) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1732

CITATION: R. v. Serré, 2013 ONSC 1732 COURT FILE NO.: 05-30104 DATE: 2013/03/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – DIANE SERRÉ ) ) ) ) ) ) ) ) ) Michael Boyce and Carl Lem, for the CrownNatasha J. Calvinho and Michael Spratt, for theAccused ) ) ) HEARD: November 20, 2012 REASONS FOR JUDGMENT REGARDING SENTENCING Aitken J. Kienapple Principle [1] The Kienapple principle precludes multiple convictions for different offences where there is both a factual and a legal nexusconnecting the offences. A factual nexus exists where the charges arise out of the same transaction.

A legal nexus exists if the offencesconstitute a single wrong: see R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Prince, (SCC), [1986]2 S.C.R. 480. In this case, both Crown and Defence counsel agree that, based on the Kienapple principle, a conditional stay should beentered for the following offences: counts 2, 5, 8, 11, 20, 24, 26, and 28. I concur. Ms.

Serré, you will be sentenced on the remainingcounts in the indictment, aside from count 22 – the count in regard to which you were found not guilty. [2] Both Crown counsel and Defence counsel approached sentencing for the offences under s. 121 and s. 122 of the CriminalCode, R.S.C. 1985, c. C-46 (“Code”), from a global perspective, and that is how I intend to deal with these offences. In this regard, youwill receive a global sentence for ten offences of breach of trust and nine offences of fraud on the government. Fundamental Canadian Values [3] Ms.

Serré, as Crown counsel stated quite eloquently during submissions, this case is about fundamental Canadian values –values such as integrity, objectivity, and impartiality in the operation of our public institutions. Equality is a central value underlying theCanadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982,c. 11 (“Charter”). It is a value that must underlie how laws and regulations are applied to all Canadians, and to those newcomers seekingpermission to stay in Canada. The illegal conduct you engaged in as a member of our public service breached the duty you owed to allCanadians and to all newcomers to uphold these values that we hold so dear. [4] Ms. Serré, there is nothing more precious to our democracy, more essential to civil society, or more relevant to the concept ofequality entrenched in our Charter than the rule of law.

The meaning of the rule of law was explained by the Secretary-General of theUnited Nations in 2004 as being: “a principle of governance in which all persons, institutions and entities, public and private, includingthe State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated...” (Report of theSecretary-General, The rule of law and transitional justice in conflict and post-conflict societies (2004)).

He went on to explain that therule of law requires, among other things, “measures to ensure the adherence to the principles of supremacy of law, equality before thelaw, accountability to the law, fairness in the application of the law..., legal certainty, avoidance of arbitrariness and procedural and legaltransparency”. [5] In 2003 and 2004, as a representative of the state, in your capacity as supervisor or manager with Citizenship andImmigration Canada, you acted in a way that undermined the rule of law in this country.

As I summarized in my judgment, whereby Ifound you guilty of 27 offences relating to fraud on the government and breach of trust by a public officer, you and Issam Dakik formed

a joint enterprise to make money by giving special treatment to certain immigrants to Canada – namely those who paid money to Mr.Dakik either to get a result they would not otherwise be entitled to, or, to jump the cue and have their files processed ahead of otherprospective immigrants. Although the Crown was not able to prove exactly what funds or other benefits or advantages you received inregard to each file where you provided assistance or exerted influence at Mr.

Dakik’s request, I was satisfied beyond a reasonable doubtthat you did receive some funds and benefits in regard to each such file (with the exception of the Badaan file). I was also satisfiedbeyond a reasonable doubt that what motivated you to act fraudulently and in breach of trust was nothing other than personal gain. Youliked nice things. You were in the process of renovating your house. You even advised some of the staff who reported to you thatspecial advantages could be gained through their work on immigration files. [6] The evidence at trial was murky as to how you and Mr. Dakik began this joint venture.

I cannot say that you were theinstigator or the driving force behind this scheme. However, the wiretaps in particular made it patently clear that you were a willingparticipant. You saw no problem in taking advantage of your position as an immigration supervisor or manager to access personal andconfidential government files in an unauthorized fashion, to share the information and documentation you gleaned from those files withunauthorized individuals, and to favour some immigrants over others simply because they were prepared to pay Mr. Dakik (and,therefore, you) some money under the table.

Principles of Sentencing [7] There are certain general principles that apply to all sentences. [8] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 of theCode). As the Supreme Court of Canada stated in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. Thisis closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. ...Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. [9] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender (s. 718.2(

a) of the Code). [10] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances (s. 718.2(

b) of the Code). [11] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)of the Code). [12] Finally, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for alloffenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(

e) of the Code). Aboriginal Offenders [13] Specific reference to Aboriginal offenders was added to s. 718.2(

e) of the Code in 1996 because of the dramatic over-representation of Aboriginal offenders in Canadian prison populations. In the last 15 years, this statistic has only worsened. In itsOctober 22, 2012, report entitled, “Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act”, the Office of theCorrectional Investigator summarized the situation as follows: 17. The severe and chronic state of Aboriginal over-representation in federal penitentiaries has been a concern of [the CorrectionalService of Canada], and the Federal Government since the 1970s.

