R. v. Zaher, 2017 ONSC 582

CITATION: R. v. Zaher, 2017 ONSC 582

COURT FILE NO.: CR-13-3039

DELIVERED ORALLY DATE: 20170125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SANDRA ZAHER

Richard Pollock, for the Federal Crown

Maria Carroccia, for the accused, Sandra Zaher

HEARD: October 31, 2016

REASONS FOR SENTENCE

POMERANCE J.

INTRODUCTION

1Canada’s immigration system is a source of national pride. It reflects our collective values of multiculturalism, diversity and compassion. The world currently faces a global humanitarian crisis as unprecedented numbers of refugees seek asylum. Canada has committed to doing its part to mitigate the suffering of persons fleeing persecution and atrocities in their home countries. Our country has opened its borders to many thousands of refugees; just as many more are still in need of protection.

2The integrity of the refugee determination system depends on accurate and honest self-reporting by claimants. Those who abuse the system, by knowingly filing false claims, undermine the humanitarian objectives of the Immigration and Refugee Protection Act¹ and erode public confidence in the administration of the Act. Public support for immigration policies has traditionally been strong, but it has waned from time to time. Distrust and skepticism can breed hostility toward persons admitted into Canada as refugees. It can fuel racial tension and discrimination. Fraudulent claims fuel these negative perceptions and attitudes to the detriment of all Canadians.

3It is against this backdrop that I must determine the sentence to be imposed on Sandra Zaher.

BACKGROUND

4Ms. Zaher was an immigration lawyer practicing in the City of Windsor. She was retained by a man named Gill, who told her that he was from India. Gill told Ms. Zaher that he had no problems in India but that he nonetheless wanted to stay in Canada. Ms. Zaher advised Gill that he could make a claim for refugee status. She fabricated a story that portrayed Gill as a victim of persecution in India. That story – which contained some truth, but much falsehood – was presented to an Immigration Officer in Windsor at Gill’s eligibility hearing, the first stage in a refugee claim.

5The eligibility hearing was interrupted when police entered the room to arrest Ms. Zaher. Gill was not a real client. He was an undercover RCMP officer, as was the man who posed as his translator. All of the meetings between Gill and Ms. Zaher were recorded. As a result of this police operation, Ms. Zaher was charged with three offences alleging the fabrication of a false claim for refugee protection. Following a lengthy trial, I found Ms. Zaher guilty on all three counts as follows:

Count 1: that she, with intent to mislead, fabricated a fraudulent claim for refugee protection in Canada with intent that it be used as evidence in a proposed judicial proceeding contrary to s. 137 of the Criminal Code²;

Count 2: that she did counsel, induce, aid or abet a person to contravene a provision of the Immigration and Refugee Protection Act by counselling the making of false statements in a claim for refugee status, contrary to s. 126 of the Immigration and Refugee Protection Act (IRPA); and

Count 3: that she did directly or indirectly misrepresent or withhold material facts relating to a relevant matter, that is misrepresentation of facts surrounding a claim for refugee status that induces or could induce an error in the administration of the act, contrary to s. 127(a) of the Immigration and Refugee Protection Act.

6I do not propose to repeat the facts in any detail here. They are set out in the lengthy reasons for judgment (see R. v. Zaher, 2016 ONSC 4414). Suffice it to say that I found that Ms. Zaher made up a story that was to form the basis of Gill’s refugee claim. While the story was based on an actual event in India, Gill had told Ms. Zaher that he was not at the event. Ms. Zaher’s story not only placed Gill at the event, but portrayed him as the victim of threats by the police. The core details necessary to ground the refugee claim were all untrue. Ms. Zaher testified at trial, claiming that she believed that the story was true. I rejected her testimony and found that it did not raise a reasonable doubt. My reasons included the following:

I have considered the testimony of Ms. Zaher with great care. In addition to hearing her testimony in court, I have reviewed the transcript of her evidence on multiple occasions. Having done so, I must reject her evidence. I do not accept her explanations for the statements and documents. I do not accept her testimony about what she was thinking at the relevant times. Rather, I find that her testimony was the product of an elaborate, after the fact reconstruction of the events. It is as if Ms. Zaher reviewed the transcripts and the documents with a view to creating a fictional narrative that would explain away the incriminating inferences. The problem is that the new narrative cannot be reconciled with the recorded communications and the documents. It is contradicted by the objective and undisputed evidence. It does not make sense. It is implausible. It does not accord with common sense.

