Reasons for Judgment - Summary Conviction Appeal (2022-09-29)

[1]

Mr. Fox appeals his conviction in Provincial Court for breach of a probation order. The basic facts are not in dispute. Mr. Fox was subject to a probation order imposed by ACJ Holmes in November, 2017. The order included conditions that Mr. Fox not leave British Columbia and that he not be within 100 metres of the United States border.

[2]

There would appear to be some disagreement between Mr. Fox and the immigration authorities in both Canada and the United States about his citizenship status.

There is no disagreement. I say I was born in the US; IRCC says I was born in the US IRCC GCMS report. IRCC is the only immigration authority in Canada that is empowered to say that someone is, or is not, a Canadian citizen and, by virtue of having been born in a foreign country and having never applied for or received Canadian citizenship, both I and IRCC say I am not a Canadian citizen.

CBSA is not an immigration authority. They are merely an enforcement agency, just like ICE in the US. CBSA has no authority to declare that someone is, or is not, a Canadian citizen email from CBSA, dated 2019-03-07. So what they say is irrelevant.

As for the US authorities (namely, US CIS), they also have no power to declare that someone is, or is not, a Canadian citizen. They can only say someone is, or is not, a US citizen. And whether they want to acknowledge I am a US citizen or not means nothing to me. My birth certificate says I was born in Florida birth certificate; Florida is part of the US; the 14th Amendment to the US Constitution states that every person born in the US is a US citizen. Therefore, I am a US citizen. Regardless of what ICE, CIS, or the Immigration Court may insist.

I have no interest, at all, in having any kind of citizenship, immigration, or even visitor status in Canada. And if the US wants to refuse to acknowledge I am a US citizen then I am perfectly fine with being a stateless person. I have no objection to being recognized as being a citizen of nowhere. And if the US (or Canada) would like to deport me to nowhere then more power to them.

Mr. Fox asserts that he is an American citizen and not Canadian. Both US and Canadian immigration authorities appear to consider him to be a Canadian citizen and not an American citizen.

This is completely false and based on Edelmann's inferences, which are based on his misguided confidence in the Canadian and US justice systems, and the bureaucrats that comprise those systems. Edelmann's reasoning is that the US deported me to Canada, and the US doesn't deport US citizens; and Canada doesn't accept non-Canadian citizens for deportation TR p20l45-p23l29. Like all the judges, Edelmann naively refuses to accept there could possibly be any kind of corruption or misconduct amongst justice system participants.

During my submissions, Edelmann kept trying to get me to admit that the US authorities must believe I am a Canadian citizen because they would not deport me to Canada otherwise. I kept trying to explain to him that regardless of what the law might be on the matter, the fact is the people that work in the justice system sometimes disregard the law and do what they want - even when it is completley contrary to the law TR p21l28-p22l15. Edelmann seemed to be incapable of comprehending such a concept.

He has been removed from the United States to Canada on more than one occasion.

[3]

On March 15, 2019, while still subject to the probation order, Mr. Fox attended at the Canada Border Services Agency ("CBSA") office at the Douglas Port of Entry. According to Mr. Fox, he went there with the intention of being removed from Canada to the United States. He spoke with CBSA Officer Polisak. The trial judge described Officer Polisak's evidence about the interaction in the following terms:

[32] [Officer Polisak] conducted an inquiry, came up -- she looked at several databases and that eventually she could not confirm that [Mr. Fox] was not a Canadian citizen.
Polisak's testimony on this was obviously false because in each of the records she looked at (that is, from IRCC, CBSA, and the RCMP), my country of birth was listed as USA, and in IRCC's records my citizenship was listed as "Unknown". When I confronted her about this on cross-examination, her response was that she didn't see the "Country of Birth" fields in those records TR 2020-03-04 p64l7-13, p65l23-30, p78l12-32.
So because he had presented himself from within Canada to that office, there was no basis for directing him to go anywhere; certainly, no basis for directing him to go back to the U.S.

The fact that I entered the area designated as a port of entry from within Canada has no relevance because once a person is physically present within an area designated as a port of entry they are to be presumed to be a foreign national seeking entry to Canada. That is well established. I brought this up countless times during the trial and at the appeal hearing, but the judges consistently ignored it.

Edelmann was an immigration lawyer before he became a judge. He absolutely must know this ... unless, of course, he was a completely incompetent immigration lawyer.

