CITATION: R. v. Abdulle, 2016 ONSC 6796
COURT FILE NO.: 11-G30448
DATE: 20161031
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MOHAMED FARAH ABDULLE
Applicant
Robert Zsigo for the Public Prosecution Service of Canada
Elena Davies, for the Applicant
HEARD: November 18, 2015
REASONS FOR sentence
beaudoin j.
[1] On November 18, 2015, I found the offender guilty of the following offences:
Count one: Offering a monetary benefit to a Canadian and Immigration Canada officer contrary to section 121(1)(a) of the Criminal Code.
Count two: Possession of identity information intended to be used to commit the offence of submitting fraudulent sponsorship applications to Citizenship and Immigration Canada, contrary to section 402.2(1) of the Criminal Code.
Count three: Making false documents, to wit: created bank trust confirmation letters and pay stubs, knowing them to be false, with intent that they should be used as genuine, to approve refugee sponsorship applications, and thereby committing forgery, contrary to section 366(1)(a), thereby committing an offence pursuant to section 367 of the Criminal Code.
Count four: Knowing or believing a document was forged, did use such documents as if they were genuine, and did possess such documents with an intent to commit an offence contrary to section 368(1) of the Criminal Code.
Count five: Knowingly misrepresented material facts as contained in group of five refugee sponsorship applications, contrary to section 127(a) of the Immigration and Refugee Protection Act, thereby committing an offence pursuant to section 128 of the said Act.
Count six: Submitting false information contained in group of five refugee sponsorship applications, contrary to section 127 (b) of the Immigration and Refugee Protection Act, thereby committing an offence pursuant to section 128 the said Act.
Count eight: Offering to give a bribe or consideration to an officer to favourably process Private Sponsorship of Refugee program applications, contrary to section 129(1)(b) of the Immigration and Refugee Protection Act.
The Kienapple Principle
[2] At the outset of this sentencing hearing, the Crown agreed the Kienapple principle, R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 should apply to counts one and eight and that count one should be stayed, and that Kienapple should further apply to counts five and six and that count six should be stayed. The Defence agrees with those submissions. The Defence submits that counts three and/or four, the forgery charges, should be stayed having regard to the conviction on count five; arguing that section 127(a) of the Immigration and Refugee Protection Act (S.C. 2001, c.27) (“IRPA”) encompasses a broad range of activities including making, using, and possessing forged documents. Defence counsel focused particularly on counts four and five. In reply, the Crown maintains that there is an important distinction with respect to count four. While it includes the word “use” which activity may be caught by the language in count five, it also includes the “possession” and the Crown refers to the hundreds of documents that were found in Mr. Abdulle’s possession.
[3] The Kienapple principle precludes multiple convictions for different offences where there is both a factual and legal nexus connecting the offences. A factual nexus exists where the charges arise out of the same transaction. A legal nexus exists if the offences constitute a single wrong. In R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, the Supreme Court added further clarification to the principles in R. v. Kienapple, and held that:
a) The issue is not whether each is a conviction for the same offence. That is but the first step in the analysis. The moving party must demonstrate first the above Factual Nexus and then the following.
b) The second step in the analysis is whether the convictions involve substantially the same elements, whether one offence embraces the other or are the two merely alternate charges for the same violation. Both questions must be established before a stay is ordered.
c) Multiple convictions are appropriate where each involves a different factual incident. Does the same act of the accused ground or form the basis of each charge?
d) Even in the case of a single act leading to 2 charges, there can within that single act be different or distinct; “wrongs”, “causes”, “matters” or “delict” which would sustain 2 convictions.
e) The Courts use in Kienapple of the same “cause”, “matter” or “delict” indicates that if a factual nexus exists, the Court before staying the other charge must determine if there is also an adequate relationship between the two offences themselves to apply the rule against multiple convictions.
f) A stay should not be ordered simply because the two offences have a common element. The question rather is whether there is any additional or distinguishing element required to establish guilt going to guilt between the two charges.
g) Elements of the offence can be “substantially the same” when (1) one element is particularization of another element, (2) when there is more than one “method” in the 2 charges to prove the violation and (3) where Parliament deems proof of a particular element is established by proof of a different nature
h) The Court must determine if there is a relationship of sufficient proximity both as to (1) the facts and (2) the charges before staying the other charge under this principle.
