R. v. Ladha

2013 BCSC 2437 R. v. Ladha IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ladha, 2013 BCSC 2437 Date: 20131122 Docket: 26249 Registry: Vancouver Regina v. Mumtaz Ladha Restriction on Publication pursuant to s. 486.5(1) of the Criminal Code Before: The Honourable Madam Justice Fenlon Oral Reasons for Judgment Counsel for the Crown: P.R. LaPrairie C.F. Hough S.P. Charles Counsel for the Accused: R.C.C. Peck, Q.C. E.V. Gottardi T.C. Paisana Place and Date of Trial: Vancouver, B.C. September 4-6,10-12,16,17,20,23-27, 2013 October 7-10,28-31, 2013 November 1, 2013 Place and Date of Judgment: Vancouver, B.C. November 22, 2013 [1] THE COURT: Mumtaz Ladha stands charged with four counts: · first, organizing the coming into Canada of a person by means of fraud or deception, contrary to s. 118 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], a charge that is commonly referred to as "human trafficking"; · second, employing a foreign national without authorization, contrary to s. 124(1)(c) of the IRPA; · third, misrepresenting material facts to the High Commission of Canada in support of an application for a temporary resident visa, contrary to s. 127(a) of the IRPA; and · fourth, misrepresenting material facts to Citizenship and Immigration Canada in support of an application to extend the temporary resident status of a visitor to Canada, contrary to s. 127(a) of the IRPA. BACKGROUND [2] These charges arise out of events that occurred between March 2008 and June 2009 when the accused, Mumtaz Ladha, brought the complainant, M.H., from Tanzania to West Vancouver. Identity, time, place, and jurisdiction are admitted. [3] The issue at the heart of this case, but particularly in relation to the first two counts, is the purpose of M.H.'s visit. M.H. says she was tricked into coming to Canada when the accused offered her a job as an esthetician in a hair salon the accused said she was going to open in Vancouver. M.H. was a 23‑year‑old single mother of a three‑year‑old boy. Life in Tanzania was difficult. M.H. said that the prospect of working in Canada at a good salary for six months induced her to leave her son in Tanzania and travel to Canada. [4] M.H. says that when she arrived in Canada, she was immediately put to work as a maid; cleaning a huge home, wearing a uniform, and serving the Ladha family 16 to 18 hours a day, seven days a week for 10 months, all against her will and without pay. M.H. says her ordeal ended after a local woman befriended her and helped her flee to a transition house in June 2009. [5] Mrs. Ladha's version of events is dramatically different. She did not testify at the trial, but in a statement entered into evidence by the Crown, Mrs. Ladha described befriending a young M.H. who had come to work as a housemaid for the Ladha family in Tanzania at the age of 14 or 15. After a break of a few years, when M.H. became pregnant and left her employ, Mrs. Ladha rehired M.H. to work as a cleaner at her hair salon in Dar es Salaam in Tanzania. Mrs. Ladha says she took a liking to M.H. and offered to bring her along on a visit to Canada for a few months. [6] According to the defence, M.H. was a guest of the Ladha family. She liked life in Canada and wished to stay longer. Mrs. Ladha therefore extended M.H.'s initial six‑month visitor's visa and looked into obtaining a work permit for her. When the work permit did not pan out, Mrs. Ladha planned to take M.H. back to Tanzania in July 2009. Weeks before that was to happen, the defence says M.H. left the Ladha residence and made up a story about being abused as a maid, so that she could claim refugee status and remain in Canada. [7] This is a "she said / she said" case. Both versions cannot be correct. Someone is not telling the truth in these proceedings. My task is not, of course, to choose one version of events over the other. Although the accused did not testify, the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, a decision of the Supreme Court of Canada, apply to the exculpatory aspects of the accused's statement admitted into evidence as part of the Crown's case. Authority for that is found in R. v. Woodland, 2009 SKQB 262 at para. 36, R. v. C.B.A., 2012 BCSC 759 at para. 24, and R. v. Florence, 2012 BCSC 799 at para. 180. [8] The onus remains firmly on the Crown to prove each element of the offences charged against Mrs. Ladha beyond a reasonable doubt. [9] I will address Counts 1 and 2 together, because the Crown's case on those two counts is largely dependent on the Court accepting M.H.'s evidence and rejecting Mrs. Ladha's statement. Indeed, in relation to Count 1, the trafficking charge, the Crown stated at paragraph 440 of its written argument, " the only evidence tendered at trial that speaks to [the circumstances under which