COURT FILE NO.: CR 721/21 DATE: 2022 02 23
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Vanita Goela, for the Crown
- and -
SUHAIB MUSTAFA Steven Tress, for the accused
HEARD: February 7, 8, 9, 2022
REASONS FOR JUDGMENT Petersen J.
Introduction
[1] This is a proceeding under s.122(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA). Mr. Mustafa is charged with three counts of possessing a passport in order to contravene the IRPA and three counts of importing a passport in order to contravene the IRPA.
[2] It is undisputed that Mr. Mustafa entered Canada at Toronto’s Lester B. Pearson airport, after disembarking an international flight, with three altered Mexican passports in his possession. He acknowledges being aware of the presence of the passports in his luggage. He does not admit to knowing that the they were fraudulent, or to possessing and importing them for a purpose that contravenes the IRPA.
[3] Mr. Mustafa did not use the passports to enter the country. He is a Canadian citizen and was travelling on a valid Canadian passport. None of the altered Mexican passports is in his name and none bears his image.
[4] The parties identified two issues for me to decide at trial. Both issues pertain to Mr. Mustafa’s state of mind. The first is whether the Crown has proven beyond a reasonable doubt that he knew the Mexican passports in his possession were not genuine. The second is whether the Crown has proven beyond a reasonable doubt that he possessed and imported the altered passports for a purpose that contravenes the IRPA.
[5] For the reasons articulated below, I am of the view that the latter issue is the only issue for me to decide, namely whether the Crown has established beyond a reasonable doubt that Mr. Mustafa possessed and imported the Mexican passports into Canada in order to contravene the IRPA. I have concluded that proof of his knowledge that the passports were altered is not an essential element of the offences charged.
[6] Before reviewing the essential elements of the offences and analyzing the evidence to determine whether the Crown has discharged its burden of proof, I will briefly summarize the evidence adduced at trial and outline the relevant background facts giving rise to the charges.
Facts Giving Rise to the Charges
[7] Most of the relevant facts in this case are uncontroversial. Mr. Mustafa entered Canada by air on November 23, 2019 and passed through a Primary Inspection Kiosk (PIK) at Terminal 3 of Pearson airport. He arrived on a flight from Colombia, via the United States. He was referred to the Secondary Examination area of the Canada Border Services Agency (CBSA) for inspection.
[8] He approached a counter in the Secondary Examination area and presented his passport and PIK receipt to Border Services Officer Jim McCallum. BSO McCallum asked where he was coming from and the purpose of his trip. He answered that he was returning from a two-day visit to Colombia for business. He stated that he buys coal from a company in Colombia and then ships it to a buyer in the Middle East. He showed BSO McCallum an electronic document on his iPad that appeared to be a purchase contract.
[9] BSO McCallum asked Mr. Mustafa whether the suitcase he had was his, if he was aware of its contents, and if he packed it himself. He answered yes to these questions. BSO McCallum then proceeded to open the luggage and examine its contents.
[10] One of the first items on top of the suitcase was a black sweater. BSO McCallum felt the sweater and noticed something inside the front pockets. He described the pockets as being located around the stomach area of a person who wore the sweater. He found and removed two brown sealed and taped envelopes, one in either side of the front pockets. He opened the packages and discovered three Mexican passports, two Mexican driver’s licences, and two Mexican federal voting cards. Two of the passports were in the same names as the two driver’s licences and voting cards.
[11] The documents appeared to belong to two adults named Lamyaa Al Aloosh Hameed and Mustafa Alsultan Falih, and to a minor named Sara. BSO McCallum asked Mr. Mustafa who the people were and why he possessed their identification documents. He replied that he was applying for permanent resident status for them in Colombia. He stated that the adult male was a close friend, and the adult female and her daughter were his second cousins. He further stated that the adult male had no relationship to the adult female and girl.
[12] BSO McCallum conducted a search of the names on the passports in the Global Case Management System (GCMS), a database that stores information about foreign nationals who have had interactions with Canadian immigration services. The database contains the names of people who have applied for any type of visa to enter Canada, electronic travel authorization, permanent residence, or Canadian citizenship. BSO McCallum explained that the purpose of his search was to determine whether any of the individuals named in the Mexican passports had any status in Canada or had ever applied for any status in Canada. The searches were non-resultant, meaning that the GCMS database had no record of any applications filed in any of their names.
[13] BSO McCallum testified that it seemed abnormal and “very off” to him that a Canadian citizen returning to Canada from abroad would have Mexican identification documents in his possession relating to persons who have no relationship to Canada. He examined the documents more closely to determine whether they were genuine. As a BSO, he received training on the detection of fraudulent travel documents. Based on his training and on other Mexican passports that he had seen throughout his career, he concluded that “something seemed off”. He suspected that inkjet printing had been used to print the names on the passports, which made him believe that the passports were not genuine, but he was unsure.
