R. v. C., 2013 MBPC 65

CITE # 2013 MBPC 65 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Brian Sharpe, for the Crown ) - and - ) ) Zuhur MOHAMMAD ZARIF ) Clayton Lowther, for the Defence ) ) ) Judgment delivered: December 4, 2013 Lee Ann Martin, P.J. Introduction [1] Zuhur Mohammad Zarif (“Zuhur”) stands charged with one count of aggravated assault contrary to s. 268 of the CriminalCode.

The issue before this Court is the determination of his age at the time of the alleged offence. [2] On October 21, 2010, members of the Winnipeg Police Service (“WPS”) were called to investigate an allegation of aggravatedassault. Their investigation led them to Glenlawn Collegiate in Winnipeg, Manitoba (“Glenlawn”) where they were advised that one ofthe suspects, Zuhur, was 18 years old, the school records indicating a date of birth of April 25, 1992.

It was on this basis that Zuhur wascharged as an adult. [3] It is Zuhur’s position that the school records, as well as all other documentation with the same date of birth, are wrong.

Hisreal date of birth is April 25, 1993, making him 17 at the time of the incident and subject to the Youth Criminal Justice Act (“YCJA”).Zuhur says that the error in the documentation stems from an initial error made on his mother’s Afghani passport that the family has beenunable to correct since 2005, when they took steps to immigrate to Canada. [4] The Crown says that Zuhur’s position is not credible and asks the Court to find that he was 18 at the time of the allegedoffence. [5] In determining the age of an accused, the Court is permitted to rely on hearsay evidence (See: s. 658 Criminal Code; R. v.

C.(I.), 2010 ONSC 330; R. v. Male, 2013 MBPC 12). The onus is on the Crown to prove age beyond a reasonable doubt. (See: R. v. K.(P.A.), (NL SC), 1992 CarswellNfld 125 (Nfld.S.C.), para 37 -38). [6] As the determination of Zuhur’s age is a factual one, a review of the evidence is essential. The Evidence The Mohammad Zarif Family Evidence [7] The Mohammad Zarif family are Afghani refugees. In November 2006, the entire family (with the exception of an olderbrother) consisting of the father Addun Magid, mother Mehroneso, and Zuhur and his siblings, immigrated to Canada. At the time, theyspoke little to no English.

Though Zuhur has learned English since their arrival in Canada, his parents have not fared as well; AddunMagid’s English is basic; Mehroneso’s is non-existent and she remains illiterate. A Farsi interpreter assisted in translating the testimonyof Addun Magid and Mehroneso.

Though this Court often expressed concerns about the accuracy of that translation, in the end, I amsatisfied that the translation was sufficient to be able to understand the witnesses’ evidence. [8] According to Addun Magid, Zuhur was born in Afghanistan in 1372, under the Persian calendar, or 1993, under the Christiancalendar, making him 17 years old at the time of the incident. He was not sure of the exact day or month Zuhur was born as his wife gavebirth at home.

He testified that the birth certificate they obtained for Zuhur when he was six months old, notes the correct birth year.That birth certificate, which was entered as evidence, notes a birth year of “1372 (1 years)”. No day or month is provided nor is there anydate of issuance. According to Addun Magid, the notation “1 years” is written for any child from 1 day to 12 months old. As Zuhur was6 months old at the time the birth certificate was obtained, he was still under the age of one in 1372.

[ 9 ] Mehroneso also did not remember what day Zuhur was born, though she thought he was born in the month of Soar. She was also not sure of the year Zuhur was born, guessing that it was 1373, making Zuhur 16 years old at the time of the incident. Despite her uncertainty, she was adamant that the birth certificate her husband testified was accurate, was in fact wrong. [ 10 ] The birth certificate is the Afghani document that the Mohammad Zarif family relies on as being an official document that indicates Zuhur’s correct birth year.

For some reason, this document was purportedly left at their eldest son’s home in Tashkent, Uzbekistan in 2006 when they immigrated to Canada. It was not retrieved until sometime in 2012 when Mehroneso returned home for a family visit.

It was at this same time that she retrieved some Uzbek school papers that indicate that Zuhur was born on April 25, 1993, began grade 1 in 2000 and stopped in 2006, when he finished grade 7. [ 11 ] Until she retrieved these documents, the only other official document Mehroneso had that proved Zuhur’s age was her Afghani passport that was issued on July 27, 2006 by the Afghani Embassy in Tashkent. To obtain this passport she provided the Afghani Embassy with her old passport which indicated the correct birth date for Zuhur. This old passport was retained by the Afghani Embassy.

