r v. Pintu, 2018 QCCQ 8566

R. c. Patel 2018 QCCQ 8566 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N°: 500-73-004442-162 500-73-004408-163 DATE: November 23 rd , 2018 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v.

Pintu Gandabhai Patel Accused Reasons for Sentence [1] [ 1 ] The Accused, Pintu Gandabhai Patel (Patel or the Accused) has pleaded guilty before me to two counts of accusation both in relation to offences under the Immigration and Refugee Protection Act ( IRPA ). [2] [ 2 ] In file number 500–73–004442–162, he pleaded guilty to the accusation that, in Montréal, between April 6, 2015 and February 2, 2016, he organized, induced, aided or abetted the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of

Section 117 of IRPA , thereby committing an indictable offence pursuant to Section 117 (3) of IRPA . [ 3 ] In file number 500–73–004408-163, he pleaded guilty that in Dorval, in order to contravene IRPA , had in his possession documents that purport to establish or that could be used to establish a person’s identity, to wit, photos of Indian passports and photos of canadian visas, contrary to Section 122(1)

a) of IRPA , committing thereby the indictable offence contrary to Section 123(1)

a) of the same Act. The context [ 4 ] The facts pertaining to the accusations has been set out in detail in my judgment pertaining to motions to exclude evidence rendered on August 24, 2018. [3] They are deemed to be part of this judgment on sentence.

They are also described in the Agreed Statement of Facts filed into evidence at the sentencing stage. [4] [ 5 ] Suffice it to say for the purpose of this judgment on sentence that on 25 October 2015, accompanied by his common-law partner Dipitka Patel (Dipitka) [5] and by the small child of Dipitka, Mahi, he arrived at Pierre-Elliot-Trudeau Airport in Montréal (Dorval) where he made a claim to obtain refugee protection to an officer of the Canada Border Service Agency ( CBSA ). [ 6 ] Upon his arrival, the Accused was in possession of three cellular phones as described in paragraph 10 of the Agreed Statement of Facts, two of which belonging to the Accused and the third one to Dipitka. [ 7 ] In pursuing the Accused true identity, an officer of the Identity

Section of CBSA Inland and Enforcement and Removal

Section searched the Accused cell phones. The officer did not find any document pertaining to the identity of the Accused. However, while searching the phones, she came across dozens of identity documents for numerous indian citizens, including passport size photos. She also found passports and canadian visitor visas. The officer also came across text messages in which prices for travel documents were being discussed. [ 8 ] The investigation revealed that the Accused is part of a criminal organization specializing in the recycling of travel documents.

The scheme of the recycling of indian passports and canadians visitor visas is summarized in paragraph 17 of the Agreed Statement of Facts. [ 9 ] The search of Accused cell phones revealed that they contained 77 passport size photographs, 55 passports biography pages with photographs, 21 photos of canadian visitors visas issued to indian citizens and photos of passport stamps. [6] [ 10 ] During the pre-sentence submissions, it was admitted that the Accused did not act for humanitarian grounds, neither to help family members nor as part of mutual assistance within migrants.

But that he did receive retribution for his involvement in the scheme.

[ 11 ] It was also admitted that if Dipitka testified, she would testify in the same manner she did before the Refugee Protection Division of the Refugee Board. [7] That when she and the Accused left India, they were not married together but that they were both married to two other individuals and that they left India because of their state of adultery. And that they married on April 29, 2018. The position of the parties on sentence [ 12 ] The Prosecution is requesting a six-year sentence on the offence under

Section 117 IRPA (smuggling migrants) and a four year sentence to be served concurrently under

Section 123 . [ 13 ] Defence is of the opinion that the sentence should be the custodial time already served in jail by the Accused. For the defence, a sentence of six years is way excessive and the time already served by the Accused is the proper sentence in the circumstances. The law [ 14 ] The purpose and principles of sentencing are contained in Sections 718 and following of the Criminal Code (the Code ). [ 15 ] More specifically at

Section 718, it states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives, i.e., to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct, to deter the offender and other persons from committing offences, to separate offenders from society, where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 16 ] The fundamental principle of sentencing is contained in