Aboriginal offenders now account for 21.5% of CSC’s incarceratedpopulation and 13.6% of offenders supervised in the community. The total Aboriginal offender population (community and institutional)represents 18.5% of all federal offenders. The situation of Aboriginal female offenders is even more concerning. In 2010-11, Aboriginalwomen accounted for over 31.9% of all federally incarcerated women, representing an increase of 85.7% over the last decade. 18.

While Aboriginal people are over-represented in federal corrections nationally, the numbers reach even more critical levels in thePrairie Region, where Aboriginal people comprise more than 55% of the total inmate population at the Saskatchewan Penitentiary andmore than 60% at Stony Mountain Penitentiary. The situation is even worse in some provincial institutions. For example, in 2005Aboriginal people in Saskatchewan represented 14.9% of the total population but accounted for 81% of those admitted to provincialcustody and 76% of youth admitted to custody.

Estimates at that time indicated that the national adult Aboriginal incarceration rate, bothfederally and provincially, was 910 per 100,000 as compared to 109 per 100,000 for non-Aboriginal Canadians. [14] In sentencing an Aboriginal offender, a sentencing judge must consider the unique systemic or background factors which mayhave played a

part in bringing the particular Aboriginal offender before the courts, and the types of sentencing procedures and sanctionswhich may be appropriate in the circumstances for that offender because of his or her particular Aboriginal heritage or connection (R. v.Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 66). As LeBel J. explained in Ipeelee, at para. 60:

[C]ourts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and...higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [Emphasis in original.] [ 15 ] An Aboriginal offender does not have to establish a causal link between the systemic and background factors and his or her commission of the offence.

Section 718.2 (

e) of the Code requires the sentencing judge to “give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts” ( Gladue , at para. 69 ). However, as clarified in Ipeelee , at para. 83 : “This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” [ 16 ] The purpose of sentencing an Aboriginal offender is the same purpose that applies to all sentencing: “to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality.

Just sanctions are those that do not operate in a discriminatory manner” ( Ipeelee , at para. 68 ).

Section 718.2 (

e) of the Code does not require “an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal” ( Gladue , at para. 88 ). The sentencing judge must consider all relevant circumstances and factors in regard to the offender, including what type of sentence would be meaningful to the offender, recognizing that not all offenders and not all communities share the same values or perceptions regarding what would be meaningful and appropriate sentences. The Gladue Report [ 17 ] Ms.

Serré, you were born in Sudbury and are the child of an Aboriginal father and a Caucasian mother. You identify yourself as an Aboriginal of Algonquin descent. At the time of your birth, your father, who was only 20 at the time, was working and pursuing his education; therefore, he was not available to actively parent. Subsequently, your father worked for 30 years in property assessment for the Province of Ontario. Most unfortunately, your mother died of a brain aneurism when you were only a year old.

Following your mother’s death, you and your sister lived with one of your father’s married sisters, who had three children of her own. The family did not practice Aboriginal culture. When you were three or four years old, you and your sister moved back to Sudbury to live with your father and his second wife. That marriage did not last, possibly due to alcohol issues. For a few months, you and your sister moved in with another of your father’s sisters, who also did not practice Aboriginal culture. Then you returned to your father’s care. [ 18 ] You reported having good memories of your childhood.

Although your father had alcohol dependency issues, and continues to struggle with those to this day, in your view, this did not impact on his ability to be a good father. He was never abusive with you. You always had enough to eat and were always properly clothed. You have particularly fond memories of being out in nature with your father, your sister, and your paternal grandparents (who lived on a neighbouring reserve). You appreciated how your father and grandparents taught you how to live off the land.

Hunting and fishing with your father was a favourite pastime. [ 19 ] You reported not having participated in many Aboriginal ceremonies as a child but becoming more interested in Algonquin traditions when you were a teenager. Your sister introduced you to Aboriginal circles, feasts, Pow Wows, and the playing of drums. [ 20 ] When you were a teenager, your father remarried. You did not get along with his new wife and her children. As a result, you left home at the age of 16 and lived with a friend or with nuns, until you were able to get Social Assistance and get your own residence.

You completed elementary and high school in Sudbury. [ 21 ] When you were in your twenties, you moved to Ottawa. In 1993, you completed a program at the Ottawa School of Commerce in Business Administration and Management. While taking that program, you worked as an administrative assistant for Immigration Support Services. Following your graduation, you obtained a position as an administrative advisor and case manager at Citizenship and Immigration Canada. In 2000, you became a case review officer. In 2002, you were promoted within the department to operations supervisor and, from time to time, manager.

