R. v. Wang Date:, 2015 BCPC 302

Citation: R. v. Wang Date: 20151023 2015 BCPC 0302 File No: 233201-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. XUN WANG EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: J. Patterson Counsel for the Defendant: R. Clark, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: October 23, 2015

Date of Judgment: October 23, 2015 INTRODUCTION [ 1 ] THE COURT: Mr. Wang pleaded guilty to several offences contained in Indictment 233201-C-2. Those offences are briefly described as follows: [ 2 ] Count 1, between December 31st, 2006, and June 30th, 2011, he provided advice and consultation to persons who were the subject of proceedings or applications before the Minister, thus committing an offence under s. 125 (

a) of the Immigration and Refugee Protection Act . The maximum penalty for this offence is a fine of $50,000 and two years' imprisonment. [ 3 ] Count 2, between June 29th, 2011, and October 17th, 2014, he knowingly advised and represented persons in connection with proceedings or applications under the Immigration and Refugee Protection Act and thereby committed an offence pursuant to s. 91(9)(

a) of the Act . The maximum penalty for this offence is a fine of $100,000 and imprisonment for two years. [ 4 ] Count 3, between December 31st and October 17th, 2014, in order to contravene the Immigration and Refugee Protection Act , he did use, import, export, or deal in Chinese passports and thereby commit an offence pursuant to s. 123(1) (

b) of the Immigration and Refugee Protection Act . The maximum penalty for this offence is 14 years' imprisonment. [ 5 ] Count 5, between December 31st, 2006, and October 17th, 2014, he knowingly misrepresented material facts that induced or could have induced an error in the administration of the Immigration and Refugee Protection Act and thereby commit an offence under s. 128 (

a) of the Immigration and Refugee Protection Act . The maximum penalty for this offence is 14 years' imprisonment. [ 6 ] Count 7, between December 31st, 2006, and October 17th, 2014, he knowingly made false passports with the intent that they be acted on thereby committing an offence under s. 367 (

a) of the Criminal Code . The maximum penalty for this offence is 10 years' imprisonment. [ 7 ] Count 10, between December 31st, 2006, and October 17th, 2014, he defrauded the Government of Canada contrary to s. 380(1) of the Criminal Code . The maximum penalty for this offence is 14 years' imprisonment. [ 8 ] Count 13, between February 26th, 2008, and July 25th, 2013, he obtained refunds, to wit, working income tax benefits in the amount of $187,901.24 by making false or deceptive statements thereby committing an offence contrary to s. 239(1.1)(

a) of the Income Tax Act . The maximum penalty is a fine of 200 percent of the monies obtained and a minimum of a fine of 100 percent of the monies obtained and five years' imprisonment. [ 9 ] Count 15, between December 31st, 2006, and April 15th, 2013, he wilfully evaded income tax in the amount of $2,722,305 and therefore evaded paying income tax of $730,837 thus committing an offence contrary to s. 239(1)(

d) of the Income Tax Act . The maximum penalty for this offence is a fine of 200 percent of the monies evaded and up to five years' imprisonment. The minimum sentence is a fine of 100 percent of the monies obtained. CIRCUMSTANCES OF THE OFFENCES Illegal Immigration Consulting (Counts 1 and 2) [ 10 ] On June 14th, 2001, Mr. Wang incorporated New Can which was an immigration consulting business. On December 3rd, 2004, Mr. Wang opened a second consulting immigration business, Wellong. These companies operated out of different locations and had a total of 14 employees.

The purpose was to assist individuals in coming to and remaining in Canada. The work typically involved helping clients obtain and maintain permanent residence status and/or Canadian citizenship. [ 11 ] All services provided by Mr. Wang and his employees between December 31st, 2006, and October 17th, 2007, were performed without Mr. Wang or his employees being members of the Canadian Society of Immigration Consultants or members of the Immigration Consultants of Canada Regulatory Council. [ 12 ] Originally, immigration consultants required membership in the Canadian Society of Immigration Consultants.

This was required by the Immigration and Refugee Protection Regulations . However, in mid-2011, the legislative regime changed whereby membership was required under the Immigration and Refugee Protection Act . Misrepresentation, Forgery, and Fraud (Counts 3, 5, 7, and 10) [ 13 ] As indicated, the purpose of Mr. Wang's business was to assist foreign nationals in obtaining citizenship or permanent residency. In order for an applicant to qualify for citizenship or permanent residency, there was a requirement that the applicant reside in Canada for a set period of time. Generally speaking, Mr.