M.H. agreed to come to Canada] is the evidence of M.H. herself." I have paraphrased slightly, but that is roughly what is stated in the argument. [10] I begin by identifying the essential elements of these two offences. Count 1 - Human Trafficking [11] In the jury instructions in R. v. Huen and Orr (24 June 2013), Vancouver 26094 (B.C.S.C.), Mr. Justice Goepel reviewed the elements that the Crown must prove in relation to Count 1, which is charged under s. 118 of the IRPA. They are: 1) that the accused was the person who committed the offence; 2) that the offence occurred at the time and place set out in the indictment; 3) that the accused organized the coming into Canada of the complainant; 4) that fraud or deception was used against the complainant to organize her coming into Canada; and 5) that the complainant was actually deceived or defrauded and induced by that deception and fraud to come to Canada. [12] The defence does not dispute identity, time, place, or that Mrs. Ladha organized M.H.'s travel to Canada. Only elements (4) and (5) are at issue; namely, whether fraud or deception was used against M.H. to organize her coming into Canada, and whether M.H. was actually deceived and induced to come to Canada as a result. Count 2 - Employing a Foreign National Without Authorization [13] In order to prove wrongful employment against the accused, the Crown must prove: 1) that the accused employed a foreign national in some capacity; 2) that the foreign national was not authorized to be employed in that capacity; and 3) that the accused knew that the foreign national was not authorized to be employed in that capacity. [14] There was no dispute here that the complainant is a foreign national. She is a citizen of the United Republic of Tanzania. The issue on Count 2 is whether M.H. was employed by Mrs. Ladha. In R. v. Huen, 2013 BCSC 1483, Mr. Justice Goepel concludes at para. 10: [10] . . . the term "employ" continues to reflect the concept of activity for which a person receives or might reasonably be expected to receive wages or other valuable consideration . . . [15] On this charge, the complainant's evidence is not the only evidence of employment, but it is essential because the evidence of the other Crown witnesses is equivocal. I first turn to that other evidence. [16] Don Jewell, a neighbour, saw an African woman taking out the garbage a couple of times, washing windows, and washing at least one car. [17] Amarjeet Singh, a delivery driver with Trail Appliances, gave evidence that the complainant answered the door when he arrived. When it became apparent that the refrigerator he was delivering would not fit in the space for which it was intended, Mr. Singh observed the complainant make a phone call before signing the delivery slip. [18] Sonny Andom, who was described by the Crown as a very significant witness for the prosecution, also gave evidence relating to the issue of employment. He performed renovations at the Ladha residence in West Vancouver, attending four times over a two‑week period in the fall of 2008 and again a couple of times in early 2009. [19] Mr. Andom said that in the fall of 2008 he could not communicate with the complainant because she did not speak English and he did not speak Swahili. Mr. Andom observed the complainant being asked by Mrs. Ladha or her daughter, Zahra Ladha, who also lived in the home, to show Mr. Andom where to get things he wanted, such as a ladder. Mr. Andom said the complainant made him tea and brought him water. He observed her doing many things around the house. [20] Then in the winter of 2009, Mr. Andom was called to the house to fix a refrigerator. He says that when he arrived he saw the complainant shovelling snow from around Zahra Ladha's car, which was stuck on the road. When he gave the complainant a lift back to the Ladha residence, Mr. Andom saw Zahra Ladha at the house in the living room, "watching TV or doing something". [21] On another occasion Mr. Andom saw Zahra Ladha going to her car in the rain with an umbrella, while M.H. walked behind without an umbrella carrying Zahra's bag. [22] Mr. Andom testified that either the accused or the complainant told him that the complainant was going to stay in Canada for one year, but he understood that M.H. was just visiting Canada and was going back to Africa. [23] The evidence of Mr. Andom, Mr. Jewell, and Mr. Singh is equivocal on the issue of M.H.'s employment by the accused. Their evidence is consistent with the complainant working as a maid, but it is also consistent with a houseguest helping out while on an extended visit. [24] In Georgas v. Canada (Minister of Employment and Immigration) (1978), [1979] 1 F.C. 349, 1978 CarswellNAT87F (C.A.), Le Dain J. of the Federal Court of Appeal stated with respect to the