R. v. Bhatti, 2022 BCPC 151

Citation: R. v. Bhatti 2022 BCPC 151 Date: 20220531 File No: 240462-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. BALRAJ SINGH BHATTI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: P. Meneguzzi Counsel for the Defendant: W. Oppal, QC and L. Mackoff Place of Hearing: Surrey , B.C. Date of Hearing: March 30-31, 2022 Date of Judgment: May 31, 2022

Introduction [ 1 ] On 8 June 2021, Balraj Singh “Roger” Bhatti pleaded guilty to three counts of forgery under section 366(1) (

b) of the Criminal Code , six counts of uttering forged documents under section 368(1) (

b) of the Criminal Code , and eight counts of misrepresentation under

section 127 (

a) of the Immigration and Refugee Protection Act (“ IRPA ”). The Crown has proceeded by indictment. The maximum sentence for forgery and uttering a forged document is 10 years jail; the maximum sentence for the IRPA offence is five years jail and a $100,000 fine. [ 2 ] Mr. Bhatti was a lawyer and member in good standing of the Law Society of British Columbia when he committed these offences, which date back to 2005, although most of the conduct particularized in the Indictment occurred between 2009 and 2014. During those years, Mr.

Bhatti had a busy practice representing clients seeking convention refugee status in this country, and he appeared frequently as counsel before the Immigration and Refugee Board (“IRB”) [ 3 ] Counts 1 to 3 and 5 through 10 charge the Criminal Code forgery and uttering offences in ss. 366(1) (

b) and 368(1) (

b) respectively. These offences were committed when Mr. Bhatti forged notes from his family physician at the time, asserting either that he or his client was not well and was unable to attend for a scheduled hearing before the IRB. Mr. Bhatti then submitted these forged notes to the IRB in support of applications to adjourn a number of hearings which had been set down for several of his clients. [ 4 ] Counts 12 through 19 are the allegations of misrepresentation under s. 127 (

a) of the IRPA . Here, Mr. Bhatti worked in concert with a Hungarian speaking interpreter/translator, Sofiane Dahak, to create documents that purported to be a Hungarian death certificate (count 12) and medical and police reports (counts 13-19). Those reports were subsequently filed at the IRB in support of convention refugee claims advanced by several of Mr. Bhatti’s clients. Procedural History [ 5 ] In July 2012, the Canada Border Services Agency (“CBSA”) opened an investigation of Bhatti and Dahak. The CBSA was acting on an intelligence report which identified Mr.

Dahak as part of a group which was believed to be offering assistance, some of it illegal, to Hungarian nationals looking to claim convention refugee status in this country. [ 6 ] On 2 June 2014, CBSA investigators obtained warrants to search Mr. Bhatti’s law office and Mr. Dahak’s residence and car. A court appointed referee conducted the law office search. The referee, together with a forensic computer expert and a translator, reviewed documents, computers, and other electronic devices located at Mr. Bhatti’s office to resolve any potential claims of solicitor-client privilege.

On the 23 rd of August 2016, Associate Chief Justice Cullen of the Supreme Court of British Columbia ordered the release of non-privileged materials from the Bhatti law office search to CBSA investigators. There were six extensions of orders to detain things seized pursuant to these warrants before a Report to Crown Counsel was submitted and charges were approved. [ 7 ] The 20 count Information was not sworn until 11 September 2020. Mr. Bhatti and Mr. Dahak were named as co-accused on counts 13-20, which are the offences contrary to s. 127 (

a) of the IRPA . The Law Society of British Columbia suspended Mr. Bhatti and appointed a custodian for his law practice soon after these charges were sworn. [ 8 ] On 18 June 2021, Mr. Dahak appeared before me and entered guilty pleas on counts 13-19 on the Information. Crown counsel and counsel for Mr. Dahak filed a signed Agreed Statement of Facts (“ASF”) which formed the evidentiary underpinning for the sentence hearing.

Counsel presented a joint submission for a Conditional Sentence Order (“CSO”) of two years less a day with conditions that included house arrest for the first eight months, a curfew for the next eight months, and 100 community work hours. The parties also suggested a global fine of $14,000 ($2,000 per count). I applied the test in R. v. Anthony-Cook, 2016 SCC 43 , and imposed the sentence jointly recommended by counsel. [ 9 ] Crown counsel submits that a fit sentence for Mr. Bhatti on all counts would be a global three years jail, with an additional $100,000 fine for the IRPA offences.

The Crown says that the fine should be added to the jail sentence because the IRPA offences were both frauds on the immigration system, and that these were economic crimes committed in the course of Mr. Bhatti’s legal practice. Counsel for Mr. Bhatti does not agree that a sentence of institutional jail is required, and submits that a fit disposition would be a Conditional Sentence Order (“CSO”) with sufficiently punitive conditions. Circumstances of the Offences Committed by Mr. Bhatti i. Counts 1-3 and 5-10 [ 10 ] As noted above, Mr.

Bhatti forged a number of medical letters and notes which he employed to obtain adjournments at the IRB. [ 11 ] As an example of this conduct, I will reproduce counts 1 and 5, which link the two charges of forgery and uttering forged documents with respect to L.A., one of Mr. Bhatti’s clients who had a refugee hearing scheduled before the IRB: Count 1 (Mr.

Bhatti), between February 9, 2002 and February 6, 2009…did knowingly make a false document, to wit: a medical note dated February 5, 2009 from Rashmi Singhai, MD regarding L.A. with intent that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything…and did thereby commit forgery contrary to section 366(1) (

b) of the Criminal Code . Count 5 (Mr. Bhatti), on or about February 5, 2009….did knowing or believing a document is forged, cause or attempt to cause a person to use, deal with or act upon the forged document as if it were genuine, to wit: a medical note dated February 5, 2009, from Rashmi Singhai, MD regarding L.A. submitted to the Immigration and Refugee Board on February 5, 2009, contrary to section 368(1) (

b) of the Criminal

Code . [ 12 ] In this example, Mr. Bhatti forged a letter on the letterhead of his personal family physician, Dr. Singhai, which stated in some detail that L.A. had suffered chest pains and other symptoms possibly consistent with a cardiac event, had been admitted to hospital and released, that she knew about L.A.’s upcoming refugee hearing, and recommended that he “not exert himself, or subject himself to any undue stress for at least the next couple of weeks.” [ 13 ] Mr.

Bhatti faxed this letter to the IRB on 5 February 2009 with his own cover letter advising that L.A. would not be able to attend his hearing the following day. On the strength of this letter, the matter was adjourned when Mr. Bhatti, without his client, attended for the hearing on 6 February. [ 14 ] Counts 2 and 6 are linked in a similar way, but this time Mr. Bhatti forged and submitted to the IRB a letter purporting to be from Dr. Todd Sakakibara, which stated that Mr. Bhatti’s client, B.O., suffered from auditory asphasia (deafness), had damaged his hearing aid and would need some time to obtain a new one.

The note was dated 16 May 2011; the hearing was scheduled for the following day. On the strength of the medical note, the adjournment application was allowed. [ 15 ] Counts 3 and 9 involve another forged note in the name of Dr. Sakakibara; this one was dated 24 August 2011. Mr. Bhatti submitted this note in support of an application to adjourn a hearing for B.O., which was scheduled for the following day.

