2012 MBPC 38, 2012 MBPC 38

Cite: 2012 MBPC 38 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Omar Siddiqui, ) for the Crown - and – ) ) Jung Won Choi, ) Kenneth Zaifman. Accused ) ) for the Accused ) Judgment delivered: April 10, 2012 ) Mary Kate Harvie P.J. Introduction [ 1 ] On March 26, 2012, the accused, Jung Won Choi, entered a guilty plea to one count under section 124(1)(

c) of The Immigrant and Refugee Protection Act (“IRPA”) with respect to multiple incidents involving six refugees. These incidents span the period of June 22, 2008 to May 26, 2009. [ 2 ] At issue is the appropriate sentence to be imposed. Crown counsel suggests a fine in the sum of $20,000 is appropriate. Defence counsel suggests that the Court impose a conditional discharge with conditions including the requirement that the accused make a $5,000 donation to a charity. Applicable Legislation [ 3 ] Section 124(1)(

c) of the IRPA states as follows: Contravention of Act 124 . ( 1 ) Every person commits an offence who [...] (

c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.

(2) For the purposes of Paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized. [ 4 ] Crown counsel chose to proceed by indictment. The punishment provisions state that the maximum penalty is a fine of no more than $50,000, or a term of imprisonment of not more than two years, or both. There is no minimum penalty prescribed. [ 5 ] The legislation sets out a number of requirements for the hiring of temporary foreign workers.

The goal of the legislation is to protect immigrants and refugees from being preyed upon by employers and employed without proper remuneration or other benefits. The legislation also seeks to ensure that the job market is appropriately protected for Canadian citizens. The Facts Supporting the Guilty Plea [ 6 ] The accused is the director and president of the corporation whose interests included two restaurants in Winnipeg, Manitoba.

This investigation began when the authorities received information that individuals (other than those named in this count) were attending Canada from Korea and expressing the intention of attending to Winnipeg to work in the accused’s restaurant. As a result of significant surveillance and investigation, a search warrant was ultimately executed and video footage was obtained. To sum up the findings of what was described as an extensive investigation, it was determined that the six individuals named in the information had worked for the accused at his restaurant without being properly authorized to do so.

Some of the documentation seized suggested that different rates of pay were set, depending upon whether the individual had an authorized work permit. The evidence indicates that the accused had direct contact and discussions with some of the six individuals, and that some of the workers complained about the nature of the work they

were assigned and expressed concern that they may have been forced to return to Korea if the work was not satisfactory. The Position of the Crown [ 7 ] Crown counsel submits that there are a number of aggravating factors which support the quantum of fine sought. While the Crown has accepted the guilty plea to a global count, he points out that the individual count involves a number of employees. He argues that the accused was involved directly with the complainants who appeared to have been working for a reduced wage prior to obtaining appropriate documentation.

Crown counsel submits that the principles of denunciation and deterrence require that the Court impose a sentence that sends out a message that this type of “predatory” exploitation of immigrants will not be tolerated. He argues that there is a high level of public abhorrence for the mistreatment of immigrant workers, particularly those from a less fortunate part of the world. He submits that the fine of $20,000 is at the “lower end” of the range taking into account the precedents provided.

The Position of the Defence [ 8 ] Defence counsel filed a number of documents which were initially part of the Crown’s disclosure package. Those documents included information which supports the defence’s position that the accused was not a “master mind” of a scheme to import and hire foreign workers, but rather was an individual who fell short of the “due diligence” requirements set out in the legislation.

In further support of that position, defence counsel points out that the accused retained the services of “Arche Consulting” a registered consulting company who assisted the accused with the application for the various employees who worked in his restaurant.

While defence counsel acknowledges that the accused had direct dealing with the employees and as such fell short of the due diligence requirements, he also points out that his client relied upon the services provided by Arche Consulting, the opinions of which were provided to and acted upon by the accused. [ 9 ] As such, defence counsel takes issue with the Crown’s suggestion that the accused “preyed upon” or “exploited” pointing out that these employees were not forced to reside with and work for the accused, that the accused did not detain them and did not take their passports.

