Her Majesty the Queen v. Aline Zeitoune
Ontario Superior Court of Justice
Between:
Her Majesty the Queen
– and –
Aline Zeitoune
Counsel:
Kathy Nedelkopoulos for the Crown
Glenn Sandberg and Dimitri Trofimoff for Aline Zeitoune
Before: MacDonnell, J.
1On February 20, 2018 the defendant Aline Zeitoune appeared before this court for trial and was arraigned on an indictment charging her with five counts. Count 1 charges that between June 6,2012 and January 31, 2013, at the City of Toronto, the defendant committed a breach of trust in connection with her duties as an official of Passport Canada, contrary to s. 122 of the Criminal Code. The remaining four counts amount to specific examples of the manner in which the Crown alleges that the breach of trust charged in Count 1 occurred.1
2With the consent of the Crown, the defendant re-elected to be tried by a Superior Court judge sitting without a jury and she pleaded not guilty to all five counts. The Crown’s case concluded on March 27, 2018. The defence elected to call no evidence. The final submissions of counsel were heard on March 29, 2018. The defendant is before the court today for judgment.
I. Overview of the Decision
3Throughout the time period covered by the indictment the defendant held a position of employment as a Passport Officer in the department of the Government of Canada formerly known as Passport Canada. As a Passport Officer, the defendant was an “official” within the meaning of ss. 118 and 122 of the Criminal Code. Passport Officers are the front-line officials to whom persons applying for passports present their applications and supporting documents. It is the responsibility of Passport Officers to determine, on behalf of Passport Canada, whether an applicant is entitled to receive a passport. As that determination is ordinarily made at the time the application is presented, Passport Officers play a significant role in protecting the integrity of the Canadian passport system.
4The defendant carried out her duties at the North York Issuing Office of Passport Canada at 4900 Yonge Street in Toronto. A person attending at that Office to apply for a passport in the material time period would first be directed to an area where the application would be pre-screened to ensure that it was complete and that the applicant had brought the necessary supporting documentation. If the application was in order, the applicant would obtain a number from the queuing system, proceed to the waiting area in the main part of the Office, and, when his or her number was reached on an electronic display board, proceed to the counter indicated to have the application processed by a Passport Officer. As there were 17 counters in the North York Office, which Passport Officer would receive any particular application was a matter of chance.
5Moshe Gur is now 58 years of age. He was born in Belarus, USSR. At birth he was named Mikail, or Michael. When he went to live in Israel, in 1972, an immigration officer changed his given name to the Hebrew equivalent – Moshe. He came to Canada in 1987 and became a Canadian citizen. His citizenship card is in the name of Moshe Gur. In 1990 he obtained a Canadian passport in the name of Mike Gur.
6Mr. Gur has pleaded guilty to a number of offences in relation to the fraudulent passport scheme with which the prosecution against the defendant is concerned and he has received a penitentiary sentence of 2½ years, less credit for presentence custody. He was called as a witness for the Crown in this trial. His testimony in relation to his involvement in the offences to which he has pleaded guilty fell short of being full and frank. On the totality of the evidence, however, I have no doubt that from June 2012 to the end of January 2013 he was the central figure in a scheme to enable imposters – people who were not who they were claiming to be – to obtain passports under false identities. Pursuant to that scheme as many as 24 fraudulent applications were submitted to the North York Issuing Office. In each case the application was processed by the defendant, in each case she determined that the applicant was entitled to a passport, and in all but two cases Passport Canada issued a passport to the imposter.
7Gur charged each of the persons who submitted a fraudulent application as part of the scheme as much as $15,000 for his help. The assistance he provided included directing those persons to individuals who could arrange for the production of counterfeit Citizenship Certificates and Health Cards. Crucially, it also included ensuring that the applicants could circumvent the prescreening and queuing system at the North York Issuing Office and proceed directly to the defendant’s counter for the entitlement decision.
8Mr. Gur had known the defendant’s ex-husband for many years, and he knew that she was a Passport Officer in the North York Office. In the spring of 2012 Gur called the defendant and arranged a meeting at which he proposed having a ‘friend’ bypass the prescreening and queuing system and come directly to her. She agreed to the proposal and provided Gur with a time when the friend should come. On multiple occasions between June 2012 and the end of January 2013 Gur made the same request with respect to other applicants and on each occasion the defendant agreed to permit the applicant to come directly to her. In each case she provided Gur with the time when the applicant should attend. Almost all of the appointments were over the lunch hour, eighteen of them between noon and 12:30 p.m.
9Pursuant to his agreement with the defendant, Gur instructed his ‘clients’ to bypass the prescreening and queuing system by entering the waiting area through a side door and taking a seat directly in front of the defendant’s counter. Within moments, the defendant would permit the client to come forward with his or her application. From time to time during his testimony, Gur insisted that the only benefit that he was providing for his $15,000 fee was the ability to avoid waiting in line. His evidence in that respect beggars belief and I reject it. He also said that he believed that avoiding a wait in the queue was the only service that the defendant was providing and that he believed that she was otherwise dealing with the applications in the normal fashion. I reject his evidence that he believed those things. The only reasonable inference is that he wanted the applications to come before the defendant because he believed that, unlike other Passport Officers, she would not reject them.
10The fact that Gur believed this does not mean that it was true. Even if it were true, it would not necessarily follow that it was because the defendant was a knowing participant in the scheme. Whether she was a knowing participant can only be answered after considering all of the circumstances. In that respect, I regard the following circumstances, considered cumulatively and as a whole, to be of particular significance:
(i) Each of the 24 applications in issue was a fraudulent application in that it was made by or behalf of an applicant who was not who he or she claimed to be.
(ii) Each of the 24 fraudulent applications was received and processed by the defendant.
(iii) The defendant permitted the applicants referred to her by Gur – at least 22 of the 24 applications – to circumvent the prescreening and queuing system so that she could deal personally with them.
(iv) In each case, the defendant made the determination, on behalf of Passport Canada, that the applicant was entitled to a passport.
(v) One of the 24 applications, for a passport in the name of Michael Bengor, was presented to her by Gur. The defendant knew that Michael Bengor was not Mr. Gur’s name, that the documentation he was providing in support of the application was not genuine, and that Mr. Gur’s claim to be Michael Bengor was false. Nonetheless, she made a determination on behalf of Passport Canada that “Michael Bengor” was entitled to a passport.
(vi) On as many as 16 occasions after entitling Mr. Gur to receive a passport under the false identity of Michael Bengor, the defendant enabled applicants referred to her by Gur to circumvent the prescreening and queuing system so that she could deal personally with their applications and in each case she determined that the applicant was entitled to a passport.
(vii) Notwithstanding that Passport Canada’s policy mandated that guarantor verifications be conducted with respect to many of the 24 applications and recommended that they be done with respect to many others, the defendant did not conduct a guarantor verification in relation to any of them.
(viii) While she never conducted a guarantor verification, on six occasions the defendant opened a guarantor’s records in the Central Index. In doing that, the defendant was in violation of a clear Passport Canada directive that information in relation to a guarantor not be obtained from the Central Index. Obtaining a guarantor’s records from the Central Index would not assist in verifying the guarantee provided by a guarantor, but it could assist in ensuring that another Passport Officer would not subsequently attempt to contact the guarantor and discover that the applicant was an imposter.
(ix) With respect to the application in relation to “Guy Emsalem”, the defendant made the following entry in the electronic Passport Canada record (the ESRF): “Application submitted by applicant. Supporting ID seen”. That entry was false and the defendant knew that it was false.
(x) Pursuant to Passport Canada policy, the only persons authorized to submit an in person passport application are the applicant, the applicant’s spouse, a child or parent of the applicant or the applicant’s spouse, or a relative living at the same address as the applicant. In light of the false assertion that Mr. Emsalem applied in person, I infer that the defendant knew that the person presenting the application was not someone who was authorized to do so.
(xi) On December 6, 2012 fraudulent applications were presented to the defendant in the names of “Jian Wang” and “Han Liang”. One person presented both applications. However, the defendant made a note in both of the ESRFs relating to these applications that the applicant had applied in person and that “supporting ID was seen.” Those entries were necessarily false with respect to at least one of the two applications and the defendant knew that they were false.