Wang created a misleading paper trail resulting in the false impression that his clients were and had been living in Canada when, in fact, they were living in China. [ 14 ] A false paper trail misled the Canadian authorities into believing that the residency requirements had been met when, in fact, this was not the case. The mechanics of showing false Canadian residency was done via passport frauds, address frauds, employment frauds, false documents, and coaching clients to mislead Citizenship officers. Passport Frauds

[ 15 ] In order to confirm an applicant's time in Canada, Immigration authorities typically examined an applicant's passport. In this regard, they were looking for evidence that the applicant had been outside their country of origin for a period of time. What transpired is that, through a sophisticated and systematic scheme, Mr. Wang and his staff masterminded the altering of client passports thus creating the false impression that the clients had been in Canada. [ 16 ] Mr. Wang and his staff manipulated the system by instructing clients to forward their passports to Mr.

Wang and then obtain a replacement passport by reporting that their passports had been lost or stolen to the Chinese authorities. [ 17 ] Mr.

Wang and his staff would examine the passports received and determine what needed to be done to ensure that the passport supported the false notion that the client had been in Canada for a sustained period of time. [ 18 ] Once it was determined what modifications were required the passports were shipped back to China where they were manipulated by either the addition of stamp impressions, the alteration of stamp impressions, the removal of stamp impressions, or by cutting and pasting information into the passports.

All manipulations were intended to disguise and mislead the Canadian authorities as to the client's entry and exit dates from China. [ 19 ] Search warrants uncovered evidence of false stamp instructions for 243 different clients and 321 passports. Some instructions contained handwritten notes from Mr. Wang to persons in China who were directed on what impressions to add. Partial records indicated 18 deliveries of passports to China and a partial list recording 136 different clients and 177 passports.

Address Frauds [ 20 ] The application for citizenship and permanent residence were often made by clients who could not meet the Canadian residency requirements because they lived in China and not Canada. Accordingly and to create the impression that the applicant was living in Canada, Canadian addresses and phone numbers were used in the applications. [ 21 ] Although real addresses and real phone numbers, the clients did not reside at the addresses nor did they have access to the related phone numbers. All mail or phone calls received at the addresses and phone numbers were forwarded to Mr.

Wang. [ 22 ] Search warrants uncovered fraudulent addresses being used 107 times by 170 clients. Mr. Wang used detailed spreadsheets to track the addresses and phone numbers used. The material in the agreed statement of facts shows Mr. Wang had a network of people working in Alberta who were of assistance in facilitating the use of addresses and phone numbers, as well as, helping clients who had come to Canada to pick up their permanent resident renewal cards. Employment Fraud [ 23 ] Arrangements were made to make it appear that the Chinese clients were working for New Can, Wellong, or one of Mr.

Wang's other companies. The appearance of employment was created by fraudulent letters offering employment, phony paycheques, and phony business cards in the name of the client. [ 24 ] Once the appearance of the employment was created, the client would pay their own salary including income tax deductions and Canadian Pension Plan and Employment Insurance deductions. This was done by funneling funds through Mr. Wang's business who would then issue payroll cheques to the client. Subsequently, Mr.

Wang would issue a tax T4 reporting slip and then he would file tax returns on behalf of the clients. [ 25 ] Phony salaries were sufficiently low so that the income tax that had been deducted was refunded. As a result, Working Income Tax Benefits were paid to the clients. [ 26 ] The employment fraud had two distinctive benefits. First from an immigration perspective, it created a paper trail that could be used for permanent residence renewals and citizenship applications by providing the client with false evidence of Canadian residency. Second, the scheme resulted in the client receiving the tax benefit.

The total amount of the tax benefits alleged was $187,901.24. False Documents [ 27 ] Numerous false documents were located. These documents were created with the intention of creating the false impression of residency. These documents included letters from schools to clients indicating dates that children attended certain schools, as well as, altered lease agreements, and fraudulent letters from lawyers. Conclusion Regarding the Scope of the Fraud [ 28 ] A review of New Can and Wellong's records show approximately 1,200 clients paid approximately $10 million for fraudulent services.

