Notes Regarding Grounds of Appeal (244069-5-BC)

After I was returned to Canada based on a warrant for these charges, I tried to obtain the security video footage of myself at the Douglas port of entry on 2019-03-15, from CBSA. They ignored the requests. I expected my defense would rely substantially on the video footage. Then, literally, the day before the trial was scheduled to start (2019-08-12) Crown Counsel, Bernie Wolfe, told me and the court that CBSA had destroyed all of the video footage of me at the border. Leading up to that, I had repeated informed the court I was not ready for trial because I was still pursuing evidence. The court didn't care and insisted the trial would proceed as scheduled.

The Crown presented it's case, which did not include any evidence or testimony from CBSA. At the close of the Crown's case I told the court I'm not ready to proceed – I'm still pursuing evidence, particularly in light of the recent news that CBSA destroyed the video of me at the border – which was going to be the most significant piece of evidence for my defense.

What followed was a number of adjournments, from August 2019 through February 2020, while I pursued evidence through freedom of information requests and direct, written correspondence with CBSA, the RCMP, IRCC, the BCPS, et cetera. CBSA consistently insisted, to me directly, and through the Crown, that there is absolutely no record of me presenting myself to, or interacting with, CBSA on 2019-03-15. And the Crown consistently argued that the absence of any such record can only mean that it simply didn't happen, that I must be lying about it.

Then, at a status conference on 2020-01-28, I stated in open court, in front of all of the lawyers and prosecutors, the judge, and on the DAR system, that if Wolfe actually believed what he's been arguing and claiming for the past five months then he would WANT CBSA to testify. And the fact that Wolfe has done absolutely nothing in that respect, not even one request to CBSA for the names or identities of the officers who were working in secondary inspection when I say I presented myself, proves that he knows I'm telling the truth and that HE is the one who is lying and that he knows I'm innocent.

Then, miraculously, out of the blue, a few days later (2020-02-04) CBSA suddenly admitted to Wolfe that, in fact, I DID present myself to them on 2019-03-15 at the Douglas port of entry, and they provided Wolfe the name of the officer I interacted with (Meagan Polisak), and her notes relating to that interaction. Of course, this is all according to Wolfe, who has an obvious interest in shifting any blame and responsibility from himself to CBSA.

So, the CBSA staff at the Douglas border crossing had been lying about the existence of official records which would have helped to prove my innocence, as had the Intelligence Analysts and the Superintendents at the Vancouver CBSA office, AND the staff at the CBSA ATIP department in Ottawa!

In addition to Polisak's notes, which CBSA finally disclosed to the Crown on 2020-02-04, on 2020-01-25 I received a copy of my complete, current GCMS record from IRCC. I did not disclose the GCMS record, or the fact that I had it, until I began my cross-examination of Polisak. It should be noted that Polisak's notes, as disclosed to Crown by CBSA, were actually just a verbatim copy of the comments she had entered in my GCMS record.

On 2020-03-04 CBSA Officer Meagan Polisak testified. She lied about a number of critical points (most of which will be easy to prove) but mostly she claimed she couldn't remember when asked about anything that would be in my favor.

Polisak testified that even at a port of entry the burden is on CBSA to prove that at person is NOT a Canadian citizen and that failing that CBSA must allow the person to enter Canada. I challenged her about this on cross, point out that that would mean any person could show up at the border, claim to be a Canadian citizen and as long as they didn't have a birth certificate or passport with them, CBSA would have to allow them to enter Canada. Polisak stated “Yes”.

Polisak testified that when she checked my FOSS record in the computer, she ONLY had access to the “Remarks” field, which contained the comments of another CBSA officer. Polisak explicitly testified that she DID NOT have access to the “Country of Birth” field, which stated “United States of America”. On cross, I proved Polisak had lied about only having access to the “Remarks” field because in her notes she made reference to information in another field of the report. I said to Polisak “If you only had access to the Remarks field, then how did you know the remarks came from someone at the Edmonton CIC office?” Polisak responded “That's why I didn't mention it in my notes.” I said “But you DID mention it in your notes! It's right here!”

When I asked Polisak about the information in the “Client Details” section of my GCMS report she testified that information was in the system before she encountered me on 2019-03-15. I asked her if she had access to all of the information in the GCMS record. She said “Yes”. I asked her about the “Country of Birth” field, which stated “United States of America”. She hesitated, then firmly stated “That wasn't there when I looked at it.” I said “But do you see the field named 'Created Date', at the time of the page? It says 2019-01-18. That's two months before you checked the record.” She responded “Yes”.

