Docket:
IMM-5626-13
Citation: 2014 FC 258
Toronto, Ontario, March 17,
2014
PRESENT: The Honourable Mr. Justice Hughes
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BETWEEN:
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TONG SANG LAI
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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]
This is an application for judicial review of
the decision of a Panel Member of the Immigration Division of the Immigration
and Refugee Board of Canada, dated August 12, 2013, wherein it was determined
that the Applicant was inadmissible to Canada pursuant to subsection 37(1)(a)
of the Immigration and Refugee Protection Act [IRPA].
[2]
The Applicant is an adult male person who is a
Portuguese citizen of Macau. He landed in Canada as a permanent resident
on October 28, 1996. He has not acquired Canadian citizenship.
[3]
The hearing of the matter took place over three
days; several witnesses were called, and a great deal of documentary evidence
was placed on the record. The Applicant did not testify.
[4]
The Panel Member considered the matter over
several months and released the decision at issue on August 12, 2013,
wherein it was determined that he was a member of an organization known as the
Shui Fong in Macau; and that there are reasonable grounds to believe that he
engaged in activity that is part of a pattern of activity planned and organized
by a number of persons acting in concert in furtherance of the commission of an
offence outside Canada that, if committed in Canada, would constitute an
offence punishable under an Act of Parliament by way of indictment. Therefore,
he was inadmissible pursuant to subsection 37(1)((a) of IRPA. It was
also determined that there was no misrepresentation by the Applicant, as
contemplated by subsection 40(1)(a) of IRPA. That determination has not
been challenged.
[5]
Applicant’s Counsel raised several issues at the
hearing and dropped one issue. The Applicant is no longer arguing that
subsection 37(1)(a) of IRPA is not in compliance with section 7 of the Charter.
The remaining issues before me may be stated as follows:
Issue One: What is the appropriate standard of review?
Issue Two: Has the
Member committed an error in law by determining that the activities
of persons in the subject organization were offences under the law of Macau, without sufficient evidence to support that determination?
Issue Three: Has the
Member committed an error in law by determining that homicide is an indictable
offence in Canada?
Issue Four: Has the
Member committed an error in law by applying the wrong standard of proof in
determining that the Applicant was a “member” of an organization?
[6]
I will begin by setting out certain provisions
of IRPA relevant to the issues under consideration:
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3. (1) The
objectives of this Act with respect to immigration are
(i) to promote international
justice and security by fostering respect for human rights and by denying
access to Canadian territory to persons who are criminals or security risks;
and
…
33. The facts that constitute inadmissibility under sections 34
to 37 include facts arising from omissions and, unless otherwise
provided, include facts for which there are reasonable grounds to believe
that they have occurred, are occurring or may occur.
…
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
(b) engaging,
in the context of transnational crime, in activities such as people
smuggling, trafficking in persons or money laundering.
(2) Paragraph
(1)(a) does not lead to a determination of inadmissibility by reason
only of the fact that the permanent resident or foreign national entered
Canada with the assistance of a person who is involved in organized criminal
activity.
…
44. (1) An officer who is of the opinion that
a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report
shall be transmitted to the Minister.
(2) If
the Minister is of the opinion that the report is well-founded, the Minister
may refer the report to the Immigration Division for an admissibility
hearing, except in the case of a permanent resident who is inadmissible
solely on the grounds that they have failed to comply with the residency
obligation under section 28 and except, in the circumstances prescribed by
the regulations, in the case of a foreign national. In those cases, the
Minister may make a removal order.
(3) An officer or the Immigration
Division may impose any conditions, including the payment of a deposit or the
posting of a guarantee for compliance with the conditions, that the officer
or the Division considers necessary on a permanent resident or a foreign
national who is the subject of a report, an admissibility hearing or, being
in Canada, a removal order.