Fraudulent tax credits (Count 13) [ 29 ] As previously mentioned, tax returns were filed for 146 clients. As a result, $187,901.24 was paid out as a working income tax benefit. Tax Evasion (Count 15) [ 30 ] For the tax years 2007 to 2012, Mr. Wang failed to report an income of $2,722,305. This resulted in the evasion of $730,837 in

federal income tax. The income reported by Mr. Wang in the years 2007 to 2011 was sufficiently low that he was able to collect $671.56 in working income tax benefits and $2,980 in GST credits. FINDINGS [ 31 ] In

summary, Mr. Wang's offences were complex, sophisticated, and well thought-out. It is noted his offences were committed over a number of years and involved co-opting the assistance of others. It is clear he was the mastermind behind the scheme. His conduct likely contributed to numerous persons fraudulently obtaining permanent residency and citizenship. I expect the Immigration authorities will have to review the circumstances of all those concerned and it is quite likely that some persons will be removed from Canada.

For greater details of the circumstances of the offence, is continued in the Agreed Statement of Facts; Exhibit 1. MR. WANG'S PERSONAL CIRCUMSTANCES [ 32 ] Mr. Wang is 46 years old. He is married and has two boys aged 15 and 13 years old. Mr. Wang has a Bachelor's degree in Engineering. He came to Canada in 1997 and he obtained his citizenship in 2000. He does not have a criminal record. [ 33 ] From 1998 to 1999, Mr. Wang worked as a life insurance agent. He spent a year unemployed and then, in 2001, he opened an immigration business, New Can Consultants Limited, with partner, Steven Vang. Originally, Mr.

Wang was a member of the Canadian Society of Immigration Consultants. However, in 2006, he let his membership lapse. In 2008, Mr. Vang passed away and Mr. Wang's business suffered. Employees left and others were considering operating competing businesses. [ 34 ] Mr. Wang learned of the various practices used to mislead Immigration officials through his employees and, at their urging, he started to use the methods within his business. Mr. Wang split his time between Vancouver and China and, as such, and submitted on his behalf, some of the fraudulent activities were actually carried out by Mr.

Wang's employees and not himself. POSITION OF THE PARTIES [ 35 ] The Crown argues a total custodial sentence of seven-and-a-half years less time served is required.

The Crown breaks down their position in the following manner: Counts 1 and 2, illegal immigration consulting, one year on each count; Count 3, dealing in a passport, three years; Count 5, misrepresenting facts, three years; Count 7, making false passports, five years; Count 10, defrauding the federal government, five years; Count 13, obtaining tax credits, one-year jail and the minimum fine of $187,901.24; Count 15, income tax evasion, 30 months' imprisonment with a fine of $730,837. [ 36 ] With respect to Counts 1, 3, 5, 7, 10, and 13, those sentences should be served concurrently to each other and Count 15 served consecutive, that is, two-and-a-half years to the others, with a total sentence of seven-and-a-half years less credit for time already served. [ 37 ] The defence argues all counts should be served concurrently with the result being a 30-month sentence less credit for the time already served. [ 38 ] The defence breaks down Mr.

Wang's sentence in the following manner: Counts 1 and 2, illegal immigration consulting, nine months imprisonment on each count; Count 3, dealing in a passport, 18 months' imprisonment; Count 5, misrepresenting facts, 18 months' imprisonment; Count 7, making false passports, 30 months' imprisonment; Count 10, defrauding the federal government, 30 months' imprisonment; Count 13, obtaining tax credits, one-year imprisonment and a minimum fine of $187,901.24; Count 15, income tax evasion, two years' imprisonment and a minimum fine of $730,837.

Principles of Sentencing [ 39 ] The relevant purpose and principles of sentencing are set out in the Criminal Code , R.S.C. 1985, c. 46 , at s. 718 to 718.2. The fundamental purpose of sentencing is set out in s. 718 which states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct . . . (

b) to deter the offender and other[s] 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 or to the community. [ 40 ] A fundamental principle of sentencing is set out in s. 718.1 which states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 41 ] Further principles of sentencing are set in s. 718.2. These include: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Range of Sentences [ 42 ] The Crown and counsel for Mr. Wang placed before the court a number of cases involving immigration offences as well as cases involving fraud for financial gain. The number of persons involved in the immigration offences in the instant case is unique.

