R. v. WEI REN, 2015 ONSC 3397

DATE: 20150528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WEI REN

André Chamberlain, for the Crown

James C. Morton, for Wei Ren

HEARD: December 2, 2014 and April 17, 2015

Reasons for Sentence

MacDonnell, J.

[1] On December 2, 2014, Wei Ren appeared before this court on an indictment charging her with 21 counts of counselling misrepresentation, contrary to s. 126 of the Immigration and Refugee Protection Act. The offences were alleged to have been committed over a seven-year period, between 2005 and 2012. Ms Ren pleaded guilty to five counts and formally admitted the allegations in relation to the remaining sixteen. She is before the court today for sentencing.

I. The Circumstances of the Offences

[2] The Canadian Border Services Agency investigated some 130 applications for permanent resident status that were associated with the activities of Ms Ren. Each of those cases involved an in-Canada spousal sponsorship application. The investigation revealed that the marriages underlying those applications were not genuine but rather were entered into solely for the purpose of providing a basis upon which one of the spouses – a foreign national – could obtain permanent resident status.

[3] Of the approximately 130 cases investigated, 25 were selected for prosecution, 21 of which made their way into the indictment before the court. With respect to those 21 cases, the Agreed Statement of Facts states as follows:

With little variation, the basic scheme of these marriages of convenience involved Wei Ren, or another Canadian acting as a recruiter, approaching Canadian citizens and proposing the sponsorship of a Chinese national student for permanent residence. The Canadian sponsors were paid between $7000 and $8000 to marry a Chinese national, based on a strict installment plan. The Canadian sponsors were required to spend at least one day travelling to various local destinations with the foreign national applicant and a photographer, during which many photographs were staged, with [the] clothing and hairstyles frequently changed to make it appear that the ‘couple’ had had a long courtship spanning a number of seasons. The photos submitted with the applications for permanent residence displayed fictitious dates in excess of a one-year period in order to support the fabricated courtship story included with the applications. Often, on the photography day, as required by the arrangement, the ‘couple’ applied for a marriage license and attended at a bank to open a joint account. Ms Ren also required the applicant to either arrange a joint cellular phone account or to have the sponsor’s name added to an existing account. Ms Ren frequently made arrangements for an address change with the Ministry of Transportation to falsely show the applicant and sponsor living at the same address.

The arrangements required the bride and groom to attend the wedding ceremony location where Ms Ren or one of her assistants equipped the bride-to-be with a wedding dress and where the bride’s friends were also provided with bridesmaid/wedding attire. The wedding took place at a City Hall or a Civic Centre in the GTA. After the ceremony, the sponsor changed into a traditional Chinese dress (also supplied, and usually red) and then attended the reception, along with the wedding guests, at a nearby restaurant, where many more pictures were taken. Often, on the wedding day, some of the wedding entourage were required to attend at a second restaurant, or bar, or café where photos were taken with them wearing street clothes to simulate an engagement party.

Finally, months later and when required, the ‘couple’ met up with Ms Ren near the Citizenship and Immigration Canada (CIC) office where the sponsorship application was being processed. Prior to the CIC appointment, Ms Ren prepared the applicant and the sponsor by listing predictable questions frequently asked by immigration officials. The sponsor received the final half of the total payment from Ms Ren at the end of the process, that is, after the applicant was granted landing. At this time, Ms Ren required both participants to sign divorce applications so that the divorce would be finalized one to two years from the date the applicant became a permanent resident of Canada.

The total cost to the foreign national for Ms Ren’s services and the spousal sponsorship application ranged from $30,000 to $35,000. As well, the applicant bore the additional associated costs, such as the Marriage License application fees, the divorce application fees, payments made to actors appearing at the weddings and receptions, as well as the costs incurred for the photography at the reception and staged engagement events.