(xii) As with the Emsalem application, I infer from the false assertion that both Wang and Liang applied in person and identified themselves that the defendant knew, at least with respect to one of the applications, that it was being presented by someone not authorized to do so.
(xiii) The defendant was unconcerned with obvious deficiencies in the completeness of the information submitted in the 24 applications in issue.
(xiv) On two occasions, both of which were while the scheme was ongoing, Gur provided the defendant, whom he claimed not to know well, with ‘a couple of thousand dollars’ at her request.
11None of those circumstances, standing alone, establishes that the defendant was a knowing participant in Gur’s scheme to enable imposters to obtain genuine Canadian passports. It is trite to say that the proper approach to circumstantial evidence is to consider the circumstances as a whole, not piecemeal. At the end of the day, however, the only reasonable inference to be drawn from the circumstantial evidence, considered in the context of the evidence as a whole, must be that the defendant was a knowing participant in the scheme. That is, I must be satisfied that the only reasonable inference is that when the defendant made the decisions on behalf of Passport Canada that the persons referred to her by Gur were entitled to passports she knew that those persons were not who they claimed to be, that they were imposters. In my opinion, when the circumstantial evidence is considered as a whole, that is the only reasonable inference. I am satisfied beyond a reasonable doubt that it was not a coincidence that all of the fraudulent applications that Gur facilitated came to the defendant’s counter to be processed. She was not Gur’s innocent agent. She acted with full knowledge of the nature of his scheme.
12The defendant’s knowing participation in the scheme to enable imposters to receive genuine Canadian passports was a clear, serious and marked breach of the duties imposed upon her by the terms of her office as a Passport Officer. Entitling imposters to receive passports is the complete antithesis of what a Passport Officer is entrusted to do. The Crown has proved the defendant’s guilt on the charge of breach of trust beyond a reasonable doubt and the defendant is found guilty on that count.
13As I have said, the remaining four counts constitute specific examples of the manner in which the Crown alleges that the defendant breached her trust as a Passport Officer. Those counts charge the defendant with (i) procuring to be made passports that purport to relate to other persons, contrary to s. 56.1 of the Criminal Code (Count 2); (ii) forging passports in different names, contrary to s. 57(1) (Count 9); (iii) making false written statements for the purpose of procuring passports, contrary to s. 57(2) (Count 10); and (iv) making forged passports available knowing or believing that that the forged passports will be used, contrary to s. 368(1)(c) (Count 11).
14In my opinion, the Crown has proved the elements of the offences charged in each of those additional four counts and the defendant is found guilty on each of those counts.
II. The Evidence
(a) The Context
15As of the time period with which this case is concerned, the defendant had been employed by Passport Canada in its North York Issuing Office for 24 years. Over the course of her career, she had moved through the ranks to hold the position of Passport Officer. Passport Officers are the front-line officials to whom persons applying for passports present their applications and supporting documents. It is the responsibility of Passport Officers to determine, on behalf of Passport Canada, whether an applicant is entitled to receive a passport. As that determination is ordinarily made at the counter at the time the application is presented, Passport Officers play a significant role in protecting the integrity of the Canadian passport system..
16To obtain a passport, an applicant is required to submit a form that provides Passport Canada with personal information, including a complete name, any former surname, date and place of birth, a physical description, a home address, a mailing address, telephone numbers and two photos. In addition, the applicant must provide proof of identity. The guarantee of identity provided by possession of a passport is fundamental to any passport system. Accordingly, authentication of the applicant’s identity – that the applicant is who he says he is – is at the core of the Passport Officer’s responsibility in making the entitlement determination. To prove identity, the applicant must provide at least one piece of government-issued identification. As a further measure to authenticate identity, an applicant must also provide a guarantor and two references. Both the guarantor and the references must have known the applicant for at least two years. A guarantor is required to hold a valid Canadian passport and must certify that the photos submitted with the application are those of the applicant.
17The applicant must also provide proof of Canadian citizenship because of s. 4(2) of the Canadian Passport Order, SI 81-86, which provides that “no passport shall be issued to a person who is not a Canadian citizen.” Normally, an applicant will establish citizenship by way of either a birth certificate or a citizenship certificate.
18Before making a decision as to entitlement, the Passport Officer “examines and verifies data, documentary evidence and photos, interviews applicants and makes entitlement decisions…based on the information received and through the use and interpretation of policies and procedures”. He or she “establishes the identity of the applicant by examining, analyzing and validating the acceptability and authenticity of documentary evidence of citizenship and supplementary identification”, “determines the eligibility of guarantors and references and makes reference/guarantor checks to confirm the identity of the applicant”, “determines the authenticity of signatures and the information on the form and the photograph”, and “refers misleading or fraudulent information to internal security personnel.”2
19Passport Canada provides Passport Officers with continuing education to ensure that the Officers are kept abreast of the policies and safeguards to protect the integrity of the passport system. Over the years the defendant had participated in that training.
20The North York Issuing Office had 17 counters at which applicants could present their applications. Upon arrival at the main entrance, an applicant would be directed into a prescreening area to ensure that the forms had been properly completed and that the applicant had brought the requisite supporting documentation. If the application appeared to be in order, the applicant would be issued a number from the queuing system and take a seat in the waiting area. When an applicant’s number was reached, an electronic display would direct him or her to the counter of whichever Passport Officer had become available. Thus, whether an applicant came before one Passport Officer or another was ultimately a matter of chance.
21In addition to the main entrance to the North York Issuing Office, there was a second door that would afford entry into the waiting area. Because a person entering through the second door would bypass the prescreening process and the queuing system, it was not meant to be used by persons coming to the Office to apply for passports. It was located at the far end of the Office, past the 17 counters. To get to this door, a person would have head away from the main entrance and into a hallway leading to the area designated for passport pickup.
22The defendant performed her duties as a Passport Officer at counter 4, at the end of the Office furthest away from the main entrance but almost directly across from the second door.
23The charges before the court concern 24 applications for passports that were processed through the North York Issuing Office between June 6, 2012 and January 23, 2013. Each application purported to be from a first-time applicant. All but three purported to be from persons who were born outside of Canada but who had subsequently acquired Canadian citizenship. In every case, including the three in which the applicant claimed to have been born in Canada, the proof of citizenship provided was a certificate of citizenship. It was conceded by the defence that none of those certificates was genuine. Further, it was specifically admitted that with respect to all 24 applications the identity under which the applicant applied was not the applicant’s true identity. That is, it was admitted that each of the 24 applicants was an imposter and that each of the 24 applications was fraudulent.
24There is no dispute that all 24 applications came before the defendant at counter 4 and that in each case she made the decision on behalf of Passport Canada that the applicant was entitled to receive a passport. There is also no dispute that in 22 of the cases, a genuine Canadian passport was in fact issued to the imposter applicant.3
(b) Moshe Gur
25Moshe Gur is 58 years of age. He was born in Belarus, USSR. At birth he was named Mikail, or Michael. When he went to live in Israel, in 1972, an immigration officer changed his name to the Hebrew equivalent – Moshe. He came to Canada in 1987, became a Canadian citizen, and in 1990 obtained a Canadian passport in the name of Mike Gur. His citizenship card is in the name of Moshe Gur. He has pleaded guilty to a number of offences in relation to the fraudulent passport scheme with which the prosecution against the defendant is concerned and he has received a penitentiary sentence. He was called as a Crown witness in this trial, and he testified about the scheme and about the role that the defendant played in the scheme.
26There are reasons to be concerned about the credibility of Mr. Gur. Even before acquiring the criminal convictions arising out the case at bar he had a criminal record that included convictions in Canada for offences of dishonesty. He had also been convicted in the United States of fraud in relation to money he owed to a casino. He was vague as to the penalty for the latter offence, but the conviction resulted in his deportation from the United States.4 Further, he was not only involved in the scheme alleged by the Crown, he was the instigator of it. Common sense suggests that after finding himself arrested and charged he may have had an interest in implicating others. In addition, his testimony here fell short of a full and frank account of his own involvement in the scheme or a true acceptance of responsibility for what he did.
27In the circumstances, reliance on his testimony carries with it significant dangers. I acknowledge that before acting on his testimony to support the Crown’s case, and in particular before acting on it to link the defendant to the scheme, I should be satisfied that there is evidence independent of him that confirms what he has said.
