Date:
20120925
Docket:
IMM-677-12
Citation:
2012 FC 1122
Ottawa, Ontario,
September 25, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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ANDREW ALLEN LENNON SR.
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the December 29, 2011 decision of the
Immigration Division of the Immigration and Refugee Board (“the Board”) by
which the Board found the Applicant inadmissible on grounds of organized
criminality under paragraph 37(1)(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). A deportation order was issued as a
result of this finding.
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicant is a permanent resident who came to Canada in 1966, at the age of 6. He
is a citizen of the United Kingdom.
[4]
On
November 17, 2009, the Applicant pled guilty to two criminal offences:
possession of the proceeds of crime; and possession for the purpose of
trafficking, namely oxycodone. The Applicant was a courier for what the
Minister of Public Safety and Emergency Preparedness (“the Minister”)
identified as a six-person criminal organization, transporting drugs and
currency between Ontario and British Columbia. The Applicant made between
twelve and fourteen trips between the two provinces in 2007, some of which were
for his own benefit.
[5]
The
Applicant was sentenced to an 18-month conditional sentence for each offence,
which he served concurrently. Five other individuals, including the
Applicant’s nephew, were charged with various offences relating to trafficking
controlled substances and money laundering.
[6]
Following
the Applicant’s sentencing, the Canada Border Services Agency (CBSA) reported
him as inadmissible under subsection 44(1) of IRPA. The CBSA report stated
that the Applicant was part of a six-member drug ring based in Windsor, Ontario
and cited paragraph 37(1)(a) of IRPA. The Applicant was referred for an
Admissibility Hearing, which took place on October 4, 2011.
II. Decision
under Review
[7]
The
Board found that the Applicant was a permanent resident of Canada who is inadmissible for organized criminality. It determined on the basis of paragraph
37(1)(a) of IRPA that the evidentiary standard for its finding was “reasonable
grounds to believe”, which has been defined in the jurisprudence as “a serious
possibility based on credible evidence”.
[8]
The
Board relied on the evidence submitted by the Minister, who bore the
evidentiary burden in this case, the testimony of the Applicant, and the
testimony of Corporal Greg Connelly, a Royal Canadian Mounted Police
(RCMP) officer assigned to the Border Enforcement Team in Windsor. The Board
found the Corporal’s testimony to be credible and trustworthy in the
circumstances of the case.
[9]
The
Board concluded that the drug ring of which the Applicant formed a part
constituted a criminal organization for the purposes of IRPA. Despite its lack
of formal structure, the Board found that the ring “executed trafficking in a
way that the activity 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.”
[10]
The
Board pointed to the Federal Court of Appeal case, Sittampalam v Canada
(Minister of Citizenship and Immigration), 2006 FCA 326, [2006] FCJ No 1512
to highlight that the word “organization” is to be given a broad and
unrestrictive interpretation. It also identified that Parliament’s objective
in IRPA was to prioritize security, “treat[ing] criminals and security threats
less leniently than under the former Act.”
[11]
It
ultimately found the following:
Although each member
of this drug ring engaged in a variety of tasks within the group, they all
played a significant role in achieving financial success for the organization.
This group was not formed randomly for the immediate commission of a single
offence, but to the contrary, the ring operated over a period of one year. The
large amounts of money exchanged for drugs and distributed by the ring were
carried out on a regular basis during their existence. The nature of the
criminal convictions of those implicated in this drug ring and their activities
while committing a variety of crimes are in my view indicative of the
clandestine nature which many organized crime groups operate. Although the
group was loosely organized I believe Corporal Connelly’s testimony that [three
of the other members] played major roles as co-coordinators which allowed the
organization to operate. The documentary and oral evidence clearly establishes
[the Applicant] was an intricate part of the organization and deeply entrenched
in the group’s criminal activity.
III. Issues
[12]
The
sole issue in this application is whether the Board erred in its interpretation
and application of paragraph 37(1)(a) of IRPA.