Section 718.1: it is the principle of proportionality, that the sentence be proportionate to the objective gravity of the offence and the degree of responsibility or the moral culpability of the offender (the subjective gravity of the offence). [8] The Seriousness of the offences Their objective Gravity [ 17 ] The objective gravity of the offences to which the Accused has pleaded guilty are most serious. [ 18 ] As to of the offence of organizing entry into Canada contrary to Section 117(1) of IRPA , the Accused is liable to a minimum sentence of imprisonment for a term of three years and a maximum of life imprisonment and to a maximum fine of not more than $1 million. [ 19 ] Moreover, the fact that the severity of the sentences which the Accused is liable to under that

Section have been substantially increased in the last few years also shows that Parliament is considering those offences as being most serious. And that they require more severe sentences. And that the sentences imposed under the former regime have become obsolete. [ 20 ] Recently, in R. c .

Régnier , Judge Bouchard, for the Court of Appeal of Québec, wrote the following after analysing the numerous amendments increasing the severity of the sentences that can be imposed in child pornography cases: [9] [39] De toute évidence, les nombreux amendements législatifs apportés aux dispositions liées à la pornographie juvénile depuis les 12 dernières années vont dans le sens d’un durcissement des sanctions.

Ils révèlent la volonté claire du Parlement d’accorder une protection accrue aux enfants et d’infliger des peines sévères pour les délinquants qui gravitent autour de cette industrie de plus en plus nocive en raison de la facilité toujours plus grande d’y accéder via Internet. [40] mon avis, il est temps de donner plein effet à la volonté du législateur.

Les fourchettes de peines n’étant rien d’autre que des outils destinés à faciliter les tâches des juges d’instance, je ne vois aucune raison valable de continuer à appliquer par mimétisme jurisprudentiel des précédents rendus à une époque ne reflétant plus le monde d’aujourd’hui. [ 21 ] In the same case, the Court of Appeal wrote the same about the effect of new minimum sentences: [10] [41] Les peines minimales obligatoires non seulement haussent le plancher des peines imposées pour un crime donné, mais elles ont également un effet inflationniste sur celles-ci. [ 22 ] Finally, the fact that no proceedings for an offence under

Section 117 may be instituted except with the consent of the Attorney General of Canada also underscores the seriousness of the offence. [11] [ 23 ] As to the offence laid under Section 122(1)

a) of IRPA , the Accused is liable to a period of imprisonment of 5 years, pursuant to 123(1)a). [12] Their subjective gravity [ 24 ] During the pre-sentence submissions, it was admitted that the Accused did not act for humanitarian grounds, neither to help family members nor as part of mutual assistance within migrants. But that he did receive retribution for his involvement in the scheme.

No amount of money was put in evidence. [13] [ 25 ] That being said, and as already mentioned, the Accused committed the offences as part of a criminal organization specializing in the recycling of travel documents. [ 26 ] The important quantity of passport size photographs, passport biography pages with photographs, photos of canadian visitors visas issued to Indian citizens as well as photos of passport stamps found in the Accused cell phones confirm the fact that the Accused

did not act by himself but that he was of a criminal organization dealing in travel documents.[14] [27] The number of illegal entries (19 Indian citizens within a period of 10 months) the Accused participated in also shows the same.As well as the eight other Indian citizens intercepted at the airport in New Delhi or Hong Kong who were about to board a flight intoCanada and who were either travelling with passports and visas found in the Accused cell phones or their passport format picture wasfound in the Accused cell phones.

In any event, they did not have the required documents to enter Canada.[15] The Accused [28] The Accused is 31 years of age and he is now married to Dipitka with whom he arrived at Pierre-Elliott-Trudeau on October 25,2015 along with Dipitka’s daughter, Mahi.

