R. v. Zhao Date:, 2013 BCPC 227

Citation: R. v. Zhao Date: 20130821 2013 BCPC 0227 File No: 57182-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUN JIE ZHAO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: T. Johnson Counsel for the Defendant: C. Constantino Place of Hearing: Richmond , B.C. Date of Hearing: August 12, 2013 Date of Judgment: August 21, 2013

[ 1 ] Jun Jie Zhao has pled guilty to two Immigration Act offences: Count 11 : On or about the 20 th of May 2004, at or near the City of Toronto, in the Province of Ontario, did directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induced or could have induced an error in the administration of the Immigration and Refugee Protection Act , to wit: submitting documents containing false information in support of an application for refugee protection, contrary to

Section 127(

a) of the Act . Count 12 : On or about the 11 th day of November, 2004, at or near the City of Toronto, in the Province of Ontario, did directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induced or could have induced an error in the administration of the Immigration and Refugee Protection Act , to wit: submitting an Application for Permanent Residence to Citizenship and Immigration Canada that contained false information, contrary to

Section 127(

a) of the Act . [ 2 ] I have reviewed and considered the Agreed Facts for Sentencing that were jointly submitted, the Accused’s Refugee Application documents, the book of Sentencing Documents provided by Defence Counsel, the submissions and authorities presented by both counsel and the Accused’s address to the court at the conclusion of the hearing. Facts [ 3 ] The Accused is 33 years old. In 1999 when he was 19 years old, with the assistance of middlemen in Edmonton, he applied for a study permit to attend school in Canada but was declined.

Informed by the Canadian middlemen that a subsequent application after an initial rejection had little likelihood of success, the Accused’s father obtained a Chinese passport for him in the name of Wei Zhao. According to Defence Counsel, the Accused’s father very much wanted his son to study in Canada. The Accused then made an application for a Canadian study permit under the name of Wei Zhao.

According to the Accused’s March 31 st , 2011 statement, with the assistance of his father’s connections at the Canadian Visa Office, a study permit was then approved and issued in the name of Wei Zhao. [ 4 ] A document referred to by Defence Counsel as a “Household Register” titled “Yan Tai City Public Security Bureau Zhi Zhong Branch Bureau Proof of Residence”, in the Accused’s name, lists Wei Zhao under “other names used”.

Defence Counsel stated that the Accused’s father had informed him that he had arranged for the Accused’s name to be changed legally to Wei Zhao in 1999 and had subsequently legally changed it back to Jun Jie Zhao. However, there is no documentary evidence to confirm this. [ 5 ] In any event, after entering Canada with a study permit in May of 2000 as Wei Zhao, the Accused studied at various post- secondary institutions over the next few years.

In May 2004, the Accused filed a refugee claim, under his real name of Jun Jie Zhao, on the ground that he feared persecution in China because of his affiliation with the organization known as Falun Gong. Falun Gong had been banned in China in 1999, and the Canadian government accepts that members of this organization are, in fact, persecuted in China because of their beliefs. [ 6 ] The Accused’s refugee application under the name of Jun Jie Zhao stated that he had joined a Falun Gong group in his neighbourhood in August of 2003 and practiced Falun Gong each evening from 8:00pm to 9:30pm.

His application then states that on March 18, 2004, the police converged on their meeting. All of the Falun Gong group ran to escape but one of them was caught and arrested.

Learning that police had come to his home to arrest him as well, the Accused, according to the statement in the refugee application, fled China and escaped to Canada, arriving at Toronto’s Pearson International Airport on May 10, 2004. [ 7 ] The Accused did not disclose that he had been studying in Canada with a study permit during the time he claimed he was being persecuted, that he had been refused a study permit under his name of Jun Jie Zhao, that he had then obtained a passport under the name of Wei Zhao for the purpose of making a second application for a study permit, or that he had a second identity at all.

He also failed to disclose that he had returned to China numerous times to visit his family for periods of 1 to 3 months while he was studying in Canada, or that he had been living and studying in Canada, under the name of Wei Zhao, since May of 2000. [ 8 ] The Accused’s refugee application was approved on November 9, 2004. The Accused then made an application for Permanent Residence which was granted on March 10, 2006. The Accused married Hui Wang on June 16, 2006 in Toronto and sponsored her immigration to Canada as his wife.

Together they had two daughters; Amanda and Angela, who are 5 and 3 years old respectively. Ms. Wang and the daughters are all Canadian citizens. Since 2008, the Accused has worked in auto sales, earning approximately $60,000 per annum. [ 9 ] In 2010, the Accused sought a renewal of his British Columbia driver’s licence. Through facial recognition technology, ICBC detected that he had received a previous driver’s licence in the name of Wei Zhao in 2002, followed by a renewal in 2004. An investigation was then conducted and Canada Border Services Agency (CBSA) was notified.

