R. v. Davis, 2014 ONCJ 406

ONTARIO COURT OF JUSTICE DATE: 2014·08·18 COURT FILE No.: Fort Frances 130309 Citation: R. v. Davis , 2014 ONCJ 406 BETWEEN: HER MAJESTY THE QUEEN — AND — Daniel Reed Davis Before Justice Sarah Cleghorn Heard on June 10, 2014 Reasons for Judgment released on August 18, 2014 Alexander Hardiegowski ........................................................................ counsel for the Crown The accused Daniel Reed Davis .................................................................. on his own behalf Cleghorn J.: OVERVIEW [ 1 ] Daniel Reed Davis is charged with the following two offences;

a) Did fail to comply with a condition or obligation imposed under the Immigration and Refugee Protection Act , S.C. (2001) c. 27, to wit: after a removal order had been enforced, return to Canada without authorization by an officer, as set out in section 52(1) of the Immigration and Refugee Protection Act , S.C. (2001) c. 27, contrary to section 124(1) (

a) of the Immigration and Refugee Protection Act thereby committing an offence pursuant to

section 125 of the said Act.

b) Did fail to comply with a condition or obligation imposed under the Immigration and Refugee Protection Act , S.C (2001) c. 27, to wit: failed to appear for examination as set out in section 18(1) of the Immigration and Refugee Protection Act , contrary to section 124(1) (

a) of the Immigration and Refugee Protection Act , thereby committing an offence pursuant to

section 125 of the said Act. [ 2 ] The trial proceeded forward on both of these charges on June 10, 2014. Legislation [ 3 ] The relevant sections under the Immigration and Refugee Protection Act , S.C. (2001) c.27, are as follows: Examination by officer 18.

(1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada. Obligation on entry 20.

(1) Every foreign national, other than a foreign national referred to in

section 19, who seeks to enter or remain in Canada must establish,

(

a) To become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and (

b) To become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. Temporary resident 47. A foreign national loses temporary resident status (

a) At the end of the period for which they are authorized to remain in Canada; (

b) On a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; Enforceable removal order 48.

(1) A removal order is enforceable if it has come into force and is not stayed. Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible. No return without prescribed authorization 52. (1) if a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances. Arrest and detention with warrant 55.

(1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2). Contravention of Act 124. (1) every person commits an offence who (

a) Contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act; Penalties 125. A person who commits an offence under subsection 124(1) is liable (

a) On conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or (

b) On

summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both. Misrepresentation 127. No person shall knowingly (

a) Directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

SUMMARY OF THE EVIDENCE [ 4 ] I have carefully considered all of the evidence that was presented on the day of trial. As the trier of fact, it is left to the Court to determine the weight to be given to the evidence and to assess the credibility of each witness. Lyndsay Nisula [ 5 ] Ms. Nisula is an officer with the Canada border agency and has held this employment for approximately 16 years in duration. She described her responsibilities as an inland enforcement officer, which includes the duties to investigate individuals who may be in Canada illegally, and where necessary, deport them. [ 6 ] Ms.

Nisula became involved in the investigation of Mr. Davis when she was presented with a “44 report” for her review, which alleged that Mr. Davis had overstayed his time in Canada. She determined from this report that Mr. Davis was not entitled to be in Canada. As a result, she issued what is known as an Exclusion Order, which was entered into evidence as Exhibit 1. [ 7 ] The Exclusion Order is dated June 18, 2012, and set out the following; “I hereby make an exclusion order against you pursuant to the Immigration and Refugee Protection Act and Regulations, 2001, because I

am satisfied that you are a person described in: Paragraph 41(

a) Subsection 41(a), in that, on a balance of probabilities, there are grounds to believe is a foreign national who is inadmissible for failing to comply with this act through

an act or omission which contravenes, directly or indirectly, a provision of this act, specifically: Paragraph 29(2) the requirement of subsection 29(2) of the act that a temporary resident must leave Canada by the end of the period authorized for their stay. Ordered excluded 18Jun2012, Fort Frances, ON.” [ 8 ] Ms. Nisula described how Mr. Davis was arrested on June 18, 2012, at Makabi Inn, which is located in Fort Frances, ON, wherein she read the Exclusion Order, inquired of him if he understood the contents, and indicated that Mr. Davis response was to concede to the allegation as set out in the report.

The Order specifically set out the following: “ I fully understand the above decision. I also fully understand that I must not come into Canada without the written consent of the Minister of Citizenship and Immigration at any time during the one-year period immediately following the day on which I am removed from or otherwise leave Canada.” [ 9 ] Mr. Davis signature was required under this statement. [ 10 ] Ms. Nisula, along with another officer, then drove Mr. Davis across the border and into International Falls where he was turned over to the American Immigration Authorities. [ 11 ] Ms.

Nisula then completed and signed a Certificate of Departure, dated June 18, 2012, which was entered into evidence as Exhibit 2. [ 12 ] In cross – examination, Mr. Davis did not challenge Ms. Nisula’s evidence in any meaningful way. I find Ms. Nisula to be a credible witness. Grant Roberts [ 13 ] Mr. Roberts is a criminal investigator with the Canada Border Agency and has been employed with the agency for a period of 23 years.

