R. v. Mo Date:, 2012 BCPC 329

Citation: R. v. Mo Date: 20120815 2012 BCPC 0329 File No: 202430-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GONGYOU MO also known as JASON MO EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: G. Sair Counsel for the Defendant: N. Preovolos Place of Hearing: Vancouver , B.C. Date of Hearing: August 15, 2012 Date of Judgment: August 15, 2012

Introduction [ 1 ] THE COURT: The accused, Jason Mo, has been charged with seven counts of aiding or abetting individuals seeking entry status into Canada, principally from China, by directly or indirectly misrepresenting material facts, contrary to s. 126 of the Immigration and Refugee Protection Act .

If proven, the charges are serious and would carry significant penalties, including a significant financial penalty and jail, or both. [ 2 ] A single Criminal Code charge alleging an offence under s. 367(1) [sic] was also laid, but upon the invitation of the Crown at the conclusion of the case, this court found the accused not guilty of that offence. Issue [ 3 ] The sole issue to be determined is whether or not the Crown has established the necessary proof beyond a reasonable doubt in relation to the offences before this court.

Overview [ 4 ] The immigration charges range over dates from December 2001 through May of 2006. Within the timeframe of the charges, the accused was an officer and director of an immigration consulting firm called Candevelop Inc., carrying on business in Burnaby, British Columbia. His wife also was an officer and director of the same business. [ 5 ] The principal role of the accused in carrying on his business was to facilitate primarily Chinese citizens gaining lawful entry status into Canada. The services he provided ranged from temporary study permits through to permanent resident status.

The accused was also recognized by various colleges and other education institutions as a source for foreign student placement, for which he would receive a commission over and above fees received from his clients seeking lawful entry. [ 6 ] At the material times relating to the charges before this court, the accused was an accredited member of the Canadian Society of Immigration Consultants. [ 7 ] The accused and Candevelop Inc. became a target of an investigation as a result of Border Service concerns that the accused, as a representative of persons seeking entry into Canada, was submitting falsified documents on behalf of his clients. [ 8 ] As the investigation progressed, a search warrant was sought and was issued.

It was executed in July of 2009 at the Burnaby business office of Candevelop. Numerous documents were seized, including transcripts purporting to have been issued by Winston College in Burnaby. These transcripts were fakes. These transcripts also were issued to the named complainants in the indictment before this court. The various transcripts also confirmed enrolment of the complainants, and it appeared from the transcripts that the complainants did remarkably well in their course grades, achieving A's and B's.

There were some occasional average marks, but most were high. [ 9 ] Obviously the school enrolment and the high grades would influence administrative decision making to issue visas and permits.

The Evidence [ 10 ] Admissions were made by counsel in relation to documents, transcripts of witnesses interviewed, and photographs. [ 11 ] Two border service investigators, being Inspector David Eklof and Inspector Chantal Simeoni, gave evidence concerning their role in the investigation. [ 12 ] In particular, Inspector Eklof conducted some interviews of clients of the accused relating to the fake Winston College transcripts. Two of these interviews involved Haitao Fang and Peili Yang, who testified in this trial. [ 13 ] They were interviewed with respect to their association to the accused and Winston College.

It is clear they initially lied to the Border Service officials with respect to their association to Winston College. When pressed during the interview that the Border Services knew that transcripts had been falsified, thus cornering both Mr. Fang and Ms. Yang, they then became cooperative, explained their actions, and indicated they were nervous or scared.

They, as well, in their interview explained their association to the accused and the services provided. [ 14 ] Perhaps their intention to tell the truth was also motivated by the language used by the interviewer, in which they were told that they were just some of many, and that essentially they were victimized by the accused. [ 15 ] Inspector Simeoni's evidence essentially mirrored, in large measure, the evidence of Inspector Eklof. However, she gave detailed evidence with respect to the various seized documents and how those documents ended up forming part of admissions filed by counsel.

Her evidence identifies various complainants to dates, times, office records in relation to applications for entry into Canada. [ 16 ] It was of import in relation to her evidence that she reviewed in detail the Use Of Representative, which is an important document, as declarations are contained in that document which are solemn declarations to be truthful and forthcoming. [ 17 ] An individual assuming the role of a representative pursuant to the immigration legislation has a duty at law to be truthful, complete, and correct in relation to information provided, and failure to do so or to discharge those obligations is a serious offence.

That wording is contained in the Use Of Representative document. [ 18 ] Likewise, the applicant has a similar duty. It is clear that it was the intention of Parliament, in relation to entry into Canada, that

there be checks and balances and that at all steps of the queue process that it is done honestly, faithfully, and truthfully. [ 19 ] Luwyna Li was an officer and director of Winston College. She confirmed the college reaches out to foreign students, and in particular those students from China. She testified that immigration consultants get a commission for placement of a foreign student. She gave evidence about the management of the school and the administration of the front office, including the process for issuing valid student transcripts; how they are graded; marked; and stamped.

