Final Decision - Ziad El Shurafa - Discipline Committee ... ·...

IMMIGRATION CONSULTANTS OF CANADA REGULATORY COUNCIL CONSEIL DE RÉGLEMENTATION DES CONSULTANTS EN IMMIGRATION DU CANADA

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DISCIPLINE COMMITTEE OF THE IMMIGRATION CONSULTANTS OF CANADA REGULATORY COUNCIL

Panel: Sylvie Bertrand, Member, Chairperson Perminder Sidhu, Member Louis-‐René Gagnon, Public Representative Between: Immigration Consultants of Canada Regulatory Council Patricia Harper for Immigration Consultants of Canada Regulatory Council And Ziad El Shurafa, R410255, Jane Lenehan for ICCRC File No. 2012.375.CD Ziad El Shurafa Andrew Roman for the Panel of the Discipline Committee Date of Hearing: Monday, March 9, 2015 Date of the Reasons for the Decision: Monday, March 16, 2015

_______________________________________________________

Reasons for Decision

Discipline Committee Decision and Reasons ICCRC File No. #2012.375.CD


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Table of Contents

I. INTRODUCTION ............................................................................................................................. 3

II. THE PANEL OF THE DISCIPLINE COMMITTEE’S ORDER ISSUED MARCH 9, 2015 .............................. 3

III. THE NOTICE OF REFERRAL ............................................................................................................ 3

IV. EVIDENCE AND ARGUMENT BEFORE THE PANEL .......................................................................... 4

V. WRITTEN SUBMISSIONS ON PENALTY BEFORE THE PANEL ............................................................ 5

SUBMISSIONS OF THE APPLICANT ................................................................................................................ 5 SUBMISSIONS OF THE RESPONDENT ............................................................................................................. 6 REPLY SUBMISSION OF THE APPLICANT ........................................................................................................ 21

VI. WHY THE PANEL DECIDED THAT REVOCATION WAS THE APPROPRIATE PENALTY IN THIS CASE .. 24

A. A 2 YEAR SUSPENSION WOULD BE INSUFFICIENT BECAUSE: ....................................................................... 24 B. REVOCATION WOULD BE THE JUST PENALTY BECAUSE .............................................................................. 25



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I. Introduction

This matter came before the panel of the Discipline Committee comprised of the three members listed above on March 9, 2015. The panel conducted a hearing by conference call. The written submissions of the parties had been provided to the panel members ahead of the hearing to permit them to be reviewed. In addition to the panel members, also in attendance during the conference call were Lawrence Barker, Registrar and Corporate Secretary for ICCRC; administrative staff: Carla Gelbloom who recorded the minutes and the panel’s independent legal counsel, Andrew Roman. Neither of the parties nor their legal counsel were present for the March 9 hearing.

II. The Panel of the Discipline Committee’s Order Issued March 9, 2015

After careful review and consideration of the submissions provided to the panel by the counsel for the Applicant and counsel for the Respondent, this panel of the Discipline Committee ordered that the Member’s registration be revoked, effective immediately. The Order states that reasons for the decision to issue the Order would follow. These Reasons are set out below. Sentences or paragraphs that are underlined have been underlined to indicate emphasis. Because this is the first contested case heard and decided by the Discipline Committee the submissions of the parties are provided in greater length than might be provided in subsequent decisions.

III. The Notice of Referral

The allegations against Mr. El Shurafa as stated in the Notice of Referral regarding 2012.375.CD dated September 17, 2014 are as follows: It is alleged:

1. The Member contravened the Immigration and Refugee Protection Act and was charged and convicted of offences thereunder. (a) Applicable Article(s) of the Code of Professional Ethics:

(i) Article 3.1 – Serve Honourably (ii) Article 3.2 – Privileged Role (iii) Article 7.4 – Cheating Prohibited



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(b) Particulars of the Allegations

Following information’s sworn by Jason Cannon of the Canada Border Services Agency, Criminal Investigations Division, in Halifax, Nova Scotia, on May 10, 2012 and January 28, 2014, Mr. Shurafa was charged with several counts of knowingly counselling, inducing, aiding or abetting or attempting to counsel, induce, aid or abet any person to directly or indirectly misrepresent and withhold materials facts relating to a relevant matter that Induces or could include an error in the administration of the Immigration and Refugee Protection (“IRPA”), thereby committing an offence contrary to the IRPA.

Specifically, Mr. Shurafa was charged with inducing or assisting clients in creating a false physical presence in Canada for the purpose of obtaining and/or maintaining Canadian Permanent Resident status.

Mr. Shurafa reached a plea deal with the Crown with respect to the charges against him. As a result of the plea deal, the Crown withdrew certain charges against Mr. Shurafa. However, as part of the plea agreement, Mr. Shurafa pleaded guilty on April 29, 2014 to 5 of the charges against him.

Mr. Shurafa was sentenced on Thursday, September 11, 2014. His sentence included the following:

(i) House arrest for a period of 1 year with specific conditions; (ii) The imposition of a curfew for a period of 1 year following the year of house of arrest;

(iv) A fine of $75,000.00, payable on or before September 11, 2016.

IV. Evidence and Argument Before the Panel

The parties submitted a written Agreed Statement of Facts. The Member has agreed to the following facts as set out in the Agreed Statement of Facts. This made an oral hearing to determine any contested facts unnecessary, and permitted the entire hearing to be conducted in writing. The Member agreed to the following facts in the Agreed Statement of Facts:

1. On April 29, 2014 Mr. El Shurafa pled guilty to five of eight counts alleging offences contrary to section 126 of Immigration and Refugee Protection Act, on an Information sworn January 28, 2014 (which replaced an earlier Information sworn May 10, 2012).

2. The matter proceeded to a sentencing hearing in Nova Scotia Provincial Court on September 11,

2014 and on that day the Crown offered no evidence with respect to the remaining three counts on the Information and those counts were dismissed by the Court for want of prosecution.

3. Offences under section 126 of the Immigration Refugee Protection Act require a person to

knowingly counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of the Immigration and Refugee Protection Act or attempt to do the same.



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4. In Mr. El Shurafa’s case the “relevant matter” forming the basis of the charges against him was

the disclosure of the amount of time his immigration clients spent in Canada in order to maintain their permanent resident status in Canada.

5. Mr. El Shurafa, was the co-‐owner of a company called Canada 2000 (C2K), a company which

assisted people in obtaining their Canadian citizenship, which involves acquiring and maintaining permanent resident status.

6. Mr. El Shurafa admitted that he knew the clients in question were outside of Canada, contrary

to their declarations in their applications, and, as such, were not in Canada the sufficient amount of time required to maintain their permanent resident status. Mr. El Shurafa also admitted aiding the clients in their attempt to maintain their permanent resident status without qualifying.

7. The specific facts with respect to each of the five counts on the January 28, 2014 Information

are set out in the Agreed Statement of Facts and need not be repeated here.

8. Mr. El Shurafa acknowledges that his conduct, as described herein, contravened the ICCRC Code of Professional Ethics as set out at paragraph 1(a) of the Notice of Referral.

V. Written Submissions on Penalty Before the Panel

Submissions of the Applicant Counsel for the Applicant has submitted detailed argument on penalty, the conclusion of which was that revocation was the only appropriate remedy in all the circumstances of this case. It is unnecessary to repeat the entire argument here, but a summary, the arguments in favor of revocation included: Overview

1. The offences to which Mr. El Shurafa pled guilty were directly connected to his work as a Regulated Canadian Immigration Consultant ("RCIC") and involved deliberately falsifying information and encouraging others to provide false information in order to assist certain clients to maintain their permanent resident status in Canada when they were not legally entitled to such status.