[14] BSO McCallum then called for the assistance of a senior officer with more experience and knowledge, to obtain a second opinion on the authenticity of the passports. Superintendent Rigatti attended and inspected the passports with a magnifying glass. He observed that the background printing did not appear consistent with fine line, true colour, and offset printing techniques commonly used on travel documents. Superintendent Rigatti told BSO McCallum that he thought inkjet printing had been used in the passports, which is an indicator that they were either forged or had been altered.
[15] BSO McCallum could not recall whether he had any further discussion with Mr. Mustafa after Superintendent Rigatti examined the passports. He thought he asked some questions about whether Mr. Mustafa had plans to visit Mexico, but he did not make notes of that and could not recall what, if anything, was asked by him or stated by Mr. Mustafa. He could not recall whether he made any attempt to verify if the passport numbers in the Mexican passports were valid. He could not remember whether he probed any further the nature of Mr. Mustafa’s relationships with the individuals named in the Mexican passports and identity cards.
[16] BSO McCallum detained Mr. Mustafa for possession of fraudulent documents, read him his Charter rights and cautioned him. CBSA criminal investigators were summoned. They seized the Mexican passports, driver’s licences and voter registration cards from Mr. Mustafa. They then released him without any charges.
[17] A Document Examining Officer (DEO) subsequently conducted an analysis of the seized Mexican passports in the CBSA document lab. DEO Pizzari concluded that each of the three passports was genuine but had been altered.
[18] In his reports dated January 27, 2020, DEO Pizzari explains that he examined the passports using microscopy and specialized UV and IR light sources. He also compared them to a specimen Mexican reference passport. He concluded from this examination that the security features, printing techniques and substrate of the documents were consistent with a genuine passport, but a counterfeit biographical page was overlaid on the original biographical page of each passport. He recited the following evidence to support his conclusions:
- The background printing on the biographical page is completed by an inkjet printer whereas in the remainder of the passport, offset printing is employed.
- The edge of the inserted counterfeit biographical page is visible.
- The background printing does not extend to the edge of the biographical page.
[19] Photographs of the three passports show that each contains identical travel stamps on p.5 of the document. The stamps are dated November 10, 2019 and November 18, 2019. They purport to have been applied by Colombian immigration authorities and suggest that the passport holders entered and exited Colombia on those dates.
[20] I heard no evidence regarding the authenticity of the travel stamps. It does not appear that D.E.O. Pizzari examined them. No forensic evidence was adduced with respect to the authenticity of the other Mexican identification documents found in Mr. Mustafa’s possession.
[21] On February 19, 2020, a CBSA investigator swore an Information charging Mr. Mustafa with offences under s.122(1)(a) and 122(1)(c) of the IRPA in relation to the three Mexican passports. Mr. Mustafa was out of the country at the time and could not be served. Several months later, upon his return to Canada, he was arrested at Pearson airport and charged. He surrendered his Canadian passport and was released on his own recognizance.
Expert Evidence
[22] The Crown called an expert witness, Jeffrey Hansen, who has worked for the CBSA (and its precursor, Citizenship and Immigration Canada) in various positions since 1999, including as a Liaison Officer overseas. He is currently an Assistant Manager in the Intelligence and Enforcement Division of the CBSA. I found that he is qualified as an expert in the following areas: the possession of, uses of, importation of and dealing with fraudulent documents, including altered passports, in relation to the IRPA.
[23] From his extensive work experience, Mr. Hansen has acquired knowledge of trends in irregular migration to Canada including, for example, illegal student fraud, with certain Canadian schools providing fraudulent acceptance letters to foreign nationals. Over the years, he has identified and targeted different patterns of irregular migration including problematic routes frequently used by travellers to Canada who impersonate other people, who are undocumented, or who are using fraudulent travel documents. His duties have included discerning these trends and identifying risk factors, such as specific nationalities of passports being used on a particular airline or from a particular point of departure.
[24] Mr. Hansen has received advanced training in the detection of fraudulent travel documentation. He has delivered information sessions to hundreds of BSOs on impersonation detection techniques and fraudulent documentation detection techniques. He has identified more than 1,000 fraudulent (either counterfeit or altered) passports during the course of his career. He has also examined fraudulent passports interdicted by other BSOs to see what techniques were used. He is familiar with the common methods employed to alter passports and visas.
[25] According to Mr. Hansen, irregular migration patterns are fluid and trends change over time. He noted that since Canada introduced electronic travel documentation for some nationalities, including Mexico, in 2016 or 2017, Mexican passports have become more attractive to those engaged in illegal markets for counterfeit or altered passports. Mr. Hansen explained that some countries’ passports still require physical visas to enter Canada, whereas other countries’ passports, including Sweden, the United States and Mexico, now only require an Electronic Travel Authorizations (ETA). He gave unchallenged evidence that an eligible traveller can obtain an ETA quickly on-line for a nominal $7 fee.