[4] Based on the above principles, I find that there are distinguishing elements between count three, (the making of forged documents), count four (the use and possession of forged documents), and count five (misrepresentation of material facts). They involve distinct separate incidents, separated in time and with regard to the nature of the conduct complained of. Neither conviction under counts 3 and 4 will be stayed.
The Crown’s Position
[5] The Crown seeks a seven year penitentiary sentence; four years concurrent, on counts 2 – 5, and 3 years consecutive for bribery, count 8.
The Defence Position
[6] The Defence seeks a conditional sentence of two years less a day followed by a period of probation for such a period of time that the Court may deem fit.
The Pre-Sentence Report of February 1, 2016
[7] The Report was authored by Vanessa Thompson. In preparing her report, Ms. Thompson interviewed the accused along with a number of his friends and representatives of the Somali community. The offender was born in Mogidishu Somalia on June 26, 1962. He is 54 years of age. He arrived in Canada in 1991 and obtained his Canadian citizenship in 1996. He has been married for 32 years and he and his spouse have five children, ages 30, 24, 19, 15 and 11. The eldest three children are enrolled in post-secondary studies and he is proud of their accomplishments.
[8] Upon immigrating to Canada, the offender collected social assistance for a period of time prior to finding employment. He first worked at a convenience store prior to obtaining employment as a subcontractor and janitor. He is now employed as a taxi driver with a local taxi company. He has been in this position for nearly four years. He claims his current income is sufficient to meet his financial obligations. He has no previous record.
[9] The offender denies any responsibility for the offences. He blames the government officials for having misunderstood his intentions in bringing friends and family members to Canada from Somalia. He explained that he was attempting to assist these individuals to immigrate, admitting he was uneducated about procedures, and equated his lack of knowledge as reasoning for erring on the applications. Despite this, he acknowledged that he was able to appreciate how the government felt he was acting deliberately.
[10] He is very involved in the Somali and Muslim communities in Ottawa. He reported that he runs the Somali and Arabic school out of his home on weekends to teach Somali youth the language and how to write. Prior to his arrest, he also taught at local Mosques. He provided written reference letters confirming his involvement in the Somali and Muslim communities. These sources describe him in very positive terms and some of these express shock in learning of his arrest.
[11] He has been reporting to the Canada Border Services Agency pursuant to the terms of his recognizance and no breaches have been reported.
[12] Ms. Thompson concluded that the offender presented as requiring additional intervention in the areas of problem-solving and making more positive choices to prevent further involvement with the courts and therefore appeared to be a suitable candidate for community supervision. She made limited recommendations with respect to the terms of any probation order.
[13] The Court also received a technological report from the Electronic Supervision Program (ESP) which confirmed that the telephone service at the offender’s residence is compatible with current technologies used in ESP and that these technologies may be used to assist in monitoring any house arrest/curfew imposed.
Principles of Sentencing
[14] The general principles of sentencing found in section 718 of the Criminal Code are:
a) to denounce unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) two separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility and offenders, and acknowledgement of the harm done to victims into the community.
[15] In addition, there is the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 of the Code). A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the events or the offender. Where there is evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; this is considered an aggravating factor (s. 718.2(a) and 718.2(a)(iii) of the Code). A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. (s. 718.2(b) of the Code). Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. (s. 718.2(c) of the Code) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.( s. 718.2 (d) (e) of the Code).
Aggravating Factors
[16] In terms of aggravating factors, the Crown submits that there was a financial motive for the offender to submit these fraudulent refugee applications.
[17] The Crown relies on the high number of refugee applications involved (170) and the high degree of planning required to commit these offences. The Crown notes that the offender acquired extensive knowledge of the immigration sponsorship program and learned how to abuse weaknesses in the system.
[18] The Crown further submits that there was a breach of trust in that sense and cites evidence of the further breaches of trust from those refugees who supplied the offender with funds in order to sponsor a refugee family member or who provided the offender with copies of their identity documents which he then copied without their knowledge or consent.
[19] On the issue of financial gain, the Crown attempted to rely on bank statements disclosing the offender’s unexplained wealth and further attempted to establish a correlation between financial amounts recorded in the offender’s diaries and individual sponsorship applications. On this point, I agree with Defence counsel that these documents were not put to the offender at trial nor was he cross-examined on the entries in the diaries in so far as they might relate to specific sponsorship applications. I agree that if the Crown seeks to establish greed as an aggravating factor, that evidence must be established beyond a reasonable doubt.