2. Mr. El Shurafa acknowledges that he did in fact breach the Articles of the Code specified in the Notice of Referral.

3. At issue for Discipline Committee is not whether Mr. El Shurafa breached the Code of Professional Ethics, but what penalty is appropriate in light of his acknowledged and admitted breaches of the Code.

4. The Applicant ICCRC seeks revocation of Mr. El Shurafa's ICCRC membership and publication of that Order.

5. In pleading guilty, Mr. El Shurafa acknowledged that he knowingly counseled, induced, aided or abetted those 5 clients to directly or indirectly misrepresent facts and provide false information and material.



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6. The Discipline Committee has the jurisdiction to make an Order revoking the Membership of Mr. El Shurafa. The Applicant ICCRC submits that the Discipline Committee should exercise that authority in the circumstances of this case.

7. Mr. El Shurafa has acknowledged that he has breached Article 3.1, 3.2, and 7.4 of the Code. Accordingly, he has acknowledged breaches in his professional obligation to serve honourably, abide by the requirements of his privileged role, and refrain from cheating.

8. Mr. El Shurafa committed acts contrary to the IRPA that were directly tied to his practice as an ICCRC Member. The penalty imposed by the Court, which includes house arrest, a curfew, and a substantial fine, reflect the seriousness of the Member's contraventions of the IRPA. The sentence imposed by the Court reflects that even though Mr. El Shurafa cooperated with the investigation and pled guilty to 5 of 8 offences, the Court saw fit to impose a significant penalty.

9. This is not a case of one isolated incident or one lapse of judgment. Mr. El Shurafa's acknowledged contraventions of the Code represent a pattern of dishonest behaviour lasting several years and with respect to a number of different clients. Further, Mr. El Shurafa involved clients, employees and colleagues in his dishonest actions.

10. The Applicant ICCRC, recognizes that revocation should not be taken lightly and that it will deprive Mr. El Shurafa of the ability to continue to work as an RCIC. However, the Applicant ICCRC respectfully submits that Mr. El Shurafa’s conduct as described above is such that he should no longer be permitted to act as an RCIC or to be a member of the ICCRC.

11. Revocation is the appropriate penalty to impose on the Member in the totality of the circumstances. His admitted breaches of the Code are serious and warrant a strict penalty. Revocation will serve to deter similar conduct by other RCICs. In addition, revocation serves the ICCRC’s mandate of protecting the public. Revocation also assists in ensuring public confidence in RCICs and demonstrates that the ICCRC takes its obligation to regulate its members seriously.

Submissions of the Respondent Counsel for the Respondent also submitted detailed argument on penalty, the conclusion of which was that a two-‐year suspension was the only appropriate remedy in all the circumstances of this case. It is unnecessary to repeat the entire argument here, but as a summary, the arguments in favor of a two-‐year suspension included:

1. The relevant facts are contained in the Agreed Statement of Facts and the attached Conditional Sentence Order issued September 11, 2014, Fine Order issued September 11, 2014 and the Order (Changes to Optional Conditional Sentence Conditions) issued November 24, 2014.

2. Under section 128 of the IRPA, a person who contravenes a provision of section 126 of the IRPA

can be sentenced to a term of imprisonment up to five years and to a fine of up to $100,000.00 if the Crown proceeds by way of indictment (as they did in Mr. El Shurafa’s case). The Provincial Court imposed a significantly lower penalty on Mr. El Shurafa of a $75,000.000 fine and a two year conditional sentence order because his misconduct did not represent the worst cases of Counselling Misrepresentation, there were mitigating factors, and he was found not to pose a risk to Canadian Society.

3. As of February 27, 2015, Mr. El Shurafa has managed to pay the sum of $35,000.00 on the fine,

leaving a balance of $40,000.00. In addition, Mr. El Shurafa paid the $10,000.00 fine imposed on



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his employee, Awni Sakalla, who plead guilty to two counts contrary to section 126 of the IRPA in factually related proceedings (Tab 2).

4. The Provincial Court sentenced Mr. El Shurafa to a $75,000.00 fine based on his representation

that he would continue working as an immigration consultant and had the ability to pay. Since Mr. El Shurafa’s business was suffering as a result of the travel restrictions imposed when his passport was restricted following his arraignment on the IRPA charges, to help ensure that Mr. El Shurafa could make reparations to Canadian Society a second Order was issued by the Provincial Court on November 24, 2014 (Changes to Optional Conditional Sentence Conditions), which specifically gave Mr. El Shurafa permission to travel internationally for business purposes.

5. It was not anticipated that Mr. El Shurafa’s membership with the ICCRC would be revoked. This

is a very serious penalty, which would effectively mean that Mr. El Shurafa cannot fulfill the terms of the sentence (Fine Order) imposed by the Provincial Court judge and make reparations to Canadian Society. Not only would revocation undermine Mr. El Shurafa’s ability to fulfill the terms of the Provincial Court sentence, but it would also significantly impact Mr. El Shurafa’s ability support his immediate family (wife and three children) for whom he is the sole provider. Mr. El Shurafa also financially supports his parents who do not work and have health issues and his sister who works but does not earn sufficient funds to support herself.

6. The Applicant seeks an Order revoking Mr. El Shurafa’s ICCRC membership. The Respondent

submits that the Applicant is seeking the most severe penalty for offences which do not fall under the most serious categories of breaches of the Code, and further where the Respondent:

i. Has no previous criminal record or disciplinary record with the ICCRC or CSIC; ii. Has acknowledged his wrong-‐doing and shown remorse; iii. Has fully cooperated with all investigatory and disciplinary proceedings and has made

every effort to resolve both criminal and regulatory matters quickly and efficiently; iv. Had pled guilty at the earliest opportunity; and v. Has already been punished and suffered loss as a result of his misconduct.

7. It is the Respondent’s position that although revocation is within the jurisdiction and powers of

the Discipline Committee, it is an overly-‐harsh penalty given the nature and gravity of the offence, as well as the numerous mitigating factors present. Revocation is the maximum penalty and should be reserved for the most severe contraventions of the Code, namely ones where consumers of immigration services or other vulnerable parties are harmed or taken advantage of (such as with human trafficking). Revocation is also a more suitable penalty where there is a legitimate risk of reoffending. Revocation is a last resort.

8. The severity of revocation as a penalty is not lessened by the ability to reapply in five years (in

accordance with the By-‐laws and subject to conditions imposed by the Board). Revocation causes much more damage than suspension does to reputation and good will, which Mr. El Shurafa’s business relies on. The harm which would be caused by revocation would be irreparable.

9. If the Disciplinary Committee ordered revocation as a penalty it would be inconsistent with the

findings of the Provincial Court judge. The Provincial Court judge determined that Mr. El



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Shurafa’s actions did not represent the worst examples of Counselling Misrepresentation under section 126 of the IRPA and imposed a significantly lower penalty than the maximum. The penalty imposed by the Provincial Court judge not only allowed Mr. El Shurafa to remain in the community, but relied on him continuing to practice as an immigration consultant to make reparations to Canadian Society.