28I am satisfied that there is a substantial amount of such evidence. For example, Gur testified that the defendant agreed to allow persons to bypass the prescreening and queuing systems and to come directly to her counter. The CCTV recordings, which are available for the last 10 of the 24 applications, provide substantial confirmation for his evidence in that respect. Further, he testified that the defendant insisted on lunch hour appointments for the clients he was assisting. Passport Canada’s Service Request Processing (SRP) logs show that the defendant processed 20 of the 24 applications between noon and 1:00 p.m.
29Some of the evidence that Gur provided about the defendant is of assistance to her in her defence. He testified that the only thing that she agreed to do was to allow persons associated with him to avoid the lineup at the Passport Office, and that there was never an agreement that she would do anything else to facilitate the entitlement process. Evidence from Gur that assists the defendant should not be approached on the basis that reliance on it would be dangerous. With respect to that evidence the question is simply whether it gives rise to a reasonable doubt concerning the defendant’s guilt.
30The Crown takes issue with Gur’s testimony that the only thing that the defendant did to assist him was to allow certain applicants to bypass the queuing system and to come directly to her counter. The Crown’s position is that the defendant was knowingly involved in enabling imposters to obtain passports. However, I do not understand the Crown to allege that the defendant had any involvement with the applicants prior to their appearance at her counter, or that she was involved in the preparation of the application forms or the obtaining of the counterfeit documents supporting the applications.
(c) the scheme
31There is no dispute that throughout the time period covered by the indictment Gur was assisting imposters to obtain Canadian passports, and that one of the things he was doing in that respect was steering them to the defendant’s counter. His account of how he came to be assisting the imposters, what assistance he was providing and how many persons he assisted was often confusing, self-serving, internally inconsistent and at odds with the documentary evidence and electronic records.
32He testified that from conversations he had within his community in North Toronto he was aware that it was possible to obtain Canadian citizenship certificates and Ontario Health Cards “on the street”, albeit for a fairly steep fee. In his testimony, he occasionally feigned uncertainty as to whether documents obtained in that manner were genuine but there can be no reasonable doubt that he was well aware that one does not acquire genuine documents of that kind in that manner.
33Mr. Gur was also aware that there were individuals who were facing difficulties in obtaining Canadian passports. By the middle of 2012, he had hit upon a way to use his knowledge of the availability of counterfeit citizenship certificates and Health Cards to assist those individuals – for a hefty fee.
34Mr. Gur initially testified that his interaction with the defendant began in the context of his desire to obtain a passport for himself under the name of Michael Bengor. He testified that he wanted to change his surname from Gur to Bengor to honor his father, who was quite ill at the time. He said that he was not sure how to change his name legally and that he contacted the defendant for advice. He said that he had met her ex-husband 15 or 20 years previously but that he barely knew her. He did know, however, that she worked in the North York Passport Office and that she processed applications. He said that they met in a parking lot near the Passport Office and that she told him that obtaining a passport in the name of Michael Bengor would be a ‘regular’ procedure, that all he would have to do is bring two pieces of identification in the name of Bengor.
35While it is not clear whether he did it before or after his conversation with the defendant, Gur obtained both a certificate of citizenship and an Ontario Health Card in the name of Michael Bengor. He obtained the certificate of citizenship from someone he only knew as Trevor. He gave Trevor two photographs and a few days later Trevor produced the certificate. The Health Card was provided by a person named Kevin Ramsay, who worked at Service Ontario. Gur understood Trevor and Ramsay to be associated with each other in the business of producing identity cards. He paid Trevor and Kevin several thousand dollars for these documents.
36In his conversation with the defendant, Gur had asked if he could come directly to her counter at the Passport Office. She said that this would be difficult in light of the queuing system. He asked whether he could see her directly if he came at lunchtime and she said that he could and she gave him a time. On the appointed day, he arrived at the office and went directly to counter 4. He said that he presented the defendant with an application, a certificate of citizenship and a Health Card, all in the name of Michael Bengor, and paid the fee. The defendant determined that the application was in order and that Michael Bengor was entitled to a passport.
37At points in his testimony Gur appeared to be saying that it was after he had made the application for the Michael Bengor passport that he began to enlist the defendant’s assistance is having other persons come directly to her counter, bypassing the prescreening and queuing procedures. However, the SRL logs make it clear that by the time Gur presented the Bengor application, on August 22, 2012, he had been bringing imposters to her counter for more than two months.
38On June 15, two months prior to making the Bengor application, he had come to the defendant to renew his own passport in his own name of Mike Gur. At some points, he suggested that it was after this interaction that he asked if others could also bypass the normal procedure and come directly to her. That alternative version of the origin of the defendant’s involvement in the scheme was also not true because at the time he attended at counter 4 to apply for his renewal he was accompanied by Evgeni Eliash, who was applying for a passport in the name of Evgeni Rubin. Both he and Eliash had bypassed the prescreening and queuing system and had come directly to the defendant’s counter pursuant to an agreement with the defendant. Clearly, the arrangement to have Gur’s clients bypass the normal procedure was already in place.
39In any event, once the arrangement had been agreed to, Gur would call the defendant whenever he had someone whose application was ready to be submitted and she would give him an approximate time for the person to come to her counter. He said that he never told her that he was being paid by the applicants, that she never asked him for anything in return for her assistance, and that he never gave her anything for it. He did agree, however, that on two occasions, both of which were after the Michael Bengor application, he gave her money at her request. On one of those two occasions she had called him from a casino. On the other she said she needed money for her daughter’s education. He said that on both occasions he gave her a ‘couple of thousand’. In his mind, the money was not a quid pro quo for her services.
40Gur acknowledged that he was charging each person he assisted as much as $15,000. While, again, his evidence was not always consistent, he claimed that the only benefit that he was providing was the ability to avoid waiting in line at the Passport Office. He said that he never suggested to any applicant that if they went to counter 4 they could get a passport without the required documentation. He said that he assumed that the documentation that the applicants provided was legal. He said that, in his mind, it was up to the defendant to decide if the documents were genuine and that what happened at the counter was none of his business.
41On its face, Gur’s insistence that applicants were paying a fee of $15,000 simply to avoid having to wait in line strains credulity. In any event, however, his claim that this was the only service he was providing is contradicted by his own testimony:
(i) he agreed that he assisted Evgeni Eliash, who applied for a passport under the name of Evgeni Rubin, by introducing him to Trevor and to Kevin Ramsay for the purpose of obtaining a certificate of citizenship and a Health Card. I have no doubt that he knew that government documents obtained in this manner – ‘on the street’, as he described it – were going to be counterfeit.
(ii) he agreed that he probably filled out the application for Eliash, and that the address that he listed for “Evgeni Rubin” was a false address;
(iii) he agreed that he accompanied Eliash to the defendant’s counter with the Rubin application and that he paid the fee for the Rubin passport;
(iv) he agreed that he assisted Sirnivas Gottiparthi to obtain a passport in the name of “Sushanth Goud” by acting as Goud’s guarantor and that he falsely claimed to have known Goud for seven years;
(v) he assisted Moshe Aviv to obtain a passport in the name of Mike Benaviv by acting as his guarantor, by filling out the application form, and by inserting false information with respect to Benaviv’s address and employment;
(vi) he testified that he was aware that the certificate of citizenship and Health Card that were used to support the Benaviv application were supplied by Trevor and Kevin Ramsy, and thus he knew that those documents were counterfeit;
(vii) he testified that he assisted Krestian Garo to obtain a passport by referring him to Trevor or Kevin Ramsay to obtain the supporting documentation;
(viii) he agreed that in addition to completing parts of the applications submitted for passports in the names of Rubin and Benaviv, supra, he did the same for those in the names of Irena Romanova, Enca Shalca and Guy Emsalem.
42I have no doubt that Gur was doing much more than steering his clients past the lineup at the Passport Office. He was at the center of a scheme to enable imposters to obtain genuine Canadian passports and he was actively involved in the preparation and presentation of the applications submitted in the names of the imposters.
(d) the extent of the scheme
43There is no dispute that the defendant was the Passport Officer who made the entitlement decision with respect to all 24 of the passport applications with which this case is concerned. What is less clear is whether all 24 came before the defendant pursuant to Gur’s scheme.