In this regard, none of the cases presented by counsel were to the scale of that perpetrated by Mr. Wang. Nevertheless, the cases provide some guidance. It should be noted that I have reviewed all of the cases submitted and I am focusing on those that are of the greatest assistance. The immigration cases can be summarized as follows. [ 43 ] R. v. Mendez , [2004] O.J. No. 5733 , Ontario Superior Court of Justice, the accused pleaded guilty to a single count pursuant to the Immigration Act . The offences were in relation to the accused's involvement with a false refugee claim for two clients.

She was captured on camera advising a client to falsely state she was being abused so she could claim refugee status. [ 44 ] The court found that the accused's motivation was altruistic. In imposing sentence, Justice Dambrot concluded denunciation and deterrence are paramount sentencing objectives in cases involving immigration frauds and the upper reformatory sentences are appropriate. The sentence was then adjusted for the mitigating factors and the accused was sentenced to nine months' imprisonment. [ 45 ] R. v. Khaira , 2011 ABPC 340 , the accused went to Hong Kong and couriered three packages to Canada.

The packages contained 6,000 Alberta driver's licence holograms and 14,000 counterfeit credit card holograms. The accused was 21, no prior criminal record, and enrolled in post-secondary education. She was sentenced to imprisonment for 14 months. [ 46 ] R. v.

El-Akhal et al, unreported, November 30th, 2011, Ontario Court of Justice, Information Number 11-106, the accused pleaded guilty to counselling misrepresentation under the Immigration and Refugee Protection Act as well as conspiracy to defraud the Citizenship Act and fraud in relation to tax offences. [ 47 ] The immigration and citizenship offences involved 13 fraudulent applications for permanent residency and citizenship. To create the appearance that the clients lived in Canada, they were given false addresses.

The scheme involved helping 150 clients apply for government identification and the filing of income tax returns for the clients. The tax returns were used to falsely represent that the clients lived in Canada and to obtain Child Tax Credits. [ 48 ] The tax fraud was over a five-year period and involved approximately $539,000. The accused received a three-year prison sentence and a fine of $539,000. [ 49 ] R. v. Jacobson , unreported, October 29th, 2012, Manitoba Provincial Court, the accused pleaded guilty to six offences.

Two Immigration and Refugee Protection Act offences were committed between September 2008 and June 2009. He was then released on bail and he committed additional offences as well as fraud and identity theft offences. The accused was a family man with no criminal record. He started a legitimate immigration business, but began breaking the law to the point of masterminding a large-scale fraud. [ 50 ] The court described the fraud as an "ongoing complex sophisticated planned". Of note, there were more than 373 victims and the offences were committed solely for profit.

The court accepted a joint submission and imposed a prison sentence of four-and-a-half years. [ 51 ] R. v. Khatchatourou and Rezik , 2012 ONSC 3511 , the accused were convicted of committing a series of mortgage frauds over a period of seven years. They used their connections to encourage recent immigrants to participate in the scheme by creating false employment records, bank statements, income statements, and citizenship documents. The loss to the financial institutions exceeded $1 million. The accused were sentenced to imprisonment for four years. [ 52 ] R. v.

Weijia and Wang , unreported, December 4, 2013, Ontario Court of Justice, the accused were part of a scheme wherein they arranged to have English proficiency tests written by persons fluent in English. These tests were written on behalf of Chinese

students who lacked English skills. The scheme involved having fraudulent Chinese passports created and imported to Canada to beused as identification for the setting of the examinations. [53] The court noted the scheme was an attack on the integrity of the immigration system and, therefore, denunciation anddeterrence were prominent sentencing objectives. Even though the accused were young, remorseful, first-time offenders, they received ajail sentence of two years. [54] R. v. Large, [2015] B.C.J.

No. 1513, the accused operated a business whereby she would place foreign persons into homes sothey could work as au pairs. Prior to the foreign workers arriving in Canada, the accused would instruct the worker to lie whenquestioned by Canada Border Services Agency staff. Investigation revealed that the accused had been involved in similar activities for ata minimum of four years with at least 107 instances wherein the accused counselled misrepresentation. [55] The accused's motivation was financial.

She pled guilty to a single count of committing an offence pursuant to s. 126 of theImmigration and Refugee Protection Act. The accused was 49 years old. She had no criminal record. She volunteered in thecommunity. She was married with four grown children. She was sentenced to a 15-month conditional sentence order and fined $15,000. [56] R. v. Ren, 2015 ONSC 3397, the accused pleaded guilty to five counts in committing offences contrary to s. 126 of theImmigration and Refugee Protection Act. She admitted the facts related to 16 further counts.

