CITATION: R. v. Alli, 2015 ONSC 3961
COURT FILE NO.: CR-13-119
DATE: 2015/06/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Nizar Alli
Defendant
Melody Foerster, counsel for the Federal Crown
David Anber, for the Defendant
HEARD: May 28, 2015
REASONS ON SENTENCE
Leroy, J.
INTRODUCTION AND FACTS
[1] Mr. Alli was convicted on February 20, 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 collect Nigerians from the dock and effect transport to Toronto. In this case, that involved courier and organizational duties. They required two vehicles, so he enlisted his brother to engage as courier. This was not Mr. Alli’s first time.
[2] It is an offence under the Immigration and Refugee Protection Act, S.C. 2001 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 conduct is known 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 available disposition. The facts here are such that a sentence of less than two years is fit and appropriate.
[5] The live issue in relation to the conditional sentence is whether a conditional sentence would be consistent with the fundamental purpose and principals of sentencing set out in section 718 to 718.2 of the Criminal Code. The safety of the community would not be endangered by service in the community.
[6] At the time, s. 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 and who did not appear before an officer or attend at a port of entry 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.
POSITIONS OF COUNSEL
[7] The defence position is that a sentence of fifteen months to be served in the community by way of conditional sentence satisfies the objectives of denunciation and deterrence. The submission includes ten months house arrest and five months of curfew to be followed by two years of probation. Mr. Alli was detained for 7 days before interim release was approved which merits credit of 11 days.
[8] The Crown position is that the circumstances merit a sentence of twelve months real imprisonment.
Principles of Sentencing
[9] Mr. Justice LeBel in R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6 summarized the Criminal Code sentencing calculus. The sentencing judge has broad discretion within these parameters in passing sentence. The citations are omitted.
[10] 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.
[11] 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”.
[12] 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.
[13] 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 desserts 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. 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.
[14] 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.
The Offender
[15] Mr. Alli is 39, separated, with two children. He lives with his parents. When these offences were committed, his livelihood derived from carrying on business in the auto body repair business. He reports that business was marginal with meagre income. He resorted to illicit income source to subsidize household indigence. He has since secured a gainful position in the same industry with an established repair shop.
[16] He was born in Canada and raised in Guyana. He returned to Canada at age 16 with his younger brother. Collaterals consistently expressed the view that criminal conduct of any sort was uncharacteristic for Mr. Alli. He is viewed by family and third party collaterals as pro-social at home and work.
[17] He has a dated and unrelated criminal record from July 1999 for two counts of possession of property obtained by crime over $5,000.00 for which he was sentenced to ninety days intermittent and one year probation. Although the author of the pre-sentence report was unaware of these convictions, that deficit does not derogate from the positive nature of the report.
[18] Mr. Alli completed twenty hours of volunteer work over four days between May 9th and the 17th, 2015 for a community centre in Barrie. A cynic might view this as a crass attempt to curry favour under the guise of artificial acknowledgement of responsibility and offer of reparation. Although this service came a little late in the day, it does reflect some recognition of the merit of reparation to the community.
Jurisprudence
[19] While sentencing precedent will almost always contain features that make them distinguishable, taken as a whole, they can point to a range to be considered and to the factors that will assist in placing a particular case within the appropriate range.
[20] Precedent in respect to documentary deficit convictions under ss. 126 and 127 of the Statute, which are less serious than the offence of human smuggling, is marginally relevant if at all to the case at bar.
[21] I reviewed the case law submitted through counsel. There is no issue that human smuggling across international borders is an egregious offence which has to be treated seriously by the Court. I agree with the sentiment that it is a moral affront to legitimate immigrants that undermines national security. Illegal smuggling of human beings cannot be permitted to become a profitable business operation in Canada.
[22] Denunciation and deterrence have to be prominent in any disposition.
[23] Of the cases cited to me, two rulings by Judge I.W. Andre in R. v. Esmail, [2003] O.J. No. 6120 and R. v. Wasiluk, [2005] O.J. No. 4148 were most helpful. In similar facts, Judge Andre dealt directly with the conditional sentence issue in both cases.