As a result of the marriage and sponsorship arrangements made by Ms Ren, many foreign national applicants have become permanent residents of Canada and some are now Canadian citizens. Many others have been removed from Canada to the People’s Republic of China. Some have disappeared and their whereabouts remain unknown.

II. The Circumstances of the Offender

[4] Ms Ren was born on July 1, 1968 in the People’s Republic of China. She is now 46 years of age. She has no prior convictions for offences of any kind.

[5] Ms Ren was educated in China and became a schoolteacher there. In 1994, after five years as a teacher, she immigrated to Canada. She was 26 years old. Shortly after her arrival, she purchased a three-bedroom detached home in Scarborough. She renovated the basement and rented it out while she lived upstairs. She found a job working as a waitress in a Chinese restaurant and began to invest in the stock market.

[6] While working in the restaurant, Ms Ren met her future husband, who at the time was an articling law student. With his encouragement, Ms Ren took real estate courses and in December 1995 she became a licensed real estate agent. She has enjoyed success in that field and she has remained in good standing with her agency and the real estate licensing board for 20 years.

[7] In 1997, Ms Ren and her husband married. They now have three teen-aged children. In 1996, Ms Ren’s parents also immigrated to Canada. Neither of them speaks English and they are dependent on Ms Ren for assistance in navigating their way through life in Canada. Both now have significant health problems, especially Ms Ren’s mother, who has leukemia. She has moved in with Ms. Ren and her family to enable Ms Ren to better care for her. Ms Ren’s sister came to Canada in 2001, but she too barely speaks English.

[8] In 2003, Ms. Ren began suffering severe headaches. A golf-ball sized tumor was discovered on her brain stem and in January 2004 she underwent surgery at St. Michael’s Hospital to remove the tumor. On March 17, 2004, Ms Ren made a $100,000 donation to St. Michael’s in gratitude for the life-saving treatment that she had received.

[9] While the surgery to remove the tumor had been a success, Ms Ren was left with several side-effects, including facial paralysis, double vision, dizziness, headaches and short term memory loss. In 2005, she underwent eye surgery to correct the double vision. In 2006, her brain tumor returned. She underwent successful radiation treatment at Sunnybrook Hospital. On June 9, 2006, Ms Ren again demonstrated her gratitude by making a $100,000 donation to the Sunnybrook Foundation.

[10] Dr. Cusimano, the neurosurgeon who removed the tumor from Ms Ren’s brain stem in 2004, met with Ms Ren in the summer of 2013 and provided a medico-legal report to her counsel. He noted that she was reporting memory problems, depression, headaches, double vision, vertigo and dizziness. He saw no sign of a recurrence of her brain tumor and he concluded that “her overall prognosis for survival at this time is good”. However, he cautioned:

In my opinion, a lengthy period of incarceration would have devastating consequences on Ms Ren. Not only would it adversely affect her mental health, this degree of stress, in turn, could theoretically have effects on her immune system and ultimately the growth or regrowth of her brain tumor. If the tumor regrows, it could be fatal.

[11] Because of her ongoing health difficulties, Ms Ren has been unable to work as a real estate agent, although she hopes to resume her employment with the assistance of her husband. To complicate matters financially, however, Ms Ren’s husband is no longer permitted by the Law Society of Upper Canada to practice law.

[12] In preparation for sentencing, counsel for Ms Ren retained Abe Kass, a registered social worker, to prepare a psychosocial assessment. Mr. Kass wrote that “my impression of Wei Ren is that she is very respectful, hardworking, and a person of good character.” In Mr. Kass’s view, her involvement in the extensive fraudulent scheme underlying the charges before the court may be the result of a cultural misunderstanding. He theorized that what he referred to as ‘a culture of corruption’ within the People’s Republic of China, where she grew up, may have blinded her to the unacceptability of her conduct according to the standards of Canadian society.