He described his duties to include investigating alleged offenses at the ports of entries into Canada, inland and inside of Canada. [ 14 ] Through business records, and on confirmation with notice being provided to Mr. Davis, Mr. Roberts produced an affidavit of Vincent Charette, dated March 3, 2014, which was marked as Exhibit 3. [ 15 ] Mr. Charette is a Program Support Officer of the Operations Support Center for Citizenship and Immigration. The contents of the affidavit outline the following:

a) That Mr. Charette reviewed the records of entry of visitors into Canada;

b) That there is no recording confirming consent to return to Canada for Mr. Davis;

c) That there is no record of an appeal brought by Mr. Davis with respect to the Exclusion Order, dated June 18, 2012. [ 16 ] Mr. Roberts further confirmed that he was present on June 12, 2013 when Mr. Davis was arrested and subsequently brought to International Falls. [ 17 ] Mr. Roberts described in detail, the process required for an individual seeking entrance into Canada. In

summary, all persons must present themselves at a port of entry and provide identification. The identification is then scanned into a computer system that will alert to the border officials if an individual is either admissible or inadmissible. Mr. Roberts’ evidence is that there is no record in their system that confirms that Mr. Davis followed the appropriate procedure at a port of entry. [ 18 ] Mr. Davis had the opportunity to cross-examine Mr. Roberts. The focus of his cross- examination was on the existence of a warrant and the manner in which he was arrested. Mr.

Davis evidence was not challenged in any meaningful way in cross -examination. I find Mr. Roberts to be a credible witness. Mary Louise Davis [ 19 ] Mr. Davis called his daughter, Mary Louise Davis as a witness. Her evidence was focused on the day of the arrest of Mr. Davis and the manner in which the arrest took place. [ 20 ] No meaningful evidence was provided to the Court on the elements of either of the offenses.

Daniel Davis [ 21 ] Mr. Davis testified on his own behalf. Mr. Davis stated that he has been entering Canada through a port of entry for years. In September of 2012, he crossed the port of entry at Fort Frances. At this time he was present with his wife, Terri, who was the driver of the vehicle. It was Terri who showed her status card to the Immigration Officer. Mr. Davis did not show any identification, as he simply does not have any.

His evidence is that regardless of the fact that he did not show any identification at the port of entry, the Officer waved through the vehicle he was travelling in. [ 22 ] In cross-examination, Mr. Davis acknowledged he is not a Canadian citizen nor is he a permanent resident. He acknowledged that he had received and signed the Exclusion Order dated June 18, 2012. He recalls being deported on the same date. [ 23 ] Mr. Davis was forthright in his evidence that he was fully aware that he was not allowed to return to Canada without prior permission being obtained and yet, he choose to return in September of 2012.

The exact date could not be recalled. [ 24 ] Mr. Davis does not dispute that he signed both the Exclusion Order and the Certificate of Departure. [ 25 ] Mr. Davis’s argument is that he does not want to be deported from Canada. His family resides here and as such, he has much to lose if he is deported. ANALYSIS [ 26 ] It is up to the Crown, to prove, beyond a reasonable doubt, all the elements of the alleged offenses. [ 27 ] Mr.

Davis did not lead any evidence that he was entitled to be in Canada pursuant to the Act . [ 28 ] The Act requires, that all individuals who desire to enter and remain in Canada must comply with section 18(1) of the Act . The onus is clearly on the person who is attempting to enter Canada, in this instance, Mr. Davis.

Section 127 specifically sets out that it was up to Mr. Davis to not withhold information. [ 29 ] Mr. Davis’s evidence that he was waved through by a custom’s officer at a port of entry, does not discharge the onus on him, to present himself, personally, with the proper identification, in order that an immigration officer can assess whether he is admissible to Canada or whether he is to be deemed inadmissible. [ 30 ] Further, Mr. Davis knew he was the subject of an Exclusion Order when he chose to enter Canada in September of 2012. [ 31 ] It is without question that Mr.

Davis was not entitled to be in Canada from June 18, 2012 through to June 18, 2013. He did not appeal the decision of the Exclusion Order. [ 32 ] I find that he withheld information at the port of entry, and that he was the subject of an Exclusion Order, thereby preventing him from entering into Canada. On Mr. Davis’ own admission in entered Canada when he knew he was inadmissible. As a result I find that the Crown has proven beyond a reasonable doubt,

section 124 of the Act , in relation to section 52(1) . [ 33 ] I further find that Mr. Davis did not present himself to an Immigration Officer at the Fort Frances port of entry in September of 2012 in order to allow an investigation into whether he was admissible or inadmissible into the Country. As a result I find that the Crown has proven beyond a reasonable doubt,

section 124 of the Act , in relation to section 18(1). [ 34 ] There will be a finding of guilt on both charges. Released: August 18, 2014 Signed: “Justice Sarah Cleghorn”