[20] Although I am unable to conclude the full extent to which the offender may have profited from his actions, there was evidence that Mr. Esse and Mr. Naasir Nuur and others had paid funds to the offender in order to sponsor family members as refugees.
The Mitigating Factors
[21] Although the absence of a guilty plea is not an aggravating factor, the offender has lost any benefit that might have accrued from a guilty plea. The Defence notes the absence of a criminal record and the offender’s standing in the community. Letters of support were submitted by the Executive Director of the Somali Centre for Family Services, the Islamic Society of Gloucester, and the Principal of a local community school. Medical letters were filed with the court to indicate that the offender’s wife is now unable to work and is now dependent upon him for support.
[22] The Defence also notes that the refugees that did enter Canada as a result of the applications in issue were assessed as genuine refugees. This is not a case where ineligible people have managed to get into the country.
The Victim Impact Statements
[23] The Crown submits that there were three categories of victims. First were all of those refugees who were unable to arrive in Canada because their applications were stayed once the offender’s fraudulent schemes were discovered. A Victim Impact Statement from Mr. Nuur reveals his gratitude to the offender for helping leave a refugee camp in South Africa, but he adds:
But, when it comes to those people I try to sponsor them just like I came to Canada except the money I paid for them to be sponsored, there is an effect that I felt, whether it is very severe or light, the effect is still feasible in terms of the immorality of the act as well those who might try to save them which up to now live in a gloomy situation that I spent money and I could not save them at all.
[24] As for those refugees who did arrive in Canada, many of them testified that they received little or no assistance from the offender upon their arrival in the country. It must be remembered that sponsors undertook to support these persons for a period of one year. While some of these refugees soon found employment, others ended up on public assistance soon after their arrival.
[25] According to the Crown, the second group of victims includes the sponsors who had copies of their identification stolen. These witnesses testified as to their fear that they would somehow be implicated in the fraudulent schemes. In this Victim Impact Statement, Mohubo Ali Mohamed writes:
I feel betrayed by Mr. Abdulle, because I trusted him and gave him copies of my documents to help sponsor my family. I trusted him to come to my house every Saturday for one year, to teach the Quran to my son and my friends’ kids. He said he would help me, he would do the sponsorships for me, then he lied to me and said he never used my documents. He said that I was to trust him. But he did use my documents.
I was confronted by people I know and was asked why I accused Mr. Abdulle of doing these things, but I told them I did not accuse him. He did this all by himself and the government found him. I had to defend myself to them and I feel bad because he did this, not me. I did nothing wrong.
[26] The Crown adds a third category of victims, namely the general public whose confidence in the refugee system has been undermined.
[27] Both the Crown and the Defence note that there is no decision that is directly on point with the facts of this case and a reference to the case law is necessary to consider the relevant principles.
The Case Law
R. v. Wang, 2015 BCPC 302
[28] In this case, the accused plead guilty to eight offences under the IRPA and the Criminal Code. Mr. Wang operated a business to assist foreign nationals in obtaining citizenship or permanent residency. In order for an applicant to qualify for citizenship or permanent residency, there was a requirement that the applicant reside in Canada for a set period of time. Generally speaking, Mr. Wang created a misleading paper trail resulting in the false impression that his clients were and had been living in Canada when, in fact, they were living in China.
[29] The mechanics of showing false Canadian residency was done via passport frauds, address frauds, employment frauds, false documents, and coaching clients to mislead Citizenship officers. After concluding that Mr. Wang’s offences were complex, sophisticated, and well thought-out, the trial judge said this at paras: 59 and 60:
[59] After reviewing the authorities, I find the primary sentencing objective in the instant matter is denunciation and general deterrence. In support, I refer to the cases already mentioned and I also note Madam Justice Stromberg-Stein comments in R. v. Li, 2001 BCSC 458, [2001] B.C.J. No. 748 (S.C.), at paragraph 7:
Canada is a multi-cultural, multi-racial society. Immigration is encouraged and Canada is enriched by the immigrants that it admits. Thousands of qualified immigrants are admitted every year. Canada must have the ability to protect and control its borders and screen and control the flow of migrants into this country so that only those deemed qualified are granted entrance to this country. Canada is entitled to select immigrants who reflect the values of Canadian society. Those migrants who are exploited or funded by criminal organizations, or who may owe an allegiance to or be vulnerable to unsavoury elements, are unlikely to be considered desirable or acceptable migrants to this country.
