A woman sentenced to six months less a day in jail and three years of probation for lying to a Surrey passport officer and trying to set up a falsified passport for her infant cannot pursue an appeal of her conviction and sentence from India, a superior court has decided.
Justice Joyce DeWitt-Van Oosten, of the Court of Appeal for British Columbia, denied Sapna Kapoor's request to have her appeal heard from India, where she now lives, finding Kapoor hasn't pursued sufficient steps to return to Canada. Justices Lauri Ann Fenlon and Mary Newbury concurred.
A jury convicted Sapna Kapoor, a 44-year-old Indian national with a master’s degree in business administration, of attempting to utter a forged passport application and making the false statement in late September and early October 2017. She was convicted in 2021 after being tried before Justice Murray Blok and the jury in in 22-day trial at B.C. Supreme Court in New Westminster.
The Crown sought a jail term of six to 12 months in jail followed by probation conditions “crafted to minimize the risk of unauthorized removal of the child from Canada,” Blok noted in 2021. The maximum sentence for attempting to set up a fraudulent passport is five years in prison and two years for knowingly lying to a passport officer, and “these maximums do demonstrate the seriousness with which Parliament views these types of offences.”
The court heard Kapoor had been married for 16 months before separating from her husband and in that time they had a son. Blok described her marriage as “difficult and fractious.” On Sept. 27, 2017 Kapoor went to the passport office in Surrey and presented a passport application for the child, containing a signature purported to be that of the father. Blok noted this was flagged by an alert system the father had initiated with Passport Canada “and so the application was not processed in the end, which explains the charge and ultimate conviction for attempting to utter a forged document.”
A few days later, a passport officer phoned Kapoor to do a parental verification check and she told the officer the father wasn’t available because he had left the country. “Ms. Kapoor made the statement for the purpose of procuring a passport for their son; the statement was false; and Ms. Kapoor knew it was false,” Blok noted in his 2021 reasons for judgment. The father, Sonam Makkar, provided the court with a victim impact statement. “To summarize it very briefly,” Blok explained, “he said he has lived in constant fear that Ms. Kapoor might try to abduct their child back to India, a country which is not a signatory to the Hague Convention.”
Blok rejected the defence's request for house arrest, finding Kapoor’s “element of planning and implementation” aggravating.
“These offences were not the result of momentary lapses of judgment,” Blok determined. “It is also an aggravating factor that Ms. Kapoor submitted this forged passport application for an infant against the express wishes of the father, the other parent, for the purposes of removing the child from this jurisdiction.”
Blok found Kapoor to be “unremorseful.”
“She claims to have acted out of motherly love and that there was no risk of child abduction, but she has failed to recognize that her conduct reasonably gave rise to those very fears.” Blok concluded that “only actual jail time would meet the sentencing objective of specific deterrence.” Kapoor's probation conditions required her not to take her son within a two-kilometre radius of Vancouver International Airport or within 100 metres of the Canada-U.S. border when he is in her custody or care.
In Dewitt-Van Oosten's Nov. 7 reasons for judgment the judge noted that Kapoor left Canada for India in February 2021. "This was not prohibited by court order. However, Ms. Kapoor is a citizen of India and has not returned.
"In November 2021, Ms. Kapoor was found to have absconded from her trial within the meaning of the Criminal Code," Dewitt-Van Oosten confirmed, adding that Blok concluded she had “voluntarily absented herself from her trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences." Kapoor was sentenced in absentia.
The Crown argued for her appeal application to be quashed "on the basis that Ms. Kapoor has repudiated the jurisdiction of this Court," Dewitt-Van Oosten noted.
"This Court has long held that appellants who repudiate the jurisdiction of the Court or flout the orders they seek to appeal should not be heard. On that basis, such appeals are generally dismissed" the judge stated in her analysis. "Ms. Kapoor has remained in India since February 2021. While there, she failed to comply with the terms of her trial bail. She did not return for sentencing even though travel restrictions had been lifted. The entirety of her sentence remains outstanding."
Kapoor's lawyer argued her circumstances are "exceptional" and she should be able to pursue her appeal from India because the convictions render her inadmissible into Canada and therefore beyond her control. Despite this, the Crown argued she could get a temporary residence permit, but her most recent affadavit confirmed she has chosen not to apply for one.
"Among other things, Ms. Kapoor perceives that it will take too long to receive a decision on a TRP and she wants her appeal to proceed now so that she may return to Canada and re-connect with her son, who resides here," DeWitt-Van Oosten noted. "I appreciate Ms. Kapoor’s concern about the possibility of a lengthy application process. However, she has voluntarily chosen to not pursue a potential avenue for re-entry to Canada that is available to her.
"Intending no disrespect, Ms. Kapoor’s approach to her outstanding appeal is reminiscent of her conduct in those prior proceedings. There has been considerable delay in the appeal and Ms. Kapoor has not co-operated with the process made available to her, despite a stated intention of wanting to be reunited with her son.
The appeal court judge said she sees no "principled basis" on which to to carry on with an appeal "in the face of her repudiation." If Kapoor doesn't succeed in an appeal of her conviction her sentence will be rendered unserved as she is in India and beyond the reach of Canada's court system, Dewitt-Van Oosten explained.
"If she succeeds in the appeal from conviction and a new trial is ordered, another trial likely cannot occur without Ms. Kapoor returning. Given the litigation history, I am not confident she will do so," Dewitt-Van Oosten decided. "Finally, if the conviction is upheld but Ms. Kapoor succeeds in the sentence appeal, any reduced sentence will be left unserved unless Ms. Kapoor returns. Either way, the ability to give effect to the public interest in the enforceability of any judgments against Ms. Kapoor will remain subject to her exclusive control. I do not consider that scenario to be in the interests of justice."