[13] Ms Ren told Mr. Kass that she began helping people make their way through the Canadian immigration system when her Chinese real estate clients asked her to translate immigration applications for them. She did this for free. Over time, more and more Chinese people sought her help and she began to charge a fee. Many of the persons who consulted her asked for help finding a Canadian spouse, as that would bolster their applications for permanent resident status. The scheme that led to the present charges evolved from those requests.

[14] While on bail, and prior to the entry of her pleas of guilty, Ms Ren began volunteering at the Garnett Williams Community Centre in the City of Vaughn. Between August 2013 and November 2014 she provided 453 hours of service to the Centre, cleaning windows, sweeping floors and cleaning up debris. The documentation from the Centre states that Ms Ren “has demonstrated herself to be a responsible, reliable, dedicated and hardworking individual. She is an excellent worker and there have been absolutely no issues in regards to her performance and attendance.”

[15] For the purposes of the sentencing hearing, Ms Ren wrote a letter “to offer my humble apology and to express my sincere remorse for my irresponsible actions in respect of the five counts I have pled guilty to…” She stated: “I want to make it clear…that I realized [sic] the seriousness of my mistakes and I truly regret my actions. I understand there was no excuse for my actions, nobody to blame but myself. I accept full responsibility for what I’ve done.”

[16] In her letter, Ms Ren stated that she had wanted to plead guilty very soon after she was arrested and charged but that her former counsel’s advice was to wait until disclosure had been provided and a preliminary inquiry had been held. On the hearing before me, Crown counsel agreed that in light of the manner in which this case proceeded through the Ontario Court of Justice, Ms Ren’s pleas should be treated as early pleas.

III. The Positions of the Parties

[17] On behalf of the Crown, Mr. Chamberlain submitted that a penitentiary term of 2½ years should be imposed. On behalf of Ms Ren, Mr. Morton conceded that a term of imprisonment is called for. He submitted, however, that in all of the circumstances it would be appropriate to order that the imprisonment be served in the community pursuant to the terms of a conditional sentence order.

IV. Discussion

[18] The fundamental principle of sentencing, codified in s. 718.1 of the Criminal Code, is that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[19] There is no dispute with respect to the gravity of the offences committed by Ms Ren. For over six years she oversaw a sophisticated, carefully planned scheme aimed at deceiving CIC into granting foreign nationals permanent resident status. In order to carry out the scheme, she enlisted dozens of otherwise law-abiding citizens to serve as spouses, recruiters, photographers or helpers. I appreciate that the aim of the scheme was not to smuggle criminals, security risks or other inadmissible persons into the country but rather to enable persons who were already legally in Canada, albeit for a limited purpose, to stay. It does not appear to have been part of the scheme to falsify the identity or background of any of the applicants. I also appreciate, however, that the persons Ms Ren helped might never have achieved permanent resident status but for the sham marriages she arranged. In any event, the scheme struck at the integrity of the Canadian immigration system and was calculated to undermine public confidence in it.

[20] I reject the suggestion made by Mr. Kass that Ms Ren was in any way blind to the fact that her conduct was seriously wrong. The scheme involved multiple layers of deception. It was fraught with fraud. Ms Ren is an intelligent and accomplished business person, and I have no doubt that she fully appreciated the wrongfulness of her behaviour.

[21] It may well be that Ms Ren`s motives were altruistic when she started to render assistance to persons seeking immigration advice. Her generosity in donating $200,000 to the two hospitals that treated her brain tumors shows her to be both unselfish and conscientious and supports her assertions in that respect. It is clear, however, that rendering assistance quickly became a business – the $30,000 to $35,000 fee that she charged each applicant puts that beyond doubt.

[22] Bearing in mind the gravity of the offences and the commercial motivation that drove them, the paramount sentencing goals in this case must be denunciation and general deterrence. In order to achieve those goals, a term of imprisonment is required. In my opinion, the sentence of 2½ years sought by the Crown is not outside of the appropriate range.

