r v. CYNTHIA NICHOLS, 2021 QCCQ 11649

Chief Electoral Officer of Quebec c. Nichols 2021 QCCQ 11649 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL « Criminal and Penal Division » N° : 500-61-515992-205 500-61-515993-203 DATE : October 25 2021 ______________________________________________________________________ PRESIDING BY GENEVIEVE CLAUDE PARAYRE JUSTICE OF THE PEACE MAGISTRATE ______________________________________________________________________ CHIEF ELECTORAL OFFICER OF QUEBEC Prosecutor v.

CYNTHIA NICHOLS Defendant ______________________________________________________________________ RECTIFIED JUDGMENT (addition of paragraph 42) ______________________________________________________________________ [ 1 ] On October 6 2017, Ms. Nichols files nomination papers to run as an independent candidate for the mayor’s office in the November 5 2017, municipal election (Exhibit P-8). At the same time, she is advised she must register on the voters’ list as she is not on it. [ 2 ] On October 17 2017, Ms.

Nichols completes an Application with the Board of Review to register on the voter’s list (Exhibit P- 14). [ 3 ] She withdraws her candidacy on November 2 2017, and does not vote in the election. [ 4 ] Following the filing of her expenses and contribution report with Valentina Maria Todora, treasurer of the town of Montreal West (Exhibit P-9), Ms. Nichols tells her she has received a communication from Immigration Canada which casts a doubt in her mind on her right to receive monetary contributions. [ 5 ] Ms. Todora relays this conversation in her

summary report to Élections Québec in May 2018. The subsequent investigation that follows establishes that Ms. Nichols has a permanent resident status. [ 6 ] Meanwhile, on August 29 2018, Ms. Nichols files her nomination papers to run as an independent candidate for the October 1 2018, provincial election. Again, Ms. Nichols does not vote in this election. [ 7 ] Ms.

Nicols now faces charges of having entered her name on the list of electors for the 2017 municipal election contrary to the Act respecting elections and referendum in municipalities [1] (ARERM) and to have offered herself as a candidate on the 2018 provincial election contrary to the Election Act [2] (EA) knowing that she was not entitled to do so as she is not a Canadian citizen. [ 8 ] Ms. Nichols contends that the CEOQ has not met its burden of proof, particularly with respect to the required Mens Rea .

She also presents a defence of a mistake of fact and of law against each of the offences. [ 9 ] To that effect, she argues being convinced she was a Canadian citizen because she remembers being at an oath ceremony with her entire family when she was a teenager. [ 10 ] The Court will address the following in order to decide of the charges: 1. What is the nature of the offences? 2. Admissions 3. Testimony of the defendant 3.1 Registration of the voters’ list

3.2 Affidavit from Immigration, Refugees and Citizenship Canada 3.3 Mens Rea 3.4 The mistaken of fact defence and wilful blindness 3.5 The ignorance of law defence 4. The CEOQ evidence ANALYSIS 1. What is the nature of the offences? [ 11 ] The parties have not argued this notion.

However, it seems essential for the Court to analyze the nature of these offences before going any further. [ 12 ] It is recognized that regulatory offences are presumed to be strict liability offences unless the legislator specifically states otherwise [3] . [ 13 ] The legislator’s intention to classify a regulatory offence as a Mens Rea offence is evidenced by the inclusion of clear words such as “willfully,” “intentionally,” “with intent” or “knowingly” to demonstrate the presence of a mental state necessary to commit the offence described [4] . [ 14 ] One also has to read and compare all the provisions of the Act or Regulation under consideration to fully grasp the legislator’s intention to classify some

section into Mens Rea offences. [ 15 ] It is therefore necessary to reproduce the text of each of the offences in order to classify them: 586

(2) ARERM : every person who makes an application to have his name entered on the list of electors or referendum list with the knowledge that he is not entitled thereto or makes an application to enter a name he knows to be fictitious or to be that of a deceased person or the name of a person he knows is not entitled to be entered. [5] 552

(1) EA: every person who offers himself as a candidate , knowing he is disqualified [6] (bold added) [ 16 ] The legislator chose to use the terms “knowing” and “with the knowledge” for these sections. A reading of the other provisions of these Acts shows a clear intention to distinguish certain sections by inserting specific terms related to knowledge which is one of the forms of Mens Rea . [ 17 ] Indeed, along with intention, recklessness and negligence, knowledge is one of the forms in which Mens Rea is manifested [7] .