POSITIONS OF COUNSEL

7Counts 2 and 3 are offences under the IRPA, which carry a maximum penalty of a fine of $100,000 or a term of imprisonment not exceeding five years, or both. Count 1, an offence under the Criminal Code, carries a maximum penalty of a term of imprisonment not exceeding 14 years.

8There is a stark contrast between the positions of the Crown and defence on sentence. The Crown advocates for a sentence of three to five years in the penitentiary. The defence seeks a conditional sentence. Because the offences were committed before August 9, 2012 (the date of amendments under the Safe Streets and Communities Act³), a conditional sentence is not statutorily barred in this case.

THE SENTENCING HEARING

9Various items were submitted as evidence at the sentencing hearing. In addition to the pre-sentence report, Ms. Zaher filed a brief containing character references from family members and persons in the community. That same volume contained two medical reports. The first, dated September 16, 2016, was authored by Dr. Andrea Steen, Ms. Zaher’s family physician. The second was a letter, dated August 26, 2016, from Dr. Sheldon Finkelstein, a psychiatrist who treated Ms. Zaher in 2011 and 2012. There is a publication ban in place regarding the details of an incident that occurred in Ms. Zaher’s youth.

10Dr. Steen testified on the sentencing hearing, as did Ms. Zaher.

11The Crown tendered a document authored by James McNamee, Director of Immigration Program Guidance at Immigration, Refugees and Citizenship Canada. This document was labelled a Victim Impact Statement, though it is more akin to a letter setting out background and context for the sentencing hearing. Mr. McNamee explained the operation of the refugee system in Canada and offered an opinion about the impact of Ms. Zaher’s conduct. While not a “victim impact statement” in the traditional sense, Ms. Zaher was content that the court receive Mr. McNamee’s unsworn letter and did not seek to cross-examine him on it.

THE OFFENDER

12Ms. Zaher is before the court as a 54-year-old first offender. She was raised by immigrant parents. She has been married for over 20 years and has two grown children.

13The character letters filed with the court confirm that Ms. Zaher was, for many years, a valued member of the legal community and the community at large. She was a hard working lawyer who offered affordable legal services to those who required her assistance. She cared deeply about her clients and often provided services with little regard for financial compensation. The reference letters attest to her integrity and professionalism in the practice of law.

14Ms. Zaher has confronted various challenges in her life. In 1994 she was involved in a devastating car accident, which left her in a state of chronic pain. She also suffered a closed head injury. According to her treating physician, Dr. Steen, this event contributed to Ms. Zaher’s states of depression, poor sleep, decreased concentration and increased anxiety. Dr. Steen reported that “the neurological review concluded she would have impaired cognitive function including memory function, judgment and decision making and she would be more likely to suffer from depression”.

15As a young woman, Ms. Zaher was the victim of a violent crime that left her feeling shame, depression and isolation. She distanced herself from others and began to engage in self-harming behaviours. This event continues to impact her life. In 2011, Ms. Zaher was experiencing an array of health issues. She was referred to a psychiatrist, Dr. Sheldon Finkelstein, whom she saw on various occasions in 2011 and 2012.

MOTIVE/FACTORS GIVING RISE TO THE OFFENCE

16In my reasons for judgment, I commented that I could not discern a clear motive for Ms. Zaher’s actions:

It is difficult to imagine why Ms. Zaher would jeopardize her liberty, her livelihood, and the quality of her life by fabricating a story for a refugee claimant. It is not clear to me what she had to gain. Ms. Zaher came across as a lawyer who was deeply committed to her profession and to the cause of helping her clients. She had done so for many years. It is not clear why she would cross the line into criminal activity. There was no significant prospect of financial profit – Ms. Zaher’s fees were extremely modest – though, as the Crown pointed out, Ms. Zaher’s practice was in financial difficulty. There may have been an incentive to “win” at all costs. There may have been other unknown factors at play. Human affairs are often complex and multi-faceted. In the end, I need not understand what motivated Ms. Zaher to act as she did. I need only be satisfied on the evidence that the Crown has proved her criminal activity beyond a reasonable doubt. My deliberations compel me to that conclusion.

The sentencing hearing did not shed significant light on that issue.

