A man found guilty for his role in an immigration fraud scheme has had the charges stayed because a Canada Border Services Agency (CBSA) agent working on the case was accused of intimidating witnesses, then allowed to investigate and clear himself.
Saskatoon Court of King’s Bench Justice Naheed Bardai’s 106-page decision, issued on July 23, found that even though it is “quite probable” the allegations of intimidation were false, the self-investigation violated the accused’s Section 7 Charter rights to life, liberty, and security of the person.
The ruling is the latest in a legal process that began in 2018, when Gurpreet Singh was arrested as part of an investigation by CBSA.
Singh would eventually face 12 charges, all of which were related to his preparation of false letters of employment promising foreign nationals jobs as religious workers at Gurdwars, houses of worship for members of the Sikh faith.
Bardai oversaw Singh’s 2022 trial and convicted Singh on 10 of the 12 charges, but before sentencing could take place, Singh’s defence lawyers brought an application for a mistrial.
They alleged that the Crown failed to fully disclose information about the CBSA and Crown being accused of intimidating witnesses, and that the nature of the relationship between the Crown and the CBSA resulted in a loss of objectivity and independence.
The defence argued this was grounds for the conviction to be revisited, the charges to be stayed, or the trial to be reopened or declared a mistrial.
The Crown disagreed, saying Singh received a fair trial.
Bardai found there had been problems with disclosure, but they were inadvertent and didn’t affect the outcome of the trial. He also ruled that he not satisfied “that the evidence establishes any sort of actual intimidation.”
The issue was that Toban Tisdale, the lead CBSA investigator on Singh’s case, was accused of intimidating witnesses, then allowed to investigate those allegations himself.
“The decision of Officer Toban to involve himself in an investigation that concerned his own behaviour represents a serious lapse in judgment,” Bardai wrote in his decision.
Bardai said we cannot simply trust the findings of an investigation conducted by the person accused of wrongdoing.
“The problems with this sort of abuse of power and self-investigation are obvious,” the decision said.
“This type of conduct undermines the integrity of the justice system.”
The judge concluded that “there is now way to turn back the clock to address this problem,” since many of the witnesses that testified at the trial had now been tainted by Toban’s inquiries about the alleged intimidation.
Bardai ruled that he was therefore not prepared to rule on Singh’s innocence. Instead, he said this was the “clearest of cases” in which a stay had to be issued.
A stay is a “remedy of last resort” and halts the legal process, but doesn’t determine guilt or innocence.
Tavengwa Runyowa was part of Singh’s legal team and agreed the stay was the correct decision.
“A police officer and an agency cannot investigate and and exonerate itself for wrongdoing,” Runyowa said.
Bardai spent part of the decision taking the CBSA to task over allowing Toban to investigate himself. He said the Crown could have stopped Toban, other officers at the CBSA office in Regina could have stepped in, or senior CBSA managers could have directed Toban to remove himself.
None chose to do so, Bardai said.
“This was not a single lapse in judgment by a single individual. This was a systemic collapse,” Bardai wrote.
Runyowa said his client is elated about Bardai’s decision. He said this is not just a single officer’s mistake, but a system that is so dysfunctional that people within it “don’t recognize that it is broken.”
“That should trouble the public, that an organization as large and powerful as the CBSA, which deals with all sorts of issues, national security, border security, immigration enforcement, can have such a faulty and defective structure that it could allow something like this to happen,” Runyowa said.
The CBSA did not immediately respond to a request for comment.