In the case where the offence requires the provision of knowledge, the prosecution must prove, “ subjective knowledge of all the factual elements of the Actus Reus. ” [8] [ 18 ] The Court therefore concludes that the legislator’s intention is clearly to classify these sections as Mens Rea offences. [ 19 ] The prosecution must thus prove that Ms. Nichols knew that she was not entitled to have her name entered on the list of electors to be a candidate. This knowledge can be demonstrated by direct evidence, unawareness or voluntary blindness [9] . 2.

Admissions [ 20 ] To facilitate the reading of this judgment, the Court will list the admissions of the parties: The parties hereto agree to admit, as if proven, the following facts that will be considered an integral part of the evidence in both cases: 1. The statement provided in Montreal on November 20 2019, to investigators Dufour and Pelletier by the defendant, in the presence of her attorney, Mao Chambers, was made freely and voluntarily and in accordance with the Canadian Charter of Rights and Freedoms , as appears from a copy of the defendant’s statement, Exhibit P-1.

Regarding the general municipal elections of November 5 2017 2. On September 13 2017, a public notice of the election for the Town of Montreal West, announcing that a poll would take place on November 5 of the same year, appeared in The Suburban newspaper, for the seat of the mayor and the seats of councillors in districts Nos. 1 through 4, as appears from the public notice and the corresponding certificate of publication, Exhibit P-2 in a bundle; 3. September 22 2017 (i.e., the forty-fourth day before polling day), marked the start of the election period; 4.

The defendant was entered on the list of electors of subdivision 6 for the poll on November 5 2017, in the Town of Montreal West,

as appears from a copy of the list of electors as of October 23 2017, Exhibit P-3; 5. On November 5 2017, general municipal elections were held in the Town of Montreal West, as appears from the public notice of the poll, the erratum and the corresponding certificate of publication, Exhibit Bundle P-4; 6. The defendant did not exercise her right to vote in the general municipal elections of November 5 2017, in the Town of Montreal West, as appears from a copy of the list of electors for polling subdivision No. 6, Exhibit P-3; Regarding the general provincial elections of October 1 2018 7.

August 22 2018, marked the start of the election period with the issuing of Order in Council 1267–2018 for holding general elections on October 1 2018, in the 125 electoral districts of Québec, including Notre-Dame-de-Grâce, as appears from a copy of the Order in Council, Exhibit P-5: 8. The defendant was on the list of electors of polling subdivision 7 in the electoral district of Notre-Dame-de-Grâce, Municipality of Montreal West, for the poll on October 1 2018, as appears from a copy of the list of electors, Exhibit P-6; 9.

On October 1 2018, general elections were held in the electoral district of Notre-Dame-de-Grâce, as appears from the Order in Council, Exhibit P-5 and from a copy of the addition of the votes for this electoral district, Exhibit P-7: 10. The defendant did not exercise her right to vote in the general provincial elections of October 1 2018, in the electoral division of Notre-Dame-de-Grâce, Municipality of Montreal West, as appears from a copy of the list of electors for polling subdivision No. 7, Exhibit P-6: 3. Testimony of the defendant [ 21 ] Both parties agree that credibility is an issue.

It is why the Court must be thorough and entirely consistent with a proper application of the burden of proof in the context of conflicting testimony [10] . [ 22 ] In W. (D.) [11] our Supreme Court sets out guidelines for proper instructions to a jury faced with conflicting versions of the events. The law is clear and simple. The burden always lies with the Procecution. [ 23 ] The Procecution’s burden is to prove, beyond a reasonable doubt, the defendant’s guilt. It never shifts to the defendant. The defendant is presumed innocent and bears no burden whatsoever.

That principle remains true whether or not the defendant chooses to testify [12] . [ 24 ] Proof beyond a reasonable doubt does not require for it to be perfect. It is not proof without any possible doubt either. Rather, it is a proof beyond a reasonable doubt, after a meticulous and global analysis of the whole of the evidence, while considering its imperfections, such as inconsistencies or contradictions [13] . [ 25 ] Some aspects of credibility can be ascertained from the content of testimony itself, for example the degree of detail a witness is able to provide or, inconsistencies in a witness’s testimony.

Other aspects of credibility can be ascertained by factors such as demeanour, tone of voice, body language, and overall sense of whether a witness is telling the truth or telling a story for whatever purpose [14] . [ 26 ] Most of the evidence tendered is admitted by Ms. Nichols with two exceptions: the manner in which she was registered on the voters’ list and the capacity of Immigration, Refugees and Citizenship Canada to tender evidence relating to her Citizenship status. [ 27 ] Before addressing these elements, the Court notes that on both of the nomination papers for the municipal and provincial election, Ms.

