HOW NOT TO CROSS THE BORDER

The decision below, just released, shows how NOT to cross the border. Obviously, these individuals did not have legal counsel to advise them as to how to deal with their immigration situation, which could have easily have been resolved without incident if they had not tried to do so much fancy footwork.

Canada (Minister of Citizenship & Immigration) v. Bodine

The Minister of Citizenship and Immigration and Alison Colette Bodine

Immigration and Refugee Board of Canada (Immigration Division)

M. Tessler Member

Heard: October 31, 2007
Judgment: October 31, 2007
Docket: A7-00753


M. Tessler Member:


1 Canada Border Services Agency alleges that Ms. Bodine is inadmissible to Canada for misrepresentation. Misrepresentation is a potential ground of inadmissibility found in section 40(1)(a) of the Immigration and Refugee Protection Act . It reads as follows:


40. (1) ...a foreign national is inadmissible for misrepresentation


(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act


2 The structure of my decision will be as follows. I will summarize generally the circumstances that led to the allegation. I will briefly discuss what this hearing does not concern. I will then look at the evidence and make some specific findings of act. Then I will move on to the legal issue.


3 Ms. Bodine is a citizen of the United States and neither a permanent resident nor a Canadian citizen. At approximately 2:00 a.m. on September 10th, Ms. Bodine arrived in her car at the Peace Arch border crossing. Her car was filled with many items, including a large chest, several backpacks and a bicycle. Ms. Bodine was examined by CBSA Officer Kelly Emmett (phonetic). Her car was also inspected by Officer Emmett and another officer. Officer Emmett noted that Ms. Bodine had more belongings than would be required for a trip to Canada for two to three months. She did not have any proof of available funds or of a US address to which she would return. Officer Emmett formed the opinion that Ms. Bodine would not leave Canada by the end of the period authorized for her stay in Canada. Ms. Bodine did not protest Officer Emmett's decision and agreed to voluntarily withdraw her application to enter.


4 Around noon on the same date, Ms. Bodine returned in her car to the same border crossing. At this time her car contained only a few items, including a single backpack. Ms. Bodine was admitted to Canada. She did not advise the officer who examined her at the primary inspection line that she had been allowed to voluntarily withdraw from Canada earlier in the day. She did not advise the officer that she had in her possession the information suggested by Officer Emmett that she have available.


5 A few minutes later, Andrew Barry (phonetic), a Canadian citizen, approached the border seeking to re-enter Canada. In his car were many of the items Ms. Bodine had had in her car when she sought to enter Canada earlier that morning. Among these items were personal papers of Ms. Bodine's, including an expired passport. When CBSA learned from Mr. Barry that Ms. Bodine had entered Canada a few minutes before, the belongings were seized and a warrant was issued for her arrest.


6 Canada Border Services alleges that when Ms. Bodine sought to enter Canada the second time, she misrepresented or withheld the fact that she had been refused entry earlier that day. CBSA also alleges that Ms. Bodine misrepresented the amount of belongings she was intending on bringing into Canada.


7 Now, I want to talk for a moment about what this hearing is not about. It is not about Officer Emmett's decision to deny Ms. Bodine entry into Canada. I am not here to look behind that decision. I will tell you that I am not sure that I agree with Officer Emmett's decision. The Immigration and Refugee Protection Act is very clear at section 22(2) that a person can have a dual intent when coming into Canada. It reads:


22. (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.


8 In my estimation, there was very little before Officer Emmett that suggested Ms. Bodine would not comply with the requirement that she leave Canada at the end of her visit. In fact, Officer Emmett had Ms. Bodine's computer file that showed that she had complied in the past with all requirements placed on her by Immigration authorities. She had been in Canada recently, as recently as the summer. She had just completed her Bachelor of Science degree at UBC in May after four years on study permits. For part of that time, she had an off-campus work permit. In four years, I would imagine she had made many friends and connections in Canada and might have had some interest in visiting them and perhaps seeking to live in Canada permanently.