17This is, in part, because Ms. Zaher maintains that she did not intentionally fabricate the story. As explained by the author of the pre-sentence report:

With regard to the offences before the Court, the Offender stated that she was experiencing personal and psychological problems that interfered with her concentration and judgment. The Offender stated that she “did not intend to fabricate anything or counsel them to lie”. The offender stated, “I honestly believed he was too scared to be truthful” and advised she “misread the situation”. The Offender stated that she would not have risked her freedom and livelihood to purposefully engage in illicit behaviour and denies financial gain. The Offender stated her poor judgment does not excuse her actions for she reportedly takes full responsibility. She expressed her sadness for “putting the legal profession into disrepute”.

18Counsel for Ms. Zaher also submitted, during the sentencing hearing, that Ms. Zaher did not deliberately fabricate the story. The difficulty is that these assertions are directly contradicted by the findings of fact made at the trial. I found, as a fact, that Ms. Zaher knew that the story written for Gill was false. In fairness to counsel, she was not the lawyer at the trial. Nonetheless, I must disregard those submissions that are inconsistent with the findings underlying the verdicts.

19I stress that I do not regard Ms. Zaher’s assertions as an aggravating factor on sentence. It is her right to dispute the findings of fact and the findings of guilt, if she so wishes. While I am unpersuaded by those submissions, I do not draw an adverse inference from the fact that they were made. Where an offender acknowledges full responsibility, this will present as a mitigating factor on sentence. Where an offender fails to do so, it reflects the absence of a mitigating factor. It is not an aggravating factor and cannot be used to increase the penalty imposed.

20In her evidence at the sentencing hearing, Ms. Zaher offered some other explanations for the offences. She testified that she was experiencing serious psychological difficulties during the time that she dealt with Gill and, further, that she was very concerned about the welfare of Gill’s daughters. She testified that when her son turned 16 she became excessively worried about him. She said that she could not eat or sleep for fear that he might be molested. She saw Dr. Finklestein, a psychiatrist, between May 2011 and March 2012. She testified that she was on the verge of a nervous breakdown, as she had begun to remember certain events from her childhood. She testified that, despite her difficulties, she kept working as an immigration lawyer. She testified that her work meant everything to her; what gave her life meaning was helping victims of violence, in particular, women and children. According to Ms. Zaher, in February and March 2012 – the time frame of the offences – she felt like she “was losing her mind”. She could not sleep, could not focus and could not stop worrying about her son. She testified that she was not thinking clearly and just wanted to keep busy so she would not have to think.

21Ms. Zaher testified that, when she met with Gill, he told her that he had two daughters in India, who were in the custody of his wife. She testified that, when Gill started talking about his two little girls, she began to think that the girls would be molested without their father there to protect them. She testified that she was “thinking about those girls a lot” and mixing it up with what happened to her as a child. She testified that, because of this, “a lot of what he said to me wasn’t sinking in.” She testified that during this period she was overwhelmed by a lot of “really ugly flashbacks”, really intense fear for her child, and physical pain. She said that she was taking a lot of medication for everything but had to keep moving to avoid thinking. She testified that, in retrospect, she really should not have been working during that time; she should have taken a leave of absence.

22During cross-examination, Ms. Zaher was asked about her purported concern for the welfare of Gill’s daughters. She was confronted with the fact that she did not appear concerned about Gill’s daughters when she spoke with the undercover officers on the tapes. She responded that she “was not thinking clearly when interacting with the officers in this case” and that she “had a lot on my mind.”

23I have carefully considered Ms. Zaher’s testimony. I am troubled by this testimony in much the same way that I was troubled by her trial testimony. The explanations offered at the sentencing hearing seem inconsistent with the other evidence, most notably, the recordings of the intercepted communications. The interactions between Ms. Zaher and the undercover officers were played in court during the trial, and transcripts were filed as exhibits. These interactions offer no suggestion that Ms. Zaher was concerned about Gill’s daughters.

