HER MAJESTY THE QUEEN v. HASSAN AL-AWAID BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK, 2015 NSPC 52

IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. Al-Awaid, 2015 NSSC 42 , 2015 NSPC 52 Date: August 28, 2015 Docket: 2264927 2528307 2264928 2728332 2264929 2728333 2264930 2728334 2287805 2728335 2287806 2728336 2287807 2728337 2287808 2727338 2287809 2528302 Registry: Halifax BETWEEN: HER MAJESTY THE QUEEN v. HASSAN AL-AWAID BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK HEARD: March 27, April 10, May 26, and July 16, 2015 DECISION: August 28, 2015 CHARGES: section 29(2)(

a) x 10 Citizenship Act;

section 126 x 8 Immigration and Refugee Protection Act COUNSEL: Timothy McLaughlin and Ronda Vanderhoek, for the Crown Ian Hutchison, for Hassan Al-Awaid By the Court: Introduction [1] Hassan Al-Awaid has pleaded guilty to eight offences under the Immigration and Refugee Protection Act (“IRPA”) and tenoffences under the Citizenship Act. The IRPA offences were all committed in the Halifax Regional Municipality over a period of years,spanning November 1, 2002 to July 2011. The Citizenship Act offences were committed in relation to three individuals in the period ofFebruary 2006 to July 2011. [2] Mr.

Al-Awaid worked as an immigration consultant. Prospective citizenship applicants and permanent residents used his servicesto deal with the residency requirements associated with their applications for citizenship or to maintain their Permanent Resident status.Mr. Al-Awaid assisted his clients with the preparation of the required forms for Citizenship and Immigration Canada (CIC) and obtainedsupporting documentation where necessary. In 2007 some suspicious documentation led to an investigation by the authorities. Theinvestigation revealed that Mr.

Al-Awaid was operating a business that assisted clients circumvent their residency requirements. [3] The Crown proceeded by indictment against Mr. Al-Awaid. Consequently, under

section 128 of IRPA, the maximum term ofimprisonment is five years in prison. The Crown is seeking a three year penitentiary term for the IRPA offences. The Defence submitsthat a two year less a day conditional sentence is appropriate. There is a joint recommendation for a $4000 fine for the Citizenship Actoffences. [4] There are a number of mitigating factors in Mr. Al-Awaid’s case, including his serious health issues. The Crown indicates that themitigating factors have influenced the Crown’s position on the appropriate sentence for Mr.

Al-Awaid on the IRPA charges and submitsthat any mitigatory effect of various factors, including Mr. Al-Awaid’s health, do not justify a sentence less than three years in prison.

[ 5 ] This is a difficult sentencing which has caused me much anxious reflection. Mr. Al-Awaid is guilty of perpetrating a protracted for-profit scheme designed to mislead Citizenship and Immigration Canada (CIC). His serious offences justify a custodial sentence. Mr. Al-Awaid does not suggest otherwise. It is his submission that the applicable principles of denunciation and deterrence can be effectively served by a conditional sentence of imprisonment. In support of this option, considerable evidence has been presented about Mr. Al- Awaid’s previous good character and his health problems.

In the Crown’s submission anything less than a prison term is inadequate. The Offences to which Mr. Al-Awaid has Pleaded Guilty [ 6 ] The IRPA offences were committed by Mr. Al-Awaid having knowingly counseled, induced, aided or abetted permanent residents in relation to the immigration and citizenship applications of numerous individuals. The Citizenship Act offences involved Mr. Al-Awaid making false representations on behalf of certain individuals in relation to their applications for citizenship. As the Crown put it in its written submissions, Mr.

Al-Awaid provided a range of services to his clients which facilitated the appearance of legitimacy; he enabled clients to falsify the documentation they submitted to maintain their permanent residency status and subsequently obtain Canadian citizenship. [ 7 ] The specifics of Mr. Al-Awaid’s offences are described in the charges to which he has pleaded guilty: Information 695760 – Immigration and Refugee Protection Act Charges • Between August 1 st , 2006 and May 29 th , 2009, Mr.

Al-Awaid knowingly counselled, induced, aided, or abetted Abdullah Siddiqui, Uzma Aslam, Khaldoun Halasa and Nadia Iskander to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing and offence pursuant to s. 126 of the Act ; • Between October 1 st , 2006 and July 8 th , 2009 Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Bassam Chilmeran, May Al-Chalabi, Vladimir Krastev to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; • Between July 17 th , 2006 and May 22 nd , 2009 Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Syed Mahmud, Mohamed Abdalaai, to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; • Between Jan 28 th , 2004 and April 1 st , 2009 Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Faris Abu-Dayeh, Abeer Sabanekh, Majeda Omar, George Mushawar, to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; • Between September 17 th , 2003 and October 21 st , 2008, Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Assaad El Abbas, Mustafa Al-Mehdawi, Hind Malhas, Nagham Malhas, to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; • Between November 1 st , 2002 and March 30 th , 2009 Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Mohd Morelly, Ziad Musleh, Wael Kamal, Rozana Al Labadi, Sherif Assran, Iman El-Meniawy, Ziyad Al-Zabet, Areej Salah, Neveen Khalaf, Samir Kattan, Maha Quossos, Issam Nehlawi, Roudayna Nhanna Nehlawi, to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; • Between June 9 th , 2005 and June 3 rd , 2009 Mr.

Al-Awaid knowingly counselled, induced, aided or abetted Effah Dajani to directly or indirect misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to s. 126 of the Act ; Information 667024 - Immigration and Refugee Protection Act Charges • Between August 7 th , 2007 and July 26 th , 2011, knowingly counselled, induced, aided, or abetted Polina Dimitrova to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induced, or could have induced an error in the administration of the Immigration and Refugee Protection Act contrary to

Section 126 of the Act . Information 623732 – Citizenship Act Charges • Between February 6th, 2006 and January 17 th , 2008 on behalf of Majeda Omar, Mr. Al-Awaid made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act ; • Between August, 2006 – date unknown - and January 1 st , 2008, Mr. Al-Awaid, on behalf of Khaldoun Halasa and Nadia Iskinder, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act ; • Between August 9 th , 2004 and January 6 th , 2008 Mr. Al-Awaid, on behalf of Bassam Chilmeran and May Al Chalabi, made false representation, committed fraud and knowingly concealed material circumstances, contrary to Section 29(2)(

a) of the Citizenship Act ;

• Between June 10 th , 2004 and January 3 rd , 2008 Mr. Al-Awaid on behalf of Mohd Morelly, made false representation, committed fraud and knowingly concealed material circumstances, contrary to Section 29(2)(

a) of the Citizenship Act . Information 628115 – Citizenship Act Charges • Between January 19 th , 2008 and December 23 rd , 2008 Mr. Al-Awaid on behalf of Vladimir Krastev, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act ; • Between December 19 th , 2006 and December 29 th , 2008, Mr. Al-Awaid on behalf of Mohamed Abdalaal, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act ; • Between July 17 th , 2006 and December 15 th , 2008 Mr. Al-Awaid on behalf of Syed Mahmud, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act ; • Between June 10 th , 2004 and March 6 th , 2008, Mr. Al-Awaid on behalf of Rima Dib, made false representation, committed fraud and knowingly concealed material circumstances, contrary to Section 29(2)(

a) of the Citizenship Act ; • Between December 10 th , 2006 and December 22 nd , 2008, Mr. Al-Awaid on behalf of Abdullah Siddiqui and Uzma Aslam, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act . Information 667021 – Citizenship Act Charge • Between August 7 th , 2007 and July 26 th , 2011 Mr. Al-Awaid on behalf of Polina Dimitrova, made false representation, committed fraud and knowingly concealed material circumstances contrary to Section 29(2)(

a) of the Citizenship Act . Facts [ 8 ] The following recital of the facts is extracted from the Crown’s sentencing brief and presentation of the facts on May 26, 2015. The description of the facts in the Crown’s brief occupies approximately 35 pages, detailing the specific services Mr. Al-Awaid provided to clients that led to the charges to which he has pled guilty. The facts are well-documented on the record and not in dispute. I will not be reviewing the specifics of them in these reasons. [ 9 ] Mr.

Al-Awaid’s unlawful activities came to light in April 2007 when an agent at Canada Border Services, tasked to review citizenship applications noted that there were two different signatures for the same person. This raised concerns about the bona fides of the applications. [ 10 ] The applications were being handled by CCG, the immigration consultancy business owned and operated by Mr. Al-Awaid. The RCMP Atlantic Region Immigration Passport

section began an investigation into all the files in which Mr. Al-Awaid was known, or suspected to be handling. [ 11 ] The investigation involved surveillance, client interviews, address checks to confirm residency, and the obtaining of production orders and search warrants. It revealed that Mr.

