R. v. Albinowski 2022 ONSC 956

COURT FILE NO.: 16-72

DATE: 20220225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAREK ALBINOWSKI

Applicant

Jeannine Plamondon and Giuseppe Cipriano, counsel for the Respondent Crown

John Hale, counsel for the Applicant

HEARD: November 17, 2021

reasons for Decision on Constitutionality of s. 117(3.1)(a) of the Immigration and Refugee Protection Act

Champagne j.

1On June 11, 2021, Marek Albinowski was found guilty of one count of conspiracy to commit human smuggling into the United States of America contrary to 8 U.S.C. § 1324(a) (2012) and s. 465 of Canada’s Criminal Code, R.S.C., 1985, c. C-46. He was also found guilty of being in possession of proceeds of crime contrary to s. 354 and s. 355 of the Criminal Code.

2Mr. Albinowski challenges the constitutionality of the three-year mandatory minimum sentence required by s. 117(3.1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

Facts

3At trial, Mr. Albinowski was found to have participated in a conspiracy to smuggle Polish migrants across the US border to New York State from Cornwall Island, which is located on the Ontario portion of the Akwesasne Reserve. He was found to have done so on three occasions: on August 8, 2014; September 2/3, 2014; and September 8/9, 2014. Mr. Albinowski was also found to have assisted migrants in crossing the US border on March 28, 2014, but it was unclear as to whether there were any other participants involved. In addition, he was found to have been in possession of proceeds of crime.

4The conspiracy to smuggle migrants was comprised of Mr. Albinowski, Wladyslaw Pipien and Robert Fitzsimmons as well as unknown others. The plan involved bringing Polish migrants illegally to New York State from Cornwall Island by watercraft.

5To understand the smuggling operation, one must understand the geography of the area where the smuggling took place. The Akwesasne reserve is geographically complicated. It includes Cornwall Island, an Ontario island in the St. Lawrence River proximate to the City of Cornwall, and it also includes land in New York State contiguous to land in the Province of Quebec. The US port of entry is across the Seaway International Bridge in Massena, New York. The Canadian port of entry is on the opposite side of the bridge in the City of Cornwall. Cornwall Island is between the two ports of entry and to get to and from Cornwall Island from the Canadian side, residents must stop at the Canadian port of entry. One can avoid the ports of entry in either New York State or Ontario by crossing the St. Lawrence River by watercraft where landing points have no port of entry.

6On August 8, 2014, Mr. Albinowski and his friend Mr. Pipien rented separate vehicles from two separate locations in Toronto and undertook to smuggle a Polish couple, Kryztopf and Barbara Tzrop, to New York State from Canada. Mr. Albinowski arranged for Mr. Pipien to pick up the Trzops in Toronto and drive them to Kingston where they stayed overnight. Mr. Albinowski had Mr. Pipien collect a $17,000 fee from the Trzops, and he followed him to Kingston where the Trzops stayed in a hotel. Mr. Albinowski and Mr. Pipien stayed in a different hotel nearby. The following day, Mr. Pipien picked up the Trzops and drove them to a rest stop near the Ontario/Quebec border. From there the Trzops were picked up by another party and were transported to Cornwall Island. From Cornwall Island, the Trzops were taken by boat across the St. Lawrence River and were picked up in New York State by a waiting car. They were caught by US authorities and gave a statement implicating Mr. Pipien and Mr. Albinowski. They said they had been in the US illegally together with their children and had to return to Poland to see to a sick relative. They left their children in the US and were trying to return to them after their visit to Poland but they did not have the documentation required. The Trzops were convicted of crossing the border illegally and were deported.

7By September 2/3, 2014, Mr. Albinowski and Mr. Pipien came to the attention of the police and were under surveillance. Just as they had done in August, they both rented separate vehicles from separate locations in Toronto. Mr. Pipien was observed picking up three male Polish immigrants in a parking lot at 3300 Dufferin Road, Toronto. He drove them to Kingston. Mr. Albinowski was observed following Mr. Pipien at a distance. The three migrants stayed in the same hotel the Trzops had previously stayed at, and Mr. Albinowski and Mr. Pipien stayed in the same separate hotel they had stayed at in August. The following day, Mr. Pipien picked up the migrants and drove them to a rest stop near the Ontario/Quebec border. Mr. Albinowski was again observed following at a distance and this time, at the rest stop, Mr. Albinowski was seen getting into a taxi. The driver of the taxi, Robert Fitzsimmons, was involved in the operation and was paid $300 by Mr. Albinowski to transport the migrants from the rest stop to Cornwall Island. Such a fare is normally $80. The migrants were later arrested in the US and were deported.