10. If the Disciplinary Committee orders the maximum penalty of revocation, it not only suggests

that Mr. El Shurafa’s conduct represents the worst examples of Counselling Misrepresentation but also that his actions represent the worst conduct that the ICCRC serves to protect against, which includes harming or taking advantage of consumers of immigration services, human trafficking, and facilitating the entry of individuals who pose a threat to Canadian National Security. An order of revocation would also undermine Mr. El Shurafa’s ability to fulfill the terms of the Fine Order imposed by the Provincial Court.

Function of the Penalty

11. In the Applicant’s written submissions, it is asserted that Mr. El Shurafa’s actions bring the

reputation of the profession into disrepute and undermine public confidence in the legitimacy and honesty of RCICs (para. 38). It is further argued that Mr. El Shurafa’s actions undermine the fairness of the immigration process in Canada (para. 38).

12. The Applicant suggests that disciplinary penalties imposed by regulatory bodies serve a dual

function to penalize members for improper conduct and to maintain public confidence in the integrity of the profession (para. 48). In support of that assertion, at paragraph 49 the Applicant quotes the Alberta Court of Appeal in Adams v. Law Society of Alberta:

“A professional misconduct hearing involves not only the individual and all of the factors that relate to that individual, both favourably and unfavourably, but also the effect of the individual’s conduct on both the individual client and generally the profession in question. The public dimension is of critical significance to the mandate of professional disciplinary bodies.”

13. Adams is a case where a lawyer pled guilty to sexually exploiting his 16 year old client. The

quote above, especially in that context, suggests that a relevant factor in determining the appropriate penalty is the effect on the client(s). The public dimension includes not just public confidence, but public protection. Public protection is a seemingly more pressing issue for the ICCRC given its mandate and the primary purpose of the Code.

14. Mr. El Shurafa did not harm or take advantage of any consumers of immigration services or

other vulnerable parties. Mr. El Shurafa’s clients did not suffer loss or harm by his misconduct and no client has filed a complaint. There is less concern for public protection where no clients or vulnerable parties were harmed or taken advantage of, and further where the offender has no previous disciplinary history and has acknowledged his wrong-‐doing.

15. There is also less concern for public protection where the offender has already been punished

for his misconduct and would face substantially worse punishment if he were to reoffend; the Crown sought a two year custodial sentence at the sentencing hearing. The maximum custodial



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sentence which can be sought under section 128 of the IRPA for a contravention of section 126 is five years.

Relevant Factors

16. At paragraph 51 of the Applicant’s brief it is submitted that when determining the appropriate

penalty to be imposed on Mr. El Shurafa, the Discipline Committee ought to consider Mr. El Shurafa’s admitted contraventions of the Code, the impact of his actions on the integrity of the profession and public confidence in the profession, Mr. El Shurafa’s use of his privileged position in carrying out the misconduct, and the need to deter other RCICs from committing similar acts.

17. The Respondent submits that other relevant factors include Mr. El Shurafa’s lack of a previous

disciplinary history, his good character evidence contained in the Pre-‐Sentence Report (Tab 4), his active cooperation in all investigatory and disciplinary proceedings, his acknowledgment of wrong-‐doing and early guilty plea in the criminal proceeding, and the criminal sanctions already imposed on Mr. El Shurafa.

18. The Respondent further submits that the Disciplinary Committee should consider the lack of

need for specific deterrence, the fact that no clients or vulnerable parties were harmed or taken advantage of, that Mr. El Shurafa’s clients were professionals and families who did not pose a threat to Canada’s National Security, that protection of the public and consumers of immigration services, which is the primary purpose of the Code and mandate of the ICCRC, is not a concern in this case, and that this type of fraud is a larger cultural and institutional problem within the profession which requires a progressive remedial approach to address effectively.

19. In Pottie v. Nova Scotia (Real Estate Commission), 2005 NSSC 177 (Tab 5), Justice Warner

discussed the factors which Discipline Committees should consider when imposing sanctions:

“[59] The imposition of sanctions is not a mechanical exercise. While it is not improper for a Discipline Committee to take into account informal rules or guidelines and previous decisions for which written reasons have been given -‐ all of which increase certainty, reduce inconsistency and raise the level of accountability to the public -‐ the Discipline Committee must treat each case according to its own circumstances; that is, in accordance with the nature of the offence and the unique circumstances of the offender. It must not feel bound to automatically follow a rule, policy, guideline or precedent.

[60] While proceedings before the Discipline Committee are not criminal, but rather civil, the object of the imposition of sanctions resulting from breaches of the Act or of professional misconduct are not dissimilar to the purpose and principles of sentencing contained in the Criminal Code beginning with s. 718, 718.1 and 718.2. The principles of sentencing in the criminal context reflect the requirement to protect the public by the denunciation of unlawful conduct, specific deterrence, general deterrence, rehabilitation, and the promotion of a sense of responsibility by the offender.



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20. In Matheson v. College of Physicians and Surgeons of P.E.I., 2010 PECA 5 (Tab 6), the Prince Edward Island Court of Appeal overturned (in part) a decision of the Prince Edward Island College of Physicians and Surgeons disciplinary committee because their imposition of sanctions, when coupled with previous criminal sanctions, offended the totality principle. The Court of Appeal explained the principle of proportionality and the totality principle as follows:

“[130] As in criminal law, sanctions imposed for acts of professional misconduct, particularly a sanction which deprives the professional of the right to engage in the practice of his or her profession, must be proportional to the overall culpability of the offending professional. This principle of proportionality in criminal law is connected to the fundamental principle that criminal sanctions are imposed on only those that “possess a morally culpable state of mind.” A person who causes harm intentionally is punished more severely than a person who causes harm unintentionally. See: R. v. M. (C.A.) (1995), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (SCC) at para.40 where Lamer C.J.C. stated, in part, as follows:

Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing the constitutional requirement of fault for murder in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645, I noted the related principle that ‘punishment must be proportionate to the moral blameworthiness of the offender’, and that ‘those causing harm intentionally [should] be punished more severely than those causing harm unintentionally’. On the principle of proportionality generally, see R. v. Wilmott, 1966 CanLII 222 (ON CA), [1967] 1 C.C.C. 171, at pp. 178-‐79 (Ont. C.A.); Sentencing Reform: A Canadian Approach, supra, at p. 154.

21. To impose a penalty which is fair, a Discipline Committee must consider the cumulative impact

of their sanction with all previous sanctions. They must consider not only whether their sentence is ‘just and appropriate’, but whether the aggregate sentence is ‘just and appropriate’.

Aggravating and Mitigating Factors

Aggravating Factors

22. The Applicant argues that revocation is an appropriate penalty and addresses several elements

regarding the nature and extent of Mr. El Shurafa’s misconduct, which could be referred to as aggravating factors (see paras. 34-‐36). The Respondent recognizes that there are certain aggravating factors in this case, which include:

i. The planned and deliberate nature of the Respondent’s misconduct;



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ii. The abuse of his “Privileged Role” as defined by the Code;

iii. The contraventions of the Code occurred over several years and with multiple clients; and

iv. The Respondent involved his employees in the misconduct.