Mehroneso and Addun Magid testified that the new passport was issued with the wrong birth year for Zuhur. It indicated 1992 instead of 1993. When Mehroneso and Addun Magid realized the mistake on the new passport, Addun Magid tried to get the Afghani Embassy to change it. He even showed them the birth certificate. They were told that since the passport had already issued, it could not be changed.

They have therefore been stuck with an official Afghani passport that has the wrong birth year for Zuhur. [ 12 ] According to Addun Magid, he has tried to alert all Canadian officials to the error in the Afghani passport in an attempt to have Zuhur’s correct birth year indicated on Canadian documents. He and Mehroneso testified that Addun Magid told an immigration official in Tashkent about the error when they were being interviewed as part of the immigration process. The response was simply to get it fixed once in Canada. When the Mohammad Zarif family arrived in Canada, Addun Magid continued his efforts.

According to him, he advised: • the immigration officer at Pearson International Airport in Toronto, Ontario when the Mohammad Zarif family landed; • the immigration counsellor and head of immigration in Windsor, Ontario where the Mohammad Zarif family stayed for two weeks before moving on to Winnipeg; • the immigration counsellor in Winnipeg; • a woman at Lavallee School where Zuhur took English classes before integrating into the Winnipeg school system; • the principal and teacher at St.

George School in Winnipeg where Zuhur attended grades 8 and 9; • the principal and Iranian teacher at Glenlawn where Zuhur attended grades 10 to 12; • an employee at the immigration centre in Winnipeg. [ 13 ] According to Addun Magid, the immigration officer at Pearson Airport appeared to write his information down on some lined paper but he was not sure what the officer was writing. Other than that, the response from the people he told was always the same – nothing could be done unless another official document was provided.

That other official document, the birth certificate, was in Tashkent until 2012 so Zuhur’s birth date could not be changed. Only the principal from St. George was accommodating; he was prepared to put Zuhur in a lower grade to reflect his younger age. [ 14 ] Zuhur testified and confirmed this discussion with the principal at St. George. He also expressed his belief that his father had tried without success to rectify the error in his birth date.

Because all Canadian documentation, including his permanent resident card and his driver’s licence, was obtained on the basis of Mehroneso’s erroneous Afghani passport, all of the Canadian documentation is also wrong. And because he could not change it, he provided the wrong birth date- April 25, 1992 - in all of his dealings in Canada. This is why, for example, when he applied for security clearance with the WPS he provided his wrong birth date.

According to him, he could not very well put down his correct birth date if it did not coincide with his documents. [ 15 ] When however he was arrested for the aggravated assault on October 21, 2010, Zuhur testified that he told the WPS officer his real age. According to Zuhur, the officer did not seem interested. He told Zuhur that both the school records and his driver’s licence indicated a birth date of April 25, 1992 and asked if he had any other identification to prove his assertions. Though Zuhur thought his mother might, he did not call anyone that day to get it.

As a result of this conversation with the officer, which was not captured on the video-recorded statement he provided to the police, Zuhur thought he had no choice but to once again conform to his incorrect age when asked while on video. It was for this reason that when asked for his date of birth on the video, Zuhur replied April 25, 1992 instead of 1993. [ 16 ] According to Zuhur and Addun Magid, the officer’s unwillingness to entertain any date other than that on the documents persisted when Addun Magid came to pick Zuhur up at the police station. Addun Magid told the officer that Zuhur was not 18, but 17.

The officer simply responded that they should speak to their lawyer about it. The Police Investigation - Constables Clark and Kowalski [ 17 ] Constables William Bruce Clark (“Clark”) and Erazm Joseph Kowalski (“Kowalski”) dispute that they were ever told by Zuhur or Addun Magid that Zuhur was 17.

They were not even aware that there was an issue with respect to Zuhur’s age until January 2013 when the Crown Attorney asked them to investigate the issue further. [ 18 ] Clark testified that he and Kowalski became involved in the investigation of the allegations against Zuhur on October 21, 2010, when they were advised that there had been a fight between students from Glenlawn. The two officers attended Glenlawn and were

informed that one suspect was a youth. The other suspect was Zuhur. His date of birth, according to school records, was April 25, 1992. Zuhur was ultimately arrested and provided his right to counsel and police caution. He was escorted to the police cruiser car and taken to the police station where he was interviewed on video by Kowalski. [ 19 ] The outset of the videotaped interview shows Kowalski asking Zuhur for his name and date of birth. Zuhur responds by giving a date of birth of April 25, 1992.

Though he appears to hesitate a bit before saying April 25, when asked about the year, he responds quickly - 1992. Kowalski testified this answer was consistent with Zuhur’s driver’s licence, school records, and his verbal comments prior to the videotaped interview. Kowalski was adamant that Zuhur never told him that he was really 17. Kowalski was also adamant that Addun Magid never raised the issue. He testified that if they had, he would have complied with the requirements under the YCJA and investigated further, which he did in January 2013 when the Crown Attorney asked him.