Continuing at para. 9:
There is an adverse impact on all Canadians due to the actions of those who facilitate the entry of illegal migrants to Canada, or to Canada as a back door to the U.S.A. Law-abiding Canadians who travel to the U.S.A. are faced with tighter border security and restrictions. There is an astronomical cost, borne by the Canadian taxpayer, associated with processing the claims of illegal migrants, returning them to their country of origin and prosecuting the organizers. The abuse of the refugee process, facilitated by the migrant smugglers, undermines public confidence and support for the refugee process and fuels racial prejudice and racial tension in the community. The growing trade in people smuggling must be deterred because it adversely impacts on all aspects of Canadian society.
[60] This Court appreciates that Madam Justice Stromberg-Stein's comments were made in the context of migrant smuggling. Nevertheless, the comments are applicable to the circumstances of foreign nationals seeking citizenship or residency status on the basis of fraudulent claims. The comments reflect the importance of Canada protecting the integrity of its immigration process. In fact, one could argue the observations made are even more prescient in today's age of international terrorism.
[30] The trial judge concluded that Mr. Wang’s actions not only harmed the public’s confidence in the immigration process, but that he also assisted numerous persons in fraudulently obtaining residency or citizenship. He further concluded that the only available explanation for Mr. Wang’s actions was greed. In placing his financial interests above all including the law, the Court decided that Mr. Wang’s actions demanded denunciation and deterrence and imposed a sentence of six years, four months and 21 days after giving credit for time served in pre-sentence custody.
[31] In R. v. Li [2015] O.J. No. 5083, the offender was sentenced for multiple counts of forgery, possession of property obtained by crime and counselling to misrepresent material facts on an immigration application. The offences related to 61 counts under the Criminal Code and 28 counts under The IRPA were committed in the course of the accused’s work as an immigration consultant. The accused pled guilty. She was found in possession of confidential citizenship tests illegally provided to her by a citizenship judge. The accused used these tests to help prepare clients going to take the test in order to become citizens. The accused forged copies of passports for submitting to Citizenship and Immigration Canada in applications either for Canadian citizenship or for permanent residency. The accused was a first offender who was well regarded in her community.
[32] A global sentence of 30 months imprisonment was imposed. The Court concluded that the accused’s conduct was egregious and that general deterrence and denunciation were principal sentencing considerations. Although the Court accepted that the accused was genuinely remorseful, it noted that the accused’s offences were planned, sophisticated and carefully executed in a series of deceptions. At para. 26, the trial judge concluded:
By any measure, Ms. Li’s conduct was egregious. Forgery of documents in circumstances where applicants are trusted to submit genuine documents, and designed to undermine the integrity of the Canadian government’s immigration and citizenship regime can only be described as sinister and, if not a classic breach of trust, certainly one which has the hallmarks of such a breach in the context of a self-reporting regime where photocopies of documents were accepted by workers is obviously much more difficult to detect: R. v. Tulloch, [2002] O.J. No. 5446 at para. 23
[33] In R. v. Ren, 2015 ONSC 3397, 2015 CarswellOnt 7830, the accused was charged with 21 counts of counselling misrepresentation, contrary to section 126 of the IRPA. The offences were alleged to have been committed over a seven year period. The accused pled guilty to five counts and formally admitted the allegations in relation to the remaining 16 counts. There were 130 applications for permanent resident status which involved Canada’s spousal sponsorship applications. It was revealed that the marriages underlying these applications were not genuine but rather entered into solely for the purpose a providing a basis upon which one of the spouses could obtain permanent resident status. Ms. Ren profited from her actions.
[34] The Court concluded that the accused’s scheme struck at the integrity of the Canadian immigration system and was calculated to undermine public confidence in it. Having regard to the gravity of the offences and the commercial motivation that drove them, the trial judge was of the opinion that the sentence of two and half years sought by the Crown was not outside the appropriate range.