In 2004, you were considering leaving your position because it had been causing you a lot of stress. [ 22 ] After your arrest in December 2004, you had difficulty obtaining employment. With the help of the John Howard Society, you were finally able to get two part-time jobs as a cashier and a server. [ 23 ] For the past 16 years, you have been in a serious relationship with Roger Harper, who has a daughter in her twenties from a previous relationship. Mr.

Harper has been very supportive of you during the course of these criminal proceedings, and your relationship is something that both of you value dearly. [ 24 ] You reported that, in the last couple of years, you have become more actively involved in Aboriginal culture, engaging in smudging ceremonies around the home, attending Pow Wows when visiting your family in the north, and receiving emotional and spiritual support from Aboriginal friends. Your Aboriginal spirituality has provided you with strength during these difficult times. [ 25 ] Ms.

Serré, you reported that you have not had any issues with alcohol or drug consumption. You did not attend residential schools, and you have no knowledge of your father or any of your other Aboriginal relatives attending residential schools. [ 26 ] Ms. Serré, you have marshalled considerable support in the form of letters from friends, family, and professionals in the community. Everyone describes you as being big-hearted, kind, and generous. Many describe you as being honest, trustworthy, and loyal.

All are concerned about the amount of stress you have endured over the last eight years since these charges were laid, you lost

your job, and you became subject to bail conditions. Your family doctor describes how the stress of these charges has resulted in yournow suffering from depression and anxiety. That being said, others have described your energy, perseverance, and strength in theensuing years. The probation officer who prepared the pre-sentence report, and many who wrote letters of support, describe yourremorse for having committed the offences in question. In the opinion of the probation officer, you pose a very low risk to re-offend andare a good candidate for community supervision.

Everyone who wrote letters on your behalf urged me to consider a suspended sentence,probation, or a conditional sentence. Objectives of Sentencing [27] The starting point in sentencing you today is a consideration of the objectives of sentencing. The overarching goal of anysentence is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” (s. 718 of the Code).

Withinthis context, more specific objectives of sentencing include general and specific deterrence, denunciation, protection of society,rehabilitation of the offender, reparation for harm done to victims or to the community, and promotion of a sense of responsibility on thepart of the offender. [28] It is well established that, in cases of this nature involving breach of trust by a public official, the most important objectivesare general deterrence and denunciation. (See R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128, at 1138; R. c. Wong, [2005]Q.J. No. 22795 (C.Q.); R. v.

Zhang 2006 QCCA 1534.) It has been held in numerous cases that breach of trust by a public officialgenerally calls for a custodial sentence, even where there are significant mitigating factors. (See R. v. MacInnis (1991), (NL SC), 95 Nfld. & P.E.I.R. 332 (S.C.); R. c. Wong, [2005] Q.J. No. 22795 (C.Q.); R. v. Zhang 2006 QCCA 1534; R. v.Macaluso, 2006 QCCS 2301; R. v. Blanas (2006), (ON CA), 207 O.A.C. 226 (C.A.); R. c. Liu, 2006 QCCS 1211; andR. v. Gonsalves-Barriero, 2012 O.J. No. 4369 (Ct. J.).) [29] All too frequently, white collar crime can appear to be harmless and victimless.

However, it is anything but that. AllCanadians, and our society as a whole, are victims when public officials breach the trust placed in them. [30] In this case, Canada as a whole was a victim. Canada’s reputation internationally is tarnished when it is known that there wasa corrupt official working in its Citizenship and Immigration department. In recent years, we have been subjected to internationalcriticism for not showing adequate care in regard to those who gain possession of our passports.

Our practices regarding citizenship andimmigration are under increased international scrutiny, and your fraudulent behaviour is a black mark in that regard. [31] Canada, as a whole, has also been harmed by your behaviour in that it conveys a message to prospective and currentimmigrants that our immigration system is corruptible and that there are officials working in the system who can be bought. This mayincrease security risks within Canada by encouraging those quite prepared to use bribery and other dishonest means in order to gain entryto this country.

In this era of international terrorism, all of us are at an increased risk if those responsible for evaluating theappropriateness of letting individuals into Canada put their own personal gain ahead of the legislated factors, goals, and priorities thatshould inform immigration decisions. [32] The health of Canadian society is hurt when immigrants who may have left other parts of the world where respect for the ruleof law is lacking come to believe that Canada is no different. Through actions, such as those of yourself and Mr.

Dakik, such individualsmay come to believe that officials here can be bought and, worse still, have to be bought, just the way they may have had to have been intheir home countries, in order to get applications tended to and rights respected. A number of the immigrants who testified in this casespoke of how they thought, and hoped, that they had left such corrupt practices behind them. A couple stated that they felt that they hadno choice but to pay Mr. Dakik, considering the power he seemed to wield at the Ottawa Citizenship and Immigration office.