The note explained that B.O. was suffering from kidney stones and was in extreme discomfort “as she has been unable to pass these stones to date”; the note recommended rest and suggested a recovery period of approximately two weeks. The application to adjourn was allowed on the strength of this note. [ 16 ] Counts 7, 8 and 9 are stand-alone offences. Here, Mr. Bhatti submitted to the IRB documents he knew or believed to be forged, with the intention of causing the IRB to act on them. The documents relevant to these counts were fake medical letters from Dr.

Singhai prepared on her letterhead and dated 27 June, 18 July, and 29 October 2011 respectively. Each letter asserted that Mr. Bhatti himself had health issues which prevented him from attending for scheduled hearings before the IRB. Mr. Bhatti submitted all three letters in support of successful applications to adjourn a number of matters which had been scheduled for hearing before the board.

The June and July notes were submitted the day before the scheduled hearing; the 29 October note was employed for a hearing scheduled for 31 October; that note was not submitted to the IRB until the day of the hearing itself. [ 17 ] Dr. Singhai and Dr. Sakakibara were interviewed by CBSA investigators. When shown the letters and notes, they advised that they had not met any of these individuals and had not prepared these documents. Dr. Singhai was also interviewed with respect to the fake letters about Mr. Bhatti’s health; she told investigators that she had not met with Mr.

Bhatti on the dates indicated in those letters, and had not prepared or signed them. ii. Counts 12-19 [ 18 ] All of these counts describe offences under s. 127 (

a) of the IRPA : 127 No person shall knowingly (

a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; [ 19 ] Applicants for convention refugee status must set out basic biographical information about themselves and the significant events and reasons that have led them to claim refugee protection in Canada.

This information is set out in a Personal Information Form (“PIF”) which is filed with the IRB. [ 20 ] All of the applicants particularized in counts 12-19 identified as ethnically Roma in their PIF and claimed that they and other members of their family were persecuted by Hungarian police and/or racist and violent Hungarian civilians and right wing political organizations because of their Roma ethnicity.

Specific incidents of physical and emotional abuse as well as institutional and societal prejudice are described in the narrative portions of the PIF. [ 21 ] In addition to the PIF, applicants may file with the IRB documentary and other evidence which corroborates the information set out in the PIF and is otherwise material to their claim. [ 22 ] With respect to count 12, Mr. Bhatti filed with the IRB a forged death certificate knowing that the information on that document had been altered to line up with the PIF filed in that claim.

In this case, the C. family - mother, father and their two children - applied for refugee status based on a series of violent encounters with civilians and indifference from Hungarian police. The PIF describes one particularly violent incident on the 18 th of June 2008, when the father and his brother were attacked and stabbed repeatedly; the brother was killed. Curiously, in the biographical portion of the PIF the family reported that Mr. C.’s brother died on 17 December 1995, which investigators later confirmed was the correct date. Mr.

Bhatti filed with the IRB a false death certificate for the brother, showing the 18 th of June 2008 as his date of death; this date of death matches the information in the narrative portion of the PIF. [ 23 ] In committing the offences described in counts 13-19, Mr. Bhatti submitted Hungarian police reports and/or medical records which he knew to be false, with the intention of inducing the IRB to make a finding in favour of his clients. Mr. Bhatti submitted instruction sheets to Mr. Dahak to create the false reports; the reports were designed to line up with information provided by the claimants in their PIF.

Mr. Dahak received the instruction sheets prepared by Mr. Bhatti, created the false documents in Hungarian, and translated them into English. [ 24 ] Some of these applicants were successful with their refugee claims while others were not, but all of these documents were received and considered by the IRB as if they were authentic. [ 25 ] I will not summarize the details of all seven IRPA counts. Mr. Bhatti’s conduct with respect to counts 14 and 16, which relate to

the K family’s application for refugee protection in Canada, is sufficient to illustrate the steps taken by Mr. Bhatti to deceive the IRB. His conduct with respect to the other counts follows the same general pattern. [ 26 ] Mr. Bhatti submitted two false medical reports and two false police reports in support of the refugee claim advanced by the K. family (the other two reports form the subject matter of counts 13 and 15). Counts 14 and 16 are charges with respect to false reports which purport to corroborate a violent incident on the 16 th of August 2008 described in the PIF.

The narrative describes an attack on Ms. K. by a neighbour with a blade he had been using to cut his grass; Ms. K. suffered a cut to her hand which needed stitches, and the matter was reported to police. The Hungarian police report – on police letterhead and marked with an official looking stamp – includes an allegation that the neighbour called Ms. K. a “stinking gypsy” during the attack. The medical report – again with a stamp designed to make the document appear authentic − describes a laceration to Ms. K.’s right hand that required five stitches. Mr. Bhatti’s written instructions to Mr. Dahak, located on Mr.

Bhatti’s office computer, line up with the contents of these two reports. [ 27 ] All of the documents described in counts 12-19 were material to the refugee claims advanced by Mr. Bhatti’s clients at five separate hearings before the IRB; Mr. Bhatti relied on these documents and referred to them during oral submissions before the board. The Disputed Facts [ 28 ] The Crown filed a statement of facts which was marked as an exhibit at this sentence hearing. As I understand it, Mr. Bhatti does not take issue with anything in that document.

He does, however, assert that there are important facts missing, the absence of which leaves a false impression of Mr. Dahak’s level of moral blameworthiness. [ 29 ] This issue forms part of Mr. Bhatti’s submission that a CSO would be a fit sentence in this case. The argument is unusual, and can best be summarized this way: counsel asks me to consider facts not included in the ASF filed at Mr. Dahak’s sentence hearing. I am then asked to find that these additional facts bring Mr. Dahak and Mr. Bhatti to a place of rough equivalency when considering their respective moral blameworthiness for the IRPA offences.

Counsel submits that the principle of parity in s. 718(2)(

b) of the Code, which holds that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, requires that Mr. Bhatti receive the same sentence as the CSO given to Mr. Dahak. [ 30 ] Mr. Mackoff asserts that Mr. Dahak was the main organizer and directing mind of a human smuggling operation aimed at assisting Hungarian nationals to advance false refugee claims in this country, and that Mr. Bhatti was but one cog in Dahak’s scheme. In support of this claim, he relies on two documents.

The first, a CBSA intelligence report from June of 2012 with the title “Organized Irregular Migration of Hungarian Nationals to the Pacific Region” (“the CBSA Report”), was marked as an exhibit for identification and placed under seal. The second document is a statement given to CBSA investigators in November of 2013 by Mr. K. (not the same family referred to in counts 13-16), a Hungarian national who was granted refugee status in this country.

The contents of that statement were described to me in general terms in both written and oral submissions, but, at my suggestion, it was not marked and entered into the record at this sentence proceeding. [ 31 ] The Crown takes the position that although hearsay may be admitted at a sentence hearing in some circumstances, these documents are not sufficiently credible and trustworthy and should not be considered in arriving at a fit sentence for Mr. Bhatti: R. v. Pahl, 2016 BCCA 234 . Crown also submits that the ASF filed at Mr.

