Date: 20080623
Docket: IMM-4896-07
Citation: 2008 FC 788
Ottawa, Ontario, June 23, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ANGÉLINA
CASTELLY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application to consider the lawfulness of a decision dated
October 24, 2007, of a member of the Immigration Division (the panel)
of the Immigration and Refugee Board to make a removal order against the
applicant because she is inadmissible to Canada under paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act) by reason of “organized criminality”. The applicant is a citizen of Haiti and has been a permanent resident of Canada since
February 7, 1994.
[3]
The
investigation confirmed the existence of a street gang, generally referred to
as the “Wolf Pack” (the group), operating mainly in the city of Québec. It is composed of more than
three people, including Nerva Lovinsky (“Lion”), Jean-Bernard Estelle (“Faya”
or “Fire”), Jean Pierrin (“Junior”), Jean Fandal (“l’Unique”), André Pelissier
(“Andy” or “Monsieur Soleil”), Kamdula N’Djeka (“Alphonso”), Patrick Kayishéma
(“Pat”) and David Moïse (“Nova”). There are reasonable grounds to believe that
the group engages or engaged in activities that are part of organized criminal
activity. One of the group’s main activities is, in fact, youth prostitution.
[4]
The
applicant is the mother of three minor children, as well as of Jean Pierrin,
who, there are reasonable grounds to believe, is part of the “hard core” of the
group. The applicant lives at 201 Du Roy Street,
Apartment 203,
in Québec. The applicant’s telephone line was electronically tapped with
judicial authorization on November 8, 2002. The tap was removed on
December 19, 2002. The investigation demonstrated that, while the
line was tapped, the applicant’s residence was used many times as a meeting
place for the group and that the applicant’s telephone line was used many times
for the group’s criminal activity.
[5]
The police
investigation resulted in the arrest of 43 people on various charges related to
youth prostitution. One of them was Jean Pierrin, arrested on
December 16, 2002. Ten of them were arrested under a peace bond and
declared close collaborators of the ring since there were reasonable grounds to
believe that these people could influence the witnesses and victims during the
legal proceedings. The applicant, nicknamed Mazel, is one of these ten people.
According to the minor victims’ statements, Mazel was involved in the
prostitution ring as a member of the group: among other things, she allegedly
housed the girls who had run away, fed them and lied to their parents if they called
her in search of their daughters.
[6]
Let us
note that, on July 16, 2004, Jean Pierrin pleaded guilty to various
counts of procuring and that he is serving a global sentence of 39 months’
imprisonment. In addition, in a judgment dated November 25, 2004, in
the proceedings against David Moïse, Judge Rémi Bouchard of the Court of Québec
acknowledged the existence of a criminal gang within the meaning of the Criminal
Code, R.S.C. 1985, c. C-46 (the Criminal Code), made up of
Nerva Lovinsky, Jean‑Bernard Estelle and Jean Pierrin.
[7]
A report
was issued on July 28, 2005, under subsection 44(1) of the Act.
The departmental official was of the opinion that the applicant should be
inadmissible on grounds of “organized criminality” under paragraph 37(1)(a)
of the Act, which reads as follows:
|
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; or
|
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;
|
[8]
Considering
the report to be well founded, the Minister referred the matter to the panel
for investigation. The investigation took place on February 10, 2006,
November 27 and 28, 2006, and May 15 and 29, 2007. The last day of the
hearing was reserved for counsel’s submissions. On September 4, 2007,
the panel invited the applicant’s counsel to make additional written
submissions in answer to the question [Translation]
“are there reasonable grounds to believe that Ms. Castelly was a member of
the Wolf Pack organization?” The applicant had testified earlier before the
panel that she was “simply a
mother who at the time was not working outside the home, was overtaken by
events, and had no knowledge about the activity of her son and his friends”.
