Friday, May 30, 2008

INCOMPETENCE AT VISA POST, CITIZENSHIP OFFICE, AND BOTCHED PROSECUTION ALLOWS CRIMINAL TO AVOID CONVITCION AND EVEN BE REWARDED WITH CITIZENSHIP!

Here is a recent case release Dy the Ontario Court of Appeal. A foreigner who was deported from Canada after being convicted of several offences under a false name, was inexplicably allowed to return from Jamaica, granted residency, and even citizenship, after authorities failed to realize that he was inadmissible to Canada due to his prior deportation and criminality. The prosecutors also failed to prove the case against him after cargoes were laid for returning without authorization.....what a comedy of errors! The end result: we end up as a society with a foreign criminal who is being rewarded by lying in his application for residency and even granted citizenship! And who said that crime does not pay?

Her Majesty the Queen v. Williams
[Indexed as: R. v. Williams]

89 O.R. (3d) 241

Court of Appeal for Ontario,

Rosenberg, Lang and Rouleau JJ.A.

March 11, 2008

Immigration -- Offences --- Appellant convicted under s. 55(1) of Immigration Act of returning to Canada without written consent of Minister after being deported -- Appeal from conviction allowed -- Lack of ministerial consent constituting element of offence -- Burden on Crown to prove that appellant did not have Minister's consent to return to Canada -- Trial judge erring in placing evidentiary burden on appellant to adduce some evidence of lack of written consent -- Crown failing to adduce sufficient evidence to make out that element of offence -- Appellant's false statements on his Immigrant Visa and Record of Landing that he had never been convicted of offence or required to leave Canada not constituting sufficient basis for conviction -- Immigration Act, R.S.C. 1985, c. I-2, s. 55(1).

The appellant was charged with returning to Canada without the written consent of the Minister after being deported, contrary to s. 55(1) of the Immigration Act. He admitted that he was convicted of criminal offences after being admitted to Canada under a false name, that he was deported under that name, and that he returned to Canada as a permanent resident under his real name. He testified that before returning, he told a woman at the Canadian High Commission in Jamaica that he had been deported, and that she gave him a piece of paper allowing him to come back. He no longer had that document. On the appellant's Immigrant Visa and Record of Landing, the word "no" was typed beside the question "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?" The trial judge rejected the appellant's evidence that he had received permission to return to Canada. While acknowledging that the burden is always on the Crown to prove allegations beyond a reasonable doubt, the trial judge stated, "There comes a time, however, when the burden of adducing evidence compels the production of an excuse, proviso or other reasonable description when it is alleged that a certain individual did a thing without the requisite permission." The appellant was convicted. He appealed.

Held, the appeal should be allowed.

Lack of written consent of the Minister is an element of the offence under s. 55(1) of the Act. Accordingly, the Crown has the burden of proving beyond a reasonable doubt that the accused did not have the Minister's consent. There is neither a persuasive burden nor an evidentiary burden on the accused. The common law principle that in certain circumstances an accused has the burden of providing, or at least the evidentiary burden of leading some evidence, that he has a status in law that would permit him to do an otherwise permitted act, had no application in this case. Nor did s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46, which puts the burden of proof for an "exception, exemption, proviso, excuse or qualification" on the accused. Section 794(2) applies in narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who otherwise would be culpable. The written consent of the Minister does not fit comfortably within the concept of "a status in law [that] has been conferred upon the accused who otherwise would be culpable". Written consent does not confer any status on a former deportee. Nor would it be accurate to characterize the s. 55(1) offence as a regulatory offence. The section creates a criminal offence. The trial judge erred in placing an evidentiary burden on the appellant to [page242] adduce some evidence of lack of written consent. The Crown did not prove lack of Ministerial consent beyond a reasonable doubt. At the conclusion of the Crown's case, the only possible circumstantial evidence of lack of written consent was the falsehood contained in the appellant's Immigrant Visa and Record of Landing. That falsehood was not a sufficient basis for a conviction.