[23] There are a number of circumstances to be considered in mitigation, however. Ms Ren pleaded guilty and it is agreed that her pleas should be taken as having been entered at an early stage of the proceedings. An early guilty plea is generally considered to be a mitigating circumstance, both because it saves the administration of justice the time and expense of a trial and because in most cases it is a sign of remorse. Ms Ren’s remorse is demonstrated, as well, by the letter that she wrote to the court and the 453 hours of community service that she voluntarily performed subsequent to her arrest.

[24] No doubt, there was an element of self-interest in her decision to perform community service in advance of her guilty pleas. It could not have escaped her that it could assist her in relation to sentence. Nonetheless, her willingness to devote as much time as she did to the menial tasks involved in cleaning the Community Centre demonstrates both an awareness and an acceptance of responsibility for her offences. It seems to me that it was also an attempt to pay down a portion of her debt to the community. The latter impression is reinforced by the substantial donations that she made in 2004 and 2006, long before her legal troubles arose, to the hospitals that treated her brain tumors.

[25] Dr. Cusimano’s assessment of the potential for a recurrence of Ms Ren’s brain tumor should she be incarcerated for a lengthy period is entitled to consideration. Dr. Cusimano noted, however, that the potential is only theoretical and that at the time when his assessment was made, some two years ago, Ms Ren was cancer-free. In my view, the state of Ms Ren’s health does not justify a reduction in the sentence that would otherwise be appropriate.

[26] I acknowledge that in some circumstances the impact that incarceration might have on an offender’s family can be a relevant factor in sentencing: R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183, at paragraph 23. Where the offender’s offences are serious, however, it cannot justify a sentence that fails the test of proportionality: R. v. Spencer, (2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181, at paragraphs 46-47 (Ont. C.A.). I accept that confining Ms Ren in a custodial facility would be a hardship for her parents, but I am not persuaded that adequate arrangements cannot be made to overcome that hardship.

[27] I have reviewed the sentencing precedents that counsel have provided. Among them are the reasons for sentence in relation to four of the individuals whom Ms Ren recruited to participate in the scheme – Cassandra Dwyer, Denise Gray, Min Li and Patricia Monteiro. None of those persons received a custodial sentence. For sentencing purposes, Ms Ren is obviously in a different position, in that her culpability is much further along the spectrum of gravity than was theirs. Having said that, their involvement in the scheme was not merely peripheral. Ms. Monteiro, for example, received a payment of $4500 to become a bride for one applicant, and she subsequently was paid $4000 for recruiting two other young women to perform the same service. She received a conditional discharge.

[28] As I have said, the sentence of 2½ years sought by the Crown is not outside of the range. Bearing in mind Ms Ren’s pleas of guilty and her demonstrations of remorse, however, neither is a sentence of two years less one day. In all of the circumstances, I am satisfied that the latter sentence would achieve the aims of sentencing in this case.

[29] Because I have concluded that a term of imprisonment of less than two years would be appropriate, consideration must be given to whether the sentence should be served in the community pursuant to the terms of a conditional sentence order. For the purposes of this case, the criteria that must be satisfied before a conditional sentence order can be made are that the court be satisfied that the order would not endanger the safety of the community and that such an order would be consistent with the fundamental purpose and principles of sentencing set forth is sections 718 to 718.2 of the Criminal Code.

[30] There is no suggestion that having Ms Ren serve her sentence in the community would pose a danger to community safety. The question, rather, is whether it would be consistent with the fundamental purpose and principles of sentencing. More particularly, the question is whether a conditional sentence would provide an adequate measure of denunciation and general deterrence.

[31] A reluctance to order that sentences of imprisonment be served in the community is most often seen where denunciation and general deterrence are the paramount objectives of the sentencing court. In R. v. Killam, [1999] O.J. 4829 (C.A.), Justice Doherty observed that even though a conditional sentence is capable of achieving those objectives, “it must be acknowledged that a conditional sentence … does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal”.[^1] The reasons for that are obvious: there is a significant difference between the total deprivation of liberty that follows confinement in a prison and the much more modified deprivation associated with confinement in one’s home.

