Steven Tress

The accused, Suhaib Mustafa, was charged with three counts of possessing and three counts of importing altered Mexican passports in order to contravene the Immigration and Refugee Protection Act (IRPA).

The passports were found concealed in his luggage upon entry to Canada.

The court clarified that knowledge of the fraudulent nature of the passports is not an essential element of the offence under s.122(1) of the IRPA, but rather the intent to contravene the Act.

Relying solely on circumstantial evidence, the Crown failed to prove beyond a reasonable doubt that Mr. Mustafa possessed and imported the passports with the specific intent to contravene the IRPA, as other reasonable inferences inconsistent with guilt could be drawn from the evidence.

The court found significant gaps in the Crown's investigation.

Consequently, Mr. Mustafa was found not guilty on all counts.

The applicant was charged with possessing and importing fraudulent documents under the Immigration and Refugee Protection Act (IRPA).

He brought a constitutional challenge seeking to strike down the mandatory rebuttable presumption in s. 122(2) of the IRPA, which presumes an intent to contravene the Act upon proof of possession of altered documents.

The court found that the presumption violates the right to be presumed innocent under s. 11(d) of the Charter because proof of possession does not lead inexorably to an intent to contravene the IRPA.

The court also found a violation of s. 7 of the Charter.

The violations could not be saved under s. 1, as the presumption did not minimally impair the applicant's rights.

Section 122(2) was declared of no force and effect.