Catherine Sas, K.C.It is rare in our blogs to provide case commentary upon court decisions as the vast majority of Canadian jurisprudence is mostly for consideration and contemplation by lawyers rather than the layperson. But from time to time a judicial conclusion provides significant guidance to the general public. The recent BC Supreme Court decision of He v. Guo is such a case providing considerable food for thought in the Canadian immigrant community.
An issue that comes up not infrequently in the immigration context is that of “the poisoned pen letter”, where the authorities receive written communication of alleged immigration infractions. This can have extremely negative consequences for the individual, which Mr. Justice Funt fully grasped. In our Vancouver immigration law office we have seen numerous cases between jilted lovers, jealous spouses, angry siblings and many other hostile relationships that result in letters being sent to Immigration Refugees and Citizenship Canada (IRCC) and/or the Canada Border Services Agency (CBSA), or the filing of spurious criminal allegations to the police, all with significant immigration (and financial) consequences to the individual immigrant and, their extended family.
In this particular case, the couple had a spousal relationship of just over three years during which the Claimant He sponsored the Respondent Guo and her son and they obtained their Canadian permanent residence. Shortly after obtaining permanent resident status, the common-law relationship between the parties broke down in early 2017. On March 30, 2018, the Claimant sent an email to the Respondent which included a draft separation agreement seeking financial compensation from her and in his message, he provided a website link to the IRCC website.
Shortly thereafter, on April 18, 2018, the Claimant sent a letter to IRCC on letterhead from his place of employment entitled “Immigration Marriage Fraud Report” which claimed, among other things, that the Respondent had entered into their relationship fraudulently to gain permanent resident status for herself and her son. Also included within this “report” were allegations that the Respondent had also been dating some men for money which was in contravention of her former work permit which stipulated “Not valid for employment in businesses related to the sex-trade such as strip clubs, massage parlours or escort services”.
The Respondent did not agree to the proposed terms of the separation agreement and the matter proceeded to trial with several days of hearing in February and August of 2020. The Respondent’s lawyer argued that the actions of the Claimant in sending a draft separation agreement together with a link to the IRCC website was an attempt to intimidate the Respondent into accepting the proposed financial terms of settlement.
In the course of reaching his decision, Mr. Justice Funt made several significant conclusions, specifically that:
(27) The claimant’s assertions of fraud, violence, witness threatening and working in the sex-trade, were not shown at trial to be other than baseless assertions.
(28) An immigrant applying for permanent residency status is vulnerable to threats, intimidation, and unfounded accusations. I find that the claimant’s report to the immigration authorities and related serious allegations were maliciously made by him.
On November 3, 2020, the Court rejected all of the financial claims of the Claimant He as a result of his spurious allegations against his former spouse and further concluded that the totality of his actions constituted family violence. He went on to state as follows:
“…rewarding the claimant by way of spousal support would, as a matter of policy, encourage avarice rather than relationships of love and support both to the detriment of families and our Country’s immigration system. “
As the Court rightly recognized, such fraudulent and malicious allegations can have life altering consequences for wrongly accused immigrants. As a result of his actions, the Claimant He was denied any financial compensatory relief that he had been seeking. The next vital step in the course of preventing the actions of persons such as He, should be for IRCC and CBSA to actively pursue sanctions specifically provided for in both the Criminal Code and the Immigration and Refugee Protection Act for prosecution against those making false immigration accusations.