[9]
On
October 24, 2007, the panel rendered a 32-page decision supported by
reasons, at the end of which it stated that it was satisfied that the applicant
was a person described in paragraph 37(1)(a) of the Act and, for
that reason, inadmissible to Canada. Consequently, an expulsion order under
paragraph 45(d) was issued against the applicant. That is the
reason for this application for judicial review.
[10]
In Thanaratnam
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 122,
[2005] F.C.J. No. 587 (QL) (Thanaratnam), a matter examining the scope
of section 37 of the Act, Mr. Justice Evans found at
paragraph 27 that determining whether the evidence was sufficient to
constitute “reasonable grounds to believe” that an applicant was “engaging in
activity that is part of” a pattern of criminal activity was a question of
mixed fact and law. However, since the question was so largely factual, Evans
J.A. found that the standard of review should be patent unreasonableness. See
also Thaneswaran v. Canada (Minister of Citizenship and
Immigration),
2007 FC 189, [2007] F.C.J. No. 253 (QL).
[11]
Since Dunsmuir
v. New Brunswick, 2008 SCC 9 dated March 7, 2008, the patent
unreasonableness standard has disappeared, giving way to the “reasonableness”
standard, a hybrid standard with a broad spectrum of application. In fact, as
Justices Bastarache and LeBel point out at paragraph 48, “[t]he move towards a single reasonableness standard does not pave the way for
a more intrusive review by courts and does not represent a return to pre-Southam
[Canada (Director of Investigation and Research, Competition Act) v.
Southam Inc., [1997] 1 S.C.R. 748] formalism”. Thus,
where assessing the evidence or determining the credibility of witnesses is
concerned, this Court should not intervene unless the panel’s decision was
based “on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it” (subsection 18.1(4) of the
Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Anjete v. Canada
(Minister of Citizenship and Immigration), 2008 FC 644, at paragraphs 3 and
4; and Bielecki v. Canada (Minister of Citizenship and Immigration),
2008 FC 442, at paragraphs 16 to 23).
[12]
That said,
for the purposes of assessing the lawfulness of the panel’s finding that the
applicant is inadmissible on grounds of organized criminality because there are
reasonable grounds to believe that she was a member of an organization
described in paragraph 37(1)(a) of the Act, “reasonableness is concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
at paragraph 47).
[13]
It is
important to keep in mind that, under section 33 of the Act, the facts
that constitute inadmissibility under sections 34 to 37 (security, human or
international rights violations, serious criminality or organized criminality) 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”. The “reasonable grounds to believe” standard was
explained thus by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 40, at paragraph 114:
The first issue
raised by s. 19(1)(j) of the Immigration Act is the meaning of
the evidentiary standard that there be “reasonable grounds to believe” that a
person has committed a crime against humanity. The FCA has found, and we
agree, that the “reasonable grounds to believe” standard requires something
more than mere suspicion, but less than the standard applicable in civil matters
of proof on the balance of probabilities: Sivakumar v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at
p. 445; Chiau v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will
exist where there is an objective basis for the belief which is based on
compelling and credible information: Sabour v. Canada (Minister of Citizenship &
Immigration) [2000] F.C.J. No. 1615 (F.C.T.D.).
[Emphasis added.]
[14]
Let us
also note straight away that the applicant is not disputing the lawfulness of
the panel’s finding that there are reasonable grounds to believe that the Wolf
Pack is an “organization” described in paragraph 37(1)(a). This
finding is as follows:
Evidence considered credible and trustworthy has
satisfied the panel that this is an organization with a loose, flexible
structure of two branches, each having a leader; with a basic hierarchy;
with criminal activity used to obtain material and particularly financial benefits;
with a name (the Wolf Pack); with members who use identifying nicknames; with
activity mainly in the City of Québec and the surrounding area; and with a
chosen meeting place, that is, Ms. Castelly’s home. It is also clear that
what is involved is not a group
of persons that forms randomly for the immediate commission of a single offence.