Mitigating Factors

23. It is argued that there are many mitigating factors, which include the following:

i. No consumers of immigration services were harmed or taken advantage of by

Mr. El Shurafa and none of his clients filed a complaint;

ii. No vulnerable parties were harmed or exploited by Mr. El Shurafa’s actions;

iii. Mr. El Shurafa’s clients did not pose a threat to Canada’s National Security;

iv. Mr. El Shurafa’s offences were not part of a larger scheme, but were committed against his better judgment, as favours to close family and friends;

v. Mr. El Shurafa did not benefit financially from his misconduct other than the

usual fees for his time and services;

vi. Mr. El Shurafa has a long history of valuable service as an immigration consultant;

vii. Mr. El Shurafa does not have a previous criminal record or disciplinary record

with the ICCRC or CSIC;

viii. Mr. El Shurafa has acknowledged his breaches of the Code and has shown remorse for his actions;

ix. There is no legitimate risk of Mr. El Shurafa re-‐offending.

x. The Provincial Court judge could not have given Mr. El Shurafa a Conditional Sentence Order unless he was satisfied that Mr. El Shurafa did not pose an economic risk to the community and the Provincial Court judge even relied on Mr. El Shurafa continuing to work as an immigration consultant to fulfill the terms of his sentence (Fine Order);

xi. Mr. El Shurafa has cooperated with all investigatory and disciplinary processes

related to this misconduct; and

xii. Mr. El Shurafa has already been penalized for his misconduct (see Agreed Statement of Facts paragraphs 33-‐38).



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24. The aggravating and mitigating factors outlined above are listed in the Pottie decision as

relevant factors which Discipline Committees should consider when imposing sanctions.

Analyzing the Relevant Factors

The nature and gravity of the admitted contraventions of the Code

25. The nature and gravity of Mr. El Shurafa’s misconduct is admittedly serious, which is why he accepts that his transgressions warrant a suspension. Mr. El Shurafa pled guilty and was convicted of five counts of violating section 126 of the IRPA. He assisted applicants in meeting their permanent residency requirements by creating a false presence for them in Canada. He committed immigration fraud, and is deeply remorseful for doing so.

26. Although Mr. El Shurafa committed the offences under considerable pressure, his actions were

planned and deliberate, and he used his special position to commit the acts fraud. Mr. El Shurafa also involved employees in the misconduct.

27. However, although Mr. El Shurafa admittedly abused his privileged role, his abuse is not

comparable to the abuse in the Mastop case referenced by the Applicant at paragraph 50 of their submissions. In Mastop the lawyer provided an Information to Obtain (“ITO”) from a different case to his client who was the leader of a criminal organization and being charged with murder. The client was interested in the ITO because he believed it would provide him with information that could help him determine the identity of an informer. The actions of the lawyer in Mastop were so egregious that public confidence would be completely undermined if the lawyer was allowed to continue to practice.

28. Mr. El Shurafa’s misconduct is serious, however, it is considerably less severe than immigration

fraud which harms or exploits consumers or other vulnerable parties. There is no significant concern for public protection in this case. As previously stated, the ICCRC’s mandate is “to protect consumers of immigration services through effective regulation of immigration consultants and promotion of the benefits of using only authorized immigration representatives”. Mr. El Shurafa did not harm any consumers of immigration services. Mr. El Shurafa’s clients did not suffer loss or harm by his misconduct and no client has filed a complaint.

29. The primary purpose of the ICCRC’s Code of Professional Ethics, stated at section 1.2, is to

“protect the public from unprofessional, unethical, incompetent practice by the ICCRC members and students”. Again, there is less concern for public protection where no clients or vulnerable parties were harmed or taken advantage of, and where the offender has no previous disciplinary history and has acknowledged wrong-‐doing.

30. There is also little concern for public protection because the individuals whom Mr. El Shurafa

assisted in meeting their permanent residency were highly respected business professionals and businessmen and their families, and were not a threat to the safety of Canadian citizens.



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31. Mr. El Shurafa’s misconduct is also less severe than fraud committed by immigration consultants who offer and promote fraudulent services. Mr. El Shurafa did not run a business where he offered to defraud the immigration system at set rates; he didn’t offer a package deal. Although the offences were not isolated incidents, they also were not part of his usual course of business or a larger scheme. The offences were committed against Mr. El Shurafa’s better judgment as favours to close family members or friends. Mr. El Shurafa also did not benefit financially from the misconduct beyond the normal fees for his time and services.

The impact of the incident on the victim (if there was one)

32. No clients were harmed or taken advantage of by Mr. El Shurafa. The victim is Canada’s

immigration system. It is impossible to measure the impact on the immigration system precisely, but it is admitted that any act of fraud has the potential to diminish public confidence in the system, in immigration consultants, and the reputation of immigrants. It might be argued that Canadians in general are affected as the Canadian economy is impacted by not having the applicants contribute.

33. However, since these particular applicants sought out fraudulent services, and all but one family ended withdrawing their applications for permanent residency and citizenship prior to charges being laid against Mr. El Shurafa and are no longer residing in Canada, it is clear now that these applicants were never willing to make the necessary sacrifices to meet the requirements of permanent residency. There is also no evidence that any of the individuals named in the Information received government benefits as a result of Mr. El Shurafa’s breaches of the Code.

The previous character of the offender and in particular the presence or absence of any prior complaints or convictions

34. Mr. El Shurafa does not have a prior criminal record or a previous disciplinary record with either

the ICCRC or CSIC. Mr. El Shurafa has provided years of valuable service as an immigration consultant and member of ICCRC, as well as made positive contributions to the Nova Scotian community. This misconduct is not representative of his usual practice. Mr. El Shurafa for years has conducted his consulting business legitimately with the subject of this disciplinary hearing being the only transgressions. The Pre-‐Sentence Report provides evidence of Mr. El Shurafa’s previous good character.

The role of the offender in acknowledging what had occurred

35. Mr. El Shurafa’s has acknowledged the seriousness of his wrong-‐doing and has shown remorse

over the impact his actions have had on his family and the Canadian community. Evidence that Mr. El Shurafa has taken full responsibility for this matter includes the fact that Mr. El Shurafa paid a $10,000.00 fine on behalf of his employee, Awni Sakalla, who was charged and plead guilty to two counts contrary to section 126 of the IRPA in a related proceeding.

36. The fact that Mr. El Shurafa has taken full responsibility for his actions and has shown remorse

indicates his excellent potential for rehabilitation. As it is consistently applied by the tribunals included in the Summary Decision Table, the acceptance of responsibility should be considered as a mitigating factor in the current case as well, and contribute towards reducing Mr. El



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Shurafa’s penalty. Conversely, a lack of remorse and acceptance of responsibility would be considered an aggravating factor.

37. Mr. El Shurafa has been cooperative in all investigations and proceedings related to his

misconduct. Mr. El Shurafa entered a guilty plea at the earliest possible opportunity, as soon as he was provided full disclosure from the Crown. Further, Mr. El Shurafa moved the criminal matter forward by asking for disclosure on several occasions.

Whether the offender had already suffered other serious financial or other penalties as a result of the allegations having been made

38. When a member has already suffered serious financial and/or other penalties as a result of their

misconduct, the sanction imposed by the disciplinary body is often reduced. The penalties can include fines, conditional sentences, community services, loss of employment, loss of business, and loss of reputation among other consequences.

●Totality Principle

39. Where consecutive sentences are imposed, the combined sentence should not be unduly long

or harsh. The cumulative effect of revocation being coupled with the criminal sentence already imposed would offend the totality principle.

40. As a consequence of Mr. El Shurafa’s criminal conviction, he has already received a two year

conditional sentence order for this misconduct and a $75,000.00 fine. Mr. El Shurafa has also suffered restrictions on his ability to travel and therefore his ability to conduct business, and damage to his reputation through negative media publicity which has hurt his business as well. As stated in Matheson, “sanctions imposed for acts of professional misconduct, particularly a sanction which deprives the professional of the right to engage in the practice of his or her profession, must be proportional to the overall culpability of the offending professional”.