24The communications between the officers and Ms. Zaher span 206 pages of transcript. Of those, only four pages contain any reference at all to Gill’s daughters, and those references are of a passing nature. The daughters were first mentioned during the first interview on February 1, 2012:

Z: divorced, do you have children

UC: ya…ah the two g’ two little ah girl

Z: two girls, okay two daughters back home

UC: India ah huh

25The following exchange occurred during the second meeting on February 17, 2012:

S: because he has to send some money back to India too

Z: oh is he supporting like the daughters you mean

Conversation in Punjabi between UC and S

S: his mom and his ah he’s not, the thing is he’s separated from his wife

Z: ah yea

S: so he’s not really sending it to them but his mom and his mom’s sister there so he’s gonna send some money to them

Z: so he supports his mom

26The final mention took place on March 27, 2012:

Z: your daughters are only eight and ten, eh, they’re young

UC: Punjabi

Z: They’re very young

UC: Kiren

Z: mm hmm

UC: and Sonya

Z: mm hmmm yeah and Sonya, they’re very young

Conversation in Punjabi between UC and S

S: he’s thinking like he’s thinking about bringing in the daughters here one day, yeah

Z: mm hmm yeah he must ah, he could actually

S: its possible

Z: ahm as yeah, as a permanent resident of Canada he can put them down, he can even put his wife down they’re still married right they’re not divorced, right so if he wants

Conversation in Punjabi between UC and S

Z: He doesn’t want to (laugh)

27Ms. Zaher did not mention or ask about the daughters, save for a few remarks of a light-hearted nature. Ms. Zaher joked with Gill and the translator about children supporting their mothers. She joked about the fact that Gill might not want to bring his estranged wife to Canada. There is no indication that she was concerned or fearful about these young women.

28Nor is it clear how Gill’s refugee status would have helped his daughters. He may or may not have brought them to Canada, given that they were in the custody of his estranged spouse. This was not a case in which the client was in need of protection. Gill was in no apparent danger in India or anywhere else. He wanted to stay in Canada, not because of violence or persecution, but because he preferred life in Canada. Falsifying his claim did not protect the vulnerable; it undermined protection of persons who were genuinely at risk of harm. As Mr. McNamee put it in his letter to the court,

It is not a stretch to surmise that for every person who obtains protected persons status illegitimately, there is a deserving person that continues to suffer persecution or, at the very least, is delayed in gaining access to the refugee determination system. This is particularly concerning when Canada’s refugee determination system can only accommodate a limited number of persons a year and where conditions around the world dictate that the supply of those in need will always far exceed available spaces.

29I do not doubt that Ms. Zaher is generally concerned about the plight of women and children who are vulnerable to violence. I do not doubt that she has devoted much of her practice to helping such individuals. But I cannot accept that this played any role in the decisions she made in this case. The evidence does not bear this out. As with the trial evidence, I am forced to conclude that Ms. Zaher’s stated concern about Gill’s daughters is something that was arrived at after the fact.

30This takes me to the issue of the psychological difficulties. Ms. Zaher testified at the sentencing hearing that, at the time of the offences, she was dysfunctional, experiencing a nervous breakdown, and that she could not think straight. I accept that she was receiving treatment for various ailments during that time, including depression and chronic pain. She was coping with the after effects of trauma. She was experiencing depression and anxiety. The reports from Dr. Stein and Dr. Finkelstein confirm that she was seeking treatment and counselling for various problems during this time frame.

31I am sympathetic to those circumstances, but they do not appear to have any meaningful connection to the offences before the court. There is no apparent link between the physical and mental health concerns and the fabrication of Gill’s refugee story.

32Ms. Zaher made no mention of these issues in her trial testimony, which purported to explain her actions. Referring again to the intercepted communications, they tend to belie the suggestion that Ms. Zaher was operating in a state of extreme dysfunction. Throughout the interactions, Ms. Zaher appeared conversational, engaged, and in good humour. She was responsive and proactive in her dealings with the officers. She appeared attentive and competent. She had lengthy meetings with the officers and drafted various documents. The offences required a degree of concentrated focus, as Ms. Zaher set out to mold a believable story out of fact and fiction. The offence involved elements of planning and deliberation over a period of several weeks.

33I accept that Ms. Zaher was experiencing difficulties. I appreciate that some depressed individuals are able to conceal their illness and function quite effectively. The question is not whether she was experiencing health issues; the question is whether those health issues reduce the moral culpability of her actions; whether they are linked to the commission of the offences.

34The case of R. v. Ellis⁴ is instructive. There, the appellant, a member of the Immigration and Refugee Board met with a refugee claimant, offering to give her a positive decision on her claim in return for an intimate or sexual relationship. He was convicted of the offence of breach of trust by a public officer. Evidence was led that the appellant was suffering from bipolar disorder during the period of the offence. However, it was not clear that the event giving rise to the charge could be explained by the disorder. As was held by Strathy J.A., for the majority (Laskin J.A. dissenting),

111… While the appellant’s bipolar disorder may have affected his judgment at the time of the offence, it did not reduce his culpability to the point that a focus on his rehabilitation outweighed the need for a sentence consistent with denunciation and deterrence that would normally result from the abuse of his position of trust.