[15]
In
addition, it is clear from the undisputed evidence on the record that was
accepted by the panel that the Wolf Pack engages in the types of crime
described in paragraph 37(1)(a):
The group is allegedly involved in activity including
fraud, printing and circulating counterfeit banknotes, extortion, threats,
assault, harassment, youth prostitution, theft, robbery and drug trafficking,
all offences punishable by indictment under the Criminal Code or the Controlled
Drugs and Substances Act.
…
… The evidence has established the existence of an
organization called the “Wolf Pack”, … which it is reasonable to believe is
engaged in activity that is part 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.
[16]
The panel
also wondered whether the applicant is or was a member of the group. It is
clear that, before answering this question, the panel examined all of the
evidence on the record. In this case, the panel largely relied on the extensive
documentary evidence adduced by the Minister and preferred the testimony of
Detective Sergeants Ferland and Bouchard to that of the applicant. In
particular, the excerpts from the electronic surveillance of the applicant’s
telephone line (Exhibits C‑5 and C‑6, Certified Tribunal Record at
pages 117 to 201) corroborate the following findings of the panel:
In fact, the panel is satisfied that
Ms. Castelly acted as a messenger or receptionist or both for her son and
the other members of the organization. As well, she allowed her home and her
telephone line to be used for criminal activity related to procuring, drug
trafficking, and bank fraud. In these ways she facilitated the organization’s
activity.
[17]
In this
case, the panel found that the applicant was prepared to act as an intermediary
for some of the group members, such as her son, Jean Pierrin: “[a]fter detailed consideration of
Exhibits C-5 and C-9, the panel considers it clear that
Ms. Castelly received and forwarded messages for various members of the
organization regularly”. The panel was also of the view that the evidence
demonstrated that there were reasonable grounds to believe that the applicant
had been aware of the group’s criminal activity.
[18]
Even though the applicant was never charged or convicted of
a crime, in the panel’s opinion, that fact is not determinative for the
purposes of finding her inadmissible under paragraph 37(1)(a) of
the Act: “[a]t issue in the
present case is not whether Ms. Castelly is guilty of a crime, but whether
there are reasonable grounds to believe that she is a person to whom
paragraph 37(1)(a) of the Act applies, that is, a member of a
criminal organization or a person engaged in activity that is part of a pattern
of organized criminality and thus inadmissible to Canada”. This is so, in the
opinion of the panel, which also rejected the Minister’s requirement “to establish personal and knowing
participation as well as shared intention … in
order to determine that Ms. Castelly was involved with the organization”.
In that respect, the panel pointed out that the concept of “membership” in an
organization, set out in subsection 37(1) of the Act, should not be
confused with that of being an “accomplice” used in the context of applying for
exclusion under article IF(a) of the United Nations Convention
relating to the Status of Refugees.
[19]
First, the
applicant is challenging the lawfulness of the panel’s findings of fact that
the applicant was a member of the Wolf Pack, for the reference period from
November 8 to December 19, 2002 (electronic surveillance period)
at the very least; that she facilitated the group’s activities; that she acted
as a messenger or receptionist; that she cooked for the group and knew about
its activities; and that she allowed her home to be used as the group’s meeting
place. It seems that the panel missed relevant evidence that demonstrated beyond
any doubt that the applicant was not aware of the group’s criminal activity,
that her telephone line was used without her knowledge and that her home was
never used as the group’s meeting place. Therefore, it is only through
association, stereotypes and prejudice that the evidence presented to the panel
tends to prove the applicant’s presumed knowledge of the group’s illegal
activities.