Representatives of CBSA confronted the Accused at his home on March 31 st 2011. He was forthcoming and cooperative and confessed to the facts that he had failed to disclose, in his application for his study permit in 2000, in his application for refugee status in 2004 and in his application for permanent residence in 2006.

[ 10 ] These proceedings have been stressful for the Accused and for his family. Because of the uncertainty of his status in Canada and of his future should he be returned to China, he was opposed to having another child after his wife became pregnant again late in 2011. After numerous arguments, his wife had an abortion but left the marriage, taking their two daughters back to China. While he is hopeful for a reconciliation, he is uncertain whether the family will be re-united.

Argument: [ 11 ] The Crown is seeking a sentence of 9 months imprisonment, while the Accused seeks a conditional sentence of less than 6 months less a day or a discharge. [ 12 ] Crown submits that the Accused’s conduct constituted a breach of trust and was a fraud on both the refugee, permanent resident, and study permit application systems. Crown submits that these are aggravating factors as is the fact that these frauds continued over a long period of time. [ 13 ] Defence submits the following mitigating factors: 1.

The Accused confessed immediately upon being confronted at his home by Enforcement Officer Schwartz and has continued to be cooperative and forthcoming. 2. The Accused has entered an early guilty plea, avoiding the cost and time of a trial. 3. The Accused has no criminal record and no outstanding matters before the criminal courts. 4. The Accused has otherwise lived a law-abiding life while in Canada. He has and continues to work steadily and pay taxes. He was married in Canada and has two daughters who were born here. 5.

The initial fraud, in obtaining a study permit by using a passport in the name of an alias without disclosing either his other (real) name or the fact that he had applied in that other name and been rejected, was orchestrated by his father when the Accused was only 19 years old. Case Authorities: [ 14 ] A number of authorities have been presented at this sentencing by both Crown and Defence. I have read them but will refer only to those that I have found particularly helpful. [ 15 ] In R. v.

Daskalov , 2011 BCCA 169 the Court of Appeal allowed the Crown appeal of a conditional discharge and six months probation following conviction under S.122(1) (

a) of the Immigration and Refugee Protection Act (IRPA) , and substituted a sentence of time served of 4 months plus a day. Mr. Daskalov had purchased a fraudulent passport for $1,500 USD, knowing that the passport had been altered and knowing that using a fraudulent passport to gain entry to Canada was an offence. About a month after arriving in Canada with the fraudulent passport, Mr. Daskalov tried to enter the United States at the Pacific Highway border crossing. He was told that a visa was required to enter the USA.

He filled out the forms and was fingerprinted which led to his true identity being discovered. He was then removed and presented to CBSA. Mr. Daskalov was in his late 30’s when he entered Canada illegally. Four years earlier, he had travelled to the USA where he sought political asylum but was ordered deported to Bulgaria where he lived for 3 years without facing persecution. [ 16 ] Crown had sought a custodial sentence of 4 months. Defence Counsel submitted that a conviction would permanently bar Mr.

Daskalov from admission to Canada pursuant to s.36(2) of the IRPA and argued for a discharge. [ 17 ] The sentencing judge acknowledged that the usual sentence for the offence pled to by Mr. Daskalov was a jail sentence.

However, he concluded that, based on “the unique circumstances of this case”, the appropriate sentence was a conditional discharge followed by 6 months probation. [ 18 ] The Court of Appeal, in allowing the appeal, stated at paragraph 26: “Therefore, while immigration consequences may be an appropriate consideration in crafting a fit sentence for an offender who has been lawfully admitted into Canada, they are not, in my view, a relevant consideration for an offender who is without legal status in the country and subject to a removal order.

A sentence that falls markedly outside the range of fit sentences in order to maintain the ability of the offender to be admitted into Canada at some future date is an error in principle since it is an irrelevant consideration that attempts to circumvent a legislated policy decision that has been implemented by Parliament.”

[ 19 ] The Court of Appeal allowed the appeal and substituted the sentence the Crown had sought, time served of four months (after giving double credit for 8 weeks pre-sentence custody) plus one day. [ 20 ] Mr. Daskalov had pled guilty but it was not a particularly early plea. A trial date was, in fact, scheduled for July 20, 2009 but was adjourned to December 16, 2010 due to unavailability of a Crown witness. In advance of that 2 nd trial date, a plea was entered and sentencing took place on the date scheduled for the trial. [ 21 ] In R. v.