When he undertook an investigation into Zuhur’s age, he conducted record checks and discovered that Zuhur had applied to the WPS for security clearance to work on a construction site. The date of birth on that application was April 25, 1992. In support of that application, Zuhur’s driver’s licence, permanent resident card and social insurance card were submitted. With the exception of the social insurance card which contains no date of birth, the other two documents contained the April 25, 1992 birth date.

The School Records [ 20 ] Karen Duffield (“Duffield”), the vice principal at Glenlawn confirmed April 25, 1992 was the birth date recorded in Zuhur’s cumulative file with Louis Riel School Division. The cumulative file documents the entire school record during the course of a student’s schooling in that particular division. It does not however contain notes of conversations between teachers and parents or students. [ 21 ] Duffield testified that according to her records, Zuhur registered for school in January 2007. He was sent to the René Delorme Centre for newcomers, which is attached to Lavallee School.

After attending that program, he attended grades 8 and 9 at St. George School, then Glenlawn from grades 10 -12. [ 22 ] According to Duffield, all information contained in Zuhur’s cumulative file indicates a date of birth of April 25, 1992. She noted in particular that the demographic sheet containing personal information that is provided by families and sent to them for verification and correction had never been changed. She did however agree that she did not know whether this form was ever explained to the Mohammad Zarif family.

She also agreed that there was no follow-up or consequences for not correcting erroneous information. She offered that if there had been any concern about Zuhur’s age, she would have expected to have seen some notation in the file. No such notation was made, nor did she hear of any concerns until the spring of 2013 when the police attended Glenlawn to inquire about his age. Duffield did however agree that for any change to have been made there would have needed to have been supporting documentation.

The Immigration Process - Brian Huzel and Silvia Graca [ 23 ] Silvia Graca (“Graca”) is an employee of Citizenship and Immigration. Her supervisor is Brian Huzel (“Huzel”). [ 24 ] Huzel testified about the immigration process in general and he and Graca testified about the Mohammed Zarif application file in particular. [ 25 ] Huzel explained that when someone wishes to immigrate to Canada, they fill out an application with supporting documentation. A file is then opened and processed. The file is saved electronically so that it is accessible worldwide. In the case of refugees, the applicant is often interviewed.

If accepted for immigration, the information contained in the application file is inputted into a document entitled “Confirmation of Permanent Residence”. This form is printed off at the time of entry into Canada, and the information contained on the form is verified with the immigrant, usually through production of supporting documentation. [ 26 ] Huzel explained that passports are considered to be the gold standard in supporting documentation for immigration applications though other documentation can be acceptable. Typically, documents other than passports need to be translated.

He stated that there are concerns with respect to documentation in such countries as Afghanistan as fraud is relatively rampant. [ 27 ] In this case, the Mohammad Zarif family applied for refugee status on April 18, 2005, in Tashkent. Supporting documentation was provided as to the names of each family member and their respective dates of birth. Graca testified that the parents’ respective passports were provided as proof of identity for themselves. National identity cards were provided for Zuhur and his siblings.

Zuhur’s birth date was noted as April 25, 1992. [ 28 ] On May 13, 2005, Mehroneso and Addun Magid were interviewed in relation to their application in Tashkent. An interpreter was present for the interview. According to Graca, the immigration file indicates that they both told the immigration officer that their own birth dates were wrong. Their passports and refugee cards were presented and the errors were corrected. The file also indicates that there were no requests for changes to Zuhur’s birth date. The Mohammad Zarif application was ultimately approved and the family immigrated to Canada on November 30, 2006.

The port of entry was the Pearson International Airport in Toronto. [ 29 ] Upon entering Canada, the Mohammad Zarif family would have been directed to immigration officials who would have verified the information on the Confirmation of Permanent Residence form. According to Huzel, this is the opportunity for the immigration officer to correct any errors on the application form, including a date of birth.

Zuhur’s Confirmation of Permanent Residence form contains check marks which would appear to suggest that the immigration officer did verify the information contained on the form, though, of course, Huzel could not say for certain, nor is there any evidence as to which documents were used to verify the information on the form. According to Huzel, if there were any errors noted, he would have expected to see an indication of that on the form. There were none.

[30] Huzel went on to explain that if there had been any errors that were not caught upon entering Canada, the Mohammad Zariffamily could have filed an application to amend an immigration document at any time through the immigration department. His reviewof the Mohammad Zarif file indicated that no such application had ever been filed. Had an application been filed, it would have been onthe file regardless of whether it had been accepted or denied. Analysis [31] As indicated earlier, the onus is on the Crown to prove Zuhur’s age beyond a reasonable doubt.