The accused acknowledges that the individuals named in the information did not have proper documentation when they began working for him, but counsel points out that the period of “unauthorized” work varied significantly, with some working for a number of months, while another worked for an unauthorized employment period of only four days. Defence counsel points out that all of the individuals eventually either obtained appropriate work permits, became permanent residents of Canada, thus authorizing them to work, or returned to Korea.

He submits that one of the principle purposes of the legislation, that being the protection of jobs for Canadian citizens or residents, was not significantly offended by the accused’s actions. Counsel points out, and the materials confirm, that the accused had earlier attempted to hire Canadian workers but was unable to find anyone with the appropriate qualifications. Background of the Accused [ 10 ] The accused is 57 years old, is married with two grown children and six grandchildren. He immigrated to Canada from Korea in 2004. He has both a high school and post secondary education.

He purchased his first restaurant in 2005, eventually selling it in 2010, in part due to the legal difficulties associated with these charges. He has some health issues which were documented for the Court. [ 11 ] A number of letters of reference were provided on behalf of the accused. The letters of reference describe the accused as being a hard working individual who has been very active in his local church and in the local Korean community. As a business man, the accused was praised for his work ethic, working hard to make his businesses successful and to integrate his family into the community.

His offending behaviour was described by one supporter as a “bad judgment decision” made by one who does not fully speak the language. The accused has no record of any Criminal Code or other regulatory convictions. A Review of the Case Law [ 12 ] Crown counsel provided a number of authorities in support of his position that a significant fine is appropriate. It is noteworthy that in most of the authorities, the fines imposed came to the Court by way of the joint recommendation, and therefore the information provided about the individual accused is, in each case, somewhat truncated.

From a review of the authorities, the case with facts which are most similar to this case is R. v. Barry Campbell, Empire Drywall and Avenue Access Systems Inc. (Unreported, October 25, 2011, Alta. Prov. Ct, Action No.: 110602513P1), in which the Court accepted a joint recommendation for a fine of $9,000 on each of four counts under the IRPA, for a total of $36,000.

In that case, the accused retained the services of an Immigration Consultant to “guide them through the process” of hiring four foreign workers, but also admitted that he “put them to work immediately” thinking that the “paperwork would soon follow”, thus in contravention of the legislation. [ 13 ] Counsel for the accused initially provided information to the Court in the form of newspaper articles about some unreported cases as well as a “sentencing chart” outlining what he understood the outcome of various cases in this area. He also provided a newspaper

article on the decision of R. v. Davis , (Unreported Provincial Court of Manitoba, February, 2010) in which a prominent immigration lawyer who pleaded guilty to breaching the IRPA by employing a Filipino nanny without the proper paperwork was given a conditional discharge. In that case Crown counsel had called for a fine of $7,000, pointing out that as an immigration lawyer, the accused both knew the law and set a bad example for others.

While the Court agreed with the comments of the Crown, Guy, PJC took into account the accused’s remorse, his guilty plea, as well as the many letters of support filed on his behalf. [ 14 ] At the conclusion of his submissions, defence counsel asked the Court to consider the imposition of a conditional discharge on terms that would include a sizeable donation to a charity related to the area of immigration. Counsel were asked to provide authorities as to whether the Court had the jurisdiction to make such an order and the matter was adjourned for that purpose.