44Gur agreed that he was involved to one extent or another in 14 of the applications. They were the applications in the following names:
(i) Evgeni Rubin (June 15, 2012)
(ii) Sushanth Goud (June 19)
(iii) Mike Benaviv (June 22)
(iv) Luis Moyano (July 25)
(v) Michael Bengor (August 22)
(vi) Wayne Miller (September 20)
(vii) Andy Anderson (September 27)
(viii) Irena Romanova (October 19)
(ix) Enca Shalca (October 28)
(x) Guy Emsalem (November 14)
(xi) Krestian Garo (December 4)
(xii) Jian Wang (December 6)
(xiii) Desire Dubounet (December 7)
(xiv) Daniel Duan (January 23, 2013)
45Sirnivas Gottiparthi testified that in addition to those 14 applications Gur was involved with a 15th, in the name of Yang Wang, on November 14.
46There is no direct evidence that Gur arranged for the remaining 9 applications to come before the defendant. However, the circumstantial evidence establishes at least 7 were also part of the scheme:
(i) Xiaopeng Zheng (December 5)
On the basis of the CCTV recordings and the testimony of Sirnivas Gottiparthi, I conclude that this applicant bypassed the prescreening and queuing systems and entered the the waiting room by way of the second door in the same manner as Gur’s other clients. He only had to wait about a minute before being able to approach counter 4 at which point the defendant began to process his application. His guarantor was said to be Yang Wang. Yang Wang was an imposter whom Gur had assisted to obtain a passport about three weeks earlier.
(ii) Han Wen Liang (December 6)
The Liang application was processed by the defendant at the same time as the Jian Wang application. Both applications were presented to the defendant by the same person. Gur testified that the applicant for a passport in the name of Jian Wang was one of the person for whom he made arrangements with the defendant to bypass the prescreening and queuing procedure.
(iii) Arthus Gjika (November 20)
The CCTV recordings show that the person who applied for a passport in the name of Gjika bypassed the prescreening and queuing procedure by entering through the second door, that he took a seat in front of counter 4 in the same manner as Gur’s clients, and that he arrived at 12:15 p.m. in the middle of the narrow time frame within which 18 of the 24 fraudulent applications were processed by the defendant. The applicant approached counter 4 less than 90 seconds after he arrived in the waiting area, and he presented the same kind of counterfeit documents as did the rest of Gur’s clients.
(iv) Jeremy Keyes (December 19)
The CCTV recordings show that the person who applied for a passport in the name of Keyes also entered by the second door and bypassed the prescreening and queuing procedure, and that he arrived at 12:17 p.m., within the same narrow time frame as the bulk of the other fraudulent applicants. He approached the defendant’s counter 34 seconds after he arrived and he presented the same kind of counterfeit documents as did the rest of Gur’s clients. Further, his guarantor was said to be Wayne Miller, who was one of the imposters whom Gur had assisted to fraudulently obtain a passport.
(v) Ryan Nguyen (June 6)
There is no CCTV recording of who made the application for a passport in the name of Nguyen, However, the evidence shows that the defendant improperly accessed the Central Index to bring up the records Ruby Zack, who was said to be Nguyen’s guarantor, and that she modified Zack’s date of birth as set forth in the application to correspond with what was in the Central Index. The effect of this was to avoid a guarantor check, which would have revealed that the purported guarantor did not in fact know the applicant, that she had not agreed to be a guarantor, and that the application was fraudulent. More significantly, after a passport was issued to Nguyen his name was put forward as the guarantor for the Yang Wang application, which is an application that Gur facilitated.
(vi) Rui Hui Yeung (July 16)
There is no CCTV recording of who made the application for a passport in the name of Yeung. Unlike the situation with the Ryan Nguyen application there is no evidence that the guarantor was an imposter. Further, it appears that Yeung attended at counter 4 at 2:20 p.m., outside of the time frame within which almost all of Gur’s clients were scheduled. However, there are aspects of the way Yeung’s application form was completed that are similar to the way application forms that Gur did assist with were completed. For example, a certificate of citizenship was incorrectly listed as an identification document. Further, the Health Card was described as a “Helth” card, which is the same spelling mistake made on the Bengor, Romanova, Shalca, Emsalem, Jian Wang and Dubounnet applications, all of which were submitted by persons Gur assisted. In addition, the handwriting with respect to “Helth” is distinctive and appears to be the same as on the other applications.
(vii) Andrew James (October 3)
There is no CCTV recording of who made the application for a passport in the name of James. The application was supported by the same two counterfeit documents as almost all of the other fraudulent applications, and it was processed at 12:33 p.m. The guarantor, Rafael Gil, was a real person but Mr. Gil did not know James and had not agreed to be guarantor. More importantly, Mr. Gil’s name had also been forged as a guarantor onto the application for a passport in the name of Andy Anderson a week earlier, which was an application Gur assisted with.
47In the end, I am satisfied that 22 of the 24 applications with which this case is concerned came before the defendant pursuant to the scheme that had been instigated by Gur to enable imposters to obtain genuine Canadian posters. I am further satisfied that with respect to each of those 22, the defendant agreed to permit the applicants to bypass the normal prescreening and queuing system so that she could deal personally with them.
48The two remaining applications, in the names of David Chan and Sasha Vujacic, which were entitled on August 20 and October 11 respectively, have some similarities to some of the other 22 but the similarities fall short of satisfying me that they too were part of Gur’s scheme.
(e) Was the defendant aware that the applications were fraudulent?
49Gur testified that he believed that allowing his clients to avoid a lineup was the only service that the defendant was providing and that she was otherwise dealing with the applications in the normal fashion. I reject his evidence in that respect. The only reasonable inference is that he wanted the fraudulent applications to come before the defendant because he believed that unlike other Passport Officers she would not reject them.
50The fact that Gur believed this does not mean that it was true. Even if it were true, it would not necessarily lead to a conclusion that she was a knowing participant in his fraudulent scheme. The question of whether she was such a participant can only be answered after considering all of the circumstances in the case. In the Overview with which I began these reasons I listed 14 circumstances that are of particular significance in relation to that question.
(i) the defendant’s involvement in each of the 22 applications that were part of the scheme
51It is conceded that all 24 of the applications in issue – and in particular the 22 that I am satisfied were part of Gur’s scheme – were received, processed and determined to be in order by the defendant at counter 4 in the North York Issuing Office.
(ii) the fraudulent nature of the applications
52It is conceded that each of the 24 applications was fraudulent in that the identities under which the applicants applied were not their true identities.
53In order to obtain a passport, an applicant must provide at least one piece of Government issued identification. In relation to almost every application, what was provided was an Ontario Health Card An applicant must also provide “documentary evidence of citizenship”, commonly referred to as a DEC. With respect to each of the 24 applications the DEC was a certificate of citizenship. Passport Officers do not retain the originals or make copies of DECs or other identification documents.
54Gur’s evidence was that Kevin Ramsay, the person who was making Health Cards available on the street, was in fact an employee of Service Ontario. Thus, it seems likely that the Health Cards that the imposters presented in support of their applications were genuine, albeit fraudulently obtained. In that light, there is no basis to think that there was anything about the appearance of the Health Cards that would have alerted a Passport Officer to a concern.
55Claude Arbez, a former Assistant Director, Citizenship Program Delivery, Immigration, Refugees and Citizenship Canada, inquired into the validity of the citizenship certificates referred to in the 24 applications in this case. In addition to his testimony, the Crown relied on the affidavit evidence of Julie Perron, Caroline Lemieux, Jean Rene Bourgeois and Mourod Zahri from Citizenship and Immigration Canada. The substance of the evidence is that none of the citizenship certificates were genuine. For one thing, the Citizenship and Immigration Canada records show that a citizenship certificate had never been issued in the name of any of the 24 applicants. Further, the serial numbers on 18 of the 24 certificates had never been assigned to a genuine certificate. The serial numbers on 4 of the remaining 6 certificates had been assigned to genuine certificates but those certificates had never actually been issued. The remaining two serial numbers had also been assigned to genuine certificates and those two certificates had been issued, but they had been not been issued to any of the persons who were applying to the defendant for passports. In short, every DEC presented in support of the applications in this case was counterfeit.
56The Crown notes that it is the responsibility of Passport Officers to carefully examine the DECs to ensure that the documents are genuine. Throughout the latter half of the time period within which the scheme was ongoing Passport Officers were also required to subject DECs presented by first time applicants to what was known as “random enhanced document screening” or “REDS”. The enhanced screening included examining the features of the DEC under a magnifying glass and ultraviolet light. Passport Officers were required to make a note in the electronic record confirming that the enhanced screening had been done.