As Zuhur testified and ledevidence, this Court must assess the evidence in accordance with the principles enunciated in R. v. W (D.), (SCC),[1991] 1 S.C.R. 742. [32] Turning first to the evidence of Zuhur, Addun Magid and Mehroneso, this Court has several concerns. Those concerns are inrelation to both the documentary and oral evidence: • Their oral evidence is not clear as to when Zuhur was actually born. Zuhur relies on what he testified his parents have always toldhim – April 25, 1993. Yet his parents could not tell the Court what day or month Zuhur was born and they disagreed about the year hewas born.

Despite their uncertainty or lack of clarity as to his date of birth, they were adamant that Mehroneso’s passport was wrong; • Though Addun Magid, Mehroneso and Zuhur all take the position that the error in Zuhur’s birth date stems from Mehroneso’spassport, that passport could not have been used to complete the initial immigration application or interview. Mehroneso’s passportindicates that it was issued on July 27, 2006. The immigration application was made on April 18, 2005 and the interview on May 13,2005.

As a result, any error on the July 27, 2006 passport did not come into play in the initial immigration file. Although the immigrationfile indicates that the mother’s passport was used, this reference is presumably in relation to the old passport, which Mehroneso andAddun Magid testified was correct. Further and in any event, the immigration file shows that a national identity card rather thanMehroneso’s passport was used to prove Zuhur’s age.

Interestingly, this Court had no evidence about this national identity card; • The Confirmation of Permanent Residence form conducted at Pearson International Airport presumably would have beenconsidered against the document Mehoroneso testified she had – the July 27, 2006 passport. Obviously, the date of birth on this passportcoincided with the date of birth on the initial immigration file. If not, there would have been some record of an error.

There is none; • The other concerns this Court has are in relation to the evidence of Zuhur, Addun Magid and Mehroneso of the multiple attemptsAddun Magid undertook to have someone correct Zuhur’s birth date. That evidence is simply unbelievable.

While it may be conceivablethat one or two people failed to do anything, including making a notation of such an issue, such a scenario becomes unbelievable whenwe are dealing with twelve such occasions, particularly when you consider that several of these instances were in relation to peopleacting in their official capacity as a Citizenship and Immigration official or member of the WPS; • This Court also notes that Zuhur was placed in grade 8 when he came to Winnipeg.

Though Addun Magid and Zuhur testified thathe was placed in this lower grade because of his age, this Court notes that the grade 8 placement is consistent with the fact that he onlyfinished grade 7 in Uzbekistan before coming to Canada. As for the Uzbek school record Mehroneso brought back to Canada in 2012that notes Zuhur was born on April 25, 1993, this Court is unable to place much, if any, weight on it given that there is no indication asto what official documents were provided to the school as proof of age.

This Court is also mindful of Huzel’s evidence about therampant fraud in this part of the world. [33] These are but a few of the concerns this Court had with the Mohammad Zarif family evidence. I have considered the languagebarrier and the translation issues but as should be readily apparent from the nature of my concerns, these issues do not have much, if any,bearing on those concerns.

In the end, this Court does not believe the Mohammad Zarif evidence about Zuhur’s age nor does it find thatthere is a reasonable doubt as to his age. [34] In considering the entirety of the evidence before it, this Court finds that the Crown has proven Zuhur’s age beyond areasonable doubt. While it is true that this Court did not have the direct evidence of each official from Citizenship and Immigration thatdealt with the Mohammad Zarif family, it did have the file.

That file is significant as to the types of documents provided by theMohammad Zarif family, the dates of the application and interview, the notation of changes made to the parents’ birth dates, and the lackof any notation to any concern regarding Zuhur’s birth date. While the immigration file, like the school records, does not capture anypotential conversation that might have occurred, one would expect some notation of a concern. Further, and in any event, the lack ofnotation is but one piece of evidence.

As indicated previously, the other evidence – the birth certificate, the July 27, 2006 Afghanipassport, the immigration file reference to Zuhur’s national identity card – all indicate a 1992 birth date. The birth certificate alsoindicates “1 years” in 1372 which is consistent with a 1992 birth date. Further, one would expect that the Afghani Embassy would haveunderstood what that meant when they issued a passport with the 1992 birth date.

The April 25, 1992 birth date is also consistent withZuhur’s own statement to the police on October 21, 2010, as well as to the various entities to obtain his driver’s licence and securityclearance. [35] As a result, this Court finds that Zuhur’s date of birth is April 25, 1992 and that he was 18 years of age at the time of the allegedoffence. “Original Signed by:”

Lee Ann Martin, P.J.