Date: 20070605
Docket: IMM-421-06
Citation:
2007 FC 599
Ottawa, Ontario, June 5, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
KAILESHAN
THANABALASINGHAM
Applicant
and
THE
MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Mr. Thanabalasingham,
has appeared before this Court on numerous occasions. In this matter, he seeks
judicial review of the decision of the Immigration Appeals Division (“the IAD”)
rejecting his request for a stay for the removal order issued against him in
2002.
[2]
In the reasons that follow, the Court finds
that the IAD’s decision does not contain any reviewable errors that would
justify setting it aside.
PROCEDURAL
HISTORY AND BACKGROUND
[3]
The applicant arrived in Canada in 1991 and was granted refugee
status as a young Tamil from the north of Sri Lanka. He acquired permanent resident status in August of 1992. He now
has a wife and young child.
He held jobs in the high tech sector after completing a degree in engineering
at the University of Ottawa.
[4]
The applicant has three criminal convictions
for: i) a weapons offence; ii) failure to comply with a recognizance order;
iii) conspiracy to commit assault. He served prison time in 1998 as a result of
this last conviction. He was also held in detention from 2001 to 2004 as a
result of a Toronto police
initiative to crack down on Tamil gangs operating in that city. This initiative
targeted, in particular, two rival gangs known as “A.K. Kannan” (“the AKK”) and
“the VVT”. These gangs are described as having provided support and allegiances
to younger groups of Tamils who formed what amounted to junior gangs such as
the “Gilder Boys”, a group affiliated to the VVT. In the appeal, the respondent
alleged that the applicant is a VVT member who played a leadership role in that
gang and that he also supported members of the Gilder Boys.
[5]
Prior to the hearing in this matter, Justice
Robert L. Barnes issued an order dated March 24, 2006, in which he dismissed
Mr. Thanabalasingham’s application to stay his removal to Sri Lanka up until such time as this
application for judicial review was resolved.
[6]
In the reasons which followed his order (Thanabalasingham
v. Canada (Minister of Public Safety and Emergency Preparedness)
2006 FC 486, [2006] F.C.J. No. 610),
Justice Barnes
provides a
comprehensive description of the earlier proceedings involving the applicant
that took place before this Court and before the Federal Court of Appeal. He
writes:
4.
I do not intend to belabour the background facts because that history is well
documented in earlier decisions of this Court and in the Federal Court of
Appeal in the following matters: Canada v. Thanabalasingham, [2002] F.C.J. No. 1619, 2002 FCT 1196 (where Justice John O'Keefe
stayed an Order releasing the Applicant from immigration detention); in Canada
v. Thanabalasingham, [2003] 4 F.C. 491, [2003] F.C.J. No. 503, 2003 FCT 354 (where Justice James Russell
stayed an Order releasing the Applicant from immigration detention); in Canada
v. Thanabalasingham, [2004] 3 F.C.R. 523, [2003] F.C.J. No. 1548, 2003 FC 1225 (where Justice Johanne
Gauthier dismissed the Crown's judicial review application concerning his
release from immigration detention); Canada v. Thanabalasingham, [2004] 3 F.C.R. 572, [2004] F.C.J. No. 15, 2004 FCA 4 (F.C.A.) (where the Federal Court
of Appeal upheld the decision of Justice Gauthier); Thanabalasingham v.
Canada, [2005] F.C.J. No. 185, 2005 FC 172 (where Justice J. François
Lemieux set aside the Minister's danger assessment); and, finally, in Canada
v. Thanabalasingham, [2006] F.C.J. No. 20, 2006 FCA 14 (F.C.A.) (where the Federal
Court of Appeal set aside Justice Lemieux's decision on the grounds that the
Applicant had an alternate remedy in the form of an appeal to the Immigration
Appeal Division (IAD)).
[7]
The applicant was deported from Canada on March 27, 2006, three days after
Justice Barnes’ order.
OVERVIEW OF THE IAD DECISION
[8]
The proceedings before the IAD were conducted
pursuant to the provisions of the Immigration Act R.S.C. 1985,
c. I‑2 (“the old Act”), particularly under
paragraph 70(1)(b) of that statute. As the notice of appeal was filed before
the coming into force of the Immigration and Refugee Protection Act S.C.
2001, c. 27(IRPA), his right of appeal to the IAD
was not affected by the new legislation.
[9]
Paragraph 70(1)(b) of the old Act
specified the grounds on which an applicant could appeal. It provided the IAD
with discretion to grant an appeal: “on the ground that, having regard to all
the circumstances of the case, the person should not be removed from Canada.”
[10]
As mentioned, at issue before the IAD was
whether the removal order issued after the applicant had been made the subject
of a report under paragraph 27(1)(d) of the old Act, should be
stayed. That paragraph applied to a person who “has been convicted of an
offence under any Act of Parliament for which a term of imprisonment of more
than six months has been imposed, or five years or more may be imposed”.
[11] The evidence before the IAD was voluminous especially because it
included all the evidence filed at the numerous detention reviews held between
2001 and 2004. The hearing itself took more than a year and required a total of
nine sittings. The IAD had to deal with a preliminary application in respect of
evidence the respondent sought to adduce and to which the applicant objected. (Thanabalasingham
v. Canada (MCI) [2003] I.A.D.D. No.603 (QL)). This comprised hearsay evidence
including the so called KGB statements
made by four gang members as well as the more general issue of whether the IAD
could consider evidence relating to the applicant’s alleged gang activities
given that the respondent had already opted not to issue a section 27 report
based on membership in a criminal gang.