Nichols has sworn under oath that she was eligible to be a candidate as per the LE and the AERM Act [15] . [ 28 ] The Court also notes that prior to the 2017 municipal election, Ms. Nichols has never been on the voters’ list [16] . 3.1 Registration of the voters’ list [ 29 ] With respect to the registration on the voters’ list, according to Ms. Nichols, a government official came up to her during the advance polling while she was supervising the process as a candidate. He whispered in her ear that she was missing a document to validate her candidacy as mayor and that she needed to sign it. Ms.

Nichols saw that the document was entitled “Application for entry” and signed it without reading its contents. [ 30 ] The Court does not believe this statement, nor does it raise a reasonable doubt in the Court’s mind. Here is why. [ 31 ] First, it is impossible for Ms. Nichols to have registered on the voters’ list on the day of the advance polling.

The ARERM provides that no registration on the list of electors may be accepted after the 12th day preceding the election and that advance polling is held between the 6th and 8th days preceding the municipal election [17] . [ 32 ] For the November 5 2017, municipal election, the advance polling was held on October 29 2017, while October 24 2017, marked the last day to register to be entered on the voters’ list [18] . [ 33 ] Secondly, the ARERM also provides that the Board of Revisers only sits in one place determined by the returning officer [19] .

The board also has to obtain, when a registration is asked, the former address of a person who is domiciled in the municipality and swear this person under oath [20] .

[34] The application for entry (Exhibit P-3) is dated October 23 2017, and establishes very precisely the prior address of Ms.

Nicholsand her signature with the mention that she was sworn under oath. [35] Furthermore, it is hard to believe that a candidate who claims to be running to expose the “corrupt system”[21] does not take thetime to read an official document before signing it. 3.2 Affidavit from Immigration, Refugees and Citizenship Canada [36] The CEOQ produces an Affidavit signed by Djamila Smail, litigation analyst with Immigration, Refugees and CitizenshipCanada to the effect that as of July 9 2019, Ms.

Nichols’s status is that of a permanent resident. [37] This affidavit was admitted voluntarily into evidence without any objection by the defence prior to the hearing. [38] Despite this admission, Ms. Nichols alleges that Immigration, Refugees and Citizenship Canada is not qualified to make thisfinding and that only Immigration, Refugees and Citizenship Canada National Security can confirm or deny a person’s citizenship. [39] This argument cannot succeed.

The Immigration and Refugee Protection Act[22] as well as the Order designating the Ministerof Citizenship and Immigration as the minister responsible for the administration of that Act[23] provides that the Minister of Citizenshipand Immigration[24] is responsible for the application of the Act. The Minister of Public Safety and Emergency Preparedness is onlyresponsible for certain events not related to the present file[25]. [40] Ms. Smail’s Affidavit therefore demonstrates, rightly, that as of July 9 2019, Ms. Nichols’s status is that of a permanentresident. [41] This status makes Ms.

Nichols ineligible to register on the voters’ list[26] and to run as a candidate in the provincialelection[27]. 3.3 Mens Rea [42] Ms. Nichols was born in Guyana and spent most of her childhood in Barbados. She immigrated to Canada in 1969 with hersister and her brother, while her parents immigrated a couple of years before. When she was a teenager, she remembers being at an oathceremony with her family. After this ceremony, Ms.

Nichols believed she was a Canadian citizen. [43] It is recognized that wilful blindness or wilful ignorance can establish Mens Rea when it is one of knowledge: Wilful blindness does not define the Mens Rea required for particular offences. Rather, it can substitute for actual knowledge wheneverknowledge is a component of the Mens Rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion isaroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v.

Jorgensen, (SCC), [1995] 4 S.C.R.55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to thequestion: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? [44] The Supreme Court in Sansregret wrote, “wilful blindness arises where a person who has become aware of the need for someinquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.”[28] [45] These words accurately apply to the present case. Ms.

Nichols refers on several occasions to her strained relationship with herfather. The Court notes that Ms. Nichols is still affected today by this relationship, notably by the change in her tone and gestures whenshe mentions it. Especially when she says with emotion: Until I could see with my own eye that my father got me on an application and made me go to a ceremony to watch like my brother,sister and mother and himself become citizen and not me? That doesn’t make sense. No, it can’t be. He was mad at me because I wasdriving fast cars, but not to that point you know.

He was mad at me because I had a party but not to that point.[29] [46] Ms.