definition of "employment" at para. 2: [2] This does not mean that any work performed by a visitor for a relative with whom he or she is staying, and for which the relative would have to pay compensation if he or she chose to have it done by a stranger, should fall within the definition. It depends on the nature of the work and the circumstances in which it is performed. [25] In R. v. Tsoungrianis (1980), 5 Sask. R. 44, 1980 CarswellSask 279 (P.C.), the Saskatchewan Provincial Court acquitted the accused, citing Georgas and its definition of employment. Fielding J. held as follows at para. 2: [2] The argument made by [defence] counsel was that [the complainant] did no more than a visitor with self-respect, good manners and sociability would have done and, in my opinion, that is all that the evidence shows [26] It is noteworthy in the case before me that none of the witnesses who testified at trial, including Mr. Andom who attended at the house at least six times, observed M.H. wearing the uniform she says she put on every day as soon as she woke up and took off only when she went to bed at night. Those witnesses who could remember what M.H. was wearing recall her wearing jeans and casual clothing. [27] I come back then to assessment of the critical evidence of the complainant on Counts 1 and 2. Having considered the totality of M.H.'s evidence on its own and in the context of all of the other evidence led at trial, I conclude that the complainant is not a reliable witness. I also conclude that she is not a credible witness in many respects. My reasons for these findings follow. [28] First, in her examination-in-chief, the complainant said repeatedly and unequivocally that she never sat at a table to eat with the accused, the Ladha family, or their friends. After repeated cross-examination on the topic, the complainant eventually conceded that she had, on only one occasion, eaten out at a hotel when invited to do so by a friend of Mrs. Ladha. Later still, the complainant conceded she had also been at a restaurant with Mrs. Ladha and two other family members in Whistler. After further cross-examination, M.H. agreed she had eaten out with Mrs. Ladha on a third occasion at an African restaurant. When the complainant was subsequently confronted in cross-examination with two photographs showing her sitting at a table with Mrs. Ladha, two of her children, and two friends, the complainant agreed yet again that she had attended the event. M.H.'s claim that the food was spicy Indian food which she could not eat was contradicted by a picture of the buffet which appeared to offer a traditional Christmas meal. [29] Second, when asked in cross-examination whether Mrs. Ladha regularly took her to McDonald's on Sundays, the accused said, "I don't remember". This response is not believable. [30] Third, the complainant described going on a trip to Whistler with the accused, her daughter Natasha Ladha, and her brother. M.H. said she carried three sets of skis, poles, and boots at the same time from the hotel to the ski lift. M.H. is a small woman. It is most unlikely that even a person of greater stature and strength could carry three sets of skis, poles, and ski boots simultaneously. This evidence is not believable. [31] Fourth, the complainant described working 18 to 19 hours a day for 10 months without a single day off, even though according to her own testimony she was alone in the house for stretches from a few days to more than two weeks, periods when the accused and Zahra Ladha were both away travelling. The complainant said she continued to wash floors, dust, scrub toilets, and clean windows all day, working from 6:00 a.m. to midnight or 1:00 a.m., even though no one else was in the house. This evidence, too, strikes me as improbable. [32] Fifth, the complainant testified that she washed the windows in the house every day, and also washed all the floors on her hands and knees. When asked how this was possible in a 7,000‑square‑foot home, the complainant could not say how long the tasks took. [33] Sixth, the complainant described oiling all the wood floors with oil and a towel one to two times a week. Later on, she modified that slightly to say it could have been once or twice a month. Based on the evidence of Natasha Ladha and the sample of the flooring she provided, I find the floors in the residence were laminate flooring that would not absorb oil. That would be so even if the floors were finished hardwood. The Crown submits that the complainant's evidence can be explained; she simply mistook a cleaning fluid which can be used on laminate flooring or hardwood flooring, such as Murphy's Oil Soap, for oil. In other words, she simply made a mistake. But the labels on the fluids put into evidence by Crown in cross-examination of Natasha