He has no known criminal record. [29] According to the evidence, and the Court accepts the explanation, the Accused and Dipitka left India together because of theiradultery situation. [30] As to the role of the Accused in the organization, late Judge Michael Stober, in his judgment on a motion for judicial interimrelease, wrote that “the Accused was an integral cog in a deliberately planned, ongoing, international, criminal, people smugglingbusiness” and added that “the Accused [played] a large role in the commission of the alleged offence […]”.[16] Analysis [31] The offences to which the Accused has pleaded guilty are very serious ones, objectively as well as subjectively.

The penaltiesthat can be imposed upon the Accused clearly show the intent of Parliament. [32] Furthermore, in his judgment dismissing the Accused Charter motions, this Court quoted extensively from case law establishingthat a country not only has the right but the duty to control entry into the country by foreign nationals and to take the necessary steps toassure that the immigration laws be respected, notably the refugee protection system.

As Chief Justice McLachlan wrote in R. c.Appulonappa:[17] [18] A significant concern for the integrity of Canada’s refugee protection system is the threat posed to it by the entry to Canada ofunauthorized persons outside the lawful refugee regime. [33] As to the refugee protection process contained in IRPA, she also wrote: [17] […] The IRPA aims to establish “fair and efficient [refugee] procedures that will maintain the integrity of the Canadian refugeeprotection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings”: s. 3(2)(e).Both goals are underpinned by Canada’s adhesion to international conventions and protocols, […]. [34] The Court totally agrees with what judge Hawkes wrote about human smuggling in the case of Rafiq:[18] [4] Human smuggling is a serious and growing problem that represents a direct threat to the integrity of Canada’s immigration, bordercontrol and refugee programs.

It undermines public confidence in and support for these critical programs. I adopt the followingcharacterization of the seriousness of the offence from the British Columbia Supreme Court in R. v. Li 2001 BCSC 458 atpara's 7-9: 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. There is increasing international concern about the global problem of trafficking in people, where vulnerable people are exploited andexposed to dangerous circumstances. In fact, subsequent to this offence, Canada became a signatory to the United Nations ProtocolAgainst Migrant Smuggling.

It is estimated that 8,000 to 10,000 illegal migrants arrive in Canada each year, costing the Canadiantaxpayer $120 to $400 million dollars, yet generating billions of dollars to traffickers. 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. [5] I also note that the case law subsequently recognized that the inevitable loss of border control that occurs in human smuggling maypose national security and safety risks and resultant economic harm. (R. v. Aghani (ON SC) As a result, particularlywhere the activities are repeated, sophisticated, and display evidence of planning and coordination; the principles of denunciation anddeterrence must prevail.

In the circumstances of this case that requires the imposition of an actual custodial sentence of 2 yearsincarceration. I conclude that this is the least restrictive fit sentence that I can impose in the circumstances. [35] It is interesting to note that Judge Hawkes wrote those final remarks where he had to impose a sentence upon an Accused whohad pleaded guilty to bringing (only) two refugee claimants to Canada while playing a low level role into the scheme as the escort or

handler for both claimants. [ 36 ] In his decision, Judge Hawkes also wrote some interesting comments regarding the offence of human smuggling and the more general context of the IRPA : [19] [10] Two other aspects of the statutory context require comment. First, the Immigration and Refugee Protection Act contains a statement of objectives to aid in the

interpretation and application of the Act. The objectives contained in sections 3(2)(e),(g), and 3(3) (

f) are of particular importance in this case. Collectively they require the establishment of efficient and fair procedures that will maintain the integrity of the refugee system while upholding respect for fundamental rights and freedoms, protect the health, safety, and maintain the security of Canadian society, and to ensure that the

interpretation and application of the Act complies with international human rights instruments to which Canada is a party. [11] Second, both the Act (s.133), and the United Nations Convention and Protocol Relating to the Status of Refugees (Art. 31), prohibit the imposition of penalties on refugees for unlawful entry or related actions when they are coming directly or indirectly from a place where their lives or freedom are threatened.

However, in order to combat the real and pressing problem of human smuggling and trafficking, other international protocols with respect to human smuggling and trans-national organized crime were passed, necessitating changes in the penalty and other provisions of the Immigration and Refugee Protection Act .

