Date: 20050906
Docket: IMM-8912-04
Citation: 2005 FC 1211
BETWEEN:
JOTHIRAVI SITTAMPALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
HUGHES J.
[1] This is an application for judicial review of a decision of a Member of the Immigration and Refugee Board dated October 4, 2004, wherein it was determined that the Applicant Jothiravi Sittampalam was inadmissible under sections 36(1)(a) and 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27.
[2] The Applicant was born in Sri Lanka in 1970. He arrived in Canada in 1990 and made a successful claim to be a Convention refugee. He was landed in Canada as a permanent resident in 1992. The Applicant was reported under section 27(1) of the previous Immigration Act in 1997 by virtue of a conviction for drug trafficking violations. He was subsequently reported under sections 27(1)(a) and 19(1)(c.2) of that Act as a person for whom there are reasonable grounds to believe is a member of an organization that there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences.
[3] An inquiry commenced in June 2002 and continued until August 2004. When the new Immigration and Refugee Protection Act (IRPA) came into force in June 2002, the inquiry continued under sections 36 and 37 of that Act. It was conceded on behalf of the Applicant that, since he had been convicted for trafficking in narcotics in 1996 and received a sentence of more than six months, namely two years less a day, that he was a person as described in section 36(1)(a) of IRPA. The inquiry, therefore, only concerned itself as to whether the Applicant was also a person described in section 37(1)(a). The importance of the continuation of the inquiry in this way is that, since the Applicant's conviction bore a sentence of over six months but less than two years, no appeal to the Immigration Appeal Division could be made having regard to the provisions of subsections 64(1) and (2) of IRPA unless it was found that the Applicant was not a person as described in section 37(1)(a) of IRPA. Judicial review would remain the only remedy.
[4] After a lengthy hearing, the Member provided extensive reasons, 55 pages, in which he concluded at page 55:
The legal test cited in paragraph 37(1)(a) of the Act is whether there are reasonable grounds for belief that an organization is or has been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence under the Act of Parliament. In my judgement, the evidence cited here provides more than reasonable grounds for such belief.
On the foregoing reasoning, I conclude that Mr. Sittampalam is inadmissible as alleged under paragraph 37(1)(a) of the Act insofar as he is a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of offences punishable under an Act of Parliament by way of indictment.
[5] Whereupon the Applicant seeks this judicial review.
THE ISSUES
[6] The Applicant raised five issues in his Memorandum:
a) Whether the Adjudicator erred in law in applying the incorrect standard of proof related to sections 33 and 37 of IRPA;
b) Whether the Adjudicator erred in law in his assessment of the evidence, and made findings which were patently unreasonable;
c) Whether the Adjudicator erred in law in giving weight to police reports and the evidence of police officers concerning incidents which did not lead to criminal charges being laid, or where laid, did not results in convictions, but rather were withdrawn or dismissed;
d) Whether the Adjudicator erred in law in his definition of "organization" set out in s.37(1)(a) of the IRPA, both in terms of ignoring evidence, and in terms of correctness;
e) Whether the Adjudicator erred in law in concluding that there were reasonable grounds to believe that the Applicant was a member of the A.K. Kannan group.
STANDARD OF REVIEW
[7] The Federal Court of Appeal has recently provided succinct guidelines as to how a Court is to approach a judicial review of this kind, particularly one dealing with section 37(1)(a) of IRPA. In Thanaratnam v. Canada (MCI), 2005 F.C.A. 122, Evans J.A. for the Court said, at paragraph 26:
26 On questions of fact and factual inferences, the Board's decisions are reviewable on a standard of patent unreasonableness, pursuant to the Federal Courts Act, R.S.C 1985, c. F-7, paragraph 18.1(4)(d). In contrast, deference may not be afforded to the Board's interpretation of particular provisions of its enabling statute: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3">2002 SCC 3.
and at paragraph 33:
33 It is important to reiterate that the Court is not sitting in the same place as the Board. Our function is not to decide whether, on the evidence before the Board, there were "reasonable grounds to believe", but only whether it was obviously irrational for the Board to conclude that there were. In the absence of an allegation that the Board erred in law, or that its procedure was unfair, it is difficult to establish that the Board's conclusion that "reasonable grounds to believe" existed was patently unreasonable.