57There were methods by which a Passport Officer could make inquiries into the validity of the serial numbers of certificates of citizenship, but they were not required to routinely make those inquiries and none of them could have provided an immediate at-the-counter and definitive determination of validity. Each Passport Officer also had what is known as a “DEC book”, which provided information in relation to the serial numbers that had been issued for genuine certificates of citizenship, but that information was incomplete. If the DEC book had been consulted in this case, it would only have revealed a problem with respect to five of the 24 DECS.
58The failure of the defendant to reject any of the counterfeit DECs is relied upon by the Crown as evidence of the defendant’s knowing participation in the scheme. The Crown submits that a proper screening of the DECs would have made it obvious that the DECs were counterfeit. The Crown also points out that the defendant failed to make a note in the record that the enhanced screening had been done in relation to a number of the applications that were processed after the duty to employ enhanced screening came into effect.
59I am not persuaded that it should have been obvious to the defendant that the certificates tendered by the applicants were counterfeit. The only certificate that was produced in evidence was that in the name of Sasha Vujacic. Mr. Arbez pointed to a number of features of this document that, he testified, should have alerted the defendant to the fact that it was counterfeit. However, in the absence of a genuine certificate with which to compare it, I am not able to make a meaningful assessment of how obvious it should have been that the Vujacic document was not genuine. For example, Mr. Arbez said that the wrong font was used, but without seeing a genuine certificate I am unable to determine whether the difference is subtle or patent. Further, because none of the other 23 DECs is in evidence, I have no basis for making a determination about the quality of the counterfeiting in relation to them.
60I am also not persuaded that much can be taken from the fact that after the requirement for enhanced screening came into effect for all first time applicants, the defendant did not, as required, make a note in the electronic record indicating that the screening had been done. Bearing in mind that the DECs were being returned to the applicants, one might have thought that if the defendant were engaged in a scheme to entitle imposters she would have simply made a note that the screening had been done. I would also note that there is no evidence as to whether applications that were not part of Gur’s scheme were dealt with differently in this respect from those that were part of the scheme.
(iii) the defendant entitled each applicant
61It is undisputed that in the course of processing each of the 24 applications the defendant made a determination, on behalf of Passport Canada, that the applicant was entitled to a passport.
(iv) the defendant permitted Gur’s applicants to circumvent the normal procedure
62As I have said, I am satisfied that at least 22 of the 24 applications came before the defendant pursuant to Gur’s scheme to enable imposters to obtain genuine Canadian passports. I am further satisfied that with respect to each of those 22 applications, the defendant permitted the applicants to bypass the normal prescreening and queuing system so that they could be dealt with by her.
63I come to that conclusion in part on the basis of the testimony of Mr. Gur concerning the role that the defendant played in expediting the applications of the persons he was assisting. I also rely on the CCTV recordings showing the arrival in the waiting area of the persons who presented the last 10 of the 24 applications. The recordings show that all ten bypassed the prescreening and queuing systems and proceeded directly to the defendant’s counter within moments of their arrival.
64Further, 20 of the 24 applications were presented to the defendant between noon and one p.m. and 18 of them were presented between noon and 12:30 p.m. That is of significance in light of Gur’s evidence that the defendant scheduled the appointments for the people who were bypassing the queue over the lunch hour.
(v) the entitling of the application in the name of Michael Bengor
65Gur testified that at some point in 2012 he decided that he wanted to change his name from Mike Gur to Michael Bengor in honor of his father, who was quite ill at the time. I would note, however, that Gur liked to gamble in casinos in the United States, that he had recently been deported from the United States, and that a passport under a fresh identity could have assisted him in overcoming that inconvenience.
66Gur testified that he had a conversation with the defendant about changing his name legally and getting a passport in his new name. He said that she told him that it was a simple procedure, that he just had to apply with two pieces of identification. I do not believe Gur’s evidence about that conversation. There is no dispute, however, that on August 22, 2012 the defendant processed an application presented to her by Gur for a passport in the name of Michael Bengor and that she entitled Gur to receive a passport in that name. I am satisfied beyond a reasonable doubt that when the defendant did that she knew that she was entitling an imposter. I come to that conclusion in light of the following circumstances:
(a) The defendant knew Gur. She may not have known him well prior to early June 2012, when she began to permit him and his clients to bypass the prescreening and queuing system, but as of August 22, when she entitled the Michael Bengor application, she had been dealing with him for several months. She had processed his passport renewal in the name of Mike Gur on June 15 and at the same time, at his request, she had processed the application of the person claiming to be Evgeni Rubin. Subsequent to June 15 but before August 22 she processed four more applications that Gur had asked her to facilitate – those in relation Sushanth Goud, Mike Benaviv, Luis Moyano and Run Hui Yeung. The evidence of Sirnivas Gottiparthi – who was masquerading as Sushanth Goud – was that Gur was physically present with him at the defendant’s counter when the Goud application was presented. He said that he and Gur actually had to go to the counter on two different days, and that on both occasions Gur did all the talking. Further, Gur’s credit card was used to pay for the applications of both Rubin and Benaviv.
(b) Section 1 of the application form for the Michael Bengor passport contains a space in which to indicate the applicant’s surname at birth. In that space Gur had printed “Bengor”. More significantly, immediately adjacent to that space was a space for “Former Surname (former last name)”. Gur had left that space blank. In light of the circumstances set forth in paragraph (a), supra, the defendant had to have known that Gur was seeking a passport under a false identity.
(c) Section 3 of the application form asks if the applicant has a valid Canadian passport. Gur had checked the box indicating “No”. That was untrue in that he had renewed his Canadian passport two months earlier, on June 15, and the defendant had been the Passport Officer who processed that renewal. In light of their ongoing relationship over the two months between June 15 and the submission of the Michael Bengor application, the defendant had to have known that Gur was assuming a false identity.
(d) The application was said to be supported by a certificate of Canadian citizenship in the name of Michael Bengor that had been issued in 2004. The defendant had to know that such a certificate could not be genuine, in that Gur had a passport in the name of Gur. If she had looked at the DEC book she would have seen that the certificate number was not a valid number.
67Whatever may have been Gur’s motive for wanting a passport under an assumed identity, the defendant knew that Gur was deliberately deceiving Passport Canada and that this was a fraudulent application.
(vi) entitling subsequent applications
68On as many as 16 occasions after entitling Gur to receive a passport under the identity of Michael Bengor, the defendant allowed applicants referred to her by Gur to circumvent the prescreening and queuing system so that she could deal personally with their applications. She determined that each of those applicants was entitled to a passport under their purported identities.
(vii) the absence of guarantor verifications
69Every first-time applicant for a passport is required to have a guarantor. Passport Canada “uses the guarantor as a security measure…to support the authentication of the identity and the entitlement of the applicant.”5
70To be a guarantor, a person must hold a valid Canadian passport or a Canadian passport that has been expired for no more than a year. This ensures that the guarantor is someone who is already in the Central Index of Passport Canada’s computer system. When an applicant appears in person to make an application, the Passport Officer is required to enter into the records the guarantor’s name, date of birth and passport number. The correctness of the information provided in that regard could be confirmed by going to the Central Index, but for privacy reasons Passport Officers are prohibited from doing that. Overnight, however, Passport Canada’s computer system runs a program to determine whether the information entered by the Passport Officer about the guarantor matches what is in the Central Index. If a discrepancy is found a Guarantor Validity and Eligibility Report (a GVE report) will be generated and the following morning management in the Issuing Office will be notified of the discrepancy so that further steps can be taken. Those steps might include a guarantor verification. A guarantor verification involves contacting the guarantor and asking questions.
71Although a Passport Officer is not permitted to access a guarantor’s information in the Central Index, if the Officer has concerns about the guarantee provided by the guarantor he or she may, and in some cases must, conduct a guarantor verification. The evidence of Maria Marchetta, a senior official with Passport Canada, is that pursuant to Passport Canada policies guarantor verifications were mandatory with respect to many of the 24 applications and that verifications were recommended in many others. Each time a guarantor verification is done, the Passport Officer is required to add a remark to the file indicating what information was confirmed. No such remark was made in relation to any of the applications in this case, which supports an inference that the defendant made no attempt to verify the purported guarantor’s guarantee in any of them.
