Canada (Minister of Citizenship and Immigration) v. Nagalingam, 2004 FC 1757

Date: 20041217

Docket: IMM-4340-03

Citation: 2004 FC 1757

Ottawa, Ontario, this 17th day of December, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Applicant

                                                                         - and -

                                               PANCHALINGAM NAGALINGAM

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review of a decision dated June 9, 2003, whereby a member of the Immigration and Refugee Board of Canada, Immigration Division (the "Tribunal") ordered that the respondent be released from detention on certain terms and conditions.

[2]                The Minister of Citizenship and Immigration (the "applicant"), seeks the following relief:

1.              an order, pursuant to section 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7 quashing the decision and the order of the Tribunal or setting aside the decision and order and referring the matter back to the Tribunal for determination in accordance with such directions as are considered to be appropriate; and

2.              such further and other orders or relief or both as counsel may advise and as this Honourable Court may permit.

[3]                The respondent is a citizen of Sri Lanka who arrived in Canada on August 31, 1994.

[4]                The respondent sought refugee status and his claim was accepted by the Refugee Division and he was granted permanent resident status on March 13, 1997.

[5]                The respondent has been found guilty in Canada of the following offences:

12/8/99:            Assault, for which he received a conditional discharge and 18 months probation;

25/9/00:            Fail to comply with recognizance, for which he received 5 days jail (3 days PSC);

25/1/01:            2x mischief under $5,000, for which he was sentenced to 45 days internment (16 days PSC) and probation for 2 years.

[6]                The police documentation indicates that there are two main rival Tamil gangs in the greater Toronto area - the A.K. Kannan and the V.V.T. According to the police, the gangs are involved in criminal activity, which varies from lower level offences, including trespassing, property thefts and vandalism, to organized criminal activities, including storage and sale of weapons, trafficking in narcotics, extortion and using intimidation, to violent offences that include shootings, attempted murders and murders. The police allege that the respondent is a high ranking member of the criminal organization known as the A.K. Kannan, which allegation the respondent denies.

[7]                There are a number of incidents involving the respondent or his family that have occurred, including:

1.          On December 26, 2000, a shooting occurred outside the home of Seuranie Persaud (the respondent's common-law wife). The respondent's common-law wife, their son and a friend were in a vehicle in the driveway of the home when gunmen fired at, and into, the vehicle. No one was injured.

2.          The respondent was leaving Mimico Correctional Facility after serving a weekend in custody when a man approached the respondent and shot him several times. The person accused of this shooting was a member of the rival V.V.T. gang. The accused was not convicted of the charges.

3.          The next incident occurred at the Asian Cinema and is described as follows in the occurrence report (page 322 of the tribunal record):

The above mentioned place where the assault occurred is cinema known as "Asian Cinema" located in the plaza at Markham Road and Eglinton Ave East. This cinema is the location of many on going problems with Tamil and Sri Lanken community members with regards to assaults, damage and persons with guns. Rival gang members routinely engage in confrontations in and out of the cinema.

On Saturday, April 24, 1999 at approximately 22:20 hrs, the victim, a security guard, was called over by one of his co-workers. The other officer advised the victim that the cinema owner was having problems with 3 drunk males in the cinema and that he wanted them removed off of the premises. The suspects are known to the owner and constantly cause problems at this cinema on a regular basis. The owner advises that he is a supporter of the "VVT", while the suspects are members of the "AK Kanons". The victim went inside the cinema and escorted the males out of the cinema. When they all got outside the cinema and victim and suspects got into an argument. The suspects were uncooperative and were harassing the victim. The owner of the cinema came out also to try and calm down the suspects. One of the suspects then grabbed the owner by his shirt. The victim grabbed the suspect, trying to protect the cinema owner. The other two suspects then jumped on the victim and began punching the victim all over. The owner then jumped in and separated all the combatants. The suspects then threatened the owner that they would be back and then fled the scene in a red, 2D, Honda Prelude with licence plate ACDS 444. They were last seen northbound towards Eglinton Ave.

