The “Innocent Mistake” Defence to Misrepresentation

On October 12, 2011, I wrote about how the Federal Court in Osisanwo had certified the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?

 

Ultimately, the Respondent in Osisanwo did not litigate to the Federal Court of Appeal.  However, on April 13, 2012,  the Federal Court issued several judgements in misrepresentation cases that establish a clear rule regarding whether innocent mistake is a defence to s. 40 misrepresentation allegations.  In essence, without explicitly stating so, the Court described misrepresentation as a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.

An Overview of the Rule

Madam Justice Tremblay-Lamer, the author of the aforementioned string of decisions,  found that misrepresentation does not always require subjective knowledge.  In clarifying this, she first cited the following passage from Jiang v Canada(Minister of Citizenship and Immigration):

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

She then further cited Baro v Canada (Minister of Citizenship and Immigration), where the Court held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.

Accordingly, Madam Justice Tremblay-Lamer held that it is only in exceptional cases where an applicant can demonstrate (1) that he honestly and reasonably believed that he was not withholding material information, and (2) where “the knowledge of which was beyond his control”, that the applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.

And of course, simply trusting a representative is not due diligence.


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