The offences involved arranging shammarriages between Chinese nationals and Canadians for the purpose of defeating the immigration process. The scheme occurred overseveral years and was motivated by profit. The accused was 46 years old. She had performed extensive community work service andher health was fragile.

She was sentenced to a conditional sentence of imprisonment for two years less one day. [57] Based on the authorities, I find the range for immigration fraud to be 15 months to four-and-a-half years' imprisonment. [58] I have reviewed those cases involving tax evasion and fraud and I conclude the range is imprisonment from two years less a dayto up to three years; see R. v. Showroom Lease Inc. and Mrsic, unreported, September 12, 2002, (B.C.P.C.); R. v. Bulua, 2006 BCSC1234; R. v. Alexander Street Lofts Development Corp. (2007), 2007 ONCA 309 , 86 O.R. (3d) 710; R. v.

Wells, unreported, July21st, 2008, (B.C.P.C.); R. v. Andrus, unreported, September 9th, 2013, (B.C.P.C.). ANALYSIS [59] After reviewing the authorities, I find the primary sentencing objectives in the instant matter is denunciation and generaldeterrence. In support, I refer to the cases already mentioned and I also note Madam Justice Stromberg-Stein comments in R. v. Li, 2001BCSC 458 , [2001] B.C.J. No. 748 (S.C.), at paragraph 7: Canada is a multi-cultural, multi-racial society.

Immigration is encouraged and Canada is enriched by the immigrants that it admits.Thousands of qualified immigrants are admitted every year. Canada must have the ability to protect and control its borders and screenand control the flow of migrants into this country so that only those deemed qualified are granted entrance to this country. Canada isentitled to select immigrants who reflect the values of Canadian society.

Those migrants who are exploited or funded by criminalorganizations, or who may owe an allegiance to or be vulnerable to unsavoury elements, are unlikely to be considered desirable oracceptable migrants to this country. Continuing at paragraph 9: There is an adverse impact on all Canadians due to the actions of those who facilitate the entry of illegal migrants to Canada, or toCanada as a back door to the U.S.A. Law-abiding Canadians who travel to the U.S.A. are faced with tighter border security andrestrictions.

There is an astronomical cost, borne by the Canadian taxpayer, associated with processing the claims of illegal migrants,returning them to their country of origin and prosecuting the organizers. The abuse of the refugee process, facilitated by the migrantsmugglers, undermines public confidence and support for the refugee process and fuels racial prejudice and racial tension in thecommunity.

The growing trade in people smuggling must be deterred because it adversely impacts on all aspects of Canadian society. [60] This court appreciates that Madam Justice Stromberg-Stein's comments were made in the context of migrant smuggling. Nevertheless, the comments are applicable to the circumstances of foreign nationals seeking citizenship or residency status on the basisof fraudulent claims. The comments reflect the importance of Canada protecting the integrity of its immigration process.

In fact, onecould argue the observations made are even more prescient in today's age of international terrorism. [61] Similarly, those offences involving large frauds and/or tax evasion requires a sentence that demands denunciation anddeterrence. This is because the majority of the Canadian commerce as well as the tax system places great emphasis on the currency oftrust, that is, a trust that people will properly report their income and a trust that people will not wrongly manipulate the many systems totheir advantage; see R. v. Witen, 2012 ONSC 4151 , 2012 O.J.

No. 3226, Superior Court of Justice. [62] The seriousness of tax evasion and its impact is reflected in the comments of Mr. Justice Cory in R. v. Knox Contracting, (SCC), [1990] 2 S.C.R. 338 (S.C.C.): It is fitting and appropriate that the s. 239 offences be considered as criminal law. The Income Tax Act is a major source of funds for thefederal government. Its provisions are applicable to most adult Canadians. The vast majority pay their income tax by way of payrolldeduction with little or no opportunity for evasion or misstatement.

Those who do evade the payment of income tax not only cheat theState of what is owing to it, but inevitably increase the burden placed upon the honest taxpayers. It is ironic that those who evadepayment of taxes think nothing of availing themselves of the innumerable services which the State provides by means of taxes collectedfrom others.