Police attended the scene and took signed statement from the victim, witness and cinema owner. The suspect vehicle was registered to 200 Murrison Blvd, unit #16. Police were on route to the address when another call was received by police to attend back to the scene with regards to a "person with a gun" in a red Honda Prelude in front of the cinema. The police returned, however, the suspects were GOA. The police then went to the registered owners address and spoke with home owners. The R.O. was not there, however, information was left with family members for the vehicle owner to contact the investigating officers asap.

Suspects:

1.              Male/Sri Lanken, 20-25 years, 5'7", 160 lbs, muscular build, long curly black hair, moustache, goatee, scar on left triceps, wearing a red sweater vest, white t-shirt.

The first suspect is known ans [sic] "Panjan".

SYNOPSIS

On Sunday, November 22^nd, 1998 at about 9:00 PM the accused and approximately 30 other persons arrived at the India Theatre, 1430 Gerrard Street East. Also in attendance at that time were 20 other person both of which groups are known to the Management of the Theatre to be rival gang members. A fight broke out between the two groups and the Police were called, however the actual combatants fled before the Officers arrived.

At the time the manager asked Police to return at the intermission which was to be about 10:00PM as they suspected further trouble was going to occur.

At about 10:00PM Officers did return to 1430 Gerrard Street East and observed a large group of young men hanging around the entrance to the theatre. The Officers entered the theatre and saw most of the persons standing in the lobby of the theatre waiting to go into the movie. At this time another large group of approximately 30 young men came out of the movie and started towards the first group. One of the men pointed at the Officers then said in a loud voice "I don't like this movie. I think I'll leave.".

The second group of young men went outside followed by the first group. Realising there was going to be a problem, the Officers called for assistance went outside and observed both groups of men involved in several fights.

At least one person was armed with a home made sword, (later recovered by Police), while this accused was armed with a meat cleaver. At least two persons were struck in the head by the accused with the meat cleaver receiving what appeared to be severe lacerations to the head. As did the others, the victims fled as more Police Officers began arriving and did not identify themselves. However the Officers did see the accused attempting to strike several other persons with the meat cleaver, before he like the others began to flee.

The Officers pursued and managed to catch the accused, who by this time had hidden the meat cleaver down the front of his pants. It should be pointed out that the meat cleaver was covered in blood and has been sent to the Center of Forensic Science for analysis. The accused was arrested, returned to the scene and eventually brought to 55 Division.

Efforts to locate the two victims struck by the accused have been unsuccessful at this point. However, witnesses to the incident have indicated the identity of those person is likely to be established. As well the local Hospitals have been contacted to alert Police of the arrival of any parties with injuries consistent with those described.

The accused was charged accordingly.

CHARGE LIST FOR C. E. #274806-1 (NAGALINGAM)

Charge                                                                      Accused

(1) Assault with weapon C.C. 267(a)                     NAGALIGAM, PANGHALINGAN

Start Date: Sun 1998.11.22 Time: 22:15

1430 Gerrard St E

Patrol: 5512

(2) Weapons Dangerous C.C. 87                             NAGALIGAM, PANGHALINGAN

Start Date: Sun 1998.11.22 Time: 22:15

1430 Gerrard St E

Patrol: 5512

(3) Carry concealed weapon C.C. 89                       NAGALIGAM, PANGHALINGAN

Start Date: Sun 1998.11.22 Time: 22:15

1430 Gerrard St E

Patrol: 5512

The above charges were stayed.

[8]                A witness arrested by the police made the following statement:

Furlong:                    Ok, allright, and pardon me, (clear throat) I would like to touch on another issue that we spoke about earlier and that's a shooting that occurred up on Cimmeron Cres. in Markham, are you aware of that area?

Ariyaratnam:            Yes sir

Furlong:                    And who are you aware that lives up there?

Ariyaratnam:            Panchalingam Nagalingam

Furlong:                    OK and

Ariyaratnam:            And nickname by Panchan

Furlong:                    Panchan and tell me how you know Panchan?

Ariyaratnam:            Panchan

Furlong:                    Is he a member of a gang?

