COURT FILE NO.: CRIM NJ(F)721/21

DATE: 2022 01 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Vanita Goela, for the Respondent

Respondent

• and -

SUHAIB MUSTAFA

Steven Tress, for the Applicant

Applicant

HEARD: December 6, 2021

CONSTITUTIONAL RULING REGARDING SECTION 122(2) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT

Justice Thomas A. Bielby

INTRODUCTION

[1] The Applicant stands charged with three counts of Possession of a Fraudulent Document contrary to s. 122(1)(a) of the Immigration and Refugee Protection Act (IRPA) and three counts of Importing a Fraudulent Document, contrary to s. 122(1)(c) of the IRPA.

[2] The Applicant seeks an order further to s. 52(1) of the Constitution Act 1982, striking down the mandatory rebuttable presumption found in s. 122(2) of the IRPA as being of no force and effect, on the grounds that the section breaches his s. 7 and 11(d) Charter rights.

[3] Alternatively, the Applicant seeks an order granting a stay of proceedings on the charges, further to s. 24(1) of the Canadian Charter of Rights and Freedoms (Charter).

RELEVANT LEGISLATION

[4] Set out hereinafter are what I deem to be the relevant sections of the Canadian laws in issue.

The Constitution Act, 1982

S. 52(1) - The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Relevant Portions of the Immigration and Refugee Protection Act S.C. 2001, c.27 (IRPA)

S. 3(1) - The objectives of this Act with respect to immigration are:

(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;

(b) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system;

(3) - This Act is to be construed and applied in a manner that

(a) furthers the domestic and international interests of Canada;

(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

S. 122(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.

S. 122(c) Proof of the matter 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.

S. 123(1) - Every person who contravenes

(a) paragraph 122(1)(a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and

(b) paragraph 122(1)(b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.

Canadian Charter of Rights and Freedoms

S. 1 - The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

S. 7 - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

S. 11 - Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

BACKGROUND

[5] On November 23, 2019, the Applicant, using his Canadian passport, entered Canada, through the Pearson International Airport, from Columbia, via the U.S.A. The Applicant was allegedly travelling for business reasons and was referred to the secondary examination area where his bag(s) were searched.

[6] Before commencing the search, the Canada Border Services Officer (CBSA) asked the Applicant if the bag was his, whether he was aware of the contents and did he pack the bag himself. The Applicant answered yes to all three questions.

[7] The CBSA officer removed from the bag two brown sealed and taped envelopes which were located in the front pockets of a black sweater.

[8] In the envelopes was discovered three Mexican passports, two Mexican driver’s licences and two Mexican federal voting cards. When confronted regarding these documents, the Applicant explained that he was helping the persons named in the documents apply for permanent resident status and jobs in Columbia.

[9] The Applicant was detained for the possession of fraudulent documents. However, while the documents were seized, the Applicant was released without charges.

[10] The documentation was sent for analysis and an Analysis Report, dated January 27, 2020, concluded that the three Mexican passports were genuine but altered. Accordingly, on February 19, 2020 an Information was sworn charging the Applicant with the aforementioned offences.

[11] The Applicant was arrested on August 13, 2020, when he arrived back in Canada, after another trip out of the country.

SUBMISSIONS AND ARGUMENT

THE APPLICANT

[12] The Applicant submits that s. 122(2) violates his s. 11(d) Charter rights by infringing on the rule of law that the Applicant is deemed to be innocent until his guilt is proven, beyond a reasonable doubt. The Applicant submits that “intent to contravene” the IRPA, is an essential element of the charges and that the Crown bears the burden of proving all of the essential elements of the charges, beyond a reasonable doubt.

[13] It is submitted that in fact, s. 122(2) mandates that the trier of fact infer not only an intention to contravene the IRPA but the knowledge that the Applicant knew the documents were altered.