[12]
In a
well reasoned decision, the IAD explained how and why it can consider hearsay
evidence or any other type of evidence that cannot be tested by cross
examination. At paragraph 32 of its 2003 decision, the IAD summarizes the
principles governing the admissibility of evidence in the appeal as they arose
from the old Act (paragraph 69.4 (3) (c)) and the case law as
follows:
(1) The IAD is not bound by legal or technical
rules of evidence and may receive and base a decision on evidence that it
considers credible or trustworthy in the circumstances:
(a) The IAD cannot refuse to admit credible
evidence simply because it is hearsay, not sworn, not given orally or not
subject to cross-examination;
(b) The admissibility of evidence is not to be
confused with the weight to be given to the evidence after it has been tested;
(c) The credibility or trustworthiness of the
evidence and the inferences to be drawn from are all questions of fact within
the IAD's jurisdiction to determine;
(d) Although the IAD is not bound by legal
rules of evidence it may employ a legal rule of evidence if it assists in
determining whether a document or other evidence is credible or trustworthy.
(2) Evidence that is not relevant to an issue
to be decided by the IAD is inadmissible.
(3) Caution must be exercised in rejecting
evidence as irrelevant. When in doubt take the objection under advisement and
decide later.
(4) All relevant evidence is admissible,
unless there are good reasons to exclude particular evidence, including but not
limited to:
(a) where it is proffered for an impermissible
purpose, such as to establish guilt in relation to outstanding or dismissed
charges in order to augment the criminal record of the appellant, and
(b) where its probative value is outweighed by
its prejudicial effect.
(5) The admissibility of evidence that refers
to or suggests criminal wrongdoing depends on the circumstances of the case,
particularly the purpose for which the evidence is tendered;
(a) it is not admissible for the purpose of
augmenting the appellant's criminal record:
(b) it must relate to an important, as opposed
to a peripheral issue.
(c) Its prejudicial effect must not outweigh
its probative value.
[13]
It then concludes that the evidence put forward by
the respondent is admissible and may be relied upon to substantiate the
allegation of gang membership and activities; however, it notes that such facts
would only be relevant to the assessment of i) the seriousness of the offence
leading to the removal order (it places the applicant’s criminal history in
context) ii) the possibility of rehabilitation. It was also said to have “implications
for the maintenance of the safety and good order of Canadian society, an
objective under the former Act”. (para. 36 of Thanabalasingham
2003 cited above at 11).
[14]
The IAD also noted that Constable Furlong would be available to testify
and be cross-examined generally in relation to the KGB statements and the
police investigation. It then concluded that “although the KGB statements have
apparent frailties”, it could not “conclude that their prejudicial effect
outweighs their probative value. They may be corroborated by other evidence. The
KGB statement and other investigative materials will be accorded the weight
they deserve after the panel hearing the merits of the appeal hears all the
evidence and submissions of the parties” (para. 38 of the Thanabalasingham
2003 cited above at 11).
[15]
In its 35 page decision, the IAD focuses on a prescribed series of
factors referred to as the “Ribic factors” (discussed further below). After
an overview of the applicant’s background, the bulk of the IAD’s decision is
given to weighing those factors. In the course of these deliberations, the IAD
made numerous factual findings relating to a variety of issues such as: the
applicant’s credibility; the nature of his association with various gang
members as well as his role per se in the VVT; whether he stopped
associating with gang members after his last conviction in 1997; whether the
criminal offences for which he was convicted were gang related.
[16]
It is important to note that the applicant committed perjury on numerous
occasions prior to the hearing before the IAD. Particularly, in respect of his
knowledge of Tamil gang activities and the circumstances of his offences, he
admitted lying because he thought that the person presiding over his first
detention review was biased in favor of the Crown. He also said he lied at
later detention reviews in order to increase his chances of gaining release.
[17]
In respect of his testimony during the appeal, the IAD found that the
applicant was generally not credible when he testified as to the extent of his
association with the members of the VVT and the Gilder Boys. It states that:
“While the appellant was more forthcoming about his gang ties in this appeal,
he was not completely truthful”.
[18]
According to the IAD, Mr. Thanabalasingham continued to minimize his
ties and his own activities with the gangs, including the extent of his
relationship with admitted gang members who
provided KGB
statements to the police. Furthermore, his testimony about his own activities
was found to be evasive and, when asked to clarify certain matters, he often
claimed that he did not remember. This was found particularly significant when
the matter in question related to incidents that could not have been easily
forgotten.
[19]
Although the IAD concluded that the applicant was a member of the VVT
gang and one of its leaders, it noted that, “even stripped of the gang
connections, the weapon-related offences are serious not simply because they
involved weapons, but also because of the manner in which they were used or
planned to be used”. Among other things, the applicant admitted having struck
an unarmed victim with a machete after the said victim and one of the
applicant’s friends pushed each other. The IAD found that this was an act of
gratuitous violence.
[20]
The IAD also found that the applicant had not established that he had
abandoned his gang ties after 1997 and prior to his arrest. This was based on a
number of factual findings: that he invited several gang members to his
wedding; that he visited a gang leader in jail as late as 2001 (allegedly for
purely humanitarian reasons such as to provide the said leader with canteen
money) as well as four other gang members; he attended court proceedings
involving gang members and met with their lawyers; he was observed meeting with
gang members. Finally, he was identified by various police informants after
1997 as being involved in running guns for the gang.