9 Officer Emmett concluded from the quantity of belongings in Ms. Bodine's car that she would not leave Canada at the end of the period authorized for her stay. I am rather bewildered by that conclusion in the face of the provision for dual intent in the legislation and Ms. Bodine's untarnished record with Canada Immigration authorities.


10 It would not have been improper for Ms. Bodine to have been thinking about permanently living in Canada. It would not have been improper of her to seek to live with her partner for an extended period of time. All she was required to do was remain in status; that is, leave by the end of her authorized period or apply for an extension, and not work or study without authorization. These were concepts that Ms. Bodine understood well. Officer Emmett could simply have reminded Ms. Bodine of her obligations under the Immigration Act but instead chose to refuse her admission. Ms. Bodine was probably unaware that if she had been politely insistent, the question of her admission could have been adjudicated at a hearing such as this.


11 This hearing is also not about Ms. Bodine's political opinion or affiliations. Ms. Bodine was of the view that Officer Emmett's decision to deny her entry was influenced by antiwar literature found in her car. This was Ms. Bodine's impression of her interaction with Officer Emmett, but not Officer Emmett's recall of the event. The evidence is not at all conclusive on this subject. Officer Emmett says she never saw the literature. Ms. Bodine says Officer Emmett brought a sample from the car and asked her about it.


12 Perhaps Officer Emmett saw some antiwar literature and it influenced her decision to not admit Ms. Bodine. This would have been improper as it relates to no ground of inadmissibility and it would ignore the Charter right to freedom of thought, belief, opinion and expression and freedom of association. Nonetheless, this just brings us back to what I originally noted: Officer Emmett's decision to deny Ms. Bodine entry to Canada is not the subject of this hearing. What I have offered is an opinion on it. I have no authority to overrule it.


13 Now I will address the substance of this hearing. There are essentially two issues. The first issue is a factual issue: what happened at the border when Ms. Bodine sought to enter Canada the second time. The second issue is a legal issue: did she make a material misrepresentation when she came to the border the second time.


14 Ms. Bodine asserts that when she was denied to Canada, she decided to change her plans regarding Canada. She drove into Blaine, Washington and slept in her car. In the morning, she received a call from Simon Fraser University about a teaching assistant position she had applied for. She decided then that she would attempt to come into Canada for a couple of days to see about the job. In order to address two of Officer Emmett's concerns, Ms. Bodine obtained an ATM receipt showing her account balance and a statement showing her home address in Colorado.


15 In the meantime, her boyfriend, Mr. Barry, drove to Blaine to meet her. According to Ms. Bodine, she gave Mr. Barry his belongings that had been in her car, including the bicycle. She also gave him the chest that primarily contained the antiwar literature that Ms. Bodine felt caused her to be turned away at the border. According to her testimony, she transferred to Mr. Barry's car only things belonging to him and that when she approached the border the second time, she had with her only her belongings, her personal belongings, including a backpack and some other bags. She admitted that she inadvertently left a folder full of personal documents in the chest.


16 The Minister presented in a post-hearing letter a receipt for the seized goods, those seized from Mr. Barry's car, indicating that seized from Mr. Barry was a bike, a bike rack, helmet, wooden chest, two black bags, two red bags and a beige bag. Officer Dempsey, who inspected Mr. Barry's car, stated in a statutory declaration that the trunk of Mr. Barry's car contained several backpacks and a chest.


The trunk contained several backpacks and a large chest that contained goods such as several photo albums, old letters, old bills, unopened letters, several notebooks with notes, many old books, women's clothing, women's shoes, a certificate of achievement for a course that was completed, personal file folders filled with personal information, artwork. Political and cannabis literature was found within the contents. Inside one of the backpacks was an expired passport of a woman, as well as other picture identification.


17 Because these are items that Officer Dempsey personally inspected and seized, I prefer his statutory declaration over Ms. Bodine's oral testimony. Ms. Bodine attempted to minimize the significance of the transfer to Mr. Barry's car. She testified that only Mr. Barry's belongings and the political literature were moved. But in fact Mr. Barry's trunk contained many of Ms. Bodine's own possessions, including clothing and personal documents, and these were not just inadvertently in the chest but also in one of the backpacks.