41. Revocation would not be a proportional response to the misconduct, especially considering the

extent to which Mr. El Shurafa has already been penalized.

The need to promote specific and general deterrence and, thereby, to protect the public and ensure the safe and proper conduct of the profession

42. There is no need for specific deterrence where Mr. El Shurafa has acknowledged his wrong-‐

doing and has shown remorse, where he has already suffered great loss as a result of this misconduct, and where he would face likely imprisonment if he were to reoffend. The Crown sought a custodial sentence of two years at his sentencing hearing.

43. Because of the negative media attention Mr. El Shurafa received, as well as his criminal

conviction, the public and other members of the profession are all well aware that this type of immigration fraud will not be treated lightly. The need for general deterrence at this point would be minimal.



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44. There is little concern about protecting the public where Mr. El Shurafa did not harm or take advantage of his clients or other vulnerable parties, and where El Shurafa’s clients were professionals and businessmen and their families and were not a threat to Canadian citizens.

The need to maintain the public’s confidence in the integrity of the profession

45. Unless the action is so egregious (as was the case is Mastop) that allowing Mr. El Shurafa to

remain in the profession would totally undermine the public’s confidence in the profession, or the risk of reoffending is great, Mr. El Shurafa’s membership should not be revoked.

46. The public’s confidence in the profession is promoted and maintained by a proportionate and

progressive response to misconduct. In this case that would include a suspension with remedial components. This is especially true considering that Mr. El Shurafa has already been penalized for this misconduct, that he has shown remorse, that there is little likelihood of reoffending, and that this type of fraud is a larger cultural and institutional problem within the profession which should be addressed at its roots.

47. A sanction which is centered around rehabilitation and promoting a sense of responsibility

would be the most effective means in this instance of enhancing public confidence in the profession and the immigration system as a whole.

48. A disproportionate and unduly harsh response such as revocation would damage public

confidence in the profession and the immigration system. Unfairness and disproportionality do not promote confidence.

The degree to which the offensive conduct that was found to have occurred was clearly regarded, by consensus, as being the type of conduct that would fall outside the range of permitted conduct

49. The offensive conduct occurred mostly before the ICCRC came into existence. In Comeau (Re),

2013 CanLII 87866 (CA MFDAC), the Respondent relied heavily on Re Mazzota, MFDA File No. 200924 (March 14, 2011), a case that involved an investor who engaged in off-‐book trading of almost 3.5 million dollars to over 30 clients. In Mazzota the MFDA hearing panel included the following as a mitigating factor:

“The Respondent’s conduct occurred in the early days of the MFDA’s regulatory mandate and prior to the issuance of many Member regulation notices, disciplinary decisions and other sources of guidance.”

50. Counsel for MFDA in Comeau distinguished the Mazzota case on the basis that it was a

settlement agreement and that it was within the context of a greater and rather pervasive financial fraud that was occurring at the time.

51. Although, it in no way absolves Mr. El Shurafa of culpability, it should be considered that there is

a larger culture of fraud to be addressed, especially at the time in which Mr. El Shurafa committed acts of misconduct. It was/is an institutional problem. It would be unfair to make an



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example out of Mr. El Shurafa. A fairer, more progressive and more effective approach would be rehabilitation involving education and training.

52. Mr. El Shurafa’s conduct could be considered analogous to lawyers falsely commissioning

affidavits. There are ample law society disciplinary decisions dealing with false commissions of affidavits, some of which are included in the Summary Decision Table. It indicates that there is a larger institutional problem regarding that issue. The lawyers generally receive reprimands, suspensions, and orders to attend ethics and other professional courses.

53. Similarly, penalties with an eye towards rehabilitation are applied in cases where pharmacists

charge the government for drugs they do not dispense. There are usually longer suspensions and more limitations and conditions are imposed in the pharmacist cases where the offences are more severe than commissioning false affidavits, but the goal of rehabilitation is still central.

54. Revocation is reserved for the most severe cases, cases that are far outside the culture, and

where there is a likelihood of reoffending. Revocation is a last resort. Where there is an institutional problem, the most common supported measure is to fight it at its roots through education and training. This can also be seen in the securities cases involving off-‐book trading.

The range of sentence in other similar cases

55. Please see the Summary Table of Tribunal Decisions enclosed with these submissions: a review

of the case law provided shows that revocation of membership is reserved for the most serious scenarios, the ones where rehabilitation of the member is extremely unlikely and/or the action was so severe that it would undermine the public’s confidence in the institution if they were permitted to continue practicing.

56. The actions which are considered to be more severe usually involve a member taking advantage

of a vulnerable party. A lack of harm or loss to clients or other vulnerable parties is frequently viewed as an ameliorating factor. However, even in cases where there are multiple acts of fraud and clients and/or third parties are exploited and harmed, membership is not necessarily revoked.

57. If the member accepts responsibility and shows remorse, and does not have a history of prior

disciplinary hearings, there is usually an aim towards rehabilitation. The majority of the cases provided include a remedial component in the sentence such as education or training. This is a progressive approach which encourages responsibility in the members and protects public confidence in the profession and the system as a whole.

58. No case is identical, even within the same profession, and a nuanced approach is required when

imposing a sanction. As Justice Warner stated in Pottie, “the Discipline Committee must treat each case according to its own circumstances; that is, in accordance with the nature of the offence and the unique circumstances of the offender. It must not feel bound to automatically follow a rule, policy, guideline or precedent.” However, there are still some notable parallels between cases.



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59. In NSBS v. Jacquard, 2012 NSBS 1, Mr. Jacquard allowed a member of his staff to access and use his Property On-‐Line password, contrary to the Land Registration Act and regulations, effectively allowing the unauthorized practice of law. He also failed to properly supervise his staff, and he allowed himself to be used as a dupe by unscrupulous clients in numerous property transactions which were fraudulent in nature. During these property transactions he acted for numerous clients involving significant conflicts without appropriate consents. The penalty Mr. Jacquard received was a one year suspension, and in addition he had to practice under the supervision of another lawyer for a year after the suspension. Further, costs of $65,000 + $9,750 in HST were awarded to the Nova Scotia Barrister’s Society. The mitigating factors in Jacquard included that Mr. Jacquard had no previous discipline history, that he had been co-‐operative throughout the practice review and investigation, and that there was no evidence that, other than fees, Mr. Jacquard personally gained from any of the suspicious transactions.

60. In LSUC v. Shah, 2012 ONLSHP 37, Mr. Shah was part of over three million dollars in mortgage

frauds in 15 transactions over a two year period. Although revocation is the normal penalty for knowingly participating in mortgage fraud, it was viewed as being an overly harsh penalty in these circumstances and the mitigating circumstances in this case led to the lighter decision of a three year suspension instead. The mitigating factors included that none of the institutional lenders who were defrauded made a complaint to the Law Society, that Mr. Shah had no previous disciplinary history, that he cooperated with investigatory and disciplinary proceedings, and that he showed remorse for his actions and a willingness to improve his practice.

