Suzy's Case — Immigration Offence — Dismissed

Client:  Suzy, Accused
Complainant:  R.C.M.P.; Toronto Police Service
Charges:  Enter Canada Without Minister's Consent; Inmate Bawdy House

Background:  Suzy came from Columbia. She was trying to make a new life for herself in North American. One problem was that she couldn't decide if she wanted to live in New York or Toronto. Not having proper status in either country, she had problems travelling between Canada and the U.S. As a result, Suzy didn't always travel by conventional routes or by conventional means. In 1999, she wasn't allowed to enter Canada without a Minister's permit. In mid-1999, she somehow made her way to Toronto. In January 2000, she was working at a massage parlour. The parlour was raided by the Toronto Police Service. Suzy was arrested and charged with being "an inmate of a bawdy house." While being detained on that charge, she was also charged by the R.C.M.P. with an Immigration Act offence for entering Canada illegally. I first met Suzy just after her arrest. She was still in jail.

READ THE R.C.M.P. REPORT

Goals:  Suzy wanted to be released from custody and "to beat these charges." Her long-term plan was to legitimize her status in Canada. Avoiding a criminal record was the first (necessary) step along that path.

Strategy:  We had a bail hearing, and secured Suzy's release from custody. Getting the "inmate in a bawdy house" charge withdrawn was accomplished first. I achieved this result by having Suzy complete a program for sex-trade workers. That charge was then withdrawn. The bigger problem was the Immigration Act offence. I knew from the start that this would be our biggest hurdle. Suzy had a history with the immigration authorities in Canada, so we received no breaks and no sympathy. Suzy had two options:  plead guilty (the Crown would ask for 30 days in jail) or schedule a trial. The case against Suzy was fairly solid, but there was one chink in the armour. That chink rested on the Crown not appreciating a particular facet of the prosecution. That facet was as follows. Suzy was charged with entering Canada illegally, not with "being here" illegally. The offence was not, therefore, a continuing offence. It was completed the moment that Suzy stepped on Canadian soil. I knew that the distinction would become fatal to the Crown's case if they decided to proceed by summary conviction, which has a six-month limitation period. For this offence, the Crown had the option of proceeding by way of summary conviction (six-month limitation) or by indictment (no limitation period). I knew that, if the Crown didn't spot the problem, they would likely proceed by way of summary conviction, as summary-conviction proceedings are shorter and much simpler. We kept mum, scheduled the trial, and waited patiently for the big day.

Results:  At the start of the trial — just after the charge was read out and immediately before Suzy entered her plea — the Court Clerk turned to the Crown and asked:  "How does the Crown elect?" The Crown replied:  "by summary conviction." The tide had now turned in our favour. The Crown called her evidence. I made no objections. I asked no questions. I then called Suzy as a witness. Suzy testified that she had entered Canada in mid-1999 and did not leave afterwards. The Crown did not challenge this evidence. When all the evidence was heard, the Judge asked us for submissions. I argued that the charge had to be dismissed because the limitation period had passed. Since Suzy had entered Canada more than six months ago, I submitted, the Court had no jurisdiction to find Suzy guilty. The Judge agreed.

READ THE JUDGE'S REASONS FOR THE ACQUITTAL