قاعدة بيانات السوابق القضائية

تهريب المهاجرين

جريمة (جرائم)

• تمكين الدخول غير القانوني
• إعداد وثيقة سفر أو هوية مزورة فيما يتعلق بتهريب المهاجرين

الطريقة

• هواء

جرائم اخري

R. v. Abdulle (2015)

موجز لوقائع القضية

Date(s) of offending: on/from 4 May 2006 to 31 January 2011

The defendant was accused of organizing or attempting to organize, between 4 May 2006 and 31 January 2011, the coming to Canada of ten or more Somali migrants (potential refugees). In the endeavour of pursuing this venture, the defendant was deemed to have fraudulently obtained documentation from the Citizenship and Immigration Services of Canada.

The defendant knew some of the irregular migrants he assisted, such as family members, friends, or family or friends of persons he knew. Conversely, many of them were not personally known to the defendant. Yet, the defendant maintained he had acted in view of the serious dangers faced by these migrants in Somalia, a reality he was well aware of in view of his own experience.

 

In ascertaining the facts, authorities relied much on testimonial evidence, notably declarations from (i) defendant, (ii) migrants (iii) refugees referred as sponsors in claims for refugee status of other individuals, (iv) competent governmental staff dealing with the processing of refugee claims, (v) employer of the defendant, (vi) staff from the banks where the defendant had his savings. Importantly, the outcome of searches and seizures to the residence of the defendant allowed retrieving relevant documental evidence, including – but not only - bank statements with regard to trust funds being held in support of the refugees’ applications. Many of these had no letterhead; others had no signature. Others instead had fields left blank. Some of the trust account numbers were repeated on more than one document. There were numerous copies of the same document. There were over 20 documents where the same bank account number was being used. Some documents appeared to have liquid paper markings. The same pay statement was made out to different persons. In some cases, it was clear that the name has been cut and pasted over another name. In other cases, the pay dates had been changed using the cut and paste method. Likewise, there were documents in which the dates and names had been altered. There were 17 examples of paystubs in the amount of $893.05. The defendant’s computer was seized.

The defendant was placed under surveillance. So-called ‘garbage-pulls’ were also carried out.

 

Regarding the specifics of the activities of the defendant in the alleged smuggling venture, the following aspects are to be highlighted:

 