Cases referred to

R. v. Fisher (1994), 17 O.R. (3d) 295, [1994] O.J. No. 358, 111 D.L.R. (4th) 415, 69 O.A.C. 286, 88 C.C.C. (3d) 103, 28 C.R. (4th) 63, 20 C.R.R. (2d) 275, 22 W.C.B. (2d) 552 (C.A.); R. v. H. (P.), [2000] O.J. No. 306, 129 O.A.C. 299, 143 C.C.C. (3d) 223, 71 C.R.R. (2d) 189, 49 M.V.R. (3d) 265, 45 W.C.B. (2d) 251 (C.A.); R. v. Lee's Poultry Ltd., [1985] O.J. No. 4, 7 O.A.C. 100, 17 C.C.C. (3d) 539, 43 C.R. (3d) 289, 12 C.R.R. 125, 13 W.C.B. 296 (C.A.); R. v. Zeplin, [1998] N.J. No. 204, 165 Nfld. & P.E.I.R. 306, 55 C.R.R. (2d) 314, 39 W.C.B. (2d) 254 (C.A.), consd

R. v. Edwards, [1975] Q.B. 27, [1974] 2 All E.R. 1085, [1974] 3 W.L.R. 285, 59 Cr. App. Rep. 213 (C.A.); R. v. Singh, [1981] M.J. No. 381, 63 C.C.C. (2d) 156, [1981] 6 W.W.R. 445, 12 Man. R. (2d) 319 (Co. Ct.), not folld

Other cases referred to

R. v. Davison, DeRosie and MacArthur (1974), 6 O.R. (2d) 103, [1974] O.J. No. 2146, 20 C.C.C. (2d) 424 (C.A.); R. v. Greenwood (1991), 5 O.R. (3d) 71, [1991] O.J. No. 1616, 51 O.A.C. 133, 67 C.C.C. (3d) 435, 8 C.R. (4th) 235, 14 W.C.B. (2d) 135 (C.A.); R. v. Hunt, [1987] A.C. 352, [1987] 1 All E.R. 1, [1986] 3 W.L.R. 1115, 84 Cr. App. Rep. 163, [1987] Crim. L.R. 263 (H.L.); R. v. Suraleigh, [2005] O.J. No. 807, 2005 ONCJ 62, 44 Imm. L.R. (3d) 160, 64 W.C.B. (2d) 141 (C.J.); R. v. Witter (1996), 27 O.R. (3d) 579, [1996] O.J. No. 358, 89 O.A.C. 1, 105 C.C.C. (3d) 44, 46 C.R. (4th) 214, 30 W.C.B. (2d) 13 (C.A.)

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5

Canadian Charter of Rights and Freedoms, s. 11(d)

Citizenship Act, R.S.C. 1985, c. C-29

Criminal Code, R.S.C. 1985, c. C-46, ss. 121 [as am.], 335 [as am.], 601 [as am.], 683 [as am.], 794(2) [previously 730(2)]

Immigration Act, R.S.C. 1985, c. I-2, ss. 55(1) [rep.], 57(1)

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 52(1), 125

Provincial Offences Act, R.S.O. 1980, c. 400, s. 48(3)

Authorities referred to

Hill, S.C. et al., McWilliams Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2007)

APPEAL from the conviction and sentence for illegal entry into Canada imposed by Takach J. of the Ontario Court of Justice, dated March 6, 2007.




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The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appeal concerns the allocation of the burden of proof on a prosecution under s. 55(1) of the [page243] Immigration Act, R.S.C. 1985, c. I-2. That provision made it an offence for a person who had been deported to return to Canada "without the written consent of the Minister", unless an appeal from the deportation order has been allowed. The appellant submits that the burden was on the Crown to prove that he did not have the written consent of the Minister and since it failed to do so, he should have been acquitted. In the alternative, the appellant appeals against the sentence of seven months imprisonment.

[2] That provision is now repealed and replaced by s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which is similar but not identical to s. 55(1).1 This appeal is somewhat complicated by the fact that the information charged the appellant with the offence under s. 52(1), even though the parties agree that if any offence was committed it was under the Immigration Act when the appellant admittedly returned to Canada in 1996. However, the appellant concedes that he was not prejudiced by the error and that if this court is of the view that he was properly convicted the information should be amended in accordance with ss. 683(1)(g) and 601(3) (a) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] In my view, the burden was on the Crown to prove that the appellant did not have the Minister's consent to return to Canada. I am also satisfied that the Crown failed to adduce sufficient evidence to make out that element of the offence and, accordingly, the conviction was unreasonable.