Aggravating and mitigating Factors
AGGRAVATING FACTORS
[24] This was an organization. Although Mr. Alli was not a central constituent to the organization, he had autonomy in the performance of his role. He knew about the boat ride over the river in darkness and the potential for danger and injury. He knew that his was a component of a scheme to circumvent border integrity. He did this for quick and easy money.
[25] He exploited his brother’s loyalty and trust for his own expediency and personal gain with little regard for the consequent jeopardy.
[26] Human smuggling into Canada is a serious security challenge and needs to be staunched. Our Parliament has seen fit to amend the sentencing provisions of the Act to include minimum periods of imprisonment.
MITIGATING FACTORS
[27] The pre-sentence report is positive. This behaviour was anomalously instigated by perceived financial exigency. He has the support of extended family. He expressed appropriate remorse. He has a good job and is appreciated by his employer. He has child support obligations.
Discussion and Conclusion
[28] The offender in Esmail was involved in 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. He did not have a prior criminal record. 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’s co-accused received six month conditional sentences. Each provided an individual for transportation, not for financial gain. Neither were involved in any actual transportation of persons across the border and both gave inculpatory statements.
[29] In Wasiluk the offender’s role was limited to transporting immigrants across the river by boat. He was not involved in planning and administration and Judge Andre levied a conditional sentence.
[30] In R. v. Hallal, [2006] O.J. No. 2026 the offender failed to establish an evidentiary basis for conditional sentence. The Court did not know if he held employment, he had not volunteered anywhere, he had not up-graded and was mired in hopeless debt without any plan for recovery. Mr. Hallal neglected to advance any indicators of pro-social lifestyle the Court could work with in fashioning a worthy conditional sentence. Accordingly the Court could not craft a sentence consistent with the fundamental purpose and principals of sentencing set out in s. 718 – 718.2 of the Criminal Code
[31] The Supreme Court of Canada in Proulx emphasized that a conditional sentence does not denude the principals of denunciation and deterrence.
[32] Although to me it is a close call, this is a case for conditional sentence. Mr. Alli was not involved in planning. The piece with his brother is double-edged. Action speaks loudly. Yavar trusted Nizar implicitly. That trust was brokered over a lifetime of good deeds and support and that as much as anything says that this is a man who accepts responsibility for his actions, recognizes the harm to his Canadian community and is committed to reparation. Nizar broke that trust and has to live with it.
[33] The evidence is that these men have family and community support and are valiant breadwinners. The Crown submission to the point that Mr. Alli opted for the easy money is valid; however, such is often the case. The financial advantage to Mr. Alli in these ventures was small relative to the risk and bespoke desperation.
[34] Mr. Alli spent seven days in prison and has been subject to interim release terms for three years without offending. This criminal conviction and my disposition will result in another three years of direct institutional intrusion and a lifetime of indirect intrusion in his life. Any rational person faced with assessing the cost and benefit of such activity should be deterred.
[35] Anyone who reads these reasons should get the point that this Court strongly denounces human smuggling, takes it very seriously and imposes meaningful consequences in the measure of proportionality crafted by Mr. Justice LeBel.
[36] Accordingly, the sentence is fifteen months imprisonment to be served conditionally in the community, subject to mandatory terms. The first ten months include full house arrest, save for demands of employment, medical treatment and three hours weekly for household necessaries, all to be approved by his supervisor in writing beforehand. For the remaining five months, there will be a curfew hours to be settled – Door knock throughout.
[37] That is to be followed by probation for two years, to include statutory terms, report as directed subject to supervision, attend and participate in assessment, rehabilitation and counselling as recommended by the probation officer. If there are money management programs available, that may be of assistance in developing healthy strategies. He shall execute releases as required. Mr. Alli is ordered to perform 100 hours of community service as part of the probationary rehabilitation process.
Justice Rick Leroy
Released: June 22, 2015
CITATION: R. v. Alli, 2015 ONSC 3961
COURT FILE NO.: CR-13-119
DATE: 2015/06/22
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Nizar Alli
Defendant
REASONS on sentencing
Justice Rick Leroy
Released: June 22, 2015