[21]
With respect to the possibility of rehabilitation, the IAD noted that
the applicant had already tried to take a clever approach to circumventing a
five year prohibition against the use and possession of firearms imposed after
his first weapons conviction. Also, he had failed to completely disassociate
from the gangs when he had an opportunity to do so in 1997. Furthermore, “his
lack of candour with the appeal panel does not augur well with his
rehabilitation.” It was also noted that from 1997 until 2001 when he was
detained by immigration authorities, the applicant had ignored his family’s
advice to avoid gang activities and that in previous proceedings, his family
had been prepared to do his bidding by denying his gang ties and activities.
[22]
In respect of the applicant’s behavior after his release from
immigration detention, the IAD found that although there was little evidence
about any gang activity on his part, his insincere approach to judicial
conditions and his earlier reluctance to break gang ties made it too early to
conclude that the appellant had mended his ways. It also noted that given his
effort to harm leaders of the AKK, he remained at risk from the AKK and needed
protection through self defense, his gang connections or the police. The IAD
found that the appellant had not produced any viable plan as to how he would
deal with likely reprisal from the rival gang or how he would avoid further
being engaged in gang affairs.
[23]
The panel then discussed the other Ribic factors
including a detailed review of the potential foreign hardship the applicant may
face in Sri Lanka.
[24]
In deciding that a stay should not be granted,
the IAD concluded its decision as follows:
In conclusion, the appellant has not
established that in all the circumstances of the case he should not be removed
from Canada. The panel gave considerable
weight to the seriousness of the offences, the context in which they occurred,
the likelihood that the applicant would re-offend, and the need to protect
Canadian society. While the panel weighted the length of the appellant’s
residence in Canada and his ties to his family in
Canada, as well as the best
interests of his child in the appellant’s favour, these positive factors are
clearly outweighed by the negative factors in this case. In light of the
negative conclusions, particularly the need to protect Canadian society and the
appellant’s circumvention of a firearm prohibition in the past, this is not an
appropriate case for a stay of the execution of the removal order.
ISSUES
[25]
Based on the submissions (written and oral) the
primary issues in this case can be summarized as follows:
i.)
Was the decision of the IAD perverse insofar as
it made selective credibility findings about the applicant, especially in
regard to defining “close friendship”?
ii.)
Did the IAD err in its assessment of the
evidence, either by relying on unreliable police evidence or by making
conclusions about the applicant’s gang association and activities that amounted
to speculation and conjecture?
iii.)
Did the IAD rely on its allegedly faulty
conclusions to diminish the applicant’s prospects for rehabilitation while also
failing to give adequate consideration to positive factors related to the
applicant?
iv.)
Did the IAD fail to properly assess the risk to
the applicant in Sri Lanka and,
in particular, did it fail to take account of his expert evidence?
v.)
Did the IAD breach procedural fairness by
failing to provide cogent reasons as to its findings regarding the applicant’s
credibility, the weight given to the “KGB statements” and other hearsay
evidence and the alleged risk of re-offending?
THE STANDARD OF
REVIEW
[26]
While the Court acknowledges that the
jurisprudence has typically applied a standard of patent unreasonableness when
assessing the discretionary decisions of the IAD to grant a stay, it must take
account of the recent Federal Court of Appeal decision, Khosa v. Canada,
(2007 FCA 24, [2007] F.C.J. No. 139).
[27]
In that ruling, a majority of
that Court found that the appropriate standard to apply when the Ribic
factors are considered is reasonableness. The reasoning followed by the Court
of Appeal is very much in line with the one proposed by the applicant at the
hearing.
[28]
The respondent relies on the dissent
of Justice Alice Desjardins. It takes the position that the decision of the
majority was wrongly decided and is the subject of an application for leave to
the Supreme Court. Be it as it may, the Court is bound by it. In any event,
this issue will not be determinative of the present case given my ultimate
findings. For now, it is enough to state that the Court agrees with the
applicant that it is appropriate to apply the standard of reasonableness. This
standard does appear to be the appropriate one given that the issues and
considerations at stake in such decisions are analogous to those described in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817.
[29]
As explained in Law Society of New Brunswick v. Ryan
[2003] 1 S.C.R. 247, the reasonableness standard requires that:
55. A decision
will be unreasonable only if there is no line of analysis within the given
reasons that could reasonably lead the tribunal from the evidence before it to
the conclusion at which it arrived. If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere (see Southam,
at para. 56). This means that a decision may satisfy the reasonableness
standard if it is supported by a tenable explanation even if this explanation
is not one that the reviewing court finds compelling (see Southam, at
para. 79).
56. This does not mean that every
element of the reasoning given must independently pass a test for
reasonableness. The question is rather whether the reasons, taken as a whole,
are tenable as support for the decision. At all times, a court
applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result. Moreover, a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole.
[Emphasis
added]
[30]
However as acknowledged by the applicant at the
hearing, the Court must give the customary high level of deference to the
factual findings
of the IAD which include credibility findings (Aguebor
v. (Canada) Minister
of Employment and Immigration, [1993] F.C.J. No. 732, (1993) 160 N.R. 315
(F.C.A.), Mugesera v. Canada (Minister of Citizenship and Immigration,
[2005] 2 S.C.R. 100 at para. 38). More specifically, the
Court will not interfere with such findings of fact unless they are patently
unreasonable.