[14] It is submitted that s. 122(2) reverses the burden of proof and allows the Crown by proving, beyond a reasonable doubt, the actus reus of the offences, to mandate that the trier of facts infer the necessary mens rea and as such thereby violates Charter s. 11(d). The fact that s. 122(2) allows the presumption to be rebutted does not alter the s. 11(d) violation.

[15] Counsel for the Applicant submits that the reference to an intent to contravene the Act, brings in to play the objectives and purpose of the IRPA as set out in s. 3.

[16] It is argued that the IRPA is to be applied and interpreted with respect to immigration issues and was enacted to protect the borders of Canada and the integrity of the Canadian immigration system.

[17] It is submitted that the scope of the Act cannot include the prosecution of people who intend, for example, to commit fraudulent acts in another country, for example, Columbia. In such cases there is no impact on the immigration system of Canada. The documents in issue were not used by anyone, including the Applicant, for the purpose of gaining entry into Canada.

[18] It is submitted that it cannot be necessarily inferred that the altered documents were in the Applicant’s possession for the purpose of contravening the IRPA. The Applicant’s possession of the altered documents does not lead “inexorably” to the inference that he intended to contravene the IRPA.

[19] If convicted of any of the charges, the Applicant is at risk of incarceration, pursuant to s.123(1) of the IRPA. The Applicant submits that the mens rea of the offences are an essential element and to eliminate the Crown’s burden to prove the essential element of mens rea further to s. 122(2), puts the Applicant’s s. 7 Charter right to liberty in issue and would deprive the Applicant of fundamental justice.

[20] The Applicant submits that neither s. 11(d) nor s. 7 Charter violations can be saved under s. 1 of the Charter.

THE CROWN

[21] The Crown submits that s. 122(2) of the IRPA does not offend the Charter, arguing that the Crown must still prove guilt, beyond a reasonable doubt, and that the Applicant remains innocent until found guilty. The Crown acknowledges that it is required to prove the essential element of “knowledge”. Therefore, the s. 122(2) presumption only goes to, “intent”; that is, the intent to contravene the IRPA.

[22] The Crown argues that the presumption in issue is not a pure reverse onus proposition and does not force a trier of fact to convict in spite of a reasonable doubt but rather, is a presumption that can be rebutted.

[23] The Crown submits that s. 122 was enacted in 2001, replacing s. 94 of the former Immigration Act. S. 94(1.1) read as follows:

“Proof that a person imported or exported a forged document or a document or thing referred to in paragraph (1)(n) that is blank, incomplete, altered or not genuine is, in the absence of proof to the contrary, proof that the person intends to contravene this Act or the regulations.”

[24] The Crown submits that s. 94(1)(n) and the current s. 122(2) were drafted to capture the importation and exportation of fraudulent identity documents. It is submitted that the amendments were not meant to offend the presumption of innocence and that the government of the day noted that it would be up to the courts to establish guilt and that, clearly, an accused, is innocent until proven guilty.

[25] It is submitted that once the prosecution proves beyond a reasonable doubt that the Applicant knew that documents he possessed and imported were altered, the only reasonable and inexorable inference a court can draw is that the Applicant intended to contravene the IRPA, subject to the Applicant’s ability to rebut the presumption by providing evidence to the contrary.

[26] The Crown submits that the application should be dismissed. However, should this court decide to strike s. 122(2), in accordance with s. 52 of the Constitution Act, the court is asked to grant an 18 month stay to allow Parliament a period of time to consider the court’s reasons and whether any legislative steps are warranted.

[27] It is also submitted that a s. 24(1) stay of proceedings is inappropriate and premature as the Crown can still prosecute without relying on the statutory presumption.

ANALYSIS AND REVIEW OF THE AUTHORITIES

[28] Both counsels have provided a number of authorities in support of their arguments. The two most important are the decisions of the Supreme Court of Canada in R. v. Oakes 1986 46 (SCC), [1986] 1 S.C.R. 103, and R. v. Morrison 2019 SCC 15.