She identified the transcripts filed in the admissions at this trial as fakes. [ 20 ] She described that for some period of time, she had numerous personal, financial, and business pressures which resulted in her being less than hands-on in the operation of the college. Indeed, I would find she had her hands full with children, without a supportive husband, financial difficulties, which took her eye off the mark. [ 21 ] When her eye was off the mark, it appears there were two employees, being Mr. Sedana [phonetic] and a Mr. Lee [phonetic], who were less than honest in their association to Winston College.

At some point between 2004 and 2006, she believed that they stole money from Winston College. These two individuals, one of whom had been a former computer manager, had access to large areas of the front office. [ 22 ] She also confirmed that in 2005, there was a break-in at the school. The safe was forced open and items were stolen, including cash and letterhead. [ 23 ] She confirmed that the generation of transcripts is by staff and that it was her practice to sign and stamp.

Again, that was due to the fact of personal pressures that she was facing. [ 24 ] Two of the most important counts are Count 1 and Count 4. I say that because in Count 1, Haitao Fang testified, and in Count 4, Peili Yang testified. As Ms. Yang was the first witness, I will deal with her evidence as it relates to Count 4. [ 25 ] She is now a permanent resident from the People's Republic of China. She came to Vancouver in 2001 to study. Indeed, between 2001 and 2006, there were a total of three study applications that were granted to her.

She indicated in her evidence that, in relation to one of the extensions, she retained the accused to apply for an extension of her study permit. A friend of hers had referred her to the accused. She identified that she signed the fee agreement for the retention of the accused. [ 26 ] Importantly, documents were presented to her with respect to signatures. In relation to the application to change conditions for which the accused had been retained, at Box G, Declaration of Applicant, she denied that that was her signature. They are Chinese characters.

She testified that she signed her name as Peili Yang, not in Chinese characters. Likewise, in relation to the Use Of Representative, she denied, with respect to signature of that, as her signature was in Chinese characters. [ 27 ] In the materials that were filed on her behalf, Winston College was named as an education institution. She never attended Winston College. She never achieved the A's and B's noted on the transcripts.

Her ultimate goal was to immigrate into Canada and get into the skilled worker category. [ 28 ] Some controversy developed between herself and the accused in relation to the monies to process her application, and it is fair to say that she thought ill of the accused. Indeed, in cross-examination, she indicated she was unhappy with the service of the accused, that he was taking too long.

As a result she personally prepared an application for permanent resident status contained in the Admissions which she signed on October 21st, 2008. [ 29 ] It is noteworthy that one of the post-secondary education institutions that she noted in her own writing was Winston College, which she never attended. She confirmed, through cross-examination, that she lied to investigators when interviewed about her association to Winston College and involvement with the accused, because she was nervous and scared. She confirmed she lied about tuition fees. [ 30 ] Haitao Fang is now a permanent resident of Canada.

In 2001, he came to Vancouver through the process of a study permit application. There was also a work permit that had been granted for a short period of time. [ 31 ] For the first several years in dealings with the immigration authorities, he used a consulting firm called Cansite, and in 2004 retained the accused. [ 32 ] He signed the Use Of Representative agreement and the application and the declarations.

He recalled in or around 2003 or 2004, he took some training courses at Winston College, and that the Winston College transcripts that are attached to his application were, in his words, "not really" genuine. [ 33 ] In direction examination, when somewhat pressed by Mr. Sair, he indicated that the accused handed him the transcripts and they simply formed part of the package. [ 34 ] It was his evidence that the accused could provide fake or falsified transcripts, which would enhance an applicant's position with respect to entry into Canada. [ 35 ] The accused testified. He is now 60 years of age.

Raised in China, completed various education programs, including a bachelor degree in the PRC in physics, he studied in Japan, he studied in the United States. In 1997, he moved to Vancouver. He worked for London Life and Insurance, an investment portfolio, for a period of time. [ 36 ] In the year of 2000, he started his own company, Candevelop, to, as he put it, basically help students to immigrate into Canada. He was an immigration consultant.

He testified that he would help students to renew study permits and student visas, particularly so if they had lapsed due to some personal problems, such as parents being ill, a car accident, or a host of other problems that could arise in a person's life.

[ 37 ] He appears to have had a robust client base of one to two thousand students with respect to study permits, and about 300 in relation to permanent residency status permits. He detailed how one signs a retainer contract. Clients are provided with a list of documents to procure, including a passport, which are all photocopied and form part of the application.

He also confirmed that he could facilitate students in attending other colleges. [ 38 ] It is clear from the evidence of Inspector Eklof that unfortunately during this timeframe there were many colleges operating fast and loose in Canada in providing education services. I had the intimation from his evidence that the procedures were being tightened up. [ 39 ] In any event, the accused had a relationship with the University of Guelph, amongst others, also Winston College.