116The authorities, some of which were referred to by the trial judge, indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence. The trial judge will consider whether there a causal connection between the offender’s mental illness and the commission of the offence and, if so, whether it diminished the offender’s culpability.

35In this case, health difficulties affected Ms. Zaher at the time of the offences, but there is no indication that they led to the commission of the offences. Her ongoing health issues are relevant to sentence on compassionate grounds. I will address that below. These issues do not, however, significantly reduce the moral culpability of her actions. To borrow from the words of Ellis, above, they do not reduce “culpability to the point that a focus on his rehabilitation outweigh[s] the need for a sentence consistent with denunciation and deterrence.”

GRAVITY OF THE OFFENCES

36On any estimation, the offences before the court are very serious. They strike at the core of the immigration system in Canada. They undermine the integrity and perceived integrity of the Refugee Determination system. In R. v. Li⁵ Stromberg-Stein J. stated the following at para. 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.

37And at para. 9, Stromberg-Stein J. continued,

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.

38In R. v. Mendez⁶, Justice Dambrot found that these observations apply equally to those who present false refugee claims in Canada. I agree.

39The facts of Mendez are similar to those in this case, though Ms. Mendez was an immigration consultant, rather than a lawyer. She was found guilty of counselling false statements in connection with a claim for refugee status under the IRPA. Dambrot J. described the nature of the crime as follows:

18 It is obvious to me that Ms. Mendez is in fact a community-minded individual who has assisted immigrants in getting to 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 counseling 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 these offences as very serious, regardless of the extent of remuneration that she received.

40On this basis, Dambrot J. found that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing, stating,

19 In my view, having regard to the nature and circumstances of this offence, a conditional sentence is not consistent with the fundamental purpose and principles of sentencing, and, accordingly, I will not impose a conditional sentence. The offence itself strikes at the integrity of our immigration and refugee system and undermines public confidence in it.

20 … These considerations alone call for an emphasis on denunciation and general deterrence in imposing sentence in a case such as this one. That, of course, does not of itself eliminate the possibility of a conditional sentence. But 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 the offence she actually pleaded guilty to took place, I am convinced that only a sentence of actual imprisonment will adequately encourage respect for the law and sufficiently reflect denunciation of Ms. Mendez's conduct and general deterrence.

41He imposed a sentence of nine months imprisonment.

42Mendez has application to this case, but Ms. Zaher’s status as a lawyer presents as an additional aggravating factor. Lawyers stand in privileged positions within society. They have a duty to their clients, but also to the courts and tribunals in which they appear. Those who work within the immigration system as lawyers are expected to maintain high ethical standards of honesty and integrity. When a lawyer breaches the trust reposed in him or her by clients or by the system, a denunciatory and deterrent sentence must be imposed.

43In R. v. McLellan⁷, the accused was a solicitor who defrauded an 85-year-old client of $150,000. In upholding a sentence of 22 months in jail, Tulloch J.A. spoke about the adverse ripple effect of wrongdoing by lawyers:

27This court and other Canadian appellate courts have dealt with the significance and impact of lawyers who commit fraudulent breaches of trust within the context of their professional capacities. The primary sentencing principle at play in these types of cases is general deterrence and denunciation, or the repudiation of the conduct for which the offender was found guilty. The secondary considerations are specific deterrence, rehabilitation and any mitigating circumstances such as a plea of guilty or cooperation with the authorities: R. v. Scherer (1984), 16 C.C.C. (3d) 30 (Ont. C.A.), at p. 34.

28Doherty J.A. outlined why an offender’s status as a lawyer is a significant aggravating factor in R. v. Rosenfeld, 2009 ONCA 307, 94 O.R. (3d) 641, at para. 40:

[A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).

29Therefore, I agree with the trial judge that, notwithstanding the appellant’s personal challenges and triumphs, and despite his reputation in his community and his past good works, the fact that he is a lawyer who has used his professional capacity to facilitate the crimes for which he has been convicted is a significant aggravating factor.