[29] In the Oakes decision, the issue was the constitutional validity of s. 8 of the Narcotics Control Act. The section imposed a legal burden on an accused to prove on a balance of probabilities that he was not in the possession of a narcotic for the purposes of trafficking the narcotic. The issue before the court was, did the section offend the presumption of innocence (para. 29).

[30] The presumption of innocence was said to lie at the very heart of the Criminal Code. “This is essential in a society committed to fairness and social justice” (para. 32).

[31] The presumption of innocence, a right which requires that s. 11(d) include as a minimum, that an individual must be proven guilty beyond a reasonable doubt, that the state bears the burden of proof and that prosecutions be carried out in accordance with the lawful procedure and fairness (para. 35).

[32] Canadian Charter jurisprudence on the presumption of innocence in s. 11(d) is accorded a high degree of protection. Any infringement of this right is only permissible if it is reasonable and demonstrably justified under s. 1 of the Charter (para. 52).

[33] A provision which requires an accused to disprove the existence of a presumed fact which is an important element of the offence violates the s. 11(d) presumption of innocence. It would be possible for a conviction to occur despite the existence of a reasonable doubt (para. 60).

[34] Dickson J., writing for the majority, concluded that s. 8 of the Narcotics Control Act violated s. 11(d) of the Charter by requiring an accused to prove he was not in possession for the purpose of trafficking, by denying his right to be presumed innocent and could subject him to a loss of liberty.

[35] It was said that the onus of proving that a limit on a right or freedom is reasonable and demonstrably justified rests upon the party seeking to uphold the limitation (para. 70). The standard of proof under s. 1 of the Charter is the civil standard this is to say, proof by a preponderance of probability (para. 71).

[36] To establish that a limit is reasonable and demonstrably justified in a free and democratic society two criteria must be satisfied. One, the objective must be of sufficient importance to warrant overriding a constitutionally protect right. Secondly, the party invoking s. 1 of the Charter, must prove what was said to be a form of a proportionality test, broken down into three components:

(i) The measures adopted must be designed to achieve the objective in question; they must be rationally connected to the objective;

(ii) The means should only impair the right or freedom as little as possible; and

(iii) There must be a proportionality between the effects of the limiting measures and the objective (paras. 73 and 74).

[37] The Court in Oakes was of the opinion that society’s interest in curbing drug trafficking and drug use was one of sufficient importance (para. 80).

[38] The next stage on inquiry was a consideration of the means chosen by Parliament to achieve its objective. The means had to be reasonable and demonstrably justified in a free and democratic society. The Court concluded that s. 8 did not survive this rational connection test because it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics. The section was said to be, “overinclusive” (para. 82).

[39] The Court in Oakes concluded that since s. 8 did not satisfy the first component of proportionality, it was unnecessary to consider the other two components (para. 83).

[40] In R. v. Morrison in issue was the constitutionality of s. 172.1(3) of the Criminal Code of Canada and the mandatory presumption contained therein.

[41] Section 172.1 prohibited communication by means of telecommunication with an underaged person for the purposes of facilitating the commission of certain offences such as child luring. It was said that the section was enacted to prohibit child luring through telecommunications and to ensure that persons who breach the section receive punishment that reflects the gravity and seriousness of the offence and the high degree of moral blameworthiness associated with it (paras. 3 and 4).

[42] Section 172.1(3) reads as follows,

“Evidence that the person referred to in paragraphs (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16, or 14, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.”

[43] At trial, the s. 172.1(3) presumption was said to violate the accused’s presumption of innocence and thereby violated the accused’s s. 11(d) Charter rights. The Court of Appeal was of the same view and the Crown appealed the decision to the Supreme Court of Canada. Moldaver J., writing for the majority, dismissed the Crown’s appeal holding that the section in issue violated the accused’s s. 11(d) rights and was not saved under s. 1 of the Charter (para. 11).