Al-Awaid had been providing various services to his clients aimed at allowing them to falsify their residency obligations in order to maintain their permanent residency and ultimately obtain Canadian citizenship. [ 12 ] An enormous amount of material was located as a result of the execution of search warrants – 20 filing cabinets containing meticulously kept files on CCG clients; computers and USB thumb drives; more than 140 cellular phones labeled with phone numbers and often the names of clients; a large number of ATM cards and personal identification numbers; and dozens of Government of Canada cheques representing benefits payable to CCG clients to which they were not entitled. [ 13 ] The investigation identified a number of addresses of convenience which were provided to CCG clients enabling them to purport to have local residences when in fact, practically none of the individuals associated with the addresses lived at them during the times claimed. [ 14 ] The investigation also obtained statements from seven clients which were helpful in outlining the services they had obtained from Mr.

Al-Awaid and how the scheme had been operated. These statements outlined how Mr. Al-Awaid had assisted the clients and their families through, the filing of documentation containing false information at Citizenship and Immigration Canada (CIC), obtaining or producing false letters of employment, T4 slips, paying bills through accessing their bank accounts, picking up mail and filing taxes based on false information. Files seized from Mr. Al-Awaid’s office corroborated these client statements and contained a large volume of very explicit and inculpatory emails between the clients and Mr.

Al-Awaid. [ 15 ] The Crown has described the services being provided by Mr. Al-Awaid as a “complex suite of services”, all connected to the ultimate goal of having CIC accept his clients’ permanent residency and citizenship applications. [ 16 ] Essentially Mr. Al-Awaid’s clients would receive the following services: Mr. Al-Awaid would arrange for the clients to come to Halifax usually to stay only a few days for the purpose of establishing their false residency. Mr. Al-Awaid would meet the clients at the airport and take them to a pre-arranged motel.

He provided them with an address of convenience, either by signing a lease or simply writing down an address for them. All the addresses Mr. Al-Awaid used were ones he had a personal connection to, including his own residence, enabling him to collect mail at the address. He also used the address of his business as an address for client mail. [ 17 ] During the few days Mr. Al-Awaid’s clients were in Canada, he would take them to government offices where they would obtain provincial identification or a driver’s licence. MSI cards for provincial health care coverage were obtained. Mr.

Al-Awaid would assist clients open bank accounts at local banks and retained their debit cards and PIN numbers so that he could generate activity in the

accounts, creating the impression that the clients were conducting their affairs locally. [18] Mr. Al-Awaid would also have clients sign blank applications for Renewal of Permanent Residency Card or applications forcitizenship. [19] After a few days of these activities, Mr. Al-Awaid would return the clients to the airport and they would leave the country. Mr. Al-Awaid maintained ongoing email contact with the clients after their departure and would manage their false indicia of residency inCanada. Mr.

Al-Awaid collected mail for his clients at their phony addresses, paid monthly cell phone bills, recorded or paid agreed-upon residential rents, and maintained bank account activity. [20] Mr. Al-Awaid’s service to clients included reading the mail he collected for them to determine if there was anything CIC requiredthem to do. Mr. Al-Awaid would alert clients if they needed to come to Canada for an in-person meeting with CIC. [21] Another feature of the scheme being perpetrated by Mr. Al-Awaid was advising clients how to make it appear they had not leftCanada when in fact they had.

This was accomplished through the use of multiple passports (which many clients held legitimately) at atime when Canada Border Services Agency had only entrance control and no exit control. One passport would be used on entry toCanada and stamped and another passport used at the time of departure. The “entry” passport would then show no evidence the clienthad left the country. [22] Mr. Al-Awaid also provided, for an additional fee, the yearly submission of income tax returns, mostly with no supportingdocumentation.

These phony returns generated income tax refunds, GST/HST refunds and Child Tax/Child Care benefits totallythousands of dollars. Over $80,000 in uncashed government cheques were located during the search of Mr. Al-Awaid’s offices. [23] As the Crown put it: the illusion of local residency was a labour-intensive project requiring Mr. Al-Awaid to create the activity thatmade it appear as though his clients were living in Canada. Although only Mr.

Al-Awaid communicated with CIC on behalf of clients,of necessity he had to hire staff to assist with managing the large volume of clients who were receiving services. [24] It is undisputed that the clients identified in the IRPA charges were all legitimately on the path to obtaining citizenship. However,at some point along the way, they started using Mr. Al-Awaid’s services to circumvent the IRPA requirements. The Crown indicated ithad exercised its discretion not to charge any of the clients, many of whom have been able to continue or complete their permanentresidency/citizenship application processes.

The Crown chose to pursue a prosecution solely against Mr. Al-Awaid who orchestrated theschemes that violated the IRPA and the Citizenship Act. First Principles of Sentencing [25] In sentencing Mr. Al-Awaid I am guided by the provisions of the Criminal Code.

Section 718 of the Criminal Code sets out theobjectives a sentence must achieve: denunciation, deterrence – both specific and general, separation from society where necessary,rehabilitation of the offender, reparations by the offender, and the promotion of a sense of responsibility in offenders, andacknowledgment of the harm done to victims and to the community. [26] Mr. Al-Awaid’s deliberate, protracted and extensive scheme for misleading CIC requires a sentence that emphasizes denunciationand deterrence.

In crafting the appropriate sentence I have to carefully consider the Defence submission that these sentencing principlescan be effectively served by a conditional sentence. [27] Sentencing is a highly individualized exercise. (R. v. Ipeelee,2012 SCC 13 , [2012] S.C.J. No. 13, paragraph 38; R. v.Wust, 2000 SCC 18 , [2000] S.C.J. No. 19 paragraph 21; R. v. M. (C.A.), (SCC), [1996] S.C.J. No. 28,paragraph 92; R. v. Shropshire, (SCC), [1995] S.C.J. No. 52) In determining a fit sentence, “…the sentencing judgeshould take into account any relevant aggravating or mitigating circumstances (s. 718.2(

a) of the Criminal Code), as well as objectiveand subjective factors related to the offender's personal circumstances.” (R. v. Pham, 2013 SCC 15 , [2013] S.C.J. No. 100,paragraph 8; R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6, paragraph 44) [28] As the Supreme Court of Canada has said in Ipeelee, Despite the constraints imposed by the principle of proportionality, trial judges enjoy broad discretion in the sentencing process. Thedetermination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualizedprocess.

Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and theparticular offender… (paragraph 38) [29] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tiedto the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system. It is “rootedin notions of fairness and justice.” (R. v.

Priest, (ON CA), [1996] O.J. No. 3369 (C.A.), paragraph 26) The principleof proportionality “ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender”, and serves“a restraining function” to achieve a just sanction. (Ipeelee, paragraph 37) [30] Restraint is a foundational principle of sentencing. Sections 718.2 (

e) and (

f) of the Criminal Code temper the use of incarcerationto achieve denunciation and deterrence, providing that “an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances”, and “all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered for all offenders…” [31] Later in these reasons I will be returning to the principles of sentencing and how they are to be applied in Mr. Al-Awaid’s case. Iwill next be discussing Mr. Al-Awaid’s background and what have been identified as the aggravating and mitigating factors in his case. Mr. Al-Awaid’s Background

[32] Mr. Al-Awaid is 61. Born in Kuwait, he emigrated to Nova Scotia in 1992. He was married in Kuwait where his two older childrenwere born. Twins, now in their early twenties, were born here. Three children, a daughter and the twins, are still living at home. [33] Mr. Al-Awaid completed high school in Kuwait and subsequently earned diplomas in Public Administration and DistanceEducation. In Kuwait Mr. Al-Awaid was employed for a government-owned petrochemical company as the public relations andmarketing officer. After working as an immigration consultant for many years, Mr. Al-Awaid is currently unemployed.

His immigrationconsultancy business closed when he was charged with the IRPA and Citizenship Act offences. Aggravating Factors [34] As the Crown has pointed out, the nature and extent of Mr. Al-Awaid’s scheme is aggravating. It was sophisticated, organized andlucrative. The deceits were undertaken over an extended period. Mr. Al-Awaid utilized his societal position and good name to further hiscorrupt ends. In perpetrating his unlawful activities under the auspices of his immigration consultancy business, he abused a relationshipof trust with CIC. [35] However, as I have noted, Mr.