[8] ISSUE #1: Whether the Adjudicator erred in law in applying the incorrect standard of proof related to sections 33 and 37 of IRPA:
Sections 33 and 37(1)(a) of the IRPA are as follows:
| Rules of Interpretation
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
|
Interprétation
33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
|
...
| 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
| (a)
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being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
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37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants:
| (a)
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être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d'une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d'un tel plan;
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[9] Applicant's counsel argues that the Member applied the wrong legal test when considering section 37(1)(a). These arguments are set out by the Member at pages 24 and 25 of his Reasons:
She offered three legal arguments concerning the standard of proof to be applied.
First, she argued that the provisions of section 33 of the Act cannot be interpreted as to mean that a decision on inadmissibility can be made on the basis of reasonable grounds to believe, Rather, the wording of the section means that the facts adduced in evidence are subject to that legal standard, leaving the actual decision on that evidence and on those facts as to inadmissibility to be rendered under the usual and higher standard for civil matters, the balance of probabilities.
Secondly, she argued that paragraph 37(1)(a) of the Act may apply only in the case of current membership in a criminal organization. The statute omits reference to past or future such membership as a basis for inadmissibility.
Thirdly, she argued, after describing the nature of the reasonable grounds test, that the test is variable, depending on the consequences. Where the matter under consideration is very important and a decision has grave consequences, a more onerous exacting of the test is appropriate - that is, "...a slightly higher standard of proof of reasonableness should be applied in cases where an interest in liberty is at stake" (Smith v. Canada(Minister of Employment and Immigration) (1991), 42 F.T.R. 81 (F.C.T.D.).
[10] As to the first of these arguments, there is no basis for interpreting the provisions of section 33 of IRPA as imposing a higher burden of proof than "reasonable grounds" when dealing with facts.
[11] The standard to be applied by the Minister in assessing facts is the "reasonable grounds" test. This test has been explained by the Federal Court of Appeal in Re Charkaoui, 2004 FCA 421 (leave to appeal to the Supreme Court of Canada on August 25, 2005) in the Judgment of Décary and Létourneau J.J.A., with which Richard C.J. concurred, at paragraphs 102 to 105:
102 The "reasonable grounds" test is generally the standard used for the institution of prosecutions for blameworthy acts and for the exercise of preventive or investigative powers. For example, a police officer's power of arrest, an application for a search warrant and the issuance of the warrant by a justice must be based on reasonable grounds (see sections 487, 495, 507(4), 512, 524(1), 525(5) and 679(6) of the Criminal Code). In the case of preventive action, the police officer must have reasonable grounds to believe that a person is about to commit an indictable offence or to breach his or her promise to appear and that it is in the public interest to carry out an arrest. This applies as well to an information accusing an individual of having committed an indictable or other offence (sections 506 and 778 of the Criminal Code).
103 The "reasonable grounds" standard requires more than suspicions. It also requires more than a mere subjective belief on the part of the person relying on them. The existence of reasonable grounds must be established objectively, that is, that a reasonable person placed in similar circumstances would have believed that reasonable grounds existed, in the case of an arrest, to make the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at page 250.
104 This "reasonable grounds" standard has been characterized as an "important protection" without which "even the most democratic society could all too easily fall prey to the abuses and excesses of a police state": ibidem, at page 249. Yet, the Supreme Court of Canadawrites, "society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest." (ibidem, at pages 249 and 250)
105 In the case at bar, inadmissibility must be based, under section 33 of the IRPA, on the Minister's reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur. It is necessary, therefore, that a reasonable person, placed in similar circumstances and with the same facts, would arrive at the same belief. Thus, according to the cases, the "reasonable grounds" standard, applied to past or current wrongful acts, is not too minimal or weak a standard. It is sufficient.
[12] This "reasonable grounds" standard applies to findings of fact, it does not apply when the issue to be addressed is essentially a question of law, as made clear by the Federal Court of Appeal in Moreno v. Canada (MEI) [1994] 1 F.C. 298 (CA) per Robertson J.A. for the Court at paragraphs 22 and 23:
22 In my opinion, the requisite standard of proof comes into legal play only when the tribunal is called on to make determinations which can be classified as questions of fact. The "less-than-civil-law" standard is irrelevant when the issue being addressed is essentially a question of law. For purposes of application of the exclusion clause, it is sufficient if I outline briefly the basis on which I distinguish the two and my reasons for doing so.
23 A finding of fact has been described as a determination that a phenomenon has happened, is, or will be happening independent of or anterior to any determination as to its legal effects; see L. L. Jaffe, Judicial Control of Administrative Action, Boston: Little, Brown and Company, 1965, at page 548. A question of law has been defined in many ways; see, for example, P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed., London: Sweet & Maxwell, 1966, at page 10. Perhaps Professor Wade best describes the basis on which questions of law are readily distinguishable:
Questions of law must be distinguished from questions of fact, but this has been one of the situations where the rules have taken different forms under judicial manipulation.