[44] The importance of the presumption of innocence was noted and it was said the trier of fact needs to be satisfied beyond a reasonable doubt that all of the essential elements have been proved. The purpose of the presumption of innocence is to ensure that innocent persons are not convicted:

The right to be presumed innocent is violated by any provision whose effect is to allow for a conviction despite the existence of reasonable doubt (para. 51).

Various provisions of the Code establish presumptions whereby proof of one fact is presumed to be proof of one of the essential elements of an offence. Any such presumption will comply with s. 11(d) solely if proof of the substituted fact leads “inexorably” to the existence of the essential element that it replaces… Only then will there be no possibility that the substitution might result in the accused being convicted despite the existence of a reasonable doubt (para. 52).

To be clear, the nexus requirement for demonstrating that a statutory presumption does not offend the presumption of innocence is strict. It is not one of mere “likelihood” or “probability”, nor is it one satisfied by a “common sense” or “rational” inference. Rather, this Court’s jurisprudence demonstrates that the connection between proof of the substituted fact and the existence of the essential element it replaces must be nothing less than “inexorable”. An “inexorable” link is one that necessarily holds true in all cases (para. 53).

[45] From para. 56 I quote,

“The Crown maintains that the presumption under s. 172.1(3) does not infringe s. 11(d) because the presumption is rebuttable where there is evidence to the contrary. With respect, I cannot agree. A basic fact presumption will infringe s. 11(d) if proof of the basic fact is not capable, in itself, of satisfying the trier of fact beyond a reasonable doubt of the presumed fact. (This is another way of articulating the “inexorable connection test). The accused’s opportunity to raise or identify evidence to the contrary does not resolve or attenuate the s. 11(d) problem created when proof of a basic fact does not lead inexorably to acceptance of the presume fact. This is because the presumption of innocence requires That the Crown “establish the guilt of the accused beyond a reasonable doubt before the accused must respond.”

[46] In Morrison it was said that the mere fact that a representation of age was made to the accused did not lead “inexorably” to the conclusion that the accused believed that representation (para. 60).

[47] From para. 62 I quote,

“In sum, because proof of a representation as to age does not lead inexorably to the existence of the essential element that the accused believed the other person was underage – even absent evidence to the contrary – the presumption under s. 172.1(3) violates the presumption of innocence under s. 11(d) of the Charter.”

[48] Moldaver J. went on then to consider s. 1 of the Charter and whether the s. 11(d) violation could be demonstrably justified and concluded that it could not.

[49] The Court reaffirmed what it called the “Oakes test” (para. 63) (see para. 38 herein).

[50] In Morrison there was no issue regarding whether s. 172.1(3) had a pressing and substantial objective and that the Charter limit it created was rationally connected to that objective (the use of the internet to lure underage children) (para. 66).

[51] However, the Court was of the opinion that the s. 172.1(3) presumption failed the “minimal impairment” component. I quote,

“Put simply, a less intrusive means of achieving the state’s overarching objective would be to do away with the presumption under s. 172.1(3) and instead rely on the prosecution’s ability to secure convictions by inviting the trier of fact to find, based on a logical, common sense inference drawn from the evidence, that the accused believed the other person was underage. Indeed, this process of inferential reasoning is not unfamiliar to judges and juries, who engage in this type of reasoning day in and day out.

Because the Crown has not shown that the presumption under s. 172.1(3) infringes the right to be presumed innocent “as little as reasonably possible in order to achieve the legislative objective” of prosecuting child luring offences and thereby protecting children from online sexual predators, it cannot be saved under s. 1: RJR-MacDonald, at para. 60” (paras. 70 & 71).

[52] Additionally, the Court was also of the opinion that the deleterious effects of the presumption outweighed it salutary effects. It was said that the Crown had not shown that the salutary effect of the presumption was significant (para. 72).

[53] In conclusion, Moldaver J., in Morrison, stated, at para. 73,

“In sum, the presumption under s. 172.1(3) infringes on s. 11(d) of the Charter and that infringement cannot be justified under s. 1.”