[31]
Finally, the issue of sufficiency of reasons is
one of procedural fairness for which there is no need to proceed to a pragmatic
and functional analysis. It is well established that this Court will review
issues of procedural fairness on a standard of correctness and will intervene
if a breach has occurred: Canada (AG) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544
(QL); Sketchley 2005 FCA 404, [2005] F.C.J. No. 2056 (QL).
LEGAL
PRINCIPLES
[32]
The
specific factors the IAD was to consider are well established and recognized by
both parties. These so-called “Ribic factors” grew out
of the IAD’s own practice and experience and came to be affirmed by the Supreme
Court in Chieu v. Canada (MCI), 2002 SCC 3, [2002] 1 S.C.R. 84. At
section 40 of Chieu, Justice Iacobucci wrote:
…
In Ribic, supra, at pp. 4-5, the IAD summarized the relevant
factors to be considered under its discretionary jurisdiction pursuant to what
is now s. 70(1)(b) of the Act:
In
each case the Board looks to the same general areas to determine if having
regard to all the circumstances of the case, the person should not be removed
from Canada. These circumstances include the
seriousness of the offence or offences leading to the deportation and the
possibility of rehabilitation or in the alternative, the circumstances surrounding
the failure to meet the conditions of admission which led to the deportation
order. The Board looks to the length of time spent in Canada and the degree to
which the appellant is established; family in Canada and the dislocation to
that family that deportation of the appellant would cause; the support
available for the appellant not only within the family but also within the
community and the degree of hardship that would be caused to the
appellant
by his return to his country of nationality. While the general areas of review are similar in each case
the facts are rarely, if ever, identical.
[Emphasis
in original]
This list is
illustrative, and not exhaustive. The weight to be accorded to any particular
factor will vary according to the particular circumstances of a case.
[33]
In
the appeal, the onus is on the applicant to establish that “having regard to
all the circumstances” he should not be removed from Canada. This was
made plain by the Supreme Court in Chieu (above) at para. 56:
Before
turning to the Minister’s arguments with respect to s. 114(2), I wish to add
some brief comments regarding the correct procedure to be followed during a s.
70(1)(b) appeal. First, the onus is on a permanent resident facing
removal to establish the likely country of removal, on a balance of
probabilities. (per Iacobucci J.)
[34]
As
the assessment of evidence is a central point of dispute in this case, it is
also important to confirm that, as mentioned in Thanabalasingham 2003,
the IAD is not bound by formal or technical rules. This is so under IRPA
(section 175) and was the case under the old Act. In that respect
paragraph 69.4(3)(c):
|
69.4 (3) The Appeal Division has, as
regards the attendance, swearing and examination of witnesses, the production
and inspection of documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all such
powers, rights and privileges as are vested in a superior court of record
and, without limiting the
generality of
the foregoing, may
(c) during a
hearing, receive such additional evidence as it may consider credible or
trustworthy and necessary for dealing with the subject-matter before it.
|
69.4
(3) La section d'appel a, pour la comparution, la prestation de serment et
l'interrogatoire des témoins, ainsi que pour la production et l'examen des
pièces, l'exécution de ses ordonnances et toute autre question relevant de sa
compétence, les attributions d'une cour supérieure d'archives. Elle peut
notamment:
c)
recevoir, en cours d'audition, les éléments de preuve supplémentaires qu'elle
estime utiles, crédibles et dignes de foi.
|
[35]
As
will be discussed later on, these provisions have been consistently applied by
the Federal Courts to permit the consideration of evidence that would clearly
not be admissible in criminal cases such as those cited and relied upon by the
applicant.
ANALYSIS
[36]
The applicant says that the IAD was perverse in its treatment of his
testimony. Particularly, he submits that the IAD mischaracterized his evidence
in respect of his relationship with various members of the VVT and the Gilder
Boys. Furthermore, it went on to rely selectively on his evidence to support
its own finding in respect of gang membership. For Mr. Thanabalasingham, it is
patently unfair for the IAD to have said that he minimized his relationship
with gang members while at the same time accepting all his evidence about the
nature of his relationship with gang leaders such as Rasa and Suresh and about
gang structure.
[37]
The Court agrees with the applicant that the findings in respect of his
lack of credibility are crucial to the overall decision. Thus, the Court
reviewed carefully the transcripts.
[38]
Also, as the applicant argues that the IAD did not provide sufficient or
cogent reasons
for its finding, it is important to
consider the applicant’s attack on this finding in the light of the various
issues raised by the IAD in respect of his credibility.
[39]
As noted, the IAD relies on :
i.)
his past perjuries in respect of related issues (circumstances
surrounding his offences and his personal knowledge of Tamil gangs )
ii.)
the fact that his testimony was evasive . In that respect the IAD gives
some examples (wiretap conversation about the “car” and his use of machete
etc.).
iii.)
the fact that his theory of part time socialization is not in line with
the wiretap conversations in which he asked Rasa for a gun for the Gilder Boys
and Rasa contemplated having him participate in a possible exchange involving $10,000.00
in return for evidence that the gang wanted to suppress.
iv.)
the fact that he minimized his ties or relationship with members of the
VVT and Gilder Boys other then Rasa and Suresh.
[40]
In respect of point iv) above, the IAD notes that the applicant’s
characterization of his relationship with people such as Vimal Mohanarajah is
inconsistent because on the one hand he said that he simply hung out with him
and other members of the VVT and the Gilder Boys but they were not really his
friends, while later on he referred to Vimal as “my friend”. The IAD concluded
that: “regardless of how the applicant wished to characterize his relationship
with these individuals, the evidence was clear that they were close friends;
they socialized and spent considerable time together.”