Ladha state clearly that, if used to clean floors, the fluid is to be mixed with water in a bucket. M.H.'s description of applying oil with a cloth to shine the floors, in addition to washing the floors, cannot be explained by a misunderstanding over the name of the cleaning fluid. [34] Seventh, the complainant said she could not speak English at all or very little when she first arrived in Canada, yet she testified that the day after her arrival from Tanzania, she spoke to Mrs. Ladha's former Filipino housekeeper for an hour in order to be shown what to do in the house. The complainant described the housekeeper speaking to her in English and giving her detailed instructions, such as the need to clean Zahra Ladha's room early in the day because she did not like it to be done later. [35] Eighth, the complainant denied she provided any information to the accused to fill out a visa application in Tanzania. She insisted the accused did it all on her own. When confronted with information on the forms about her parents' birth places, the complainant changed her evidence and acknowledged she provided that information to Mrs. Ladha. [36] Ninth, the complainant in direct-evidence said she attended elementary school to Grade 7 in Tanzania, and then attended nursing school for one and a half years. She said she wrote her notes in class in Swahili and used text books written in Swahili. When asked in cross-examination about passport and visa documents which could be read in Swahili, the complainant said she had never learned to read Swahili. The next day she said she read Swahili, but not very well. That evidence is inconsistent with being able to write in Swahili, achieve Grade 7, study nursing, and pass exams in Swahili. [37] Tenth, M.H. described an employer/employee relationship with Mrs. Ladha, characterized by harsh working hours and callous disregard. For example, Mrs. Ladha telling the complainant she could never sit on the furniture because she had a bad odour and she had to sit on the floor, restricting her sleep to five to six hours a day, and giving her insufficient food to eat. The evidence of other witnesses did not support M.H.'s description of her relationship with Mrs. Ladha. [38] Mr. Andom, who testified for the Crown, made a number of telling observations in his testimony. He said that Mrs. Ladha and the complainant would joke and laugh with one another and otherwise shared a good relationship. He said Mrs. Ladha and M.H. appeared happy together and would laugh with one another all the time. He said M.H. had a good sense of humour and would always say things that made Mrs. Ladha laugh. He described M.H. as happy at that time, smiling, and more flamboyant. He heard M.H. call Mrs. Ladha "Mumma". Mr. Andom did not observe any stress between M.H. and Mrs. Ladha. He agreed that his impression was that Mrs. Ladha was good to M.H., and noted that Mrs. Ladha was very soft-spoken and very gentle, even more so with M.H. than with him. [39] Tigi Begashaw similarly testified that the complainant originally told her that she shared a good relationship with Mrs. Ladha and that Mrs. Ladha was a nice person. In fact, Ms. Begashaw testified that M.H. never complained about Mrs. Ladha. When these comments about Mrs. Ladha being a nice person were put to M.H. in cross-examination, she did not deny them. Rather, she testified that she could not remember if she had said that to Ms. Begashaw. [40] Of particular significance in this regard is an exchange of text messages between the complainant and the accused. The complainant testified that Mrs. Ladha had given her a cell phone and a SIM card. On April 2, 2009, when Mrs. Ladha was in Tanzania, M.H. sent Mrs. Ladha a text message saying, "My mother, miss you every day, good night, bye." Mrs. Ladha replied, "Will miss you too. Good night and take care. I love you like my Zahra and Natasha." The complainant responded, "Thank you, Mother." [41] The Crown argues that these texts could have been from the accused's son or another servant in Tanzania and questions, for example, why the sender and receiver would both be saying good night, when it would be morning in one time zone and evening in the other. These arguments have no merit, because the complainant acknowledged that she sent the text messages. She explained them by saying it was a front to stay on Mrs. Ladha's good side. I find that explanation unconvincing. [42] There are many other examples I could allude to, but I will stop here. I have concluded that it would be unsafe to rely on the complainant's evidence to prove the counts alleged against the accused. The entirety of M.H.'s evidence leaves me with a reasonable doubt whether the accused committed the offences alleged in Counts 1 and 2. [43] Quite apart from the frailties