Al-Awaid’s clients took advantage of the opportunity to “cheat” on the requirements for satisfyingtheir citizenship applications. Unlike offenders in some of the cases provided to me, which I will be discussing, Mr. Al-Awaid’sdishonest enterprise did not involve the exploitation of vulnerable clients. [36] Although at the start he conducted his business lawfully, Mr. Al-Awaid strayed into the corrupt practices that came to characterizehis immigration consultancy work. Even being charged did not stop him entirely as he continued to provide services to his client, PolinaDimitrova.

The Crown points out that given the magnitude of his operation, Mr. Al-Awaid would have had to be wholly committed tomanaging it. There is no evidence he had any legitimate employment during the period when the offences were committed. [37] The Crown makes a good case for a penitentiary sentence for Mr. Al-Awaid. As I have described, his offending was egregious:calculated, protracted and profitable. The Crown has submitted in its written brief that Mr.

Al-Awaid’s bank account “shows that hemade hundreds of thousands of dollars on this scheme and has defrauded the government of countless thousands of dollars in unentitledGST/HST rebates, income tax refunds and Child Tax/Child Care Benefits.” [38] Having said that, and although Mr. McLaughlin has analogized Mr. Al-Awaid’s offences to fraud, he was not charged with nor ishe being sentenced for fraud. Mr. Hutchison points out that the maximum penalty for an IRPA offence is well below the maximumpenalty for fraud in the Criminal Code.

Fraud carries a maximum penalty of 14 years imprisonment if prosecuted by indictment. Bycontrast, the maximum sentence under IRPA is five years. Mr. Hutchison also notes that Mr. Al-Awaid’s clients were all entitled to be inCanada. None of them was seeking entry to the country. They were trying, with Mr. Al-Awaid’s assistance, to maintain permanentresidency status and circumvent the requirements for citizenship. [39] Mr. Al-Awaid’s offending had harmful consequences. The Crown has submitted that the objectives of IRPA with respect toimmigration, were undermined, Mr.

Al-Awaid’s clients received benefits to which they were not entitled, and immigration consultancywork will now face more scrutiny by the public and CIC. The Crown advised that some of Mr. Al-Awaid’s clients had to withdraw theirapplications for citizenship while others had to re-start the process. This of course was a risk they took when they knowingly participatedin misrepresenting the facts about their residency. [40] The facts establish that Mr. Al-Awaid’s activities undermined the integration of permanent residents by facilitating themisrepresentation of their actual residency.

Integration into Canadian society, an IRPA objective, is a requirement for citizenship thatseeks to benefit immigrants and Canada. IRPA’s objectives reference the rich social, cultural and economic benefits realized byimmigration and its role in strengthening “the social and cultural fabric of Canadian society” (sections 3(1)(a)(b)(c)). IRPA also seeks topromote the successful integration of permanent residents into Canada, “while recognizing that integration involves mutual obligationsfor new immigrants and Canadian society.” (section 3(1)(e)) [41] Mr.

Al-Awaid enabled his clients to avoid the obligations associated with integration, the opportunity in the process for acquiringCanadian citizenship of becoming what has been termed “Canadianized” which permits prospective citizens to experience Canadiansociety and “…all its virtues, decadence, values, dangers and freedoms, just as it is.” (Pourghasemi (Re) (F.C.T.D.), [1993] F.C.J. No.232, paragraph 3) [42] It is the Crown’s submission that the gravity of Mr. Al-Awaid’s offences disqualifies him for a conditional sentence. As stated inR. v. Proulx, 2000 SCC 5 , [2000] S.C.J.

No. 6, Parliament has “denied the possibility of a conditional sentence for offenderswho should receive a penitentiary term.” (paragraph 55) The Cases Relied on by the Crown [43] The Crown says R. v. El-Akhal, [2011] O.J. No. 6247 (C.J.) is “strikingly similar” to Mr. Al-Awaid’s case. Between 2003 and2009, Mr. El-Akhal’s for-profit enterprise assisted a significant number of people process applications for residency and citizenship.

Thesentencing judge described the scheme as “quite complex” as it involved applications for various types of government identification, theuse of a network of addresses, and the employment of other people to manage the case load. Mr. El-Akhal’s clients were supplied withfalse addresses to create the illusion they were residing in Canada. The services provided to clients included the completion of incometax returns which generated tax refunds, GST rebates and child benefit cheques.

Over the five year period, the government of Canadapaid out tax refunds totaling $539,000 to the phony addresses. [44] A joint recommendation of three years in prison was accepted by the court. Mr.

El-Akhal was 64 years old with no prior record.This and his guilty pleas were treated as mitigating factors although Blacklock, J. remarked on how commercial fraudsters use their goodcharacters “as an assist in the fraudulent activity.” (paragraph 6) In accepting the joint recommendation, Blacklock, J. commented on theneed in “substantial commercial fraud” cases for the penalty to be an effective deterrent to those who might be tempted to commit suchoffences.

[45] The case of R. v Jacobson (unreported decision of Carlson, P.J., October 29, 2012) also involved fraud charges as well as chargesof forgery, identity theft, and IRPA offences. Mr. Jacobson had committed “an ongoing, complex, sophisticated, planned, and large-scalefraud…” in relation to hundreds of victims including “vulnerable foreign nationals”. He was described as having “preyed” on hisvictims. It was noted that Mr. Jacobson had pleaded guilty, was remorseful, and had no prior record.

It was held to be significantlyaggravating that while on bail he had committed a further series of substantially escalated offences. The Court emphasized generaldeterrence. A joint recommendation for a total sentence of 4.5 years in prison and $300,000 in restitution was accepted by the court. [46] In R. v. Mendez, [2004] O.J. No. 5733 (S.C.J.) a conditional sentence was rejected by the court as inconsistent with the purposeand principles of sentencing. (paragraph 19) Ms. Mendez pleaded guilty to one count under the Immigration Act for having assisted twoArgentinian families falsely claim to be refugees. Ms.

Mendez was an immigration consultant. She was charged when her “refugees”went to authorities and admitted to having concocted, on Ms. Mendez’s advice, a bogus story of persecution. [47] While noting the mitigating factors of a guilty plea, no prior record, and community involvement and support, the sentencing judgedescribed Ms. Mendez as “utterly disdainful of the immigration and refugee laws in Canada” and someone who felt “justified incounselling both dishonesty and breaches of the rules to accomplish her ends.” (paragraph 18) Dambrot, J. viewed Ms.

Mendez’sconduct as a serious attack on the integrity of the immigration and refugee system and imposed a nine month jail term. He held that “onlya sentence of actual imprisonment will adequately encourage respect for the law and sufficiently reflect denunciation of Ms. Mendez’sconduct and general deterrence.” (paragraph 20) [48] In R. v. Gedeonov (unreported decision of Nadelle, J. of the Ontario Court of Justice, May 22, 2014), a conditional sentence forfraud was rejected as incompatible with the sentencing objectives of denunciation and deterrence. Mr.

Gedeonov, operating anunauthorized immigration consulting business, defrauded five clients seeking study permits and entry visas of $52,000 over a two yearperiod. He was also convicted of two IRPA offences. The sentencing judge imposed concurrent sentences of one year on each count. [49] A jail sentence was imposed in R. v. Lin (unreported decision of Hyslop, J, of the Newfoundland and Labrador Provincial Court,November 23,2005) for IRPA offences involving the attempt to get five Chinese nationals into Canada illegally. Mr.

Lin’s people-smuggling scheme involved planning, false documentation, deceit, and misleading of immigration officials. Hyslop, J. imposedconcurrent sentences of one year in jail. A proposed sentence of time served was rejected. [50] The applicability of a conditional sentence for Mr. Lin was not discussed. As Mr. Hutchison has pointed out, Mr. Lin would nothave been eligible as he was not resident in Canada. [51] The Crown also provided the case of R. v. Serré, 2013 ONSC 1732 , [2013] O.J.

No. 1437(S.C.J.), involving a publicofficial from the Ministry of Citizenship and Immigration who was convicted of fraud and breach of trust. A four year sentence wasimposed for these offences. Ms. Serré, who occupied a supervisory position, had formed a money-making enterprise with a colleaguethat gave special treatment to certain immigrants to Canada.

She circumvented “regulatory or well-established practice requirements” inplace to protect the integrity of the immigration process and took advantage of “vulnerable and desperate people.” (paragraph 48) Thescheme was described as involving a high degree of planning and forethought and motivated by personal gain. Aitken, J. emphasizeddenunciation and general deterrence as the paramount sentencing considerations where a breach of trust is involved. [52] The cases provided by the Crown reflect the fact that sentencing cases for IRPA offences are still relatively uncommon.