8On September 8/9, 2014, Mr. Albinowski and Mr. Pipien were under surveillance by police again. Again, they each rented separate cars and Mr. Pipien was seen picking up two Polish women from the parking lot at 3300 Dufferin Road, Toronto. He drove them to Kingston followed at some distance by Mr. Albinowski. The women stayed in the same hotel at which the two previous group of migrants had stayed, and Mr. Pipien and Mr. Albinowski stayed at a separate hotel. The following day, as he had on the two previous occasions above, Mr. Pipien picked up the two Polish women and drove them to a rest stop near the Quebec/Ontario border followed at a distance by Mr. Albinowski. Mr. Albinowski was observed getting into Mr. Fitzsimmon’s parked taxi, and after he exited the taxi, Mr. Fitzsimmons drove to a location at the rest stop where he picked up the two Polish women and drove them to Cornwall Island. As had occurred previously, Mr. Fitzsimmons was paid more than three times the normal fare for that trip. On his way back across the port of entry in Cornwall, Mr. Fitzsimmons was questioned by a border officer about the purpose of his trip and he became extremely concerned. He called Mr. Albinowski to report there might be a problem and to tell him he was no longer prepared to drive migrants to Cornwall Island. The plan was abandoned, and the women returned to Toronto.

9On October 15, 2014, police attended Mr. Albinowski’s home with a search warrant where they seized large sums of cash, numerous cellular phones, hotel receipts, car rental receipts, a piece of paper with the name “Kryztopf Trzop” on it as well as other documents tying Mr. Albinowski to the smuggling operation. He was arrested on that date.

Position of the Parties

The Applicant’s Position

10The applicant’s position is that the three-year mandatory minimum sentence under s. 117(3.1) of the IRPA violates s. 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual treatment or punishment, and is not justifiable under s. 1. The applicant argues that the three-year mandatory minimum sentence is grossly disproportionate, particularly for persons who play a minor role for little profit – people like Mr. Fitzsimmons for example.

11The applicant concedes that the objectives of the amended provisions in s. 117(3.1) are valid. The section, amended in 2012, is aimed at stopping human smuggling by increasing penalties for people who engage in the activity for profit or who endanger the lives of the migrants. While acknowledging the legitimacy of the objectives, the applicant argues the mandatory minimum sentence must be proportional to the objective, and he submits it is not.

The Respondent’s Position

12The respondent’s position is that the mandatory minimum sentence is not grossly disproportionate to the applicant nor to a hypothetical reasonably foreseeable person. The respondent argues that the Supreme Court of Canada set a high bar for what constitutes cruel and unusual punishment and contends that the high threshold has not been met.

Analysis

13Section 117(3.1)(a) of the IRPA provides that where, on an indictment, a person is convicted of the human smuggling of fewer than 50 persons, that individual is liable to a minimum three-year term of imprisonment where (i) the lives of those smuggled were endangered, or where they caused bodily harm or death to those smuggled, or (ii) if the commission of the offence was for profit, or was for the benefit of, at the direction of, or in association with a criminal organization or terrorist group.

14On the facts found at trial, the mandatory minimum sentence is applicable to Mr. Albinowski, as I found that the offence was committed for profit.

15The amendments to s. 117 of the IRPA received Royal Assent on June 28, 2012, and apart from the imposition of a mandatory minimum, the section now applies to anyone seeking to organize, induce, aid or abet the coming into Canada of an individual in contravention of the IRPA and is no longer confined to those entering simply without necessary documents. In addition, the requirement that the Crown prove an accused knew that the people seeking entry to Canada were undocumented has been replaced by proof of “recklessness” as to whether persons seeking to enter Canada would be in contravention of the IRPA.

16In R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, the Supreme Court of Canada considered the constitutionality of the previous version of s. 117. In a unanimous decision, the Court found the section to be overbroad and found that the appropriate remedy was to read down the section. In reading down the section, the Supreme Court found that the section did not apply to persons involved in providing humanitarian aid to asylum-seekers nor to asylum seekers who provide one another with mutual aid. The issue before the court in Appulonappa did not relate to the amended section, thus its constitutionality was not considered. In R. v. Boule, 2020 BCSC 1846, at paras. 53 and 165, Iyer J. concluded that the amendments to s. 117 made the legislative purpose of the section even broader but held that reading down the legislation in the same way as in Appulonappa was sufficient to address the legislation’s overbreadth and maintain compliance with s. 7 of the Charter.

