R. v. Arrojado, 2019 MBPC 25

R. v. Arrojado , 2019 MBPC 25 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) E. Magas for the Crown ) and ) ) Alfredo Arrojado ) ) S. Simmonds for the Accused ) ) Judgment delivered: ) April 8, 2019 C.A. DEVINE, P.J. Introduction [ 1 ] This weekend’s Globe and Mail newspaper contained a feature investigative

article about the pressing problem of foreign workers falling prey to illegal recruitment rackets run by unscrupulous immigration consultants. The story told of workers coming to Canada after paying large sums to fraudulent consultants, only to find no jobs, or different, lower-paying jobs, and abysmal living conditions. Under Canada’s Immigration and Refugee Protection Act those practices are illegal and consultants found guilty could face lengthy penitentiary sentences and six figure fines.

The Act is robust legislation aimed at protecting refugees and immigrants coming to Canada and safeguarding Canada’s immigration policies and system. [ 2 ] The kind of shocking treatment of foreign workers and wholesale criminal fraud on the Canadian immigration system outlined in the Globe and Mail

article is not the type of immigration fraud case before me today. The Act also captures conduct that is far less criminal in nature. [ 3 ] Mr. Arrojado pleaded guilty to providing false or misleading information or declarations with intent to induce immigration into Canada under

section 127(

b) of the Act ; his main offence is operating for several years as a paid immigration consultant after he let his license lapse in 2007. He also represented clients before the Appeal Board, but told authority he was acting only as a friend, when in reality he was a paid consultant. Mr. Arrojado had worked as a registered and licensed immigration consultant for several years before 2007. He continued to provide services up until 2016 when he was investigated and charged.

There is no suggestion that he provided less than adequate services to his clients, none of his clients ever complained, none of them ever suffered any negative immigration consequences as a result of his advice, nor did he overcharge them. [ 4 ] The maximum penalties under

section 127(

b) are harsh: up to five years in jail or a fine of up to $100,000. The Crown proceeded by way of indictment. She is seeking a two-year less a day Conditional Sentence Order (CSO) and a significant fine, but recognizing that Mr. Arrojado’s offences are not as serious as those described in the case law filed in this case. Defence argues that Mr. Arrojado’s offence is far less serious than those normally prosecuted under this

section of the Act , and he was far less morally culpable than the offenders in other cases, therefore his case warrants a sentence far less serious. Counsel also cites Mr. Arrojado’s age, medical condition and lack of financial means to suggest a Conditional Sentence Order of one year and either no fines or nominal fines or community service work, as Mr. Arrojado would be discharging the fines through the fine option program in any event, given his impecunious status. Facts [ 5 ] Although Mr.

Arrojado’s main offence was providing immigration consulting services without a license, also an offence under the Act , he did not plead guilty to that offence. He pleaded guilty to the more serious offence of providing false or misleading information. He pleaded guilty to all the facts however, so the fact that he was providing services without a license over nine years is part of the consideration in this sentencing. [ 6 ] Mr. Arrojado had an immigration consulting firm in Winnipeg and provided services mainly to citizens from the Philippines who were interested in immigrating to Canada.

He had a home office and there is no doubt he had signage, a price list and certificates holding himself out as a registered, licensed consultant. [ 7 ] The Crown filed as an exhibit a list of 343 individuals for whom Mr. Arrojado provided immigration consulting services over

the nine years, the nature of the services provided and the fees charged. There is no suggestion that Mr. Arrojado lured foreigners toCanada on the basis of jobs and prospects that did not exist, nor is there any suggestion he overcharged anyone. The fees appear to bemodest. [8] Mr.

Arrojado did not renew his license in 2007 and the years following for a number of personal and medical reasons leadingto financial hardship, including the failure of his marriage and eventual divorce, suffering a heart attack and a stroke, adjusting tomedications, upheaval in his living arrangements and then unsettled romantic relationships. [9] Mr. Arrojado did not come to the attention of immigration authorities over most of the nine years. He was investigated onlyafter one of his clients was detained upon her arrival in Vancouver from the Philippines on January 20, 2015.