The Discharge Provisions and Charitable Donations [ 15 ] The issue of the appropriateness of including a “charitable donation” as a term of a sentence, and specifically as a term of a discharge, was addressed by the Manitoba Court of Appeal in R. v Rivais (Unreported Man C.A. January 5, 1981) . A crown appeal of a conditional discharge which included an order to pay $2,500 to the Manitoba Cancer Society was allowed and converted to a $2,500 fine. In the course of the somewhat brief reasons, Monnin J. A. Stated:

In our view, the penalty imposed was one that should not receive our sanction. Indeed, an order by the Court that an accused make adonation to some charitable organization is not an appropriate way of dealing with an offender. The less we hear of this practice, thebetter. [16] The issue came back to the Appellate Court in R. v. Wisniewski [2002] M.J. No 268 (Man. C.A.) where a Crown appeal wasallowed respecting a conditional discharge imposed for the offences of public mischief and fraud over $5,000. The conditional dischargehad included a term requiring the accused to pay $3,500 to a charity of his choice.

It was apparent from the reasons that the sentencingjudge felt a monetary penalty was most appropriate, but imposed a discharge over concerns about the impact that a fine would have onthe accused’s immigration status. As such, the Court concluded that the sentencing judge erred, stating that “when the choice is betweena discharge and a disposition involving a criminal record, the accused’s immigration status is one of the factors the sentencing judge mayconsider so long as “it is not the deciding factor” (at paragraph 17) citing with approval R. v. Chui (1984), (MB CA),31 Man. R. (2d) 15 (Man.

C.A. paragraph 5). [17] While it thus became unnecessary for the Court to rule definitively on the issue of charitable donations, Steel J.A. did offersome “observations”, noting that “Judicial creativity in sentencing ought to be encouraged as long as it complies with the sentencingmenu of options available in the Criminal Code.” In reviewing the authorities, Steel J.A. commented on the lack of consensus across thecountry on this issue. Certain jurisdictions, such as Quebec and Ontario appeared to have “little difficulty” with the concept: see R. v.Prokos (1998), (QC CA), 127 C.C.C. (3d)190 (Que. C.A.); R. v.

M.A.F.A. Inc, [2000] O.J. 1773; R. v. McKeigan,[2000] O.J. No. 1598. Other jurisdictions, such as British Columbia and the Northwest Territories Court of Appeal disapproved thepractice: see R. v. DeKleric, (BC CA), [1969] 2 C.C.C.367 (B.C.C.A.) and R. v. McMeekin, [1991] N.W.T.J.No.11(C.A.).

At the end of the day, while swayed by the comments of the Court in Rivais, supra, and that Court concluded that“Reconsideration should wait upon another case on another day.” [18] The “discharge” provisions that were in place at the time that the Manitoba Court of Appeal considered the Rivais matter wereset out in Criminal Code

section 662.1 and are virtually the same as the provisions now set out in Criminal Code section 730 (1):

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence forwhich a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the courtbefore which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest,instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probationorder made under subsection 731(2). [19] At the time of the Rivais decision, the law respecting the granting of discharges was similar as to what it is today.

In R . v.Fallowfield (1973), (BC CA), 13 CCC (2d) 450, the British Columbia Court of Appeal outlined the factors to beconsidered, noting among other things that the discharge provisions “should not be exercised as an alternative to probation or asuspended sentence” and “the public interest in the deterrence of others, while it must be given due weight, does not preclude thejudicious use of the discharge provisions.” [20] When an accused receives the benefit of a discharge, the Court may make a probation order pursuant to section 731(2), whichmay include any of the optional conditions outlined in

section 732.1(3). Amendments to subsection (3) reflect the changing attitudeswhich have developed over the years, with additional conditions allowing for curative alcohol and drug treatment and for the use of an“interlock ignition device”. These conditions are consistent with the goals of any probation order and with the general provisions set outin subsection (

h) which allows the Court to order an offender to “comply with other such reasonable conditions as the Court considersdesirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successfulreintegration into the community.” [21] It appears clear from a review of the authorities that the Court must first be satisfied that the accused is eligible for some formof a discharge, and that it would be inappropriate to make an order for a charitable donation simply to circumvent the criminal record thatwould necessarily flow from the imposition of a fine. [22] The Court must consider whether, given the nature of the offence and the circumstances of the offender, imposition of adischarge satisfies the sentencing principle identified in Criminal Code