[4]

The evidence of Mr. Fox did not diverge substantially from that of Officer Polisak except on whether she said he was inadmissible:

[35] In fact, the gist of Mr. Fox's submission at the end of the day is essentially the same. Mr. Fox testified. The point of dispute in his evidence as compared to the evidence of Polisak is he says that she clearly told him that he was inadmissible in Canada and that, as a result of that, he felt compelled to leave the country as he had, in his mind,
Notice how when the judges refer to what the prosecutors say they use definite terms, but when they refer to what I say it's "he felt" and "in his mind"? I cannot begin to express how offensive and frustrating it is to have to listen to these police and CBSA officers lie on the witness stand and for the judges to accept every word as the unquestionable truth, and then you take the stand and you're completely honest and you provide physical evidence and official documentation to prove what you're saying, but then you still have to listen to these jack-off assholes use use verbiage that implies you're wrong and/or lying.
no status to remain in the country. He testified that he explained to the officer he had no status in Canada and that he gave her a number of documents and pointed her to a number of informational sources that would establish that he was, in fact, a U.S. citizen, and he testified that she told him something to the effect of, "based on the information available to me, you appear to be inadmissible to Canada."

[36] He said he went outside at that point, talked to a border officer who asked him where he was going, and he says, 'Well, I guess I have to leave because I do not have any-- I am inadmissible in Canada,"
This is not what I said in my testimony, at all. The trial judge completely distorted and misrepresented my words 2020-03-06 RFJ ¶36, TR 2020-03-06 p109l39-43.
and he walked to the Customs and Border Patrol on the U.S. side. All of that happened on March 15, 2019, around 4:30 to 5:30, he says.

[5]

In the end, the trial judge found that even accepting Mr. Fox's evidence, he had not established a reasonable excuse for breaching the probation order:

[38] ... [E]ven if I accept his evidence at its highest point that somebody told him while he was inside this country that he was inadmissible to Canada, he had a choice at that time. He could leave the country or he could stay in the country and fight that designation or be arrested by Immigration.
This is total, total bullshit. Once again, the fact that I was "inside this country" was irrelevant becuase I was inside a port of entry. The fact that the port of entry was within Canada doesn't change the fact that it was still a port of entry 2020-03-06 RFJ ¶38!

[39] A number of different scenarios could arise out of what decision was made in that circumstance, but the point is, is that the decision that he did make was to walk across the Canada-U.S. border, and he did that without any objectively reasonable excuse, and that is the crux of the whole thing and when it comes down to it the question is, did he voluntarily breach this order or not? The answer is, he clearly did.

[6]

Mr. Fox raised a number of issues on appeal, several of which were addressed in submissions and he is no longer pursuing. The only issue outstanding is whether the trial judge erred in his application of the law to Mr. Fox's version of the facts. In my view he did not.

[7]

The offence of failure to comply with probation order is set out in s. 733.1 (1) of the Criminal Code, R.S.C. 1985, c. C-46, in the following terms:

An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty [...]

[8]

As noted by the trial judge, there is little question that the actus reus of the offence was established. Mr. Fox entered the United States in breach of both the condition not to leave British Columbia and the condition not to be within 100 metres of the US border. The trial judge also quite properly concluded that the mens rea of the offence had been established. Mr. Fox left Canada and attended at the US port of entry on his own and without assistance. Although the trial judge did not specifically refer to the subjective mens rea standard applicable to breaches of probation (see R. v Zora, 2020 SCC 14 [Zora] at para. 50), subjective mens rea was established on Mr. Fox's own evidence.

This is total nonsense!

Subjective mens rea means that when the person engaged in the particular conduct, he did so with the intention of violating the probation condition. If the person engaged in the particular conduct, but did so believing the manner in which he did it would not violate the probation conditions, then there is no subjective mens rea.

Edelmann says that my own evidence established the subjective mens rea, but that's complete fantasy. Consider:

During the sentencing submissions in the criminal harassment case, prosecutor Mark Myhre agreed that if I were to leave BC because IRCC or CBSA removed me or told me to leave Canada, then he would not consider that a breach of the order;
On 2019-03-14, in open court, I told Myhre and Justice Heather Holmes that it was my intention to turn myself in to CBSA, for the purpose of being removed;
On 2019-03-15, when I report to probation, I told my probation officer Abeed Bhimji that it was my intention to turn myself in to CBSA within the next week, for the purpose of being removed;
On 2019-03-15, I went to the CBSA office at the Douglas port of entry and turned myself in to CBSA, for the purpose of being removed. I turned myself in at a port of entry, rather than at an inland office, because I knew that at a port of entry the burden is on me to prove I am admissible, whereas at an inland office the burden would be on CBSA to prove I am not admissible. Also, I knew if I turned myself in at an inland office I may end up being detained by CBSA until they coordinate with the US authorities; whereas at a port of entry they would simply deny me admission.
After being denied readmission by CBSA I urned myself in to CBP at the US port of entry, knowing that would result in me being detained by Homeland Security;
If my intention was to leave BC (and Canada) without regard for the probation order then I would not have turned myself in to CBSA at the port of entry, I would have simply walked across the border. I would not have turned myself in to CBP on the US side. I knew that by turning myself in to CBP I would be detained. So I would have had nothing to lose by simply entering the US without going through inspection.