[13] This leads to the second point, that is, whether section 37(1)(a) applies only to current membership in a criminal organization and does not apply to someone who at sometime in the past has been such a member.
[14] The interpretation in law of section 37(1)(a) received attention in the recent case of Thanaratnam supra, albeit not on the point now raised, in paragraphs 29 and 30 of the Federal Court of Appeal's Reasons:
29 Having concluded that the Board had erred in finding that Mr. Thanaratnam was a "member" of the V.V.T., the Applications Judge did not go on to consider whether the evidence that he was "involved in gang related events" (the first criterion used by the police in identifying gang members) was sufficient to support a finding that he was inadmissible for engaging in activities that were part of the V.V.T.'s pattern of criminal activities, even if he did not "belong" to the gang.
30 In my opinion, this was an error of law. The structure of paragraph 37(1)(a) makes it clear that "membership" of a gang and engaging in gang-related activities are discrete, but overlapping grounds on which a person may be inadmissible for "organized criminality". The "engaging in gang-related activities" ground of "organized criminality" was added by the IRPA and did not appear in its predecessor, paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2. In order to give meaning to the amendment to the previous provision made by the IRPA, Parliament should be taken to have intended it to extend to types of involvement with gangs that are not included (or not clearly included) within "membership".
[15] The Federal Court of Appeal did not comment specifically as to the finding of O'Reilly J. of the Federal Court in that case, (Thanaratnam v. Canada (MCI), [2004] 3 F.C.R. 301) as to the meaning of "organization" in section 37(1)(a). O'Reilly J. found at paragraphs 29 to 31:
29 No guidance is given in the Immigration Act or the Immigration and Refugee Protection Act as to what an "organization" is. By contrast, the Criminal Code, R.S.C., 1985, c. C-46, subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, c. 32, s. 27] defines a "criminal organization" in some detail. It states that a criminal organization is a group, "however organized", that is made up of three or more persons and "has as one of its main purposes or activities" the commission of serious criminal offences that would likely yield some kind of benefit to the members of the group. Specifically, a criminal organization under the Code does not include "a group of persons that forms randomly for the immediate commission of a single offence".
30 The Criminal Code's definition does not apply directly to the immigration setting. However, I believe it is noteworthy that the Code does not require any particular formalities or decision-making arrangements. Presumably, to meet the definition, a group must have some form of organizational structure. The words "however organized" suggest that it must be organized in some fashion, but there are no minimum or mandatory attributes that the group must have.
31 Here, the two Tamil groups described by the police had some characteristics of an organization -- identity, leadership, a loose hierarchy and a basic organizational structure -- and I can therefore find no error in the Board's conclusion that they fell within the terms of paragraph 37(1)(a) of the Immigration and Refugee Protection Act.
[16] This determination as to the meaning of "organization" will be referred to in discussing Issue #4, subsequently.
[17] Applicant's counsel argues that the word "being" in the phrase "being a member of an organization" in section 37(1)(a) means that at the relevant time, the person must be a member of that organization, not "have been" in the past, but actually "be" at the relevant time. When asked by the Court as to what the relevant time was, counsel said that time was the time that he was reported. Counsel argued that section 33 which speaks of matters "that have occurred, are occurring, or may occur" related only to factual matters and that in law section 37(1)(a) requires that the person be a member of an organization in respect of which those factual findings may be made at the time of the report.