The importance of that is, of course, he gets a fee, a finder's fee or a commission, from students placed at other education institutions, on top of his fee for services provided to the client. [ 40 ] The benefits are many. The immigration consultant financially benefits in this regime. The university gets a student and tuition fees. The student has got his or her foot in the door into Canada. [ 41 ] Some of these people remain in Canada and eventually receive permanent residency status.

There is nothing wrong with this, so long as it is all done in an open, truthful basis. [ 42 ] The accused adamantly denies he prepared any fake transcripts. He concedes the transcripts, and it is not disputed by either counsel, are anything but fakes; they are fakes, but he did not generate those transcripts. He testified they were given to him by the various candidates. [ 43 ] In relation to the signatures, he denied that he falsified or forged any signatures. [ 44 ] He confirmed he is an individual with no criminal record.

In relation to his character and reputation, which was put in issue, he indicated that he was, in his evidence, a good immigration consultant and was shamed by these charges, and believes that he has helped many, many foreigners come to Canada in a legitimate manner. [ 45 ] In cross-examination, he confirmed that some schools at that time were, in the words of Mr. Sair, "shady". In relation to the operation of his office, he confirmed that it was his wife who filled in many of the blanks on these computer-generated forms.

Some of the information was already contained in the forms and he would fill in the blanks, getting information from various clients. [ 46 ] There was also an employee that worked for the accused. Neither the wife nor the employee were called to testify. [ 47 ] It was his evidence, as well, that no applications to extend or to receive visas or other permits would be filed unless everything was correct. [ 48 ] He confirmed that he assisted both Peili Yang and Haito Fang in relation to possible enrolment in Okanagan College, which was also a client.

Position of the Parties [ 49 ] Both Crown and defence are ad idem that the transcripts are fakes. Who created the transcripts is not material before this court. What is material is how did they become part of the package of materials forwarded to the Immigration Services? [ 50 ] Defence counsel reminds the court that Ms. Li had two employees that were less than loyal to their employment status at Winston College. That it would not be unreasonable to infer that they or others who had access to the front office could have generated the transcripts. [ 51 ] It was impressed on the court by defence counsel that Ms.

Yang lied to immigration officials and only came clean when she was pressed and cajoled by the officials that they essentially knew what was going on, and that in relation to that lie, that the language used by the inspectors, along the lines of "You're just one of many", may have influenced them to try to please the officers. That was not the language used by counsel, but that was the clear impression. [ 52 ] Defence counsel went through the transcripts of the evidence in relation to various areas where Ms. Yang lied in relation to Winston College, T.E.S.T.

College, and that at the end of the day, in assessing credibility, that this court must entertain grave doubts as to that evidence. [ 53 ] Haito Fang was described by defence counsel as "shifty to say the least". He submitted that his evidence was muddled, he tended to minimize his involvement with Winston College, and that his evidence should be described as self-serving. It was submitted that Mr. Fang only relied upon the accused for one entry service, and that Mr.

Fang was clearly complicit in confirming his enrolment and involvement with Winston College, clearly in violation of the declaration of applicant. [ 54 ] Again, it was the emphasis of defence counsel that Mr. Fang was not entirely truthful and this court ought to have grave concerns over the credibility of Mr. Fang. [ 55 ] With his usual candour, Mr. Sair takes the position that what the case, as he put it, really "boils" down to is credibility. I agree. [ 56 ] He noted, and rightly so, that there were some cultural and language issues. It was not disputed that the court must take that into account.

And notwithstanding the cultural and language issues, in relation to the evidence of the accused that when pressed on some points, there was a sudden and distinct change in demeanour, and I should look at that change of demeanour to determine whether or not the answers provided were creditworthy. [ 57 ] Mr. Sair also confirmed that Mr. Fang and Ms. Yang lied to Canada Immigration border officials. In his words, "What are they

to do?" [58] As was submitted, what was in it for them to lie to this court about the documents relating to Winston College or, in relation toMs. Yang, the forged signature? Why would she lie? Why would Mr. Fang lie? [59] Mr. Sair submits that Ms. Li from Winston College is a credible witness. I agree. It is also submitted that this court should findthat Mr. Fang is a credible witness, that he was not shifty.

Rather, if there were problems in the delivery of his evidence, it was due moreto memory lapse or lack of memory than shifty behaviour. [60] In relation to the remaining counts, 2, 3, 5, 6, and 7, with respect to individuals for which apparently documents relate to theaccused, located at his business, and that he was a user representative, that the court could find that he is guilty of those charges. Thestrong counts obviously are Count 1 and Count 4, and that was not particularly disputed by Mr. Sair. Analysis and Disposition [61] I agree that credibility is the key feature of this case.