She was investigated aboutan allegation that she was attempting to enter Canada to work without authorization. She was issued an exclusion order barring her fromCanada for a period of one year. She went back to Manila. She filed a complaint to Immigration Canada and “received a reply with whatmight be considered an indirect apology.” She was later allowed into Canada. She is married and lives in British Columbia and Mr.Arrojado continues to have contact with her and her husband. [10] The Crown filed two emails between Mr.

Arrojado and two clients in which he counselled them on how to make it appear thatthey had sufficient money to be allowed to settle in Canada, to show they could support themselves and any family members whoplanned to come with them. Mr. Arrojado suggested they have wealthier family members put the “show money” in their accounts for therelevant time that Canadian immigration authorities would be checking on their financial viability and then return it to the familymembers once they were accepted for immigration to Canada. [11] Mr.

Arrojado represented as many as 15 clients at immigration appeal board hearings as a paid consultant, but representedhimself as an unpaid friend to immigration authorities. [12] As a result of the Manila client’s information to immigration authorities, Mr. Arrojado was investigated. Canadian BorderServices Agency officers first came to his apartment April 14, 2016 and searched it. He fully cooperated with the authorities, providingthem all his bookkeeping and records of client lists, services provided and fees charged.

Sentencing Objectives [13] Both the Crown and defence filed cases where persons were sentenced under this Act. Without exception, the cases are markedby egregious, fraudulent activity, with one case involving human trafficking. In those cases, judges found the primary sentencingobjectives to be denunciation and deterrence. [14] In R. v. Al-Awaid, 2015 NSPC 52, the immigration consultant assisted his clients circumvent residency requirements. He wouldhelp foreign nationals essentially “fake” residency in Canada and then apply to renew permanent residency status.

Judge Derrick (as shethen was) of the Nova Scotia Provincial Court stated that “Mr. Al-Awaid’s deliberate, protracted and extensive scheme for misleadingCIC requires a sentence that emphasizes denunciation and deterrence.” (At para 26) [15] Similar to Mr. Al-Awaid, but on a much larger scale, the offender in R. v. Wang, 2015 BCPC 302 , 2015 BCPC 0302created a false paper trail resulting in a false impression that foreign nationals were resident in Canada, including creating alteredpassports and fabricating addresses and jobs. Judge Harris of the British Columbia Provincial Court stated that Mr.

Wang was the“mastermind” behind a large-scale scheme that “likely contributed to numerous persons fraudulently obtaining permanent residency andcitizenship,” thereby attracting a sentence demanding denunciation and deterrence (at paras. 31 and 61). [16] In R. v. Large, 2015 BCSC 1238, the offender operated an au pair business bringing in foreign nationals to work; shecounselled them to lie to immigration officials, specifically that they were entering Canada for vacation.

Justice Verhoeven of the BritishColumbia Supreme Court characterized her offence as “wholesale criminal conduct which was designed to undermine the immigrationscheme and law of Canada. . . . Her crime is serious: it was deliberate, prolonged, and had serious consequences, most particularly forthose who were sent back to their country of origin” (at para. 42).

Even though Justice Verhoeven found her case less serious than manyothers, because she did not engage in human smuggling or trafficking, nor did she forge documents to allow foreigners to becomepermanent residents or citizens, he nonetheless found that the objectives of denunciation and deterrence were engaged. [17] In R. v. Ren, 2015 ONSC 3397, the offender orchestrated sham marriages with a commercial motivation – charging clients$30,000 - $35,000. Over a period of six years “she oversaw a sophisticated, carefully planned scheme aimed at deceiving CIC intogranting foreign nationals permanent resident status.

