R. v. Williams (A.), (2008) 234 O.A.C. 320 (CA)

• Judge: Rosenberg, Lang and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 30, 2007
• Jurisdiction: Ontario
• Citations: (2008), 234 O.A.C. 320 (CA);2008 ONCA 173

R. v. Williams (A.) (2008), 234 O.A.C. 320 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.051

Her Majesty the Queen (respondent) v. Andrew Williams (appellant)

(C47165; 2008 ONCA 173)

Indexed As: R. v. Williams (A.)

Ontario Court of Appeal

Rosenberg, Lang and Rouleau, JJ.A.

March 11, 2008.

Summary:

Williams was convicted of an offence under s. 55(1) of the Immigration Act, which prohibited a person who had been deported from returning to Canada without the written consent of the Minister. He appealed, asserting that the burden was on the Crown to prove that he did not have written consent and that, as the Crown had failed to prove this, he should have been acquitted.

The Ontario Court of Appeal allowed the appeal, setting aside the conviction and entering an acquittal.

Aliens - Topic 5068

Offences - Illegal entry - Evidence and proof - Using an assumed name, Williams obtained landed immigrant status - He was convicted of several criminal offences and deported in 1995 - In 1996, Williams received landed status in Canada using his true name and became a citizen in 2004 - Williams was convicted under s. 55(1) of the Immigration Act, which prohibited a person who had been deported from returning to Canada without the written consent of the Minister - He appealed, asserting that the burden was on the Crown to prove that he did not have written consent and that, as the Crown had failed to prove this, he should have been acquitted - The Ontario Court of Appeal allowed the appeal, setting aside the conviction and entering an acquittal - Lack of written consent of the Minister was an element of the s. 55(1) offence - Entry into Canada, for example as a visitor, was not a criminal offence - What made entry into Canada an offence under s. 55(1) was (i) a deportation order was made against the person, (ii) the person was removed or otherwise left Canada and (iii) the person returned to Canada without the Minister's written consent - Since it was an element of the offence, the Crown had the burden of proving that the accused lacked the Minister's consent - There was neither a persuasive nor an evidentiary burden on the accused - See paragraphs 18 to 24.

Aliens - Topic 5068

Offences - Illegal entry - Evidence and proof - Using an assumed name, Williams obtained landed immigrant status - He was convicted of several criminal offences and deported in 1995 - In 1996, Williams received landed status in Canada using his true name and became a citizen in 2004 - Williams was convicted under s. 55(1) of the Immigration Act, which prohibited a person who had been deported from returning to Canada without the written consent of the Minister - He appealed, asserting that the burden was on the Crown to prove that he did not have written consent and that, as the Crown had failed to prove this, he should have been acquitted - The Ontario Court of Appeal allowed the appeal, setting aside the conviction and entering an acquittal - The court rejected the Crown's argument regarding the common law principle that, in certain circumstances, an accused had the burden of proving, or at least the evidentiary burden of leading some evidence, that he had a status in law that permitted him to do an otherwise prohibited act - The Minister's consent did not confer any status - Nor was it permission for a specific act or a licensing scheme - Williams was charged with the offence 10 years after he entered Canada - While he might be expected to keep a visa or other document that conferred status in Canada, it was not clear that he could be expected to keep a document that appeared to have relevance only on entry - The common law rule had no application to the Minister's consent under s. 55(1) - See paragraphs 25 to 32.

Aliens - Topic 5068

Offences - Illegal entry - Evidence and proof - Using an assumed name, Williams obtained landed immigrant status - He was convicted of several criminal offences and deported in 1995 - In 1996, Williams received landed status in Canada using his true name and became a citizen in 2004 - Williams was convicted under s. 55(1) of the Immigration Act, which prohibited a person who had been deported from returning to Canada without the written consent of the Minister - He appealed, asserting that the burden was on the Crown to prove that he did not have written consent and that, as the Crown had failed to prove this, he should have been acquitted - The Ontario Court of Appeal allowed the appeal, setting aside the conviction and entering an acquittal - The court agreed that the Crown had the burden of proving that the accused lacked the Minister's consent - At the conclusion of the Crown's case, the only possible circumstantial evidence of lack of written consent were falsehoods on Williams' Immigrant Visa and Record of Landing and on his citizenship applications regarding whether he had ever been convicted of offences, refused admission to Canada or deported - That was not a sufficient basis for a conviction - See paragraphs 33 to 35.

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - [See second Aliens - Topic 5068 ].

Cases Noticed:

R. v. Edwards, [1975] 1 Q.B. 27 (C.A.), consd. [para. 17].

R. v. Suraleigh, [2005] O.J. No. 807 (C.J.), refd to. [para. 17].

R. v. Singh (1981), 12 Man.R.(2d) 319; 63 C.C.C.(2d) 156 (Man. Co. Ct.), consd. [para. 19].

R. v. Zeplin (G.) (1998), 165 Nfld. & P.E.I.R. 306; 509 A.P.R. 306 (Nfld. C.A.), consd. [para. 20].

R. v. Greenwood and Tsinonis (1991), 51 O.A.C. 133; 67 C.C.C.(3d) 435 (C.A.), refd to. [para. 22].

R. v. Fisher (D.) (1994), 69 O.A.C. 286; 88 C.C.C.(3d) 103 (C.A.), refd to. [para. 22].

R. v. Hunt, [1987] 1 A.C. 352; 79 N.R. 220 (H.L.), refd to. [para. 26].

R. v. Lee's Poultry Ltd. (1985), 7 O.A.C. 100; 17 C.C.C.(3d) 539 (C.A.), refd to. [para. 26].

R. v. P.H. (2000), 129 O.A.C. 299; 143 C.C.C.(3d) 223 (C.A.), refd to. [para. 27].

R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 36].

R. v. Witter (V.A.) (1996), 89 O.A.C. 1; 105 C.C.C.(3d) 44 (C.A.), refd to. [para. 36].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 55(1) [para. 18].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2007 Looseleaf Update), §§ 24:20 to 24:40.20.30 [para. 24]; 24:20.10 [para. 17, footnote 2].

Counsel:

Ingrid Grant, for the appellant;

Moiz Rahman, for the respondent.

This appeal was heard on November 30, 2007, by Rosenberg, Lang and Rouleau, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., released the following judgment for the court on March 11, 2008.