  • In Canada, there are three procedures to make refugee claims. That is,  (i) inland refugee claims, for persons who request refugee status when they are already in the country; (ii) privately sponsored claims: (a) sponsorship Agreement Holder program primarily used by churches, and (b) Group of Five sponsorship program (”G5”) where five or more persons sponsor one or more applicant refugee(s).
  • The main components of the G5 program include the identification of a refugee or group of refugees and a group of no less than five sponsors who commit to support the refugees for a period of one year. Each of the sponsors is required to sign an undertaking for a one-year period to provide food, shelter and clothing and to help the refugee family settle in Canada. This requires more than just providing financial support. Each member of the G5 has to be eligible to sponsor by being a Canadian citizen or a permanent resident. The settlement plan is a key document, spelling out the sponsors’ obligations in broad strokes. There is a monetary baseline based on low income cut-off figures. Notably, $12,000 in financial support is required for the first person being sponsored and an extra $6,000 for each additional member. Supporting documentation can come from evidence of donations from each sponsor and their expected financial contributions. Members are expected to provide proof of income. In terms of finances, there needs to be a determination of how much it will cost to sponsor the family and how funds will be managed. Financial monitoring by the group is expected. Refugee families are not expected to work for one year as their ‘job’ is to get settled. Most new refugees do not have a passport and they are issued a single journey travel document, which is presented upon their entry into Canada.
  • The defendant was one of the most prolific G5 sponsors. He contacted the office regularly. He had 20 to 40 applications in the queue. He regularly sought updates and guidance. He was very motivated to succeed. His settlement plans quickly improved. The processing time of his applications progressively decreased. He was happy that, as a consequence, his standing in the community heightened. At one point in time, he offered a gift to the Senior Program Officer with Canadian Immigration Canada (CIC) responsible for processing applications for the privately sponsored refugee program. The Senior Programme Officer refused. He understood that in some cultures this was expected. He did not consider this a bribe as the defendant was already getting what he wanted.
  • In time, the said CIC Senior Programme Officer became concerned about the accused’s ability to support as many families as he proposed. Notably, he was aware the defendant was a janitor. Accordingly, he referred the processed (and approved) applications the defendant had sponsored to the Program and Integrity Division at headquarters. He came to appreciate that the defendant’s groups had pledged close to $1 million to support the refugee families. The CIC Senior Programme Officer did not advise the defendant of this referral to headquarters as he thought that the Canadian Border and Security Agency would be investigating, and did not want to interfere with the investigation.
  • At different moments in time, alleged sponsors addressed the CIC office and claimed their names had been used on G5 applications in error and that they had not agreed to become sponsors. They added it was not their signature on the application. This information was referred to headquarters.
  • As a result of investigations regarding the defendant, CIC decided that applications sponsored by him should be placed on hold until a decision had been reached.
  • In interactions with CIC, the defendant described himself as the “go to” person within his community. He claimed that he had inherited a considerable amount of money from his father. He had bought a taxi plate, and made $1500 per month from the rental of that plate. He declared to have about 40 to 50 applications outstanding, and about 100 more applications stored in a box at his home. He was described by the concerned CIC staff as very friendly and passionate about what he was doing for his community. Later on, the defendant referred to CIC Senior Programme Officer that he had received from relatives $10,000 to buy gold in Dubai for resale at a profit in Canada. He would also have bought cars and construction materials in Dubai which he could resell in Somalia for a $10,000 profit. He told the CIC representative he had “lots of money” held in a bank account in Africa. He inquired if the CIC staff had a mortgage and said he could help her pay it off if she helped him. He told her he could cut her a deal on gold, but they would have to build trust and suggested that they have a meeting outside the office. He showed her his new vehicle and told her that he lived in a $400,000 home. Following other bribe insinuations and attempts, the defendant clearly offered to pay the CIC staff $ 550 for processed application, for which he would expected a turnover period of one week.
  • In addition to the CIC Senior Programme Officer, the defendant also tried to bribe other employees working in the processing and approval of privately sponsored refugee claims, namely by offering jewellery.
  • The defendant often asked his employer for reference and employment letters, which were delivered to him in the conviction that they were necessary for immigration purposes. The defendant asked several times that the letters stated he received remuneration higher than his real salary. The employer drafted a generic letter with no mention to financial compensation. The employer testified that, in two letters, the signature was not hers. In other instances, she did not recall at all issuing similar letters. She also referred to a number of irregularities in documents, such as reference letters and pay slips, that were strange to her. He worked in the concerned company as a janitor for three years (2004-2007).
  • The competent representatives of the banks where the defendant had his accounts stated he often asked for letters attesting to the funds held. The employees always made sure the values referred were accurate. They testified not to recognise some bank statements or the signature in some of the afore-mentioned type of letters. They also noted a number of irregularities in letters allegedly issued by the bank. A number of accounts referred by the defendant in the applications he sponsored were inexistent. The corresponding certificates were not confirmed by the respective banks.
  • The defendant used the names and personal data of refugees he knew as G5 sponsors, without their knowledge. In addition, many of the alleged sponsors appeared on more than one G5 application.
  • Some asylum seekers testified to have paid (or to have been told they would have to pay) the defendant for his sponsorship. Values amounted to up $ 11 800. These fees would reportedly be to pay administrative fees related to the procedure and support refugees. Sometimes payments were made through the Hawala system; other, via wire transfer.

 

Against this background, it is important to note that all migrants that entered Canada after being sponsored by the defendant did so with valid identity documents and following validation of applications by CIC.