of the complainant's evidence, I would, in any event, be left with a reasonable doubt based on Mrs. Ladha's statement to police on September 11, 2009. [44] Staff Sergeant Dhillon approached Mrs. Ladha while she was out shopping with one of her daughters. Without advance warning, he asked Mrs. Ladha to speak with him in her vehicle. As I have noted, the tape‑recorded statement was put into evidence and played in court. That statement had the unmistakeable ring of truth to it. In addition, the statements made by Mrs. Ladha were largely corroborated. [45] Mrs. Ladha's reaction in the interview, when confronted with M.H.'s allegations, was also telling. Mrs. Ladha did not react with anger, but with shock. She did not criticize the complainant, but defended her. Mrs. Ladha described M.H. as an innocent child who must have been pushed to do this by a handyman; (a reference to Mr. Andom), who had been chasing her at the house so he could keep her in the country. I am paraphrasing Mrs. Ladha's statement to the police here. [46] Finally, aspects of the evidence as a whole leave me with a reasonable doubt. First, the accused had no motive to clandestinely import a housekeeper. Mrs. Ladha is a wealthy woman who has employed housekeepers in the past. Two testified at trial: they had both signed contracts, worked eight‑hour days, and were paid. Why would Mrs. Ladha suddenly need to bring in a foreign national to work 18‑hour days without pay? [47] In contrast, the complainant had a motive to lie about her circumstances so that she could remain in Canada. Ms. Begashaw, who befriended the complainant and helped her to the transition house, testified that M.H. initially told her she wanted to go back to Tanzania and was being kept in Canada by the Ladhas. Mrs. Ladha was expected home from Africa for Zahra Ladha's birthday on July 9, 2009, after which she and the complainant were to return to Tanzania. It was only at that point, when faced with the return home to Tanzania that she said she wanted, that the complainant informed Ms. Begashaw she did not want to go back to Africa. [48] Ms. Begashaw testified that she confronted the complainant with this discrepancy, asking, "Isn't that what you want?" Ms. Begashaw testified that the complainant had no answer to that question. [49] The complainant told police from the outset, after she left the Ladha residence, that she wanted them to help her stay in Canada. She had a return ticket and her passport at that point, but she did not want to go home. [50] Second, the complainant's evidence that she was deceived into coming to Canada for six months to work in a hair salon, but was kept for a year, is contradicted by the documentary evidence. Before leaving Africa with the complainant, the accused bought a return ticket for M.H. for October 2008, three months after their arrival. This is consistent with Mrs. Ladha's evidence that the original plan was to come to Canada for three months for a visit. If Mrs. Ladha intended to keep the complainant in Canada working as a housemaid for as long as possible, it would make no sense to purchase a return ticket for a date three months before the six‑month visitor's visa expired. [51] I find that Mrs. Ladha originally intended to stay in Canada for three months, but extended her stay when it was announced in October 2008, or thereabouts, that the Aga Khan would be coming to Canada at the end of November 2008. [52] Third, two witnesses called by the defence, Mr. Somani and Dr. Kassam, described social events at the Ladha home and other venues, at which Mrs. Ladha, Zahra Ladha, and the complainant were present. They described the complainant eating with the other guests and attending as a guest. I find it unlikely that the accused would take an employee with her to a friend's home when invited for dinner. [53] Although I have identified particular aspects of the evidence that cause me to have a reasonable doubt, I have, of course, considered the evidence in its entirety. As I noted earlier, I could continue with other reasons, other examples, but there is little point in doing so. [54] In summary, I find that the Crown has not proved that Mumtaz Ladha used fraud or deception to bring the complainant into Canada, nor has the Crown proved that the accused employed the complainant in Canada. These are essential elements of the offences charged in Counts 1 and 2, respectively. Since those elements have not been proved, the offences have not been made out. Counts 3 and 4 [55] It is convenient to deal with Counts 3 and 4 together, because both are laid under s. 127(a) of the IRPA. That provision reads: 127. No person shall knowingly (a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; [56] In order to prove the offences charged under s. 127(a) of the IRPA, the