[54] I also have made note of the decision of the Court in R. v. Downey 1992 109 (SCC), [1992] 2 S.C.R. 10, at para. 23 in which it was said,

“Thus, there is implicit in the right to be presumed innocent an obligation on the Crown to made out a case for the accused to meet before a response can be called for from the accused.”

CHARTER OF RIGHTS AND FREEDOMS S. 11(d)

[55] Relying on the dicta in Oakes and Morrison, in my opinion, the need to prove an intention to contravene the IRPA is an important and essential element of the offences in issue, offences which are criminal in nature. An accused is only guilty of such offences if his intent was to contravene the IRPA. The Crown bears the onus of proving beyond a reasonable doubt, the essential elements of the charges. The Applicant is entitled to be presumed innocent until proven otherwise and is not required to testify or call evidence. S. 11(d) constitutionally protects the presumption of innocence, which is at the foundation of our criminal law and is to be accorded a high degree of protection.

[56] As was done in Oakes and Morrison, I reject the argument that the s. 122(2) presumption does not violate s. 11(d) because it is rebuttable. The section mandates the trier of fact to infer an intent to contravene the Act, “in the absence of evidence to the contrary”. Therefore, an accused, in order to rebut the presumption, would be required to call evidence to the contrary which is a violation of the presumption of innocence and, on the element of intent, reverses the burden of proof.

[57] Reversing the onus and requiring an accused to disproof intent is, on its face, a s. 11(d) Charter violation, unless it can be proven that the substituted facts lead “inexorably” to the existence of the essential elements it replaces.

[58] I have concluded that proof, beyond a reasonable doubt, of possession and knowledge that the documents were altered does not lead, inexorably, to an intent to contravene the IRPA. An inexorable link is one that necessarily holds true in all cases (Morrison, para. 53). The nexus required to establish such a link is to be strictly construed. The Crown has failed to prove such a link.

[59] The purpose of the IRPA is to regulate and control immigration and to protect our national borders. In R. v. Appulonappa 2015 SCC 59, at para. 17,

“The IRPA is a complex stature dealing with the entry into Canada of foreign nationals through two processes – the immigration process and the refugee protection process.”

[60] There is no doubt the altered documents could be used by a person to enter or remain in Canada, with an intent to contravene the Act. However, the documents could be utilized for purposes other than to contravene the IRPA and as such, the presumption cannot be said to, necessarily hold true.

[61] The altered documents in issue were not utilized by the Applicant to enter Canada. He is a Canadian citizen and travelled on a Canadian passport. He provided a reason for being in possession of the altered documents and such a purpose, if true, does not violate the IRPA. The altered documents included three Mexican passports and could be used for purposes other than contravening the IRPA. The passports conceivably could be used to enter other countries like Mexico or Columbia and such a use cannot be said to contravene the IRPA. They could be used to create identities for reasons other than to contravene the IRPA.

[62] I also find that the presumption could lead to a finding of guilt despite a reasonable doubt and thereby violates the right to be presumed innocent. If an accused, on a balance of probabilities is unable to provide evidence to the contrary, regarding an intent to contravene the IRPA, he or she could be convicted despite the existence of a reasonable doubt.

[63] I find that s. 122(2) of the IRPA, violates the Applicant’s s. 11 (d) right to be presumed innocent, until proven guilty, according to law, has been violated.

[64] I now must consider s. 1 of the Canadian Charter of Rights and turn to whether the section can be saved under s. 1 of the Charter.

CHARTER OF RIGHTS FREEDOMS S. 1

[65] As set out above in Morrison, the Supreme Court reaffirmed the Oakes test in relation to the interpretation and applicability of s. 1 of the Charter.

[66] Since I have found a s. 11(d) violation, the Crown bears the onus of proving that the presumption in issue is reasonable and a demonstrably justified limitation to the Applicant’s infringed Charter rights. The standard of proof is the civil standard; proof by a preponderance of probability.

