Supreme Court Clarifies Dangerous Driving Law

The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code.  The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality.  Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy.

Section 249 of the Criminal Code provides that:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

In R v. Roy, the Supreme Court was noted that (emphasis added):

It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.

Accordingly, the actus reus of s. 249 of the Criminal Code is driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.  The focus of the actus reus inquiry is on the risks created by the accused’s manner of driving, not the consequences.

The mens rea for the offence is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.  Simple carelessness, to which even the most prudent drivers may occasionally succumb, does not meet the mens rea requirement.

Finally, even where the manner of driving is a marked departure from normal driving, s. 249 requires that the dangerous driving be a result of the marked departure from the norm.

Income Tax Statements and Inadmissibility

On December 8, 2010, the Federal Court released its decision in Masych v. Canada (Citizenship and Immigration), 2010 FC 1253 (“Masych“)  The case involved an individual whose temporary work permit application was denied because she did not produce income tax statements from 2002-2006 after an immigration officer (the “Officer”) requested that she do so.  The reason that the Officer wanted copies of her tax statements was not to confirm her employment history for determining whether or not she was qualified for the job that she was applying for, but rather to determine whether or not she was inadmissible for having ever committed tax evasion.

The applicant had never been convicted of a criminal offense.  No evidence was ever presented that she had been charged with a criminal offense.  Finally, it is important to note that the applicant lived in the United Kingdom from 2002-2006, a country with a legal system similar to Canada’s.

The applicant did not produce the income tax statements as requested, and her application was rejected on the grounds that the Officer was unable to determine whether or not she was inadmissible to Canada for having committed an offense abroad that would constitute an indictable offense in Canada (tax evasion). The Federal Court upheld the Officer’s decision.  The Court noted that the Officer had a duty to be satisfied that the applicant was not inadmissible, and that tax evasion could result in an applicant being inadmissible.

A reading of the case suggests that the only argument that the applicant’s counsel made was that the applicant had provided a statement stating that she only worked part time, confirmed by the employer, and that this should have satisfied the visa officer.  The Federal Court quickly punted this decision aside noting that such a response did nothing to alleviate the officer’s concern.  As this appears to have been the only argument raised, the Federal Court did not discuss the issue of whether the immigration officer was correct in asking for tax statements in any great detail.

Does requiring income tax statements for the purpose of determining tax evasion make sense?  Should the immigration officer have gone on a fishing expedition to determine if the applicant had committed any offenses abroad?  Is this a proper application of the inadmissibility provisions of the Immigration and Refugee Protection Act?

The Citizenship and Immigration Canada Manual states that as part of Canada’s international commitment to combat transnational crime, the policy intent in applying the “committing an offense” provisions is first and foremost to deny entry into Canada and thereby prevent Canadian territory from being used as a safe haven by persons who are subject to criminal proceedings in a foreign jurisdiction, or who are fleeing from such proceedings.

In Masych, there was no evidence that the applicant was fleeing prosecution. Indeed, there was no evidence that she had ever been suspected of income tax evasion prior to the visa officer raising this concern.  As such, was it appropriate for the visa officer to go on what essentially amounts to a fishing expedition?

The Manual further notes that in order to determine on reasonable grounds that an act was committed, it must be established, amongst other things, that an act was committed.  This can be established through credible information or intelligence that a person had committed an offense.   In Masych, there was simply no evidence that the applicant had committed income tax evasion.

Even if the applicant had provided income tax statements, this in of itself does not show compliance with UK income tax law.  Unless the visa officer also happens to be an expert on foreign tax law, it is impossible for the officer to know whether an applicant paid the appropriate amount of tax, and if not, whether the failure to do so was deliberate.  Accordingly, asking for income tax statements does not resolve this issue in any meaningful way.

Unfortunately, it does not appear that any of these issues were discussed in the case.  If requesting income tax statements for the purpose of determining inadmissibility becomes routine, I imagine that it will in the future.

Bill C-37, the Strengthening the Value of Canadian Citizenship Act

On June 10, the Conservative government introduced Bill C-37, also known as the Strengthening the Value of Canadian Citizenship Act (“Bill C-37“).

The legislation will result in five changes if passed. These are:

  1. Regulate Citizenship Consultants
  2. Increases Penalties for Citizenship Fraud
  3. Strengthen Rules For Residence Requirement
  4. Expand Ban on Criminals Becoming Citizens
  5. Crown Exception to First Generation Limit
  6. Streamlining the Revocation Process

1) Regulate Citizenship Consultants

Citizenship consultants are not currently regulated or licensed.  Bill C-37 will change this.  The amendments will introduce a new s. 21.1 of the Citizenship Act, which will state:

21.1 (1) Every person commits an offense who knowingly represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.

The offense will be a hybrid offense. If the Crown elects to proceed by way of indictment, the maximum penalty would be a fine of $50,000 and/or two years imprisonment.

There will be exceptions for lawyers, members of a designated body, and other exceptions similar to those for immigration consultants. In fact, the language in Bill C-37 regarding the regulation of citizenship consultants largely mirrors that in Bill C-35, the Cracking Down on Crooked Consultants Act.

2) Increases Penalties for Citizenship Fraud

The Citizenship Act makes it an offense to make a false representation, commit fraud, knowingly conceal or misrepresent information, obtain or use a certificate of naturalization/renunciation of another person, knowingly permit another to use that person’s certificate, or traffic certificates. The penalty for doing so is currently a maximum fine of $1,000 and/or imprisonment to a term of one year.  A person who issues or alters a certificate, counterfeits a certificate, or attempts to cause a person to use an unlawfully issued certificate can face a penalty of a maximum of $5,000 and/or three years imprisonment.

Bill C-37 massively increases the penalties.  The offense for pretty much the same actions will now be a hybrid offense. If the Crown decides to proceed by way of a summary offense, then the maximum penalty will be a fine not more than $50,000 and/or two years imprisonment. If the Crown decides to proceed by way of an indictment, then the maximum penalty is a fine of not more than $100,000 and/or imprisonment of five years.

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