Ariyaratnam:            He is a member of AK Kannan gang,

Furlong:                    OK yes

Ariyaratnam:            He always scared little people

Furlong:                    Yes

Ariyaratnam:            And he choose me one day

Furlong:                    Sorry

Ariyaratnam:            He choose me as, he choose me one day and try to beat me up

Furlong:                    Ok

Ariyaratnam:            So after that

Furlong:                    So you've had previous altercation with him

Ariyaratnam:            Yes sir

[9]                This same witness knew that the respondent would be shot at Mimico Correctional Facility before the shooting took place, as there was an attempt to recruit him for the shooting which was said to be because of the respondent's membership in the A.K. Kannan.

[10]            The record shows that the witness recanted some of his statements to the police but he did not recant the portion about the respondent.

[11]            The respondent has been held in detention since that date on the basis that he would pose a danger to the public if released.

[12]            The respondent was issued a deportation order on May 28, 2003 as he was found to be a person described in paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") 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 punishable under an Act of Parliament by way of indictment.

[13]            The respondent had 15 previous detention review hearings and continued detention was ordered at each hearing.

[14]            Issue

Did the Tribunal make a reversible error in ordering that the respondent be released from detention?

Relevant Legislation

[15]            The relevant provisions of IRPA states:

[16]            The relevant provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 state:

Analysis and Decision

[17]            The respondent has, along with other arguments, alleged that there has been a denial of natural justice and that the Tribunal used the wrong test with respect to criminal association, (i.e. "membership" versus association), and that the Tribunal erred in finding that in essence, the A.K. Kannan gang is not a criminal organization under subsection 121(2) of IRPA.

[18]            The respondent submitted that there was new evidence before the Tribunal, that the member provided clear and compelling reasons in support of his conclusion to release the respondent and that the Tribunal did not make a reviewable error. The respondent also submitted that the Tribunal did not breach the rules of natural or procedural fairness with respect to the calling of a police officer as a witness.

Breach of Natural Justice and Denial of Procedural Fairness

[19]            At the hearing before the Tribunal, there was a discussion concerning the calling of police officers as witnesses. The following exchange took place at the hearing (tribunal record, pages 1301 to 1302):

MEMBER:                              In terms of the criminal history, it's not contested that he was convicted of assault and received a conditional discharge on the 12^th of August 1999. But I take it that the occurrence details are being contested. It indicates here a fight broke out outside and Nagalingam was observed to be armed with a meat cleaver. I take it that's being contested, and it was being contested.

If it's being contested evidence has to be put forward.

MINISTER'S COUNSEL:      Right. So then I would have to get an adjournment to get you specifically the occurrence reports, and find out through the police records as to who else was involved in this particular incident, and maybe even - - well, that should do it. Now, if I get the occurrence reports do you still want the police to come and give evidence - -

MEMBER:                              Mrs. Perrault, I - - -

MINISTER'S COUNSEL:      That he's a top ranking member of A.K.K.?

MEMBER:                              To some extent I'm at the mercy of the litigants. I don't require the police officer to be called. - - -

MINISTER'S COUNSEL:      No, but I - - -

MEMBER:                              It's - - -

MINISTER'S COUNSEL:      If you're not convinced I'll bring you him.

MEMBER:                              (Inaudible), you don't have to or you do have to. You'll have to judge the strength of your own case and determine whether it's sufficient or not. Whether an officer should be called or not called.

MINISTER'S COUNSEL:      It is my request then that I will ask for an adjournment. I'll get the officer and the occurrence reports to further solidify our case against this gentleman.

And at pages 1323 to 1324 of the tribunal record:

MEMBER:                              You and Ms. Perrault can try and sort out the question as to what might be necessary or not necessary to present. If a transcript is available and you do both choose that the transcript would meet your purposes, what we'll do is adjourn today and I'll wait to the end of the week to hear from both of you.

MINISTER'S COUNSEL:      Okay.

MEMBER:                              If you decide that you wish to call witnesses then by the end of the week advise me and we can set a resumption date. If you just wish to introduce documentary material with submissions attached to those that's fine, again by the end of the week. So I think both of you can sort it out and let me know.

MINISTER'S COUNSEL:      But do we all agree that at this point in time the only evidence that you think is acceptable are the two shootings, that's it?

MEMBER:                              I never - - -

MINISTER'S COUNSEL:      You never said that. That's fine.

MEMBER:                              I'm not limiting you to any particular incident. You can do your research. Find out what sufficient material you might want to introduce. And let me know what your position is by Friday of this week.