section 718 through 718.2, as well as meets the test articulated insection 730(1). To that end I am mindful of the aggravating factors in this case, which include: (

a) The single count references a number of immigrants who were working without documentation; (

b) Immigrant workers from less fortunate areas of the world can be vulnerable and open to being taken advantage of byunscrupulous employers; (

c) There is evidence that the accused had direct dealings with some of the workers, who appear to have been remunerated at alevel which took into account their immigration status; (

d) The accused would have benefitted financially from not having to pay employee contribution, taxes and other extra costsrelated to a properly documented employee; (

e) Some of the workers expressed concerns about the working conditions. [23] The mitigating factors which I consider are as follows: (

a) The accused entered a guilty plea, sparing what could have been a lengthy trial; (

b) He employed the services of an immigration consultant, the advice from whom may have contributed to the confusionregarding his responsibilities under the legislation;

(

c) The employees ultimately either obtained the appropriate status allowing them to work in Canada or returned to Korea, thusreducing the potential impact on the Canadian employment market; (

d) There is no evidence of coercion on the part of the accused. The employees did not reside with the accused, he did not detainthem or their passports; (

e) The amount of time of undocumented employment varied, with some of the periods being very brief; (

f) He has provided a number of letters of support confirming his contributions to the community; (

g) The accused has no record. [24] It has always been the case that the discharge provisions require the Court to consider whether it is in the best interests of theaccused to be the subject of a discharge.

It is often the case where it is in the interest of the accused to receive a discharge, although Irecognize that offenders who have a history of convictions may benefit less from such a disposition, depending, of course on the natureof the offences in question. [25] I am mindful of the fact that this is not a situation where counsel has suggested that specific consequences will befall his clientin the event that he is ordered to pay a fine. I am also aware that the accused is not facing a Criminal Code conviction, but rather aregulatory offence.

That should not, however, disentitle the accused to consideration for a conditional discharge. [26] The more significant issue rests with the question of whether the imposition of a discharge is “not contrary to the publicinterest”. Crown counsel submits that the nature of the offence is such that general deterrence is the paramount sentencing principle. Tothat end, I am mindful of the fact that while the infractions this legislation seeks to prevent are significant, across the country the actualnumber of prosecutions is quite limited. Defence counsel provided the decision of R. v. Foianesi, [2011] M.J.

No. 115; (2011), 2011MBCA 33 , 262 Man.R. (2d) 312(Man.C.A.) in which a fine was overturned in favour of a conditional discharge for the offenceof keeping a common gaming house. The Court ruled that the sentencing judge erred in placing too much weight on the principle ofgeneral deterrence given the nature of the offence. Chartier, J.A. analyzed the circumstances where a discharge can be considered,accepting at the outset that “discharges should not be available when general deterrence is the paramount sentencing principle”, (seeparagraph 10).

He then went on to note: “Typically, general deterrence will be brought to the forefront of the sentencing principles in two situations. The first arises when thesentencing judge is dealing with a crime which is particularly heinous (murder, home invasion, crimes involving children or thevulnerable, etc). Such crimes must always be deterred.

The second situation arises when general deterrence can become a paramount consideration when sentencing an accused for a crimewhich, although not as serious as the ones stated above, is so prevalent in the community that it must be deterred in order to bring it undercontrol.” See paragraphs 12 and 13. [27] While the argument could be made that the workers in this case were “vulnerable” I am not satisfied that they were so to suchan extent to make general deterrence the overwhelming principle of sentencing.

I am supported in this conclusion by the maximumpenalties prescribed in the legislation, which are not nearly as significant as with some Criminal Code offences. [28] Nor can be it said that the offence is so prevalent in the community that general deterrence should be seen as displacing anypossibility of a discharge.