And notall cases involving immigration-related offences are useful. Serré, a breach of trust by a public official, and Lin, a case of people-smuggling, are distinctly different from the circumstances in Mr. Al-Awaid’s case. The focus in Gedeonov was on the fraud offencesthat involved taking advantage of hapless clients. Mendez raises the issue that would have to be confronted in Mr. Al-Awaid’s case if heeven qualifies for a conditional sentence: the compatibility of a conditional sentence with the principles of denunciation and deterrence. [53] Jacobson has to be considered from the perspective that Mr.

Jacobson was sentenced for offences that carry a 14 year maximumpenalty. His victims included vulnerable foreign nationals. He was not assisting clients who were already entitled to be in Canada. [54] As the Crown notes, the enterprise in El-Akhal does resemble what Mr. Al-Awaid was doing. However, the issues of criminalfraud and the very substantial associated loss are not features of the sentencing for Mr.

Al-Awaid. [55] And notwithstanding judicial statements, for example, in El-Akhal, about the need for deterrent sentences in fraud cases, there aremany examples of conditional sentences being imposed for fraud offences. Conditional sentences have been ordered even for breach-of-trust frauds, including in cases where the amount of the fraud was very significant. Some Nova Scotia examples include: R. v. Ferguson,[1999] N.S.J. No. 481 (P.C.) - $390,000; R. v. Matheson, [2001] N.S.J. No. 195 (S.C.) - $117,000; R. v. Decoff, [2000] N.S.J. No. 224(S.C.) - $44,000; R. v. Trask, [2005] N.S.J.

No. 561 (P.C.) - $340,731.70 and a joint recommendation; R. v. Pottie, [2003] N.S.J. No. 543(S.C.) - $46,475; R. v. Hurlburt, [2012] N.S.J. No. 420 (S.C.) - $25,320.77. [56] My point is that conditional sentences have been imposed even in fraud cases, fraud being an offence that is thought to beparticularly amenable to general deterrence. This point is made in another case supplied by the Crown, R. v. Mazzucco, 2012 ONCJ 333, [2012] O.J.

No. 2508 where the Court observed that fraud offences are “more likely to be influenced by a general deterrenteffect.” (paragraph 62) (Also, see the Ontario Court of Appeal’s comments on the role of general deterrence in sentencing perpetrators offraud in R. v. Gray, [1995] O.J. No. 92 and R. v. J.W., (ON CA), [1997] O.J. No. 1380.) [57] It is impossible to sift out of El-Akhal what the sentence might have been, or even what the sentencing recommendations mighthave been, if he was before the court on IRPA charges only. I will also note that Mr. El-Akhal was not described as having any serioushealth problems.

The court said only that a penitentiary sentence for someone in their 60’s was “a very sobering sentence to imposeand…a very sobering sentence to serve.” (paragraph 7) [58] I am unable to conclude, on the authorities provided to me, and on the basis of my own analysis and reasoning, that a sentence oftwo years’ less a day - the threshold for a conditional sentence - could not be in the range of appropriate dispositions for seriouscontraventions of IRPA. It is instructive to consider the Supreme Court of Canada’s decision in R. v.

Bunn, 2000 SCC 9 , [2000]1 S.C.R. 183 where a conditional sentence was upheld for breach of trust by a lawyer. Using language that could be applied in Mr. Al-

Awaid’s case, the Court took note of the “ruin and humiliation Mr. Bunn had brought down on himself and his family, together with the loss of his professional status” and held that these factors “when coupled with” a conditional sentence of two years less a day “could provide sufficient denunciation and deterrence...” ( paragraph 23 ) [ 59 ] I will next examine the mitigating factors in Mr. Al-Awaid’s case. This will involve an assessment of Mr. Al-Awaid’s serious health problems and how they are to be factored into a determination of the appropriate sentence.

Mitigating Factors [ 60 ] The Crown acknowledges that Mr. Al-Awaid pleaded guilty, has no prior record and was of previous good character. Guilty pleas represent a meaningful acknowledgment of responsibility and a commitment to the process of rehabilitation. Mr. Al-Awaid’s guilty pleas avoided the expenditure of precious court time and resources in what would have been a lengthy prosecution and have spared witnesses from the ordeal and inconvenience of testifying.

The Crown does note that considerable time and resources were expended by the state preparing for a lengthy preliminary inquiry prior to the change of plea. (I will say, parenthetically, there was massive disclosure and Mr. Al-Awaid had the misfortune of two of his lawyers being appointed to the Bench before he had entered his guilty pleas.) [ 61 ] I received a significant amount of evidence attesting to Mr. Al-Awaid’s character and the positive role he has played as a member of the local Muslim community. Mr. Al-Awaid’s Previous Good Character [ 62 ] Evidence of Mr.

Al-Awaid’s character was presented through the pre-sentence report, letters of reference and witness testimony. This evidence establishes that Mr. Al-Awaid has been committed to his family and his community. Of course, the facts establish that he was also fully engaged in a protracted scheme of deceit, a scheme which benefitted from Mr. Al-Awaid’s good standing. The Pre-sentence Report [ 63 ] In his interview for the pre-sentence report, Mr. Al-Awaid described that he had been a role model for his family and community and has now brought shame to his family.

His family and his health have been affected by his involvement with the criminal justice system. [ 64 ] Community involvement has been important to Mr. Al-Awaid, both in Kuwait and Nova Scotia. He was Vice President of the Maritime Islamic Association during 1994 and 1995 and President of the Al Batool Islamic Society for the following eleven years. [ 65 ] A long-standing friend of Mr. Al-Awaid, Mike Yari, was interviewed for the pre-sentence report. Mr. Yari and Mr. Al-Awaid have been friends for 30 years. Mr. Yari was shocked to learn from Mr. Al-Awaid that he had been charged. He described Mr.

Al-Awaid as kind-hearted, honest, loyal and very family-oriented. He confirmed that Mr. Al-Awaid has been very involved with his community. [ 66 ] Two other friends were also interviewed – Rosamund Luke and David Melnick. Ms. Luke has known Mr. Al-Awaid for almost 20 years and described him as caring, helpful and very business-savvy. She expressed her view that Mr. Al-Awaid fell prey to the temptations presented by the fact that “people from other countries will pay huge sums to come to Canada.” ( pre-sentence report, page 6 ) Ms.

Luke also said that the Muslim community has very strict ethical standards and that it is her belief Mr. Al-Awaid’s reputation has been tarnished. [ 67 ] Mr. Melnick has known Mr. Al-Awaid professionally for approximately 20 years. He described Mr. Al-Awaid as generous, outgoing, kind and friendly. Testimony from Family and Friends [ 68 ] Mr. Al-Awaid’s wife, his eldest daughter, Noor, a close friend and a family friend testified at his sentencing hearing. [ 69 ] Mrs. Al-Awaid provided some basic background facts about Mr. Al-Awaid and their family. When she and Mr.

Al-Awaid met in 1980 in Kuwait, he was an Iraqi national and she held a Jordanian passport. They experienced the first Gulf War in Kuwait and married in 1985. Life was increasingly difficult after the war as the Kuwaiti government was unwilling to permit Iraqis living in Kuwait to have jobs. The Al-Awaids left Kuwait for Egypt, waited for their Canadian visas, and moved to Halifax. [ 70 ] Mrs. Al-Awaid and Noor Al-Awaid described Mr. Al-Awaid as a very different man before and after his arrest on the IRPA and Citizenship Act offences. They previously experienced Mr.

Al-Awaid as very happy, sociable and connected to the local Muslim community. Mrs. Al-Awaid testified that her husband was always very supportive of their immediate and extended family and involved with his children. Noor said her father was “the life of the party” and she and Mr. Al-Awaid’s close friend, Jamal Saidi, spoke about Mr. Al-Awaid organizing Eid celebrations for the children and being such a helpful member of the Muslim community. Mr. Saidi testified that during Eid, Mr. Al-Awaid would bring the Muslim community together; “everyone knew him.” [ 71 ] Dr.

Sura Hadad and her family have been friends with Mr. Al-Awaid since 1992 when she was 14. She described Mr. Al-Awaid as “an event planner for the Muslim community.” She spoke of Mr. Al-Awaid being a leader in the Muslim community, someone she looked up to. [ 72 ] Each witness – Mrs. Al-Awaid, Noor Al-Awaid, Mr. Saidi and Dr. Hadad – all spoke of how different Mr. Al-Awaid has been since his arrest. Dr. Hadad said she and her family don’t see him very much now. He has withdrawn from involvement in his community and is a shell of a presence at home. He is worried and preoccupied.