[26] Mr. Hansen explained that some other countries, including the United States, also use the ETA system. He stated that Canadian and Mexican travellers are therefore not required to obtain physical visas in their passports prior to entering the United States, or any other country that employs the ETA system.
[27] Mr. Hansen testified that visa-exempt passports are used more frequently by impersonators and by individuals seeking to enter Canada with a fraudulent passport because of the ease with which an ETA can be obtained on-line and at a very low cost. He stated that visa-exempt passports are also favoured by those who alter travel documentation because modifying a passport that contains a physical visa requires additional steps in the alteration process. He noted that visas usually require photos, so if a forger is altering the photograph in a passport to place someone else’s image in the document, the visa photograph will also need to be altered, which is cumbersome.
[28] Mr. Hansen testified that, since January 2020, the Mexican passport is the most abused nationality of passport used by individuals who are seeking to enter Canada via Pearson airport. In other words, it is the most commonly altered document intercepted by the CBSA at the airport. In his opinion, this trend results from several factors, including the proximity of Mexico to Canada, the high volume of direct flights from Mexico to Canada, and the fact that some batches of blank passports were stolen in transit to an embassy in Mexico. The visa-exempt status of the Mexican passport is another significant factor. Mr. Hansen noted that almost all the other Spanish-speaking countries in central and south America require physical visas, which makes the Mexican passport more attractive to Hispanic persons who are seeking a fraudulent passport for the purpose of travelling internationally.
[29] Mr. Hansen testified that there is a higher demand in illegal markets for passports from visa-exempt nationalities based on the ease with which a person can travel on such a passport. He testified that Mexican passports are therefore more valuable than some other countries’ passports. He added that passports containing travel stamps have an enhanced value because the stamps purport to show a travel history and therefore lend credibility to the authenticity of the document.
[30] Mr. Hansen did not provide any opinion evidence regarding the estimated street value of a Mexican passport in Canada in November 2019, or of the value of the three specific altered Mexican passports seized from Mr. Mustafa. Such evidence would not, in any event, have been within his recognized areas of expertise.
[31] Mr. Hanson testified about reasons why an individual might utilize an altered passport to gain entry to Canada. He stated that foreign nationals who have attempted unsuccessfully to obtain a Canadian visa under their own identity will sometimes utilize altered or counterfeit documents in another person’s identity, usually purporting to be from a visa-exempt country, in order to gain access to a flight to Canada. He added that individuals who have been previously deported or who have a criminal record will similarly use a fraudulent passport to conceal their true identity when entering the country. He noted that individuals sometimes enter Canada using a fraudulent passport to create a new identity so that they can acquire a benefit or advantage in Canada for which they would not otherwise be eligible (such as health care coverage or other social benefits offered by the federal or provincial governments).
[32] Mr. Hanson also testified about reasons why an individual may possess and import into Canada fraudulent passports that do not belong to them. He explained that such a person may not intend to use the passports for their own use but rather to facilitate others’ entry to Canada or to provide others already in Canada with fictitious identification to gain some benefit or advantage, or to conceal their identify and avoid detection by law enforcement or debt collectors. He stated that individuals who import and/or traffic in fraudulent passports are sometimes compensated by human smugglers.
[33] During his cross-examination, Mr. Hansen confirmed that these are just some examples and do not constitute an exhaustive list of all the reasons why a person might have possession of an altered passport in another individual’s name when crossing the border into Canada. He agreed that there are many uses for fraudulent passports that do not involve a contravention of the IRPA, including identity theft for the purpose of obtaining a driver’s licence, opening a bank account, applying for a mortgage, or applying for health insurance coverage or a Social Insurance Number. He also confirmed that just because an altered foreign passport is imported into Canada does not mean it will necessarily be used by someone in Canada or to remain in Canada. It may instead be used to gain entry to a different country, or to obtain a benefit under a false identity in another country, neither of which would violate the IRPA.
[34] Mr. Hansen was asked about the security measures used by airlines for passengers travelling on visa-exempt passports. He stated that airline staff who work in airports abroad are trained to screen passengers by scanning their passport to determine whether it is linked to a valid ETA. A traveller who does not have a valid ETA is supposed to be denied boarding on an international flight destined for Canada, but Mr. Hansen noted that people do sometimes board flights without a valid ETA.
Essential Elements of the Offences Charged
[35] Section 122 of the IRPA states:
(1) No person shall, in order to contravene this Act,
(a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;
(b) use such a document, including for the purpose of entering or remaining in Canada; or
(c) import, export or deal in such a document.
(2) Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.