18 I draw two conclusions: First, that Ms. Bodine unburdened herself of the bulk of the items from her car to create the impression to border officials that she was bringing into Canada no more than what she would need for a short sojourn in Canada, once again, in order to address Officer Emmett's concerns. Second, at this hearing Ms. Bodine wanted to create the impression that transferring the bulk of the items was not a calculated act; at least, it was only calculated in respect of the political literature that she felt had hindered her admission previously.


19 I think it is clear that when Ms. Bodine decided to attempt to enter Canada again, she gave regard to the CBSA officer's advice. She prepared herself by having an ATM receipt showing her bank balance, some proof of a US address, only those belongings needed for her visit and no eyebrow-raising political material.


20 The statutory declaration of the border officer who examined her on her second attempt to enter Canada reveals that the officer does not remember very much of the encounter, but does offer the opinion that if Ms. Bodine's car had contained all of her belongings, she would have been referred for a secondary examination. This opinion has no influence on my decision.


21 Ms. Bodine testified that she told the border officer that she was seeking to enter Canada for two or three days. She did not advise the officer that she had been allowed to leave earlier the same day. She was not referred to a secondary examination and therefore was not asked for the documents to show her funds and connection to the US.


22 This leads me to the second issue: whether there was a misrepresentation in law. There was considerable argument about whether and to what degree Ms. Bodine owed a duty of candour, in other words, a duty to spontaneously disclose to the border officer that she had been refused entry earlier that day. In my opinion, it is unnecessary to make this determination.


23 Misrepresentation may take many forms and occur in a variety of circumstances. It may occur when completing application forms for status in Canada, for example by claiming to be single when actually married. It may occur by presenting false documents, such as a fraudulent acceptance letter for a college. It may also arise from omissions, by the withholding of information relevant to one's admission, for example by not disclosing an existing criminal record when asked. This last example relates to the requirement in subsection 16(1) of the Act.


16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.


24 Clearly in this case Ms. Bodine was not asked by the officer about the quantity of belongings she was bringing into Canada. She was not asked because she was displaying only a minimum of personal effects. She was not asked because, as I have found in fact, she had transferred most of her belongings to Mr. Barry's car. The purpose of doing so was unquestionably to mislead the examining officer into believing she was bringing into Canada less than she actually was. I characterize this as either indirectly withholding information or directly misrepresenting. Not much turns on how it is phrased.


25 A misrepresentation must be of a material fact. "Material" means in context relevant to that person's admission to Canada and it's very case-specific. "Material" also relates to what a person objectively knows to be relevant to the border officials.


26 In this case, seeing only a few things in Ms. Bodine's car, the border officer's interest was not piqued. This is precisely what makes Ms. Bodine's misrepresentation material. She knew that a car full of possessions would attract unwanted attention, as it had when she tried to enter earlier the same day. She knew that she had been denied admission to Canada because, among other concerns, reasonable or not, she had had with her too much stuff. By removing the bulk of the belongings, she foreclosed or averted further inquiries, or in other words, she cut off an avenue of investigation for the officer.


27 This connects to the final element of the allegation: whether the misrepresentation induced or could have induced an error in the administration of the Immigration and Refugee Protection Act . If one withholds or misrepresents information that is relevant to whether or not one is admitted to Canada, then it creates the potential for an error in the administration of the Act; that is, the potential for admitting someone who may not be admissible. I appreciate that Ms. Bodine felt her earlier refusal of admission had been unjustified, and I am inclined to agree, but that did not justify Ms. Bodine in turn playing fast and loose with border officials.


28 In summary, I am satisfied that all the elements of the allegation have been established and I am required to make an exclusion order against Ms. Bodine, which I hereby do. So I'll conclude this matter and provide Ms. Bodine with the order.


29 -- PROCEEDINGS CONCLUDED