Crown must prove beyond a reasonable doubt the following elements: 1) that the accused is the person who actually committed the offence; 2) that the offence occurred at the time and place set out in the indictment; 3) that the accused misrepresented a material fact or withheld a material fact; 4) that the accused knew the representation was false when it was made, or knew he or she was withholding a material fact; 5) that the misrepresentation or withholding of a material fact induced or could have induced an error in the administration of the IRPA. [57] The defence does not dispute identity, time, and place. The three remaining elements of the two offences are in issue. I turn first to Count 3. Count 3 [58] The subject of Count 3 is Mrs. Ladha's two applications to the High Commission of Canada in Africa to obtain a temporary resident visa for M.H. The first was made on May 20, 2008. That application was denied in part because of a concern about funds not being available to support the complainant while she was in Canada. [59] Mrs. Ladha reapplied in June 2008. In response to a request from the High Commission, she submitted proof of her business in Tanzania and proof of her financial means to support M.H. in Canada. The High Commission granted a temporary resident visa to M.H. as a result of this second application. The evidence establishes that the High Commission cross‑referenced the two applications submitted by Mrs. Ladha and had before it information in relation to both applications when M.H.'s visitor's visa was granted. [60] As I have noted, the third element of the offence requires the Crown to prove that Mrs. Ladha misrepresented or withheld material facts. The fourth element requires the Crown to prove either that Mrs. Ladha knew she was withholding a material fact, or that she knew any of the statements were not true. The Crown submits that a number of statements in the two applications are misrepresentations Mrs. Ladha knew to be untrue. The misrepresentations relied on by the Crown are identified commencing at paragraph 283 of the written submissions. [61] I am going to refer to each of those alleged misrepresentations. [62] First: M.H. has never visited Canada before, and this would be the ideal opportunity for her to accompany me since I am unwell at the moment. [63] This quotation is taken from a letter the accused wrote to the Canadian High Commission on May 20, 2008, as part of the first visa application. The Crown asserts that the statement contains two misrepresentations: first, the statement that Mrs. Ladha was unwell, when in reality she was perfectly fine; and second, the statement that M.H. was coming to Canada as a companion to Mrs. Ladha, when in fact she was coming to work as a maid. [64] I have already found that the Crown has failed to prove that the complainant worked for Mrs. Ladha as a maid. I also find that the Crown has failed to prove that Mrs. Ladha was not unwell; that is, that she was perfectly fine. The only evidence that Mrs. Ladha was entirely well came from M.H., whose evidence I have found to be unreliable. There was other evidence that Mrs. Ladha was unwell. Documents supporting the second visa application include a note from her doctor stating that Mrs. Ladha has vertigo and osteoarthritis. Further, Mr. Somani and Dr. Kassam both testified that they were aware that Mrs. Ladha suffered from vertigo. [65] Natasha Ladha gave evidence that her mother suffers from this condition. Natasha Ladha produced an invoice that she paid when her mother arrived to visit her in Dubai, had an episode of vertigo, and required treatment at a hospital. [66] In summary on this alleged misrepresentation, I find that the Crown has not proved that the statements made were untrue. [67] Next: The purpose of my visit to Canada -- Other - Accompany my employer Mrs. Mumtaz Ladha who is Canadian That statement was made on the first visa application. [68] Next: The purpose of my visit to Canada --. tourism and Other That came from the second visa application. [69] I will address these alleged misrepresentations together, because both relate to the purpose stated for the complainant's visit to Canada. [70] The Crown submits that these are misrepresentations because the purpose of coming to Canada was for M.H. to work as a maid. Again, I have found that the Crown has not proved that M.H. was working as a maid. It follows that the Crown has not proved that these are false statements. [71] Next: Indicate how long you plan to stay in Canada --2 months That appears on the first visa application. [72] Next: Indicate how long you plan to stay in Canada -- July 3, 2008 - October 5, 2008 That appears on the second visa application. [73] The Crown submits that these statements are untrue and were known to Mrs. Ladha