Dahak’s sentence hearing, where Crown and defence presented a joint submission, cannot now be augmented or altered at the sentence hearing for a co-accused. Finally, Crown counsel reminds me Mr. Bhatti has admitted that he provided written instructions to Mr. Dahak for the creation of false documents which Mr. Bhatti then filed with the IRB, facts which are inconsistent with the notion that it was Mr. Bhatti taking direction from Mr. Dahak. [ 32 ] The CBSA report is based on information provided by a variety of government and police agencies.

Parts of the report are redacted, and not all of the opinions are sourced. The author of the report (who is not identified) expresses a belief that three criminal groups are engaged in the irregular (I presume this to mean illegal) migration of Hungarian nationals into Canada. The executive

summary identifies Mr. Dahak as “the main organizer of this movement”, and describes him as a local resident known to work for a local immigration lawyer; later in the report, Mr. Bhatti is named as that lawyer. The executive

summary continues with this passage at page 4: Evidence suggests DAHAK is involved in organizing the entry into Canada of these migrants and providing them with fraudulent stories that serve for the basis of their claims. [ 33 ] Although Mr. Dahak is described as “the main organizer of this movement”, the report goes on to find that there are no known connections between Mr. Dahak and the other two criminal groups believed to be engaged in the practice of moving Hungarian refugee claimants into Canada. The Dahak portion of the report ends with the writer’s expressed “belief” that Mr.

Dahak “continues to be a central figure in the recruitment and facilitation of irregular migrants into Canada.” The report includes a fee

schedule for Dahak and Bhatti which is sourced to a refugee claimant identified only by a claim number. After describing the activities of the other two “criminal groups”, the report recommends that these matters be referred “for a possible criminal investigation” of Dahak and other named targets believed to be associated with groups two and three. [ 34 ] Counsel for Mr. Bhatti supports his submission by referring to a first draft of the ASF for the Dahak sentencing; that initial draft included a reference to the CBSA Report and the author’s conclusion that Mr.

Dahak was involved in organizing the entry into Canada of Hungarian immigrants and providing them with false stories (the relevant excerpt from that first draft was marked here as Exhibit A for Identification). Although this passage was removed from the ASF at the request of counsel for Mr. Dahak, counsel for Mr.Bhatti submits that the Crown considered these assertions sufficiently credible and trustworthy to include them in that first draft. Counsel submits that it is inconsistent and unfair for Crown counsel to argue that the same information is not admissible at Mr.

Bhatti’s sentence hearing. [ 35 ] Crown counsel, who was also the prosecutor at the Dahak sentencing, says this introduction in the first draft of the Dahak ASF was included merely to describe the genesis of the investigation that eventually led to charges against Dahak and Bhatti. She included that passage as narrative, and not as specific allegations to be admitted by Mr. Dahak. Given this limited purpose, she agreed to edit

those passages from the document that was ultimately filed at the Dahak sentencing. Crown counsel also points out that Mr. Dahak only plead guilty to counts 13-19, the IRPA offences, and was not charged at all on the forgery and uttering counts. [ 36 ] The second document referred to by counsel for Mr. Bhatti is the statement of Mr. K. In his statement, Mr. K. said he responded to an advertisement in a Hungarian newspaper. He was quoted a fee to bring his family to Canada and was advised to enter on a tourist visa, then bring a refugee claim. He said he was met at the airport by Mr.

Dahak and one other, and that Mr. Dahak invented a false PIF to support their claim. Mr. Bhatti was not his lawyer. Mr. K. and his family were granted refugee status. Mr. Mackoff submits that Mr. K.’s credibility is enhanced by the fact that he voluntarily confessed his illegal refugee claim some 12 years later. [ 37 ] While there may be times where the facts will change from the sentencing of one co-accused to another, I find that these materials are not sufficiently credible or trustworthy to be received here.

The CBSA Report is an amalgamation of information from numerous agencies based on witness statements from refugee claimants, many of which are not sourced by name. The report really amounts to little more than a recommendation to launch an investigation which may (or may not) uncover evidence which supports the writer’s expressed belief that Mr. Dahak was a main organizer of the scheme described in the report. [ 38 ] The second document, the statement of Mr. K., does not establish a link between Mr. Dahak and Mr. Bhatti, let alone a hierarchy which places Mr. Dahak at the top and Mr.

Bhatti in a more subservient role. I am unable to find that this document supports the proposition advanced by defence counsel, that Mr. Dahak was the directing mind of an organization which provided illicit support to Hungarian nationals seeking status in this country. This statement, given some 12 years after the fact, speaks only to a single incident. It does not prove that Mr. Dahak engaged in the pattern of conduct asserted by counsel for Mr. Bhatti.

And of course the allegations in this statement, such as they are, have not been tested in any way, nor have they been corroborated by other reliable evidence. [ 39 ] I find that the CBSA Report and the statement of Mr. K. are not sufficiently credible and trustworthy. They will not be admitted at this sentence hearing. If I am wrong and the documents ought to have been admitted, I find that they do not establish on a balance of probabilities that Mr. Dahak performed the role of the directing mind of an organization described by counsel for Mr. Bhatti in his submissions. [ 40 ] Finally, in considering Mr.

Bhatti’s submission that he should receive the same sentence as Mr. Dahak, it is important to recall that the Dahak sentencing featured a joint submission. At Mr. Dahak’s sentence hearing, I applied the test in R. v. Anthony-Cook , supra , and implemented the joint recommendation of counsel. [ 41 ] In Anthony-Cook , the Supreme Court of Canada considered and rejected a “fitness test” for joint submissions; the court came down in favour of a “public interest” test.

The public interest test requires that trial judges “should not depart from a joint submission unless the proposed sentence would bring the administration into disrepute, or is otherwise not in the public interest.” A joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system.” The court concluded that the public interest test, as distinct from the fitness test, “helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission”, including the importance of promoting certainty in resolution discussions: Anthony-Cook supra , at paras. 27-29, 31 and 33-34 . [ 42 ] At Mr.

Dahak’s hearing, I did not make any express finding as to the fitness of the sentence recommended in the joint submission. I applied the public interest test and found that following the joint recommendation would not bring the administration of justice into disrepute, and would not be contrary to the public interest. Circumstances of the Offender [ 43 ] Counsel for Mr. Bhatti has filed a number of letters of support; Mr. Bhatti’s own letter to the court; and an assessment of Mr. Bhatti’s personality and psychological functioning prepared by Dr. Robert Ley, who is a clinical and forensic psychologist.

The defence materials have provided helpful background information about Mr. Bhatti; they also touch upon factors which may have contributed to Mr. Bhatti’s decision to engage in this pattern of offending. [ 44 ] Mr. Bhatti is 63 years old. He has no prior criminal convictions. He was, however, disciplined by the Law Society in May of 1984 for purporting to witness the signature of a person on a power of attorney and on a document to be filed in the Land Title Registry when that person was not present, and for witnessing the execution of several other documents that were incorrectly dated. Mr.

Bhatti admitted that these matters constituted professional misconduct; he was reprimanded and fined. [ 45 ] But for this single blemish on his professional record, Mr. Bhatti enjoyed a long and successful legal career before engaging in the conduct which has landed him before this court. Given the somewhat unusual procedural chronology in this case, Mr. Bhatti was also able to continue his immigration law practice after the search warrant was executed at his law office in 2014 until he was charged and then suspended by the Law Society in late 2020. [ 46 ] Mr. Bhatti was born in Vancouver in 1959.