[4] Accordingly, I would allow the appeal, set aside the conviction and enter an acquittal. In light of that disposition, I need not deal with the question whether this would be an appropriate case to amend the information as requested by the Crown.

The Facts

[5] The appellant was tried on two offences. In addition to the illegal entry charge that is the subject of this appeal, the appellant was charged with an offence contrary to the Citizenship Act, R.S.C. 1985, c. C-29.

[6] The evidence led by the prosecution was as follows. Someone using the name of "John Haughton" received landed status in Canada in 1986. Using that name, the appellant was convicted of [page244] several criminal offences and was deported on July 6, 1995, as a result of "criminality".

[7] On April 21, 1996, the appellant received landed status in Canada using his true name, Andrew Maurice Williams. He became a Canadian citizen on September 22, 2004. The appellant established through cross-examination of the only Crown witness, a member of the R.C.M.P. immigration and passport section, that records relating to the appellant in the Canadian High Commission in Jamaica had been destroyed.

[8] The Crown filed a number of documents pursuant to the Canada Evidence Act, R.S.C. 1985, c. C-5. Among the documents listed in the notice of intention to introduce records under the Act is listed "Certificate -- No Consent to Return". However, Crown counsel did not attempt to file that document. He did, however, file one document that is of interest to the ground of appeal raised in this case: a copy of a "Immigrant Visa and Record of Landing". It appears that most of this document was prepared in Kingston, Jamaica. The word "no" is typed beside the question: "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?"

[9] At the conclusion of the Crown's case, the trial judge dismissed an application for a directed verdict on the illegal entry charge but allowed the application in respect of the Citizenship Act charge.

[10] The appellant testified that he first came to Canada in 1992 using John Haughton's papers. He admitted that the criminal record under Haughton's name contains convictions for offences for which he had been convicted in 1994. He also admitted that he was deported under the name of Haughton on July 6, 1995. Using his real name, he returned to Canada on April 21, 1996, having been sponsored by his wife.

[11] The appellant testified that before returning in 1996, he dealt with a woman at the Canadian High Commission in Jamaica. He told the woman that he had already been to Canada illegally and was deported, and filled out some papers that showed he had been in Canada under a different name. The woman then gave him the visa and a piece of paper "that permit me to come back". The appellant said that these documents were in his apartment in Stoney Creek but he had not been able to get them since he had been in custody for two years.

[12] On cross-examination, the appellant was asked about the word "no" typed beside the question: "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?" in the Immigrant Visa and Record of Landing. The appellant claimed not to be able to make out the [page245] word "no". During cross-examination Crown counsel also produced to the appellant his application for Canadian citizenship. In answer to a series of questions, including the question whether he had ever been under a deportation order, the appellant had checked the box: "Do not apply to me." The appellant was not asked for an explanation for this falsehood.

[13] Finally, the appellant was asked what efforts he had made to retrieve the document giving him permission to return to Canada. He testified that he was living alone when he was arrested and there was nobody to contact to get his document. He said everything in the apartment was lost.

The Trial Judge's Reasons

[14] The trial judge began his reasons by stating that there was "no evidence given that an officer allowed [the appellant] to return to Canada as proof of the fact stated". After reviewing the evidence, the trial judge rejected the appellant's testimony that he had received permission to return to Canada. He took into account that the appellant had made no effort to get the document he claimed to have received in Jamaica and that he lied in the Immigrant Visa and Record of Landing and lied in the citizenship application. The trial judge stated that he believed the appellant "neither sought, nor was given permission by any official to return to this country". The trial judge stated that the Crown had proved the case beyond a reasonable doubt.

[15] Then, the trial judge turned to the appellant's argument that the burden was on the Crown to prove that he did not have permission to return to Canada. The trial judge rejected that position in these terms:



· However, there need not be any legislative provision in order for the Crown to make out its case. The burden is always on the Crown to prove the allegations beyond a reasonable doubt.



· There comes a time, however, when the burden of adducing evidence compels the production of an excuse, proviso, or other reasonable description when it is alleged that a certain individual did a thing without the requisite permission.



· In my view, as I have noted, the Crown has proven its case; and I find the accused guilty as charged.