[20]            I agree with the applicant that had the Tribunal informed the applicant that there was no necessity to call the police as witnesses and then ruled that it did not accept the event described in the occurrence report because the police witnesses were not called, this would be a breach of natural justice and procedural fairness.

[21]            The whole exchange between the Tribunal and the applicant's (then) counsel must be examined to ascertain what transpired. Although the member first stated he did not require the police officer to be called, he then went on to state to the applicant's counsel, that it was up to her to decide whether she would call the police officer as a witness. He told her that she had to judge the strength of her case and then decide whether or not to call the police officer. The applicant's counsel then requested an adjournment to get the officer and the occurrence reports, to solidify her case. When the adjournment was granted, the Tribunal indicated to the applicant's counsel that she could advise him by the end of the week whether she wished to call witnesses. At the recommencement of the hearing, no witnesses were called by the applicant.

[22]            Based on a reading of all of the exchanges concerning the calling of police witnesses, I am not convinced that the Tribunal left the applicant's solicitor with the conclusion that police witnesses did not need to be called. The exchange must be looked at in its entirety.

[23]            Consequently, I am of the view that no breach of natural justice or denial of procedural fairness occurred on the facts of this case. The facts of this case are distinguishable from the facts in Moya v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1594 and Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams, [1997] F.C.J. No. 567.

Criminal Association Test

[24]            The Tribunal stated in its reasons at the following pages:

Page 9:

The issue of danger to the public, consequently, comes down to the question of whether Mr. Nagalingam is a member of a gang that engages in violent, dangerous, criminal acts. With due respect to those members who do not wish to tread on the issue of gang membership, believing that the issue should be left to the inquiry/admissibility hearing for determination, it is my view that the issue is crucial to a danger to the public determination. Mr. Nagalingam, in fact, may not be a danger to the public despite being a member of a gang, but certainly, on the facts of this case, he is not a danger to the public if the evidence does not establish gang membership. The question is unavoidable.

At page 12:

Mr. Ariyaratnam identifies Mr. Nagalingam as a member of AK Kannan. Unfortunately, he does not reveal the basis for that belief nor the depth or source of his knowledge about Mr. Nagalingam. Does he believe Mr. Nagalingam to be a member of AK Kannan on the basis that he scares little people and tried to beat him up once or on the basis that someone is out to kill him?

The police officer who testified at Mr. Nagalingam's admissibility hearing, of course, is of the opinion that he is a member of AK Kannan on the basis that other officers are of that view, that informants are naming Mr. Nagalingam as a gang member, and that incidents and occurrence reports suggest gang membership. I would be abdicating my responsibility in just "trusting" the officer's opinion without analyzing and assessing the basis for that opinion. As enumerated above, the reported incidents and statements do not, in my view, on their own, justify the conclusion that Mr. Nagalingam is a gang member.

At page 14:

The scenario presented, therefore, is that a random shooting took place; the media, misinterpreting Mr. Nagalingam's words and intent, reported that Mr. Nagalingam was a gang member and was challenging or daring the shooters; the shooters, believing what they read in the papers and the reports in the media, took up the dare and shot him outside the Mimico Correctional Centre. It is therefore submitted that being thought a gang member by others does not make one a gang member if the belief is mistaken.

At page 16:

It is, however, conceivable and plausible that a gang may be after mr. Nagalingam only as a person they have animosity against, and not as a member of a rival group, or that he may be wrongly thought of as being a member of a rival group. On a balance of probabilities, there is insufficient credible or trustworthy evidence to establish that, indeed, he is being targeted by a "Tamil gang" for being a member of a rival gang.

At page 17:

Would he be able to exact revenge, however, through others? Could he have other members carry out any vendetta? If there were still a gang left, if Mr. Nagalingam were a member of that gang, would the members of such a fluid organization be interested in putting themselves in jeopardy to avenge the shooting of a member who had been out of circulation for 2 years and who were physically of little use to the group?

On a balance of probabilities, I conclude that Mr. Nagalingam would not be a danger to the public even if he were to have been a gang member. The shootings against his family . . .