Nichols did not want to know the truth about her citizenship and all of her actions demonstrate a wilful blindness to thetruth: she never applied for a citizenship card, never applied for a passport, never applied before the municipal election to be on a voters’list, didn’t vote in the municipal and provincial election and never completed the steps she started in 2016 to confirm that she was aCanadian citizen. [47] On the contrary, she continued to travel with her Barbadian passport, even renewed it and used her Guyanese birth certificate toprove her identity when her two children were born in Quebec. [48] In cross-examination, she is confronted to her written declaration where she admitted she had a doubt about her citizenship: “I didn’t vote on the November 5th election because I wasn’t sure about my citizenship.

A year before, I had sent Canadian Immigrationand Citizenship an application to confirm I am a Canadian citizen and around the time of the November election, they told me it wasmissing an amount for the application that the application was not processed.” [30] [49] To that effect, she now says: “no, not a doubt about my citizenship, I doubt whether I’d be found to be a citizen.”[31] [50] There is no doubt in the Court’s mind that Ms.

Nichols was willfully blind to her citizenship status and chose to remain in the darkand not address her doubts about it. 3.4 The mistake of fact defence and wilful blindness [51] Ms. Nichols delivers a version that denies culpable intent and submits to the Court a defence of a mistake of fact to the effect

that she sincerely believed she was a Canadian citizen. [ 52 ] Ms. Nichols makes a quixotic speech in which she mentions that the government always loses her documents, that she has been the victim of theft in her house once a year for the past 5 years. To that effect, she mentions that someone has entered her house and taken only the voting card she has received from Élections Québec. Moreover, when she tried to reach Immigration Canada on the Internet, she was taken to a fraudulent page.

Lastly, she says she filled her expenses and contribution report a first time and the treasurer lost her documents. [ 53 ] She even tells the Court, while her cell phone is ringing in the courtroom for a third time, that her cell phone has been hacked and therefore, she is not responsible for it. [ 54 ] Nevertheless, her actions are in total contradiction with this discourse. If she is a victim of identity theft, if the government regularly loses her documents, why does she not obtain the documents that allow her to validate and secure her citizenship?

Why does a burglar that breaks into a building, which has an art gallery on the first floor, only searches the filing cabinet to get a voting card? [ 55 ] And if Ms. Nichols has the conviction that she is a Canadian citizen, why does she continue to use her Barbadian passport and Guyanese birth certificate for travel or personal identification purposes? [ 56 ] In order to establish the evidence of her convictions, she tells the Court about a memory from her teenage years and produces her sister’s passport and citizenship card (Exhibit D-1). [ 57 ] The Court also notes some contradictions in key elements of Ms.

Nichols’s testimony. For example, she first mentions that it was her father’s death in 2018 that led her to begin the process of demonstrating her citizenship, since her family disposed of her documents before she could go to her father’s home. [ 58 ] However, in cross-examination, when confronted with her written prior statement, she admits that she began these steps in 2016, while her father was alive. [ 59 ] With regard to the conversation with Ms. Todora, treasurer of Montreal-West, she first denies that she told her she had doubts about the financial contributions.

Instead, she states having a conversation with her that takes place a few weeks after the advance poll, and then changed her version to say that it occurred a few days later. But, in the end she does not dispute that she crossed out the contribution receipt (Exhibit P-13). [ 60 ] The Court concludes that Ms. Nichols has always been afraid of validating her citizenship and prefers to remain in doubt in order not to face a painful truth. [ 61 ] In the Court’s assessment, Ms.

Nichols has created a truth for herself with which she adjusts her testimony to suit the desired outcome. [ 62 ] Therefore, the Court concludes that Ms.

Nichols’s testimony is neither credible nor reliable even though she tries to convince herself otherwise. [ 63 ] The Supreme Court recognized in Pappajohn that the defence of a mistake of fact is admissible against an offence of subjective Mens Rea by stating that “ the essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such belief is merely relevant evidence to be weighed by the tribunal of fact in determining that essential question.” [32] [ 64 ] However, when the Mens Rea is established by wilful blindness, the defence cannot claim to have a vitiated perception of the facts when they deliberately ignore the doubts that form in their mind [33] . [ 65 ] Moreover, to be considered, the defence must establish an air of reality, or an evidential foundation, from all the evidence presented to the Court [34] .

In order to assess these criteria, the Court must consider the evidence and testimony of Ms. Nichols as truthful [35] and determine if “a properly instructed jury acting reasonably could acquit the defendant on the basis of the defence. ” [36] [ 66 ] Since the Court finds that Ms.