Noor explained that their community has remained very supportive, reaching out to Mr. Al-Awaid, but he is focused on his legal problems. [ 73 ] It is no surprise to learn that the Al-Awaid family has been suffering along with Mr. Al-Awaid. The family has been profoundly affected by his wrongdoing. Mrs. Al-Awaid explained that their twin daughters, aged 21, would like to leave Halifax as they now feel

uncomfortable around their friends. The negative impact on the family has included financial strain with Mrs. Al-Awaid having to get a job for the first time in their marriage. I was informed that the Al-Awaids were assigned into bankruptcy as a result of Canada Revenue Agency involvement, a direct consequence of Mr. Al-Awaid’s offences. [ 74 ] Mrs. Al-Awaid testified that her husband is very remorseful and apologetic, repeatedly telling her how sorry he is for what she and the children are going through, saying he is responsible. She said: “He knows what he did was wrong.” Testimony from Dr.

Rhonda MacLean [ 75 ] Mr. Al-Awaid’s family doctor, Dr. Rhonda MacLean testified that he has been experiencing significant stress as a result of his involvement on the criminal justice system – significant financial stress and interpersonal stresses within the family. He has lost weight and his appetite has been affected. Letters of Reference [ 76 ] Six letters of reference were filed on Mr. Al-Awaid’s behalf. ( Exhibit 8 ) Rosamund Luke and David Melnick, mentioned earlier as contributors to Mr. Al-Awaid’s pre-sentence report, each provided a letter.

Letters were also submitted by Tony Chedraoui, Arkan Alobaidi, Ghanim Raad, and Yasser Khalaf. [ 77 ] The letters of reference describe Mr. Al-Awaid in very positive terms. I do not question the sincerity of their contents. It is apparent that people who have come to know Mr. Al-Awaid in the community and in the context of his family have experienced him as generous, helpful, thoughtful, and friendly. Mr. Al-Awaid has been supportive at a personal level (as evidenced in Mr. Alobaidi’s and Mr. Khalaf’s letters) and in the community. In his letter of June 19, 2014, Mr. Raad spoke of Mr.

Al-Awaid’s commitment to the Al Batool Islamic Society, describing him as “an asset to our religious sector.” A “hard-working, dedicated individual”, Mr. Al-Awaid has contributed positively to his community and its members. Remorse and Stigma [ 78 ] Mr. Al-Awaid’s remorse for his wrongdoing and the stigma associated with his offences are mitigating factors for me to consider. I accept that Mr. Al-Awaid’s remorse is sincere and he genuinely recognizes the harm he has done. He has not tried to minimize his wrongdoing or deflect responsibility.

And while none of the witnesses nor the tendered letters of reference indicate a loss of respect for Mr. Al-Awaid, it is only reasonable to infer that Mr. Al-Awaid’s involvement in the criminal justice system carries a significant stigma and has tarnished his reputation in the community even if the opinions of those closest to him are unaffected. [ 79 ] Mr. Al-Awaid’s offences brought him into the national spotlight, broadening the scope of the stigma and shame he has experienced. The Crown included in its written brief an

article from the December 9, 2011 edition of the National Post in which Mr. Al- Awaid is mentioned by name as having been charged “with more than 50 citizenship fraud-related offences.” According to the article, the Federal immigration minister, Jason Kenney, had, at the time of Mr. Al-Awaid’s arrest in March 2011, commented on the investigation and his charges. The

article also referred to the

short title of the government’s proposed legislation, “ The Cracking Down on Crooked Consultants Act”, which, when it came into force on June 30, 2011, amended IRPA . The Legislative

Summary of the Bill (Bill C-35) notes that the House of Commons Standing Committee on Citizenship and Immigration proposed amendments to the Bill which included deleting its

short title “because of its pejorative connotation with respect to the profession of immigration consultant.” The Bill was passed by the House of Commons with all the amendments proposed by the Committee. [ 80 ] The profiling of Mr. Al-Awaid’s offences in a national newspaper and the spotlighting by use of pejorative language of his corrupt practices can only have added to the shame he feels for his unlawful actions. Mr. Al-Awaid’s Health as a Mitigating Factor – The Evidence [ 81 ] I have come to view Mr. Al-Awaid’s serious health issues as the most significant mitigating factor in this sentencing.

Evidence about his health problems was provided through several sources – letters from two specialists treating him, an ophthalmologist and an endocrinologist, and by Dr. MacLean, his family doctor, in letters dated July 16, 2014 ( Exhibit 2 ) and February 8, 2015, ( Exhibit 3 ) and viva voce testimony on March 27, 2015. [ 82 ] Dr. MacLean has been practising family medicine since 2002. Mr. Al-Awaid has been her patient since that time. He is being treated for hypertension, hypothyroidism, elevated cholesterol, gout and Type 2 diabetes.

His high blood pressure is controlled by several medications that he takes in tablet form. He takes Synthroid, a synthetic replacement for thyroid hormone, to regulate his hypothyroidism. Hypothyroidism can affect blood sugar control in diabetics. To reduce his risk for heart attack and stroke, Mr. Al-Awaid has also been prescribed a medication in tablet form for his high cholesterol. His gout, which can cause joint inflammation, is controlled by a pill that helps prevent the build-up of uric acid. [ 83 ] Dr. MacLean indicated in her letter of July 16, 2014 that Mr.

Al-Awaid “is at considerable increased risk for both heart attack and stroke.” According to her letter, Mr. Al-Awaid requires “ongoing laboratory monitoring for optimization of diabetes, thyroid, cholesterol, and gout therapy.” [ 84 ] Dr. MacLean explained Type 2 diabetes as a condition in which the body’s cells develop resistance to insulin increasing blood sugar. Mr. Al-Awaid has had Type 2 diabetes for approximately 25 years. He has been a “significant diabetic” in the 12 years that Dr. MacLean has had him as a patient and requires “quite large” doses of insulin administered by subcutaneous injection. Dr.

MacLean described Mr. Al-Awaid’s treatment as “intensive insulin therapy” with him requiring five injections a day which he administers himself. Injections are given through an insulin pen with the dose dialed in mechanically requiring only that the patient change the needle tip. [ 85 ] Mr. Al-Awaid uses both long-acting, slow onset insulin in the morning and evening and shorter duration, rapid-onset insulin at meal times. Despite the management of his diabetes, which in Dr. MacLean’s opinion is presently under reasonable control, Mr.

Al- Awaid shows evidence of organ system damage, including to his kidneys and most significantly, to his eyes. This, explained Dr.

MacLean in her July 16 letter, is caused by microvascular disease, a complication of long-standing diabetes. [ 86 ] In her letter Dr. MacLean indicated that Mr. Al-Awaid will continue to require treatment to preserve his remaining vision. One of the delays in Mr. Al-Awaid’s sentencing occurred because in November 2014 he required surgery on his left eye to reverse some vision loss. [ 87 ] The ophthalmologist providing care to Mr. Al-Awaid, Dr. Arif Samad, prepared letters dated July 22 ( Exhibit 10 ) and August 6, 2014 ( Exhibit 11 ) about Mr. Al-Awaid’s visual problems. He has treated Mr. Al-Awaid since 2000.

He confirmed that Mr. Al-Awaid’s vision loss is a result of complications associated with the progression of diabetic retinopathy. Dr. Samad indicated in his letter of July 22 that Mr. Al-Awaid has required “extensive laser treatment to both eyes in an effort to reduce ischemia and decrease leakage.” Dr. Samad noted that: “The leakage has resulted in loss of central vision to the point of legal blindness in his left eye.” He stated: “Mr. Al- Awaid is developing microvascular complications associated with his long-standing diabetes.

He will require long-term close follow-up for his eye care in an effort to diagnose and continue treatment of the macular edema. Failure to do so would result in continued leakage and progressive vision loss.” [ 88 ] In his August 6 letter, Dr. Samad again stressed that “…Mr. Al-Awaid’s eyes require regular monitoring and treatment in an effort to stabilize the retina and stop leakage. Failure to do so would result in loss of central vision with which he is currently functional.” [ 89 ] The management of Mr.

