Last updated on December 11th, 2019
Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination. Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada. Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years.
Misrepresentation can occur without an applicant’s knowledge.
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.
In Baro v Canada (Minister of Citizenship and Immigration), the Court further 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),  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.
Hence, there is an exception for exceptional circumstances where an applicant honestly and reasonably believed that they were not misrepresentating a material fact.
An Overview of the Innocent Mistake
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 an applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.
It is important to note that the first part of the test consists of two components. The person must have subjectively believed that they were not withholding material information and the belief must have been reasonable. Hence, as Justice Zinn noted in Canada (Citizenship and Immigration) v Robinsion, 2018 FC 159 :
Where a person is found to be credible and he or she testifies that the belief was honestly held, the first aspect of the test – the subjective aspect – has been satisfied. However, credibility does not address the reasonableness of the belief – it does not address the objective aspect of the test which is to be determined based on all the facts before the decision-maker. I agree with the Minister that the ID gave no reasons as to why it found on the evidence before it that the belief was reasonable.
In Appiah v Canada (Citizenship and Immigration), 2018 FC 1043 [Appiah], Mr. Justice Martineau stated:
The innocent misrepresentation exception is narrow and shall only excuse withholding material information in extraordinary circumstances in which the Applicant honestly and reasonably believed he was not misrepresenting a material fact, knowledge of the misrepresentation was beyond the Applicant’s control, and the Applicant was unaware of the misrepresentation (Wang at paragraph 17; Li v Canada (Immigration, Refugees and Citizenship), 2018 FC 87 at paragraph 22; Medel v Canada (Minister of Employment and Immigration),  2 FC 345). Some cases have applied the exception if the information given in error could be corrected by reviewing other documents submitted as part of the application, suggesting that there was no intention to mislead: Karunaratna v Canada (Citizenship and Immigration), 2014 FC 421 at paragraph 16; Berlin v Canada (Citizenship and Immigration), 2011 FC 1117 at paragraphs 18‑20. Courts have not allowed this exception where the Applicant knew about the information, but contended that he honestly and reasonably did not know it was material to the application; such information is within the Applicant’s control and it is the Applicant’s duty to accurately complete the application: Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 at paragraphs 31‑34; Diwalpitiye v Canada (Citizenship and Immigration), 2012 FC 885; Oloumi at paragraph 39; Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at paragraph 18; Smith v Canada (Citizenship and Immigration), 2018 FC 1020 at paragraph 10.
As the Justice Palmer noted in Sbayti v. Canada (Citizenship and Immigration), 2019 FC 1296, the innocent mistake defense to misrepresentation will also apply to reasonable misunderstandings of foreign law. In Moon v. Canada (Citizenship and Immigration), 2019 FC 1575, Justice Boswell stated that it also applies to situations where an immigration consultant submits an application on behalf of someone without their knowledge, and when the individual discovers it they try to rectify the situation.
What Does Not Qualify Under the Innocent Mistake Defence
In Sbayti v. Canada (Citizenship and Immigration), 2019 FC 1296, Justice Palmer stated the following as examples of what would not qualify as an innocent mistake. He wrote:
This is not a case where the Applicant, following questioning by a visa officer, looked to correct a misrepresentation which he had previously adopted to his benefit (see for example Khan).
This is not a case where the Applicant is pleading ignorance of a fraud that forms part of his application record, possibly even without the Applicant’s knowledge (see for example Oloumi; Agapi).
This is not a case where the Applicant was looking to plead “innocent mistake” on the basis that he forgot about the events between 2011 and 2013 (see for example Appiah), or that he misread the question on the visa application (see for example Alalami v Canada (Citizenship and Immigration), 2018 FC 328).
This is not a case where the Applicant simply forgot about events that he was specifically prompted to disclose, then later requested that his oversight be forgiven (see for example Diwalpitiye v Canada (Citizenship and Immigration) 2012 FC 885; Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971).
This is also not a case where the Applicant did not disclose past illegalities because he thought they had become irrelevant (see for example Smith v Canada (Citizenship and Immigration), 2018 FC 1020).