Court File and Parties

Ontario Court of Justice

Date: 2018-07-13

Court File No.: Brampton 17-12935

Between:

Her Majesty the Queen

— and —

Robert Chisholm

Before: Justice M.M. Rahman

Heard: May 28, 29, 30, 31 and June 1, 2018

Reasons for Judgment released on: July 13, 2018

Counsel:

Somboun Tsai — counsel for the Crown

Ashley Dresser — for the defendant Robert Chisholm

Reasons for Judgment

RAHMAN J.:

1. Overview

[1] The defendant, Robert Chisholm, faced two charges under section 126 of the Immigration and Refugee Protection Act (IRPA). That section makes it illegal to counsel, or aid or abet, someone to misrepresent relevant facts that could induce an error in the administration of the Act.

[2] There is no issue that Mr. Chisholm helped Tremaine Callender and Shomer (Shai) Busby come to Canada from Barbados. Mr. Chisholm bought Mr. Callender's plane ticket and suggested that Mr. Callender tell Canadian authorities that he (Mr. Chisholm) was a "good family friend." Mr. Chisholm also bought Ms Busby's ticket to Canada, travelled with her from Barbados, and told Ms Busby to tell authorities that he was her uncle or a good family friend. Mr. Chisholm was neither a good family friend nor an uncle to either Mr. Callender or Ms Busby.

[3] Both Mr. Callender and Ms Busby made refugee claims the day they arrived in Canada. Both have since succeeded in becoming convention refugees.

[4] After the Crown closed its case, Mr. Chisholm moved for a directed verdict. He argued that there was insufficient evidence for a properly instructed jury to find that anything he had done could have induced an error in the administration of the Act. He said that any misrepresentation that he may have counselled Mr. Callender or Ms Busby to make would have had no impact on their admissibility into Canada. Further he said that arranging for Mr. Callender's travel to Canada did not aid and abet a misrepresentation because the booking of the ticket is not connected to any misrepresentation.

[5] The Crown argued that the evidence supported a number of different paths to liability.

[6] First, the Crown relied on Mr. Chisholm having counselled Mr. Callender and Ms Busby to misrepresent material facts. The Crown said that Mr. Chisholm counselled both Mr. Callender and Ms Busby to misrepresent their relationship to him and that misrepresentation could have induced an error in the administration of the Act. Further, the Crown alleged that Mr. Chisholm counselled Mr. Callender by advising Mr. Callender to obtain two letters to support his refugee claim.

[7] Alternatively, the Crown argued that Mr. Chisholm aided or abetted Mr. Callender to misrepresent material facts. The Crown said that the combination of counselling him to misrepresent their relationship and advising him to obtain two letters of support, encouraged and promoted a crime to be committed. Finally, the Crown argued that buying Mr. Callender's ticket to Canada assisted Mr. Callender in misrepresenting his initial, stated purpose to come to Canada as a visitor.

[8] On July 3, 2018, I granted the directed verdict motion and dismissed the charges against Mr. Chisholm with written reasons to follow. These are those reasons.

2. Counselling Callender and Busby to Misrepresent their Relationship

2.1.1. The Misrepresentation

[9] Mr. Chisholm told both Mr. Callender and Ms Busby to misrepresent their relationship with him.

[10] In a text message exchange, Mr. Chisholm suggested to Mr. Callender that he refer to Mr. Chisholm as a "good family friend" upon arrival in Canada. Mr. Chisholm said this in response to Mr. Callender saying that he was trying to decide whether to say he was a "family friend" or a "friend." Although Mr. Chisholm takes some issue whether his suggestion amounts to counselling, I find that it could fall within the definition of counselling, even though it was not originally his idea. Mr. Chisholm clearly suggested to Mr. Callender to say that he was a "good family friend."

[11] Ms Busby testified that Mr. Chisholm told her that she should refer to him as her uncle, or as a good family friend, upon arrival in Canada. The defence takes no issue that, by saying this, Mr. Chisholm counselled Ms Busby.

2.2. Parties' Positions

[12] The Crown argued that misrepresenting the relationship could have induced an error in the administration of IRPA. Crown counsel, Mr. Tsai, based his argument on CBSA Officer Michael Blaszkiewicz's evidence. Mr. Tsai relied on the officer's evidence that he would have admitted someone as a visitor if he or she was visiting and staying with a good family friend or an uncle, but that he would have refused that person entry had he known other facts, including that the person had only met the person with whom they were staying once (or on the day they were travelling); that the person did not buy the ticket and was in difficult financial circumstances in their home country; and that the visitor did not purchase his or her own ticket.

[13] Mr. Tsai also relied on Federal Court cases that have interpreted s. 40 of IRPA, which also contains the phrase "could induce an error in the administration of the Act." Those authorities have held that the provision's purpose is to deter misrepresentation and maintain the integrity of the immigration process. The Federal Court has also held that a visa applicant has a duty of candour to provide complete, honest, and truthful information in every manner when entering Canada, and that s. 40 is aimed at promoting that duty.