Al-Awaid’s diabetes requires blood sugar monitoring which is done using a lancet and obtaining a blood sugar reading. Dr. MacLean testified that ideally the more often the blood sugar is checked the better the control of the diabetic condition. Mr. Al-Awaid checks his blood sugar levels multiple times a day although at the time when Dr. MacLean testified the frequency had been less. According to Dr. MacLean’s testimony in March, Mr. Al-Awaid’s blood sugars had become more stable. [ 90 ] Dr. MacLean testified that Mr.

Al-Awaid’s diabetic control has been “difficult.” Out of her caseload of over 100 diabetic patients, Mr. Al-Awaid has one of the highest insulin levels. It was Dr. MacLean’s evidence in March that Mr. Al-Awaid’s control had recently been “the best” since she started to treat him but was still “not optimal.” Mr. Al-Awaid’s other conditions were under control and he did not need to see a doctor on a daily basis. [ 91 ] Dr. MacLean was asked to discuss the risks that hypoglycaemia poses for a diabetic. She noted that low blood sugar should be treated as soon as possible.

As long as the patient recognizes the symptoms and can take something that has a “sugar load” such as a snack, or drink, or Dextrose, followed by some protein, the problem can be averted. However a diabetic may be unaware that his blood sugar is lowering which affects cognition creating a situation where he may require assistance to stabilize his blood sugar levels. In the most serious of circumstances, a hormonal reversal agent can be injected. [ 92 ] Dr. MacLean expressed her concerns about the ability in an institutional setting for Mr.

Al-Awaid to maintain the level of control he has attained which is important for cardiovascular risk and the long-term health of his eyes and kidneys. She also indicated her concerns about the ability of an institution to recognize changes to cognition as a result of low blood sugar and provide appropriate interventions such as reversal agents. [ 93 ] This is reflected in Dr. MacLean’s letter of July 16, 2014 where she stated: I have grave concerns about both immediate and long term effects of a jail sentence.

I believe there is significant risk of deterioration in his diabetic control and progression of both eye and kidney complications. I fear that an institutional setting will not be able to accommodate the intensity of treatment that he requires to optimize his control and mitigate his health risks. [ 94 ] Asked about the ability of someone monitoring a video screen - prisoners are often monitored on camera - to observe a hypoglycemic incident, Dr. MacLean testified about the potential the observer would not be able to tell that there was a low blood sugar problem.

Hypoglycaemia can cause complaints of headache or hunger and symptoms of sweating and irritability. A reduced level of consciousness can occur and the person may appear to be sleeping. This can mean that even someone walking by a cell would not necessarily be aware that the occupant is being affected by a drop in blood sugar. Hypoglycaemics can also become belligerent, obstructive or even violent which is then mistaken for behavioural disturbances. As a consequence, the diabetic may obstruct attempts at intervention. [ 95 ] Of the factors that Dr.

MacLean described as necessary to safely and successfully manage Mr. Al-Awaid’s diabetes, she identified the supervision of him and his condition and the awareness by the correctional personnel of the potential for low blood sugar as the most important. She made the point that a low blood sugar incident could lead to Mr. Al-Awaid lying in his bed and having a cardiac arrest and dying. Missing an insulin dose would not be life-threatening. [ 96 ] On cross-examination Dr. MacLean was asked what would address her concerns about the management of Mr. Al-Awaid’s diabetes in prison.

She indicated the following: access to monitoring blood sugar levels, a regular insulin-administration schedule; someone being aware of his circumstances; and access to nutrition. She agreed there was some responsibility as well on Mr. Al-Awaid to manage his condition. She acknowledged that hypoglycaemia can be addressed through nutrition or access to medical intervention if required. [ 97 ] Although Dr. MacLean testified that Mr.

Al-Awaid did not require daily visits by a doctor, in her July 16, 2014 letter she stated: “He requires regular visits to both me and treating specialist for medication adjustment, disease progression monitoring and treatment and supportive care.” [ 98 ] Dr. Barna Tugwell is Mr. Al-Awaid’s endocrinologist. He prepared a letter dated August 7, 2014. ( Exhibit 12 ) He indicated that suboptimal glycemic control of Mr. Al-Awaid’s diabetes will place him at risk for “progression of his retinopathy, progression of renal dysfunction, and development of neuropathy.

The consequences of these are well known in the general population with diabetes, including blindness, renal failure, amputation, infection, etc.” Dr. Tugwell noted that Mr. Al-Awaid is not at risk “in the immediate future” of renal failure or amputation.

[ 99 ] Dr. Tugwell had been asked by Mr. Hutchison to comment in his letter on the issue of Mr. Al-Awaid’s treatment for diabetes in the event he was incarcerated. Dr. Tugwell stated: Specifically, I would suggest that Mr. Al-Awaid continue to receive regular ongoing medical visits with a diabetes specialist or internist about every 3 months if possible and certainly with his ophthalmologist on a

schedule that the ophthalmologist should determine. Certainly, his sight could be in jeopardy if he does not receive ongoing medical care from his specialists. He would also require ongoing general practitioner follow-up for his daily management… [ 100 ] Dr. Tugwell confirmed what Dr. MacLean had said in her testimony: that Mr.

Al-Awaid would require access to all his medications, his insulin injections, glucometer equipment, testing strips, and the ability to record his findings in a logbook, as well as access to treatment for hypoglaecemia – dextrose tablets, juice and personnel with a glucagon emergency kit for insulin hormone reversal in the event of a severe incident. The Correctional Service of Canada and the Management of Offenders’ Health [ 101 ] The Crown does not dispute the evidence about Mr.

Al-Awaid’s serious health issues and acknowledged in oral submissions that his doctors have “valid concerns.” However, in the Crown’s submission the health needs of offenders are the responsibility of the Correctional Service of Canada, not the courts.

The Crown’s written submissions indicate: “…Corrections Canada shall provide all essential health care for inmates and the health care provided shall conform with professionally accepted standards.” The Crown says that courts sentencing offenders with serious health issues have to trust CSC to meet its obligations under its governing legislation and policies. [ 102 ] It is the Crown’s submission that Mr. Al-Awaid’s health problems can be adequately managed by the Correctional Service of Canada (CSC) in accordance with its statutory obligations.

In this regard, the Crown provided a can-say from Mark Cormier, the Regional Manager of Health Care Services for CSC, and referred me to CSC’s Commissioner’s Directive 800 ( Exhibit 9 ). [ 103 ] Mark Cormier’s “can-say” statement ( Exhibit 4 ) is the only evidence from CSC concerning its management of prisoner health issues. Mr. Cormier did not testify. His “can-say” states: It is the obligation of Corrections Canada to provide essential health services to all of its inmates. This is provided for under sections 85 – 88 of the Correction Services and Release Act.

This includes physicians’ visits, medication and other therapies. The fundamental requirement is that it be an essential health service. For example, if an ophthalmologist or an endocrinologist recommends a particular treatment, they [meaning the Correctional Service of Canada] will provide it. In particular, if the treatment is continuing or ongoing, it is that much simpler to continue. [ 104 ] The legislation to which Mr. Cormier referred is actually the Corrections and Conditional Release Act ( CCRA ). In Mr. Al-Awaid’s case the most relevant sections are sections 86 (

a) and 87 (a).

Section 86 of the CCRA provides that CSC “shall provide every inmate with (

a) essential health care…”

Section 87 requires CSC to take “into consideration an offender’s state of health and health care needs (

a) in all decisions affecting the offender, including decisions relating to placement, transfer, administrative segregation and disciplinary matters…” These responsibilities are detailed in a Commissioner’s Directive which I will discuss shortly. [ 105 ] “Very non-specific and very generic” was how Dr. MacLean described Mr. Cormier’s “can-say”. In her letter of February 8, 2015, where she had reiterated Mr.

Al-Awaid’s medical problems and needs, she concluded by stating: “If Corrections Canada can provide for both ongoing and emergency care then it may be possible that a Federal jail sentence would have negligible consequences on his ongoing health.” Dr. MacLean testified that Mr. Cormier’s “can-say” did not specifically address the ability of the Correctional Service to maintain intensive insulin therapy and provide intervention on an emergency basis. She observed that diabetes has a very broad spectrum with many diabetics being able to control their condition initially by using oral therapies. Mr.

Al-Awaid is not in that category of diabetic. [ 106 ] In response to my request for some clarification of Mr. Cormier’s “can-say”, the Crown informed me that he did not review the letters provided by Drs. Samad and Tugwell referred to earlier in these reasons. There is also no evidence he read Dr. MacLean’s letters. Commissioner’s Directive 800 – “Health Services” [ 107 ] The Commissioner’s Directive 800 covers a range of offender health related obligations borne by CSC. Given that the ability of CSC to effectively manage Mr.