How canwe expect newcomers to this country to be law-abiding and respectful of our laws and regulations if their first experience in this countryinvolves influence peddling? [33] Canada’s public service, which has for generations been considered one of the most professional and most effective in theworld, has had its reputation tarnished by your actions. It is important that Canadians, and others who may observe what goes on inCanada, realize that your corrupt behaviour is the exception – not the rule – and corruption within the ranks of our public service will notbe tolerated.

This is a particularly important message to give in Ottawa – the political centre of the country and the home of thousands ofpublic servants. The courts must be clear in stating that we expect our public servants to conduct themselves honestly, ethically, andprofessionally. Any deviation from those expectations will be dealt with in a firm fashion. [34] Finally, some of the immigrants who sought Mr.

Dakik’s help were victims in that they paid money to get somethingaccomplished which they had every right to expect Citizenship and Immigration Canada would accomplish, without any money havingto be paid under the table. [35] In focusing on the objectives of general deterrence and denunciation, I will not ignore the important objective ofrehabilitation. But as Corte J.C.Q. stated, at para. 35, in R. c. Wong, another immigration fraud case: [T]he Court cannot impose a sentence that gives precedence to the principle of rehabilitation over those of denunciation and deterrence.

A clear message has to be sent not only to the accused but to all those who might take lightly such a criminal involvement. Particularlyin these times where immigrants to our country are carefully chosen, it is inadmissible that someone could, for reasons of greed,participate in an organization that attacks the system’s safeguards. Range of Sentence [36] Anyone found guilty of a fraud on the government under s. 121 of the Code or any official who commits fraud or a breach oftrust in connection with his or her official duties under s. 122 of the Code, is liable to imprisonment for a term not exceeding five years.

[ 37 ] Crown counsel seeks an overall sentence of six years incarceration for all of the breach of trust and fraud offences. [ 38 ] Ms. Serré, your counsel asks that you be given a conditional sentence of 18 to 24 months to be followed by three years probation, with the custodial time served in the community. Specific Cases [ 39 ] In my reasons for judgment, I set out in detail what transpired on the ten files on which the 19 convictions are based. I will not go through those details again.

Instead, I will simply highlight factors from each file that are particularly relevant in formulating an appropriate sentence. Dalank [ 40 ] On the Dalank file, you took money from Mr. Dalank to accomplish something that he could have achieved through normal and proper channels, assuming the information Mr. Dalank had provided to Mr. Yelle was truthful. You were deceptive in your dealings with Mr. Yelle, a co-worker. You knowingly placed a memorandum on the immigration file with incorrect information to create the impression that you were justified in authorizing a temporary resident permit for Mr. Dalank.

You did all of this in the face of a tip sheet on the file to the effect that Mr. Dalank had been working illegally in Canada for a period of five months, and he had entered a marriage of convenience and was not living with his wife. You showed no concern about these details not being investigated. Chahine [ 41 ] On the Chahine file, you overlooked the requirement to investigate whether the marriage of Ms. Chahine and Mr. Zbib had occurred in Lebanon or in Canada and whether it was a bona fide marriage.

You also put pressure on Chantal Pilon to give priority to this file and to make repeated inquiries of CSIS regarding Ms. Chahine’s security clearance. Nader [ 42 ] The Nader file had many hallmarks of a file that required further investigation before Mr. Nader was granted permanent resident status in Canada. He used three different family names: Nader, Macizi, and Akkari. He already had passports from Lebanon and Venezuela in different names. His place of birth was shown differently on two documents. When he had lived in Halifax years earlier, he had been charged with two criminal offences.

In 2002, shortly after his arrival in Ottawa on a visitor’s visa, he married a woman 20 years his senior and she then sponsored him in his application for permanent residency. Despite these red flags, you provided Mr. Dakik with advice that he could give to Mr. Nader so that all of these potential difficulties could be overcome, and you did so without any regard for the truth. For all you knew, Mr. Nader could have been a significant security risk to Canada; however, this did not factor into your decisions.

El Zein [ 43 ] On the El Zein file, you once again lied to a colleague, telling Rémi Larivière that the El Zein file was urgent because agents from the Enforcement Division had told you that steps were being taken to deport the El Zeins. You also exerted pressure on Mr. Larivière to grant approval by telling him that is what you would do if you were considering the file.

Zidan [ 44 ] On the Zidan file, you abused your position as Samia Caron’s supervisor by telling her, unjustifiably, that she had made an error in her earlier handling of the Zidan file, and by pressuring her to revisit the file and grant the requested permits. In fact you went further and had Ms. Caron grant work permits for the two sons, instead of study permits, without having anyone check whether the sons were entitled to such permits. You arranged for the Zidans to receive a reimbursement of fees to which they were not entitled.