[41]
The respondent says that there is ample evidence that the applicant
indeed spent a considerable amount of his free time with gang members (in
addition to time spent with its leaders) and that the sentence quoted above should
be read in context to simply mean that the relationship was closer than acknowledged.
The applicant does not dispute the amount of time
spent but he says that friendship
is a subjective concept. He cannot be faulted for not considering these people
his friends.
[42]
It appears from the applicant’s testimony that the main difference between
these people and his acknowledged friends was that they smoked and drank
whereas Rasa, Suresh and himself did not. He also did not go to movies with
them.
[43]
It is evident that the strength of one’s friendship is somewhat
subjective but the Court does not find it useful to get into the debate on
semantics proposed by the applicant. The fact remains that there was an
objective basis for the IAD’s finding . There was contradictory evidence in
respect of Vimal (with whom he spent more time than with an acknowledged close
friend) and the objective facts otherwise established did suggest a
relationship stronger than the one acknowledged . In the circumstances and
considering the nature of the explanations given by the applicant and the
others issues already affecting his credibility, it was not unreasonable, let
alone patently unreasonable, for the IAD to find that he was still minimizing
his ties with gang members.
[44]
The Court notes that, apart from the argument that it was perverse for
the IAD to discuss in the same breath the issue of friendship and the part time
socialization thesis put forward by the applicant, there were no real attacks
on the other three elements described above (in paragraph 42). Thus, it is not
unreasonable to conclude that were was a lack of credibility on the part of the
applicant in respect of his association with the gang activities.
[45]
At the hearing, the applicant’s counsel mentioned that there was
absolutely no evidence in the wiretap investigation that contradicts the
appellant’s part-time socialization thesis. The Court disagrees. As noted by
the IAD, it is not so much the part time versus full time issue that is contradicted in the
conversations intercepted but more the nature of the association. Contrary to
what the applicant had proposed, i.e. socialization (members were neighbors,
same school, friendship with Rasa to gain respect in the community and be
feared) these conversations clearly show participation in at least one gang
related criminal activity for which he was indeed convicted.
[46]
The applicant offered no support for his implied premise that credibility
findings before the IAD are an all or nothing proposition. There is no reason
why the IAD could not rely on admissions made by the Applicant and details
given by him in respect of the gang structure . There is nothing perverse about
it.
[47]
Overall, the Court is also satisfied
that the IAD gave sufficient reasons for its finding that Mr. Thanabalasingham’s testimony was not generally credible in respect of his
ties and activities with the VVT. The Court had no difficulty understanding the
reasoning process followed and the extensive representations of the applicant
show that he did as well notwithstanding that he did not agree with it. Thus, the
IAD’s reasons are not analogous to the flawed reasons discussed by the Court of
Appeal in VIA Rail Canada v. National Transportation Agency
[2001] 2 F.C. 25, [2000] F.C.J. No. 1685.
b) Police evidence
[48]
The applicant also contests the
findings of the IAD in respect of or based on the “police evidence” adduced by
the respondent. This evidence includes among other things, surveillance notes,
an unsigned copy of the affidavit of a police officer, police reports
containing opinions based on information received from police informants, community
sources as well as what is referred to as the KGB statements.
[49]
Particularly, the applicant says that this evidence constitutes hearsay
and often double hearsay. It is patently unreliable and the IAD erred in
considering it given that he did not have an opportunity to cross-examine
anybody except Constable Furlong.
[50]
That witness although found to be credible, clearly based his own
conclusion that Mr. Thanabalasingham was a member of the VVT and played a
leadership role in that gang after 1997 not only on information he actually received
from community sources including gang members but also on hearsay information
contained in the affidavit of Detective Constable Malcolm filed in support of
the application for a judicial warrant for the wiretap investigation of the
gang activities in 1997 (it is in this respect that the IAD allegedly relied on
double hearsay to make its findings). Moreover, the copy of the affidavit
before the IAD not signed, and that affiant was never made available for cross
examination either during the detention reviews or during the appeal. Constable
Furlong also based himself on information received from informants by another
policeman D.C. Clark who was also not presented for cross examination (this,
once again, allegedly constitutes double hearsay).
[51]
In the applicant’s view, the IAD purely speculated when it concluded
that he was involved in the distribution and storage of guns. Finally, not only
was the IAD wrong in considering and relying on police evidence but it failed to
properly address his arguments in that respect in its decision.
[52]
At the hearing the applicant focused his attack on the findings in
paragraph 48 of the decision. There, the IAD notes that despite the frailties
of the evidence from police informants, the panel was of the view that in this
case the information was generally reliable because i) a number of different
informants were involved ii) Constable Furlong, a credible witness, testified
that he checked out the reliability of his informants to ensure the reliability
of the information provided. Finally, the information received before the
wiretap investigation (information in Detective Malcolm’s affidavit), during (seeking
a gun for the Gilder Boys) and after ( in 1999) was generally consistent and
pointed in the same direction : the applicant’s involvement in the distribution
of guns.
[53]
In considering the sufficiency of the reasons, the Court must obviously
consider the reasons of the IAD in its 2003 decision in respect of the interim
motion of the applicant and which deals specifically with the applicant’s
argument in respect of the admissibility of this evidence and its right to
cross examination.