(viii) improperly accessing the Central Index
72Significantly, while the defendant did not conduct any of the verifications Passport Canada either required or recommended, the SRP logs show that contrary to the clear rule described above, she opened the files of the purported guarantors in the Central Index while processing six of the applications: those brought in the names of Ryan Nguyen, Evgeni Rubin, Michael Bengor, Irena Romanova, Krestian Garo and Jeremy Keyes.
73The Central Index could confirm details about the guarantor, such as name, date of birth and passport number, but it could not confirm whether the guarantor actually knew the applicant, whether the guarantor actually signed the guarantor’s declaration, or whether any of the information provided in the application about the applicant was correct. That is, the Central Index could not verify the substance of the guarantee provided by the guarantor. In that respect, the Central Index was not a substitute for a guarantor verification.
74In the circumstances, one might ask what would have led the defendant to pull up a guarantor’s records in the Central Index. There is no direct evidence on the point, but if any of the information about the guarantor that she entered into the system was in conflict with the information in the Central Index, the overnight GVE report would flag the inconsistency, the Issuing Office would be notified, and a guarantor verification might be triggered. In other words, confirming the accuracy of the information provided about the guarantor made it less likely that someone from Passport Canada would make inquiries of the purported guarantor. In a case where the guarantor was guaranteeing an imposter, this was of some benefit to the imposter.
(ix) making a false entry in the Emsalem ESRF
75There were a number of CCTV cameras in various places within the North York Issuing Office. One of those cameras – CCTV channel #4 – was in the ceiling above the front of counters 1 and 2. It was directed into the waiting area in front of counters 1 to 6. Most of the waiting area, but not the counters themselves, was within its field of view. As applicants left their seats in the waiting area to approach a counter, they would disappear from view to the left. A second CCTV camera – CCTV Channel #1 – was located in the pickup area. It captured images of persons walking along the back hallway leading to the second door into the waiting room. Gur testified that his clients used that second door to bypass the prescreening and queuing system.
76By the time that the investigators attempted to obtain the CCTV recordings only those from the last few months of the time period covered by the allegations were available. What was presented in evidence, therefore, were the recordings made immediately before, during and after the defendant processed the last 10 of the 24 applications, beginning with the Guy Emsalem application on November 14 and ending with the Daniel Duan application on January 23.
77With respect to each of those 10 applications, the position of the Crown is that the recordings capture the arrival of the person who presented the application, the approach of the person to counter 4, and the departure of the person after the application was processed. Mr. Maclean, the chief investigator in this matter, expressed an opinion that the persons seen in the recordings were the persons who presented the applications. As I made clear on several occasions during the trial, Mr. MacLean’s opinion as to who the persons in the recordings are and his conclusion as to what counter they went to is not admissible. He is in no better position than the court to make those determinations.
78I have closely reviewed the CCTV recordings with the assistance of the diagram showing the layout of the North York Issuing Office and the location of the CCTV cameras. Because the camera described as CCTV channel #4 was located directly above the front of counters 1 and 2, anyone approaching those two counters would walk directly under the camera. As none of the persons in question did this, I conclude that none of them were going to counters 1 or 2. Further, based on the configuration of the waiting area in relation to counters 5 and 6, I conclude that they were not walking in the direction of either of those two counters.
79By process of elimination, therefore, I conclude that all of the persons in question were walking in the direction of counters 3 and 4. Those two counters are right beside each other. A person standing in front of one would be virtually shoulder to shoulder with a person standing in front of the other. The CCTV recordings, by themselves, cannot establish which one the persons in question approached.
80In addition to the CCTV recordings, however, there is circumstantial evidence. No one other than the persons in question appears to approach counters 3 and 4 in the time frame covered by the recordings, and within a minute or so after each of the persons moved toward the counters the electronic records show that the defendant opened and began processing an in-person passport application at counter 4. In addition, each of the persons had entered the waiting area by way of the second door, bypassing the prescreening and queuing system, following the procedure that the defendant and Gur had put in place for the processing of Gur’s clients. Further, all ten of these applications were processed between noon and 1:00 p.m. – nine of them between 12:06 and 12:26 p.m. – which is consistent with Gur’s evidence that the defendant wanted Gur’s clients to come to her over the lunch hour.
81Based on the totality of the evidence, I am satisfied that the persons who the Crown alleges are shown in the CCTV footage to be approaching counter 4 were in fact approaching counter 4. I am also satisfied that they were the persons who presented the applications that the defendant began processing almost immediately after the approaches.
82Moving from the general to the specific, I am satisfied that the CCTV recordings from November 14 showing the person who the Crown alleges presented the application for a passport in the name of Guy Emsalem does in fact show the person who presented that application.
83In the electronic record created for the processing of the Emsalem application the defendant recorded: “Application submitted by applicant. Supporting ID seen.” The Emsalem application form indicated that the applicant was a male. It indicated that his current hair color was brown. The photograph that accompanied the application depicts what appears to be a male with short dark hair. Although first names are not a strong indicator of gender, Guy is usually a male’s name. The CCTV recording, however, shows that the application was submitted by someone who appears to be a woman with long blonde hair and who bears no resemblance to the person described and depicted in the Emsalem application. I am satisfied that that entries the defendant made in the electronic record that the application was presented “by applicant” and that “supporting ID seen” were false and that the defendant knew that they were false.
(x) permitting an ineligible person to present the Emsalem application
84Pursuant to Passport Canada policy, the only persons authorized to submit a passport application in person are the applicant, the applicant’s spouse, a child or parent of the applicant or the applicant’s spouse, or a relative living at the same address as the applicant.6 In light of the false entry that the defendant made that Guy Emsalem had applied in person, I infer that the woman who presented his application was not someone who was eligible to do so and that the defendant knew that she was not eligible to do so.
(xi) making a false entry or entries in the electronic record re the Jian Wang and Han Liang applications
85The electronic records created by the defendant show that on December 6, 2012 between 12:16 and 12:27 p.m. the defendant processed both the application for a passport in the name of Jian Wang and the application for a passport in the name of Han Liang. She opened the Wang ESRF at 12:16; at 12:19 she closed it and opened the Liang ESRF. The CCTV recordings show that there was only one person, a woman, at the defendant’s counter throughout the time when those applications were being processed. The woman had arrived alone at about 12:10 p.m., she approached counter 4 at 12:13, and she left the counter at 12:21. The inescapable inference is that she had presented both applications. However, in both of the ESRFs the defendant recorded: “Application submitted by applicant. Supporting ID seen.” In light of the fact that one person presented both applications, this entry was necessarily false with respect to at least one of the applications and the defendant had to have known that it was false.
(xii) permitting an ineligible person to present the Jian Wang and Han Liang applications
86In light of the false entry that the defendant made with respect to who presented one or the other (or both) of the Wang and Liang applications, I infer that the person who presented at least one of the applications was not someone who was eligible to do so and that the defendant knew that she was not eligible to do so.
(xiii) the facial deficiency of the applications
87Maria Marchetta, a senior official with Passport Canada, testified about the policies and procedures to which Passport Officers are required to adhere when processing applications and making decisions as to entitlement. In the course of Ms Marchetta’s evidence, Crown counsel had her review, one at a time, each of the 24 applications in question and asked her to comment on any deficiencies apparent on the face of the applications. There were a considerable number of those deficiencies.
88Ms Marchetta’s testimony went a long toward establishing that the defendant’s approach to her duties was somewhat careless. The issue before the court, of course, is not how well the defendant would score on a performance review but whether the manner in which she processed the applications supports an inference that was assisting Gur in a scheme to obtain passports for persons not entitled to them.
89It is unnecessary to slog through each of the applications to point out the deficiencies noted by Ms. Marchetta. Some of them struck me as more important than others. On the more important side, I have already noted her evidence that pursuant to Passport Canada policies guarantor verifications were mandatory with respect to many of the applications and recommended with respect to many others, that each time a guarantor verification is done a remark must be added to the file, and that no such remark was made in relation to any of these applications. Other deficiencies, such as the failure include “Toronto” in the address of the applicant’s place of employment, or to indicate the expected date of travel, seemed to me to shed very little light on the issues with which this case is concerned. Indeed, as many of the deficiencies could have been easily fixed at the counter,7 one might have thought that if the defendant were engaged in a fraudulent scheme she would have taken steps to have the deficiencies corrected so as to head off any questions.
