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Le 12 novembre 2016, Victor Corneille reçut une lettre par la poste indiquant que la SAI décida en faveur du ministre. On présente ici une partie de son raisonnement, avec les erreurs linguistique laissées telles quelles, basée sur la présomption qu’on doit accepter la vérité d’une déclaration policière a priori jusqu'à ce qu’on puisse prouver autrement.


[7] [Ng’s] explanation as to why [Li] greeted her in the hallway is that [Li] was in the process of having deposited the money that she had received in advance from her client in a hiding place outside the room, at which time she heard the girls from downstairs shouting in Chinese that the police were there, and that is why she urged [Ng] to retrieve her Ipad before the police came upstairs. [Ng] could not explain at the hearing why there would be an urgency in retrieving the Ipad as it only contained Chinese movies and nothing incriminating against her. Moreover, the retrieving of her Ipad never was mentioned in any explanations provided during her interview prior to the ID hearing.


[...]


[9] There are some aspects of the ID’s reasoning in its decision with which the tribunal takes issue. It is true that the Minister has the burden of proof in the final analysis; nevertheless, once certain aspects of the evidence have been submitted, the burden of proof with respect to such evidence, should shift to the respondent, [Ng], to refute its accuracy.


[10] At page 84 of the Appeal Record, the ID, in reference to the police report, implies that the Minister’s proof is deficient because there are no details about the male found in the bedroom with [Ng]; namely, there was no mention or confirmation by this individual about what he was doing there; was doing it with whom, and if there was a price for it. The IAD is satisfied that a male in a bawdy house, in a closed room, in a state of undress, with a woman semi-nude, was there to participate in sexual activities for monetary consideration with the female occupant; and there is no deficiency in the Minister’s evidence.


[11] Initially, [Ng’s] counsel presented an application to obtain the names of police officers who were involved in the investigation and prepared exhibit M-5, in order to call them as witnesses. On September 10th, 2015, counsel withdrew her application, allegedly because [Ng] wanted to finish this matter as soon as possible. At page 89 of the Appeal Record, the ID member states that seeing that everything was clearly contested, a decision could have been made by the Minister to have the police officers testify themselves in order to confirm the identity of [Ng]; how she was dressed, etc.; and also considering the general credibility of [Ng]. In the opinion of the tribunal, the Minister was entitled to file and rely on the accuracy of the police report and it was for [Ng] to prove otherwise. The police report indicated that [Ng] was wearing a peach-colored lingerie top and no bottom, whereas [Ng] claims she was wearing a full dress and covered up to her knees. The ID member, during the hearing of September 10th, 2015, at page 40 of the Appeal Record, asked what would appear to have been a rhetorical question to [Ng] “So how is it possible for an officer to be so wrong in how to describe what you’re wearing?” The tribunal interprets such observation as a signal by the ID member to [Ng] that the onus of proving the police report inaccurate had shifted to her and not impose upon the Minister the responsibility of summoning the police officers to reiterate their observations.


[12] The ID member makes negative inferences from the fact that the police report, exhibit M-5, contained generalizations that do not apply to [Ng], such as the fact that each female had their own room with their own luggage and personal belongings; that all of the females had large sums of money and it was apparent that they purchased expensive clothing and accessories/purses. The tribunal agrees that such generalizations did not necessarily apply to [Ng]; however, the tribunal does not believe that such generalizations detract from the specific observations that when the police officer entered the room, she was wearing a peach-colored lingerie top which was very revealing and was wearing no bottoms.


[13] In the opinion of the tribunal, the ID member accepted uncritically certain aspects of [Ng’s] testimony which should have invoked scepticism; namely, that she was unaware that there was a male in the lighted bedroom when she entered to retrieve her Ipad; and that she would have exchanged the dress she was allegedly wearing for a T-shirt and shorts because it would not have been proper to go into a police station in a summer dress with her shoulders uncovered, even though she had a jacket in the closet which she could have worn to cover her shoulders.


[…]


[16] In the opinion of the tribunal, the Minister has proved, on a balance of probabilities, that on July 15th, 2015, the respondent was engaged in activities, in exchange for monetary considerations which would be considered working in Canada without having been authorized to do so. This would constitute a contravention of the Act by a person who is a foreign national so that she is inadmissible to Canada. The decision rendered by the ID is wrong in fact and the Minister’s appeal is allowed.