El Khouri [ 45 ] The El Khouri file is one of the most egregious examples of your willingness to aid and abet an immigrant to deceive Immigration officials in order to gain permanent residency status in Canada. On this file, you (through Mr. Dakik) provided suggestions to Mr. Khoury as to how his brother and his family might be able to collect their permanent resident cards – even though they were not then entitled to those cards due to their residency in Lebanon. Part of that advice involved having John Khoury lie to Immigration officials.

Zbib and Almoredey [ 46 ] The Zbib and Almoredey files raised the least serious issues. Zeinab Zbib had already received stage one approval for permanent residency and stage two approval had been delayed while officials waited for Ms. Zbib’s security clearance, criminal records check, and an updated medical report. Ms. Almoredey was waiting to get her permanent resident card, and the hold-up seemed to be that her doctor had not submitted a medical report. Ms. Serré, you had your subordinates give these files priority for the sole reason that this would enable Mr.

Dakik to get money from these clients for his and your benefit. Hamze and Badaan [ 47 ] On the Hamze and Badaan files, as you did on virtually all of the other files, Ms. Serré, you provided Mr. Dakik with copies

of the documents from the FOSS system, so that he, in turn, could share the information contained therein with the clients. In the Hamze case, as in all of the other cases (aside from the Badaan case), you received money in return for providing this information and documentation. Aggravating Factors [ 48 ] There are several aggravating factors. 1. You were in a position of trust as a public servant and bound by codes of ethical conduct to act honestly and impartially in carrying out the duties assigned to you. You abused your position of trust and authority.

You did that not only by giving preferential treatment to some applicants. You went further and took measures to avoid regulatory or well-established practice requirements which exist to ensure that Canada’s best interests are being protected when immigration decisions are taken. You engaged in written and oral deception. You propped up Mr. Dakik’s position in the community by telephoning clients directly, providing Mr. Dakik with confidential documents and information, and ensuring that events unfolded as he predicted.

In doing this, you gave legitimacy to his claims of having influence within the Ottawa Citizenship and Immigration office. 2. In regard to many of the cases, you used your position of authority and power to take advantage of vulnerable and desperate people. Although some of the individuals who contacted Mr. Dakik wanted to by-pass the system’s requirements, many simply wanted their file to get the attention it needed so that their applications would be processed. The evidence was that some of the immigrants who turned to Mr. Dakik for help were not wealthy people.

By taking money from them, you were making life in Canada even more difficult for them. 3. You were in a supervisory position with the office. Others looked to you for direction and leadership. Not only did you suggest to some that there were opportunities to get some personal gain while carrying out their official functions, but also, on occasion, you implicated your subordinates in carrying out your criminal enterprise with Mr. Dakik. 4. Despite finding out in July 2004 that irregularities at the Ottawa Citizenship and Immigration office were under investigation, you did not give up your criminal activity.

In fact, if anything, it accelerated. All you did was to take further steps to avoid detection. 5. There was a high degree of planning and forethought that went into your scheme with Mr. Dakik. You had a clear method of operation with Mr. Dakik. You responded to his telephone calls and messages very quickly. You went to his house or met him elsewhere, basically on demand. The two of you used code language and counter-surveillance techniques to avoid detection. Each of you needed the other to make the scheme work. You both realized that.

You both worked together in a friendly, collegial fashion to the benefit of both of you. 6. You carried on your criminal activities over a period of at least a year and a half. There can be no suggestion that these activities occurred as a result of any lapse in judgment. 7. You were motivated by personal gain when you engaged in this criminal conduct. 8. After having listened to days of wiretap intercepts and after having read all of the transcripts in their regard, I note that you presented as someone who was confident, hardened, and scheming while engaging in these criminal activities.

There was no ambivalence. Mitigating Factors [ 49 ] There are several mitigating factors. 1. As an Aboriginal, you are entitled to special consideration. More will be said of this in a moment. 2. You are a first time offender. 3. The fact of your being charged and ultimately convicted of these offences has had a profound impact on your life. You lost your job and have had difficulty finding other employment with the same salary and benefits. 4. You have been living under the constraints of a bail order since December 2004 – that is a very long time to have been subject to court-ordered conditions.

That being said, the terms of your interim release were minimally intrusive. Although you were initially required to remain within the National Capital Region, by May 2005, you had permission to travel throughout Ontario. This enabled you to visit your family in the Sudbury area, and to go to Algonquin Park, where you have fishing and hunting rights. In June 2007, you were given permission to travel within Ontario or Quebec, giving you the flexibility to go to the Gatineau whenever you liked. The initial requirement to report weekly was changed to bi-weekly in May 2005, and then to monthly in June 2007.

After your conviction, your bail conditions reverted to staying within Ottawa or Gatineau and reporting every Monday. As well, it must be noted that by the summer of 2005, the Crown had met all of its disclosure requirements. From that time forward, the Crown was seeking to set dates for a preliminary hearing. The delay that ensued between 2005 and 2008 all related to your difficulty retaining counsel or getting Legal Aid.