[35] The Court then took into consideration a number of mitigation factors, namely, the accused’s guilty plea entered at an early stage, the accused’s remorse demonstrated by the letter she wrote to the Court and the 453 hours of community service that she voluntarily performed subsequent to the arrest, the accused’s health, and her substantial donation of $200,000 to two hospitals in the community that treated her brain tumors. After concluding that this was a close case, the Court imposed a conditional sentence and two years of house arrest.
[36] In R. v. Mendez [2004] O.J. No. 5733, the accused pled guilty to one count of counselling two families to make false statements and claims for refugee status contrary to s. 94.5 of the Immigration Act. While a second indictment involving another group of persons was withdrawn, the facts underlying those charges were admitted for the purpose of being taken into account on the imposition of sentence. At para. 18, Justice Dambrot concluded:
- It is obvious to me that Ms. Mendez is in fact a community-minded individual who has assisted immigrants in getting into Canada, remaining in Canada and integrating into the community, often without remuneration. But it is also obvious from the well planned and smoothly executed offence involving the two Argentinian families that Ms. Mendez is knowledgeable about Canadian immigration law and has used her knowledge of and experience with the immigration system for profit on an organized and ongoing basis. Whatever the extent of her profit may be, however, it is also apparent from the advice Ms. Mendez gave in relation to the two Argentinian families and to Ms. Borelli that she is 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. In my view, this disdain for the law and the casualness with which Ms. Mendez broke it so seriously attacks and undermines the integrity of our beleaguered immigration and refugee system as to justify treating the offences as very serious, regardless of the extent of remuneration that she received.
[37] The trial judge agreed that an upper reformatory sentence would be entirely appropriate however, having regard to the mitigating circumstances including the fact that the accused was a first offender, he imposed a sentence of nine months’ imprisonment and rejected the Defence request for a conditional sentence.
[38] In R. v. Jacobson (29 October 2012), (Man. Prov. Ct.) Transcript of Sentence delivered orally by Carlson, P.J., the accused pled guilty to six offences contrary to the IRPA and to certain provisions of the Criminal Code including fraud, forgery and identity fraud. Four of the offences were committed while the accused was released on bail on the first two charges.
[39] After noting the guilty plea entered at an early stage, the lack of a prior criminal record, the support of his family and the offender’s expression of genuine remorse, the Court accepted the joint submission of the Crown and of Defence and imposed a sentence of four and a half years and made a $300,000 restitution order.
[40] In R. v. Serre, 2013 ONSC 1732, [2013] O.J. No. 1437, the accused was found guilty after a trial of multiple counts of fraud on the government and breach of trust as a public officer. The offender was a supervisor with Citizenship and Immigration Canada who participated with another individual who was paid by certain immigrants, to either give them a result that they were not otherwise entitled to or to have their files processed ahead of other prospective immigrants.
[41] The accused was a woman of aboriginal heritage and the Court had to consider Gladue factors. At paras. 30 and 31, Justice Aitken said:
[30] In this case, Canada as a whole was a victim. Canada’s reputation internationally is tarnished when it is known that there was a corrupt official working in its Citizenship and Immigration Department. In recent years, we have been subjected to international criticism for not showing adequate care in regard to those who gain possession of our passports. Our practices regarding citizenship and immigration are under increased international scrutiny, and your fraudulent behaviour is a black mark in that regard.
[31] Canada, as a whole, has also been harmed by your behaviour in that it conveys a message to prospective and current immigrants that our immigration system is corruptible and that there are officials working in the system who can be bought. This may increase security risks within Canada by encouraging those quite prepared to use bribery and other dishonest means in order to gain entry to this country. In this era of international terrorism, all of us are at an increased risk if those responsible for evaluating the appropriateness of letting individuals into Canada put their own personal gain ahead of the legislated factors, goals, and priorities that should inform immigration decisions.
[42] The sentencing judge rejected the Defence request for a conditional sentence and imposed a term of four years imprisonment. She noted that the offender’s partner in this enterprise (Dakik) had pled guilty and he was sentenced to a period of incarceration of two years and nine months and he agreed to make some partial restitution.
[43] In R. c. Wong [2005] Q.J. No. 22795, the accused pled guilty to four counts in relation to payments he made to a public official. He had been approached by a member of the Immigration and Refugee Board to contact persons to see if they were willing to pay money in exchange for a favourable decision.
