Last Updated on October 12, 2011 by Steven Meurrens

I recently did a post about a Federal Court decision which suggests that there is an innocent mistake exception to misrepresentation.  Not one week later, Justice Hughes of the Federal Court certifies 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?

The Federal Court of Appeal’s answer to this certified question will likely clarify many aspects of s. 40 misrepresentation.

The facts giving rise to the question can briefly be summarized as follows: Mr. Osisanwo submitted a birth certificate stating that he was the child of Cladius and Modupe. Immigration officials were not satisfied with the birth certificate and required DNA testing.  The testing concluded that while Modupe was Mr. Osisanwo’s mother, Cladius was not his father.  Modupe stated that she did not know that Cladius was not the biological father, and this point as not challenged.

In discussing the jurisprudence on the matter, Justice Hughes quoted at length from the Federal Court’s decision in Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 378.  There, the court stated that:

Given that the word “knowingly” does not appear in Section 40, it follows, the submission goes, that knowledge is not a prerequisite to a finding of misrepresenting or withholding material facts. Undoubtedly, the existence of a child is a material fact.

I do not find this comparison helpful. Section 127 is in the “General Offences” section of IRPA. A misrepresentation could lead to imprisonment for a term of up to five years. If the word “knowingly” had not been employed, Parliament ran the risk of establishing an absolute liability offence, without the need for mens rea, and might have run afoul of the constitutional prohibition on imprisonment for absolute liability offences (see, e.g., R. v. Sault Ste-Marie, [1978] 2 S.C.R. 1299 and R. v. Raham, 2010 ONCA 206).

In this case the alleged misrepresentation was a misstatement of fact. Such misrepresentations may be fraudulent, negligent or innocent. A leading case in the tort context is Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd, [1964] A.C. 465, [1963] 2 All ER 575 (H.L.).

The Panel found that Mr. Singh was not credible. Even if he did not actually know he was Shilpa’s father, the circumstances, i.e. his long sexual relationship with Shilpa’s mother, while her husband was out of India, should, at the very least, have put him on inquiry. He had a duty of candour which required him to disclose, upon his arrival inCanada in 1993, the strong possibility that he had fathered a child.

In my opinion, the meaning of Section 40(1)(a) of IRPA was clearly explained by Mr. Justice O’Reilly in Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299, where he stated at para. 15:

Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she “withholds material facts relating to a relevant matter that induces or could induce an error in the administration” of the Act. In general terms, an applicant for permanent residence has a “duty of candour” which requires disclosure of material facts. This duty extends to variations in his or her personal circumstances, including a change of marital status:Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL). 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: Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL).

[My emphasis.]

Mr. Justice Russell applied the same reasoning in Boden v. Canada (Minister of Citizenship and Immigration), 2008 FC 848.

The Panel’s assessment of the facts was not unreasonable and so it follows that Mr. Singh, a permanent resident, is inadmissible for misrepresentation.

As noted by Justice Hughes, the essential question is whether one takes an “objective” or “subjective” view as to whether what was done was “misleading’. Stated another way, is mens rea an essential ingredient of s. 40 misrepresentation?

Justice Hughes then went on to cite several other cases, including Hilario, Mendel, Bickin, and Bodine, which seem to suggest that there is a mens rea requirement for misrepresentation.

Finally, he noted an interesting sub-question, which is “must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband?”

It will be interesting to see if the Federal Court of Appeal answers that second question as well as the first.