Polisak also falsely testified regarding the contents of the “Remarks” field of the FOSS record. She testified that the officer who had entered the remarks had “confirmed” I was born in Sudbury, ON. However, on cross, she admitted that the officer had not, in fact, stated that he “confirmed” anything – only that he “concluded” a person named Ricky Riess was born in Sudbury, ON.

On 2020-03-06 I testified. My testimony was essentially consistent with the information provided above, but particularly:

• that Polisak DID inform me that I was inadmissible and that based on that the only legal option I had from the port of entry was to proceed south, out of Canada;
• that I also showed Polisak a copy of my FOSS record on my phone, and that I explicitly pointed out the “Country of Birth” field which stated “United States of America”, so even if Polisak DIDN'T see it when she looked at my information in the computer, she saw it in the paper version;
• that I presented myself at a port of entry rather than at a much closer CBSA office (e.g. in Vancouver) specifically because at a port of entry the burden of proof shifts from CBSA to me.

I explicitly challenged Wolfe to point out a single lie I had told, ever, and he failed to do so.

A “port of entry” is a special, designated area within the context of immigration law. Although a port of entry may exist within the physical borders of Canada, once a person enters the area designated as a port of entry they are, in the context of immigration laws, considered to be outside of Canada, and presumed to be seeking entry to Canada – just as though they were outside the physical borders of Canada. For that reason, every person who is physically present at a port of entry is presumed to be an “immigrant” or a “foreign national”. This applies to all people present at a port of entry, regardless of whether they entered the port of entry from within Canada or from the US.

And, within an area designated as a port of entry, the burden is on the person present to prove they are a Canadian citizen or otherwise entitled to “enter Canada” - or more specifically, that they are entitled to leave the area designated as a “port of entry” and enter the rest of Canada. This is in contrast to when a person is encountered “within Canada OTHER THAN at a port of entry”, in which case the burden is on CBSA to prove the person is not a Canadian and is, therefore, inadmissible or removable. I argued that Polisak's testimony on this matter was patently incorrect.

The area designated as a port of entry, in the case of the Douglas border crossing, includes not only the primary inspection booths, but also the building where the secondary inspection area is located, and the land immediately surrounding those. Such that while I was in the secondary inspection area, interacting with Polisak, I was within the area designated as a port of entry.

And, it makes no difference whether the person entered the area designated as a port of entry because they were instructed to by a border official or of their own volition – a person within the designated area is a person within the designated area, regardless of how they came to be there.

Polisak not explicitly ordering me to leave Canada is not relevant because it was sufficient that she, as a border officer acting in her official capacity, told, while I was present at a port of entry, that I was inadmissible to Canada. Also, since a person at a port of entry is not considered, in the context of immigration laws, to already be within Canada then an order to leave Canada would be nonsensical – you cannot be ordered to leave a place you are not within.

The immigration laws (e.g. the IRPA) sometimes use the term “a person seeking entry to Canada” to refer to a person at a port of entry, because it is a reasonable inference that a person who has traveled to the port of entry and presented themselves to a CBSA officer has done so because they desire or intend to enter Canada upon leaving the port of entry. However, the terms is not intended to limit who the laws pertaining to people at a port of entry apply to. The laws apply to all people PRESENT at the port of entry, regardless of whether the person intends, following his examination, to proceed north into Canada, or south into the US.

The “Country of Birth” field of the FOSS and GCMS records is critical because the information comes from IRCC, which is the only government body empowered to make definitive determinations whether a person is, or is not a Canadian citizen, and because it is sufficient to create a strong presumption that the person is NOT a Canadian citizen – particularly when the person is encountered at a port of entry, and their FOSS and GCMS records state they were born in a foreign country and their citizenship is unknown.

Therefore, when I presented myself to Officer Polisak at the secondary inspection area, CBSA was legally required to presume I was a foreign national until I had prove otherwise, and since I told Polisak I had not status in Canada, I was a US citizen, born in the US, and both the FOSS and the GCMS records stated I was born in the US and did NOT state I am a Canadian citizen; AND I had told Polisak I had been convicted of criminal harassment in Canada, an indictable offense; Polisak had no evidence or reason to believe I was admissible, and significant reason to believe I was inadmissible. In order for me to leave the area designated and return to Canada the burden was on me to prove I was admissible – which I am not! And for CBSA to allow me to enter Canada, knowing I have no status and I've been convicted of criminal harassment would be an egregious violation of CBSA's duties and of the immigration laws.

I reasonably believed, knowing that I was inadmissible to Canada and having been told by Polisak that I was inadmissible to Canada, the only legal option I had was to leave the port of entry without entering Canada, which would mean proceeding south, to the US.

I informed the court I would like the opportunity to provide legal authorities to support my positions on these matters. The court did not afford me that opportunity.