The Nature of the Appeal

[16] Counsel for the appellant submits that "without the written consent of the Minister" is an element of the offence. Section 55(1) of the Immigration Act did not expressly shift the burden of proof of that element to the accused and, consistent with [page246] Canadian Charter of Rights and Freedoms values, it should not be interpreted as doing so. She also points out that s. 794(2) of the Criminal Code, which puts the burden of proof for an "exception, exemption, proviso, excuse or qualification" on the defendant, only applies in summary conviction proceedings. In this case, the Crown proceeded by indictment. She also notes that in upholding the constitutionality of provisions such as s. 794(2), the courts have tended to give it a restricted interpretation.

[17] Crown counsel submits that placing the burden on the appellant with respect to consent to enter Canada is consistent with the common law principle recognized by the English Court of Appeal in R. v. Edwards, [1975] Q.B. 27, [1974] 2 All E.R. 1085 (C.A.). He submits that this principle is not limited to summary conviction offences and should apply in the circumstances of this case. Although s. 794(2) and Edwards appear to have been interpreted as placing a persuasive burden on the accused,2 Mr. Rahman only argues that there should be an evidentiary burden on the accused. As such, he submits, there would be no violation of the Charter. I point out that Mr. Rahman did not base his argument on the theory that requiring the Crown to prove lack of consent would place a difficult or impossible burden on the prosecution.3 As I have noted, the Crown seems to have had a document to prove lack of consent but, for some reason, did not tender it: see also R. v. Suraleigh, [2005] O.J. No. 807, 2005 ONCJ 62 (C.J.).

Analysis



· (1)

Interpretation of section 55(1)

[18] In my view, this case principally involves a question of interpretation of legislation. For convenience, I set out s. 55(1) of the Immigration Act:



· 55(1) Subject to section 56, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister, unless an appeal from the order has been allowed. [page247]

[19] We were referred to two decisions that have considered the interpretation of the unlawful entry offence. In R. v. Singh, [1981] M.J. No. 381, 63 C.C.C. (2d) 156 (Co. Ct.), Jewers Co. Ct. J. considered former s. 57(1) of the Immigration Act, 1976, which was worded in virtually identical terms to s. 55(1). The Crown had proceeded by way of summary conviction and Jewers Co. Ct. J. held that the burden was on the accused to prove that he had the consent of the Minister by reason of former s. 730(2) of the Criminal Code (now s. 794(2)). My reading of Singh suggests that Jewers Co. Ct. J. was of the view that there is a persuasive burden on the accused to prove consent.

[20] More recently, in R. v. Zeplin, [1998] N.J. No. 204, 165 Nfld. & P.E.I.R. 306 (C.A.), Green J.A. speaking for the court seemed to be of the view that lack of consent of the Minister was an element of the offence that must be proved beyond a reasonable doubt by the prosecution. The accused in Zeplin was prosecuted by indictment. Green J.A. held as follows [at para. 18]:



· As to the second issue, namely, whether the record discloses sufficient evidence to support the conviction, appropriate viva voce and documentary evidence was adduced at trial to establish that the appellant was made subject to a deportation order dated August 17th, 1997 and that pursuant to that order, he departed Canada at Woodstock, New Brunswick on September 17th, 1997. Furthermore, evidence was given that a search had been made of the Immigration Query Response Center which indicated that the Minister of Citizenship and Immigration was not recorded as having given his consent to the appellant for his return to Canada. The search was made in the appellant's name as well as six aliases. The evidence clearly supports the external elements of the offence.

(Emphasis added)

[21] Green J.A. was aware of the earlier decision in Singh, but he limited its application in Zeplin to the proposition that even where the prosecution has proved lack of consent, the accused can avoid prosecution by proof that he exercised due diligence.

