MISREPRESENTATIONS AT THE BORDER

See case below. In this case, the issue was whether the driver knew that the passenger's identity was false. Luckily for the driver, there was reasonable doubt in the case, partly as a result of CBSA mishandling the examination. Others are not so lucky.  Driving across the border with passengers you do not know intimately can be a dangerous thing.

R. v. Aderbigbe

Between
Her Majesty the Queen, and
Adeyinka Aderbigbe

[2012] O.J. No. 6553

2012 ONCJ 858

Information No. S12-0973 x 2

 Ontario Court of Justice
St. Catharines, Ontario

D.A. Harris J.

Oral judgment: November 8, 2012.

(25 paras.)

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REASONS FOR JUDGMENT

1     D.A. HARRIS J. (orally):-- Adeyinka Aderbigbe faces charges that on or about March 10, 2012, at the Town of Niagara-on-the-Lake, he did knowingly misrepresent or withhold material facts relating to a relevant matter that could have induced an error in the administration of the Immigration and Refugee Protection Act, to wit, by identifying Wasiu Ilumoka to the Canada Border Services officers as Adeyinka Adeniyi, contrary to S. 127(a) of the said Act, thereby committing an offense pursuant to S. 128(a) of the said Act.

2     He is further charged that on or about the same date and place, he did knowingly attempt to aid and abet Wasiu Ilumoka to contravene S. 122(1)(b) of the Immigration and Refugee Protection Act, thereby committing an offense pursuant to S. 131 of the Immigration and Refugee Protection Act.

3     There is no dispute that Mr. Aderbigbe and Wasiu Ilumoka attempted to enter Canada together at the Queenston/Lewiston Bridge entry point, and that Wasiu Ilumoka attempted to falsely identify himself as Adeyinka Adeniyi.

4     The issue is whether Mr. Aderbigbe knew what Mr. Ilumoka was doing and knowingly misrepresented or withheld this information or knowingly attempted to assist Mr. Ilumoka in his deception.

5     In my effort to resolve this question I note that everyone agrees with the following facts:

6     On March 10, 2012, Mr. Aderbigbe drove a motor vehicle up to the Canada Customs primary inspection booth at the Queenston/Lewiston Bridge in Niagara-on-the-Lake. Wasiu Ilumoka was a passenger in that motor vehicle. Mr. Aderbigbe presented his valid United States passport card to Canada Border Services Officer Susanna Rossi. Mr. Ilumoka passed a U.S. permanent resident card in the name of Adeyinka Adeniyi to Mr. Aderbigbe who passed it on to Officer Rossi. When asked for further identification, Mr. Aderbigbe presented his driver's license. Mr. Ilumoka presented a bank card. This latter piece of identification did not contain a photograph and Officer Rossi returned it to Mr. Ilumoka. She then directed both men to proceed to the secondary inspection station. There, Officer Samantha Collee spoke to both men. Mr. Aderbigbe presented his United States passport card. Mr. Ilumoka presented the United States permanent resident card. It was not his permanent resident card.

7     Mr. Aderbigbe testified in his own defense. He agreed with the above facts. He said, however, that he only became aware that Mr. Ilumoka was using someone else's permanent resident card when the two men were going from the primary inspection station to the secondary inspection station. He had known Mr. Ilumoka for a number of years. He did not know that Mr. Ilumoka had no legal status in the United States. He did not know that Mr. Ilumoka had identification belonging to Mr. Adeniyi. Mr. Aderbigbe also knew Mr. Adeniyi. Mr. Adeniyi and Mr. Ilumoka did not look alike. The picture of Mr. Adeniyi on the permanent resident card did not look like Mr. Ilumoka.

8     Mr. Aderbigbe said that he was shocked when he discovered what Mr. Ilumoka was doing and he did not knowingly do anything to assist Mr. Ilumoka in entering Canada illegally.

9     The prosecution argued that I should not believe Mr. Aderbigbe. The first issue here then is one of credibility.

10     As in any criminal case, if I believe Mr. Aderbigbe in his statement that he did not commit the offense as charged, I must find him not guilty. Even if I do not believe him, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all of the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit him.

11     In going through the process to make those determinations I must remember that Mr. Aderbigbe, like every other person charged with a crime, is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. Mr. Aderbigbe does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. I am aware that it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do this. Absolute certainty is a standard of proof that does not exist in law.

12     However, I must remember the warning from the Supreme Court of Canada in R. v. Starr (2000), 147 C.C.C. (3d) 449 (SCC) at page 545, where they state, "The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."