Al-Awaid’s health has been put in issue, it is necessary for me to review what the Directive provides. [ 108 ] The Directive states that “Inmates shall have access to screening, referral and treatment services.” “Essential health services” are enumerated in

section 6 and include, for the purposes of what is relevant in Mr. Al-Awaid’s case: a. emergency health care (i.e., delay of the service will endanger the life of the inmate); b. urgent health care (i.e., the condition is likely to deteriorate to an emergency or affect the inmate’s ability to carry on the activities of daily living); [ 109 ] In

section 7 the Directive states that: “Inmates shall have reasonable access to other health services (i.e. conditions not outlined above)…The provision of these services will be subject to the length of time prior to release, operational requirements, etc.”

Section 10 indicates that “Access by inmates to health services shall be available on a 24-hour basis.” Access “can be provided through on-site coverage, on an on-call basis…” [ 110 ] The Directive mandates staff to “inform a health care professional of the condition of any inmate who appears ill, whether he or she complains or not” and further states that “An inmate’s request for health services must be relayed to a health care professional without delay.” ( sections 11 and 13 )

[111] The Correctional Services’ requirements for the delivery of health care to federally-sentenced offenders is further detailed in theDirective, for example: a nursing assessment within 24 hours of arrival at reception; a comprehensive nursing assessment within 14 daysof admission; informing of the Medical Officer of Health for the institution by institutional health care staff prior to the “expectedreception of inmates with mandatory treatment requirements”; procedures for health care emergencies; Medical Directives to beestablished “to outline the course of action to be taken by health care services staff in both routine and emergency situations where thereis no Physician on site.” The Directive requires that there be on-site staff with current certification in basic first aid and CPR trainingwhen “24-hour nursing coverage is not provided…” (sections 20, 21, 25, 26, and 27) [112] The Directive contemplates that on-site physician and nursing care may not be available on a 24/7 basis. “On-call” access to healthservices may substitute for on-site access.

Consultation with outside physicians “or treatment for essential services” may be sought bythe “institutional Clinician.” The Directive accords the institutional Clinician discretion to make decisions about treatment: “Consistentwith community standards, treatment recommendations by consultants are subject to approval of the referring institutional Clinician.”(sections 10 and 31) [113] The Crown submits that under the Commissioner’s Directive offenders bear responsibility to advocate for their health care needs.However even the Directive recognizes that not all offenders are able to do so: as I noted earlier,

section 11 provides that “All staff areresponsible to inform a health care professional of the condition of any inmate who appears to be ill, whether he or she complains ornot.” The National Parole Board [114] In the Crown’s submission there is also recourse to early parole for offenders whose exceptional health issues are beyond CSC’scapacity to manage. The Corrections and Conditional Release Act provides in

section 121 that “parole may be granted at any time to anoffender (

a) who is terminally ill; (

b) whose physical or mental health is likely to suffer serious damage if the offender continues to beheld in confinement; (

c) for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable atthe time the offender was sentenced…” [115] There is provision in the Commissioner’s Directive for CSC to consult with the National Parole Board “to determine eligibility forparole” in cases where the offender has an “incapacitating illness” or is “chronically sick” and “have impairments” which have “one ormore of the following characteristics”: (

a) are irreversible; (

b) leave residual disability; (

c) are caused by non-reversible pathologicalalteration; and (

d) require a long period of supervision, observations or care. (section 45) [116] I will be discussing

section 121 of the CCRA further when I get to the

section of my reasons dealing with the CorrectionalInvestigator’s Report. Case Law on Health as a Mitigating Factor in Sentencing [117] The Crown has referred me to a number of cases where courts decided an offender’s medical condition did not have muchmitigating effect on sentence. In R. v. Dobbin, 2009 NLCA 52 , [2009] N.J. No. 348 the Newfoundland and Labrador Court ofAppeal upheld a sentence of 26 months for drugs and firearms offences. The sentencing judge had received evidence of Mr.

Dobbin’sphysical and mental health and acknowledged they would make any sentence more difficult for him to serve. (paragraphs 10 and 28)There is no indication that Mr. Dobbin’s health issues could be life-threatening. [118] In R. v. Stauffer, 2007 BCCA 7 , [2007] B.C.J. No. 6 (C.A.), an appeal from a 30 year sentence for a string of armed bankrobberies, the British Columbia Court of Appeal considered Mr. Stauffer’s argument that his ill health meant a reduced likelihood of re-offending. Noting Mr.

Stauffer’s “horrendous record”, the Court gave no effect to this submission and held that his serious medicalproblems were best dealt with by the prison authorities under

section 121 of the CCRA. Mr. Stauffer’s health problems included medicalcomplications from poor compliance with medication and dietary regimes “required to cope” with his diabetes and kidney failurerequiring long sessions of dialysis three times a week. (paragraphs 10, 53 and 54) [119] The British Columbia Court of Appeal in R. v. Hill, [2007] B.C.J. No. 1196 upheld a 30 month possession of marijuana for thepurpose of trafficking sentence where there was evidence of medical issues. As a result of a kidney transplant, Mr. Hill needed to takeanti-rejection medication every 12 hours.

He required monthly blood work and assessments of his kidney function. Every three or fourmonths he was seen by the transplant clinic. He was also on medication for cholesterol, hypertension and Type II diabetes. His diabetesrequired him to have a regular controlled diet. [120] The Court of Appeal noted that in sentencing Mr. Hill for a “mid to high level” sophisticated trafficking operation the sentencingjudge took his health issues and medical treatment needs into account as mitigating factors.

She had recommended “that the prisonphysician responsible for supervising his health be put immediately into contact with his renal transplant specialist in order to review hisongoing medical needs and treatment during his period of incarceration.” The Court of Appeal also noted the possibility that early parolecould be given if that became medically necessary. (Hill, paragraph 42) [121] A subsequent decision of the British Columbia Court of Appeal, R. v. Potts, 2011 BCCA 9 , [2011] B.C.J.

No. 38concerned a Crown appeal of a sentence imposed for serious drug offences arising out of a two-year RCMP investigation into the EastEnd

Chapter of the Hells Angels. The sentencing judge discounted Mr. Potts’ sentence by six months on the basis that his healthproblems would make his sentence more onerous for him than for a healthy offender. The Court of Appeal critiqued the judge’sapproach, stating the following: It is relatively rare for the health of an offender to be taken into account in sentencing but there are cases in which an offender's healthmay be relevant.

Although an offender's health status may be relevant at sentencing, in general these matters are best considered as partof the overall circumstances of the offender, rather than as a basis for deducting time from an otherwise appropriate sentence. There arecases in which an otherwise fit sentence may be reduced on compassionate grounds, but such reduction must be based on current, clearand convincing evidence…(paragraph 85)

[122] The Court of Appeal decision noted that Mr. Potts’ medical conditions - recurring diverticulitis, chronic back problems, and arecurring abscess on his buttocks - had been described by the sentencing judge as causing him “great discomfort.” (paragraphs 43 and45) [123] The Ontario Court of Appeal in R. v. Drabinsky, 2011 ONCA 582 , [2011] O.J. No. 4022 agreed with the determination ofthe sentencing judge that there was no evidence the correctional service could not manage Mr. Drabinsky’s significant physical disability– impaired mobility and considerable pain due to childhood polio – in prison.

The Court noted that, according to the trial evidence, Mr.Drabinsky led “a very full and active life, despite his very real disability.” (paragraph 170) [124] In R. v. G.R.B., 2013 ABCA 93 , [2013] A.J. No. 205, the Alberta Court of Appeal found there was no evidence thatG.R.B.’s age-related medical conditions could not be accommodated in the prison system. Referencing the Potts decision, the Courtheld: “Any reduction in sentence on compassionate grounds should be based on “current, clear and convincing evidence.” (paragraph18) No such evidence was identified in G.R.B.’s case.

G.R.B. was being sentenced for sexually assaulting his step-granddaughter inexcess of one hundred times over seven years, starting when she was four years old. [125] It is apparent however that examining the role of ill health as a mitigating factor in sentencing engages a very case-specific inquiry.The mitigating effect may be significant where there is the risk of a life-threatening medical event. In R. v. McCrystal, [1992] O.J.

No.385 (C.A.), an offender convicted of a serious fraud had his sentence reduced to time served as a result of medical opinions that theoffender was at high risk of a life-threatening coronary event. [126] In R. v. C.D., 2012 ONCA 696 , [2012] O.J.