Nichols was willfully blind, the defence of a mistake of fact must fail. [ 67 ] However, even if this was not the case, there is no evidence to support the air of reality of such a defence. [ 68 ] In this regard, the Court reproduces the words of defence counsel in his closing argument, which are relevant to the assessment of the test for the air of reality: I’ll admit freely that they offered persuasive evidence that she is not a citizen and she admits that she cannot prove that she is a citizen except for her statement that she was invited to the citizenship ceremony by her father, that her father made the arrangements and that she always believed that she was included in that application.

First of all, that is a reasonable belief and secondly one can understand that any child and daughter would have a great deal of difficulties of accepting that their father did not apply for them for any reason and nevertheless invite them to the ceremony. [37] [ 69 ] Does this evidence afford an air of reality of the defence? It does not. [ 70 ] Before concluding this section, the Court wishes to address the argument made by Ms. Nichols’s lawyer in his closing arguments that the receipt of a voting card in the spring of 2018 confirmed, in Ms. Nichols’s mind, her belief that she is a citizen.

For the defence, it is up to the Chief Electoral Officer to validate the eligibility of a person who enters the list of electors. [ 71 ] However, this argument is not supported by Ms. Nichols’s testimony. Although she was questioned several times on this

subject, Ms. Nichols limited herself to saying that the receipt of the voting card gave her the impression that the authorities had lost her documents again. [ 72 ] Finally, it is not up to the Chief Electoral Officer to validate the eligibility of a person [38] . 3.5 The ignorance of the law defence [ 73 ] Ms. Nichols pretends that she didn’t know she had to be a Canadian citizen in order to vote or to be a candidate. [ 74 ] Ignorance of the law is not a defence in criminal or regulatory law unless the error of law is caused by a person in authority [39] . [ 75 ] Ms.

Nichols claims that she did not know that she had to be a citizen in order to vote or to run as a candidate in the election and that no one informed her of this fact. [ 76 ] There is no evidence to support this defence. Moreover, Ms. Nichols does not mention any steps taken to find out about her obligations even though the nomination and registration documents contain express references to the obligation to be a Canadian citizen. [ 77 ] In

summary, the Court finds the testimony of the defendant to lack credibility and deems it unreliable in the context of the evidence as a whole. Finally, it does not raise any doubt in the Court’s mind. [ 78 ] Still, this conclusion does not equate to proof of the defendant’s guilt beyond a reasonable doubt [40] . All of the evidence adduced, defence and CEOQ’s, must be examined. 4. Evidence adduced regarding both offences [ 79 ] The evidence adduced the identity of Ms.

Nichols that she registered herself on the voters’ list on October 23 2017 and that she presented herself as a candidate for the 2018 provincial election. [ 80 ] The CEOQ demonstrated that Ms. Nichols’s status is one of a permanent resident and that she is not a Canadian citizen. [ 81 ] The evidence proved, through willful blindness, that Ms. Nichols knew that she was not a Canadian citizen. [ 82 ] Finally, the evidence clearly demonstrates that Ms. Nichols knew she had to be a Canadian citizen in order to register on the voters’ list and to present herself as a candidate.

CONCLUSION [ 83 ] Therefore, the Court concludes it does not believe Ms. Nichols nor that her testimony or defence raises a reasonable doubt in its mind. The evidence has been proven beyond a reasonable doubt on both of the offences. FOR THESE REASONS, THE COURT: [ 84 ] DECLARES the defendant guilty in files 500-61-515992-205 and 500-61-515993-203. [ 85 ] SETS the sentencing hearing for October 26 2021, at 2:00 p.m., Room 5.08 to allow for representations pursuant to

section 224 of the Code of penal procedure . If the parties (and/or their representatives) have no representations to make regarding costs and the time allowed for payment of the fine, they are excused from attending. [ 86 ] In this case, the fine imposed shall be: For the file 500-61-515992-205 the minimum fine of $500.00, plus costs and contributions, payable within three (3) months.

For the file 500-61-515993-203 the minimum fine of $500.00, plus costs and contributions, payable within three (3) months. __________________________________ GENEVIEVE CLAUDE PARAYRE Justice of the Peace Magistrate Me Amélie Gélinas Me Geneviève Lemay Chief Electoral Officer of Quebec Counsel for the prosecution

Me Mao ChambersCounsel for the defendant Dates of hearing: July 15 2021, and July 16 2021 [3] R. v. Sault Ste -Marie, (CSC).