[22] In my view, the holding in Zeplin is preferable because it is generally consistent with the approach taken by this court in interpreting a similar offence in the Criminal Code. Section 121(1)(c) makes it an offence for a government official to accept from a person having dealings with the government any kind of benefit for himself or a member of his family "unless [he has] the consent in writing of the head of the branch of government that employs [him]". In R. v. Greenwood (1991), 5 O.R. (3d) 71, [1991] O.J. No. 1616, 67 C.C.C. (3d) 435 (C.A.), at pp. 445-46 C.C.C. and again in R. v. Fisher (1994), 17 O.R. (3d) 295, [1994] O.J. No. 358, 88 C.C.C. (3d) 103 (C.A.), this court held [page248] that the absence of consent of the accused's superior is an element of the offence. In Fisher, the court went on to hold a portion of s. 121(1)(c), which placed the onus on the accused to prove consent on a balance of probabilities, unjustifiably violated the presumption of innocence contrary to s. 11(d) of the Charter.

[23] Similarly, it is my view that lack of written consent of the Minister should be considered an element of the s. 55(1) offence. Entry into Canada, for example as a visitor, is not a criminal offence. What makes it an offence is: (1) a deportation order was made against the person; (2) the person was removed or otherwise left Canada; and (3) the person returned to Canada without the written consent of the Minister.

[24] Since it is an element of the offence, the Crown has the burden of proving beyond a reasonable doubt that the accused did not have the Minister's consent. There is neither a persuasive burden nor evidentiary burden on the accused: see the discussion of the burden of proof in McWilliams Canadian Criminal Evidence at 24:20 to 24:40.20.30.



· (2)

The common law rule in Edwards

[25] I will also briefly consider the application of the common law rule in Edwards. As indicated, the Crown submits that the common law principle referred to in Edwards and codified for summary conviction offences in s. 794(2) applies. The Crown submits that it is a common law principle that in certain circumstances an accused has the burden of proving, or at least the evidentiary burden of leading some evidence, that he has a status in law that would permit him to do an otherwise prohibited act. The common law principle was expressed in Edwards in the following terms at pp. 39-40 Q.B.:



· In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely the exception.

[26] Edwards was approved by the House of Lords in R. v. Hunt, [1987] A.C. 352, [1987] 1 All E.R. 1 (H.L.), and was referred to by [page249] this court in R. v. Lee's Poultry Ltd., [1985] O.J. No. 4, 17 C.C.C. (3d) 539 (C.A.). Lee's Poultry Ltd. concerned the constitutionality of s. 48(3) of the Provincial Offences Act, R.S.O. 1980, c. 400, which is similar to s. 794(2) of the Criminal Code.

[27] The interpretation of the common law principle, like s. 794(2) or s. 48(3), is far from self-evident. To use the phrase from s. 794(2), what is an "exception, exemption, proviso, excuse or qualification" as opposed to an element of the offence or a defence? Some assistance is provided by the decision of this court in R. v. H. (P.), [2000] O.J. No. 306, 143 C.C.C. (3d) 223 (C.A.), at para. 14. The offence of occupying a vehicle known to be taken without the owner's consent under s. 335(1) of the Criminal Code is subject to s. 335(1.1), which provides that the offence does not apply to an individual who attempts to leave the vehicle on becoming aware that it was taken without the owner's consent. In H. (P.), Finlayson J.A. explained the relatively narrow reach of s. 794(2) in a prosecution for the offence under s. 335(1) [at para. 14]:



· Section 794(2) of the Code simply has no application to the defence set out in s. 335(1.1). It applies in narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who otherwise would be culpable.

(Emphasis added)

[28] The written consent of the Minister does not comfortably fit within the concept of "a status in law [that] has been conferred upon the accused who otherwise would be culpable". As I understand the scheme of the Immigration Act, the Minister's written consent constituted permission for the act of entry or, in the words of the provision, to "come into Canada". It does not confer any status, such as refugee, visitor or landed status, on the former deportee. Nor, in my view, would it be accurate to characterize the s. 55(1) offence as a regulatory offence, and Crown counsel did not suggest otherwise. The section creates a criminal offence, exemplified in this case by the significant prison sentence imposed on this appellant.

[29] In holding that s. 48(3) of the Provincial Offences Act did not infringe s. 11(d) of the Charter, this court in Lee's Poultry Ltd. at p. 544 C.C.C. considered the provision fair and just:



· Lawton L.J. in R. v. Edwards, supra, said, referring to the experience of centuries, that the exception was needed "to ensure justice is done both to the community and the defendant". Weighing the fundamental rule, the exception with which he was concerned and justice, he clearly did not consider the exception put the accused "in a most unfair position", rather that it was a just position and I think it is fair to say that our Legislature and Parliament, has so regarded it over these many years. As my brother [page250] Dubin commented during the argument: "How could it be unfair to ask a person to produce his licence or evidence that he has one? Surely, it is the sensible thing to do."