The fact that I turned myself in to both agencies, knowing that doing so would result in my potentially long detention, fairly proves that my intention was to remain in compliance with the probation conditions. And, if I explicitly engaged in additional, unnecessary conduct, which could reasonably be expected to result in substantial hardship (i.e. detention by DHS), and I did so for the express purpose of making sure I not violate the probation order, then I very clearly did not have the subjective mens rea.

This also seems to go against the entire discussion Edelmann had with Horneland, where he asked her why she's treating this as a reasonable excuse case and not a subjective mens rea case. In that discussion, Edelmann asked Horneland, if I believed I was required to leave Canada (from the port of entry) because the armed CBSA officer told me I was inadmissible, then how is that any different than if that CBSA officer would have put me in handcuffs or put a gun to my head and walked me across the border? TR p62l41-p63l15

And notice, that Edelmann is doing that thing that the judges do when they're full of shit and they're claiming that there was evidence or testimony that supports their ruling but in reality no such evidence or testimony exists - he makes a vague claim about my "evidence" but doesn't cite any examples.

[9]

The only issue was whether Mr. Fox had established a reasonable excuse. The onus was on Mr. Fox to establish a reasonable excuse on a balance of probabilities (R. v. Goleski, 2014 BCCA 80, cited with approval in Zora at para. 37).

[10]

The focus of Mr. Fox's submissions on appeal were essentially twofold.

[11]

First, that the CBSA officer had gotten the law wrong and that she should have removed him from Canada. In my view, this submission would not assist Mr. Fox even if the officer had erred in her interpretation of the law. Whether or not she was correct to do so, the officer did not order Mr. Fox to leave Canada.

Oh my God! You cannot order somebody to leave Canada if the person is not in Canada! And when you're in an area designated as a port of entry you are considered to be not in Canada, regardless of the fact that the port of entry is physically within Canada. When you're within a port of entry you cannot be told to leave Canada; you can only be told you cannot enter Canada. And, being told you are inadmissible, while you are within a port of entry, is equivalent to being told you must leave while you are within Canada other than at a port of entry.

This was discussed, at length, in both the trial p115l32-p116l4; p164l29-p165l14 and the appeal hearing p31l46-p32l14. I refuse to believe both St. Pierre and Edelmann were unable to grasp this concept. It's not rocket science!

Even on his evidence, she simply noted that based on the information before her it appeared he was inadmissible.

[12]

The second submission is that it was reasonable for Mr. Fox to proceed to the United States following his conversation with the officer. Mr. Fox was in Canada when he arrived at the CBSA office. There is a well-established process in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and associated regulations for removing an individual from within Canada.

Yes, for removing a person from within Canada. A person within a port of entry is not within Canada! Oh my God, why is it necessary to have to be so fucking repetitive with these fuckwads? I mean, you present your arguments and they just ignore them as though you never even stated them.

You will notice that Edelmann doesn't make any mention of the arguments I presented regarding the laws and burdens of proof at a port of entry. Nowhere does he mention that at a port of entry every person is presumed to be a foreign national seeking entry to Canada, or that the burden is on the person, not on CBSA to prove they are admissible. This is a common tactic these corrupt judges use - when you make arguments which are irrefutable, but which are contrary to the ruling they want to make, they just ignore them.

The process would involve a report (s.44(1)), a referral (s.44(2)) and most importantly the issuance of a removal order and its enforcement (ss.49-50).

Again, this only applies if the person is encountered within Canada, other than at a port of entry. When a person is denied admission at a port of entry, the CBSA has discretion in whether or not to prepare a section 44(1) report. And if the person being denied admission refuses to leave and chooses to fight that denial of admission (presumably from within immigration detention), then the section 44(1) report is unnecessary because you cannot issue a removal order for someone who is not in the country IRCC ENF 5 "Writing 44(1) Reports", Section 7 Procedure: Making a decision to write an A44(1) report.

And again, Edelmann having been an immigration lawyer, he must, I say he must, know that what he's saying here is completely false! Unless, of course, he was a completely incompetent immigration lawyer. Which is, of course, entirely possible.

The officer quite accurately stated she did not have the power on her own to issue a removal order even if she felt the grounds had been established to do so. The trial judge was justified in accepting her evidence on this issue.

[13]

Ultimately, there was no evidence before the trial judge that Mr. Fox was ordered to leave Canada, or that he was otherwise compelled by law to do so. The onus was on Mr. Fox to establish a reasonable excuse, and he failed to do so. I see no basis upon which this Court should interfere with that finding.

[14]

The appeal is dismissed.