[20]
The
learned counsel for the applicant tried to convince me, among other things,
that the documentary evidence on which the panel based its findings,
Exhibits C‑5 and C‑9 in particular, was [Translation] “tainted”, to quote the
adjective used at the hearing. Essentially, the reliability of the information
collected by means of tapping the applicant’s telephone line is being
challenged today. The excerpts quoted in the impugned decision contain a number
of clerical errors or are based on a questionable interpretation of the
conversations between the speakers. In short, according to the applicant’s
counsel, the panel should have attached little weight to the documentary
evidence on the record, as well as to the testimony of Detective Sergeants
Ferland and Bouchard, who lied about or exaggerated the applicant’s role and
the number of telephone conversations. Moreover, a significant part of the
evidence collected through electronic surveillance is apparently illegal
because it was recorded outside the judicially authorized period. In any
event, raising similar arguments as he did before the panel, the applicant’s
counsel is of the opinion that the evidence on the tribunal record is not
probative and does not make it possible to find that there are reasonable
grounds to believe that the applicant belongs to a criminal gang.
[21]
These
arguments of the applicant must be rejected. The panel’s findings of fact are
based on all of the evidence on the record. The Court notes that the applicant
was represented by counsel throughout the proceedings before the panel. The
applicant never raised the issues of the electronic surveillance being illegal
or of the excerpts and translations of telephone conversations being
inadmissible in evidence. In his submissions, the applicant’s counsel
concentrated instead on the non-probative nature of the Minister’s evidence. In
the circumstances, the applicant cannot now challenge the decision on the basis
of inadmissibility or illegality of the evidence on the record.
[22]
In
fact, it seems that, dissatisfied with the decision obtained, the applicant is
requesting today that this Court reassess the evidence and substitute its
opinion for that of the panel. Let us recall that the Court must not examine in
fine detail the examples of the lack of credibility found in the impugned
decision, especially in the analysis of the evidence at paragraphs 119 to 135,
but must rather consider them as a whole and interpret them in context and in
light of all the evidence on the record. In addition, the errors alleged by the
applicant must be determinative for the Court to refer the matter back for a
new hearing. In this case, even though some of the panel’s interpretations of
the excerpts of the electronic surveillance evidence at
paragraphs 101 to 118 may be questionable, I cannot say that
they were perverse or capricious in this case, or that they affected the
panel’s findings of fact. Those findings are, in fact, based on the evidence on
the record (especially Exhibits C‑5, C‑6 and C‑9).
[23]
The panel
is in a better position than this Court to assess the credibility of witnesses.
The panel granted expert witness status to Detective
Sergeants Ferland and Bouchard, police officers of the Service
de police de la ville de Québec, without objection from the applicant’s
counsel. In this case, the panel was satisfied that Detective Sergeants Ferland
and Bouchard’s testimony was credible and trustworthy. The panel wrote in its
decision that their testimony was clear, concise and free of exaggeration.
According to the panel, they
responded frankly to the questions asked of them, particularly questions about
the existence of evidence of direct involvement in criminal activity.
[24]
In my
opinion, the panel had reasonable grounds to seriously doubt the truthfulness
of the applicant’s testimony. The finding of the applicant’s lack of
credibility is supported with reasons and is based on all of the facts on the
record:
The evidence has established that Ms. Castelly
knew the main members of the organization much better than she has alleged. …
She has attempted as much as possible to minimize her
links by indicating that the organization’s members were only acquaintances,
friends of her son for whom she cooked from time to time.
She testified that her son did not visit her
regularly and that one or two months could elapse between his visits, to the
point that she would call him for news.
She testified that when her
son was at her home he took over her telephone, which inconvenienced her.
However, the electronic surveillance carried out over
a 40‑day period has established that Jean Pierrin was at his
mother’s home regularly, nearly daily, and that his friends were there
regularly.
Detective Sergeant Bouchard was able to select over
580 relevant excerpts from some 6,000 conversations during that 40‑day
period in order to establish that Ms. Castelly’s home and telephone line
were used by Jean and other members of the organization.
Given all of the information established by the
evidence, again it is clear that Ms. Castelly lied during her testimony
and did everything to present herself in another light as a victim, not a
participant.
[25]
The applicant
also submits that she was not accused of a crime described in
paragraph 37(1)(a) of the Act or convicted by a court of law. In
that regard, the issuance of a peace bond with the applicant’s consent does not
make it possible to infer that she belongs to the Wolf Pack gang or that she
personally knows about the criminal activity that the police attributed to the
alleged members of this group.