[36] In a pre-trial application, Mr. Mustafa successfully challenged the constitutional validity of the statutory presumption set out in s.122(2). The subsection was found by this Court to infringe rights guaranteed by ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms without justification under s.1 of the Charter. It was declared to be of no force or effect by Bielby J. in R. v. Mustafa, 2022 ONSC 532.
[37] I have nevertheless cited s.122(2) above because it assists with the interpretation of s.122(1). It is clear from the words enacted by Parliament in s.122(2) that s.122(1) of the IRPA is not restricted to offences involving forged, blank, incomplete, altered or otherwise not genuine travel documents. The offences listed in s.122(1) can be committed without any fraudulent documentation. For example, an inadmissible foreign national who entered Canada by using someone else’s valid passport (while impersonating the passport-holder) would be guilty of offences under s.122(1) by virtue of possessing, using and importing a passport purporting to establish their identity in order to contravene s.127 of the IRPA, which prohibits misrepresenting one’s identity at a Canadian border entry: R. v. Nwanebu, 2014 BCCA 387.
[38] The jurisprudence reveals, however, that cases prosecuted under s.122(1) of the IRPA typically involve forged, blank, incomplete, altered or otherwise not genuine travel documents, as in the circumstances of this case. Based on that jurisprudence, and based on the facts of this case, the Defence took the position that knowledge of the fraudulent nature of the Mexican passports in Mr. Mustafa’s possession is an essential element of the offences that must be proven by the Crown beyond a reasonable doubt. The Crown conceded this point, but I am not convinced that the concession is appropriate.
[39] In light of the fact that an offence can be committed contrary to s.122(1) without fraudulent documentation, proof of an accused person’s knowledge of the fraudulent nature of documentation in their possession cannot be an essential element of the offences enumerated in that section. The criminality of the conduct listed in s.122(1) of the IRPA does not depend on proof of the accused’s knowledge that their travel document is fraudulent (nor even on proof of the fraudulent nature of the document), but rather on proof of the accused’s intent to contravene the IRPA, regardless of whether the document is fraudulent and irrespective of their awareness of that fact. As noted by Garton, J. in R. v. Aghani, at paras.163-164, aff’d 2009 ONCA 309:
Since every Canadian who possesses a passport commits the actus reus of possession under s. 122, the offence turns on the mental element of an accused at the time that he or she is in possession. An accused cannot be found guilty of an offence under s.122 unless the Crown establishes beyond a reasonable doubt that the accused's possession, use, importation or exportation of the passport was "in order to contravene the Act."
. . . Whether the documents are false or genuine, the criminality of the acts listed in s.122(1) is assessed by reference to the mental element -- that is, whether the act in question was taken "in order to contravene the Act."
[40] The now defunct s.122(2) of the IRPA formerly created a rebuttable presumption of intent to contravene the IRPA if the Crown proved beyond a reasonable doubt that an accused person knowingly possessed, used, imported or exported a forged, blank, incomplete, or altered passport. Under the former statutory regime, if the Crown relied on s.122(2), it was required to prove that the accused had knowledge of the fraudulent nature of the documents in order to trigger the presumption of an intent to contravene the IRPA. However, that does not mean proof of knowledge of the fraudulent nature of the documents is an essential element of the offences listed in s.122(1).
[41] Mr. Mustafa admits that he had knowledge and control of the Mexican passports and other Mexican identification documents that were seized from his luggage. He admits that he intentionally brought those identification documents into Canada. In order to secure convictions, the Crown must prove the final essential element of the offences, namely that he possessed and imported the passports in order to contravene the IRPA. Whether he knew that the passports had been altered is a relevant fact, but it is not necessary for the Crown to prove his knowledge of the altered nature of the passports beyond a reasonable doubt.
[42] For example, if the Crown adduced evidence establishing beyond a reasonable doubt that Mr. Mustafa was planning to sell the three Mexican passports and other identification documents to foreign nationals who had been ordered deported from Canada, and who he knew were going to use the documents to try to remain in Canada under false identities, that would be sufficient to prove the mens rea of the offences charged, even if Mr. Mustafa was unaware that the passports had been altered.
[43] For the above reasons, I have concluded that proof of Mr. Mustafa’s knowledge that the Mexican passports were altered is not an essential element of the offences charged. Although the Crown is not required to prove that he was aware of the fraudulent nature of the passports, if I find that he had such awareness, that fact would constitute circumstantial evidence in support of an inference that he intended to breach the IRPA. A person who knows that they are in possession of counterfeit passports is more likely to be implicated in a planned contravention of the IRPA than someone who is unaware of the fraudulent nature of the documents in their possession.
[44] Mr. Mustafa’s disputed knowledge of the fraudulent quality of the passports is therefore a relevant factor for my consideration in determining whether the Crown has discharged its onus of proof. However, as Bielby J. held at para.58 of his pre-trial decision, proof of Mr. Mustafa’s knowledge does not inexorably lead to the conclusion that he must have possessed and imported the passports in order to contravene the IRPA.