[30] In my view, the same cannot be said about written consent under s. 55(1). As I have said, the consent is permission for a specific act. On the hearing of the appeal, counsel were unable to inform us whether the person keeps the written consent upon entering Canada, whether the person must hand it in at the border to the immigration officer but keeps a copy, whether it is attached to the visa or passport and so on. In any event, consider the position of someone like this appellant who is charged with the offence ten years after he entered. While he might be expected to keep the visa or other document that gives him status in Canada, it is not clear that he could be expected to keep a document that appears to have relevance only upon entry.

[31] Like the consent of the government employee's superior to the s. 121(1)(c) offence, the Minister's consent is not a licensing scheme. The words of Arbour J.A. in Fisher at pp. 305-06 O.R., p. 113 C.C.C., are helpful in understanding the difference:



· In my opinion, the written consent contemplated by s. 121(1)(c) is not analogous to a registration certificate, or to a licence or permit. In fact, the only thing that might suggest otherwise is the requirement that the consent be in writing. Typically, a licensing scheme is one that regulates and monitors a field of activity for a fee. There is no suggestion, in s. 121, of governments administering a licensing scheme to permit their employees to obtain benefits and rewards from government contractors. What is contemplated by the requirement that government employees obtain the consent of their superiors before accepting benefits is the removal of any secrecy and the judgment of a person in authority to the effect that the proposed gift will not compromise the integrity of the government. What the employee obtains from his or her superior is not a permit or a licence, but a consent. There are other activities governed by the Criminal Code which may be criminal absent a person's consent, but not so if consent is obtained. Assault and theft readily come to mind. I would not be prepared to hold that the consent contemplated by s. 121(1)(c) becomes a form of licensing merely because it has to be in writing... I, therefore, conclude that the reverse onus provision contained in s. 121(1)(c) of the Code infringes s. 11(d) of the Charter.

(Emphasis added)

[32] Thus, in my view, the common law rule has no application to the Minister's consent under s. 55(1) and the burden was on the Crown to prove beyond a reasonable doubt that the appellant entered Canada without the Minister's consent.4 As [page251] I have pointed out, Crown counsel fairly did not take the position that the burden should be placed on the accused because to do otherwise would place an inordinate burden on the prosecution. Indeed, on the basis of Zeplin, a database called the Immigration Query Response Center is available to the Crown.

[33] It was common ground that the trial judge at least placed the evidentiary burden on the appellant to adduce some evidence of lack of written consent. In my view, this is a fair reading of the trial judge's reasons. I do not believe he placed a persuasive burden on the accused. The question is whether this error affected the verdict. Resolution of that issue depends on whether the Crown proved lack of Ministerial consent.

[34] At the conclusion of the Crown's case, the only possible circumstantial evidence of lack of written consent was the falsehood contained in the appellant's Immigrant Visa and Record of Landing. During the defence case there was the additional falsehood in the citizenship application.

[35] I am not satisfied that the falsehood on the Immigrant Visa and Record of Landing is a sufficient basis for a conviction. While one might be able to infer something about the appellant's conduct or state of mind from this falsehood, the point in issue is not the appellant's state of mind but the conduct of the Minister. The citizenship application falsehood also cannot be the basis for inferring that the appellant did not have written consent when he entered Canada some eight years earlier.

[36] Finally, this is not a case where rejection of the appellant's testimony can bolster the Crown's case or otherwise provide affirmative evidence of guilt: see R. v. Davison, DeRosie and MacArthur (1974), 6 O.R. (2d) 103, [1974] O.J. No. 2146, 20 C.C.C. (2d) 424 (C.A.), at pp. 428-30 C.C.C.; R. v. Witter (1996), 27 O.R. (3d) 579, [1996] O.J. No. 358, 105 C.C.C. (3d) 44 (C.A.).

Disposition

[37] In my view, the conviction was unreasonable. Accordingly, I would allow the appeal, set aside the conviction and enter an acquittal.

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