[32] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Chief Justice Lamer observed that while a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration, a conditional sentence can provide a significant amount of denunciation and deterrence “if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”.[^2] Therefore, he stated, “conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty… Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail.”[^3] Similarly, in R. v. Hirnschall (2003), 2003 CanLII 46450 (ON CA), 176 C.C.C. (3d) 311 (Ont. C.A.), Justice Laskin observed that “if the public is to have confidence in the conditional sentencing regime, the conditions must have teeth”.[^4]

[33] The comments of the Chief Justice in Proulx and Justice Laskin in Hirnschall reflect a recognition that insofar as denunciation and deterrence are concerned, the magnitude of the gap between a conditional sentence and institutional incarceration will be influenced by the nature of the terms under which the conditional sentence is required to be served. The stricter the restrictions on liberty, the clearer it will be that the offender is truly serving a sentence of imprisonment; the clearer that it is that the offender is serving a sentence of imprisonment, the stronger will be the message that the offence is being denounced and the offender punished.

[34] In assessing of whether a conditional sentence would be appropriate for Ms Ren, I have considered the reasons of Justice Dambrot in R. v. Mendez, [2004] O.J. No. 5733 (Ont. Sup. Ct.). In that case, an immigration consultant counselled two families to support their refugee claims by manufacturing false stories in relation to their fear of prosecution in their native country. Justice Dambrot accepted that the offender, who had pleaded guilty, was “a community-minded individual who has assisted immigrants in getting to Canada, remaining in Canada and integrating into the community, often without remuneration”. However, he also found that she was “utterly disdainful of the immigration and refugee laws of Canada and somehow feels justified in counselling both dishonesty and breaches of the rules to accomplish her ends.” He acknowledged that the need for denunciation and general deterrence did not eliminate the possibility of a conditional sentence but in all of the circumstances he declined to grant one. He stated:

[When] I take into account the fact that the accused was demonstrably disdainful of the law, has shown no real remorse now, and was on bail when [one of the two incidents] took place, I am convinced that only a sentence of actual imprisonment will adequately encourage respect for the law and sufficiently reflect denunciation of [the accused’s] conduct and general deterrence.[^5]

[35] In the result, Justice Dambrot imposed a term of imprisonment of nine months.

[36] Unlike the offender in Mendez, Ms Ren was not on bail when any of the offences were committed, she has shown genuine remorse, and I would not have characterized her attitude to the Canadian immigration laws as disdainful. Thus, I do not regard Justice Dambrot’s refusal to make a conditional sentence order in Mendez to be of assistance in relation to whether one should be made here.

[37] This is a close case. Given the importance of public confidence in the integrity of Canada’s immigration processes, the paramount objectives of sentencing must be denunciation and deterrence. For the reasons I have stated, a sentence of imprisonment of two years less one day is required to achieve those goals. I am concerned that ordering the sentence to be served in the community could dilute its denunciatory and deterrent impact. After anxious consideration, however, I am satisfied that with the imposition of punitive conditions Ms Ren’s liberty can be restricted in a fashion that will make it clear both to her and to the community that she is truly serving a significant sentence of imprisonment. Accordingly, I will order that her term of imprisonment be served in accordance with the terms of a conditional sentence order.

[38] I will hear from counsel in relation to the specific terms of the order, but, to be clear, I am of the view that for a substantial portion of her sentence, Ms Ren should be under complete house arrest, with only those exceptions that are necessary to ensure her health and that of her parents and to enable the supervisor to administer the order. Apart from that, she should be subject to the same kind of restrictions on her liberty that she would be if serving the sentence in a custodial facility.

MacDonnell, J.

Released: May 28, 2015

[^1]: At paragraph 13

[^2]: At paragraphs 102 and 107

[^3]: At paragraph 37

[^4]: At paragraph 28

[^5]: At paragraph 20