[45] It is worth noting that the simple possession, use, importation, or exportation of a fraudulent (i.e., forged, blank, incomplete or altered) passport or other travel document is not an offence under the IRPA, even if the accused knows that the document is fraudulent. To secure a conviction for an offence under s.122(1), the Crown must prove beyond a reasonable doubt that the accused possessed, used, imported, exported or dealt with the fraudulent document with intent to contravene the IRPA, and not for some other purpose unrelated to the IRPA.
[46] There are a multitude of ways that a person can use a passport (whether genuine or fraudulent) to contravene the IRPA. The IRPA deals with the entry into Canada of foreign nationals through two processes – the immigration process and the refugee protection process. The statute aims to establish fair and efficient procedures that maintain the integrity of these processes: R. v. Appulonappa, 2015 SCC 59, [2015] 3 SCR 754, at para.17-22. The entry into Canada of unauthorized persons poses a threat to the integrity of those processes. The IRPA therefore prohibits and sanctions not only unlawful border crossings into the country, but also a broad spectrum of conduct that facilitates the unlawful entry of unauthorized migrants into Canada.
[47] For example, s.117(1) of the IRPA stipulates, “No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.” Similarly, s.126 of the IRPA states, “Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.” These are only two examples of numerous provisions in the IRPA that set out summary conviction and indictable offences.
[48] In order to discharge its burden of proving an offence under s.122(1) of the IRPA, the Crown is not required to particularize and prove a specific infringement of the Act intended by the accused. In Aghani, the Court of Appeal for Ontario held that, in order to establish the mens rea of an offence under s.122(1), the Crown is not obligated to specify and prove the precise nature of the accused’s intended immigration scheme or the precise manner in which he intended to breach the IRPA. As Garton, J. stated in Aghani, at para.166 (aff’d by the ONCA):
For example, if the Crown establishes that an accused is in possession of a hundred blank Canadian passports in the trunk of his car, the Crown need not particularize and prove the accused's ultimate purpose -- such as whether the accused intended to sell the passports for profit or use them in his own or someone else's smuggling operation -- as an element of the offence under s.122. The question in all cases is simply whether the possession, use, importation, or exportation of the documents was "in order to contravene the Act."
. . . Whether the documents are false or genuine, the criminality of the acts listed in s.122(1) is assessed by reference to the mental element -- that is, whether the act in question was taken "in order to contravene the Act."
[49] The issue for me to decide, therefore, is whether the Crown has proven beyond a reasonable doubt that Mr. Mustafa’s possession and importation of the Mexican passports was in order to contravene the IRPA by some means. Whether he knew the passports were altered is just one factor among many for my consideration in deciding this issue.
Law Regarding Circumstantial Evidence
[50] There is no direct evidence that Mr. Mustafa possessed or imported the Mexican passports for the purpose of contravening the IRPA. The Crown’s case rests entirely on circumstantial evidence.
[51] As the Supreme Court of Canada articulated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 27, there is a danger of jumping to unwarranted conclusions in cases where proof of one or more of the elements of an offence depends exclusively or largely on circumstantial evidence. This danger is why juries are given a specific cautionary instruction that an inference of guilt drawn solely or largely from circumstantial evidence must be the only reasonable inference that such evidence permits.
[52] The trier of fact must determine the range of reasonable inferences that can be drawn from the totality of the evidence. In analysing circumstantial evidence, the trier of fact must be alert to alternative explanations that logically point toward innocence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35; R. v. Stennett, 2021 ONCA 258, at para.60.
[53] I am mindful that reasonable inferences inconsistent with guilt need not arise from proven facts. Requiring proven facts to support inferences consistent with innocence wrongly shifts the burden of proof onto the accused. In this case, for example, Mr. Mustafa is not required to prove the truth of what he told BSO McCallum, namely that he had the Mexican passports in his possession because he was assisting the persons named in the passports with an application for permanent residence in Colombia.
[54] Reasonable inferences must, however, be distinguished from conjecture and speculation. The trier of fact must not act on alternative non-culpable inferences that are simply “possible” but not reasonable. To be reasonable, alternative inferences must be rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at para.42; Stennett, at paras.60-61.
[55] A doubt based on a theory alternative to guilt is not rendered speculative (or unreasonable) by the mere fact that it arises from a lack of evidence. Gaps in the evidence may result in reasonable inferences other than guilt, but this does not mean the Crown is required to negative every possible conjecture, no matter how irrational or fanciful, that might be consistent with the innocence of the accused. The Crown must, however, negative plausible theories and reasonable possibilities that are consistent with the accused’s innocence in order to satisfy its burden of proof: Villaroman, at paras. 36-37.