The entire system of levying and collecting income tax is dependent upon the integrity of the taxpayer in reporting and assessing income. If the system is to work, the returns must be honestly completed. All taxpayers have the right to know that it is a criminal violation to commit any of the offences described in s. 239. The Act imposes a public duty. A breach of that fundamentally important public duty should constitute a criminal offence. [ 63 ] In

summary, I find the gravity of the offences committed by Mr. Wang to be serious. His actions served to undermine Canada's immigration process with the result that the public's confidence in the process has been damaged. Further, he took advantage of the self- reporting nature of the tax system thus depriving the public purse of funds and increasing the burden to all. I also find Mr. Wang's moral culpability to be high. His offences demonstrated forethought, planning, and with significant complexity and the only motive being profit. AGGRAVATING FACTORS [ 64 ] Mr.

Wang masterminded a sophisticated and complex scheme of deception and fraud designed to mislead Immigration authorities. Mr. Wang's motives were purely financial. The scope of Mr. Wang's offending was large in number and expansive in time. Mr. Wang co-opted others locally, nationally, and internationally into assisting him. [ 65 ] Mr. Wang continued offending despite knowing search warrants had been executed at one of his offices. The amount of state resources required to investigate not only the original offences of Mr. Wang, but all those who worked for Mr. Wang, as well as, those who through Mr.

Wang's involvement obtained citizenship or permanent residency. [ 66 ] Mr. Wang flagrantly violated the terms of his bail. This finding is supported by his counsel's comments at paragraph 11 of this written submissions. I quote [as read in]: When the accused was released on bail, he understood his bail conditions. He was not endeavouring to comply with them. With the cooperation of the Regis manager to whom he showed his bail conditions, he was able to assign his lease to the office building.

He had a few clients and customers that he had to return documents to, et cetera, as he shut down his business and that was what he was engaged in when he was rearrested. [ 67 ] I do not accept Mr. Wang was generally engaged in the altruistic task of returning items. This is because investigation revealed he was forwarding applications to Citizenship and Immigration Canada. Moreover, he was a sophisticated individual who could have applied to the courts to have his conditions amended in order to facilitate the winding down of his business. He did not do this.

I accept his counsel's words [as read in]: When the accused was released on bail, he understood his bail conditions. He was not endeavouring to comply with them. [ 68 ] This likely describes Mr. Wang's attitude towards his bail conditions. MITIGATION [ 69 ] Mr. Wang's guilty pleas are significantly mitigating. He has saved the state the time and expense associated with prosecuting a matter that would have required numerous witnesses and taken many days of trial time. Further, Mr. Wang entered into a comprehensive agreed statement of facts thus saving the court from a protracted and complex sentencing hearing. Mr.

Wang has no criminal record. [ 70 ] I have considered the submission by Mr. Wang's counsel that Mr. Wang has suffered significant public humiliation. With the greatest of respect to counsel, I do not find this to be mitigating. Mr. Wang operated companies in the public eye. He provided services to the public and, in doing so, he chose to commit offences against public entities. The fact that his offences attracted media attention is the risk that an offender takes when they choose to commit offences.

CONSECUTIVE VERSUS CONCURRENT SENTENCES [ 71 ] The Crown argues the sentences for Counts 1, 2, 3, 5, 7, 10, and 13 should be concurrent with one another and Count 15, the tax evasion, should be consecutive to the other sentences. Counsel for Mr. Wang argues all of the offences are interrelated and represent a linked series of acts with a single endeavour. He supports this by pointing out the offences were closely connected in time, place, and circumstances and he highlights the tax monies obtained arise out of the immigration offences. [ 72 ] In R. v.

Li , 2009 BCCA 85 , the court set out the test for determining whether sentences should be consecutive or concurrent. At paragraph 42, the court stated: The test for the imposition of a consecutive or concurrent sentence is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W. (1998), 106 B.C.A.C. 239 at para. 35 . [ 73 ] In the circumstances of the instant case, I find, with the exception of Count 15, all of Mr.

Wang's offences were linked in that they were committed with a main purpose of misleading Citizenship and Immigration Canada by creating the false impression that Mr. Wang's clients were residing in Canada. In contrast, Mr. Wang's tax evasion was not committed for the main purpose of misleading Immigration officials. Rather, the offence was committed entirely for his benefit and not the benefit of his clients.