45. The
Immigration Division, at the conclusion of an admissibility hearing, shall
make one of the following decisions:
(a) recognize
the right to enter Canada of a Canadian citizen within the meaning of the Citizenship
Act, a person registered as an Indian under the Indian Act
or a permanent resident;
(b) grant
permanent resident status or temporary resident status to a foreign national
if it is satisfied that the foreign national meets the requirements of this
Act;
(c) authorize
a permanent resident or a foreign national, with or without conditions, to enter
Canada for further examination; or
(d) make the applicable removal
order against a foreign national who has not been authorized to enter Canada,
if it is not satisfied that the foreign national is not inadmissible, or
against a foreign national who has been authorized to enter Canada or a
permanent resident, if it is satisfied that the foreign national or the
permanent resident is inadmissible.
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3. (1) En matière d’immigration,
la présente loi a pour objet :
i) de
promouvoir, à l’échelle internationale, la justice et la sécurité par le
respect des droits de la personne et l’interdiction de territoire aux
personnes qui sont des criminels ou constituent un danger pour la sécurité;
…
33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
…
37. (1) 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;
b) se livrer, dans le cadre de la
criminalité transnationale, à des activités telles le passage de clandestins,
le trafic de personnes ou le recyclage des produits de la criminalité.
(2) Les
faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour
la seule raison que le résident permanent ou l’étranger est entré au Canada
en ayant recours à une personne qui se livre aux activités qui y sont visées.
…
44. (1) S’il estime que le résident permanent ou
l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut
établir un rapport circonstancié, qu’il transmet au ministre.
(2) S’il
estime le rapport bien fondé, le ministre peut déférer l’affaire à la Section
de l’immigration pour enquête, sauf s’il s’agit d’un résident permanent
interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation
de résidence ou, dans les circonstances visées par les règlements, d’un
étranger; il peut alors prendre une mesure de renvoi.
(3) L’agent ou
la Section de l’immigration peut imposer les conditions qu’il estime
nécessaires, notamment la remise d’une garantie d’exécution, au résident
permanent ou à l’étranger qui fait l’objet d’un rapport ou d’une enquête ou,
étant au Canada, d’une mesure de renvoi.
45. Après avoir procédé à une enquête, la Section de l’immigration
rend telle des décisions suivantes :
a) reconnaître le droit d’entrer au Canada au citoyen canadien
au sens de la Loi sur la
citoyenneté, à la personne inscrite comme
Indien au sens de la Loi
sur les Indiens et au résident permanent;
b) octroyer à l’étranger le statut de résident permanent ou
temporaire sur preuve qu’il se conforme à la présente loi;
c) autoriser le résident permanent ou l’étranger à entrer,
avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi
applicable contre l’étranger non autorisé à entrer au Canada et dont il n’est
pas prouvé qu’il n’est pas interdit de territoire, ou contre l’étranger
autorisé à y entrer ou le résident permanent sur preuve qu’il est interdit de
territoire.
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[7]
The present case is concerned with subsection
37(1)(a) of IRPA and the determination by the Immigration Division
under subsection 45(d) that the Applicant should be removed from Canada.
Issue One: What is the appropriate
standard of review?
[8]
Care must be taken with respect to the standard
of review to distinguish between the role of the Immigration Division,
which is to make its determination having regard to sections 33 and 37(1)(a)
of IRPA on the basis of whether there are “reasonable grounds to believe”, and
the role of the Courts in reviewing such a determination.
[9]
Justice Russell of this Court recently gave
careful consideration as to the standard of review to be applied by the Courts
in cases such as this in his decision Chung v Canada (Minister of
Citizenship and Immigration), 2014 FC 16 at paragraphs 21 to 26:
[21] The
Supreme Court of Canada in Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Minister of Public Safety and Emergency
Preparedness),
2013 SCC 36 at para 48.
[22] Past jurisprudence has firmly established that the Board's
determination of inadmissibility on grounds of membership in a criminal
organization "is largely an assessment of facts, and is thus to be
reviewed on the standard of reasonableness":
Lennon v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1122 at para 13; see also M'Bosso v Canada (Minister of Citizenship and Immigration),
2011 FC 302 at para 53 [M'Bosso]; Castelly v Canada (Minister of Citizenship and Immigration),
2008 FC 788 at paras 10-12; He v Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 391 at paras 24-25
[He]; Tang v Canada (Minister of
Citizenship and Immigration), 2009 FC 292 at para 17. This
includes the ID's evaluation of the evidence, including the credibility of
witnesses and the weight to be assigned to their testimony: see Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40 at paras 38-42.