The defendant was arrested on 17 November 2011.

All relevant evidence was translated from English into Somali. The defendant was assisted by an interpreter and provided evidence in Somali.

 

Legal findings:

 

The defendant was charged with eight counts under the Criminal Code and Immigration and Refugee Protection Act (IRPA), including (i) migrant smuggling in its modality of facilitating illegal entry into Canada, (ii) corruption, (iii) fraud on government, (iv) forgery and related offences, (v) unlawful possession.

 

The Ontario Superior Court of Justice acquitted the defendant of migrant smuggling and convicted him on the remaining charges.

 

For further details see “Commentary”.

التعليقات والسمات الهامة

In its ruling, the Ontario Superior Court of Justice (Canada) highlighted:

 

  • Even if the defendant does not appear credible and his evidence does not raise a reasonable doubt, the Prosecution still has the burden of satisfying the Court beyond a reasonable doubt that the defendant is guilty of the offences with which he is charged.
  • Despite benefiting from the assistance of a Somali interpreter, the defendant systematically avoided answering questions at trial unless forced to do so. He was admonished repeatedly to simply answer the questions posed. Instead, he responded to every question with rambling explanations that were evasive and unresponsive.
  • The defendant was not credible. His version of facts was often contradicted by the overwhelming documental evidence. Illustratively, the defendant argued to have a worrying financial situation. Yet, his accounts and property ownership (his own and of his immediate family) were evaluated in several thousands of dollars. When confronted with the corresponding documentation, the defendant merely denied their existence or insisted that unknown persons had placed them at either of the two residences that were searched at a time when he was absent.
  • The defendant had previously challenged the constitutionality of section 117 Immigration and Refugee Protection Act (IRPA) as being overbroad and resulting in an infringement of his section 7 rights pursuant to the Canadian Charter of Rights and Freedoms. In R. v. Abdulle (2014) (see SHERLOC Case Law Database), the Ontario Superior Court of Justice upheld the constitutionality of said section 117. It noted the scope of section 117 IRPA was intentionally broad, and that it aimed at targeting persons who assist undocumented individuals to bypass border control when attempting to enter Canada. It furthermore submitted that the overarching aim of section 117 IRPA is to prevent individuals from arranging the unlawful entry of undocumented individuals into Canada, thereby contributing to the integrity of Canada’s immigration and refugee protection regime, protecting the safety of all Canadians, and promoting international justice by guarding against the uncontrolled entry into Canada of individuals who may be criminals or pose security risks. In other words, the primary objective of section 117 is border security control.
  • In the instant case, the evidence presented clearly unveiled that all of the refugees sponsored by the defendant or with the assistance of the accused entered Canada with a valid travel document (i.e., following clearance by the Citizenship and Immigration Services of Canada). Thus far, there had been no evidence that any of the refugees who were accepted were criminals or posed security risks. If the defendant submitted fraudulent applications to facilitate the entry of otherwise qualified refugees into the country, then those actions are adequately addressed under separate provisions of IRPA and no recourse to the admittedly vague provisions of section 117 IRPA is necessary.

 

Against this background, the Ontario Superior Court of Justice acquitted the defendant of migrant smuggling and convicted him on all remaining counts.

 

The fact that the Court ensured that all relevant evidence be translated into Somali and that the defendant be always assisted by a Somali interpreter appears as best practice from the lens of due process and the rights of the accused.

 

NOTE: As per Canadian national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime; rather, it is an aggravating circumstance (see SHERLOC – Database of Legislation: Canada).

القضايا الشاملة

مسؤولية

من أجل

• الجريمة المكتملة

تعتمد على ...

• القصد الإجرامي

تشمل ...