[26]
However,
this claim of the applicant does not affect the lawfulness of the panel’s
decision. In fact, belonging to an organization described in
paragraph 37(1)(a) of the Act does not require the existence of
criminal charges or a conviction. In addition, case law has clearly established
that it is not necessary to demonstrate that the person concerned is a member
of an organization, but rather that there are reasonable grounds to believe
that he or she is a member: paragraph 37(1)(a) and section 33
of the Act; Moreno v. Canada, [1994] 1 F.C. 298 (C.A.); and Mugesera at
paragraph 114.
[27]
Having
reviewed the panel’s reasons in light of the evidence presented, I consider
reasonable the panel’s finding that there are reasonable grounds to believe
that the applicant is a member of the Wolf Pack. The panel meticulously
analyzed the documents on which it based its findings and indicated precisely
where in the documents submitted the pieces of evidence could be found. The
panel not only relied on several different documents, but also explained why it
considered that information credible. Contrary to the applicant’s allegations,
there is much more than vague “suspicions” here. These pieces of evidence
appear in truth to be based on conclusive and trustworthy information.
[28]
It is true
that the evidence on the tribunal record does not demonstrate that the
applicant personally took part in serious crimes. Moreover, according to
the testimony of Detective Sergeant Ferland (testimony considered
credible and trustworthy by the panel), “[the Detective Sergeants] had no direct evidence that
Ms. Castelly was involved in her son’s criminal activity … [since] if the
police had had such evidence, they would have charged her with procuring and
living on the avails of prostitution”. As well, no evidence collected during the SCORPION
investigation would make it possible to conclude that the applicant encouraged
the young girls to become prostitutes.
[29]
However,
the panel was also able to support its finding because of the fact that the
applicant had direct knowledge of the criminal activity of other members of the
Wolf Pack who acted on behalf of the gang. In Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 297 (F.C.A.) (Chiau),
application for leave to appeal dismissed [2001] S.C.C.A. No. 71 (QL), the
Federal Court of Appeal implies at paragraphs 25, 56 and 57
that being a member of an organized criminal group can simply mean belonging to
an organization:
It is not,
therefore, either necessary, or helpful, to say much more about the meaning of
the term "members" for the purpose of paragraph 19(1)(c.2).
However, by equating being a "member" with "belonging to" a
criminal organization, the Trial Division Judge correctly concluded that, in
this context, the term should be broadly understood. …
[30]
Similarly,
in Poshteh v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 85, [2005] F.C.J. No. 381 (QL) (Poshteh), the Federal Court of
Appeal stated the following at paragraphs 27–28:
There is no definition of the term "member" in
the Act. The courts have not established a precise and exhaustive definition of
the term. In interpreting the term "member" in the former Immigration
Act, R.S.C., 1985, c. I-2, the Trial Division (as it
then was) has said that the term is to be given an unrestricted and broad
interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and
Immigration) v. Singh, (1998), 151 F.T.R. 101
(F.C.T.D.), at paragraph 52:
[52] The provisions deal with subversion and terrorism.
The context in immigration legislation is public safety and national security,
the most serious concerns of government. It is trite to say that terrorist
organizations do not issue membership cards. There is no formal test for
membership and members are not therefore easily identifiable. The Minister of
Citizenship and Immigration may, if not detrimental to the national interest,
exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B).
I think it is obvious that Parliament intended the term "member" to
be given an unrestricted and broad interpretation.
The same considerations apply to
paragraph 34(1)(f) of the Immigration and Refugee Protection Act.