[74] As such, and relying on the reasoning in Li, supra, the sentences imposed for Counts 1, 2, 3, 5, 7, 10, and 13 will concurrentwith one another and Count 15, the tax evasion, will be consecutive to the other sentences imposed. CREDIT FOR TIME SERVED [75] Mr. Wang was originally arrested on October 15th, 2014, and released on October 21st, 2014. Counsel agree Mr. Wang shouldreceive credit for this period calculated at a rate of 1.5 days for every day served. As such, the actual time served was six days with acredit for nine days. [76] In May 2015, investigators discovered 50 packages had been shipped from Mr.

Wang's office to the Canadian Immigrationauthorities. Inside these packages were permanent residency renewals and citizenship applications. One of the applications wasfraudulent. The processing and handling of the applications was a violation of Mr. Wang's release conditions. As such, a s. 524 warrantwas issued and Mr. Wang was arrested on June 4th, 2015. Since that time, he has consented to remain in custody. [77] The Crown argues Mr. Wang can be denied enhanced credit on the basis of Mr. Wang's poor conduct while on bail. [78] Counsel for Mr.

Wang argues he is entitled to enhanced credit on the basis he consented to remain in custody and therefore hewas never detained pursuant to s. 524(4) and (8) of the Criminal Code. Accordingly, his situation is not one referred to in s. 719(3.1)and, hence, pursuant to the reasoning in R. v. Vinepal, 2015 BCCA 349, he should be credited at the rate of 1.5 days for each day incustody. [79] The Truth in Sentencing Act, S.C. 2009, c. 29, amended the Criminal Code provisions in relation to credit for pretrial custody.

The provisions in issue are s. 719(3) and (3.1) which read as follows: 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any timespent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day foreach day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custodyunless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained incustody under subsection 524(4) or (8). [80] The Supreme Court of Canada in R. v.

Summers has resulted in the general proposition that those who consent to remain incustody or who are detained in the first instance receive credit at a rate of 1.5 to one. [81] Our Court of Appeal in Vinepal, supra, recently visited the issue of enhanced credit in the circumstances of a person consentingto remain in custody after having been arrested for breaching a condition of bail. At paragraphs 15 to 19, Madam Justice Bennett stated: [15] In R. v.

Chambers, 2014 YKCA 13, the Court held that there was no need to make a detention order under s. 524(8) for s.719(3.1), which is the statutory bar to enhanced credit to be applied and enhanced credit denied. Cancellation of the bail was sufficient toengage the statutory prohibition to enhanced credit. [16] On the other hand, in R. v. Costain, 2014 BCCA 458, Mr. Costain similarly consented to his detention, rather than have the courtcancel his bail pursuant to s. 524(8). He was ultimately acquitted on the offences underlying the breach of his bail, and the Crownwithdrew the application to cancel his bail.

This Court concluded that because Mr. Costain was never found in "breach" of his bail, hewas entitled to enhanced credit. [17] It is clear that Parliament did not intend for those who breached their bail to receive enhanced credit. (See R. v.

Safarzadeh-Markhali, 2014 ONCA 627 at para. 55.) Parliament, however, denied enhanced credit for those "detained in custody" pursuant to ss.524(4) and (8), and an accused who consents to remain in custody, without a bail cancellation hearing, after arrest under s. 524(2) or (3),is not "detained in custody" under either of those sections. [18] The onus lies with the Crown to bring an application to cancel a bail order. The words of the

section are clear; enhanced credit isnot available once a person is "detained". "Detained" cannot include "arrest" as that would eliminate the onus on the Crown to satisfy ajudge or justice, as the case may be, that the accused's conduct met the first part of the test in ss. 524(4) and (8). [19] It also cannot mean that the order cancelling the bail and the concomitant detention order are retroactive to the time of theaccused’s arrest under s. 524.

There is nothing in the wording of the statute that would permit a retrospective application of the section.While it appears an accused can circumvent the intention of Parliament by consenting to remain in custody, I agree with the defence thatit is not for the Court to read language into the

section to repair this legislative gap, particularly since it is penal legislation, which is tobe strictly construed. (See R. v. Paré, (SCC), [1987] 2 S.C.R. 618 at 630.) [82] Applying this reasoning, Mr. Wang's bail was never cancelled and he was never detained pursuant to ss. 524(4) or (8). As such,

he is therefore entitled to credit on the basis of 1.5 days for each day served in custody. [ 83 ] Accordingly, Mr. Wang's presentence custody should be credited in the following manner: Arrest date, October 15th, 2014, to release date of October 21st, 2014, six days' time served; arrest date of June 4th, 2015, until today which is October 23rd, 2015, four months, 20 days' time served. Mr. Wang's total time served is four months, 26 days. He will receive a credit of seven months, nine days.