IV. Standard
of Review
[13]
It
is well established that the Board’s determination of inadmissibility on
grounds of organized criminality is largely an assessment of facts, and is thus
to be reviewed on the standard of reasonableness (see M’Bosso v Canada
(Minister of Citizenship and Immigration), 2011 FC 302, [2011] FCJ No 345
at para 53; Castelly v Canada (Minister of Citizenship and Immigration),
2008 FC 788, [2008] FCJ No 999 at paras 10-12).
[14]
For
the purposes of a paragraph 37(1)(a) of IRPA analysis, reasonableness is
concerned with “the existence of justification, transparency and
intelligibility in the decision-making process” and with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] SCR 190 at para 47; Castelly, above, at para 12).
V. Analysis
[15]
Paragraph
37(1)(a) of IRPA states as follows:
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Organized
criminality
37. (1) A permanent resident or a
foreign national is inadmissible on grounds of organized criminality for
(a) 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;
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Activités
de criminalité organisée
37. (1) Emportent interdiction de
territoire pour criminalité organisée les faits suivants :
a) 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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[16]
The
Applicant contests the Board’s finding that he was a member of a criminal
organization. He points to the fact that there were no criminal organization
charges laid in any of the criminal proceedings and to the absence of various
factors that this Court has purportedly identified as indicia of both the
existence of a criminal organization and an individual’s membership therein.
[17]
Specifically,
the Applicant relies on Sittampalam, above, Thanaratnam v Canada
(Minister of Citizenship and Immigration), 2004 FC 349, [2004] FCJ No 395,
and Amaya v Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 549, [2007] FCJ No 743 to argue that there is no criminal organization
in the present case because there is, inter alia, no name or identity
tied to the drug ring, no structure or hierarchy comprising three or more
individuals, no identifying markers on the members, or no group benefit.
[18]
The
very cases the Applicant cites, however, emphasize that criminal organizations
are “usually rather loosely and informally structured, which structures vary
dramatically” (Sittampalam, above, at para 39), and that “there are
no minimum or mandatory attributes that the group must have” in order to be a
criminal organization for the purposes of IRPA (Thanaratnam, above, at
para 30). While some of the indicia mentioned by the Applicant can be
helpful in assessing whether a criminal organization exists, no one element is
essential.
[19]
This
Court has further been clear that it was not Parliament’s intent to adopt the
definition of “criminal organization” from the criminal context. Rather, the
objectives of IRPA indicate an intent to prioritize the security of Canadians
and, as such, an “unrestricted and broad” interpretation of “organization” in
paragraph 37(1)(a) is in order (Sittampalam, above, at para 36). Indeed,
a flexible approach has been championed by this Court, so that looseness and
informality in the structure of a group do not “thwart the purpose of IRPA” (Sittampalam,
above, at para 39).
[20]
This
was exactly the approach taken by the Board in the case at hand. It weighed
the evidence before it and came to the conclusion that the drug ring, despite
its loose organization, was led by three co-coordinators. The Board further
found that the group was “not formed randomly for the immediate commission of a
single offence” but rather continued in operation for a full year. The Board
concluded that the evidence, including the Applicant’s own admission to acting
as a courier for the group, was sufficient to demonstrate that the Applicant
was a member of the organization. As such, I find that the Board’s decision
falls within the range of possible, acceptable outcomes defensible in respect
of the facts and the law and is thus reasonable.
[21]
I
note additionally, as the Respondent points out, that the schemes under
paragraph 37(1)(a) of IRPA and under the Criminal Code, RSC, 1985, c
C-46 are distinct, involving, among other things, different burdens of proof. It
would thus not necessarily be unreasonable for the Board to believe that an
individual was a member of a criminal organization for the purposes of IRPA
where no charges of criminal organization had been laid with a view to
conviction in the criminal context. The Board nonetheless considered the lack
of criminal organization charges laid by the police in this particular case,
inquiring specifically into the matter at the hearing, and came to a reasonable
conclusion on the basis of the evidence before it.
VI. Conclusion
[22]
The
Board adopted the broad and unrestricted approach to assessing whether the
Applicant was a member of a criminal organization under paragraph 37(1)(a) of
IRPA called for on several occasions by this Court, and came to a reasonable
conclusion based on its assessment of the evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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