Ixtas , (15 November 2011) Vancouver 202905-1 (B.C.P.C.), my sister Judge Giardini imposed a sentence of 7 months for two offences; using a false Mexican passport to establish his identity and misrepresenting his identity to induce a deportation order against him to be issued in a different name. Mr. Ixtas had a dated but related criminal record with two offences. Judge Giardini noted in her reasons that one of the offences pled to was

Section 122(

b) of the IRPA and that this was a much more serious offence. [ 22 ] In R. v. Zhong , 2007 Carswell BC 3416 (Reasons for Judgment) and (1 November 2007) Richmond 51298-1 (Reasons for Sentence), Mr. Zhong was convicted by my brother Judge Fratkin after a trial, for falsifying documents in his application for a renewal of his study permit. The falsified documents included a fake college transcript. The visa renewal application, together with the falsified documents, was actually prepared by an agent or consultant to whom Mr. Zhong had paid a deposit of $2,000 against an agreed fee of $8,000. Mr.

Zhong’s evidence at trial was that it was not his signature on the application which the consultant had submitted, that he had not seen the application or the supporting documents before they were submitted, and that he did not authorize the consultant to prepare or submit the application on his behalf. Judge Fratkin found Mr. Zhong’s evidence to be not credible and rejected it in convicting him. Mr. Zhong was sentenced to time served of 3 months. [ 23 ] In R. v.

Hupang , 2008 BCCA 4 , the Court of Appeal allowed an appeal of a sentence of 2 months imprisonment and a $2,500 fine following a guilty plea to contravening S. 127 (

a) of the IRPA , the same offence as in the case at bar. Mr. Hupang had purchased false transcripts and a false acceptance letter for $3000 and had attached them to an application for renewal of his study permit. Mr. Hupang had been studying in Canada since 2006 on a legitimate study permit, but the college he attended subsequently closed, depriving him of his tuition and his student status. Mr. Hupang was 22 years old, had no prior criminal history and had pled guilty.

In his reasons for sentence, the trial judge emphasized the need for a sentence emphasizing general deterrence in the interest of national and international security. [ 24 ] Prowse, J.A. at paragraph 8 stated: “In my view, the sentencing judge erred in viewing the circumstances of this case as one calling for a sentence designed to deter terrorists and others intending to operate illegally in Canada. In focusing on what he perceived to be general threats to national and international security, he lost sight of the actual circumstances of this offence and this offender. Mr.

Hupang is a young man without any criminal record who entered Canada legally at the age of 18 to study here and to improve his circumstances. When he was apparently taken advantage of by an educational institution here, he made an extremely foolish choice to use illegal methods in an effort to continue his studies. That choice has had a devastating impact for him and has brought shame to him and his family. He has already spent 17 days in jail; he has a criminal record, and he is facing certain expulsion from the country, with little prospect of ever being able to return.” [ 25 ] Prowse, J.A. rejected Mr.

Hupang’s request for a discharge at paragraph 10: “…. I accept the submission of counsel for the Crown that this type of offence is serious, particularly because it arises in the context of a self-reporting system which is dependent on the honesty of applicants for student visas and other entrance documents for it to work effectively. In that sense, a person who attempts to circumvent the system through falsification of documents, as occurred here, participates in a form of breach of trust.

It is for that reason I agree with the sentencing judge that a discharge would not have been an appropriate disposition in this case, where Mr. Hupang filed false documents on two occasions.” [ 26 ] With respect to the need for the need for a sentence reflecting general deterrence, Prowse, J.A. stated at paragraph 11: “On the other hand, there is little doubt that Mr.

Hupang has learned his lesson and that others who may be tempted to engage in similar conduct will realize that in so doing, they will not only be subjected to criminal proceedings and a criminal record, but also expulsion from the country.” [ 27 ] The Court of Appeal allowed the appeal, set aside the custodial sentence and imposed a sentence of 17 days imprisonment reflecting time served and left the $2,500 fine in place. [ 28 ] A number of the authorities that Crown has presented involved accused persons who had engaged in further criminal behavior while illegally in Canada.

Some of those cases involved persons who had clearly embraced a life of criminality while in Canada. I do not find those cases helpful as that clearly aggravating factor is absent in the case at bar. [ 29 ] I find that the cases above are those relevant to this sentencing. The range in those cases is from a low of 17 days ( R. v. Hupang ) to a high of 7 months ( R. v. Ixtas ). Analysis:

[ 30 ] Clearly, there are cases where the nature of the offence itself cries out for a need to address denunciation and deterrence. However, even in those cases, the court can consider the principle of rehabilitation. The balancing of sentencing principles in each particular case must always take into consideration the particular circumstances of each offence and those of each particular offender before the court. [ 31 ] Unlike the facts in Ixtas , Mr. Zhao has not been charged with possession or use of a fraudulent passport or other fraudulent documents.

