Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: IMMIGRATION Probation order cannot be punitive: Appeal court ...continued from page 4 tice of the corporation, as evidenced by its books and records. The Crown sought the imposition of a conviction and a $20,000 fine. Choi argued the sentence was fit and it was open to the sentencing judge to direct the imposition of a conditional discharge in the circumstances of the case, and to make a probation order and impose conditions. The accused argued that the Manitoba Court of Appeal decision in R. v. Wisniewski allowed judicial creativity in sentencing as long as it complied with the sentencing menu of options available in the Criminal Code. Choi also contended that he was not the mastermind of a scheme to import and hire foreign workers, and some workers arrived in Canada with work permits issued by the Canadian Embassy in Korea, while others entered as visitors and subsequently were issued work permits in Canada. He said he was not involved in the exploitation of workers, and by his guilty plea he acknowledged his wrongdoing. Also, in addition to the probation order requiring charitable donations, he was obligated to complete 50 hours of community service work. Imposition of donation instead of fine not an option The appeal court noted there was no dispute that a conditional discharge open for consideration by the sentencing judge, as the offence had no minimum penalty prescribed and the maximum jail term which could be imposed was two years. The court agreed that the decision in Wisniewski allowed for judicial creativity in sentencing. However, the imposition of a condition in a probation order which forms part of a conditional discharge was not a sentencing option available under the Criminal Code. Section 732.1(3) of the code provides for the optional conditions which a court may prescribe in a probation order. Never- theless, the court noted that the sentencing judge failed to give an appropriate rationale as to how the conditions would protect society and facilitate Choi's successful reintegration into the community. The appeal court further held that the jurisprudence makes clear the conditions of a probation order may not be punitive and a condition requiring an offender to pay $12,000 is clearly punitive, resulting in the imposition of an unfit sentence. The court held that the sentencing judge erred in failing to consider the objective of protecting immigrants who may be vulnerable and assist employers who may need workers that can't be found in Canada — while protecting jobs for Canadians — and the balance required to accommodate them within the overall regime. In addition, the court held that the sentencing judge did not place sufficient emphasis upon the principles of denunciation of Choi and his conduct in the circumstances of his offence, or the need for general deterrence by "sending a clear and appropriate message to other employers as to the consequences of a willful violation of the IRPA in illegally employing foreign workers." The court found that from the perspective of denunciation, the facts make clear that this breach of the IRPA was not the result of carelessness, mistake or lack of due diligence, but rather it was wilful conduct. In employing people without a work permit, paying them less, depriving them of access to benefits, and avoiding the need to contribute to the government benefits programs, Choi secured for himself a marketplace advantage over similar employers acting legally, said the court. The court set aside the conditional discharge and probation order and substituted it with a conviction for the offence and a fine for $15,000. The court commented on its own decision in R. v. Rivais, which was cited by the parties during arguments. In that case, the court reversed a sentence which had granted a conditional discharge with a probation order, and had attached a condition that directed the accused to pay the sum of $2,500 in a charitable donation. The decision in Wisniewski held that there appears to be no consensus across Canada as to whether the imposition of a charitable donation fosters principles of restorative justice and rehabilitation better than the normal fine payable to the state. The question of whether a charitable donation was an appropriate order was best left to Parliament. This case sends a strong message to employers that the employment of foreign nationals must be in compliance with the regulatory scheme set out by the IRPA in all cases, and in no case should employers be lax in the requirement for work permits.. Failure to follow the legislation can result in disastrous consequences, as it did in this case, where a criminal conviction and substantial fines were imposed despite a guilty plea at trial. CELT For more information see: 2013 CarswellMan 442 (Man. C.A.). IR. v. Wisniewski, 2002 CarswellMan 296 (Man. C.A.). IR. v. Rivais, (5 January 1981), Winnipeg (Man. C.A.). IR.v.Choi, ABOUT THE AUTHOR Laura Williams Sergio R. Karas is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada, with Karas Immigration Law in Toronto, and editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or karas@karas.ca. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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