13     This is a tough standard, and is so tough for very good reason. As Justice Cory said in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (SCC) at page 6, "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principal safeguards which seeks to ensure that no innocent person is convicted."

14     I cannot say that I absolutely believe everything that Mr. Aderbigbe said. But I cannot say that I disbelieve him either.

15     The prosecutor argued that his evidence could not reasonably be true. I disagree. Mr. Aderbigbe, apparently, did most of the talking at both the primary and secondary inspection points.

16     That, however, seems reasonable to me. He was the driver, and as such he was the one closest to Officer Rossi at the primary inspection point. Common sense dictates that he would be taking the lead in answering her questions.

17     I also note that Mr. Aderbigbe was using his own perfectly valid United States passport card.

18     Mr. Ilumoka, on the other hand, was the passenger on the side of the vehicle farther away from Officer Rossi. He was also the one using false identification. He was the one with the reason to say very little and avoid attracting attention to himself at either inspection point. So I do not attach so much significance to the fact that Mr. Aderbigbe did most of the talking. I certainly do not read so much into it as to disbelieve his testimony.

19     Similarly, I found it reasonable for the two men to have agreed to share expenses, with each of them assuming ultimate responsibility for certain costs. In some cases this would require Mr. Ilumoka to reimburse Mr. Aderbigbe for some things that Mr. Aderbigbe had prepaid, such as the car rental or the hotel. There was nothing about this aspect of Mr. Aderbigbe's testimony that caused me to doubt his truthfulness.

20     There were some discrepancies between what Mr. Aderbigbe said in court and what Inspector Michele Axe-Scott said that he told her. I found, however, that I cannot rely on her evidence in that regard. To my great surprise, she testified that she did not make either a video or audio recording of her interview with Mr. Aderbigbe. She did not even purport to write out each question and answer verbatim. She did not ask Mr. Aderbigbe to read over her notes and acknowledge them as being accurate. I would normally expect such an important interview to be recorded using either audio or, better yet, video equipment. This is not a difficult process. The police do it regularly. There is no reason why the Canada Border Services Agency cannot do so too. Their investigations into possible offenses are certainly important enough to warrant this. Such a recording would provide me with an accurate record of exactly what was said to Mr. Aderbigbe. It would determine beyond any doubt whether any threats or inducements were made in order to obtain his statements. That was not the issue here where counsel for Mr. Aderbigbe admitted on his behalf that the statement was made voluntary. However, such a recording would have provided me with an accurate recording of exactly what was said by Mr. Aderbigbe. Instead, I received a summary of what Inspector Axe-Scott thought that Mr. Aderbigbe had said.

21     When Mr. Aderbigbe gave his evidence in court, I found his accent to be so heavy, that I frequently had trouble understanding him. I had sufficient difficulty in this regard, that I certainly questioned Inspector Axe-Scott's statement that she had no problems at all with his accent. On the contrary, I am far from satisfied that she understood correctly what Mr. Aderbigbe had said, let alone understood the subtle nuances of his statements. It would certainly have been possible for her to have heard "we" when Mr. Aderbigbe had said "he", a mistake that Mr. Aderbigbe specifically claimed was found in her written notes. This issue would not have come up had the interview been recorded properly.

22     In the absence of such a recording, I am not prepared to give Inspector Axe-Scott's interpretation of what Mr. Aderbigbe had to say sufficient weight to cause me to disbelieve what he had to say in court.

23     Officer Collee stated that Mr. Aderbigbe was pleasant the whole time he was with her, and laughing. However, when she asked Mr. Ilumoka if he was the person on the permanent resident card, Mr. Aderbigbe became very silent and looked away. His smile disappeared and he then had a sad look. This corroborates to some degree Mr. Aderbigbe's testimony as to his reaction once he realized that his friend, Mr. Ilumoka, had lied to the Canadian authorities and that Mr. Ilumoka might be about to continue to lie.

24     I note, also, that not one of the Canada Border Services Agency people testified that Mr. Aderbigbe ever referred to Mr. Ilumoka as Adeyinka Adeniyi, nor did Mr. Aderbigbe say that Mr. Ilumoka was the person shown in the photograph on the permanent resident card.

25     After considering all of the evidence, I find that I have a very real doubt as to whether Mr. Aderbigbe knowingly misrepresented or withheld material facts, or that he knowingly attempted to aid and abet Mr. Ilumoka in the contravention of the Act. Accordingly, I find him not guilty and the charges are dismissed.