[18] The case of Re Zündel, 2005 FC 295 dealt in part with section 37 at paragraph 18:
18 Contrary to counsel for Mr. Zündel's submissions that the Ministers must demonstrate Mr. Zündel's current or future wrongdoings, pursuant to section 33 of the IRPA, the Ministers can provide evidence or information of past, present or anticipated future circumstances of Mr. Zündel's inadmissibility on security grounds. In Al Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482, [2003] F.C.J. No. 1931, leave to Supreme Court of Canada denied August 26, 2004, [2004] S.C.C.A. No. 62, the Federal Court of Appeal recognized that the past conduct of individuals, particularly those who have engaged in activities which constitute a threat to the security of Canada, must be considered in the determination concerning inadmissibility:
With respect, I think it is hard to conceive of many allegations more serious than one involving terrorism or membership, past or present, in a terrorist organization. Terrorist organizations by their nature are unpredictable. The existence of sleeper cells is widely recognized and the mere fact someone has lived peacefully in Canadafor many years does not preclude them from being a threat to the security of Canadians. Contrary to the appellant's arguments, an allegation that someone is a former member of a terrorist organization therefore is a very serious one. Therefore, the gravity of the allegations argues in favour of continuing the proceedings. (...) (Al Yamani v. Canada (M.C.I.), supra, at paragraph 38)
[19] Counsel for both parties agree that there is no decision directly on point as to how, in law, "being" in section 37(1)(a) is to be interpreted. The word being although having a clear connotation of a present tense, has also been interpreted so as to include that which was in the past. The following appears in "Stroud's Judicial Dictionary of Words and Phrases", 6th Ed., London, Sweet & Maxwell, 2000, Vol. 1 at page 254 in respect of "Being":
BEING. "Being", as used in a sense similar to that of the ablative absolute, has sometimes been translated as, "having been", but it properly denotes a state or condition existent at the time when the conclusion of law or fact has to be ascertained.
Thus the phrase, "being a trader, in the Bankruptcy Act 1869 (c.71), meant, "carrying on trade at the time when the act in question is committed" (per Jessel M.R., Exp. McGeorge, 20 Ch.D. 697; but see Carry On, towards end). Therefore a trader who had absolutely ceased trading was not liable to the consequences of a trader-debtor's summons under s.6(b) of the Act (Exp. Schomberg, 10 Ch. 172), nor to be adjudicated bankrupt for departing from his dwelling under subs. (3), s.6 (Exp. McGeorge, supra); but if he had the intention to resume trading he was still a trader (Exp. Salaman, 21 Ch. D. 394).
But "any two or more persons being partners" (who may proceed, or be proceeded against, in the partnership name, Bankruptcy Act 1883 (c.52), s.115) - see now 2.119, Bankruptcy Act 1914 (c.59) - does not connote that they must be partners at the time of the proceedings, but rather means, persons "Who have had the relationship of partners for the purpose of the liability which is sought to be enforced" (per Alvertsone M.R. , Re Wenham [1990] 2 Q.B. 698).
[20] In Re Township of Bruce and Thornburn (1987), 61 O.R. (2nd) 321, Montgomery J. said that "being" as it appeared in a statute could include "having been" where the "sense of the statute demands it or where there has been an obvious mistake". At page 351 he said:
Section 1(i) -- "being" or "having been"
If read literally, the last half of the present definition of "subscriber" is redundant by virtue of the use of the word "being" in the portion of the definition reading "and also means a person who, being a subscriber as defined above". Is the use of this word, an obvious mistake in the drafting of the re-enactment of the Telephone Act in 1954, to be corrected by the use of the words "having been" (the words used from 1924 to 1954)?
The parts of the definition of "subscriber" after the words "and also means a person who", would seem to be completely redundant by virtue of the word "being". In other words, any person already qualified under the earlier part of the definition of subscriber need not meet any further criteria. Meeting the additional criteria without qualifying under the first part of the definition accomplishes nothing. The error in the use of "being" is confirmed and compounded by the use of the word "also".
A statute should not be interpreted so as to render parts of it as "mere surplusage or meaningless". Where the sense of the statute demands it or where there has been an obvious mistake in drafting, the court has power to substitute another word or phrase for that which actually appears in the text of the Act:
[21] The majority of the Supreme Court of Canada in the recent decision Bristol-Myers Squibb Co. v. Canada(Attorney General) (2005). 39 C.P.R. (4th) 449, 2005 5 C.C. 26 emphasizes that a statute must be read not just literally, but within its context of the scheme of the Act as a whole. At paragraphs 37 and 38, Binnie J. for the majority said:
37 BMS argues that once it is established that paclitaxel is present in the Biolyse product, s. 5(1.1) bars the issuance of a NOC. Biolyse responds that the BMS approach is too simplistic. Biolyse invokes the modern approach to statutory interpretation, which it says is equally applicable to regulations, as set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193. In that case, the OntarioEmployment Standards Act provided for termination pay and severance pay for workers where their employment was terminated by an employer. Rizzo Shoes went bankrupt. The trustee disallowed the workers' claims because their jobs had been [page470] terminated by the bankruptcy, not by the employer. The Ontariocourts agreed with the trustee. This Court reversed, Iacobucci J. observing as follows:
At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. [Emphasis added; paras. 20, 21 and 23.]