to be untrue because she intended M.H. to stay and work in Canada as a maid for at least six months, not two to three months. The Crown's submission is based on the evidence of M.H., who testified that Mrs. Ladha told her in Tanzania that they would be going to Canada for six months. As I have noted already, I do not find the complainant to be a reliable witness. In addition, Mrs. Ladha purchased a return ticket for M.H., in keeping with a three‑month stay, before they left Tanzania. [74] I find that the Crown has not proved that Mrs. Ladha intended to keep M.H. in Canada for more than the three months stated in the second visa application. [75] I also conclude that even if Mrs. Ladha made a misrepresentation by stating to the High Commission that she intended to have M.H. in the country for two or three months, when in fact she intended to have her in the country for six, the Crown has not proved that such a statement did or could induce an error in the administration of the IRPA, the fifth element of this offence. [76] Crown witness Jessica Poon, an employee of Citizenship and Immigration Canada ("CIC"), said that even when an application is made for a visit of two or three months, it is standard practice for CIC to issue a visitor's visa valid for six months. CIC assumes the visitor will likely stay in Canada for the full six months allowed by the visa. [77] Next, from the second visa application: This lady mentioned above, M.A.H., has been my personal assistant and companion for the past seven years. [78] Then from the first visa application: My present job -- housekeeper and nanny [79] From the second visa application: Present job -- domestic helper. [80] I have grouped these three alleged misrepresentations together because they relate to the nature of M.H.'s employment with the accused. It is common ground between the parties that at the time the visa applications were made in Tanzania, M.H. was a cleaner at a hair salon owned by Mrs. Ladha in Dar es Salaam. The Crown submits that if Mrs. Ladha had described M.H. as a cleaner at her hair salon, she would have had difficulty obtaining a visitor's visa because it would make no sense for a cleaner at a salon to be acting as Mrs. Ladha's travelling companion to Canada. [81] I find that Mrs. Ladha made errors in the way she described the complainant's current employment. As noted, M.H. was working as a cleaner at a salon. In the past she had worked as a housekeeper for Mrs. Ladha, but never as her nanny. It is a stretch to call the complainant a personal assistant. The reference to domestic helper might be explained by the nature of the work, cleaning, rather than the location of the work. Natasha Ladha testified that this was a category used to describe this type of manual labour in Tanzania. [82] Even if someone else actually drafted the letter and the application forms, Mrs. Ladha signed them. She was careless about the accuracy of the descriptions of M.H.'s employment and knew some of them were not true. [83] I conclude, however, that the Crown has not proved that the errors in the applications induced or could induce an error in the administration of the IRPA. To the contrary, the evidence of Ms. Poon suggests that what was important in the application process was the status of the applicant, M.H., as a current employee, the fact that she was accompanying her employer to Canada, and that her employer was unwell. [84] CIC's concerns related to ensuring the visit would be of a temporary nature and that the employer was able to support M.H. during the visit to Canada. [85] In cross-examination, Ms. Poon was asked: Q And in the covering letter in the first paragraph, the author of this covering letter is referring to her as a domestic member of the staff, correct? A Domestic member of staff, yes. Q And so, in other words, a current employee, correct? A Right, correct. Q And in the second paragraph the author is -- the author wrote that, "It would be an ideal opportunity for her to accompany me since I'm unwell at the moment", is that correct? A Right. There are other passages of Ms. Poon's evidence in the same portions of the transcript. [86] The thrust of Ms. Poon's evidence was that CIC is primarily concerned about facts that support the temporary nature of the visit, the likelihood the applicant will return to Tanzania, and the ability of the applicant to finance the visit. It is also significant that the officer at the Canadian High Commission in Africa had both applications in front of him or her. Those applications clearly contain the contradictory descriptions of M.H.'s employment now relied upon by the Crown. [87] Ms. Poon confirmed that if the High Commission wanted further information or clarification, it would ask for it. No clarification was