Objectives of S. 117

17There is no doubt the reason for the amendments to s. 117 is to deter individuals from assisting migrants to cross our borders illegally. Human smuggling is an offence which potentially puts migrants in harms way, risks the integrity of borders all around the globe and can endanger a country’s security, economy and its citizens’ public safety.

18One only need to look to R. v. Li, 2001 BCSC 458, 14 Imm. L.R. (3d) 225, B010 v. Canada (Minister of Citizenship and Immigration) 2015 SCC 58, [2015] 3 S.C.R. 704, and R. v. McDonald, 2018 ONSC 1270, aff’d 2019 ONCA 367, to understand how some smugglers prey upon vulnerable and desperate migrants, taking their life savings and sending them on life-threatening journeys in inhumane conditions, which in some instances have led to the deaths of those crossing. The Supreme Court of Canada in B010 noted that the smuggler’s activities are often controlled by extensive transnational criminal organizations.

19Apart from the risk to migrants, human smuggling is said to cost Canadian taxpayers hundreds of millions of dollars per year, and effective border control impacts public health, public safety and our corrections system: see Li, at para. 8; R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at para. 31.

20I accept that these objectives are legitimate, pressing and substantial. The applicant concedes that they are but argues that the mandatory minimum sentence is not a proportional means to achieving those objectives.

Section 12 of the Charter

21Section 12 of the Charter gives all persons the right to be free from cruel and unusual punishment or treatment by the state. The Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, considered the impact of the mandatory minimum sentence for a conviction of possessing a firearm contrary to s. 95(1) of the Criminal Code on an offender’s rights pursuant to s. 12 of the Charter. The result was that the mandatory minimum sentence was declared unconstitutional and of no force and effect under s. 52 of the Constitution Act, 1982.

22In order to challenge the mandatory minimum sentence, an applicant must show that the sentence is grossly disproportionate to either the offender or another person in a reasonably foreseeable situation: see Nur, at para. 65. Mr. Albinowski concedes that the mandatory minimum sentence is not grossly disproportionate as it applies to him. Rather, he argues that it is grossly disproportionate to a hypothetical reasonably foreseeable individual who is a minor participant in a human smuggling scheme for modest or little profit.

Hypothetical Reasonably Foreseeable Situation/Person

23Mr. Albinowski argues that a three-year sentence would be grossly disproportionate for a minor participant in a human smuggling scheme who receives little compensation. He points to Mr. Fitzsimmons as an example of such an individual. Mr. Fitzsimmons was initially charged as a participant in the operation but was offered immunity from prosecution in July 2020 in exchange for his testimony at Mr. Albinowski’s trial. He drove migrants to Cornwall Island on at least two occasions for $300 per trip when that trip would normally pay $80. He was at the very least willfully blind if not complicit as to the nature of the operation, and the receipt of $300 per trip means he participated in the scheme for profit. On the facts, he would likely have been convicted had he been prosecuted, and he would have faced a three-year minimum sentence regardless of whether he had a criminal record or not and regardless of whether he had done it only one time or for less money. Mr. Albinowski’s counsel suggested Mr. Fitzsimmons could be subject to a three-year sentence if he transported migrants one time for as little as $25. He also suggested another hypothetical situation where two people decide to assist someone to cross the border to reunite with family and do so for modest profit. In such circumstances, is a three-year sentence grossly disproportionate? Counsel for Mr. Albinowski argues that such a sentence would be extreme and grossly disproportionate. Defence counsel argues that the mandatory minimum penalty would apply regardless of how many people were smuggled, how many incidents, how much profit was made or what the reason for smuggling was.

24The Crown takes issue with Mr. Albinowski’s other hypothetical situations, arguing that they are far-fetched and marginally imaginable and would not be reasonably expected to arise: see Nur, at para. 54. The Crown submits that defence counsel’s hypothetical regarding two people assisting a third to reunite with family could well fall under humanitarian grounds even if there was a modest profit, thus such an individual would not be convicted under s. 117. The Crown further submits that someone like Mr. Fitzsimmons would not take the risk of transporting migrants and getting caught for a smaller sum of money.

25I do not accept the Crown’s argument. I am guided by Chief Justice McLachlin’s analysis at para 68 in Nur which was expanded in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, providing additional direction by our highest court regarding “hypothetical” offenders in the context of s. 12 challenges. At para. 55, the court sets out that in some circumstances, the reasonable hypothetical may be a real person who is not before the court and establishes the reasonableness of using such an individual’s characteristics and case to measure the constitutionality of the mandatory minimum sentence.