44Ms. Zaher was not motivated by financial gain. This was not a case involving the theft or unlawful conversion of monies. However, the effect of her conduct was equally, if not more, serious. This case has a clear systemic dimension. Ms. Zaher’s actions threatened the very legitimacy of the immigration process and with it, the public trust that is so critical to its success.

OTHER PENALTIES

45Ms. Zaher has already suffered significant consequences as a result of these proceedings. She has lost her licence to practice law, and is now deprived of her livelihood and the ability to pursue her chosen profession. This is undoubtedly very punishing for someone who committed herself so fully to the practice of law. She has lost her reputation and standing within the community. She has experienced humiliation and stigma as a result of the convictions.

46These factors must be given some consideration in the determination of a fit penalty. In R. v. Bunn⁸, the Supreme Court of Canada upheld a conditional sentence for a lawyer who embezzled funds and said the following at para. 23:

[T]he court reasonably concluded that the ruin and humiliation that Mr. Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest.

See also R. v. Lazaro⁹.

47At the same time, loss of status should not be given undue prominence in the sentencing equation. Loss of esteem occurs whenever a professional breaches the trust of the community. Usually, the status lost is the very status that was exploited in order to commit the offences. It was because of Ms. Zaher’s privileged position as a lawyer that she was able to facilitate the fraudulent claim. She did not trade on her position to defraud vulnerable clients, as in some cases, but she did use her position to exploit the vulnerabilities of the immigration system. The experience of social censure is a relevant mitigating factor but does not necessarily oust the need for other penalties.

COMPASSIONATE CIRCUMSTANCES

48The final factor to be addressed is Ms. Zaher’s current health status. Earlier, I found that her mental health issues were not causally linked to the commission of the offences. Nonetheless, her current difficulties are relevant because they speak to her fragility and the potential impact of any given penalty.

49There is no doubt that the proceedings before this court and the related consequences have taken a toll on Ms. Zaher’s wellbeing. According to Dr. Steen,

Her anxiety has been severe. Her sleep and appetite have been greatly reduced. She is agitated and fidgety and feels she is unable to sit still or concentrate on anything. She is exhausted all the time and yet cannot sleep. She has isolated herself from friends and speaks very little about her situation because of embarrassment and also she does not want to burden others…

50Dr. Finkelstein wrote the following:

In summary, it is my opinion that Mrs. Saccucci-Zaher had a long standing psychological condition of clinical depression, anxiety, and severe marital dysfunction predating the events in question that strongly influenced her personal and professional choices and self-regulation. Subsequent to her arrest, she suffered from an acute stress reaction superimposed on her underlying condition… I have concerns about further deterioration in her mental state and the risk of self-harm prior to or during incarceration.

51The pre-sentence report described Ms. Zaher as “dejected”. In submissions, her lawyer referred to her as “broken”. Sadly, this is consistent with my own observations. I have witnessed an apparent decline in Ms. Zaher’s wellbeing since the time of the trial. During the sentencing hearing, she appeared to be in a state of emotional despair.

52The sentence imposed by the court must reflect the gravity of the crimes and the moral blameworthiness of the offender. But it must not ignore rehabilitation, and it must not be crushing. Some cases will call for an element of compassion or, as it is sometimes described, “mercy”. In R. v. Holt¹⁰, Dickson. J., (as she then was), quoted with approval from the decision of Healy J. in R. v. Bibeau¹¹:

12The role of compassion in sentencing requires particular attention and comment in certain cases. On occasion, justice without clemency may be injustice. Injustice in any form is to be assiduously avoided. As Shakespeare and others have observed over the centuries, we are elevated when mercy seasons justice.

13The words of Healy J. in R. v. Bibeau, 2011 QCCQ 6970 (C.Q.), on this topic bear repetition. He stated:

The place of mercy in Canadian penal justice is little developed in our jurisprudence. There is a deep uncertainty whether mercy can be accommodated within the positive law of sentencing or recognised only as an exceptional reason to depart from the ordinary principles of the positive law that would apply in a given case. In a narrower form mercy is apparent in some notions of mitigation for personal hardship. It may be seen also in decisions that seek to redress deprivations that would be cruel or pointless. But, in a broader sense, perhaps the most fertile ground for mercy is where the lawful power of courts can be used to allow hope to flourish if there is a chance of success. If there is such a chance, it may be argued that mercy provides a sufficient reason to depart from the path that would otherwise be dictated by retributive objectives within the positive law of sentencing.