His father, Kesar, and mother, Jangbir, emigrated to Canada - with their respective families - from the Punjab, India. They meet in Canada and married in 1952. Mr. Bhatti’s older sister, Kulwant Kaur (“Bonnie”), was born in 1953. Kesar Bhatti graduated from UBC’s electrical engineering program and went on to a distinguished career with BC Electric, which later became BC Hydro. He was president of the Khalsa Diwan Society; in that role, he was instrumental in the building of the Sikh Temple on Ross Street in Vancouver. Jangbir worked outside the home in a variety of jobs and raised the family. Both of Mr.

Bhatti’s parents were respected leaders of the Indo-Canadian community in Vancouver. Bonnie has a PhD in Social Work from the University of California at Berkeley and has enjoyed a successful career in that field on both sides of the border; she currently resides with her daughter in Washington State. [ 47 ] Kesar Bhatti is currently 91 years old; Jangbir is 87. Jangbir was moved into a long-term care residence in March of 2021, and Kesar continues to live independently in their family home. Mr. Bhatti provides important support for both of his parents.

[ 48 ] Mr. Bhatti attended high school in Vancouver, attended UBC, and was admitted to the UBC law school before completing his undergraduate degree. He graduated with a Bachelor of Laws in 1983, articled, then joined a small law firm in Burnaby where he began a general practice that included criminal and family law, personal injury and real estate. He branched out on his own in 1990 and began to specialize in immigration matters, which remained the core of his practice for many years thereafter. [ 49 ] Mr. Bhatti and Debbie Parhar were married in 1995. Ms.

Parhar had been employed as a special assistant to a BC cabinet minister, and then in the same role with the office of then Premier Mike Harcourt. After marrying Mr. Bhatti, she took on the role of bookkeeper in his law office. [ 50 ] I have reviewed letters from Mr. Bhatti’s sister, Bonnie; Debbie Parhar ; Moe Sihota (a former MLA who served in Mr. Harcourt’s cabinet in a variety of capacities – he is married to Ms. Parhar’s sister); Mr. Bhatti’s long serving legal assistant, Jagdeep Kaur Sidhu; an interpreter (not Mr. Dahak) who worked with Mr.

Bhatti and witnessed his work before the IRB; an immigration client from 2018; and Charles Groos, a practicing immigration lawyer who is also a former member of the Refugee Protection Division, a precursor of the current IRB. [ 51 ] The support letters, together with Mr. Bhatti’s own letter, satisfy me that he earned a reputation as competent, well prepared counsel who cared deeply for his clients and worked hard on their behalf. Mr. Bhatti’s practice was largely funded by referrals from Legal Aid BC; these referrals came with a budget of billable hours, and Mr.

Bhatti frequently exceeded the number of working hours that he could bill against his files. Over time, Mr. Bhatti’s roster of clients grew to the point that, by 2011 and beyond, he had become the busiest counsel in the IRB’s Vancouver region. Mr. Bhatti was told by administrators at the IRB that he would have to commit to a punishing weekly hearing

schedule to keep their docket moving or refer some of his clients to counsel who could make themselves available for scheduled hearing dates. [ 52 ] The strain of maintaining this practice was apparent to those closest to Mr. Bhatti, Ms. Parhar, and Mr. Sihota in particular. Mr. Bhatti worked long hours, including nights and weekends. He would frequently miss family holidays or weekends away to work on his files, or would bring large briefcases of files with him and work while he was ostensibly on vacation. It was apparent that Mr.

Bhatti’s busy practice and work habits were taking both a physical and emotional toll. Dr. Ley’s Report [ 53 ] Dr. Robert Ley is a clinical and forensic psychologist and a tenured professor at Simon Fraser University. He has some 35 years of experience working in forensic, clinical and correctional settings, and has appeared frequently as an expert witness for both Crown and defence. Counsel for Mr. Bhatti asked Dr. Ley to provide input in several areas: 1. the psychological issues associated with Mr. Bhatti’s offending; 2. his opinion with respect to risk of future offending by Mr.

Bhatti and interventions that might manage or reduce any risk that might exist; and 3. the psychological impact and implications of various sentencing options on Mr. Bhatti. [ 54 ] Dr. Ley interviewed Mr. Bhatti on five occasions for a total of approximately 10 hours, and put Mr. Bhatti through a series of psychological and risk assessment testing. He also reviewed the Crown disclosure package, interviewed Mr. Bhatti’s wife, Debbie Parhar, and read the character reference letters which were later filed at these sentence proceedings. [ 55 ] Dr. Ley concluded that Mr.

Bhatti is diagnosable with a severe and chronic major depressive disorder which was operational at the time he committed these offences. He concluded that this condition was overlaid with, and amplified to some extent, by Mr. Bhatti’s workaholism; as Mr. Bhatti became burned out and overwhelmed by his busy law practice, he also became more depressed. Dr. Ley found that Mr. Bhatti’s depression was most clearly linked to what he described as a “psychologically abusive” upbringing, the main feature of which was a demanding father who was “always disappointed in him.” Dr.

Ley concluded that this home environment was the cause of Mr. Bhatti’s neurotic character and “strong inferiority complex.” [ 56 ] Not surprisingly given Mr. Bhatti’s personal and professional history, Dr. Ley also offers the opinion that Mr. Bhatti represents “an exceedingly low risk to re-offend criminally.” I might add that this opinion, in my view, is reinforced by the fact that Mr. Bhatti’s pattern of offending arises from his law practice which has effectively come to an end. [ 57 ] Dr. Ley says that Mr.

Bhatti requires individual psychological treatment for his depression and a course of anti-depressant medication. I was told by counsel at the sentence hearing that Mr. Bhatti would like Dr. Ley to take on the role of clinical counselor, and that Dr. Ley has agreed to do so. As far as I am aware, Mr. Bhatti has not yet commenced this course of therapy. [ 58 ] In addressing available sentencing options, Dr. Ley expressed his concern that “(

A) custodial sentence for Mr. Bhatti would be psychologically devastating for him, and given his acute depression, significantly raise the risk of suicide for him.” [ 59 ] There are aspects of Dr. Ley’s report that I find somewhat troubling. Crown submitted that portions of the report read more like a submission from counsel than the detached and objective observations of a mental health expert. I agree. At a number of locations in the report Dr. Ley expresses the opinion that Mr.

Bhatti lacked any financial motivation when he committed these offences because he was working on the legal aid tariff and frequently exceeded the hours allocated for his files. Dr. Ley also linked this billing practice to Mr. Bhatti’s offending in the following passage at page 22 of the report: In my opinion, as a direct result of Mr. Bhatti’s workaholism, and excessive time expenditures on his numerous cases, oftentimes he was unable to meet the time frames for his cases, such that he felt compelled to alter them . Additionally, as Mr.

Bhatti neurotically and compulsively took on more and more cases, it became more psychologically crucial for him to succeed in such cases, and make his clients happy with his efforts and representation.” (emphasis added)

[60] This passage is itself linked to the previous paragraph on the same page, where Dr. Ley expresses his view of Mr. Bhatti’sreasons for committing these offences. This passage places the emphasis on this notion of “buying time” in a busy practice, which hehas identified – incorrectly - as the dominant or key component of Mr. Bhatti’s offending: Based upon my review of Mr. Bhatti’s offences in the documentary record that you provided me and given my extensive discussion withMr. Bhatti regarding his wrongdoing, it appears that many of Mr.