26In addition to considering Mr. Fitzsimmons’ precise situation, I consider the accused in the case of R. v. Alli, 2015 ONSC 2957. Mr. Alli agreed to transport migrants just one time as a favour to his brother for just a little more than a $100 for a trip between Toronto and Cornwall. The offence took place in May 2012, prior to the amendments to s. 117. Mr. Alli was paid slightly more than $100 to cover gas and would have had a little left over (this was 2012). While Leroy J. acknowledged the existence of the mandatory minimum sentence, he noted the offence predated the amendments and he sentenced Mr. Alli to a six-month conditional sentence taking into consideration Mr. Alli’s personal circumstances as well as the circumstances surrounding the offence.

27In my view, the situations of both Mr. Fitzsimmons and Mr. Alli are reasonably foreseeable situations where a mandatory minimum sentence could be grossly disproportionate.

28The Crown submits that a three-year sentence for someone like Mr. Fitzsimmons would in fact not be grossly disproportionate, stating there was evidence Mr. Fitzsimmons was transporting migrants as part of a criminal organization, making more money than a regular fare, using evasive tactics on the trips and having no regard for who he was transporting. The Crown concedes such a sentence might be excessive but submits that is not the test. An excessive sentence does not make it grossly disproportionate: see Nur, at para. 39; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at pp. 1089-90.

29In assessing whether the three-year sentence would be grossly disproportionate for Mr. Fitzsimmons or for someone like Mr. Alli, I am mindful of the two-part test set out by McLachlin C.J.C. in Nur, at para. 46:

To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

30To determine a fit and proportionate sentence, I look first to s. 718 of the Criminal Code. That section provides that the sanction imposed by the Court should have one or more of the following objectives:

a. To denounce unlawful conduct;

b. To deter the offender and other persons from committing offences;

c. To 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 in offenders, and acknowledgment of the harm done to victims and to the community.

31In addition, any sentence I would contemplate imposing must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code, s. 718.1. Within this context, I would also have to take into account the aggravating and mitigating circumstances surrounding the offence and the offender.

32I also consider the fact that Mr. Fitzsimmons was not prosecuted for his role in the smuggling, and Mr. Pipien, who played a lesser but nonetheless significant role, was given a 15-month conditional sentence and house arrest.

33The sentencing exercise also requires me to take into account the range of sentences for human smuggling. The Crown contends that sentences in smuggling cases range from twelve months jail on the low end, three to five years in the mid-range and ten years for more egregious situations and submits a number of cases in support of its contention, including R. v. Patel, 2018 QCCQ 8566, at para. 39; R. v. Prone (July 6, 2012), file no. 56379-2 (B.C. P.C.) (unreported); R. v. Rafiq, 2018 ABPC 117, at para. 11. The defence produced two additional cases which predated the s. 117 amendments in which convictions resulted in conditional sentences: see Alli; R. v. Cenolli, 2015 ONSC 468.

34Most of the sentencing decisions for convictions under s. 117 of the IRPA predate the 2012 amendments. In Alli, on May 24, 2012, the accused had been asked by his brother to drive from Toronto to Cornwall to pick up some people and drive them back to Toronto. He was told he would receive $100 for the trip. He agreed without asking too many questions, but his brother did tell him that the people he was picking up did not have legitimate documents to be in Canada. He said he intended to question his brother about this once they returned to Toronto. He attended Cornwall Island where six Nigerian migrants arrived by boat and got into his vehicle together with his brother. Finding Mr. Alli willfully blind, Leroy J. found that while the accused was unaware of the plan or the organization involved, he knew the people he was transporting did not have the requisite documents to come to Canada, and once in Cornwall, he knew they had arrived by boat and not through a port of entry. He was found guilty of conspiring to commit human smuggling. Taking the circumstances of Mr. Alli’s somewhat unwitting participation in the scheme, as well as the fact that he did it for predominantly altruistic purposes, Leroy J. acknowledged the new mandatory minimum sentence but was not bound by it as the offence pre-dated the amendments. In sentencing Mr. Alli to a six-month conditional sentence, Leroy J. stated “[p]roportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.”: Alli, at para. 17.

35In R. v. Cenolli, 2015 ONSC 468, the accused played a significant role in a human smuggling scheme. He drove a migrant from London to Windsor where he had organized the transport of the migrants by boat to the USA. He was sentenced to a two-year conditional sentence.