[54]
Also, as noted, in that decision (at para’s 30, 36 and 38), the panel
made it clear that, consistent with the long
established practice of the IAD of considering the potential involvement of an
appellant in gang activities when assessing the seriousness of the offences,
the chances of rehabilitation and the general need to protect the Canadian
public, this evidence would only be admitted for such purposes. This
means, for example, was the conspiracy to produce a firearm (an offence for
which the applicant had actually been convicted) gang related or not or, as
later argued by applicant, is his criminal record simply the result of
“spontaneous and reactive wrong doing?”
[55]
The applicant never attacked the
IAD’s reasoning and the conclusion reached in that decision. On the contrary,
he argued at the hearing that the IAD had failed to act in accordance with the
findings in para. 38 of its decision.
[56]
Upon reading the decision as a whole
together with the 2003 reasons , the Court is satisfied that contrary to the
applicant’s assertion, the IAD did not add to the list of offences for which he
was convicted and on the basis of which the section 27 report was issued. The
situation here is clearly distinguishable from the one before Justice Judith
Snider in Veerasingam v.
Canada (Minister of Citizenship and Immigration) 2004 FC 1661, [2004] F.C.J. No. 2014 where the IAD had
made a disturbing number of references to a withdrawn charge and failed to
distinguish between the evidence underlying that charge and the fact that the
applicant had been charged. It never weighed or looked at the underlying
evidence.
[57]
In the present instance, the IAD clearly
focused on the evidence. As noted, it refers to the fact that the affidavit of
Constable Malcolm indicates that Mr. Thanabalasingham was linked to the
supply and transportation of guns even before the wiretap investigation. This
was also one of the elements on which this affiant relied in order to seek a
warrant.
[58]
Later during the period covered by the wiretap investigation,
conversations did confirm that Mr. Thanabalasingham had asked Rasa (then the
leader of the VVT) for a gun on behalf of the Gilder Boys. The applicant
admitted that much (he was, in fact, convicted for this incident).
[59]
Then, again in 1999, the applicant was linked by at least one informant
to the transfer of a sawed-off shot gun which was to be later stored at the
residence of his cousin in Ottawa. Within minutes of receiving the information
that a meeting between Mr. Thanabalasingham and gang members would take place
at a certain location in respect of the transfer and use of that gun, Constable
Furlong personally observed Mr. Thanabalasingham at the designated location,
meeting with gang members (one of which had specifically been identified
beforehand by the informant ). The evidence indicates that the applicant did
not live in that area; he did not regularly hang out around that store. In
fact, he testified that he was visiting his sister and had gone to get her
husband a good deal on a cell phone (nothing was ever bought).
[60]
He claims that he bumped into the gang members in the parking lot of
the store by pure coincidence and confirmed that he had a cousin living in Ottawa.
In the circumstances, is it patently unreasonable to find that the information
received from this informant was indeed partially corroborated by the facts? The
Court does not think so. The IAD was certainly not obliged to accept the more
benign explanation provided by the applicant whose credibility had already
found to be wanting. As noted by the Federal Court of Appeal in Canada
(Minister of Citizenship and Immigration) v. Thanaratnam 2005 FCA 122, [2005] F.C.J. No. 587 at para. 37:
It is
possible, of course, as his counsel said, that Mr. Thanaratnam merely
"hung out" with V.V.T. members and was simply unlucky enough to be in
the wrong place at the wrong time. However, as I have already indicated, the
fact that a more benign explanation may exist does not render the opposite conclusion
patently unreasonable, particularly when account is taken of the large number
of "interactions" between the police and Mr. Thanaratnam before his
detention in 2001.
[61]
As mentioned, the IAD’s conclusion that the evidence shows the
applicant playing a leadership role particularly in the distribution and
storage of guns must be read in the context of the decision as a whole. Other
community sources including gang members (other than KGB deponents) had
identified him as a leader after 1997. Constable Furlong confirmed that from
his personal observations it was clear that members of the gang looked up to
the applicant.
[62]
This conclusion was not, as argued by the applicant, a pure guess or
conjecture on the part of the IAD. It was made by considering the facts
referred to above and it could reasonably be inferred from them. It was certainly
not patently unreasonable for the IAD to do so. The words of the Court of
Appeal in Thanaratnam above at para. 34 are particularly apt:
A conclusion is not patently unreasonable
merely because inferences different from the Board’s could reasonably be drawn
from the evidence. While no single piece of evidence on this case may be
determinative, when the evidence is considered cumulatively, it was, in my
opinion, sufficient to ensure that the Board’s decision could not be
characterized as patently unreasonable.
[63]
Turning now to the alleged insufficiency of the reasons in respect of
the weight of the evidence supplied by the informants and the failure to deal
with the applicant’s objections in respect of the KGB statements and the other
hearsay evidence, here again the Court has not been persuaded that the IAD
breached its duty to provide cogent reasons.
[64]
Apart from the testimony of the applicant which was found not to be credible
on these particular issues, there was no evidence contradicting the evidence
from the informants to which the IAD specifically refers. There was therefore
no need for the IAD to say anything more than it did in respect of the actual
weight given to such evidence. The IAD specifically discusses the standard of
proof applicable to establishing gang association and the role of the applicant
in its 2003 decision (at para. 33). There is no reason to believe that it
departed from its finding in that respect.
[65]
Insofar as the affidavit of Constable Malcolm is concerned, the
applicant has not challenged that it is a complete copy of the affidavit used by
the Ontario Court as its basis for the issuance of the warrant authorizing the
wiretap investigation. The original was thus duly sworn by the affiant and
there is no reason why the IAD should specifically deal with this document in
its decision other than to explain the general principles applicable to such
hearsay evidence.
