ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-G30448
DATE: 20151118
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MOHAMED FARAH ABDULLE
Applicant
EmilieTaman/Robert Zsigo for the Public Prosecution Service of Canada
Elena Davies, for the Applicant
HEARD: April 13, 14, 15, 27, 28, 29, 30, May 1, 4, 5, 6, 7, 11,12 and 13, 2015
REASONS FOR JUDGMENT
beaudoin j.
[1] At the outset of the trial, a procedure was adopted to catalogue and put the voluminous documents into evidence. While a few of these were business records, the vast majority of the documents were properly authenticated and identified through the evidence of the witnesses as set out later in this decision.
The Case for the Crown
Derek James Pickell
[2] Derek James Pickell is a Senior Program Officer with Canadian Immigration Canada (CIC) and was responsible for processing applications for the privately sponsored refugee program. He explained that there are three methods for making a refugee claim:
- Inland refugee claims for persons who make claims for refugee status when they are already in the country.
and two types of privately sponsored programs:
There is the Sponsorship Agreement Holder program primarily used by churches. and;
The Group of Five sponsorship program. (“G5”) where five or more persons sponsor one or more applicant refugee(s).
[3] This is primarily a paper process. Mr. Pickell frequently dealt with the Mr. Abdulle and identified him in the body of the Court.
[4] He described the key components of the G5 program as the identification of a refugee or group of refugees and a group of no less than five sponsors who commit to support the refugees for a period of one year. Each of the sponsors is required to sign an undertaking for a one-year period to provide food, shelter and clothing and to help the refugee family settle in Canada. This requires more than just providing financial support. Each member of the G5 has to be eligible to sponsor by being a Canadian citizen or a permanent resident. Mr. Pickell’s job was to approve the application for sponsorship. Prospective refugees to Canada are assessed overseas by the government Visa Officer.
[5] Mr. Pickell said that the majority of refugees in Canada are sponsored. He did not have exact numbers but he estimated that one third of the refugees arrive through government sponsorship, and two thirds through private sponsorship. Prospective refugees have an advantage if it is known that there is someone in Canada who is willing to help them out. When looking at a private sponsorship, he considers the sponsor’s financial ability and their ability to re-settle the refugee family.
[6] The settlement plan is a key document. It spells out the sponsors’ obligations in broad strokes. There is a monetary baseline based on low income cut-off figures. $12,000 in financial support is required for the first person being sponsored and an extra $6,000 for each additional member. Supporting documentation can come from evidence of donations from each sponsor and their expected financial contributions. Members would be expected to provide proof of income in the form of a T4 or a letter of employment from their employer, or paystubs. He would look at a sponsor’s own family circumstances to determine whether or not they could afford to sponsor someone. If, however, there is a trust fund set up with a bank account and funds are discretely set aside, these additional inquiries need not be made. In assessing sponsors, CIC would look to the past; whether or not there had been previous defaults, and whether or not the sponsor had other commitments. He also referred to an “in-kind” deduction table. This is a table which sets out cash equivalents for certain kinds of support.
[7] Refugee families are not expected to work for one year; as their job is to get settled. Most new refugees do not have a passport and they are issued a single journey travel document which is presented upon their entry into Canada.
[8] Mr. Pickell was referred to a number of the G5 applications. Each application is assigned its own identification number. Each member of the group is assigned their own individual ID. That identification is based on the Field Operations Support System, (FOSS). In this case, Mr. Abdulle would have his own Foss ID. In the case of a G5, the first person who would be listed on the application is considered the primary sponsor, and this person would typically be the contact person for the group.
[9] The application sets out the obligations of the sponsor and it is considered a contract. Every member of the sponsor group has to sign the declaration section. If Mr. Pickell accepts the undertaking, he then signs it and a copy is provided to the sponsor group. He said that no single affluent person could sponsor a refugee. The entire group needs to help the family settle into the country. The program looks for more than someone to cut a cheque. Sponsor groups are encouraged to use immigrant assistance agencies as these are funded by CIC. The use of these agencies weighs heavily in favour of approval.
[10] In terms of finances, there needs to be a determination of how much it will cost to sponsor the family and how funds will be managed. Financial monitoring by the group is expected. Financial assistance is not limited to the five particular sponsors, but can be obtained from a broader base. If a sponsor is currently sponsoring somebody else, or if they have previously sponsored somebody, this will show up on the Foss system.
[11] In some cases, the Group of Five sponsors may designate a representative as the contact person. That person may not necessarily be a member of the group. In this case, there are some files where the contact person was Mr. Abdulle even though he was not an actual sponsor.
[12] Files were handled on a first come first served basis. The 3122 identifier was exclusive to Ottawa. The next four digits were the file number. Files were stored in a cabinet next to Mr. Pickell’s desk. If an application was rejected, all of the documents were returned to the applicants. Sponsors could reapply if they had been turned down.
[13] Refugees could not pay sponsors as they would not be considered genuine refugees since refugees rarely have funds or liquid assets. If they did, they would have a viable solution outside of the refugee system. Payment for profit is not being true to the spirit of the program.
[14] Mr. Pickell had multiple interactions with Mr. Abdulle who he described as the most prolific G5 sponsor. He contacted the office regularly. He had 20 to 40 applications in the queue. Mr. Abdulle sought updates and guidance. He was very motivated to succeed. His settlement plans quickly improved.
[15] As time went by, Mr. Abdulle was very pleased as the processing time of his application was shortened and this heightened his standing in the community. At one point in time, he offered Mr. Pickell a gift which he refused. He understood that in some cultures this is expected, but he did not consider this a bribe as Mr. Abdulle was already getting what he wanted.
[16] In time, Mr. Pickell became concerned about the accused’s ability to support as many families as he proposed, and he suggested that Mr. Abdulle be designated as the spokesperson only. He also knew that Mr. Abdulle was a janitor. He tabulated the files that had been processed and approved, and he forwarded these to the Program and Integrity Division at headquarters. He came to appreciate that Mr. Abdulle’s groups had pledged close to $1 million to support the refugee families. Mr. Pickell did not advise him of this referral to headquarters as he thought that the Canadian Border and Security Agency would be investigating, and he did not want to interfere with their investigation.
[17] A person by the name of Mohamed Mohamed attended at the CIC office on Catherine Street. He claimed that his name was used on a G5 application in error and that he had not agreed to become a sponsor and that was not his signature on the application. This information was sent to headquarters.
[18] In cross-examination, he was questioned about files being approved by him and about their location. He claimed that the files were in a secure protected environment and that the files were accessible only to people who were in that secure area.
(continues verbatim through paragraphs [19]–[300] exactly as provided in the source text)
Mr. Justice Robert N. Beaudoin
Released: November 18, 2015
COURT FILE NO.: 11-G30448
DATE: 20151118
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MOHAMED FARAH ABDULLE
Applicant
REASONS FOR JUDGMENT
Beaudoin J.
Released: November 18, 2015