61. In LSUC v. Maroon, 2005 ONLSHP 21, Ms. Maroon improperly commissioned an affidavit signed

by her client not in her presence and filed the improperly sworn affidavit in court. Ms. Maroon then swore a false affidavit stating that the client was present in her office when the affidavit was sworn. Ms. Maroon was convicted of improperly commissioning an affidavit and perjury, and received a nine month conditional sentence. Counsel for the Law Society argued that while errors in judgment do occur, this was not such a case. It was the position of counsel for the Law Society that the member had deliberately and consciously planned to cover up her original misconduct by committing perjury when preparing a false affidavit claiming the original affidavit had been properly sworn. Counsel for the Law Society was looking for Ms. Maroon to be disbarred. However, the Hearing Panel was satisfied that the member was unlikely to engage in this type of misconduct again and that the consequences of her misconduct in the criminal proceedings (a nine month Conditional Sentence Order) were so grave as to be both a specific deterrence to the member and a general deterrence because of the extensive media coverage of the member’s criminal trial, her public humiliation and the destruction of her career. The disciplinary body imposed a six months suspension and $1,500 in costs.

62. In LSUC v. Neinstein, 2014 ONLSTH 92, Mr. Neinstein was found to have committed multiple acts

of professional misconduct including filing a false affidavit, misleading a public body, not complying with two court orders, and adding a provision into a settlement agreement to absolve him of any wrongdoing. He was also found to have put himself in a conflict of interest. The penalty imposed on Mr. Neinstein was a six month suspension. He was not disbarred partly because of strong character evidence, an understanding he had of the gravity of his mistakes, the fact that he was remorseful, and the fact that he had no previous disciplinary actions, as well as the unlikelihood of similar misconduct recurring.



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63. In Conville (Re), 2013 IIROC 5, Mr. Conville facilitated a scheme in which two friends of his would obtain a mortgage based on fraudulent grounds and he would use the proceeds to purchase a residence for him and his family. The penalty imposed on Mr. Conville was a six month suspension, a $50,000 fine, and an Order to complete two courses offered by the Canadian Securities Institute, as well as an Order to pay $15,000 in costs. Mitigating factors in that case included Mr. Conville’s lack of a previous disciplinary record, his cooperation in the investigation process, the fact that he did not cause harm to his clients or firm, and that he had already lost his employment and with it his client portfolio.

64. The Ontario College of Pharmacists (“OCP”) cases might also be particularly helpful. If the

position is taken that the type of immigration fraud committed by Mr. El Shurafa deprives the government of money because his clients in those instances were not contributing as much to the economy (which we respectfully submit would be a stretch), it could be argued that there is a parallel with pharmacists fraudulently dispensing medications and charging the government.

65. The OCP cases and Mr. El Shurafa’s case also involve the use and abuse of special knowledge

and a privileged position. The sanctions in the OCP cases generally include suspensions, conditions on the member’s practice for a period of several years, orders to attend professional courses, duties to report new employment, and fines. The sanctions do not include revocation.

66. Further, a mitigating factor for Mr. El Shurafa would be, unlike the pharmacists, he did not

commit fraud for financial gain beyond his usual fees for his time and services. Comparing the circumstances in Mr. El Shurafa’s case with the circumstances in the OCP cases, and considering his previous sanction, the appropriate sanction is, at most, a suspension of two years with remedial components.

Conclusion Revocation Wholly Inappropriate

67. Provided the factors in Pottie and the precedents from other tribunals, revocation would be a

wholly inappropriate sanction. A list of the reasons can be summarized as follows:

• Revocation is generally reserved for the most severe cases and for repeat offenders; it’s viewed as a last resort. The primary purpose of the ICCRC’s Professional Code of Ethics is to protect the public, and the ICCRC’s mandate is specifically to protect consumers of immigration services. Mr. El Shurafa is a first-‐time offender and his offences were not among the most severe where he did not harm or take advantage of his clients or other vulnerable parties. Mr. El Shurafa’s clients were also not a threat to Canadian citizens. Further, Mr. El Shurafa’s actions do not represent the worst examples of immigration fraud where he did not have a larger system in place. Mr. El Shurafa did not offer fraudulent services as a package deal, but gave under pressure of family and friends. The Provincial Court judge determined that Mr. El Shurafa’s contraventions of section 126 of the IRPA were not among the worst breaches of that section and imposed a penalty significantly lower than the maximum allowed under section 128.

• Any possible need to protect the public is further satisfied by the fact that Mr. El Shurafa is not

a legitimate risk of reoffending. If the Provincial Court judge had determined that Mr. El Shurafa



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was a risk of reoffending he could not have imposed a Conditional Sentence Order under section 742.1 where the Court must be satisfied that the offender serving the sentence in the community would not endanger the safety of the community. Endangering the safety of the community includes the risk of economic harm, which means the Provincial Court judge determined that Mr. El Shurafa did not present a risk of economic harm to the Canadian community. Further, the Provincial Court judge in ordering that Mr. El Shurafa pay a substantial fine was relying on Mr. El Shurafa to continue working as an immigration consultant. Additionally, Mr. El Shurafa has acknowledged the severity of his misconduct, takes full responsibility for his misconduct, and has shown remorse. These facts coupled with his lack of disciplinary history, strong character evidence in his Pre-‐Sentence Report, and his previous contributions to the profession and community over the years strongly indicate that Mr. El Shurafa is not a risk of reoffending, and rehabilitation should be a primary consideration. Further, if Mr. El Shurafa were to reoffend, he would likely receive a custodial sentence, which is what the Crown originally sought. That fact satisfies any need for specific deterrence and makes it extremely unlikely that Mr. El Shurafa would ever reoffend.

• The penalties already imposed on Mr. El Shurafa and negative media attention serve to satisfy

the need for general deterrence. Because of the negative media attention Mr. El Shurafa received, as well as his criminal sentence, the public and other members of the profession are all well aware that this type of immigration fraud will not be treated lightly. Mr. El Shurafa’s employees have also received strict penalties, which have been well-‐publicized.

• Revocation of his license would offend the “totality principle”. Mr. El Shurafa has already been

heavily penalized for this misconduct. He has received a two year non-‐custodial sentence and a $75,000.00 fine, as well as lost business/income because of imposed travel restrictions and a damaged reputation resulting from negative media publicity. As stated by the Prince Edward Island Court of Appeal, “sanctions imposed for acts of professional misconduct, particularly a sanction which deprives the professional of the right to engage in the practice of his or her profession, must be proportional to the overall culpability of the offending professional”. All penalties must be considered when assessing proportionality.

• There are other mitigating factors: Mr. El Shurafa plead guilty in the criminal proceeding at the

earliest time, he has cooperated with all investigations and proceedings, and he did not have a financial motive beyond being paid for time and services when he committed the offences. Mr. El Shurafa has also shown a higher level of commitment to Canada since the time he was charged by moving to Canada from the United Arab Emirate. Mr. El Shurafa is looking to be a model Canadian citizen and a model RCIC. He has expressed a willingness to give lectures and/or make instructional videos to help other RCIC’s avoid making his mistakes.

• The primary issue in this case is public confidence in the profession and the immigration system.

Public confidence is promoted by fairness and a progressive disciplinary approach that acknowledges the larger cultural/institutional nature of the problem and addresses it at its roots. A sanction which is centered around rehabilitation and promoting a sense of responsibility would be the most effective means in this instance at enhancing public confidence in the profession and the immigration system as a whole. A disproportionate response to the conduct such as revocation serves to undermine public confidence in the immigration system.