• الجاني الرئيسي / الجناة الرئيسيون
• المنظِّم / المدير

ارتكاب الأفعال الإجرامية

التفاصيل

• وقعت في واحد (أو أكثر) الحدود الدولية (عبر الحدود الوطنية)

البلدان المشاركة

كندا

الصومال

التحقيقات

الهيئات المشاركة

• Canadian Border and Security Agency (CBSA), Criminal Police, Public Prosecutor

أساليب التحري الخاصة

• أساليب التحري الخاصة
• المراقبة الإلكترونية وغيرها من أشكال المراقبة

المعلومات الإجرائية

النظام القانوني:
القانون الأنغلوسكسوني
 
مواصلة / تقدم #1:
  • المرحلة:
    المحاكمة الأولى
  • الرقم المرجعي الرسمي للقضية:
    R. v. Abdulle (2015)
  • تاريخ القرار / الحكم:
    18 November 2015

    المحكمة

    المحكمة الملكية

    Ontario Superior Court of Justice
     

    الموقع

  • المدينة/البلدة:
    Ontario (Canada)
  • • المجرم

    الوصف

    The case was heard before the Ontario Superior Court of Justice on 13 April 2015, 14 April 2015, 15 April 2015, 27 April 2015, 28 April 2015, 29 April 2015, 30 April 2015, 1 May 2015, 4 May 2015, 5 May 2015, 6 May 2015, 7 May 2015, 11 May 2015, 12 May 2015, 13 May 2015. The judgment was pronounced on 18 November 2015.

    The defendant had previously challenged the constitutionality of section 117 Immigration and Refugee Protection Act (IRPA) as being overbroad and resulting in an infringement of his section 7 rights pursuant to the Canadian Charter of Rights and Freedoms - see R. v. Abdulle (2014) in SHERLOC Case Law Database.
     

    النتيجة

  • الحكم:
    غير ذلك
  • النتائج الأخرى

    Acquittal of migrant smuggling and conviction re remaining charges, i.e. corruption, fraud on government, forgery and related offences, unlawful possession.
     

    الأحكام

    الحكم

    العقوبات الأخرى

    NOTE: While the defendant was convicted on a number of counts (though not migrant smuggling), his sentence was not determined in the judgment herein under analysis.
     

    المهاجرين

    المهاجر:
    الجنسية:
    صومالي

    Multiple (10 or more)

    المدعى عليهم / المتهمون في المحكمة الابتدائية

    عدد المتهمين الآخرين:
    1
    المدعى عليه:
    M.F.A.
    نوع الجنس:
    ذكر
    الجنسية:
    صومالي

    The Defence denied the accusations, includingsuspicious documents found at his residence, falsification of documents. Notably, it admitted the defendant had offered to the CIC staff a good deal in the purchase of gold but that such offer had had no relation to the processing of refugee applications. With regard to the multiple blank bank documents in his possession, the defendant maintained he had been given such items by bank employees. He also denied investments or ownership of thousands of dollars as argued by the Prosecution. His assets would be the fruit of his work and the result of inheritance. He declared to have assisted migrants in coming into Canada exclusively for humanitarian reasons. He added that all other sponsors had done so for the same reasons and testified to have witnessed their signatures to the corresponding sponsorship letters. 

    الاتهامات/الادعاءات/القرارات

    المدعى عليه:
    M.F.A.
    الاتهامات:
    Organising entry into Canada
    التشريع البرلماني / القانون النظامي:
    Immigration and Refugee Protection Act (2001)Section 117
    الاتهامات:
    Fraud on the government
    التشريع البرلماني / القانون النظامي:
    Criminal CodeSection 121(1)(a)
    الاتهامات:
    Misrepresentation (and unlawful possession)
    التشريع البرلماني / القانون النظامي:
    Immigration and Refugee Protection Act (2001)Sections 127 (a) and (b) and 128, in conjunction with Article 4(3) Criminal Code
    الاتهامات:
    Forgery
    التشريع البرلماني / القانون النظامي:
    Criminal CodeSection 366
    الاتهامات:
    Section 368 (1)
    التشريع البرلماني / القانون النظامي:
    Criminal CodeUse, trafficking or possession of forged document