Given Ms. Zaher’s current difficulties, the element of compassion does have a role to play in this case.

CONCLUSION

53This is a difficult sentencing decision. There are many considerations at play. I am mindful of the need to tailor a sentence that is proportionate, having regard to the individual circumstances of the case. As it was recently put by the Supreme Court of Canada in R. v. Lacasse¹².

This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: See s. 718.2(a) and (b) of the Criminal Code.

The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed.

54Similarly, the court held that “sentencing ranges are primarily guidelines and not hard and fast rules”.¹³

55The sentence imposed in this case must not be crushing. It must account for the prospect of rehabilitation and the need for compassion. But it must also reflect the profound gravity of the offence, made more serious by the offender’s status as a lawyer.

56I have considered the defence request for a conditional sentence. I am satisfied that a sentence of two years or less would represent a fit disposition. I am satisfied that Ms. Zaher would not present a danger to the community if permitted to serve her sentence in the community. There is no mandatory minimum penalty. The sticking point is the final requirement, namely, that a conditional sentence “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code”.

57In this case, principles of general deterrence and denunciation are paramount. Because the system relies on self-reporting, offences involving fraudulent claims must be dealt with severely. Lawyers are gatekeepers. They have a duty to vigilantly represent their clients’ interests, but they are also obliged to prevent the system from being abused through fraud. When a lawyer breaches that obligation, by perpetuating a fraud on the system, the sentence must send a message to like-minded offenders and the community at large that the conduct will not be tolerated. This is necessary to deter others from exploiting the system, and to persuade the public that it is less likely to be exploited.

58The decisions of the Court of Appeal for Ontario in R. v. Ellis, and Dambrot J. in Mendez highlight the importance of deterrence and denunciation. I conclude, with some measure of regret, that a conditional sentence would not adequately address these principles. A sentence of real jail must be imposed. I say this despite Ms. Zaher’s positive antecedents, her character references, and her noble commitment to the practice of law, through which she assisted many clients in need. These are important mitigating factors, but they do not outweigh the need for a sentence that reflects the nature and gravity of the crimes.

59The same may be said of Ms. Zaher’s psychological health. She is experiencing emotional difficulties attributable to, among other things, the stress of these proceedings. I am satisfied there should be some reduction of the sentence on compassionate grounds. Again, however, this principle is not so compelling as to allow for a disposition in the conditional sentence range. I am hopeful that Ms. Zaher’s current needs can be addressed in the context of a custodial sentence. Ms. Zaher testified that she is receiving psychological counselling and that it has been of assistance. Ideally, she will continue that process during the period of her incarceration. The correctional and parole authorities are well situated to monitor and assess Ms. Zaher’s condition on an ongoing basis.

60The Crown asked for a sentence between three and five years. I have already expressed the view that a sentence in the reformatory range is the more appropriate disposition. Taking into account the mitigating and aggravating factors, and compassionate circumstances, I find that the principle of proportionality is best served by a sentence of 12 months incarceration on each count, concurrent. I recommend to the correctional authorities that Ms. Zaher be placed in a facility where she has access to meaningful psychological counselling and support. While my recommendation does not bind correctional officials, I implore the authorities to ensure that all appropriate medical and psychological treatment is made available to Ms. Zaher. I ask that there be careful assessment of the extent to which her health difficulties might require special measures to ensure her wellbeing.

61Finally, the Crown has requested a fine in lieu of forfeiture. The Crown seeks repayment of the legal fees that were advanced to Ms. Zaher by the undercover officers. In effect, the Crown seeks to be partially reimbursed for the cost of investigating the crime. I fail to see how this would meaningfully advance the public interest, and I decline to make that order.

Footnotes

1. 1S.C. 2001, c. 27 (“IRPA”).
2. 2R.S.C. 1985, c. C-46.
3. 3S.C. 2012, c. 1.
4. 42013 ONCA 739, 312 O.A.C. 328.
5. 52001 BCSC 458, 14 Imm. L.R. (3d) 225.
6. 6[2004] O.J. No. 5733 (S.C.).
7. 72012 ONCA 717, 398 O.A.C. 234.
8. 82000 SCC 9, [2000] 1 S.C.R. 183.
9. 92016 ONCJ 676.
10. 102012 BCSC 4008.
11. 112011 QCCQ 6970.
12. 122015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53-54.
13. 13Ibid, at para. 60.