[66]
The Court is satisfied that the panel properly understood the general
principles applicable to the admissibility and evaluation of the police
evidence (including principles related to informants, hearsay and double
hearsay – see paragraph 12 above).
[67]
Recently, in two cases involving similar evidentiary records in
relation to Tamil gang activities, the Federal Court of Appeal offered further
insight. In Balathavarajan
v. Canada (Minister of Citizenship and Immigration) 2006 FCA 340, [2006] F.C.J. No. 1550, it said:
[12] Section 175 of the IRPA permits
the IAD to receive and base a decision on evidence adduced in immigration
proceedings that it considers to be credible and trustworthy in the
circumstances. The evidence can sometime be tenuous and may include evidence
of informants: Canada (Minister of Citizenship and Immigration) v.
Thanabalasingham, [2004] 3 F.C.R. 523 (T.D.), at para.107; aff’d, [2004] 3
F.C.R. 572 (C.A.). It is up to the IAD, not the Court to decide
the weight to be given to the evidence.
[my emphasis].
[68]
In
Sittampalam v Canada (Minister of
Citizenship and Immigration) [2006] FCA 326, [2006]
FCJ
No.1512, it stated the following:
52 The appellant also submits that the police
source evidence in this case is not credible and reliable evidence. Many of the
police reports were made before a proper investigation, and were not
supported by the testimony of the police officers and witnesses that were
involved. Further, the appellant argues that the evidence hinted that the
police lacked objectivity; that their view of the appellant was biased.
53 In this regard, I find that the Board
considered the police source evidence credible and trustworthy in the
circumstances of the case, and such a decision is entirely within its
discretion. The Board is uniquely situated to assess credibility of
evidence in an inadmissibility hearing; credibility determinations are entitled
to considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence: Federal
Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4) (d).
[Emphasis added]
[69]
This
view is not new. As early as 1992, the Federal Court of Appeal when dealing
with police evidence about Asian gang activities said:
Counsel has not persuaded us that the
Appeal Division of the Immigration and Refugee Board committed any reviewable
error of law or jurisdiction in receiving and relying on the evidence of
Corporal Ditchfield. Even if parts of that evidence were, as described by
counsel, “double hearsay”, the board was entitled to hear and act on it if it
found it (to) be relevant, credible and trustworthy. (see s. 69.4 (3) (c)).
[Emphasis added]
[70]
Also,
in respect of the admissibility of a telex referring to evidence from an
unidentified member of the Sri Lankan community, the Court of Appeal in Mahendran
v Canadna (Minister of Employment and Immigration) (1991) 134 N.R. 316, [1991]
FCJ No.549 (QL) noted that in view of 68(3)
of the old Act, the Board had not made a reviewable error in admitting the
evidence. It was for the decision maker to determine the weight that he would ascribe
to such evidence. (see also in a different context Mugesera v Canada MCI 2001 FCT 460, [2001] F.C.J.
No.724 at Par.46 to 49).
[71]
It
is also worth mentioning that, in this case, the applicant had taken steps to
ensure that Constable Furlong would be available to be examined (see paragraph 38
of the 2003 decision). In the end, he did not have to summon Constable Furlong as
the respondent decided to present him as its witness. There is no evidence
before the Court (nor was there any before the IAD) that indicates that the
applicant could not have summoned Detective Malcolm or D.C. Clark if he felt
that doing so would bring further light on the reliability (or lack thereof) of
the informant evidence referred to in Detective Malcolm’s affidavit or in the
police reports.
[72]
Finally,
the Court finds that the applicant cannot complain that the IAD did not fully
review its argument in respect of the KGB statements. In effect, in its
decision, the IAD makes it clear that it did not base its decision on this
evidence which were considered “surplusage”. There was therefore no need to
address this issue further.
c) Rehabilitation and other positive factors
[73]
There
is no indication that the IAD failed to consider any fact put forward to
support the applicant’s position that he would likely be successfully
rehabilitated. As the decision maker says, it was simply not persuaded by Mr. Thanabalasingham’s claims that his prospects were good in that
respect.
[74]
The
standard of reasonableness does not entitle the Court to simply reweigh the
evidence. That is really what the applicant is asking the Court to do here.
[75]
After
a probing examination of the record, the Court is satisfied that most of the
reasons given by the IAD (i.e. past attitude towards Court imposed conditions; clever
approach to circumventing the five year prohibition against possession of
firearms; failure to disassociate with gang members after 1997; lack of
candour; the fact that the family ties and his high education were insufficient
to prevent his behaviour in the past, particularly after 1997; family members’
lack of candour in previous proceedings) are tenable and support the IAD’s conclusion
as to the prospect of rehabilitation.
[76]
The
applicant asserts that the IAD made a significant error by suggesting that his
prospect for rehabilitation were harmed because he might be a target of gang
reprisal and had not provided a viable plan in that respect.
[77]
At
the hearing, the applicant’s counsel acknowledged that she had not put forward
any evidence to establish that Tamil gangs did not exist anymore but said that
she knew this to be a fact. On this point, the applicant relies on Canada (Minister of
Citizenship and Immigration) v. Sittampalam 2004 FC 1756, [2004] F.C.J. No.2152 at para. 25
where Justice Pierre Blais stated that a decision maker cannot take for granted
that facts established at one time will stand indefinitely. The Court was referring
in particular to the existence of Tamil gangs in Toronto.