…
[31]
Based on
the rationale in Canada (Minister of Citizenship and Immigration) v. Singh
(1998) 151 F.T.R. 101, [1998] F.C.J. No. 1147 (QL) and, in particular, on the
availability of an exemption from the operation of paragraph 34(1)(f)
in appropriate cases, the Federal Court of Appeal repeats in Poshteh at
paragraphs 29–32 that the term “member” under the Act should continue to
be interpreted broadly:
Nonetheless, Mr. Poshteh says that the Immigration
Division erred by determining the question of membership on the basis of the
nature and duration of his activities, while failing to consider his level of
integration within the organization. He says the key consideration for
membership is a significant level of integration within an organization. He
submits that adopting significant integration as the test for membership would
promote more consistent decision- making by the Immigration Division.
I am not persuaded that Mr. Poshteh's significant
integration test would achieve the consistency that he says is presently
lacking in Immigration Division decisions. A significant integration test
would still require an assessment of the facts and a judgment as to whether the
degree of integration in any particular case was sufficient to constitute the
individual a member. More importantly, a test for membership based on
significant integration would not be consistent with the broad interpretation
to be given to the term "member."
The Immigration Division adopted a broad approach to the
interpretation of the term "member." …
[Emphasis
added.]
[32]
Although
it applies to paragraph 19(1)(c.2) of the Immigration Act,
R.S.C. 1985, c. I-2 (the former Act), there is no reason, in my opinion, not to
apply the same rationale to paragraph 37(1)(a) of the Act, since
the two provisions are similar. Consequently, the term “member” can describe
any person who simply belongs to a criminal organization.
[33]
In
addition, the applicant’s counsel submits that his client cannot be held
responsible for the illegal activities of the Wolf Pack gang because of her
family ties to her son, Jean Pierrin. According to her counsel, [Translation] “an institutional link
exists when a lawyer who is a permanent resident of Canada defends a member of a street gang or
criminal organization as set out in the Act”. Thus, according to the
applicant’s counsel, a distinction must be made for the family ties that bind
the applicant to her son: [Translation]
“ … a poor mother whose son leads a wrongful life, did she choose to be aware,
to the point of being sanctioned by the Court, of her son’s illegal
activities?”
[34]
In this
case, the applicant’s counsel submits that there is no “institutional link”
here, as seems to be required by some case law of this Court: see Sinnaiah
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1576, [2004]
F.C.J. No. 1908, (QL) (Sinnaiah) and Amaya v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 549, [2007]
F.C.J. No. 743 (QL) (Amaya).
[35]
The
concept of an “institutional link” has not been defined, but it seems to have
been put alongside the concept of “knowing participation” in the organization’s
activities. In Sinnaiah, the operation of paragraph 37(1)(f)
was discussed. Both parties accepted that the Liberation
Tigers of Tamil Eelam (LTTE) was a terrorist group. The following issue was
raised in that case: “[w]as there evidence providing the officer with
reasonable grounds for believing that Mr. Sinnaiah was a member of the LTTE?”
Deciding to allow the application for judicial review, Mr. Justice O’Reilly
made the following finding at paragraph 6:
To establish
"membership" in an organization, there must at least be evidence of
an "institutional link" with, or "knowing participation"
in, the group's activities: Chiau, above; Thanaratnam,
above.
[Emphasis added.]
[36]
That
excerpt is cited with approval in the context of paragraph 37(1)(a)
in Amaya at paragraphs 29–30:
Justice O’Reilly
sums up these statements in Sinnaiah v. Canada (M.C.I.), 2004 FC 1576 at
paragraph 6 as follows:
To establish
"membership" in an organization, there must at least be evidence of
an "institutional link" with, or "knowing participation"
in, the group's activities: Chiau, above; Thanaratnam, above.
In sum, even if
the Applicant himself did not engage in the criminal activities, if he had
knowledge of the activities, it would appear that he met the requirements of
membership. Knowledge of the gang’s activities would appear sufficient to
satisfy any mens rea requirement.
[37]
However,
it must be mentioned that no such statement is made in Chiau or Thanaratnam
to which O’Reilly J. was referring. Therefore, I am not satisfied that the lack
of some “institutional link” in this case renders the panel’s decision
unreasonable.