In order to carry out the scheme, she enlisted dozens of otherwise law-abidingcitizens to serve as spouses, recruiters, photographers. . . the scheme struck at the integrity of the Canadian immigration system and wascalculated to undermine public confidence in it.” (At para. 19) Given the gravity of the offences and the commercial motivation drivingthem, Justice MacDonnell also found that the paramount sentencing objectives were denunciation and deterrence (at para. 22). [18] In R. v.

Yoon, (25 January 2018) Winnipeg (Man.Prov.Ct.), the offender carried on an unlicensed and fairly lucrativeimmigration consulting business for several years. He had been warned to cease activities, but did not do so. Some applicants felt obligedto use his services because their employers were using his services. Judge Huberdeau stated that based on the stiff penalties available, thecase law and the circumstances of that case, the objectives of deterrence and denunciation were primary. [19] The most egregious case filed was R. v. Park (29 June 2017) Edmonton (Alta.Prov.Ct.).

The consultant induced at least nineforeign nationals to immigrate to Canada based on fraudulent LMO’s advising they had a job at a specific company and they could onlywork at that company. When they arrived in Canada they found the job did not exist and they were told to work at a different job,illegally. They were extremely stressed, fearing arrest by the authorities, isolated and living in deplorable conditions. Four were arrestedfor working illegally in Canada. Judge Creagh of the Provincial Court of Alberta also noted that the sentence must emphasizedenunciation and deterrence. [20] In the case of Mr.

Arrojado, I agree that denunciation and deterrence are the relevant sentencing principles. His ongoing fraudof operating as a registered and licensed consultant, misrepresenting himself before the immigration appeal board and counselling at least

two clients on how to fraudulently demonstrate “show money” could tarnish the integrity of the Canadian immigration system. But his crime pales in comparison to those of the offenders in the cases filed. How the principles of denunciation and deterrence are given expression in Mr. Arrojado’s case must take his personal circumstances and other sentencing principles into consideration, including the overarching sentencing principle of proportionality. The Seriousness of the Offence [ 21 ] The

section to which Mr. Arrojado pleaded guilty captures a wide range of behaviour, from breaches that are more regulatory in nature to purely criminal conduct. Mr. Arrojado’s conduct was closer to the regulatory end of the spectrum. He did not overcharge his clients and in fact during the years as a practicing consultant his income was always modest at best, usually low. He is now living on pension income and is impecunious. He had never been warned to stop as in the Yoon case.

There was no fraudulent scheme as in Wang or Large , there was no falsification of documents, addresses and so on as in the other cases. [ 22 ] At the same time however, the presence of an unlicensed immigration consultant operating for nine years and serving over 300 clients harms the public’s perception and confidence in Canada’s immigration system and contributes to undermining that system by far more devious and unscrupulous criminals.

I also take into account that he misrepresented himself to the immigration appeal board and counselled two clients to demonstrate “show money.” [ 23 ] The proportionality analysis takes into account the degree of responsibility of the offender as well for committing the offence. The Moral Culpability of the Offender [ 24 ] Mr. Arrojado is a well-educated, intelligent man. But he committed these offences against a backdrop of tragedy in his life and at a time in his life when it seemed that everything else was falling apart. Defence counsel arranged for a psychological assessment of Mr.

Arrojado while pending on his charges. The assessment reports were filed in this sentencing. [ 25 ] Mr. Arrojado is 68 years old. He immigrated from Manila in 1974 at the age of 24. He is retired, single and has three adult children from his previous marriage who are all successful and with whom he is close. [ 26 ] He was raised in a lower-middle class home with a father who worked in the post-office and a mother who worked as a teacher. He had a brother and two sisters. His mother died from complications after surgery when he was nine years old.

His father neglected the children, turning to alcohol, gambling and womanizing. He and his oldest sister became surrogate parents and providers. Notwithstanding this, he did well in school and earned a place in a private Catholic school. His family sponsored each other to come to Canada. [ 27 ] Before coming to Canada he received post-secondary education in the Philippines as a merchant marine, as a Bachelor of Science and in Business Administration.