90As I understood it, the Crown’s submission is that the defendant did not properly review these applications because they were part of Gur’s scheme and her goal was to get them entitled regardless of their deficiencies. That submission assumes that it can be inferred not only that the defendant failed to adhere to Passport Canada’s policies and procedures in reviewing these applications but that in failing to do that she treated them differently from applications that were not part of the scheme. Can it be said, for example, that she normally required the applicant to indicate the province that issued the Health Cards? Are there other applications where the province in which Toronto is located is not indicated? Are there other applications where the applicant’s mother’s maiden name is missing? Are there other applications where the location of the applicant’s employer is incomplete, or the length of employment is missing? Are there other applications where changes have been made but not initialed? Was REDS being conducted for other first-time applicants after September 6, 2012 but not these ones? Was the defendant noting those checks in the Remarks section? There is no evidence one way or the other with respect to any of those questions.
91That is not to say that the failure to properly review many of those applications is irrelevant. The fact that the defendant’s performance fell below the standard that is expected of a Passport Officer is a factor to be placed on the scales with all of the other circumstances, but in the absence of evidence that the defendant treated these applications differently the weight of this circumstance is attenuated.
(xiv) money Gur provided to the defendant
92According to Mr. Gur, he never gave defendant anything in return for her agreement to permit his clients to bypass the prescreening and queuing procedure and come directly to her. He testified, however, that on two occasions she asked him for money. On one of those occasions she told him that she needed money for her daughter’s education because her ex-husband was not paying child support. On the other occasion she called him from a casino, apparently in need of money to gamble. On both occasions, he testified, he gave her a ‘couple of thousand’. It appears that her requests for money were made after she had started accommodating his clients, but the substance of his evidence was that she was not seeking the money as a quid pro quo for her assistance. He said that she never asked to be paid for assisting him
(f) Conclusions
93None of the circumstances discussed above, standing alone, establishes that the defendant was a knowing participant in a scheme to enable imposters to obtain genuine Canadian passports. The proper approach to circumstantial evidence, however, is to consider the circumstances as a whole, not piecemeal. The cumulative impact of a collection of circumstances, considered together, will often be quite different from the impact of any one of those circumstances considered in isolation. At the end of the day, the only reasonable inference to be drawn from the circumstantial evidence, considered in the context of the evidence as a whole, must be that the defendant is guilty.
94What that means, in the case at bar, is that I must be satisfied that the only reasonable inference is that when the defendant made the decisions on behalf of Passport Canada that the persons referred to her by Gur were entitled to passports she knew that those persons were not who they claimed to be, that they were imposters. In my opinion, when the circumstantial evidence is considered as a whole, that is the only reasonable inference. I am satisfied beyond a reasonable doubt that it was not a coincidence that all of the fraudulent applications that Gur was facilitating came to counter 4 to be processed by the defendant. The defendant was not Gur’s innocent agent. She acted with full knowledge of the nature of his scheme.
III. The Charges
(a) the charge of breach of trust
95The first count with which the defendant is charged alleges that she, “sometime between and including the 6th day of June in the year 2012 and the 31st of January in the year 2013, at the City of Toronto … did commit a Breach of Trust in connection with the duties of Aline Zeitoune, an official of Passport Canada, contrary to s. 122 of the Criminal Code.”
96In R. v. Boulanger, 2006 SCC 32, at paragraph 58, Chief Justice McLachlin summarized the elements of the offence set forth in s. 122. To establish the actus reus of the offence, the Crown must prove beyond a reasonable doubt:
(i) that the defendant was an official;
(ii) that the defendant was acting in connection with the duties of her office;
(iii) that the defendant breached the standard of responsibility and conduct demanded by the nature of the office; and
(iv) the conduct of the defendant represented a serious and marked departure from the standards expected of an individual in the defendant’s position of public trust.
97To establish the mens rea, Chief Justice McLachlin held, the Crown must prove that the defendant acted with the intention to use her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.
(i) was the defendant an official?
98For the purposes of s. 122, s. 118 defines an “official” as a person who holds an office or is appointed or elected to discharge a public duty. An “office” is defined to include an office or appointment under the government or a position or an employment in a public department. Throughout the time period covered by the indictment the defendant held a position of employment as a Passport Officer in the department of the Government of Canada formerly known as Passport Canada. Accordingly, the defendant was an “official” within the meaning of ss. 118 and 122 of the Criminal Code.
(ii) was the defendant acting in connection with the duties of her office?
99The Canadian passport system plays a key role in maintaining national and international security and Passport Officers have significant responsibility for the integrity of that system. They are the front-line officials to whom persons applying for passports present their applications and supporting documents. Authenticating the identity of applicants is a core component of a Passport Officer’s duties.8
100In carrying out his or her duties, a Passport Officer “examines and verifies data, documentary evidence and photos, interviews applicants and makes entitlement decisions…based on the information received and through the use and interpretation of policies and procedures”. He or she “establishes the identity of the applicant by examining, analyzing and validating the acceptability and authenticity of documentary evidence of citizenship and supplementary identification”, “determines the eligibility of guarantors and references and makes reference/guarantor checks to confirm the identity of the applicant”, “determines the authenticity of signatures and the information on the form and the photograph”, and “refers misleading or fraudulent information to internal security personnel.”9 After reviewing the application and the supporting documentation, it is the responsibility of the Passport Officer to make the determination, on behalf of Passport Canada, of whether the applicant is entitled to receive a passport.
101There is no dispute that the defendant was acting in connection with the duties of her office when she determined that the persons applying for passports in the 24 applications in issue were entitled to receive passports.
(iii) did the defendant breach the standard of responsibility and conduct demanded by the nature of her office?
102Authenticating the identity of applicants is a core component of a Passport Officer’s responsibility. Entitling applicants to receive passports under identities other than their own is a breach of that responsibility. Accordingly, the defendant breached the standard of responsibility and conduct demanded by the nature of her office as a Passport Officer.
(iv) was the defendant’s breach a serious and marked departure from the standards expected of an individual in the defendant’s position of public trust?
103In Boulanger, Chief Justice McLachlin noted that perfection has never been the standard for criminal culpability in relation to the offence of breach of trust by a public official, and that mistakes and errors in judgment have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required: “The conduct at issue, in addition to being carried out with the requisite mens rea, must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour.” The offence requires "conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder."10
104Entitling applicants to receive passports under identities other than their own is a fundamental breach of a core component of the duties of a Passport Officer. It is far beyond a mere mistake or an error in judgment. It constitutes a serious and marked departure from the standard of conduct expected of a Passport Officer.
(v) did the defendant act with the intention to use her office as a Passport Officer for a purpose other than the public good?
105In Boulanger, Chief Justice McLachin stated:
In principle, the mens rea of the offence lies in the intention to use one's public office for purposes other than the benefit of the public. In practice, this has been associated historically with using one's public office for a dishonest, partial, corrupt or oppressive purpose, each of which embodies the non-public purpose with which the offence is concerned.11
106The precise motivation that led the defendant to breach the trust reposed in her as a Passport Officer is somewhat uncertain, but the intention with which she acted is clear. I have no doubt that throughout the material time period she intended to use her position to assist Gur to carry out a scheme to obtain passports for individuals not entitled to receive them. That was a corrupt, partial and dishonest use of her office. It was manifestly a use that was for a purpose other than the public good.
(vi) conclusion re the count of breach of trust
107The Crown has proved each of the essential elements of the offence of breach of trust beyond a reasonable doubt, and the defendant is found guilty of that offence.
108As I stated at the outset, the remaining four counts upon which the defendant was arraigned constitute specific examples of the manner in which the Crown alleges that the defendant committed the breach of trust charged in the first count. They add nothing to the defendant’s culpability. However, the Crown has insisted on receiving verdicts with respect to each of them. As Justice Doherty noted in Rowe, a trial judge has no authority to override the Crown’s insistence in that respect, and accordingly I will address those additional counts
(b) the charge of breaching s. 56.1(1)
109The defendant is charged that “sometime between and including the 6th day of June in the year 2012 and the 31st day of January in the year 2013…[she] did procure to be made identity documents, to wit: Canadian passports that purport to relate to other persons, contrary to s. 56.1(1) of the Criminal Code.”