Bhatti’s crimes and associated alterations of documents were in theservice of getting adjournments of hearings and/or postponing and rescheduling deadlines for case procedures, such as the submission ofdocuments, et cetera. In short, and to put it colloquially, it appears to me that many of Mr. Bhatti’s crimes were to “buy time” (mywords). However, some of Mr. Bhatti’s crimes involved changing the contents of records, which would likely facilitate more positiveoutcomes at hearings.

Principles of Sentencing [61] The applicable sentencing principles appear in the Criminal Code at sections 718 and 718.2. [62] At the end of the day, my task is to craft a sentence which recognizes the fundamental principle of proportionality. Aproportionate sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. Imposing aproportionate sentence is a highly individualized exercise, tailored to the gravity and nature of the offence, the blameworthiness of theoffender, and the harm caused by the crime: R. v.

Nur, 2015 SCC 15, para. 43. [63] The court must not fail to consider that “one of the main objectives of Canadian criminal law is the rehabilitation of offenders”which assists the court to impose a sentence in any given case which is “just and appropriate”: R. v. Lacasse, 2015 SCC 64 at para. 4;see also R. v. Schneider, 2019 BCCA 310 at paras 10-11. I must also take into account the principle of restraint expressed in s. 718.2(e)of the Code. [64] Sentencing is an inherently individualized process. No two offenders are identically situated. There is no such thing as auniform sentence for a particular crime.

A suggested range does not preclude lesser or greater sentences if warranted. A sentenceoutside the usual range can be imposed so long as it is in accordance with the principles and objectives of sentencing: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Nasogaluak, 2010 SCC 6; R. v. Lacasse, supra; R. v. Williams, 2019 BCCA 295; R.v. Friesen, 2020 SCC 9; R. v. Parranto, 2021 SCC 46. [65] Our Court of Appeal in R. v.

Williams, supra, described the sentencing range approach which has been employed in this provincefor some time: [57] This Court has adopted the approach of sentencing ranges because, in our view, they provide an optimal balance betweenfurthering parity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect anoverview of sentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at asentence that is consistent with sentences for similarly situated offenders, in similar circumstances — furthering the principle of parity —without constraining the judge's discretion to go outside of the range to properly reflect the unique circumstances of the offence or theoffender. They do not set out "practical minimum and maximum sentences."… [66] In Parranto, supra, the Supreme Court of Canada reminded sentencing judges that “(T)he goal in every case is a fair, fit andprincipled sanction.

Proportionality is the organizing principle in reaching this goal…” This means that courts of first instance muststrive to ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Parranto, at para. 10. See also R. v. Nur, 2015 SCC 15 at para. 43. Range of Sentence [67] I have reviewed a number of authorities submitted by both Crown and defence. I have attached each list of authorities as anappendix to these reasons. As per usual, these cases offer some limited assistance, but each are distinguishable for a variety of reasons.

Some feature large scale frauds and tax evasion linked to immigration frauds. Some of the accused were immigration consultants. Someof the cases involve malfeasance by lawyers (or disbarred lawyers), though none of those cases precisely mirror what I am dealing withhere. [68] I find that there is no settled range to be applied for Mr. Bhatti’s conduct in this case, which involves a combination of CriminalCode and IRPA offences with a common theme, Mr.

Bhatti’s intention to mislead members of the IRB, although his motives forcommitting the Criminal Code and IRPA offences respectively were not the same. [69] In R. v. Wang 2015 BCPC 302, the honourable Judge Harris of this court reviewed a number of authorities and concluded that“the range for immigration fraud” is 15 months to four and a half years jail.

The offender in that case was an immigration consultantwho had assisted refugee claimants to manipulate their claims in a variety of ways, including the creation of false back stories regardingtheir previous places of residence by altering passports and their employment histories. Judge Harris found that Mr. Wang was themastermind of this business, which was profitable and motivated by greed. In addition to offences contrary to the IRPA and a CriminalCode forgery offence related to the passports, Mr. Wang was sentenced for a series of offences contrary to the Income Tax Act.

Thesentence imposed here was 7 years jail less time served together with large fines for the tax offences. [70] Although this case does not specifically identify or set a range, the facts in R. v. Zaher, 2017 ONSC 582 and the sentenceimposed in that case are helpful in this regard. The offender, who was a lawyer, was convicted of three offences relating to thefabrication of a false claim for a single refugee claimant; the claimant was an undercover RCMP officer. Ms. Zahar was a 54 year oldfirst offender of previous good character who suffered from some significant physical and mental health issues.

The sentencing judgefound that Ms. Zahar was not motivated by financial gain, and distinguished this situation from those involving theft or unlawfulconversion of monies. The Crown sought a sentence of three to five years jail; the defence asked the court to impose a CSO. The courtrejected the CSO option and imposed a global sentence of 12 months jail after taking into account compassionate circumstances relatedto Ms. Zahar’s health. This sentence, taking into account the circumstances unique to Ms. Zahar, seems to support the bottom of the

range identified by Judge Harris in Wang, supra. Analysis [71] I will turn first to the aggravating and mitigating circumstances which arise in this case. Aggravating Factors 1. The forging of false medical notes to obtain adjournments and participation in a scheme to create, file and rely upon false medicaland police reports in support of refugee claims, was a sophisticated and premediated course of conduct which continued over a period ofyears, and impacted multiple claims. 2. Mr. Bhatti engaged another person, Mr. Dahak, to assist him with the creation of the false medical and police reports. 3. Mr.

Bhatti was a respected member of the legal profession when he engaged in this conduct, and employed his good reputation infurtherance of the commission of these crimes. 4. Mr. Bhatti’s conduct undermined the integrity of our immigration and refugee system, and undermined pubic confidence in thatsystem. As a lawyer who was trusted to act honestly and within accepted ethical boundaries on behalf of his clients, his conduct erodedpublic confidence in others within the legal profession who carry out this important work. 5. Mr.

Bhatti’s conduct corrupted a system of clear importance to the security of the country and its borders. [72] In describing the malign impact of Mr. Bhatti’s conduct on the refugee system in this country I can do no better than to reproducethe comments of Madam Justice Stromberg-Stein in R. v. Li, 2001 BCSC 458 , [2001] B.C.J. No. 748 beginning at para. 7: Canada is a multi-cultural, multi-racial society. Immigration is encouraged and Canada is enriched by the immigrants that it admits.Thousands of qualified immigrants are admitted every year.

Canada must have the ability to protect and control its borders and 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. [73] Doherty J.A. outlined why an offender's status as a lawyer is a significant aggravating factor in R. v. Rosenfeld, 2009 ONCA 307,94 O.R. (2d) 641(Ont.

C.A.), at para. 40: …[A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust inexchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justiceand enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated withthe practice of law in its broadest sense, has exactly the opposite effect.

Lawyers like the appellant who choose to use their skills andabuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism ofthe profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, (BC CA), [1977] 5 W.W.R. 344 (B.C.C.A.). [74] I have concluded that in arriving at a fit sentence in this case, Mr. Bhatti’s prolonged, intentional and sophisticated efforts todeceive the IRB - which included instructing and directing Mr. Dahak to create false police and medical reports which Mr.