36In Patel, the accused was heavily involved in a highly organized human smuggling business. He was found to have smuggled 19 people in 10 months, was in possession of fraudulent documents and was said to have been involved in a large criminal organization. He was sentenced to a six-year penitentiary sentence.

37In Rafiq, the accused pleaded guilty to a number of immigration offences, including under s. 117(1), and the sentencing judge noted the offender played a “low level but essential role in the scheme as the escort or handler”. He was only sentenced to two years, notwithstanding the mandatory minimum sentence, as the judge was not satisfied that the factors which triggered such a sentence applied since the accused did not receive a cash “profit”; rather, he received a free airline ticket from Pakistan to Canada.

38Having reviewed the caselaw, I find that sentences for human smuggling convictions range from conditional sentences to lengthier penitentiary sentences. Much depends on the facts upon which a conviction was registered as well as an individual’s personal situation: see Criminal Code, s. 718. In my view, a fit sentence for someone like Mr. Alli or Mr. Fitzsimmons would be a conditional sentence. While denunciation and deterrence may be paramount, sentencing is still an individualized exercise which takes into consideration the actual circumstances surrounding the offence as well as the individual’s personal circumstances. In the case of Mr. Fitzsimmons, the migrants he transported were not physically harmed, and there is no evidence they faced the types of inhumane and dangerous situations faced by migrants such as those in Li, B010 or McDonald. In one case, they were deported and in the other, the plan was abandoned and the migrants returned to Toronto. Mr. Fitzsimmons’ role was minor when compared to Mr. Albinowski’s and Mr. Pipien’s, and the evidence was that he had no criminal record and was a contributing member of society who held a job driving taxis. I would find a three-year sentence in any circumstances such as these to be beyond excessive, crossing the threshold of gross disproportionality. In my view, such a sentence would indeed “shock the conscience” of any reasonably informed member of the public.

39A conditional sentence would also be appropriate for Mr. Alli or someone similarly situated. He played an even more minor role than Mr. Fitzsimmons, conducting transportation on only one occasion and for little financial gain. While it could be argued his financial gain was so small as to not constitute profit, it is reasonably foreseeable that someone similarly situated would do it for a slightly higher fee. If such an individual engaged in smuggling on one occasion for a small or modest profit, he/she/they could certainly be prosecuted and convicted, particularly as the language of the section has been broadened to include recklessness as to the status of a person attempting to cross into Canada. The migrants in Alli were not harmed and there was no evidence they were endangered; moreover, Mr. Alli had no knowledge of the larger organization involved. If someone in such circumstances had no criminal record and was otherwise a contributing member of society, a three-year sentence would be grossly disproportionate and would violate the sentencing principles set out in s. 718 of the Criminal Code.

40In the event that an applicant convinces the court that a sentence is grossly disproportionate, the court must conduct an Oakes analysis, as reiterated by McLachlin C.J.C., writing for the majority in Nur, at para. 111:

To justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1.

41Mr. Albinowski accepts that there is a rational connection between the sentencing provision and the objectives of s. 117. He argues that the provision does not minimally impair the right in question and is not proportional as between its deleterious and salutary effects.

42The analysis of whether the provision minimally impairs the hypothetical person’s s. 12 rights requires me to ask if there are less harmful ways of achieving the provision’s goal (Nur para 16). On Mr. Fitzsimmons’ facts as well as the facts in Alli, I conclude there are. A shorter sentence or a conditional sentence with house arrest conditions and a limit on social contacts are examples of less harmful means. Conditional sentences restrict an individual’s liberty and social contact and can be particularly onerous as they are usually longer than a jail sentence. Shorter jail sentences of up to three years in length are not trifling and would also be onerous and difficult for a first offender. In my view, either would be appropriate depending on the circumstances and would obviously be less harmful than a three-year sentence. Such sentences would achieve the objectives of s. 117 by denouncing the impugned conduct and would be a deterrent to repeat offences by first-time offenders or to those who might contemplate even limited involvement in human smuggling.

43The Crown fairly concedes that if this court finds the mandatory minimum sentence grossly disproportionate, it does not survive an analysis under s. 1. I agree. McLachlin C.J.C. made that clear in Nur para 118 in which she stated, “In light of the conclusion that the mandatory minimum terms of imprisonment in s. 95 when the Crown proceeds by indictment are grossly disproportionate, I do not find that the limits are a proportionate justification under s. 1.”

44In all of the circumstances, I find s. 117(3.1)(a) of the IRPA violates s. 12 of the Charter and is therefore unconstitutional and of no force and effect under s. 52 of the Constitution Act, 1982.

The Honourable Justice Nathalie Champagne