Those who would engage in human smuggling, particularly for profit, must be deterred in order to safeguard the integrity of the protections properly extended to refugees. [ 37 ] As Judge Dhillon in Prone , [20] I find that the offences committed by the Accused are serious and that they show his involvement in a sophisticated criminal smuggling operation with the circumstances of the illegal operation showing forethought, planning, and deliberation.

It is sophisticated because of the various stages of travel by the illegal immigrants, using travel by air, all of it requiring well-crafted false documents and the ability to pass undetected through various border controls and inspections. Such human smuggling violates Canada’s border right integrity. [ 38 ] Undoubtedly, general deterrence and denunciation are the key sentencing considerations in human smuggling cases. [21] Dhillon J. wrote as follows in Prone : [22] [39] […] general deterrence and denunciation are the key sentencing considerations in human smuggling cases.

As noted in that case, [23] and I paraphrase, the implications of human smuggling are profound and far-reaching. The risk to society of this type of profit motivated criminality is great; it affects national security and public safety.

It is vital and necessary to impose a sentence that speaks to those intending to compromise international borders that such violations will be treated severely and will result in a sentence of sufficient duration such that the allure of big money or profit may well lose its appeal. [ 39 ] Again, as Dhillon wrote in Prone , caselaw suggests that in human smuggling cases, the range of sentence will vary according to the individual circumstances.

At the low end, the penalty called for is a custodial sentence of the magnitude of about 12 months and at the middle range under the current legislative scheme is a sentence of 3 to 5 years. The most egregious the facts, the closer will be the sentence to the maximum of 10 years for human smugglers who smuggled persons less than 10 in number. In this case, the Accused pleaded guilty to smuggling more than 10 persons. Not only in this case is the maximum penalty life imprisonment but the minimum sentence is a period of imprisonment of three years. [24] [ 40 ] In Prone , the Accused had smuggled two individuals.

His role was to accompany the individuals and recover their passports so that they can be recycled. He was at the low end of the criminal organization. The judge imposed a custodial sentence of four years. [ 41 ] In the Rafiq case, the Accused smuggled there again two individuals. He had a low level role and had low profit.

He was given a two-year sentence. [ 42 ] In reaching the sentence to be imposed to the Accused in this case, I take into account his guilty plea, even though entered more than four years after his arrest and the fact that he has no known previous record. [ 43 ] The Court also accepts that the reason why the Accused and Dipitka left India together was because of their adultery situation and their wish to be together.

Obviously, that cannot explain nor justify the involvement of the Accused in the criminal enterprise as shown in this case. [ 44 ] I also take into account the gravity of the offences, especially the people smuggling offence, the fact that the Accused acted for the benefit of a well organized criminal organization, the wide number of persons smuggled in the country [25] (compared for example to the number in Prone and Rafiq ), the huge quantity of documents of all kinds found in the Accused cell phones, [26] the role of the Accused, an integral cog in a deliberately planned, ongoing, international, criminal, people smuggling business and the fact that he played a large role in the commission of the alleged offences. [ 45 ] Taking into account all those circumstances, I find the recommendation made by the Prosecution to be the proper sentence to impose to the Accused. [ 46 ] The Accused has been detained since October 25, 2015.

Even though he was detained “administratively” between October 25, 2015 and April 16, 2016, and that he was only charged on April 16, 2016, the Prosecution accepts that, for the purpose of sentence, I should consider that the Accused has been detained from October 25, 2015 to this day, a total of 1,125 days, the equivalent for sentencing purposes of 1,687 days or close to 56 months. FOR ALL THOSE REASONS: In file number 500–73–004442–162, the Court imposes upon the Accused a sentence of six years.

In file number 500–73–004408–163, the Court imposes a sentence of four years, both sentences to be served concurrently.

Given the time already served by the Accused, the time left to be served will be 16 months as of today. __________________________________ ROBERT MARCHI, J.C.Q. M e Annabelle Racine M e Brooke St-Cyr Attorneys for the Public Prosecution Service of Canada M e Marie-Hélène Giroux M e Maxime Chevalier Attorneys of the Accused Dates of hearing: November 12 th , 2018