COURT RULES ON USE OF FALSE PASSPORT UPON ENTRY

This is a rare case on s.133 of IRPA just released. The reason why these cases are uncommon, is that individuals using fake passports to enter Canada are seldom charged with the breach, and given an opportunity to make refugee claims despite their use of a false document. While the decision below is correct in law, from a policy standpoint it is sheer folly: if a person knows with certainty that procuring and using a false passport carries no serious consequence, what would stop him or fer from doing so? Note that in this case, the fake was detected upon entry, so if it would not have been detected, the person would have gained entry to Canad unimpeded. In an era where security is paramount, it seems insane to reward uses of fake documents in this manner. this is like issuing an open invitation to forgers and criminal rings to make and sell false passports, and for individuals to "try their luck " in using them. This policy needs reconsideration on an immediate basis.

R. v. Agbor
Between
Regina, Respondent, and
Manasseh Enow Agbor, Appellant

[2010] B.C.J. No. 1197
2010 BCCA 278Docket: CA036692 British Columbia Court of Appeal
Vancouver, British Columbia
J.E. Hall, P.A. Kirkpatrick and H. Groberman JJ.A.Heard: May 28, 2010.Oral judgment: May 28, 2010.
(11 paras.)
Appeal From:
On appeal from: Provincial Court of British Columbia, September 17, 2008 (R. v. Agbor, Richmond Registry 52372-1) Counsel:


Oral Reasons for Judgment

The judgment of the Court was delivered by

1 H. GROBERMAN J.A. (orally):-- On September 17, 2008, the appellant pleaded guilty to one count of using a false document to enter or remain in Canada, contrary to s. 122(1)(b) of the Immigration and Refugee Protection Act. He now seeks to have the conviction quashed. The Crown agrees that that should occur, and also seeks an order for a judicial stay of proceedings.
2 As a result of confusion over whether the matter proceeded summarily or by indictment in Provincial Court, the accused initially filed his notice of appeal in the Supreme Court. By the time the error was detected, the appeal period had expired. The appellant therefore seeks an extension of time to appeal. The application is unopposed. I would allow the extension to the date of the filing of the notice of appeal, December 19, 2008.
3 The charge on which the conviction was entered related to the appellant's entry into Canada on January 27, 2008 using a fake French passport. The fake passport was detected at the time of attempted entry, and the appellant was found to be inadmissible to Canada. A removal order was issued against him.
4 The appellant subsequently attempted to make a refugee claim, but was ineligible to do so because section 99(3) of the Act does not allow a person who is subject to a removal order to make such a claim. He was allowed, however, under section 112 of the Act to make an application to the Minister for protection, and he did so on September 28, 2008. Section 113 of the Act provides that a successful application for protection confers refugee protection on the applicant.
5 The appellant was ultimately successful in his application for protection. He now has refugee protection in Canada.
6 Section 133 of the Act prevents refugee claimants from being charged with certain immigration offences unless and until their claims have been rejected. The section is as follows:
133.
A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.
7 In Canada v. Li, 2010 FCA 75, it was held that an application for protection under section 112 constitutes a claim for refugee protection for the purposes of s. 133 of the Act. Accordingly, the accused should not have been charged with the offence under s. 122 pending determination of his claim for protection. As the claim for protection has now succeeded, the appellant cannot be charged with the offence.
8 In the circumstances, I am satisfied that there was no basis for the charge against the appellant. His guilty plea should be struck, his conviction quashed, and a judicial stay of proceedings entered. I would so order.

9 J.E. HALL J.A.:-- I agree.
10 P.A. KIRKPATRICK J.A.:-- I agree.
11 J.E. HALL J.A.:-- The appeal is allowed in the terms indicated by Mr. Justice Groberman in his reasons
H. GROBERMAN J.A.