No. 4847, a case of serious sexual assault against a young girl, the OntarioCourt of Appeal took into account the offender’s quadriplegia from a motor vehicle accident, severe pain, colostomy, daily requirementsfor nursing care and medications, and the “high risk of developing complications” to reduce a sentence of 30 months in prison to aconditional sentence of two years less a day. (paragraph 22) [127] In R. v. Duncan, [2005] O.J.

No. 4804, the Ontario Court of Appeal upheld a sentence of two years less a day which had beenimposed, due to the mitigating effects of the offender’s advanced age and his medical condition, instead of the three year penitentiaryterm that would otherwise have been warranted. (paragraph 3) [128] R. v. Ralph, [2014] B.C.J. No. 485, a decision of the British Columbia Supreme Court, illustrates the extent to which the issue ofhealth problems as a mitigating factor is case-specific. Ms.

Ralph’s significant health issues were found to “underscore theappropriateness of a conditional sentence.” (paragraph 106) The Crown had argued for a three year prison term for a historic sexualassault of an elementary school student. The sentencing judge found: …An accused’s infirmity is always a factor to be considered and may warrant a reduction in sentence that would otherwise have beenimposed, or, in appropriate circumstances, a different kind of sentence.

In such cases, the principles of denunciation and deterrence mustgive way to the more humane principles of compassion, empathy, and clemency. (paragraph 106) [129] I do not suggest there is any universal acceptance by Canadian courts of these sentiments. More commonly sentencing courts andCourts of Appeal make reference to whether the offender’s medical condition can be appropriately monitored and treated by prisonauthorities. [130] This takes me to the Correctional Investigator’s Report for 2013-2014.

The Correctional Investigator’s Report for 2013 – 2014 [131] The Correctional Investigator’s 2013-2014 Annual Report has been entered as an Exhibit at this sentencing by consent. (Exhibit 5)It was tendered by Defence. The Crown submits that it should be given very little weight. [132] The Office of the Correctional Investigator (CI) has been established by Parliament. Its governing legislation is the Correctionsand Conditional Release Act.

The CI, an ombudsperson independent of CSC, reports directly to the Solicitor General by way of annualand special reports. [133] As the Crown notes in its Supplemental Brief, in the course of a discussion on April 10, 2015 about the evidence to be consideredat sentencing, I asked what use could be made of the reports of the Office of the Correctional Investigator.

I was broadly aware that theOIC has reported on a range of issues affecting federally sentenced offenders including the provision of health care in Canada’s prisons.The Crown made the following submission in its Supplemental Brief: The reports of the Correctional Investigator of Canada, while a public record and a government publication, are not documents that canbe accepted for the truth of their contents in the absence of evidence. By way of illustration, general comments with respect to facilitiesmay not be equally applicable across the country.

This means the report contains items that are not readily or easily proven as accurate inall circumstances. What may prove correct of one facility, for instance, may not be the circumstance in another facility. [134] The Crown referenced the Alberta Court of Appeal’s decision in R. v. Roberts, 2005 ABCA 11 , [2005] A.J. No. 15 wherethe Court held that a sentencing judge cannot take judicial notice of the conditions in a remand centre. The judge had done so incalculating Mr. Roberts’ remand credit on a 3:1 ratio. (paragraph 72) [135] I find the Correctional Investigator’s Report is properly before me.

The Criminal Code provides that hearsay evidence isadmissible at sentencing. (section 723(5)) Considering information in the Report is not the same as taking judicial notice of remandconditions to calculate a remand credit. What is significant about the Correctional Investigator’s Report for my purposes is that it shinesa light into how health care is delivered in the federal penitentiary system. I have what CSC is obligated to do according to its governingstatute and policies. The CI’s Report provides something more. My consideration of the issue of Mr.

Al-Awaid’s health issues does notend with what I know about CSC’s stated responsibilities. I have to consider whether there is any basis for concern about how thoseresponsibilities are carried out. Courts have found that seriously ill offenders may not be able to receive “adequate medical treatment in

prison.” (R. v. Taipow, (ON CA), [2005] O.J. No. 4643 (C.A.), paragraph 7; R. v. Scott, [2014] S.J. No. 425 (Q.B.),paragraph 59) [136] I will now address the relevant portions from the CI’s Report and how I have used the information in relation to Mr. Al-Awaid’ssentencing. [137] The Crown has submitted that it would be unreasonable to “expect perfection” when it comes to the delivery of health care inprison. That is a fair comment. It is equally fair to observe that a prison sentence should not be a death sentence.

The CorrectionalInvestigator’s Report raises very significant concerns in my mind about the ability of CSC to safely and effectively manage Mr. Al-Awaid’s health problems. I believe it would be irresponsible of me in the determination of Mr. Al-Awaid’s sentence to ignore ormarginalize what the Correctional Investigator has to say about the delivery of health services in the federal correctional system. [138] In the CI’s Annual Report for 2013 – 2014, he stated the following in a

section entitled, “Access to Health Care”: It is CSC’s legal duty to ensure an inmate’s health and safety while they are in custody. Health care can often be an especially complexarea of offender complaint. Individual health care complaints typically break down as concerns involving access to health care services,quality of care as well as decisions regarding medication use, including discontinuance or alternatives.

Provision of and access to healthcare services in a prison setting is contingent upon other competing operational demands and priorities (population management,institutional routines, staffing, counts, rounds and patrols), not to mention availability of external health care providers, services andclinics. Unlike the rest of us, offenders do not choose their health care provider and cannot shop around for service; they must acceptwhat they get when they can get it.

Most federal penitentiaries lack 24/7 health care staffing; access can be particularly challengingduring the night shift and on weekends, especially in more isolated locations. (page 19) [139] The CI’s Report also indicates that CSC does not have “an automated medical records system or an electronically accessiblerecords storage and retrieval capacity.” (page 20) The Correctional Investigator reports that: The Service (CSC) is unable to reliably extract or account for essential health care services, up to and including what drugs are beingprescribed and for what purpose.

Equivalence and consistency of standards of care varies between regions, and even from one institutionto another. Prevention and management of chronic health conditions is difficult in the absence of a reliable data management tool…(page 21) [140] These findings led the Correctional Investigator to recommend that “CSC’s review of chronic health conditions be integrated withand inform a comprehensive prevention strategy to reduce premature mortality.” (page 22) [141] Premature mortality has been a concern of the Correctional Investigator.

In his 2013 – 2014 Report, he describes an independentreview his Office commissioned, using the services of a senior medical practitioner, into the quality and adequacy of care provided in asample of fifteen deceased male offenders. The CI’s Report observes: The findings of the investigation were disturbing.

The review raised serious compliance issues concerning the quality and adequacy ofhealth care provided; questionable diagnostic practices; incomplete medical documentation; quality and content of information sharingbetween health care providers and correctional staff and delays and/or lack of appropriate follow-up on treatment recommendations…” [142] According to the Correctional Investigator, CSC’s mortality reviews conducted on these 15 cases had concluded that the careprovided to the deceased offender was “congruent” with “applicable” health care standards and policy. (page 29) [143] The areas of concern identified by the Correctional Investigator and the deficiencies in the delivery of health care by CSC maywell inconvenience or disadvantage many offenders with health problems who are sentenced to prison.

I am not addressing the issue atthat level. I will be examining whether Mr. Al-Awaid should be considered one of those rare cases where the disadvantages to animprisoned offender’s health are likely to include the risk of a very serious consequence or even premature death. [144] Another subject area discussed by the Correctional Investigator is

section 121 of the CCRA.

Section 121 of the CCRA provides forthe option of early parole for the medically compromised offender. A number of courts have viewed

section 121 as a safety-net optionfor the seriously ill prisoner. The Crown’s submissions referred to it in these terms. However the CI’s Report indicates that “Very fewfederal inmates…are ever in fact granted…exceptional release…” under

section 121. (page 31) The Correctional Investigator reports therecent statistics as follows: Parole Board of Canada statistics indicate that in the last five years between 2008/09 and 2012/13, the Board reviewed a total of 11requests under

Section 121. Of these requests, 7 were granted and 4 were denied. (page 31) [145] In the CI’s mortality review process, CSC reported that 14 offenders of 35 “expected deaths” were considered for

Section 121release “but none were in fact granted.” Of the six applicants who didn’t die before or during the application process, five were deniedearly parole by the Parole Board. The Gravity of Mr. Al-Awaid’s Offences and the Mitigating Effect of His Health Problems [146] Leaving aside for a moment Mr. Al-Awaid’s h

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