[56] Finally, circumstantial evidence should not be evaluated piece by piece but rather cumulatively: R. v. T.(W.), 2016 ONSC 3943, at para. 136; R. v. Bryan, 2017 ONSC 2244, at para. 22. The basic question is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38. In other words, to justify a conviction, “the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative”: Villaroman, at para. 41.
Analysis
[57] The Crown argues that the only available reasonable inference to be drawn from the totality of the evidence is that Mr. Mustafa possessed the altered Mexican passports and imported them to Canada for a purpose that contravenes the IRPA. The Crown relies on the cumulative force of the following evidence:
a) BSO McCallum’s testimony about the manner in which Mr. Mustafa packaged the passports and concealed them in his luggage;
b) Mr. Hansen’s testimony about the value of visa-exempt passports and the value of Mexican passports in particular within Latin American countries;
c) The evidence that the passports contained travel stamps and Mr. Hansen’s testimony about the enhanced value of passports containing such stamps;
d) Mr. Hansen’s testimony about the frequency with which altered Mexican passports are used by international travellers arriving at Pearson airport;
e) Mr. Hansen’s testimony about reasons why individuals use altered visa-exempt passports to try to gain entry to Canada;
f) Mr. Hansen’s testimony about IRPA-related reasons why individuals import visa-exempt passports in other persons’ names;
g) BSO McCallum’s testimony that the passports were found with other Mexican identity documents belonging to the same adults; and
h) BSO McCallum’s testimony that, based on his GCMS search, the three individuals named in the Mexican passports have no status in Canada and have never applied for status in Canada.
Forensic Evidence of Alteration of Passports
[58] The facts of this case are distinguishable from those in Aghani, where the accused was in possession of two stolen Canadian passports, one of which was blank and the other had printed (counterfeit) biographical information but no image in the photo slot. Those were documents for which there can be no legitimate purpose. Anyone who saw the biographical pages of those documents would immediately know that they were not valid passports.
[59] In contrast, the alteration to the Mexican passports in this case was not obvious, even to those who have specialized training in the detection of fraudulent travel documents. BSO McCallum examined the passports closely. He thought that the printing on the biographical pages seemed “off”, but he was unsure. He therefore sought the opinion of a more experienced officer. Superintendent Rigatti concluded that the passports were likely fraudulent after examining them through a microscope. When the passports were later analyzed in the CBSA documents lab, DEO Pizzari used microscopy and specialized light sources to identify the counterfeit overlaid biographical page inside them.
[60] In the circumstances, I cannot reasonably conclude that Mr. Mustafa knew the passports were fraudulent based only on their appearance. In any event, there is no evidence, as there was in the Aghani case, that Mr. Mustafa ever opened the passports to examine the interior pages. In Aghani, the trial judge inferred that the accused knew one of the stolen Canadian passports was blank because his fingerprint was located on the same page that biographical information and a citizen's photograph normally appear.
[61] Moreover, in this case, had Mr. Mustafa opened the passport to look at the interior pages, the biographical pages would have appeared ordinary and the travel stamps would have leant credibility to the authenticity of the documents. To the untrained eye, there was no reason to suspect that the documents were fraudulent. The appearance of the passports therefore does not provide any evidence from which I could reasonably infer that Mr. Mustafa knew they were not genuine.
Evidence of Concealment
[62] The Crown argues that the Court should infer from the packaging of the passports and from their value that Mr. Mustafa knew they were fraudulent and was trying to avoid detection of the documents by border security. I reject this argument for the reasons that follow.
[63] The packaging was described by BSO McCallum as “two brown sealed taped envelopes.” BSO McCallum testified that the envelopes were located inside the front pockets of a sweater that was one of the first items on top of Mr. Mustafa’s suitcase. There was no concerted effort to hide the envelopes, apart from placing them inside the sweater pockets. Had Mr. Mustafa been determined to secrete the passports, he likely would have undertaken a more sophisticated method of concealment. Instead, the envelopes were quickly and easily located as soon as a search of his luggage began.
[64] Moreover, the nature of the packaging was not unusual. It did not in any way disguise the shape, weight, or size of the documents. It was consistent with what one might expect for a collection of identity documents, some of which were wallet-sized and could easily be separated from the passports if placed loosely within the luggage. Logic and experience rationally lead to an inference that the documents may have been so packaged and packed simply to avoid misplacing or losing any of them, and to prevent them from being damaged in transit.