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• An order for revocation would undermine the Provincial Court sentence. The Provincial Court

sentenced Mr. El Shurafa to a $75,000.00 to make reparations to Canadian Society. If Mr. El Shurafa’s membership with the ICCRC were to be revoked, it would effectively mean that Mr. El Shurafa cannot fulfill the terms of the Fine Order imposed by the Provincial Court judge and finish making reparations to Canadian Society. To help ensure that Mr. El Shurafa could make reparations to Canadian Society, the second Order issued on November 24, 2014 specifically allowed Mr. El Shurafa to travel internationally for business purposes.

Time Already Served

68. When considering the length of suspension, the panel should consider the time before the

hearing where Mr. El Shurafa has been unable to practice. It was necessary that Mr. El Shurafa take a voluntary leave of absence while this matter is being resolved. The voluntary leave of absence has been effective since August 24, 2014.

69. In the case of Dr. Randy Raymond Allan, IC1544, 2012 CanLII 62565 (MB CPSDC), the cessation of

practice pending the result of the hearing acted as a type of time served in the eyes of a tribunal.

Recommended Penalty

70. The Discipline Committee has the jurisdiction and powers to make an Order with multiple

components to it, which could be proportional, remedial, and progressive. The penalty the Respondent recommends is a two year suspension with automatic reinstatement. The Respondent suggests that there could be a condition to his reinstatement that he successfully completes the Ethical Practice course offered by the ICCRC or another practice management course the Disciplinary Committee determines appropriate. Upon the suspension of his RCIC license being lifted, different monitoring and reporting components could be placed on Mr. El Shurafa’s practice. Mr. El Shurafa would also be willing, if the Disciplinary Committee believes it would be beneficial, to give lectures and/or make instructional videos to help other RCICs avoid making his mistakes. The period of time in which Mr. El Shurafa has been unable to practice pending the hearing should count towards the proposed two year suspension.

71. It is not necessary for the Disciplinary Committee to revoke Mr. El Shurafa’s membership to

send a consistent message that engaging in fraudulent and/or dishonest conduct in the course of one’s practice as a RCIC will not be tolerated. A lesser penalty is capable of sending that message. A suspension with additional remedial, monitoring and reporting components would serve the ICCRC’s mandate of protecting consumers of immigration services, as well uphold public confidence in RCICs and the immigration system in Canada. The Respondent’s recommended penalty would demonstrate that the ICCRC takes its obligation to regulate its members seriously, but also that it responds fairly and proportionately to breaches of the Code and does not fail to recognize all of the surrounding circumstances and the larger cultural and institutional problems which the ICCRC was created in part to address.

72. As mentioned by the Applicant at paragraph 6, it is true that the Court saw fit to impose a

significant penalty (though nothing close to the maximum penalty), however, this is a reason



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why it is unnecessary for the Disciplinary Committee to impose a harsh penalty for the goals of specific or general deterrence. Mr. El Shurafa’s admitted breaches of the Code are serious and do warrant a strict penalty, but revocation is far too strict for these type of offences, especially in light of all the mitigating factors and the criminal penalties already imposed.

73. All of which is respectfully submitted by counsel for the Respondent, Mr. El Shurafa.

Reply Submission of the Applicant The panel of the Discipline Committee has received the following written reply submissions on behalf of the Applicant: Overview

1. The Applicant, ICCRC repeats and relies on its Submissions in reply to the Respondent’s Written Submissions ("Respondent's Submissions").

2. In addition, the Applicant, ICCRC makes the Submissions below in reply to the Respondent’s Submissions.

The Totality Principle 3. The Respondent ("Mr. El Shurafa" or the "Member") relies on the "totality principle" to assert

that revocation of Mr. El Shurafa's ICCRC Membership ("Membership") would amount to unduly harsh punishment of the Member when considered in conjunction with the penalty imposed by the Nova Scotia Provincial Court (the "Court").

4. As acknowledged by both the Applicant, ICCRC and the Respondent, Mr. El Shurafa has been convicted and penalized for contraventions of the IRPA as reflected in the Orders of the Court ("Court Orders").

5. That Mr. El Shurafa is subject to a Court imposed penalty does not limit the jurisdiction of the ICCRC to exercise its regulatory authority over him.

6. Contrary to paragraph 11 of the Respondent’s Submissions, Mr. El Shurafa was well aware before he was sentenced by the Court that he would also be subject to disciplinary proceedings before the ICCRC and that these proceedings could result in a wide range of disciplinary penalties as enumerated at Article 31 of the ICCRC By-‐Law (the "By-‐Law"), including revocation of Membership.

7. All ICCRC members are to conduct themselves in accordance with the By-‐Law and the Code of Professional Ethics (the "Code"). Any Regulated Canadian Immigration Consultant ("RCIC") who engages in acts contrary to the law that are directly related to his/her practice as a member should understand that a potential outcome of engaging in such illegal acts may be revocation of Membership.

8. The Respondent relies on the case of Matheson v. College of Physicians and Surgeons of P.E.I. to assert that the total punishment imposed on the Member (i.e. the Court imposed penalty in conjunction with any penalty imposed by the Discipline Committee) must be just and appropriate. (See paragraph 34 of the Respondent's Written Submissions)

9. It is the position of the Respondent that revocation of Membership would not be just and appropriate in light of the penalty imposed by the Court.

10. The Applicant, ICCRC respectfully disagrees with this position. 11. Although the Discipline Committee may of course consider the penalty already imposed by the

Court in its determination of the appropriate disciplinary penalty to be imposed on the Member,



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this does not negate the responsibility of the Discipline Committee in determining its own penalty for conduct contrary to the Code, nor does it prevent the Discipline Committee from doing so.

12. The Applicant, ICCRC submits that, given the seriousness of Mr. El Shurafa's contraventions of the Code as described in the Applicant's Submissions and acknowledged in the Respondent's Submissions, a just and appropriate total penalty for the Member should include revocation of his ICCRC Membership.

The Court Imposed Fine 13. At paragraph 11 of the Respondent's Submissions it is asserted that revocation would

undermine the Member's ability to fulfil his obligation to pay the balance of the fine imposed by the Court.

14. It should be noted that at paragraph 84 of the Respondent's Submissions, a suspension of two years with automatic reinstatement is proposed as an alternative to revocation.

15. In accordance with the Court's Fine Order, the Respondent must pay the balance of the Court imposed fine by September, 2016.

16. Whether Mr. El Shurafa is suspended for two years, as proposed by the Respondent, or his ICCRC Membership is revoked, as sought by the Applicant, ICCRC, the Respondent will not be permitted to work as an RCIC until after the time when the total fine must be paid.

17. Accordingly, revocation does not undermine the ability of the Respondent to fulfill the Court Order any more than the suspension sought by the Respondent does and thus the argument that revocation would undermine the Respondent's ability to fulfil the obligation to pay the fine should be disregarded.

Mitigating and Aggravating Factors 18. At paragraphs 36 and 37 of the Respondent's Submissions a variety of aggravating and

mitigating factors are listed. 19. The Applicant, ICCRC repeats and relies on the submissions made at paragraphs 30-‐38 of the

Applicant's Submissions with respect to mitigating and aggravating factors. Decisions of Disciplinary Tribunals

20. The Respondent has prepared a Summary of Disciplinary Tribunal Decisions ("Summary of Decisions"). The Summary of Decisions illustrates the wide range of penalties available to professional regulators in a myriad of disciplinary situations.

21. The Summary of Decisions serves to illustrate that professional tribunals must consider the facts before them in each case and make a determination with respect to penalty based on the particulars of the case before them.