After the preliminary hearing, there were early pre-trial dates with a trial date set for March 2010 on the understanding that a Rowbotham application would be made in sufficient time so as not to jeopardize trial dates. That did not happen. A trial date early in 2011 was provided, but it, as well, had to be postponed. None of the delay over this period was attributable to either institutional factors or Crown delay. 5. Your case has received extensive media coverage in Ottawa. Your name is now associated with immigration fraud. This will have brought you personal disgrace.

The notoriety of your case will continue to have an impact on your life and career prospects.

6. You have the support of your spouse, your family, and your friends. All describe how you have carried on living a productive life, despite having these charges hanging over your head. 7. Although you have expressed remorse for the harm you have done to your family and the serious impact these offences have had on your life, there have been no expressions of remorse in terms of the harm suffered by Citizenship and Immigration Canada and Canadian society as a whole, as a result of your actions. Therefore, remorse plays a minimal mitigating role in this case. 8.

There is no evidence that Canada’s security has actually been jeopardized through your actions. Jurisprudence [ 50 ] Of the cases to which I have been referred, there are two of particular relevance. The first is R v. Bourbonnais , 2006 QCCS 5758 (C.S.). Mr. Bourbonnais pled guilty to 30 counts of accepting money for favourable rulings he made as a member of the Immigration Appeal Division of the Immigration and Refugee Board. Mr. Bourbonnais had advance notice of the cases he would be hearing. He contacted individuals with connections to the various ethnic groups from which the immigration applicants came.

Those individuals would approach the applicants and say that they could produce favourable results at the hearings in exchange for money. The cases generally involved applications to sponsor a family member that had been denied or to set aside removal orders issued by reason of an applicant’s criminal activity in Canada. At least $34,000 was paid by those applicants who were approached. In two cases, individuals were granted permission to stay in Canada despite there being a removal order issued following their conviction for serious offences. The crimes that Mr.

Bourbonnais pled guilty to all carried a maximum sentence of 10 years imprisonment. Crown and defence counsel made a joint submission recommending six years imprisonment on each count, to be served concurrently. This was accepted by the court. [ 51 ] The similarities between the Bourbonnais case and this case are as follows: 1 . Mr. Bourbonnais, like you, was a public official. 2 . He, like you, breached the trust that had been placed in him. 3 . Each of you was motivated by personal gain. 4 .

The amount of money involved was $34,000 in the Bourbonnais case and something in excess of $26,000 in this case – though you received only a portion of this. 5 . The actions of each of you could bring the reputation of Canada’s immigration system into disrepute, nationally and internationally. [ 52 ] There are some differences in the cases. 1 . Mr. Bourbonnais was a quasi-judicial official, whereas you, Ms. Serré, were a public servant, albeit, one in a supervisory role. 2 . Mr. Bourbonnais initiated the scheme and solicited the help of others in the community.

It has not been proven beyond a reasonable doubt in this case that you were the initiator of the scheme. You can only be described as a willing participant. 3 . Mr. Bourbonnais pled guilty at an early stage in the proceedings and therefore had the benefit of this mitigating factor. 4 . Mr. Bourbonnais was 64 years of age and in poor health. Ms. Serré, you are 42 years of age. I have not been made aware of any significant health issues. 5 . Ms. Serré, you are an Aboriginal offender. 6 . The maximum sentence to which Mr.

Bourbonnais was liable in regard to each offence was ten years imprisonment whereas the maximum sentence to which you are liable for each offence is five years imprisonment. [ 53 ] The second case with some similarities is that of R. v. Gonsalves-Barriero , 2012 O.J. No. 4369 (Ct. J.) . On two occasions in March 2005 and on one occasion in July 2005, Mr.

Gonsalves-Barriero, who was an immigration officer responsible for processing applications for permanent resident status on the basis of humanitarian and compassionate grounds, contacted immigration applicants and sought bribes for the favourable handling of their applications. In two cases, he had the applicant suggest an amount. One suggested $5,000, which Mr. Gonsalves-Barriero reduced to $2,000. That applicant did not pay this sum, but instead had no further communications with Mr. Gonsalves-Barriero and brought the matter to Citizenship and Immigration Canada’s attention.

The other applicant suggested and paid $1,500. In the third case, Mr. Gonsalves-Barriero requested, and received, $5,000. Mr. Gonsalves-Barriero pled guilty to three counts of breach of trust by a public officer contrary to s. 122 of the Code . He was given a global sentence of 44 months. There are a number of similarities between the Gonsalves-Barriero case and this case. 1 . Mr. Gonsalves-Barriero, like you, Ms. Serré, was a public official working in the capacity of an immigration officer. You had added managerial or supervisory functions. 2 . Each of you breached the trust that had been placed in you. 3 .