Bhatti thenfiled with the IRB and referred to in oral submissions before that body – demonstrates a high level of moral blameworthiness thatrequires a particular emphasis on denunciation and deterrence. Mitigating Factors 1. Mr. Bhatti has entered guilty pleas; the matter was never set for trial, and it is clear that Mr. Bhatti formed an intention soon after theinformation was sworn to enter into discussions with Crown counsel to resolve the matter. 2. Mr. Bhatti has expressed remorse for his actions.

While I accept that he is remorseful, it is troubling to me that in his lengthy letterto the Court, marked here as exhibit 17, his primary focus was the impact the initial investigation and subsequent charges and anysentence imposed have had or might have on Mr. Bhatti (including his health, loss of professional status, financial circumstances, abilityto travel, and reputation), as well as expected or actual impacts on his wife and other members of his immediate and extended family. Inhis letter Mr.

Bhatti also seeks to explain his misconduct, and in doing so describes the various personal and professional pressureswhich drove his offending. While he accurately recognized in his letter that he was “the author of (his) own misfortune”, he did notapologize for or even acknowledge the damage his actions have caused to the refugee application process.

3. Mr. Bhatti is a person of previous good character who enjoyed a long and distinguished career as a lawyer before embarking on the conduct which brings him here. As many cases have noted, this factor is mixed where the trust placed upon him by others, in this case the IRB, was built upon his prior reputation for ethical conduct. 4. Mr. Bhatti has the support of his family and others in his community. 5. Mr.

Bhatti has recently been diagnosed with mental health issues and also has a number of physical ailments which require ongoing treatment. [ 75 ] I have also taken into account to some extent a number of collateral circumstances which, while not strictly mitigating, can play a proper role in arriving at a fit and proportionate sentence. Some of these were referred to in Mr. Bhatti’s letter, and in the support letters filed by a number of others. [ 76 ] Mr. Bhatti is suspended from the practice of law and will soon be disbarred. He will never practice law again.

He is part of a close knit Indo-Canadian community; his reputation within that community in particular has been damaged, likely beyond repair. His wife has suffered and will continue to suffer as a result of his actions. If he is incarcerated, his elderly parents and grandmother will lose his support for however long that might be, and will likely suffer for that loss.

He and his wife own a vacation property in the United States and his sister and her daughter also live in that country; his conviction will likely prevent him from crossing the border for the foreseeable future, perhaps forever. [ 77 ] I pause to note that the weight to be attached to collateral consequences depends on the facts of the case. In R. v.

Ali , 2022 BCCA 83 , Madam Justice DeWitt-Van Oosten writing for the court made the following observation: [48]…Collateral consequences are relevant to the determination of fitness; however, they cannot detract from the Court’s responsibility to impose a sentence that gives sufficient recognition to the seriousness of the offence and the offender’s moral blameworthiness: R. v. Pham 2013 15 at para. 14.

Conditional Sentence Order [ 78 ] Before moving on to my decision I will briefly address the key statutory and common law principles guiding the decision whether or not to impose a CSO in lieu of institutional jail. [ 79 ] The statutory pre-conditions for imposing a CSO are set out in s. 742.1 of the Criminal Code ; the jail sentence imposed must be for less than two years, and the court must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code . [ 80 ] In R. v.

Proulx , 2000 SCC 5 , the Supreme Court of Canada distinguished a CSO from probationary measures, and observed that Parliament intended conditional sentences to include both punitive and rehabilitative aspects. The court suggested that for this reason a CSO should generally include punitive conditions that are restrictive of the offender’s liberty. The court also found that a CSO fashioned in this way can provide significant denunciation and deterrence, while at the same time achieving the restorative objective of rehabilitation.

Analysis [ 81 ] There is no doubt that a CSO is an available sentencing option for these offences should I decide that a fit global sentence would be below the 2 years less a day threshold. I am also satisfied that in Mr. Bhatti’s case, service of the sentence in the community would not endanger the safety of the community.

Whether a CSO is a fit option in this case will come down to the final branch of the test in s. 742.1 : would this sentencing option be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code ? [ 82 ] In approaching this issue I have considered in particular the Zaher decision out of the Ontario Superior Court of Justice which I referred to earlier, R. v. Bunn , [2001] 1 S.C.R. 183 ; R. v. Dickson 2007 BCCA 561 ; R. v. Ellis 2013 ONCA 739 ; and R. v. Merkel 2021 BCCA 445 . Save and except R. v.

Bunn , these decisions consider when and in what circumstances evidence that the offender suffers from impaired mental health may be relevant to the sentencing analysis, and in particular given the issues I am dealing with here, when that evidence might be enough to justify a community based disposition. The impact of collateral consequences for the offender and others in his personal orbit was the central issue in R. v. Bunn . [ 83 ] I have already referred to the circumstances in Zaher , supra , where the court declined to order a CSO and imposed a sentence of 12 months jail.

This was a single event, not a course of conduct over a number of years as is the case with Mr. Bhatti. Justice Pomerance characterized Ms. Zaher’s physical and mental health issues as “compassionate circumstances” to be taken into account in fashioning a fit sentence, but concluded that these factors did not operate to reduce Ms. Zaher’s level of moral blameworthiness. Justice Pomerance identified Mr. Zaher’s status as a lawyer as a particularly aggravating factor: …When a lawyer breaches the trust reposed in him or her by a client or by the system, a denunciatory and deterrent sentence must be imposed. R. v.

Zaher , supra , at para. 42 . [ 84 ] The accused in R. v. Dickson, supra , was a bookkeeper who had stolen funds from her employer. The trial judge considered and rejected a CSO as a sentencing option and imposed a 12 month jail sentence; the British Columbia Court of Appeal set aside the jail sentence and substituted a 12 month CSO. In overturning the jail sentence, the Court of Appeal found that the expert evidence tendered at the sentence hearing established a clear link between the commission of the offence and Ms. Dickson’s undiagnosed and untreated bipolar disorder.

While acknowledging that the sentencing judge was not bound to accept the expert evidence, the court concluded that

the judge had an obligation to provide an explanation for his view that the opinion was entitled to little or no weight, and found that he rejected that opinion without any sound basis for doing so ( Dickson , supra , at paras 61-2 ). [ 85 ] The offender in R. v. Ellis , supra , was an IRB board member; he met with a young woman who had appeared before him at a convention refugee hearing and suggested that he might be prepared to help with her case, implying as he did so that he was looking for a sexual relationship.

The sentencing judge rejected a CSO and imposed an 18 month jail sentence; that sentence was upheld on appeal. Mr. Ellis argued on appeal that the sentencing judge had minimized opinion evidence from a psychiatrist that he was showing signs of Bipolar II disorder with hypomanic episodes prior to and at the time of the offence.

The sentencing judge listed a number of reasons why, in her view, the Bipolar disorder may have affected his judgment, but did not reduce his culpability to the point that a focus on rehabilitation outweighed the need to impose a sentence which placed the emphasis on denunciation and deterrence (see at paras. 107- 111).

The Court of Appeal found that the reasons were grounded in the evidence and entitled to deference, and commented on the correct approach where an offender advances a mental health issue as an explanation for criminal conduct: The authorities, some of which were referred to by the trial judge, indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence.