The admission in the agreed set of facts submitted is that he failed to disclose that he had entered Canada under an alias, that he had been previously refused a student visa under his other (real) name or that he had ever used another identity. As Judge Giardini noted in her reasons, Mr. Ixtas was charged under Section 122(1) (

b) of the IRPA which is a more serious offence than Mr. Zhao’s offence.

Section 127 (

a) carries a maximum penalty of 5 years, while Section 122(1) (

b) carries a maximum penalty of 14 years . [ 32 ] Still, in committing these offences, the Accused has committed a breach of trust. Our immigration system is dependent on the truthfulness and honesty of applicants in providing accurate information about themselves.

The Accused also breached that trust previously when he entered Canada using a passport under a different name without disclosing the rejection of his previous application or that he had a different name. [ 33 ] However, the Accused has otherwise lived a normal, law-abiding life in Canada; working steadily, paying taxes, raising a family and generally being a contributing member of Canadian society. The Accused has no prior criminal history and has no charges outstanding against him. [ 34 ] The consequences of the Accused’s actions on him have already been devastating.

The life he has built up in Canada over the past 13 years, since he was 19 years old, has been shattered. It has played a significant role in the break-up of his family. He can no longer see his children, as his wife has taken them with her to China. [ 35 ] I find the case with facts most similar to those in the case at bar to be R. v. Hupang , where the offence was also under

Section 127 (a). Unlike Hupang , Mr. Zhao’s offending conduct continued for a longer period of time and involved a fraud on the refugee application system and the permanent residence application system. On the other hand, the offences for which Mr. Zhao is now being sentenced do not involve possessing, creating or using false passports, transcripts or other documents. Indeed it has not been established that Mr. Zhao ever possessed or used a fraudulent passport. According to the agreed statement of facts, Mr.

Zhao’s breaches of trust involve acts of non-disclosure. [ 36 ] I am of the view that the life-shattering consequences of these charges on Mr. Zhao will serve as an added deterrent, not only for Mr. Zhao, but to others who may contemplate similar conduct. [ 37 ] I note that the 17 days time served substituted by the Court of Appeal in R. v. Hupang , did not reflect pre-sentence custody, but rather time already served on the sentence imposed at trial, prior to being released on bail, after obtaining leave to appeal.

Prowse, J.A. concluded her reasons as follows: “….While I am satisfied that this is the appropriate sentence for Mr. Hupang at this point, I would not wish these reasons to be read as necessarily requiring a sentence of imprisonment for all similar contraventions of s.127(

a) of the Act . The Act does not set forth a minimum penalty and each case must be dealt with on its own facts. [ 38 ] In my view, these offences do require a sentence emphasizing denunciation and general deterrence. Accordingly, a discharge would be clearly inappropriate, and a custodial sentence is called for.

However, in light of the mitigating and aggravating factors and the circumstances of these offences and of this offender, I find that it would not endanger the safety of the public and would be consistent with the fundamental purpose and principles of sentencing to have the custodial sentence served in the community. [ 39 ] Mr. Zhao, please stand. I order that you serve a custodial sentence of 90 days in the community subject to your complying with the conditions of this order, which are: 1. Keep the peace and be of good behaviour, 2. Appear before the court when required to do so by the court, 3.

Report to a conditional sentence supervisor by 4:00pm today in person and thereafter as and when and in the manner directed by the supervisor, 4. Remain within the Province of British Columbia, unless written permission to go outside the province is obtained from the supervisor, 5. On your initial report to the supervisor, provide the supervisor with your residential address and any contact telephone numbers you may have,

6. Do not change either your residential address or any contact telephone numbers without first providing the supervisor with written notice containing the details of such changes, in advance of such changes, 7. Perform 15 hours of community work service under the direction of your supervisor to the satisfaction of your supervisor within the first 60 days of this order. The times and places where such community work service is to be performed will be provided to you by your supervisor. 8. Remain within your residence except in the following situations: (

a) While working at your place of gainful legitimate employment and while travelling directly between your home and your place of employment without stopping in between, (

b) With the written permission of your supervisor, such permission to be carried on your person at all times, (

c) While attending meetings with counsel, attendances in court, meetings with your supervisor, at meetings and appointments arranged by your counsel with respect to your immigration matters, and while travelling directly between your home and those locations, (

d) Medical and dental emergencies, (

e) One hour 3 times per week for the purpose of shopping, (

f) One hour each weekend morning for the purpose of exercise, (

g) You will provide your supervisor in advance with your

schedule for shopping and exercise. ________________________ P. CHEN, P.C.J.