Each of you was motivated by personal gain. 4 . The amount of money each of you received from the criminal activity was not great: $5,500 in Mr. Gonsalves-Barriero’s case and something less than $26,000 in your case. 5 . The actions of each of you could bring the reputation of Canada’s immigration system into disrepute, nationally and internationally. 6 . Each of you was a first-time offender. 7 . Each of you had come from modest, but stable, environments, and had worked hard to achieve your status within Citizenship and Immigration Canada. 8 .

Each of you had the support of friends and family, as indicated by letters filed at the sentencing hearing. 9 . Neither of you suffered from substance abuse issues. 10 . The offences were planned and premeditated. Those of Mr. Gonsalves-Barriero occurred over a five-month period. Your offences occurred over a year and a half. 11 . Both of you have suffered from the media attention afforded your cases.

[ 54 ] There are a number of distinguishing features between the two cases. 1. Mr. Gonsalves-Barriero clearly initiated the criminal activity. That has not been proven beyond a reasonable doubt in your case, Ms. Serré. As well, whereas Mr. Gonsalves-Barriero contacted the immigration applicants seeking money, in your case, the applicants went to Mr. Dakik for assistance and he, in turn, brought you into the mix. 2. Mr. Gonsalves-Barriero pled guilty to the charges against him not long after the charges were brought. Ms. Serré, you cannot benefit from this mitigating factor.

You, on the other hand, have been living under the cloud of these charges and of bail conditions for several years. 3. Mr. Gonsalves-Barriero made full restitution of the $5,500 he had received. 4. Both Crown and Defense counsel agreed that a penitentiary term was called for in the case of Mr. Gonsalves-Barriero. That is not the case here. 5. Ms. Serré, you are an Aboriginal offender. Considerations Regarding Aboriginal Status [ 55 ] Ms.

Serré, I do take judicial notice of the history of colonization, displacement, discrimination, deprivation, and hopelessness that has defined life for Aboriginal peoples in this country for hundreds of years and that has translated into innumerable social problems for our Aboriginal communities. What I need to consider is the extent to which this historical context has played a role in bringing you before the courts in this case.

Although no evidence to this effect was tendered either during the trial or at the sentencing hearing, I am prepared to infer that your father’s Aboriginal heritage may have been a factor in his alcohol dependency. That being said, the evidence you provided through the probation officer was that you were well cared for as a child. There was no evidence to the effect that the Aboriginal status of your father and his sisters resulted in fewer resources being available for your support and care than otherwise would have been the case.

There is no evidence that you or any member of your family suffered the social, emotional, physical, and cultural degradation and abuse that was all too prevalent at residential schools. If I understood the evidence correctly, your father worked for the provincial government for 30 years and has now retired on a pension. You completed elementary and high school, you went on to college, you have been able to support yourself consistently throughout your adulthood, and you attained a middle management position within the ranks of the federal public service by the time you were 34.

When the offences in question were occurring, you were in a long-term relationship, you had the support of your family, you were living in a comfortable home, you owned a car, and you enjoyed a decent, middle-income lifestyle. You do not have any alcohol or drug-related issues. [ 56 ] It cannot be said that, due to your Aboriginal heritage and the systemic factors that have hurt Aboriginal people in this country, your education was hampered, your income was negatively impacted, you had periods of unemployment or underemployment, you were susceptible to substance abuse issues, or your mental health suffered.

In other words, there is no evidence to suggest that your life experience as an Aboriginal in some way reduces your moral culpability for these offences. [ 57 ] In terms of what type of sentencing sanctions would be particularly meaningful to you as an Aboriginal offender, no evidence was tendered in this regard. It was emphasized in the Gladue Report that, during your adult years, you gained a greater interest in your Aboriginal heritage and have benefitted from attending Aboriginal ceremonies, conducting smudging ceremonies, and embracing Aboriginal spirituality. You have always enjoyed being out in nature.

No alternatives to a custodial sentence were offered. Your counsel’s main submission was that your sentence should be less than is seen in other cases of this nature, and should be in the reformatory, not penitentiary, range. Your counsel suggested a conditional sentence would be the most appropriate. A sentence that removes you from your home, your family, and your friends and that prevents your enjoying the freedom to be out in nature and attending cultural events important to you as an Aboriginal would be difficult on you.

However, based on all of the evidence, I cannot conclude that such a sentence would lack meaning for you, or be inappropriate for you due to your Aboriginal status. Mr. Dakik’s Sentence [ 58 ] On June 30, 2006, Issam Dakik pled guilty to three counts of fraud on the government under s. 121(1) (a)(

i) of the Code , four counts of fraud on the government under s. 121(1)(

d) of the Code , one count of being a party to a breach of trust by a government official, and one count of bribery. At the same time, he pled guilty to numerous charges relating to credit card fraud, income tax evasion, and obstruction of justice. Once Mr. Dakik pled guilty to these charges, all charges against his wife were withdrawn by the Crown. Mr. Dakik signed an Agreed Statement of Facts summarizing the immigration fraud scheme in general terms and specifically detailing what had occurred in regard to nine immigration files – all of which form the subject matter of the charges against you, Ms. Serré. Mr.