[25]            For ease of reference, I will repeat the relevant portions of the legislation:

IRPA, supra:

The Immigration and Refugee Protection Regulations, supra:

[26]            A perusal of the above legislation indicates that a permanent resident will not be ordered detained unless the person is a danger to the public. In assessing whether a person is a danger to the public, it must be assessed whether the person has an association with a criminal organization within the meaning of subsection 121(2) of the Act (definition of criminal organization). It should be noted that the test is whether the person has an association with a criminal organization, not that a person is a member of a criminal organization.

[27]            The excerpts from the Tribunal's reasons make it obvious that the member was determining whether the respondent was a member of a criminal organization. That is not the test. The legislation only requires an association with a criminal organization. A person who is a member of a criminal organization would certainly have an association with a criminal organization, but other persons could have an association with a criminal organization without being members of that organization. I am of the view that the Tribunal applied the wrong test when determining whether the respondent was a danger to the public. The Tribunal incorrectly required that the respondent be a member of a criminal organization not just associated with a criminal organization.

[28]            A criminal organization is defined by subsection 121(2) of IRPA, supra, as follows:

[29]            The Tribunal's reference to gangs and criminal organizations is contained at pages 16 and 17 of the reasons:

It is, however, conceivable and plausible that a gang may be after Mr. Nagalingam only as a person they have animosity against, and not as a member of a rival group, or that he may be wrongly thought of as being a member of a rival group. On a balance of probabilities, there is insufficient credible or trustworthy evidence to establish that, indeed, he is being targeted by a "Tamil gang" for being a member of a rival gang.

Supposing that Mr. Nagalingam were in fact a member of a gang, as alleged, would he yet be a danger to the public? A significant distinction needs to be drawn between a criminal organization such as the mafia and a triad and youth gangs in terms of organization, control, and discipline.

Att. #1 of the detention review of 10/3/03, The Toronto Tamil Youth Study, talks of a loosely organized group where "gang membership is vague and indefinite (not concrete). A youth might belong to a Tamil gang one day and be out of it the next day without informing the other members (p. 52). According to the study, there is "no consensus on who takes on the leadership role, or even if there is a leadership role," as it may "be practically assumed by any member of the gang." (p. 52). The study concludes that "The structure of a Tamil gang is such that the functions vary greatly and shift considerably from time to time . . . There is no consensus on goals, objective or functions of the collectivity of Tamil youth gangs. Their behaviour is individualistic and flows from needs and emotional disturbances." (p. 52)

There is no real suggestion that Mr. Nagalingam was the "brains" of the operation or its "leader". He was physically imposing and intimidating and "scared little people" as Ariyaratnam put it. He may have been "respected" on the basis of his physical power and may have had influence and control on that basis.

[30]            There was no clear finding that the A.K. Kannan was not a criminal organization as contemplated by subsection 121(2) of the Act. The evidence before the Tribunal shows that the A.K. Kannan was an organization that was involved in criminal activities. In my view, the documentary evidence shows that two rival gangs existed in the Toronto area, the V.V.T. and the A.K. Kannan and these gangs were organized and were involved in many criminal activities. These criminal activities included extortion, drug dealing, robbery, kidnapping, attempted murder and murder, weapons dealing and credit card fraud. I am satisfied from the documentary evidence that the A.K. Kannan and V.V.T. are criminal organizations within the meaning of subsection 121(2) of IRPA, supra. I have noted the decision of O'Reilly J. in Thovaratnam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 395 (T.D.) in my deliberations.

[31]            I am therefore of the view that the decision of the Tribunal dated June 9, 2003 must be set aside and the matter referred back to a different panel for reconsideration.

[32]            Neither party wished to submit a serious question of general importance for my consideration for certification.

                                               ORDER

[33]            IT IS ORDERED that the decision of the Tribunal dated June 9, 2003 be set aside and the matter referred back to a different panel for reconsideration.

                                                                               "John A. O'Keefe"                

J.F.C.

Ottawa, Ontario

December 17, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-4340-03

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

- and -

PANCHALINGAM NAGALINGAM

                                                     

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   June 23, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     December 17, 2004

APPEARANCES:

Pamela Larmondin

FOR APPLICANT

Krissina Kostadinov

FOR RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR APPLICANT

Waldman & Associates

Toronto, Ontario

FOR RESPONDENT