38 The same edition of Driedger adds that in the case of regulations, attention must be paid to the terms of the enabling statute:
It is not enough to ascertain the meaning of a regulation when read in light of its own object and the facts surrounding its making; it is also necessary to read the words conferring the power in the whole context of the authorizing statute. The intent of the statute transcends and governs the intent of the regulation.
(Elmer A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 247)
This point is significant. The scope of the regulation is constrained by its enabling legislation. Thus, one cannot simply interpret a regulation the same way one would a statutory provision. In this case, the distinction is crucial, for when viewed in that light the impugned regulation cannot take on the meaning suggested by BMS. Moreover, while the respondents' argument draws some support from the language of s. 5(1.1) isolated from its context, it overlooks a number of significant aspects of the "modern approach". [page471]
[22] Therefore, to read section 37(1)(a) in context, one finds that section 33, albeit restricting itself to facts, requires attention to past, present and future facts. Section 37(2)(a) permits the Minister to excuse persons from the effects of section 37(1), something that most likely, but not always, applies to past events. To require that section 37(1)(a) apply only to persons who, at the moment that they were reported, would severely hamper any real application of those provisions. All one would have to do, as was attempted here, is, at that moment, disavow membership or cease being a member of the organization.
[23] I find, therefore, that the words "being a member of an organization" in section 37(1)(a) of IRPA includes not only a person who was at the time of reporting, a member, but also a person who, at least within a reasonable period in the past, has been such a member.
[24] The third argument in law raised in respect of section 37(1)(a) is whether a slightly higher standard of proof of reasonableness should be applied where "an interest in liberty is at stake". Here the interest at stake is the individual's permanent residency status, if such status is lost, the individual is at risk of deportation. There is not a loss of life or liberty; even if at risk of deportation, risk assessments are made as to possible consequences should the person be sent outside Canada. The determination as to membership is made at a low threshold, "reasonable grounds", and has no bearing in respect of charges that may or may not be laid under criminal statutes. The case of [1982] 1 S.C.R. 164">Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164 cited by Applicant's Counsel for the proposition that a "balance of probabilities" test should apply, in fact stands for the proposition that the relevant standard applicable to the issue at hand applies, whether or not morally blameworthy or criminal or penal aspects allegations may have been made. In that case, a civil case, it was urged that the criminal standard of "proof beyond a reasonable doubt" should apply to such circumstances. The Court said no, Laskin C.J. for the Court said:
The main point in the appeal was the third point raised which was that the trial judge and the Court of Appeal had mis-stated the burden of proof and, indeed, were applying a sliding burden of proof rather than a straight burden of proof on a balance of probabilities.
The issue was raised because of the way the trial judge dealt with the provisions respecting fraud and dishonesty in the St. Paulpolicy and infidelity in the Continental policy.
...
Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities.
...
The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.
[25] The question as to loss of status under section 37(1)(a), whether or not it depends on some findings as to criminal association, is to be determined on the "reasonable grounds" standard.
[26] I find therefore, that the Member committed no reasonable error in law when he found as he did at pages 30 and 55 of his Reasons:
(Page 30):
Paragraph 37(1)(a) of the Act
Paragraph 37(1)(a) of the Act renders a permanent resident inadmissible to Canada for being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence indictable under an Act of Parliament.
Under section 33 of the Act, facts constituting inadmissibility under section 37 include, unless otherwise provided, those for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
(Page 55):
The legal test cited in paragraph 37(1)(a) of the Act is whether there are reasonable grounds for belief that an organization is or has been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence under an Act of Parliament. In my judgment, the evidence cited here provides more than reasonable grounds for such belief.
On the foregoing reasoning, I conclude that Mr. Sittampalam is inadmissible as alleged under paragraph 37(1)(a) of the Act insofar as he is a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of offences punishable under the Act of Parliament by way of indictment.
[27] ISSUE #2: Whether the Adjudicator erred in law in assessment of the evidence, and made findings which were patently unreasonable:
[28] Counsel for the Applicant argued in her Memorandum, paragraphs 23 to 30 and orally before me, that the Adjudicator made patently unreasonable errors in accepting both "raw data" evidence gathered by police as to so-called gang activity and the evidence of the police as witnesses without properly weighing that evidence as to whether it was "reliable and trustworthy" and without stating in his reasons that he weighed such evidence before coming to the conclusion that he did. In support of this argument, Applicant's counsel cited a number of criminal law cases and two Children's Aid Society cases, [2002] O.J. No. 1432 and [1998] O.J. No. 2530, dealing with sufficiency of affidavits presented in child custody situations.