DECISION REGARDING THE SENTENCES [ 84 ] In regarding what would be an appropriate and fit sentence, this court carefully considered the very able submissions of Mr. Wang's counsel, and I respectfully conclude that the sentence suggested fails to give proper weight to the seriousness of the offences and, therefore, would not adequately denounce or deter the conduct. As previously stated, Mr. Wang's offences were serious.

Specifically, his actions not only harmed the public's confidence in the immigration process, but he also assisted numerous persons in fraudulently obtaining residency or citizenship. [ 85 ] The only available explanation for Mr. Wang's actions is greed. That is, he placed his financial interests above all including the law. Mr. Wang's actions demand denunciation and deterrence. That is, through the sentence imposed today, this court will express society's condemnation for Mr.

Wang's wrongful acts while at the same time protecting society by reminding those who are inclined to commit similar offences that the response by the courts will be strong. [ 86 ] Having considered the facts of the instant case, the sentencing principles, Mr.

Wang's personal circumstances, and the relevant jurisprudence, I impose the following sentences. [ 87 ] Stand up, sir. [ 88 ] Counts 1 and 2, illegal immigration consulting, one-year imprisonment on each count; Count 3, dealing in passports, three years' imprisonment; Count 5, misrepresenting facts, three years' imprisonment; Count 7, making false passports, five years' imprisonment; Count 10, defrauding the federal government, five years' imprisonment; Count 13, obtaining tax credits, one-year jail and the minimum fine of $187,901.24; Count 15, income tax evasion, two years' imprisonment with a fine of $730,837. [ 89 ] Counts 1, 3, 5, 7, 10, and 13, will be served concurrently to each other and Count 15 will be served consecutive to the others just mentioned. [ 90 ] The total sentence imposed is seven years less the credit of seven months, nine days, for a balance remaining of six years, four months, 21 days.

THE TOTALITY PRINCIPLE [ 91 ] Having imposed consecutive sentences, I now turn to the consideration of whether the sentences cumulatively exceed Mr. Wang's culpability. Having considered whether the total sentence of seven years is commensurate with Mr. Wang's culpability, I note the following: the offences were committed over a number of years; the offences required a high degree of planning and sophistication; Mr. Wang involved others in his offences; evidence found indicated that Mr. Wang was directly involved in instructing others on the alteration of passports; the scope of Mr.

Wang's offences including the amount of clients involved, the monies earned, and the various jurisdictions used; that Mr. Wang not only continued to offend after his home and offices were searched, but he also breached a related condition of his bail. [ 92 ] The above are only some of the factors that satisfy this court that Mr. Wang's culpability is extremely high and commensurate with the seven-year total sentence. [ 93 ] I did not hear submissions on the victim fine surcharge.

These offences bridge the amendments to the legislation and I am inclined to waive the victim fine surcharges in light of the penalty imposed. [ 94 ] Any issue by the Federal Crown on that? [ 95 ] MS. PATTERSON: No submissions from Crown. [ 96 ] MR. CLARK: No, Your Honour. [ 97 ] THE COURT: All right, thank you. I take it the forfeiture document will be forwarded to me later? [ 98 ] MS. PATTERSON: Yes, Your Honour. [ 99 ] THE COURT: All right. Any other issues, counsel? [ 100 ] MS. PATTERSON: The only issue to address would be time to pay with respect to the fines, should any be requested by Mr.

Clark on behalf of his client. [ 101 ] MR. CLARK: My friend and I have discussed that and, quite frankly, the utility of that, but we would ask Your Honour maybe for eight months or so? [ 102 ] THE COURT: I will make it the time to pay the fine is one year. [ 103 ] MR. CLARK: Thank you. [ 104 ] THE COURT: All right. Any other issues, counsel?

[ 105 ] MS. PATTERSON: Only a stay of proceedings to be entered, Your Honour, against the remaining charges. [ 106 ] THE COURT: All right. Stay of proceedings on the remaining counts. [REASONS FOR SENTENCE CONCLUDED]