[44] The Court noted Mr. Wong’s involvement in the Chinese community including his volunteer work and contribution to worthwhile causes. He had no prior convictions and pled guilty early in the proceedings and collaborated entirely with the police. He fully accepted his responsibility for his criminal actions and he never tried to minimize his involvement and manifested his remorse for his legal actions. The Court noted a very favourable probation report and the low risk of reoffending. After listing the aggravating and mitigating circumstances, the court noted at paragraph 30:
- The most aggravating factor of all is the harm done to Canadian society by the commission of these offences. It is clear that the public’s perception of the administration of justice suffered a great deal and that the commission of these offences tarnished the reputation of the whole Immigration process.
[45] The Court concluded that the principle of denunciation and deterrence were required in order to maintain the confidence of national and international communities in Canada’s democratic institutions and imposed a sentence of 36 months of imprisonment.
[46] In R. c. Niang, 2014 QCCQ 3270, [2014] J.Q. no. 4595, the accused pled guilty to 19 counts contrary to section 126 of the IRPA by assisting foreign nationals to make an application for permanent residence to Canada on the basis of fraudulent marriages. The applicants in this case were all legally in Canada and the only advantage that they were obtaining was a reduction in the time that they would have to wait for permanent status.
[47] In that case, the Court imposed a conditional sentence of two years less a day plus total fines in the amount of $42,000.
[48] In R. v. Hallal, [2006] O.J. No. 2026, 2006 CarswellOnt 9663, the accused pled guilty to one count of conspiracy in relation to the IRPA. The evidence disclosed that the accused was involved in the movement of 30 migrants from India and Pakistan to enter Canada from the US. The Court found that the defendant was actively involved in the operations and that his actions were planned and done for profit.
[49] The Crown asked for a sentence of three years and the Defence asked for a conditional sentence. The Court took into consideration the plea of guilt taken at the preliminary inquiry and concluded that this was significant. The Court imposed a term of custody of 18 months.
A Conditional Sentence
[50] Section 742.1 of the Criminal Code provides:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
[51] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court of Canada held that there no offences except for those with a minimum term of imprisonment, that are excluded from the conditional sentencing regime. There should be no presumption in favour of or against a conditional sentence for specific offences. Defence counsel cites the Ren decision as an example of a conditional sentence imposed for immigration related offences but that was a case of an early guilty plea. While the absence of a guilty plea is not an aggravating factor, the offender has lost the important mitigating factor that accrues from such a plea. He continues to deny any responsibility for his actions. These place this case apart from all those where a conditional sentence was imposed. Having regard to the range of sentence that I conclude is appropriate, I conclude that a penitentiary term is appropriate and that probationary measures are inappropriate sentencing dispositions. I conclude that a conditional sentence would be inconsistent with the fundamental purposes of sentencing in this case and would not provide sufficient denunciation and deterrence that are paramount purposes in this case.
[52] I turn now to the facts of each count upon which Mr. Abdulle was found guilty. As for the bribery offences, I accepted that the offender offered to pay $500 per application to the Canadian immigration officer to expedite his applications and offered to pay out her mortgage by the end of the year.
[53] With regard to count two, the possession of the identity information; at para. 277 of my Decision, I noted the voluminous copies of citizenship cards, permanent resident cards and birth certificates found at the offender’s residence. The list of these filled seven legal-sized pages. One envelope, Exhibit 7-31, contained a stack of copies of citizenship cards over one inch thick. There were multiple copies of many cards and birth certificates.
[54] As for the forgery charge, the evidence at trial disclosed evidence of 78 non-existent bank accounts. Numerous pay stubs were seized from the offender’s two residences; pay stubs for identical amounts appeared with either the name of the payor changed or with a different employee. There were 32 pay stubs in exactly the same amount which were seized. In some cases, a new employee name had been clearly cut and pasted over the name of another. There were no fewer than 39 instances where multiple copies of the same paystub relied upon in the G5 applications had some form of alteration. 244 variations of 43 pay stubs were found. The accused himself admitted that some of these were forgeries, but blamed other people for creating these documents.
[55] At some point, there was shift in reliance on pay stubs and reliance was placed on bank letters in support of the G5 applications. A number of bank letters were seized at both locations and were compared to those that appear in the G5 applications themselves. Witnesses at trial testified that the signatures on a number of these letters were not theirs.