[29] First, even with respect to the high standard that Applicant's counsel proposes, I find that the Member has more than adequately met the test. His Reasons are complete with reference to evidence and his analysis of that evidence. As to the Applicant himself, he found, at page 41 of his Reasons:
"My first and perhaps obvious conclusion is that Mr. Sittampalam is not a credible witness."
[30] He made no such finding as to any other witness, nor did he need to state so in his Reasons unless he found them lacking in credibility. The Applicant bears the burden to show that the inferences drawn by the Member could not have reasonably been drawn and has failed to do so. As stated by Décary J.A. for the Court in Aguebor v. Canada (MEI) (1993), 160 N.R. 315 (F.C.A.) at paragraph 4:
4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[31] I find no reviewable error in respect of this issue.
[32] ISSUE #3- Whether the Adjudicator erred in law in giving weight to police reports and the evidence of police officers concerning incidents which did not lead to criminal charges being laid, or where laid, did not result in convictions, but rather were withdrawn or dismissed:
[33] Applicant's counsel submitted that the mere fact that charges had been laid or were in contemplation of being laid, is not a factor to take into consideration when making a determination as to whether there are reasonable grounds to believe that a person or an organization is criminal, particularly if the charges were never laid or were withdrawn. Counsel submits that the only relevant factors are the evidence behind those charges; cases such as Bakchiev v Canada (MCI), [2000] F.C.J. No. 1881 and La v. Canada (MCI), [2003] F.C.J. No. 649 are given in support of this proposition.
[34] I do not read the Member's Report at pages 53 and following under the heading "Criminality" as giving improper weight to charges laid or contemplated to be laid but which never went forward. These circumstances are mentioned in the Report but only in the context of a detailed consideration as to the circumstances themselves that were behind the charges or contemplated charges. It was these circumstances and not the charges or contemplated charges that supported the Member's findings that there were reasonable grounds for finding that section 37(1)(a) of IRPA applied.
[35] I find no reviewable error in respect of this issue.
[36] ISSUE #4- Whether the Adjudicator erred in law in his definition of "organization" set out in section 37(1)(a) of the IRPA, both in terms of ignoring evidence, and in terms of correctness:
[37] The decision of O'Reilly J. in Thanaratnam, supra in the Federal Court as to what an "organization" meant in the context of section 37(1)(a) of IRPA, namely something that had "some form of organizational structure" such as "identity, leadership, a loose hierarchy and a basic organizational structure", was not disturbed by the Federal Court of Appeal on the appeal from that decision.
[38] In his Reasons, particularly at pages 51 and 52, the Member found that there were six indicia of an organization, namely: leadership (the Applicant); an elementary form of hierarchy; the giving of instructions from the leader; a specific and identifying name; a certain territorial occupation, and; chosen locations within the territory for meetings. All of this led the Member to conclude that this was sufficient to qualify A.K. Kannan as an organization.
[39] Given the law as set out in Thanaratnam supra, the Member made no reviewable error in coming to this conclusion.
[40] ISSUE #5- Whether the Adjudicator erred in law in concluding that there were reasonable grounds to believe that the Applicant was a member of A.K. Kannan group:
[41] The Member found that the Applicant was not only a member, but the leader, of the A.K. Kannan gang. The Applicant, on at least one occasion, referred to himself as "A.K. Kannan". Whether the Applicant had or had not recently disavowed his leadership and his membership is not material having regard to the finding, as earlier set out in these Reasons, that "being a member" includes membership as recent as that of the Applicant.
[42] In any event, the Member found at page 50 of his Reasons:
"I conclude that there are more than reasonable grounds to believe, and indeed, that it is more probable than not that Mr. Sittampalam was, until his arrest by the Minister's Office in October 2001, a member of the A.K. Kannan group".
[43] The member made no reviewable error in so finding.
IN CONCLUSION
[44] In conclusion, therefore, I find that the Member made no reviewable error in coming to the conclusion that he did, namely, that the Applicant came within the provisions of section 37(1)(a) of IRPA as being a member of a criminal organization.
[45] Accordingly, the application for judicial review is denied. There will be no order as to costs.
[46] Counsel for the parties have asked that I reserve as to certification of a question for the Federal Court of Appeal. Accordingly, counsel for each party will have five (5) business days from the date of receipt of these Reasons to make submissions as to a question or questions, to me, and exchange these submissions with each other. Counsel will have a further five (5) business days to submit to me, with a copy to each other, comments as to the submissions of opposite counsel. I will then make a determination as to a question or questions, if any.
"Roger T. Hughes"
Toronto, Ontario
September 6, 2005
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