Evidence of the Value of the Passports
[65] In cases involving drug trafficking or the importation of narcotics, the Court will often infer the accused’s knowledge of the presence of contraband from evidence of its high street value: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 173, leave to appeal refused, [2015] S.C.C.A. No. 478; R. v. DaCosta, 2017 ONCA 588, at para. 21; and R. v. Savory, 2022 ONCA 132, at para.11. Although those cases do not provide a perfect analogy, I agree with the Crown that a similar inference of knowledge of the fraudulent nature of the Mexican passports might rationally be drawn if there were evidence that the altered passports were so valuable that their owners would not likely entrust them to Mr. Mustafa’s unwitting care. However, the evidence with respect to the value of the altered passports in this case is too vague to ground such an inference.
[66] I accept Mr. Hansen’s testimony that Mexican passports are particularly in demand on the illegal market of counterfeit and altered passports, in part because of their visa-exempt status. I also accept his evidence that passports containing travel stamps are even more valuable because the stamps (whether genuine or counterfeit) suggest that the passports have cleared the inspection of immigration officials. However, the Crown called no evidence of the estimated value of the three passports. Without any evidence as to their approximate street value, I cannot reasonably infer from the vague evidence that they are “valuable” that it would be implausible for an air traveller like Mr. Mustafa to have them in his possession without being aware of their fraudulent nature.
Did Mr. Mustafa Know the Passports were Altered?
[67] For the above reasons, taking all the relevant evidence into account, I conclude that the Crown has not established, even on a balance of probabilities, that Mr. Mustafa knew the passports in his possession were fraudulent. This finding is not fatal to the Crown’s case because Mr. Mustafa may nevertheless be found guilty of the offences charged, provided that the Crown proves beyond a reasonable doubt that he knowingly [1] possessed and imported the passports in order to contravene the IRPA.
Did Mr. Mustafa Possess and Import the Passports in Order to Contravene the IRPA?
[68] The Crown asks the Court to infer from the totality of the circumstantial evidence that Mr. Mustafa brought the passports with him into Canada for a purpose that contravenes the IRPA. The Crown relies on the fact that the fraudulent passports were found together with other Mexican identity documents belonging to the adults named on the passports. Crown counsel argues that this is consistent with the accused’s intention to make use of the altered passports for a purpose that contravenes the IRPA. I agree that it is consistent with such an intention, but it is not probative of that disputed fact.
[69] None of the identity documents bear Mr. Mustafa’s name or image. It is therefore unlikely that he intended to use them personally, but he may have planned to deliver them to someone else in Canada or abroad. The presence of multiple government-issued identification documents (i.e., passports, driver’s licences and voter registration cards) suggests that someone intended to use the Mexican identification documents for some purpose, but it does not render more likely the use of the passports specifically to contravene the IRPA. If, for example, Mr. Mustafa intended to deliver the altered Mexican passports to persons of Colombian nationality who planned to use them to apply for an ETA to travel to Canada, it is unclear from the evidence how the presence of matching driver’s licences or voter registration cards would assist with that process.
[70] Crown counsel also relies on BSO McCallum’s testimony that, when he ran the Mexican passports through the GCMS database, there were no hits, meaning that the people named in the passports had had no interactions with Canadian immigration. The Crown submits that it does not make sense for the accused to bring to Canada three passports with other people’s biographical information when those people do not even have status in Canada. The Crown asks me to infer that the fraudulent documents were going to be used by those individuals to try to obtain status in Canada by some unlawful means. Defence counsel, on the other hand, argues that the absence of any GCMS data pertaining to the individuals named in the passports is probative of the fact that the fraudulent passports were not intended to be used to enter Canada in contravention of the IRPA.
[71] BSO McCallum’s non-resultant GCMS search constitutes positive evidence that the altered passports have never been used to enter Canada, to apply for an ETA to travel to Canada, or to obtain any other status in Canada, such as permanent resident status. I agree with the Defence submission that the Crown’s case would be stronger if there were evidence that the altered Mexican passports had previously been used to enter Canada. For example, had the GCMS search revealed that individuals with the names listed on the passports had previously applied unsuccessfully for a travel visa to Canada from a country other than Mexico (such as, for example, Colombia), that would constitute circumstantial evidence probative of an intent to use the passports to assist otherwise inadmissible foreign nationals to enter Canada under false pretenses. It would constitute circumstantial evidence probative of the requisite intent to contravene the IRPA.
[72] I do not, however, agree with Defence counsel’s argument that the absence of prior interactions with Canadian immigration services constitutes circumstantial evidence that the altered Mexican passports were never intended to be used to contravene the IRPA. The lack of prior interactions with Canadian immigration is not probative of Mr. Mustafa’s innocence. It is neither probative of his innocence nor probative of his guilt. It is simply a neutral fact that does not assist the Crown in discharging its burden of proving Mr. Mustafa’s intent to contravene the IRPA.