[67] In Oakes, it was said that to establish a limit on a Charter right the objectives of the legislative provisions must be of sufficient importance to warrant overriding a constitutionally protected right. In both Oakes and Morrison, the concept of “sufficient importance”, was not in issue. The need to prevent the importation of drugs and the need to curb child luring were said to be, sufficiently important.

[68] In the matter before me, the IRPA’s objectives and purposes, including the protection of our national border and the control of immigration, are, I find, of sufficient importance to satisfy this requirement. It is noted that neither counsel argued otherwise.

[69] A component of the Oakes proportionality test requires a determination of whether the s. 122(2) presumption impairs the Applicant’s s. 11(d) Charter rights as little as possible. In other words, no more than is necessary

[70] In Morrison, it was ruled that the section of the Code in issue, failed the minimal impairment test and accordingly, could not be saved by s. 1 of the Charter. It was determined that the Crown failed to establish that, absent the presumption, the child luring provision could not operate effectively (para. 69).

[71] I adopt the reasoning in Morrison and find that s. 122(2), for the same reason, does not impair the right of being presumed innocence, “as little as possible”. It cannot be said to be, minimally intrusive. In the absence of s. 122(2) of the IRPA, s. 122(1) can still operate effectively. As was said Morrison, in the matter before me, the Crown can still invite the trier of fact, to draw a logical and commons sense inference regarding “intent”, without the need for the presumption to be statutorily mandated.

[72] I use as an example a jury trial in which an accused is charged with importing drugs contrary to the Controlled Drug and Substances Act. The Crown can invite the jury on the facts to draw a logical and common sense inference that the accused intended to import drugs into Canada. The jury is instructed that they can, but do not have to, infer that an accused intended to do what he or she intended to do.

[73] As in Morrison, and on that point alone, s. 122(d) is not saved by s. 1 of the Charter. The Crown has failed to establish the section is a reasonable limitation which can be demonstrably justified, regarding the Applicant’s s. 11(d) rights.

[74] As said in Morrison, at para. 72,

“Although the presumption may ease the Crown’s burden of proving its case, prosecutorial convenience and expediency cannot justify the risk of convicting the innocent by subs. (3).”

CHARTER OF RIGHTS AND FREEDOMS S. 7

[75] Persons convicted of the offences faced by the Applicant are at risk of being incarcerated and thereby be deprived of their liberty.

[76] The existence of s. 122(2) of the IRPA, could result in a conviction which would put the Applicant’s liberty at risk and thereby is a breach the Applicant’s s. 7 Charter rights. To permit the Crown not to have to prove the essential element of intent, given the potential penalty of incarceration is a violation of the right to liberty.

RULING

[77] I find that s. 122(2) of the IRPA infringes the Applicant’s s. 11(d) and s. 7 Charter rights and the infringement cannot be justified under s. 1 of the Charter.

[78] Therefore s. 122(2) of the IRPA is declared to be without force and effect, pursuant to s. 52(1) of the Constitution Act, 1982.

[79] I am not prepared to suspend my ruling for a fixed period of time to allow Parliament to consider my decision and responding legislation. On that issue, I have had regard to R. v. Albashir 2021 SCC 48. I would do so if I was of the opinion that there is a compelling public interest, grounded in the Constitution, which outweighs the harms of temporarily maintaining the unconstitutional law (para. 1).

[80] The invalidity of s. 122(2) does not prevent the Crown from prosecuting this case and inviting the trier of fact to draw an inference regarding intent. For that reason, I find there is a lack of the necessary, compelling public interest.

Bielby J.

Released: January 25, 2022

COURT FILE NO.: CRIM NJ(F)721/21

DATE: 2022 01 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

SUHAIB MUSTAFA

Applicant

CONSTITUTIONAL RULING REGARDING SECTION 122(2) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT

Bielby J.

Released: January 25, 2022