[56] There were multiple drafts of various unsigned letters for banks ultimately used in a G5 application. The same account number was used multiple times in support of different G5 applications. Mr. Blaine Edwards’ name appeared on 31 bank letters submitted for G5 applications. Mr. Edwards’s name was on 30 drafts found in Mr Abdulle’s house; 14 of these were not signed, 12 were not on any letterhead. An envelope, Exhibit 4, had Blaine Edward’s signature practised 10 to12 times on it. More samples of his signature were found on other documents. They demonstrated that this signature was being practiced in order to manufacture false bank letters.
[57] If all the reported bank accounts were genuine, it would have represented a total of $2,924,874 in trust funds being raised and set aside to sponsor refugees. At para. 291, I concluded that the volume of seized documents, pay stubs, draft letters, bank cards and a comparison to documents found in the G5 applications provided overwhelming circumstantial evidence that the accused was in possession of a veritable factory of documents and materials that allowed him to create forged employment and bank trust fund information for approval of his G5 sponsorship applications.
[58] With regard to count four, the use and possession of forged documents, the evidence relied upon in making a finding of guilt on count three was applicable there as well. I note, however, that the possession of forged documents in this case was distinct from count two which related only to the possession of identity documents. Mr. Abdulle’s activities went far beyond that.
[59] As for the misrepresentations at the heart of count five, I considered the additional evidence with respect to the use of sponsors’ names. The evidence disclosed that some of the sponsors’ names were used so frequently, it was unreasonable to conclude that they were legitimate sponsors. Among the more notable examples were members of Mr. Abdulle’s own family: Ismail Abdulle, the accused’s son who would have been about 18 years of age - 53 times; Khadra Abdulle, the accused’s daughter - 62 times, and Fartun Jama , the accused’s wife - 39 times.
Disposition
[60] In this case, I note the offender’s total lack of responsibility for the offences and the absence of any remorse. I do not accept his statement to the probation officer that he was uneducated about procedures and that he simply erred on the various applications. I am satisfied that the offender had a well-organized plan to recruit identity documents from unsuspecting individuals and to fabricate, store and use forged multiple documents to support the 170 G5 applications that were in issue at trial.
[61] On the one hand, I am surprised that he was able to carry out his scheme for as long as he did without being detected by the immigration authorities. That does not excuse the offender; he simply learned how to exploit the apparent lack of oversight in the system.
[62] I do not accept the accused’s evidence at trial that he was doing this for humanitarian reasons. There was clear evidence that he was motivated by profit in at least a few cases. I am also satisfied that he was looking to advance and promote his standing within his community and he was prepared to mock our immigration laws in order to do so. His actions undermined the integrity and public confidence in Canada’s system of refugee sponsorship at a time when the plight of refugees from war-torn countries has become an international crisis.
[63] It does not matter that the persons who did gain admission to Canada might have been accepted in any event; they were allowed to jump ahead of the line. The evidence was clear that those refugee applicants who had sponsors waiting for them in Canada would get a more favourable response. Not content with submitting false applications, Mr. Abdulle went on to attempt to bribe an immigration officer once his applications were delayed.
[64] I note that the support that Mr. Abdulle enjoys in the community. The letters of support suggest to me that Mr. Abdulle was able to deceive the members of his community as well. The letters do speak well of his eventual re-integration into the community.
[65] Denunciation and deterrence are the paramount considerations in this case. Having regard to the range of sentences that have been imposed in the cases cited above, I conclude that the appropriate sentence in this case is three years imprisonment on each of counts, 2, 3, 4, and 5. These terms are to be served concurrently. A term of four years might have been more appropriate, but I have taken into consideration that the accused had been out on bail for nearly four years and has complied with the terms of his recognizance without any incident. On count 8, the bribery count, I sentence the accused to a term of imprisonment of nine months which term is to be served consecutively to the sentence on the other counts. Counts one and six are stayed. Having regard to the totality principle, this results in a global sentence of 45 months less credit for any time served in pre-trial custody.
Mr. Justice Robert N. Beaudoin
Released: October 31, 2016
CITATION: R. v. Abdulle, 2016 ONSC 6796
COURT FILE NO.: 11-G30448
DATE: 20161031
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MOHAMED FARAH ABDULLE
Applicant
REASONS FOR sentence
Beaudoin J.
Released: October 31, 2016