22. At paragraph 66 of the Respondent's Submissions, it is suggested that Mr. El Shurafa's conduct is akin to the false commissioning of an affidavit. The Applicant, ICCRC respectfully disagrees with this position.

23. Mr. El Shurafa did not falsify one document. Rather, he engaged in sustained and repeated dishonest conduct, contrary to law, over a number of years and with respect to several clients.

24. The Applicant ICCRC reiterates that Mr. El Shurafa's conduct most closely parallels that of the lawyers in the cases of The Law Society of Upper Canada v. Steven Michael Mucha ("Mucha") and Bishop v. Law Society of Upper Canada, referred to at paragraphs 52-‐61 of the Applicant's Submissions.

Suspension vs. Revocation 25. The Applicant, ICCRC respectfully submits that revocation, not suspension, is the appropriate

penalty in this matter.



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26. The Respondent has placed significant emphasis on the ICCRC's mandate to protect the public and vulnerable consumers of immigrations services. The Applicant, ICCRC acknowledges that these goals are absolutely central to the ICCRC's mandate. They do not, however, minimize the mandate of the ICCRC to protect the integrity of the immigration system and the public's faith and trust in the profession of RCICs.

27. At paragraph 42 of its Submissions the Respondent acknowledges that Mr. El Shurafa's misconduct is serious, however, also asserts that it is considerably less severe than immigration fraud which harms or exploits consumers or other vulnerable parties and so revocation is not warranted.

28. Contrary to paragraph 81 of the Respondent's Submissions, revocation is not a punishment of last resort and is not a punishment only imposed on those who are at risk of reoffending.

29. Although the conduct of the lawyer in the case of Adams v. Law Society of Alberta, cited in the Applicant's Submissions, was very different from the conduct of the Member in this matter, the Adams case speaks clearly to the principle that revocation is not reserved only for worst case scenarios. As held by the Alberta Court of Appeal in Adams at paragraph 11:

It is therefore erroneous to suggest that in professional disciplinary matters, the range of sanctions may be compared to penal sentences and to suggest that only the most serious misconduct by the most serious offenders warrants disbarment. Indeed, that proposition has been rejected in criminal cases for the same reasons it should be rejected here. It will always be possible to find someone whose circumstances and conduct are more egregious than the case under consideration. Disbarment is but one disciplinary option available from a range of sanctions and as such, it is not reserved for only the very worst conduct engaged in by the very worst lawyers. [Emphasis added]

30. At paragraph 26 of its decision in Mucha, the Appeal Panel of the Law Society of Upper Canada

quoted from the text, Lawyers and Ethics: Professional Responsibility and Discipline, which states:

It would be a mistake, however, to assume that disbarment is a penalty reserved for cases that combine the worst imaginable offence with the worst imaginable offender. In cases involving fraud or theft, in spite of evidence of prior good character and financial or other pressures, lawyers are almost certain to be disbarred.

31. Similarly, revocation of ICCRC Membership is one of the options available to the Discipline

Committee and it is not reserved for only the very worst cases (e.g. human trafficking.) Revocation can and should be used in circumstances where actions are deliberately dishonest, fraudulent, and demonstrate a pattern of conduct which undermines the integrity of, and public confidence in, the profession.

32. Contrary to the Respondent's Submissions, revocation is not a disproportionate and unduly harsh response to Mr. El Shurafa's contraventions of the Code. Rather, revocation is entirely appropriate and proportional in the circumstances of this case, which include sustained, deliberate, dishonest behaviour, directly tied to Mr. El Shurafa's practice as a RCIC and contrary to law.

Conclusion 33. The Applicant, ICCRC submits that revocation of Mr. El Shurafa's Membership is warranted in

the circumstances of this case.



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34. By engaging in a pattern of deliberate dishonesty over a number of years, encouraging others to be dishonest, and acting contrary to law, Mr. El Shurafa's actions bring the profession into disrepute and undermine the integrity of the immigration process as a whole.

VI. Why the Panel Decided That Revocation Was the Appropriate Penalty in This Case

After carefully reviewing the submissions of the Applicant and the Respondent, the panel came to the conclusion that the penalty proposed by the Respondent would be insufficient in this matter. ICCRC is duty bound to protect the public, the integrity of the profession and also that of the immigration system. If members who behave as did the Respondent were allowed to practice in the profession, the public is sure to lose its trust in what the RCICs do. The Alberta Court of Appeal in Adams v. Law Society of Alberta states that the revocation is not reserved only for the worst-‐case scenarios. This is truly emphasized in case of Mucha, the Appeal Panel of the Law Society of Upper Canada. We fully agree with the ICCRC submission that revocation is entirely appropriate and proportional in the circumstances of this case, which included sustained, deliberate, dishonest behaviour, directly tied to Mr. El Shurafa's practice as a RCIC and contrary to law Further when we analyse the current circumstances in the light of the principles explained in n Pottie v. Nova Scotia (Real Estate Commission), which are:

1. requirement to protect the public by the denunciation of unlawful conduct; 2. specific deterrence; 3. general deterrence; 4. rehabilitation; 5. promotion of a sense of responsibility by the offender.

A. A 2 Year Suspension Would be Insufficient Because: Denunciation of unlawful conduct (1): we believe that the most important, although not the only, objective of the ICCRC Code of Professional Ethics is to protect the public by the denunciation of unlawful and unprofessional conduct by ICCRC members. Because of the aggravating factors described in the Applicant’s submissions, a simple suspension will not be seen as appropriate to adequately denounce conduct that was a deliberate and repeated act contrary to law displaying dishonesty over a number of years and with several clients, while encouraging others to be dishonest. Specific deterrence (2): In order to provide specific deterrence for a conduct that brought the Respondent some financial profits, from his honorarium, a two years suspension is not a sufficient length of time in terms of proportionality ensure that the punishment will clearly outweigh the financial profits. Promotion of a sense of responsibility by the offender (5): in order to clearly show to the Respondent his responsibility in a case which is not an isolated incident but a pattern of dishonest behaviour lasting over several years and with respect to a number of different clients, involving employees and colleagues in his dishonest actions, a suspension of two years is not enough.



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B. Revocation Would be the Just Penalty Because General deterrence (3): it will not be achieved by suspension. The panel profoundly disagrees with the Respondent’s argument that since the immigration system is the only victim of his offence, the public was not harmed. As a regulatory body, the main role of ICCRC is public protection by efficient regulation of its members. The definition of «public» is not meant to be limited to members’ clients but also to the general public who must be confident that the integrity of the immigration system is upheld by members of ICCRC. In light of the circumstances of this case, a suspension would not be seen as a sufficient deterrent. Rehabilitation (4): it can be shown by the Respondent in five years’ time by applying again for admission, since we do not order the Respondent to be barred forever. This would be the harshest punishment in this case. The Respondent has been found to commit the same offence five times and has actively and knowingly assisted clients to contravene the law. It is not only a question of protecting the public; safeguarding the law is also of prime importance. The panel feels there is a risk of the Respondent repeating the same behaviour if allowed to return to the profession too soon. This panel of the Discipline Committee directs the Complaints and Professional Standards Administrator to insert each of our electronic signatures at the conclusion of the El Shurafa -‐ Discipline Committee Reasons for Decision March 16, 2015. Discipline Committee Panel Members:

_______________________________ Sylvie Bertrand, Member, Chairperson

_______________________________ Perminder Sidhu, Member

_______________________________ Louis-‐René Gagnon, Public Représentative

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