[14] Ms Dresser, on behalf of Mr. Chisholm, argued that the nature of the relationship between Mr. Chisholm and Mr. Callender and Ms Busby would have made no difference in their admissibility in Canada. She argued that this misrepresentation could not have induced an error in the administration of the Act because this fact was immaterial to both travellers' admissibility into Canada. Neither visitors nor refugee claimants need to know somebody in Canada, let alone know someone who is a relative or a good family friend.

[15] Ms Dresser also argued that there is insufficient evidence of Mr. Chisholm's intention to induce an error in the administration of the Act because, by suggesting Ms Busby misrepresent him as her uncle, Mr. Chisholm would be having her state a deeper connection to Canada, which could make it less likely that she would leave within the time period.

2.3. Analysis

[16] I agree with Ms Dresser that the evidence falls short of allowing a properly instructed jury to find Mr. Chisholm committed the offence by counselling Mr. Callender and Ms Busby to misrepresent their relationship. In short, I find that there is no evidence that the misrepresentation that Mr. Chisholm counselled could have induced an error in the administration of the Act. I say that for the following reasons.

[17] First, the phrase "error in the administration of the Act" implies more than just affecting an individual officer's judgment call about whether someone is or is not admissible, or whether that person has met their burden of establishing admissibility. Rather, the use of the word "error" means that the misrepresentation could bring about an incorrect result. In response to questions by the court, Officer Blaszkiewicz said that if a fellow border officer had allowed someone to enter the country without asking these questions, that traveller's entry would not result in an error in the administration of the Act. That is because one need not have either a friend or a relative in Canada to be admissible as a visitor, or to make a refugee claim.

[18] Section 126 does not punish any misrepresentation. It only criminalizes misrepresentations that have a consequence, or potential consequence. The consequence is an error, or a misapplication of the Act. Had Parliament wished to criminalize every misrepresentation, or all misrepresentations that would obstruct an inquiry, it could have done so. For example, s. 153 of the Customs Act makes it an offence "to make, or participate in, assent to or acquiesce in the making of, false or deceptive statements in a statement or answer made orally or in writing pursuant to this Act or the regulations." That provision requires no consequence in making the false statement.

[19] I cannot accept Mr. Tsai's submission that the Federal Court cases interpreting s. 40 of IRPA support the Crown's position. While those cases appear to take a broad view of misrepresentations that could induce errors in the administration of the Act, they do not support an interpretation of s. 126 that would criminalize inconsequential errors. In this case, the Crown's own evidence established that whether someone has a friend or relative in Canada is immaterial to their admissibility as a visitor and in any event would not affect their admissibility as a visitor. That is because Officer Blaszkiewicz's evidence does not support the Crown's submission that misrepresenting the relationship could have induced an error in the administration of the Act.

[20] Officer Blaszkiewicz did not testify that merely changing the nature of one's relationship from friend, to either uncle or good family friend, would have changed his determination of someone's admissibility as a visitor. Rather, Officer Blaszkiewicz said that only a number of other factors – including the traveler's precarious financial status – would have been "prejudicial information" that might have led him to deny entry to the traveler. Officer Blaszkiewicz did not say that the difference between simply being a friend and a good family friend would necessarily have caused him to question whether an applicant was a legitimate visitor. Rather, the scenario put to him by Crown counsel included a number of other factors, including that somebody else had paid for the visitor's plane ticket and that the visitor was in financially difficult circumstances. Mr. Chisholm did not counsel either Mr. Callender or Ms Busby to misrepresent or withhold this information.

[21] I cannot accept the Crown's submission, based on the Federal Court's s. 40 cases, that there need not be any specific evidence about how the misrepresentation would have affected an official's exercise of discretion. The Federal Court cases are administrative law cases involving judicial review of decisions made by immigration officials. They must be read in that context. In a criminal case, where the Crown alleges that the misrepresentation could have induced an error because it would have affected an official's exercise of discretion (as opposed to a misrepresentation that would induce an error as a matter of law), the Crown must adduce some evidence capable of supporting that inference. As I have said, in this case, there is none.

[22] I am fortified in my conclusion that the misrepresentations here could not have induced an error in the administration of the Act because the reported cases of prosecutions under this provision involve the kinds of misrepresentations that would have allowed inadmissible people to enter Canada, or allowed people to be admitted as a particular class of resident for which they were not qualified. I have not been able to find any prosecutions under s. 126 that involved inconsequential misrepresentations.

2.3.1. Counselling Mr. Callender to Obtain Two Letters

[23] The Crown relied on this theory of liability in its written submissions. It is unclear to me how telling Mr. Callender to obtain two letters to support his refugee claim was in any way counselling Mr. Callender to misrepresent or withhold any facts. Mr. Chisholm did not tell Mr. Callender to obtain fraudulent letters. Nor is there any evidence before me that relying on letters could induce an error in the administration of the Act. In fact, I have no evidence before me at all that such letters are even necessary or part of the refugee process.