The trial judge will consider whether there is a causal connection between the offender’s mental illness and the commission of the offence, and, if so, whether it diminished the offender’s culpability. Ellis , supra , at para. 116 . [ 86 ] The Ellis court referred with approval to the approach adopted by our Court of Appeal in Dickson , supra . The BC Court of Appeal also adopted a similar approach in R. v. Merkel , supra .

In that that decision, the panel referred to a series of recently decided cases in this jurisdiction which commented on the need for evidentiary support linking the offender’s claim of impaired mental health to the pattern of conduct giving rise to the commission of the offence before the court can apply that factor in mitigation of sentence. [ 87 ] Having reviewed these decisions, it is clear that I must consider the expert evidence in this case, and determine whether it provides a sufficient causal link to Mr. Bhatti’s pattern of offending. If I find there is a link, I may employ the evidence of Mr.

Bhatti’s impaired mental health in mitigation of sentence, and I may also employ that evidence in assessing Mr. Bhatti’s moral culpability for this pattern of offending. The circumstances of each case will be different, and this factor is one of many to be weighed in determining a fit sentence. [ 88 ] With respect to the extent to which collateral consequences may serve to mitigate a sentence, I have considered in particular R. v. Bunn, supra , as well as the comments of Madam Justice DeWitt-VanOosten in R. v. Ali , supra . [ 89 ] The offender in R. v.

Bunn was a lawyer who was retained to recover and remit inheritances of money from the estates of six deceased persons. In each case he converted part of the money he received from his trust account to his general account. There were 145 different transfers amounting to some $86,000 over a three year period. When this was discovered he was suspended by the Law Society and later disbarred. He was convicted of six counts of breach of trust and sentenced received a sentence of two years in jail. The Manitoba Court of Appeal allowed the appeal and imposed a CSO of two years less a day and included a term that Mr.

Bunn complete 200 hours of community work service. The Crown appealed. [ 90 ] In its decision imposing the CSO, the Manitoba Court of Appeal considered that Mr. Bunn’s wife was disabled and confined to a wheelchair as a result of which he had taken on a larger share of family responsibilities, and that he was the sole income earner for the family, although his legal career had been plagued by financial problems for a number of years. The court decided that concerns of denunciation and deterrence had been addressed by the ruin and humiliation that Mr.

Bunn had brought upon himself and his family, and by the loss of his professional status. The majority in the Supreme Court of Canada found that this was a reasonable conclusion on the facts of the case, and that these collateral consequences could provide sufficient deterrence and deterrence when coupled with a CSO and community work hours.

D ecision [ 91 ] While I have come to the conclusion that there are circumstances here which justify a jail sentence lower than 2 years less a day, and that service of the sentence in the community would not endanger the safety of the community, I find that a conditional sentence in this case would be demonstrably unfit, and in particular, would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code . [ 92 ] The seriousness of these offences, the fact that Mr. Bhatti was acting in his capacity as a lawyer throughout, the impact Mr.

Bhatti’s conduct has had on the integrity of the convention refugee system in this county, and Mr. Bhatti’s high degree of moral blameworthiness call for a sentence of institutional jail. While I understand that collateral consequences like those which arise here can provide deterrence and denunciation sufficient to justify a community based disposition, as was the case in R. v. Bunn, supra , I have concluded that a CSO is not a fit disposition on the facts of this case. It is my view that this is one of the cases where I am compelled to apply the maxim set down in R. v.

Ali , supra , where the Court of Appeal cautioned trial judges that collateral consequences “cannot detract from the Court’s responsibility to impose a sentence that gives sufficient recognition to the seriousness of the offence and the offender’s moral blameworthiness.” [ 93 ] While I accept that Mr. Bhatti was experiencing some mental health issues at the time which may have affected his judgment, I cannot find that this factor reduces his moral culpability to the point that a CSO would be a fit disposition. In his letter to the court (Exhibit 17), Mr.

Bhatti himself describes the pressures of his practice as the driving motivation for the decisions he took to forge and submit medical notes to delay hearings and manufacture false documentary supports for refugee claims. At page 22 of his report Dr. Ley made the following observations: Obviously, Mr. Bhatti knew that he was doing wrong in the commission of his offences, as well as acting in illegal and unprofessional, unethical ways. Such misconduct stands in marked contrast to the psychological fact that Mr.

Bhatti has a very strong conscience, with a predisposition to intense guilt feelings (due to chronic feelings of inferiority), which predate by many decades his current offending.

However, in my opinion, Mr. Bhatti had a willful blindness to his wrongdoing, such that he was able to compartmentalize, rationalizeand/or minimize it, which enabled him to psychologically accommodate to his misconduct. A combination of Mr. Bhatti’s depression,workaholism and neurotic need to please his clients and succeed for them caused something like a tunnel vision for Mr. Bhatti, whichimpaired or occluded his moral, ethical and professional judgment. From a psychological standpoint, there is no doubt that Mr.

Bhatti’scriminal conduct is atypical and aberrant for him, given his personality. [94] What I take from this passage is that Dr. Ley has come to the view that Mr. Bhatti committed these offences for a variety ofreasons, that he knew what he was doing was wrong, and that the explanation for his misconduct is layered and complex. That strikesme as being a pretty accurate assessment of why Mr. Bhatti would engage in this type of offending over a period of many years. Thatfact, that Mr.

Bhatti’s offending was not an impulsive act, but rather a concerted and deliberate course of conduct which continued overan extended period of time, is another significant factor which suggests that Mr. Bhatti’s mental health was not the sole or even theprimary driver of his offending. [95] In arriving at a fit sentence in this case I have taken into account the long delay between execution of search warrants in June of2014 and the swearing of an information in September of 2020. While that factor is tempered somewhat given that Mr.

Bhatti was ableto continue his legal practice over that time, I find that the prolonged uncertainty for Mr. Bhatti caused by this delay of over 6 yearsshould operate to some extent in mitigation of sentence: R. v. Bosley, (1992) (ON CA), 18 W.C.B. (2d) 179 (Ont.C.A.); cited in R. v. Witen, 2012 ONSC 4151 at para. 22. [96] I must also consider whether the sentences I impose should be concurrent, consecutive, or some mix of the two before applyingthe totality principle, best expressed in section 718(2)(c), which directs that “a combined sentence should not be unduly long or harsh.” [97] The court in R. v.

Li, 2009 BCCA 85 grappled with circumstances which might require the imposition of a consecutive sentence. The court discussed the relevance of “similar and overlapping evidence” of the “nature, place and victims relating to multiple offences”,as well as a “degree of connectedness relating to the timeframe in which the offences were committed.” The court adopted the test laiddown in R. v.

G.P.W., (1998) 106 B.C.A.C 239 that consecutive sentencing is appropriate where “the acts constituting the offence werepart of a linked series of acts within a single endeavour”, and also agreed with the observation of Rowles J.A. in G.P.W. that the questionto be decided at the end of the day is whether “the sentence, in its totality, is harsh or excessive”: R. v. Li, supra, at paras 28 and 46. Seealso R. v. Nagy 2013 BCCA 419 at paras. 16-21. Counts 1-3 and 5-10: The Offences Contrary to Section 366(1)(

b) and 368(1)(

b) of the Criminal Code [98] I have concluded that a fit sentence for each count is 2 months jail. I have considered and applied the test in R. v. Li, supra, andhave decided that these sentences will be concurrent one with the other. Mr. Bhatti’s underlying conduct was making false notes orletters which purported to be from his doctors, then submitting them to the IRB in support of a series of applications to adjourn scheduledhearings.