[73] Mr. Hansen’s expert evidence is similarly not helpful to the Crown. His unchallenged testimony was that there are many ways in which altered Mexican passports are used to contravene the IRPA. I agree with the Crown that it would be reasonable to infer that Mr. Mustafa intended one of those uses. For example, he may have intended to deliver the passports to friends or family members with a foreign nationality, who were not able to gain entry to Canada under their own identity, in order to assist them in obtaining an ETA to travel to Canada under a false Mexican identity.
[74] However, Mr. Hansen’s testimony also established that there are many purposes unrelated to the IRPA for which the altered Mexican passports could be used. It would therefore be equally reasonable to infer that Mr. Mustafa intended one of those uses. For example, he may have been assisting people in Canada to assume a new identity, but not for travel purposes and not to remain in Canada unlawfully. It could have been, for example, to assist debtors in evading creditors. Mr. Mustafa may also have been assisting someone outside of Canada to travel to Mexico or to another country, such as the United States, that exempts Mexican nationals from having physical visas. Although these purposes are neither lawful nor laudable, they do not contravene the IRPA, which is an essential element of the offences with which Mr. Mustafa is charged.
[75] There is a range of reasonable inferences that can be drawn from the totality of the circumstantial evidence in this case, not all of which are consistent with Mr. Mustafa having the requisite intent to contravene the IRPA. The Defence is not required to prove facts to support the non-culpable alternatives. Rather, the Crown must negative them. The alternative inferences are not fanciful. They are rooted in logic and human experience applied to the evidence and the absence of evidence in this case.
[76] There are significant gaps in the Crown’s evidence. For example, had the CBSA investigators probed Mr. Mustafa’s professed reason for having the Mexican passports in his possession, they may have uncovered evidence that he lied to BSO McCallum about the nature of his relationship with the individuals named in the identification documents, or about the type of assistance that he was rendering them. His explanation is odd, considering that he is not a Colombian citizen and that his business in Colombia purportedly involves the purchase and sale of coal. He is not an immigration consultant. It seems implausible, in the circumstances, that he would be assisting Mexican nationals to apply for permanent residence in Colombia.
[77] His statement to BSO McCallum that the adults in the documents have no relationship to each other is also peculiar given that all three passports contain identical Colombian immigration stamps, suggesting that all three individuals travelled to and from Colombia on the same dates. Mr. Mustafa was not questioned about this. Nor was he asked how he came to be in possession of the Mexican passports while visiting Columbia, within a few days after the passport-holders’ departure from Colombia, as evidenced by the travel stamps.
[78] There is no evidence that any investigative steps were taken to verify the veracity of Mr. Mustafa’s statements. If the Crown established that he misled BSO McCallum, that would constitute circumstantial evidence of efforts to avoid detection of his involvement in some unlawful conduct that contravenes the IRPA.
[79] Similarly, had the CBSA investigators not immediately seized the altered passports from Mr. Mustafa, law enforcement could have conducted an ongoing investigation, including surveillance of Mr. Mustafa, to gather evidence of the purpose for which he possessed and imported the passports. Such an ongoing investigation could have been conducted even with the seizure of the fraudulent documents. None of these or other investigative steps was taken.
[80] The record contains no evidence connecting Mr. Mustafa to an immigration scam, as an aider, abettor, or other participant. The Crown relies on the Aghani decision to argue that it is not required to prove a specific contravention of the IRPA that was intended by Mr. Mustafa. That is correct, but the Crown must adduce sufficient evidence to negative alternative reasonable inferences that are inconsistent with possessing and importing the passports for a purpose that contravenes the IRPA.
[81] In Aghani, there was substantially more circumstantial evidence presented by the Crown to satisfy the trial judge beyond a reasonable doubt that the accused’s possession and importation of the stolen passports was done to contravene the IRPA by some means. First, as noted earlier, the stolen passports in Aghani were obviously fraudulent and the trial judge found that the accused knew that because of his fingerprint found on the blank biographical page. In addition, in upholding the conviction in Aghani, the Court of Appeal for Ontario noted,
[The Crown] adduced extensive evidence of the appellant’s conduct in relation to the stolen passports, both in Canada and overseas, including evidence of: (i) the appellant’s efforts to avoid detection of his acquisition of the stolen passports and their transport to Canada; (ii) his attempt to obtain a blank passport while in Canada; (iii) his instructions to a Canadian credit facility to create a visa account in a fictitious name that he later inserted in one of the passports, and (iv) his false replication of a Malaysian entry stamp on one of the stolen Canadian passports that the trial judge expressly found he intended to later sell.
[82] There is no comparable inculpatory evidence in this case. An intention to violate the IRPA is not the only reasonable inference that can be drawn from the evidence and absence of evidence adduced by the Crown. The totality of the evidence leaves room for reasonable doubt. I therefore find Mr. Mustafa not guilty of the offences charged.
Petersen J. Released: February 23, 2022
[1] By “knowingly”, I mean that he knew he had the Mexican passports in his possession, not that he knew they had been altered.