3. Aiding and Abetting

3.1. The Alleged Conduct

[24] In addition to the counselling conduct described above, Mr. Chisholm paid for Mr. Callender's travel from Barbados to Canada using a type of travel pass available to him as an Air Canada employee.

3.2. Parties' Positions

[25] Mr. Tsai argued that by telling Mr. Callender to tell authorities he was a good family friend, and suggesting he obtain two letters, Mr. Chisholm was abetting Mr. Callender by encouraging him to commit a crime. Mr. Tsai also argued that Mr. Chisholm aided a misrepresentation by arranging Mr. Callender's travel to Canada knowing that he was going to file a refugee claim. Mr. Tsai argued that, because Mr. Chisholm knew that Mr. Callender presented himself as a visitor before landing in Canada, he aided in a misrepresentation.

[26] Ms Dresser said that Mr. Chisholm's conduct did not aid and abet the misrepresentation. She argued that, although Mr. Chisholm's conduct might be captured by s. 117 of IRPA, it did not aid Mr. Callender to misrepresent himself as a visitor.

3.3. Analysis

[27] I cannot accept the Crown's submission on either of these theories of liability.

[28] First, I fail to see how Mr. Chisholm telling Mr. Callender to say he was a good family friend and suggesting he get two letters, encouraged a misrepresentation that would induce an error. This submission by the Crown is simply a recycled version of its counselling argument. It fails for the same reason. There was no connection between the misrepresentation and an error in the administration of the Act.

[29] Second, I agree with Ms Dresser that Mr. Chisholm buying Mr. Callender a plane ticket did not aid a misrepresentation. I say that because the act of buying the ticket did not assist Mr. Callender in a misrepresentation. There is no evidence that Mr. Chisholm had to identify Mr. Callender as a visitor to Canada to use his employee pass to fly Mr. Callender to Canada. Moreover, the mere fact that Mr. Chisholm gave Ms Busby the flight information when she was completing Mr. Callender's electronic travel authorization does not mean he aided in any misrepresentation. There is no evidence that Mr. Chisholm knew what such a travel authorization was, or that it required Mr. Callender to declare that he was entering Canada as a visitor.

[30] In any event, even if Mr. Chisholm knew what the electronic travel authorization involved, he had already purchased Mr. Callender's ticket. Therefore the act that the Crown is alleging aided the misrepresentation (the purchase of the ticket) was already complete. At that point, although there had been discussion of Mr. Callender making a refugee claim, Mr. Callender had planned to come as a visitor. When Mr. Chisholm bought the ticket he was buying it for Mr. Callender to come as a visitor. He could not have had the mens rea to assist Mr. Callender misrepresent his reason for entering Canada.

4. Conclusion

[31] The Crown failed to adduce sufficient evidence to permit a properly instructed jury to find Mr. Chisholm guilty of committing an offence under s. 126 of IRPA in relation to either Mr. Callender or Ms Busby. Therefore, the charges against him must be dismissed.

Released: July 13, 2018

Justice M.M. Rahman

Footnotes

[1] The parties also filed further, written submissions on June 5 (Crown) and June 11 (Defence).

[2] The Crown advanced slightly different variations of these theories in oral and written submissions. Because the written submissions were filed after oral submissions, and because the Crown added one path to liability in written submissions, I am addressing only the theories of liability described in writing.

[3] The Crown advanced the theory of liability about the letters only in written submissions.

[4] See Immigration and Refugee Protection Act Regulations (SOR/2002-227) s. 179.

[5] The French version of s. 126 uses the phrase "une erreur dans l'application de la présente loi," meaning either the application, or enforcement, of the Act. The shared meaning of the English and French versions therefore implies something more than mere administrative errors.

[6] Though Federal Court cases are not binding, they are persuasive authority especially because they routinely interpret provisions of the IRPA.

[7] See for example, Godburdhun v. Canada (Citizenship and Immigration), 2013 FC 971; Wang v. Canada (Minister of Citizenship and Immigration), 2018 FC 368.

[8] The following cases are representative of reported cases of prosecutions under s. 126: R. v. Eustaquio, 2018 ABPC 55 (the offender said that her niece worked for her so the niece would qualify for entry as a live-in caregiver); R. v. Large, 2015 BCSC 1238 (offender instructed a woman who was coming to work as an au pair to say she was only coming for a holiday); R. v. Lazaro, 2016 ONCJ 676 (offender worked as an immigration consultant and had her clients unwittingly submit false information to authorities for the purpose of being admitted as live-in caregivers); R. v. Ajayi, 2013 ONCJ 747 (offender provided a false passport number to a foreign national to help her obtain citizenship).