Dakik was sentenced to a period of incarceration of two years and nine months, and he agreed to free up funds that he had in Lebanon so that some restitution could be made. [ 59 ] Ms. Serré, your counsel has argued that, in order to be proportional to the sentence Mr. Dakik received, your sentence should be less than his, and the upper range of a reformatory sentence would be appropriate. While it is true that both you and Mr.

Dakik participated in the same fraud against the government, in my view, your participation in the fraud carried greater moral culpability because you were a public servant at the time, you were in a position of trust, and you took advantage of your position for your personal gain. Mr. Dakik would not have been able to attract customers and demand money in return for getting favours regarding his clients’ immigration files without your abusing your position to advance their cases.

So, although it has not been proven that you were the instigator of this scheme, you were the key to its success. [ 60 ] As well, you cannot benefit from the mitigating factor of a guilty plea. This was a very significant mitigating factor that resulted in Mr. Dakik receiving a much reduced sentence.

[ 61 ] Finally, Mr. Dakik did make partial reparation for some of the offences of which he was convicted. Weighing of Considerations [ 62 ] Ms. Serré, I consider the risk of your re-offending to be minimal. I believe that you want to move past this unfortunate period in your life, not only for your own sake, but also for the sake of your family and friends whom you respect and do not want to disappoint. You have lived under the shadow of these offences for a very long time. They have resulted in the loss of your job and your reputation.

If your rehabilitation was the sole consideration, or even the most compelling consideration, a conditional sentence might be appropriate. However, as the jurisprudence in this area has emphasized, with offences of fraud on the government and breach of trust, denunciation and general deterrence take priority as sentencing objectives. A sentence in the reformatory range would not adequately address these sentencing objectives.

This is especially so in a community of public servants, and it is especially so when the breach of trust involves undermining the safeguards built into our immigration system. [ 63 ] On the other hand, the six-year sentence sought by the Crown is of such a length that your chances of a successful reintegration into society might be significantly reduced, and that would not be in anyone’s interests.

As well, in finalizing the length of sentence, I am mindful that your start in life may not have been as stable or secure as one would have hoped due to the loss of your mother and your father’s alcohol dependency, something possibly related to his Aboriginal heritage. That being said, you have not personally suffered from many of the systemic problems that have plagued Aboriginal peoples in Canadian society. Finally, I am mindful that Mr. Dakik received a relatively short sentence for the variety of criminal offences of which he was convicted.

Disposition [ 64 ] Taking all of these factors into account, I sentence you, Ms. Serré, to a period of incarceration of four years for each of the frauds against the government and the breach of trust offences, to be served concurrently. My recommendation to correctional officials is that you serve your sentence in an institution offering specialized Aboriginal programming with access to an Aboriginal spiritual leader. In regard to the fraud involving the television from The Brick, I sentence you to six months probation, consecutive to the four years imprisonment. [ 65 ] In R. v.

Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90, Gonthier J., at paras. 41-42, affirmed that, in considering an appropriate sentence, a court must fully understand the impact of the sentence as it will actually be served by the offender. The availability of provisions in the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ Act” ), that would allow an offender to be in the community for part of his or her sentence, are relevant in considering how any given sentence will impact that offender. They are important in your case, Ms.

Serré, because they give the correctional authorities the flexibility to release you into the community prior to the end of your sentence in recognition of your being a first-time offender who, in my view, does not present any significant risk of re- offending. [ 66 ] In your case, if all goes well, you may be able to take advantage of the opportunities provided through unescorted or escorted temporary absences, day parole, and full parole in addition to the statutory release provisions.

Unless circumstances arise that would mandate your remaining incarcerated until the end of your sentence, the statutory release provisions in the Act would result in your being released into the community after completing two thirds of the sentence ( s. 127(3) of the Act ). An offender, such as yourself, may apply for full parole after serving one third of the sentence ( s. 120 of the Act ). You may be entitled to day parole after having served ten months of the sentence ( s. 119(1) (

c) of the Act ). The availability of these provisions in the Act go a long way to meet the objective of rehabilitation for an offender like yourself. On the other hand, the length of your sentence gives a strong message of denunciation and general deterrence in regard to offences of this nature. (See R. v. Gyles , [2003] O.J. No. 6249 (S.C.J.), at paras. 32-34 , aff’d [2005] O.J. No. 5513 (C.A.), at para. 16 .) [ 67 ] A forfeiture order is granted under s. 490.1(1) of the Code in regard to $2,800 in cash and a 32” Sony television, both seized from your residence on December 16, 2004. Aitken J. Released: March 28, 2013 CITATION : R. v. Serré, 2013 ONSC 1732

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – DIANE SERRÉ REASONS FOR JUDGMENT REGARDING SENTENCING Aitken J. Released: March 28, 2013