R. v. Eustaquio, 2018 ABPC 55 – Lessons Learned About Misrepresentation as an Immigration Offense

This case comes from the Provincial Court of Alberta, with the judgment having been released in March 2018.

Ms. Eustaquio  (“Ms. E”) is a 60-year old Canadian citizen with no criminal record. She has two elderly parents who are in their mid-to-late 80s. The deterioration of Ms. E’s father led to Ms. E supporting her niece. Mari Ann Gantuangco (“Ms. G”) to apply for a work permit.

In 2015, Ms. E supported Ms. G’s permanent residence application as part of the live-in caregiver class per s.133 of the IRPR. Ms. E supported the applications through an employment letter – signing a statutory declaration and declaring hours of work.

In reality, Ms. E’s representations were not true. Ms. E’s parents were out of Canada in the Philippines for six months and the United States for thirteen days, contrary to what was stated on the employment letter.

In this matter both Crown and Defence supported relatively lesser penalties, with Crown suggesting a suspended sentence (with probation0 and the Defendant’s counsel suggesting an absolute discharge was appropriate.

Justice Fradsham reviewed several recently cases (nationally) from 2013 to present day and as well looked the appropriateness of a conditional/absolute discharge.

Notwithstanding the personal circumstances of Ms. Eustaquio, which covered several difficult personal circumstances, Judge Fradsham determined that a conditional sentence was not consistent with the general sentencing provisions of the Criminal Code. He writes:

[71]           I am of the view that when all the factors are considered, it would be contrary to the public interest to grant a discharge to Ms. Eustaquio.  A discharge, in the circumstances of this case, would unduly undermine the immigration system as it relates to those seeking permanent residence status.  A discharge on the facts of this case would prevent the attainment of the sentencing objectives of general deterrence and denunciation.

Judge Fradsham also chooses not to follow Crown’s position and instead imposes a $1000 fine (with CDN $750 reduced due the 55 hours of community service performed.

Why this is important?

With auditing of Express Entry applications and other employer-based support letter becoming more and more frequent, it is foreseeable that there will be more cases of employers (especially where family or closely-held business) being scrutinized. While a majority of these cases will likely result in misrepresentation against the immigration applicant as the end of the enquiry, particularly where the employers are comprised of Canadian citizens and in order to denounce and deter this type of conduct, I do suspect more cases to be brought forward. Ms. E was on the generous end of sentencing – she did not seek to do this primarily out of financial gain but instead to help a family member. I don’t see as much generosity being shown where an Employer is actively reaping benefits from an individual (e.g. some sort of payment in lieu of work).

See the case here: http://canlii.ca/t/hqtzb 

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