[78]
However,
it should be mentioned that Justice Blais also found that the reviewing member
erred by relying solely on information provided by counsel in her submissions
instead of referring to the evidentiary record itself or to the fact that the
information provided by the Minister (who had the burden of proof in that case)
was stale.
[79]
As
mentioned, in the present matter, it was the applicant who had the burden to
establish all the facts in his favour. During his testimony, Mr. Thanabalasingham said at page
3769 of the record:
A. I don’t want to come across
the people who involved in
--alleged to be gang. So now, I’m
avoiding all the events or programs, any Tamil movies or anything.
...
Q. Okay. So when you said you’re not
going to that, you didn’t go to that event and--because you’re afraid you’d run
into gang members; is that true for everything?
A. Yes, ma’am.
[80]
In
the absence of any proof that the gangs had ceased to exist, one could infer
from this passage that Mr. Thanabalasingham
and his counsel appear to have believed or assumed that Tamil gangs still
existed.
[81]
Also, the threat assessment
prepared by the police on October 26, 2003, in anticipation of the hearing for
this appeal, clearly discusses the possibility of retaliation by the AKK
against Mr. Thanabalasingham. There is also a reference to a 2003 murder of a
young Tamil male that seems to fit the pattern of gang activity. As suggested
by the respondent, this may well have been what prompted the IAD’s comments in
respect of retaliation.
[82]
Be
it as it may, the IAD clearly had the discretion to look at “all the
circumstances”. This particular finding is clearly not one of its strongest.
However, this does not mean that it was unreasonable for the IAD to have concluded
that Mr. Thanabalasingham’s rehabilitation chances were
not good. There were other tenable reasons supporting this finding.
[83]
Turning
now to the positive factors, the Court cannot accept the argument proposed by
the applicant that on its face, the IAD failed to properly consider the
positive factors as it devoted only three pages or so to its review of them. As the
respondents noted at the hearing, there was not much more to be said about the
positive factors favouring the applicant. The length and the details of the
reasons depend on the circumstances of each case (see Via Rail at
paragraph 21). The applicant has failed to persuade the Court that there was a
breach of the IAD’s duty of fairness.
d) Risk in Sri Lanka
[84]
The Court reviewed carefully all the pages of
the record that, according to the applicant, support his allegation that the
IAD failed to properly assess the evidence and ignored important portions of it
particularly the fact that the situation in Sri Lanka was worsening at the
relevant time.
[85]
The Court is not satisfied that any such
passages constitute evidence that should have been specifically referred to by
the IAD in its decision on the principles established in Cepeda- Gutierrez
v. MCI (1998) 157 F.T.R. 35, [1998] F.C.J. No.1425. In the circumstances, the Court is not willing to
make any adverse inference and to put aside the presumption that the decision
maker considered all of the evidence before it.
[86]
The Court also notes that in its reasons the IAD
specifically refers to “whether the current cease fire agreement holds or not”.
It was clearly aware and focused on the applicant’s position.
[87]
In respect of the evidence of Dr. Sheran, the
expert retained by the applicant to file an affidavit on the risk he would likely
face in Sri Lanka, it is clear
that the IAD considered it. It refers to it on several occasions. It is also
clear that it was found to be unhelpful because it basically consists of bold
assertions not supported by any details or specific exhibits.
[88]
The Court reviewed the evidence of Dr. Sheran,
Mr. Schultz and Ms. Garcia
and is satisfied that the reasons given by the IAD are tenable. For example,
the evidence clearly supports the IAD’s assertion that Dr. Sheran’s claim about
the LTTE is sweeping and categorical but unsupported. In fact, the respondent’s
witnesses in their cross examination provided direct evidence specifically
contradicting most of Dr. Sheran’s views.
[89]
The IAD understood, considered and rejected the
applicant’s argument that his case is exceptional because of the media coverage
and his high profile as an alleged leader of the VVT. The evidence provided in
respect of the return of other Tamil gang members and other known criminals, as
well as the evidence that any reprisal from the government or the LTTE against
such person would have definitely been reported in the Sri Lankan media as well
as by human rights organizations who were closely monitoring the situation at
the time, support the reasoning described in the decision.
[90]
There is simply no reviewable error in the IAD’s
analysis.
e) The future risk
of re-offending
[91]
The applicant says that the use of the word “re-offend”
in the IAD conclusion in paragraph 85 without any detailed reason in that
respect constitutes a reviewable error. (see paragraph 24 above).
[92]
When read in context, the Court understands the
words “likelihood that he will re-offend” as referring to the chances of
rehabilitation that were discussed in detail earlier in the IAD’s decision. There
is simply no need to discuss this argument further, it is without merit.
[93]
Finally, as suggested by the applicant, the
Court reviewed the decision in light of the overall weaknesses or alleged errors
identified by the applicant.
[94]
The Court is satisfied that the IAD properly
turned its mind to the application of the Ribic factors, that it
reviewed all of the circumstances as mandated by the old Act and that tenable
reasons support its conclusion. Thus, the decision stands up to a probing
examination and it should not be disturbed.
[95]
The parties indicated that the only question
that might warrant certification was the standard of review applicable to the decision.
The Court finds that in this particular case, this question is not
determinative and thus does not warrant certification.
[96]
This application is dismissed.
JUDGMENT
The Court
adjudges that
[1] The
application is dismissed.
"Johanne Gauthier"
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