requested. Despite the contradictory descriptions of the complainant's employment with Mrs. Ladha, the visa application was granted. In these circumstances, I do not find that the Crown has proved that the errors on the application form relating to the description of the complainant's employment with Mrs. Ladha were material errors or misrepresentations. [88] There is no evidence that if the complainant had been accurately described as a cleaner in Mrs. Ladha's salon that it could have affected the issuance of the temporary resident visa. The officer's notes do not indicate any concern about the description of the complainant's job. His concerns related to the adequacy of the evidence that the complainant would be financially supported while she was in Canada and the evidence that Mrs. Ladha was unwell. [89] Before leaving this count, I note that the cases provided to me by Crown counsel in support of their submission that Mrs. Ladha made misrepresentations in the case before me contain quite different facts. Those cases included R. v. Estipona, 2009 ONCJ 263, R. v. Dinten, 2007 ONCJ 132, R. v. Tongo, 2002 BCPC 463, R. v. Hupang, 2008 BCCA 4, and R. v. Zhong, 2008 BCSC 514. [90] In those cases, the applicants had provided CIC with forged transcripts and letters of acceptance from educational institutions, documents which were prerequisites to the granting of a student visa. There was evidence in those cases that the forged documents induced the issuance of visas; in other words, the visas would not have been granted without those documents. Count 4 [91] The subject of Count 4 is the application made in Canada in January 2009 to extend M.H.'s visitor's visa. That application was prepared by Mr. Stevens, an immigration lawyer and consultant. M.H. and Mrs. Ladha attended at his office. [92] The misrepresentations alleged by the Crown are similar to the misrepresentations alleged in relation to the earlier visa applications made in Tanzania. They relate to the purpose of the visit and Mrs. Ladha's health condition. Because I have already addressed those facts in relation to Count 3, I do not intend to address each one again. I note, for the record, that the Crown alleges that the following constitute the misrepresentations. [93] First: M.H. came to Canada as a travelling companion and caregiver for her Tanzanian employer, who has Canadian and Tanzanian citizenship, and homes in both countries. That is taken from the cover letter submitted with the application for the extension dated January 8, 2009. [94] Also from the cover letter: M.H. would like to extend her stay so she can visit more of Canada and help her employer through her medical problems. Continuing: I came to Canada as a travelling companion and caregiver for my Tanzanian employer, who has Canadian and Tanzanian citizenship, and homes in both countries. She has vertigo and needs my help from time to time with this condition. My employer also wanted me to have a chance to see some of Canada, which I would never have been able to do otherwise. That is taken from a particular part of the form. [95] Finally, under reasons for extending stay in Canada is recorded: To visit more of Canada and to help my employer through her medical problems. [96] The Crown submits in relation to each of these statements that they are untrue, because the purpose for M.H. coming to Canada was to be a maid to Mrs. Ladha, not a travelling companion, and because Mrs. Ladha was not suffering from any illness such as vertigo. [97] I find, for the reasons given in relation to Count 3, that the Crown has not proved either that M.H. came to Canada to work as a maid or that Mrs. Ladha did not have a medical condition that required assistance from time to time. [98] It follows that the Crown has not proved that Mrs. Ladha misrepresented a material fact in the visa extension application and Count 4 is not made out. [99] Mrs. Ladha has been charged with the serious offences of trafficking a fellow human being and placing her into forced domestic servitude. I have found that the Crown has not proved these charges beyond a reasonable doubt. [100] But I wish to emphasize that this is not a case in which I am left with only a reasonable doubt about whether the offences occurred. I am left, rather, with the conviction that the allegations made by M.H. are improbable. On the evidence before me, it appears far more likely that the complainant took advantage of Mrs. Ladha's generosity in order to come to Canada, and then took advantage of an opportunity she saw to remain in this country, showing a callous disregard for her benefactor and the truth in the process. [101] Mrs. Ladha, would you please stand. [102] Mumtaz Ladha, I find you not guilty of Counts 1, 2, 3, and 4. The Honourable Madam Justice L.A. Fenlon