I accept as credible and reliable the evidence of the two inspectors andMs. Li. [62] In relation to Haito Fang, I take into account he lied to Border Service officials. I take into account that Ms. Yang also lied. Though urged on this court by Mr. Sair that "What else are they to do?", the answer is obvious. Tell the truth. That truth is required intheir signed declarations. They are bound by law to tell the truth. [63] This they did not do until pressed and cajoled by the investigators. Compounding the problem for Ms.

Yang is the fact that sheapplied for entry permission relying upon falsified information with respect to Winston College and T.E.S.T. College. This she did onher own volition and were lies in the face of the requirement of her declaration, which reads as follows: This declaration covers the information I have provided on this form and all the information submitted in my application for permanentresidence, as well as in the attached accompanying documents.

I understand that any false statements or concealment of a material fact may result in the refusal of my application and may be groundsfor my prosecution or removal from Canada. I understand that the Canadian Government will contact on my behalf any government authority, including police, judiciary and stateauthorities in all countries in which I have resided, to obtain all records and information that they may possess on my behalf concerningany investigations, arrests, charges, trials, convictions and sentences.

I understand that this information will be used to assist inevaluating whether or not I am admissible to Canada, pursuant to Canadian immigration law. Should my answers to any of the questions on this application form change at any time prior to my being granted permanent residentstatus in Canada, I will report these changes to a Canada Immigration Centre or Call Centre. I understand all the above statements, having asked for and obtained an explanation on every point which was not clear to me. [signature and date] [64] In relation to Mr. Fang and Ms.

Yang, their lack of candour in telling the truth, I find, reduces their credibility. [65] Likewise, in relation to the accused, his evidence is not without imperfections. For example, though being married for 20 years,on several occasions he was vague in identifying his wife's handwriting. He had a tendency to give long, explanatory answers to simplequestions, both in direct examination and cross-examination. His bottom line in direct and cross was he falsified no documents, nor didhe falsify any signatures.

He asserts his innocence throughout. [66] I am also mindful of the cultural differences in this case and the fact an interpreter was used periodically by the accused, thusrequiring the court to proceed cautiously in making any adverse findings against the accused: see Chan v. Ferreira, [1994] B.C.J. No.335 [sic]. [67] In addition, I must also exercise caution in resorting to demeanour-alone evidence as a basis for findings on credibility: seeFaryna v. Chorny, (MB CA), [1952] 2 D.L.R. 335 [sic], B.C.

Court of Appeal. [68] Rather, in assessing the trial evidence, I must weigh in balance all of the admissible evidence, which includes an assessment ofthe evidence of Mr. Fang, Ms. Yang, and the accused. [69] In particular, I must apply the standard set out by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1994] 3S.C.R. 521. It reads in part: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[70] It is well established that the proof beyond a reasonable doubt standard is the legal device by which the community protectsitself and an accused against wrongful conviction. To avoid wrongful convictions, it is crucial that the "beyond a reasonable doubt"standard be expressly linked to the presumption of innocence. [71] This concept was identified in R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1, by Mr.

Justice Cory atparagraph 27 in the following language: First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricablylinked to that basic premise which is fundamental to all criminal trials: the presumption of innocence . . . If the presumption ofinnocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are foreverintertwined . . . [72] The court goes on in Lifchus to define the expression of reasonable doubt.

It reads in part: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. [73] There was a further additional instruction added by Mr. Justice Iacobucci in R. v. Starr (2000), 2000 SCC 40 , 147C.C.C. (3d) 449, which reads in part: . . . an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than toproof on a balance of probabilities.

As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty isrequired, and that something more than probable guilt is required . . . for the jury [being finders of fact] to convict. [74] I find that this has been a case of considerable concern. The evidence would suggest queue jumping for those wanting to cometo Canada. Ours is a great democracy. This trial is evident of that. There are many countries that do not enjoy the type of system ofjustice that we enjoy as citizens. [75] Here there were many people involved in a chain of events which may be aiding queue jumping.

As to who is the ultimateculprit or a party to possible queue jumping remains unclear on all of the evidence before this Court. [76] In relation to the assessment of the evidence, I prefer the evidence of Ms. Yang and Mr. Fang. Preferring evidence, however, ina criminal proceeding is not the appropriate standard to justify a conviction.

It may well be in relation to civil proceedings that it wouldbe relevant and, in particular, with respect to the accused's ability to continue with his occupation, if he is still doing so, but here I mustbe satisfied the case is made out beyond a reasonable doubt. [77] Could you stand up, please, sir. [78] I have concluded that the second stage of the W.(D.) assessment applies in this particular case. [79] For all of the reasons I have just provided, having made that finding, I must acquit you of all the charges before this court. (REASONS CONCLUDED)