He worked on the trading floor of the Philippine Stock Exchange after graduation. [ 28 ] When he moved to Canada, his work was more menial, but it appears he always worked. In 2002 he passed the admissions test at Red River College for Immigration Consulting and then worked as an immigration consultant under the business name, Canadian Transcontinental Immigration Consulting Services (CTICS) until his retirement in 2016. [ 29 ] Mr. Arrojado has suffered many tragedies and losses. [ 30 ] His sister was murdered in Canada in 1997. His father died of a heart attack in 1998.

His brother in the Philippines died from illness in 2016. Mr. Arrojado has gone through divorce and has had several medical problems. Despite this, the psychotherapist who assessed him found that he does not suffer from depression nor anxiety. The psychotherapist found him to be “a man with extraordinary resiliency and adaptability in handling the vicissitudes of life.” [ 31 ] He is deeply spiritual, which helps him through life’s challenges. [ 32 ] He has volunteered significantly in the community, in positions of responsibility and ironically, for regulatory bodies.

He was a panel member of the investigative committee of the College of Registered Nurses of Manitoba. He was a Commissioner of the Manitoba Human Rights Commission. He was part of the Language Bank for 22 years, providing interpreter services in Manitoba courts and other public institutions. [ 33 ] The psychotherapist investigated and assessed Mr. Arrojado in a number of areas related to moral culpability. There was no evidence or concern of malingering. He was found to fake neither good, nor bad. There were no cognitive impairments, mental or psychological or addictions problems noted.

There were no thinking errors nor cognitive distortions. [ 34 ] He found Mr. Arrojado to have a positive disposition and to be a person who is not defensive, is self-actualized, confident and adaptable, generally able to perceive accurately, reason clearly and react appropriately. In

summary, Mr. Arrojado’s “temperament is absent of personality problems, and he is positive, with markings of self-management, social-leadership competence and sound work ethos.” [ 35 ] The overall

summary of the clinician was of “ A stable and mature individual with a history of service to people in need of help and encouragement. . . . His greatest pleasure comes from being kind and useful.” [ 36 ] Mr. Arrojado’s offences do not demonstrate any degree of planning or premeditation like some of the schemes detailed in the cases. Mr. Arrojado failed to renew his license out of negligence, and because he could not afford it. Although he was paid by some of his clients, others would take him for dinner or give him a bottle as payment. He received $88,000 for the four years, 2010 to 2013. Other Principles of Sentencing

[ 37 ] In addition to ensuring that the sentence I impose is proportional to the seriousness of the offence and Mr. Arrojado’s degree of responsibility in committing it, I take into account mitigating and aggravating factors, and the principles of parity and restraint. [ 38 ] There are several mitigating factors. Mr. Arrojado opened his office and files to investigators and was cooperative throughout. That cooperation and his guilty plea again demonstrate the attenuated degree of moral culpability in this case. They have also saved the state from a lengthy and costly trial. Mr. Arrojado is deeply remorseful.

The Philippine and the larger Winnipeg community still see Mr. Arrojado in a very positive light; several letters of support were filed in court. It is apparent from a reading of the letters that Mr. Arrojado has been candid to people about his offence, notwithstanding that he is deeply embarrassed and remorseful about it. [ 39 ] T he only aggravating factor is the length of time Mr. Arrojado carried on as an unlicensed consultant. [ 40 ] The principle of parity requires that similar offenders committing similar offences should receive similar sentences.

The sentences in all the cases referred to earlier, other than Wang , were Conditional Sentence Orders. The CSO’s ranged in length from 15 months to two years less a day. Mr. Arrojado’s offence is far less serious than that of any of the other offenders. I note in Al-Awaid , that the offender had serious medical concerns which tipped the scale in favour of a CSO rather than the federal penitentiary. Mr. Arrojado’s moral culpability is also far less than the offenders in those cases. [ 41 ] Although it has been helpful to read all the cases filed by counsel in this case, none of them are on par with Mr.

