when criminals such as these smuggle illegal aliens across. There are no checks on the type of people entering, making it possible for criminals and terrorists to move back and forth between countries at will… these smugglers were completely unconcerned about who they were transporting. They were simply in it for the money. The risk to society generally of this kind of criminal activity is great. It is important for national security and public safety to send a message that those who would compromise our international borders in this manner will be dealt with severely. Illegal smuggling of human beings cannot be permitted to become a profitable business operation in Canada.”

[25] Mr. Alzehrani’s role in that conspiracy was central to the organization and not comparable to that of Mr. Alli in the case at bar. Mr. Alzehrani organized each shipment. He received the individuals to be transported illegally from various sources, recruited and supervised the actual smugglers and arranged for payment. Various different methods of transportation were used with various different workers providing the actual transport. Theirs was a loose criminal organization driven solely for profit. He exposed the individuals being transported to danger – one individual drowned. He had a serious criminal record without hiatus. He was convicted in relation to six separate offences involving nine individuals. Justice Molloy concluded that the appropriate sentence before adjustment for time served was four and one-half years.

[26] In R. v. Ballo (2004) O.J. No. 5312, the offender was a foreign national who tried to smuggle his daughter into Canada. He was carrying a false British passport. He was the mastermind of the operation. He spent five and one half months in pre-sentence custody, a portion of which was during lockdowns. The Court granted two-for-one credit for the pre-sentence custody.

[27] The offender in R. v. Ng 2008 BCCA 535 arranged illegal entry into Canada of two women, the first in July 2001 and the second in March 2004. He solicited both for prostitution working out of his massage parlour, thereby illuminating significant aggravating factors. The Appeal Court accepted nine months concurrent for the immigration offence component of his convictions.

[28] The offender in R. v. Esmail, [2003] O.J. No. 6120 was convicted for conspiracy to smuggle aliens into Canada. It was a large sophisticated and ongoing scheme and the motivation was financial gain. The offender was involved in planning arrangements to smuggle the aliens for dispersal to Texas. He was more than a courier. Esmail was sentenced to six months real jail. Judge Andre rejected the merit of a conditional sentence having regard to the planning involved and concern for general deterrence. Mr. Esmail did not have a prior criminal record.

[29] Mr. Esmail’s co-accused received six month conditional sentences. Each provided an individual for transportation, not for financial gain. Neither was involved in any actual transportation of persons across the border and both gave inculpatory statements.

CONCLUSION AND RELATED ORDERS

[30] So long as we have creed, rule of law and international borders, the State has vested interest in protecting the integrity of the border and its significance. Denunciation and deterrence are recognized priorities in the jurisprudence. The recently enhanced sanctions for offending bespeak Parliament’s concern for the cross-border transportation of humans without documents or reporting.

[31] The Crown accepts the merit of a conditional sentence. This offender did not participate in planning. He did not have a profit motive. His role is closer to the co-accused in Esmail than any other cited to me. The jurisprudence accepts that a conditional sentence can respond to the need for denunciation and deterrence objectives in sentencing. He was driven by altruism. He came to know of the operation minutes before engagement. So far as he knew, this could have been the first and only incident. There is no evidence of danger to the Nigerians or to public safety that might stick to this offender. He took the time to position an infant in a safe car seat within his vehicle. The evidence at trial did not illuminate the sophistication involved in the operation.

[32] Mr. Alli was law-abiding and pro-social for the seven years before this incident. He has been on release for almost two years since May 2012 without incident. He is highly regarded by his employer. He has family support. The risk of re-offence is minimal.

[33] The proportionality assessment cries out for restraint in sentence for this individual. I do not agree with the Crown assertion to range of conditional sentence between fifteen and eighteen months. That said, I do not agree to suspend sentence. Mr. Alli knew better and acceded to join his brother in the offence. At that moment, he stopped being the dupe. A suspended sentence lacks the requisite elements of denunciation and deterrence.

[34] A sentence of six months to be served in the community makes the point in relation to deterrence and denunciation and honours proportionality and parity principles. He will be under house arrest for four months, subject to mandatory terms exceptions for employment, medical needs as required and personal supplies up to three hours per week pre-approved by his supervisor in writing. During the remaining two months, Mr. Alli will observe curfew approved by his supervisor and report as required. The conditional sentence will be followed by twelve months probation subject to statutory terms. He is required to perform thirty hours of community service.

Justice Rick Leroy

Released: June 23, 2015