[38]
Once
again, I do not believe that the panel acted unreasonably in rejecting the [Translation] “ignorance” argument
presented by the applicant’s counsel. In fact, according to the panel, the
evidence on the record did not allow it to accept the applicant’s version “that she did not know what was happening
at her home”. The panel further explains that “[t]he issue is not guilt by
association at all, but rather the discrepancy between Ms. Castelly’s
testimony and the electronic surveillance‑based evidence of her interest
and activity”. In short, the panel did not believe the applicant who presented
herself as simply a mother and who claimed to have no knowledge about the
activity of her son and his friends.
[39]
In this
case, according to the evidence on the tribunal record, not only was the
applicant informed of the Wolf Pack’s activities, but her home was also used as
the organization’s meeting place. Furthermore, the applicant is not only the
mother of Jena Pierrin, who is a member of the organization, but was also in
direct contact with several members of the Wolf Pack. Thus, she acted as
messenger and receptionist for her son. During the police investigation, she
was also identified by young girls as a member of the group (Exhibit C‑4,
Certified Tribunal Record, page 116). In addition, the panel could not
find that the applicant had not obtained a financial benefit from that
activity:
The evidence adduced indicates that she could or did
travel to Florida and Haiti while she was receiving social
assistance. There is also evidence that she used the services of a woman friend
to deposit amounts of money in the friend’s bank account.
[40]
In light
of all these facts, it was not unreasonable for the panel to find that the
applicant was a member of the Wolf Pack, an “organization” that engaged in the
types of crime described in section 37 of the Act. Moreover, and I repeat,
it is not necessary to prove that someone belongs to a criminal organization
described in section 37 of the Act; it is sufficient to have reasonable
grounds to believe that he or she is or was a member of such an organization.
In that regard, the panel does not have to apply the tests developed by the
Canadian courts concerning belonging to a criminal organization for the purposes
of subsection 467.1(1) of the Criminal Code. Finally, I do not
believe that the panel’s decision was unreasonable because it did not make
reference to tests used by the police to determine whether someone is a member
of a street gang or because it did not mention in the impugned decision the
existence of an “institutional link” between the Wolf Pack and the applicant:
see Thanaratnam.
[41]
That said,
the applicant and the respondent are both of the view that formulating a
general definition for “member” or a general test to determine whether someone
is or was a “member” of an “organization” described in paragraph 37(1)(a)
of the Act raises a question of general importance that “transcends the
interests of the immediate parties to the litigation”, “contemplates
issues of broad significance” and would be determinative of the appeal.
[42]
I note
that the Act does not define the term “member” and that the courts have not
established a precise definition of the term or a test for “belonging to” an
organization described in paragraph 37(1)(a) of the Act. In the
last few years at least, case law of the Federal Court and Federal Court of
Appeal has not been consistent on the issue of a test relevant to determining
whether someone is a member of a criminal organization. For example, should the
panel refer to the specific criteria recently restated in Sinnaiah (and
cited with approval in Amaya) or is it sufficient for it to base its
decision on the more general statements found in Chiau, which is older?
How should “institutional link” be interpreted, and is this concept relevant to
the operation of paragraph 37(1)(a) of the Act (which I seriously
doubt for the reasons stated above)? If applicable, should that test be applied
alternatively or subsidiarily to that of “personal knowledge” of the group’s
criminal activity?
[Translation]
For the purposes of paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, what is
the general definition of “member”, and what test must one apply to determine
whether a person is or was a “member” of an “organization” described in that
paragraph?
ORDER
THE COURT ORDERS that
- The application for judicial review be
dismissed.
- The following question of general
importance be certified under paragraph 74(d) of the Act:
[Translation]
For the purposes of paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, what is
the general definition of “member”, and what test must one apply to determine
whether a person is or was a “member” of an “organization” described in that
paragraph?
“Luc
Martineau”
Certified true translation
Susan Deichert, Reviser
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