[23] As others have noted, the application of the reasonableness
standard of review in cases relating to inadmissibility under sections 34 to 37
of the Act is affected by the statutory standard of proof that applies to the
constituent facts of inadmissibility, namely "reasonable grounds to
believe": see s. 33 of the Act. For clarity, then, the ID had to come to a
reasonable conclusion that there are reasonable grounds to believe that: a)
Hells Angels is a criminal organization (which is not in dispute here); and b)
the Applicant was a "member" of that organization as that term has
been defined by the jurisprudence: see Tjiueza v Canada
(Minister of Citizenship and Immigration), 2009 FC 1260 at paras 22-24; Rizwan v Canada (Minister of Citizenship and Immigration),
2010 FC 781 at para 29; M'Bosso, above, at
paras 4, 24.
[24] The Applicant's attempts to separate out subsidiary legal
issues regarding the ID's treatment of the evidence, such as the "standard
of proof" applicable to the rebuttal of evidentiary presumptions about
credibility, does not affect the standard of review. The ID is entitled to
deference in its evaluation of the evidence, including the judgments about
witness credibility that this necessarily entails: Mugesera,
above.
[25] The question of the proper application of the rule from Browne v Dunn raises an issue of procedural fairness.
Specifically, where the rule is applicable and is not properly applied, it
could compromise a party's right to know and fully answer the case to be met,
often referred to as the principle of audi alteram partem. Questions of procedural fairness
are reviewable on a standard of correctness: Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29
at para 100. As the Federal Court of Appeal stated in Sketchley
v Canada (Attorney General), 2005 FCA 404 at para 53, "[t]he
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty."
This is a question on which no deference is due.
[26] When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with "the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law."
See Dunsmuir,
above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at para 59. Put another way, the
Court should intervene only if the Decision was unreasonable in the sense that
it falls outside the"range of possible, acceptable outcomes which are
defensible in respect of the facts and law."
[10]
There are no issues as to lack of procedural
fairness or lack of natural justice in the present case. I will review
questions of law on the basis of correctness. I will review an assessment of
facts on the basis of reasonableness, keeping in mind that many of the factual determinations
to be made were on the basis of “reasonable grounds to believe” rather than
“balance of probabilities.”
[11]
As to the “reasonable grounds to believe”
criteria, I am guided by what the Supreme Court of Canada has written in Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2
SCR 100 at paragraphs 114 and 116:
[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 FC 433 (CA), at p 445; Chiau v Canada
(Minister of Citizenship and Immigration, [2001] 2 FC 297 (CA), 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), 9 Imm LR (3d) 61 (FCTD).
…
[116] When applying the "reasonable grounds to believe"
standard, it is important to distinguish between proof of questions of fact and
the determination of questions of law. The "reasonable grounds to
believe" standard of proof applies only to questions of fact: Moreno v Canada (Minister of Employment and
Immigration), [1994] 1 FC
298 (CA), at p 311. This means that in this appeal the standard applies to
whether Mr. Mugesera gave the speech, to the message it conveyed in a factual
sense and to the context in which it was delivered. On the other hand, whether
these facts meet the requirements of a crime against humanity is a
question of law. Determinations of questions of law are not subject to the
"reasonable grounds to believe" standard, since the legal criteria
for a crime against humanity will not be made out where there are merely
reasonable grounds to believe that the speech could
be classified as a crime against humanity. The facts as found on the
"reasonable grounds to believe" standard must show that the speech did constitute a crime against humanity in law.
Issue Two: Has the Member committed an error in law by determining that
the activities of persons in the subject organization were offences under
the law of Macau, without sufficient evidence to support that
determination?