110Throughout the material time frame, Gur was engaged in a scheme to assist his clients to obtain passports in names other than their true names. In relation to each application, Gur committed, as a principal, the offence of procuring to be made an identity document that purported to relate to another person, i.e., to a person other than the holder of the identity document.
111For the reasons set forth earlier, I am satisfied beyond a reasonable doubt that the defendant was fully aware of the nature of the scheme, and specifically that she knew that it involved procuring passports that purport to relate to other persons. She used her position as a Passport Officer to assist Gur in carrying out the scheme. She intended to assist him and she did assist him. The Crown has proved beyond a reasonable doubt that pursuant to s. 21(1)(b) of the Criminal Code she was a party to the offence under s. 56.1(1).
(c) the charge of forgery contrary to s. 57(1)
112The defendant is further charged that “sometime between and including the 6th day of June in the year 2012 and the 31st day of January in the year 2013…[she] did knowingly forge passports in different names, contrary to s. 57(1) of the Criminal Code…”
113A person commits forgery when she makes a false document, knowing it to be false, with intent that it should be acted upon as genuine: s. 366(1) of the Criminal Code. A document can be “false” in a number of ways, but for present purposes it is sufficient to say that pursuant to s. 321 a document that is false in some material particular is a false document, and that a document that is false in reference to the very purpose for which it was created is false in a material particular: R. v. Gaysek, [1971] S.C.R. 888. A passport that falsely states the identity of the person to whom the passport was issued is clearly false with reference to the very purpose for which it was created and it is therefore a false document. In the case at bar, the evidence establishes that 22 passports were issued in the names of imposters. Each of them was a false document. A person who makes such a document knowing that it is false is engaged in forging a passport.
114The defendant did not make any of the 22 passports in the sense of personally manufacturing them. Her role was to determine whether the applications should proceed to the stage where other employees of Passport Canada would produce them. There is no suggestion that any of those other employees had any knowledge that the passports were being issued in the names of imposters.
115The defendant was fully aware that by entitling the applicants referred to her by Gur she was playing an instrumental role in the making of the passports. In playing that role she became a party to the offence of forgery notwithstanding that she did not personally make the passports. It is true that she could not be a party on the basis of aiding or abetting the Passport Canada employees who actually produced the passports, because they committed no offence. She is liable as a principal, however, on the basis of the doctrine of innocent agency.
116The facts of the case at bar closely parallel those of R. v. Berryman (1990), 57 C.C.C. (3d) 375 (B.C.C.A.). The defendant in that case, like the defendant in the case at bar, was a Passport Officer. On two occasions, she accepted applications for passports knowing that the persons from whom they were received were not the applicants and that the information provided, including the declarations of the purported guarantors, was false. On the face of each application she falsely stated in writing that the applicant had produced proof of citizenship and identification. The applications then proceeded along the line to another employee, M.V., who produced the passports. M.V. was unaware of the fraudulent nature of the applications.
117The trial judge had no difficulty concluding that the defendant had deliberately made false statements in order to bring about the production and issuance of the two passports. However, he held that the defendant could not be found guilty of an offence under s. 57(1). He reasoned that the defendant could not be liable as a principal because she did not “make” the false passports. Further she could not be a party to the making of the passports by M.V. because M.V. was unaware of the fraudulent nature of the applications and had committed no offence.
118In the opinion of the British Columbia Court of Appeal, the trial judge erred. Relying on the common law doctrine of innocent agency, Wood J.A. concluded:
It follows that while the learned trial judge was right in his conclusion that the respondent could not be convicted as an aider or an abettor, because [M.V.] committed no forgery, it was nonetheless open to him to convict the respondent as a principal in the first degree, under s. 21(1)(a) of the Code. Thus, in concluding that the respondent could not be convicted of forging the passports, because those passports were made by an innocent agent, the learned trial judge was in error.12
119The reasoning of the British Columbia Court of Appeal is applicable to the case at bar. The defendant knew that by entitling the fraudulent applications she was permitting the applications to proceed to the stage where other employees would innocently produce forged documents. The Crown has proved the elements of this offence beyond a reasonable doubt.
(d) the charge of making false statements contrary to s. 57(2)
120The defendant is further charged that “sometime between and including the 6th day of June in the year 2012 and the 31st day of January in the year 2013, [she] did for the purpose of procuring passports in different names, make written statements that she knew were false, contrary to s. 57(2) of the Criminal Code…”
121The words “in different names” are surplusage in that it is sufficient to constitute an offence under s. 57(2) that a defendant makes a written statement that she knows is false for the purpose of obtaining a passport for any person. Earlier in these reasons I explained why I am satisfied that the defendant made false statements in the remarks section of the electronic record for the Emsalem application and in the remarks section of the record for either the Jian Wang or the Han Liang applications. I also explained why I am satisfied that the defendant knew that those statements were false. The purpose for which the defendant made the false statements was manifestly to assist those individuals to obtain passports. The Crown has proved the elements of this offence beyond a reasonable doubt.
(e) the charge of making a forged passport available contrary to s. 368(1)(c)
122The defendant is further charged that “sometime between and including the 6th day of June in the year 2012 and the 31st day of January in the year 2013, knowing or believing documents were forged, [she] did make the documents available knowing or believing that an offence will be committed under s. 368(1), to wit: using a forged Canadian passport, contrary to s. 368(1)(a) of the Criminal Code...”
123The object of the scheme engaged in by Gur and facilitated by the defendant was to make forged passports available to imposters. The evidence establishes that 22 forged passports were made available pursuant to the scheme. I have no doubt that the defendant believed that the imposters would use the forged passports as if they were genuine. Using a forged document as genuine is an offence contrary to s. 368(1)(a) of the Criminal Code. The issue with respect to this count is whether the defendant made the passports available.
124The defendant did not make the forged passports available in the sense of physically distributing them to the imposters, but she played an instrumental role in the process by which they were made available. As with the charge of forgery, discussed above, she and Gur used the Passport Canada employees who produced and distributed the forged passports as innocent agents. The defendant’s intention in entitling the fraudulent applications, and the actual effect of entitling them, was to cause Passport Canada to make available forged passports. The elements of this charge have been proved beyond a reasonable doubt.
IV. Disposition
125For the foregoing reasons, the defendant is found guilty of each of the five counts before the court.
MacDonnell, J.
Released: May 28, 2018
Footnotes
- After the evidence was completed, Crown counsel was invited to consider whether it was necessary to seek verdicts on these four counts in that they add nothing to the alleged culpability of the defendant that was captured under count 1. In R. v. Rowe, 2011 ONCA 753, [2011] O.J. No. 5382 (C.A.), at paragraph 58, Doherty J.A. stated that “Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whether multiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to have determined by the jury”. While Rowe was a jury case, the concerns underlying Justice Doherty’s comments apply as well to cases tried without juries, albeit to a lesser extent. Requiring judges to embark on potentially complicated legal analyses with their attendant potential for error in relation to charges that add nothing to the central allegations against a defendant is not apt to advance the goals of the proper administration of justice, and in a post-Jordan era it is an expensive endeavor. Crown counsel, however, declined the invitation to focus the case and insisted on verdicts on all five counts. Justice Doherty noted in Rowe that “subject to the judge's power to order severance, and assuming there is an evidentiary basis for the allegation in each count in the indictment, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict.” Accordingly all five counts will be addressed in these reasons.
- See Exhibit 14, Tab 1
- Subsequent to the defendant’s determination that the persons purporting to be Michael Bengor and Andy Anderson were entitled to passports but before the passports were actually issued, Passport Canada’s facial recognition system determined that the photographs submitted with the Bengor and Anderson applications matched the photographs of persons who had passports in other names.
- It is not unreasonable to suspect that this may have had something to do with his attempt to obtain a passport in the name of Michael Bengor in 2012.
- Passport Manual, Exhibit 22, Policy 1110
- Exhibit 22, Policy 216
- See Exhibit 22, Policy 240, which would permit amendments to be made and initialed by the applicant at the counter.
- Passport Canada’s Code of Conduct, Exhibit 14, under Tab 3, page 1
- See Exhibit 14, Tab 1
- At paragraph 52
- At paragraph 56
- At page 386