An Ontario immigration consultant convicted of immigration offences involving the private sponsorship of Syrian refugees will receive a new trial after the Ontario Court of Appeal ruled that the trial judge's extraordinary delay in issuing written reasons created a reasonable apprehension that the judgment had been justified after the verdict had already been reached.

In a unanimous decision released July 30, a three-judge panel consisting of Justice Gary T. Trotter, Justice Patrick J. Monahan and Justice Jonathan Dawe set aside the convictions of Wissam "Sam" Qita and his company, 7891296 Canada Inc.

Justice Trotter wrote the court's decision.

Qita, an immigration consultant, had been convicted on 10 counts under the Immigration and Refugee Protection Act. The charges arose from his role in sponsoring nine Syrian refugees through Canada's Private Sponsorship of Refugees program.

Prosecutors alleged Qita improperly acted as both an immigration consultant and a sponsor, accepted settlement funds from refugee applicants that sponsors were prohibited from receiving, made false representations to Immigration, Refugees and Citizenship Canada, and counselled some applicants to falsely tell immigration officials they had not paid him consulting fees.

Following a 25-day trial, the trial judge delivered bottom-line guilty verdicts on March 11, 2022, but did not provide written reasons.

Although she initially told the parties her reasons would be ready within two to three weeks, they were not released until Dec. 19, 2022 — nine months and nine days after the verdicts were announced. During that period, the case was repeatedly adjourned as counsel waited for the written decision before proceeding to sentencing.

Writing for the court, Justice Trotter said judges may announce verdicts with reasons to follow, but lengthy delays can undermine public confidence if they create the appearance that written reasons were crafted to justify a previously announced result rather than explain how it was reached.

The Court of Appeal found that five of the factors identified by the Supreme Court of Canada in R. v. Teskey were present, including the complexity of the case, repeated delays in providing reasons, the absence of any explanation accompanying the original guilty verdicts, and the inordinate delay in issuing the written decision.

The panel also noted the trial judge later characterized the nine-month period as part of her deliberations, creating further concern that her reasoning continued after the verdicts had already been delivered.

The court further observed that approximately 75% of the judge's final written reasons were substantially identical to reasons she had already prepared months earlier in a ruling on a directed verdict motion.

While emphasizing there was nothing inherently improper about reusing portions of that analysis, the panel concluded the unexplained delay in completing the remaining reasons contributed to the appearance that the judge continued deliberating after announcing guilt.

The appeal judges stressed that their decision was not a criticism of the trial judge's personal integrity, describing her as a hard-working judge handling a difficult and document-intensive case.

Nevertheless, they concluded that a reasonable and informed observer would apprehend that the written reasons amounted to an after-the-fact justification of verdicts delivered months earlier.

The Court of Appeal allowed the appeal, quashed the convictions against Qita and his company, and ordered a new trial. In light of that decision, the court did not consider Qita's appeal of his three-and-a-half-year prison sentence.

Justice Watch

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