Although different client files and hearings were implicated in some of these counts, it is my view that the conduct underlyingall of these offences was “part of a linked series of acts within a single endeavour.” The single endeavour was Mr. Bhatti’s desire toobtain adjournments of scheduled hearings, because he was in fact feeling unwell, because he was overworked and unprepared, or both. Counts 12-19: The Offences Contrary to

Section 127(

a) of the IRPA [99] In committing these offences, Mr. Bhatti filed at the IRB fake medical and police reports in support of refugee claims advancedby one or more members of five separate families, then referred to and relied upon those reports during oral submissions at thosehearings. The evidence supports a finding that Mr. Bhatti was intimately involved in creating the content for the false reports. Theseoffences were committed between April of 2009 and March of 2014. The scheme employed by Mr.

Bhatti was completely separate fromhis use of fake notes to obtain adjournments of scheduled hearings before the IRB. [100] I find that a fit sentence for each of counts 12-19 is 4 months jail. [101] I have come to a different conclusion here regarding concurrent vs. consecutive sentencing. With the exception of counts 13-16 –all of which deal with refugee claims advanced by members of the same family and relate to the same hearing – the sentences for theseoffences must be consecutive.

These offences are more widely separated in time, and the conduct in each case is specific to the merits ofeach individual claim being advanced by Mr. Bhatti before the IRB. The conduct overall features repeated material misrepresentationsin serial fashion with the goal of misleading IRB adjudicators in their decision making process. [102] The sentence for each of counts 12-19 will be 4 months jail. Counts 13 through 16 will be concurrent 4 month terms as they dealwith members of the same family; that 4 month sentence will be consecutive to the 4 month sentence imposed on count 12.

The totalsentence for the IRPA counts is 20 months jail broken down as follows: Count 12: 4 months jail. Counts 13-16: 4 months jail on each count, concurrent one with the other, but consecutive to the sentence imposed on count 12. Count 17: 4 months jail consecutive. Count 18: 4 months jail consecutive. Count 19: 4 months jail consecutive. [103] The 4 month jail sentence on count 12 will be consecutive to the 2 month jail sentence for count 10, bringing the total term to 22months jail. [104] As I have decided that some of these sentences should be consecutive, I must also apply s. 718.2(

c) and the totality principle. Imust ensure that the combined sentence is not unduly long or harsh and excessive. I have concluded that the combined sentence of 22

months jail does not offend this principle in the circumstances of this case. I therefore see no need to adjust the sentence downward. [105] Crown also seeks a global fine of $100,000 assessed at $20,000 for each of counts 12-13 and 17-19. With respect to the proposedfines I will take into account the fact that Mr. Bhatti has already suffered professionally and, as a result of losing his status as a practicinglawyer, financially as well. I am told that Legal Aid BC is refusing to pay about $125,000 in outstanding billings for work which isunrelated to the subject matter of these offences.

It appears more than likely Mr. Bhatti can expect to lose most if not all of this revenue. [106] There is no proof beyond a reasonable doubt that Mr. Bhatti’s motive was financial beyond the legal aid retainers he accepted formost, if not all, of these files. In other words, there is no evidence that Mr. Bhatti was defrauding his clients or charging exorbitant feesin return for his agreement to advance claims using false documentation. [107] The Crown relies on a series of decisions where the offender was being sentenced for fraud. Mr. Bhatti is not charged with thatoffence.

But I do accept that there was a profit motive in this sense; Mr. Bhatti was attempting to maintain his practice, as busy as itwas. The fake doctor notes were a method of dealing with pressure from the IRB to complete more hearings each week, which was alsoa tactic to hold on to those clients and whatever remuneration came with those files (see Mr. Bhatti’s letter, ex. 17 at pages 64-5). And,the false police and medical reports could only have been designed to enhance his clients’ prospects of succeeding with their claims forconvention refugee status.

It is reasonable to infer that successful outcomes before the IRB would attract new clientele and expand hispractice and, by necessary implication, his income. [108] On balance I find that while there was some financial motivation for the commission of these offences, the facts here are clearlydistinguishable from the profit or “greed” motives that accompany cases where innocents are being scammed and defrauded. I acceptthat while Mr.

Bhatti had a large number of clients, his income was driven primarily by Legal Aid billings; volume could not transformthat business model into a lucrative practice. [109] I find that fines are not required in this case. The global institutional jail term is a fit sentence standing alone. [110] The Victim Fine Discharge will be imposed on each count where it applies. Mr. Bhatti will have until 31 August 2022 to paythose fines. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia Appendix A Defence Cases 1. R. v. Bunn, 2000 SCC 9 , [2000] 1 S.C.R. 183; 2. R. v.

Zinkhofer, [2000] A.J. No. 109; 3. R. v. Dickson, 2007 BCCA 561 , [2007] B.C.J. No. 2472; 4. R. v. Singleton, [2011] B.C.J. No. 2647; 5. R. v. McLellan, [2012] O.J. No. 5028; 6. R. v. Ellis, 2013 ONCA 739 , [2013] O.J. No. 5583; 7. R. v. Al-Awaid, [2015] N.S.J. No. 369; 8. R. v. Owen, [2015] O.J. No. 3299; 9. R. v. Hill, [2016] B.C.J. No. 2306; 10. R. v. Zaher, 2017 ONSC 582 , [2017] O.J. No. 396; 11. R. v. Arrojado, [2019] M.J. No. 100; 12. R. v. Booker, [2021] O.J. No. 6853; and 13. R. v. Merkel, [2021] B.C.J. No. 2548. Crown Cases 1. R. v. Atkinson, (1981) (NB CA), 33 N.B.R. (2d) 169;

2. R. v. Sweezey, [1987] N.J. No. 295 (C.A.); 3. R. v. Wijesinha, (SCC), [1995] S.C.J. No. 49; 4. R. v. Bunn, 2000 SCC 9 , [2000] 1 S.C.R. 183; 5. R. v. Mendez, [2004] O. J. No. 5733; 6. R. v. Doiron, 2007 NBCA 41 , [2007] N.B.J. No. 189, 315 N.B.R. (2d) 205; 7. R. v. Wirik, 2009 BCSC 1714; 8. R. v. El-Akhal et al., (unreported, November 30, 2011, Ont.C.J.); 9. R. v. Khaira, 2011 ABPC 340; 10. R. v. Witen, 2012 ONSC 4151; 11. R. v. Jacobson, (unreported, October 29, 2012, Man P.C.); 12. R. v. Khatchatourou and Reznik, 2012 ONSC 3511; 13. R. v. Gillis, 2013 NBPC 3; 14. R. v.

Weijia Wang, (unreported, December 4, 2013, Ont.C.J.); 15. R. v. Wang, 2015 BCPC 302; 16. R. v. Abdulle, 2016 ONSC 6796; 17. R. v. Wang, 2016 BCCA 390; 18. R. v. Codina, 2018 ONSC 2180; and 19. R. v. Codina, 2019 ONCA 986.