Without minimizing the seriousness of the offence, the very few decisions in this area, reported or otherwise,do not support the suggestion that this is an offence that “must be deterred in order to bring it under control.” [29] Having concluded that general deterrence is but one of many sentencing principles at play, there are two further aspects of thisoffence which bear comment in considering the applicability of the discharge provisions. First, this is an offence in which the accuseddid not exercise “due diligence” in his dealings with the individual workers.

The so called “mental element” of the offence is one whichcan be considered when assessing the manner in which the offence was committed. Secondly, while the accused has admitted histransgression, it is noteworthy that he employed the services of an immigration consultant, an individual whose advice on some issues, itappears, seems to have been less than satisfactory. [30] Defence counsel provided the Court with a variety of cases in which discharges have been granted.

Suffice it to say, it is adisposition which has been imposed for a wide variety of offences when the statutory terms have been satisfied. [31] Taking into account all of the foregoing, I am satisfied that the imposition of a discharge is in the interest of the accused andwould not be contrary to the public interest.

The next issue to be considered is the suggestion that the Court impose a condition requiringthe accused to make a donation to a registered charity related to immigration issues. [32] As noted at the outset of this discussion, such an order should not be made if it is seen as being imposed as an alternative to afine. I do not consider that to be the situation in this case. Having said that, there does appear to be a benefit in seeing an accused “giveback” to the community most affected by his actions. In general terms, this is often accomplished by way of an order of communityservice work order.

However, the Court has no control as to where such community service work might be completed. The advantage toa charitable donation is that it can be directed to a specific charity, ensuring that the broader range of sentencing principles are met: Criminal Code

section 718 (e) “to provide reparation for harm done to victims or to the community;” and (f) “to promote a sense ofresponsibility in offenders, and acknowledgement of the harm done to victim and to the community”. [33] This issue must be approached with caution, with due deference shown to the decision of the Manitoba Court of Appeal inRivais, supra. The fact that the decision is somewhat dated does not necessarily mean that it should not be followed. However,sentencing legislation and precedents have changed over the years, reflecting new areas which require emphasis and, in some casedenunciation.

Courts have been urged to sentence creatively and in a manner which best responds to the circumstances of the offenceand of the offender. The Court of Appeal in Wisniewski, supra, tacitly recognized those changes.

[ 34 ] The time has come to include in those changes the ability of the Court, in the appropriate cases, to order an offender to make a charitable donation as a probationary condition. It would seem appropriate that the Court be allowed to consider this as an option when the offence is one that calls for a sentence which promotes “a sense of responsibility in offenders, and acknowledgement of the harm done to victim and to the community”. Such a sentence would be one that could include community service work, a charitable donation, or both.

I would note that an order of this nature is one which could be considered only where the accused has the financial ability to comply, and that a specified timeframe for compliance should be included. Conclusion [ 35 ] Bearing in mind all of the foregoing, I am satisfied that the appropriate disposition in this matter is an 18 month conditional discharge. The accused will be placed on a period of supervised probation on the following terms: (

a) Keep the peace and be of good behaviour; (

b) Appear before the Court as and when directed to do so by the Court; (

c) Notify the Court or probation services in advance of any change of name or address, and promptly notify the Court or probation services of any change of employment or occupation; (

d) Report to probation services within 2 days of your appearance in Court; (

e) Complete 50 hours of community service work at the time and place as directed to do so by probation services, with such work to be completed within the first nine months of this order; (

f) Make a charitable contribution in the sum of $6,000 to the International Centre and $6,000 to Welcome Place within the first nine months of this order. Payment is to be made through the office of the Clerk of the Court, with no tax receipt to be provided or accepted; [ 36 ] The accused is to pay costs and surcharge in this matter in the sum of $52, payable within 14 days. [ 37 ] There will be an order of forfeiture of all items seized, with the exception of the business records which will be returned to the accused. “Original Signed By” Mary Kate Harvie P.J.