Arrojado’s case. The principle of parity is useful only to the extent that the offenders and offences are similar. Ultimately, the principle of proportionality must govern, and a judge must impose a fit and appropriate sentence R. v. Nasogaluak , 2010 SCC 6 at paras. 42-44 R. v. Lacasse , 2015 SCC 64 at para. 58 [ 42 ] I also take into account the sentencing principle of restraint in

section 718.2 (

d) and (

e) of the Criminal Code , that: (

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 43 ] I take into account Mr. Arrojado’s age, financial circumstances and his medical condition. [ 44 ] Mr. Arrojado has meager finances and no assets – he leases his car and rents an apartment. He has credit card debt of over $15,000. He is now retired and his income consists of CPP, GIS and Old Age security pensions totaling $1,773 per month. He has no stocks or other investments. His rent is $920 per month.

A previous employer is paying his legal fees and counselling fees in this proceeding. [ 45 ] There is no question that any fine I might impose on Mr. Arrojado would be onerous if not cruel. Although the context was different in R. v. Boudreault , 2018 SCC 58 , the Supreme Court in its dicta recognized that sentencing courts must not lose sight of the effect of financial penalties on impecunious offenders.

At paragraph three of the decision, Justice Martin for the majority stated: Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence. As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies.

In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization. [ 46 ] As for the ability of Mr. Arrojado to work off any fine, I do not think it is realistic. [ 47 ] He has significant medical issues that affect his ability to work and function in the community. He has had a heart attack, a stroke and was diagnosed with diabetes in 2004. He is on several medications for his heart, circulation and diabetes.

As I indicated earlier, he is not a young man; he is 68 years of age. I also observed in Court he was hard of hearing. [ 48 ] A fine in his case is harsh and unnecessary. I do not see the need for a fine in addition to a CSO in his case in any event. Unlike some other cases where fines were imposed because of the financial gain realized by the consultants and the profit motive of their operations, that is not the case for Mr. Arrojado. [ 49 ] In Mr. Arrojado’s case, the investigation and charges have already had a deterrent effect.

He has lost face in the Philippine community and the broader community where he has worked doing community service for decades. He described it as “a hard and terrible lesson” at his sentencing hearing. I have no concern that he will ever attempt to provide any type of immigration consulting service again. [ 50 ] Ultimately, neither the facts of Mr. Arrojado’s offence nor his moral culpability warrant a sentence of the type imposed in the cases filed. Sentence [ 51 ] The sentence in this case will be a one year CSO. The conditions of the CSO are as follows: 1. Keep the peace and be of good behaviour. 2.

Report to CSO supervisor within one (1) week and thereafter as required by the supervisor. 3. Abide by a curfew of 10:00 p.m. to 7:00 a.m. seven (7) days a week except for medical emergencies or as arranged in advance

with the supervisor. 4. Notify the supervisor in advance of any change of address. 5. Remain within the jurisdiction unless written permission is obtained by the supervisor or the court. 6. Must not assist any person or entity with any matter related to immigration to Canada, specifically in relation to working, studying or immigration for the purposes of permanent residence (with or without compensation). This includes the provision of advice in relation to immigration matters. 7.

Must not engage in the preparation or assist in the preparation of any applications for “Labour Market Impact Assessments” (LMIA) or (LMO). 8. Must not engage in the preparation or assist in the preparation of any applications to the Provincial Nominee Program (Immigration). 9. Must not engage in the preparation or assist in the preparation of any application to Immigration, Refugees and Citizenship Canada (IRCC). 10. Must not be involved in any activities related to the recruitment of foreign workers or students to Canada. “Original signed by:” C.A. DEVINE, P.J.