[12]
The essence of the Applicant’s Counsel’s
argument as to this issue is that subsection 37(1)(b) requires that the
Immigration Division conduct what is called an equivalency test; namely, a
determination as to whether the relevant laws of Macau are “equivalent” to the
relevant laws of Canada in respect of “an offence punishable under an Act of
Parliament by way of indictment.” Counsel argues that the Panel Member made no
equivalency determination and that there was little or no evidence on the
record upon which such a determination could have been made.
[13]
The requirement of an “equivalency” test seems
to be rooted in an interpretation given by the Federal Court of Appeal in Yuen
v Canada (Minister of citizenship and Immigration), [2000] FCJ No. 2120
(FCA) of the predecessor regulation to subsection 37(1)(a) of IRPA;
namely, subsection 19(1)(c.2) of the Immigration Act, 1976, sc 1976-66,
c 22, which read:
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s. 19(1) no person shall be granted admission who is a
member of the following classes:
(c.2) persons, who
there are reasonable grounds to believe are or were members of an
organization that there are reasonable grounds to believe is or was engaged
in activity that is part of a pattern of criminal activity, planned and
organized by number of persons acting in concert in the furtherance of the
omission of any offense under the Criminal Code or Controlled Drugs and
Substances Act that may be punishable by way of indictment or in the
commission outside of Canada of an act or omission that if committed in
Canada would constitute such an offence except persons who have satisfied the
Minister that their admission would not be detrimental to the national
interest.
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s. 19.(1) Les personnes suivante
appartiennent à une catégorie non admissible:
c.2) celles dont il y a des motifs
raisonnables de croire qu’elles sont ou ont été membres d’une organisation
dont it 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 au Code Criminel ou à la Loi règlementant
certaines drogues et autres substances qui peut être punissable par mise en
accusation ou a commis à l’étranger un fait – acte ou omission – qui, s’il
avait été commis au Canada, constituerait une telle infraction, sauf si elles
convainquent le ministre que leur admission ne serait nullement préjudiciable
à l’intérêt national;
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[14]
In Yuen, the second last paragraph of the Court of Appeal’s
reasons written by Malone JA and concurred in by Létourneau and Sexton JJA,
states:
In addition, the organization here,
contrary to that in Yamani, has no legitimate objectives. Moreover, the
activities prohibited by paragraph 19(1)(c.2) are better detailed than in
Yamani. Here these activities are limited to offenses falling under the
Criminal Code or the Controlled Drugs and Substances Act. Where the prohibited
activities are committed outside of Canada, there is a requirement of
equivalency and dual criminality before paragraph 19(1)(c.2) comes into play.
Finally, even if a crime is committed, it remains possible for the person who
falls within the scope of application of the provision to be admitted to Canada if the admission would not be detrimental to national interest.
[15]
Justice Mosley of this Court in Park v Canada (Minister of
Citizenship and Immigration), 2010 FC 782 has held, and I accept, that the
determination of whether or not an offence committed abroad is an equivalent
offence is a question of law; hence, reviewable upon the standard of
correctness. He wrote at paragraph 12:
12 The determination of whether
or not an offence committed abroad of which a foreign national has been
convicted is equivalent to an offence under an Act of the Parliament of Canada
is a question of law. Accordingly, such a question of law is reviewable upon
the standard of correctness: Kharchi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1160, [2006] F.C.J. No. 1459, at para. 29.
[16]
Justice Mosley at paragraph 15 of his reasons, in citing Justice de
Montigny in Qi v Canada (Minister of Citizenship and Immigration), 2009
FC 195, addressed the question as to what kind of evidence is required to prove
the foreign law. He wrote:
15 As was found by Justice de
Montigny in Qi v. Canada (Minister of Citizenship and Immigration), 2009 FC
195, [2009] F.C.J. No. 264, at para. 24, "it is now well-settled that
foreign criminal law may be proved without expert evidence in determining
criminal inadmissibility in the immigration context. The decision-maker may
rely on expert evidence if it is available, but may also rely on the foreign
and domestic statutory provisions and the totality of the evidence, both oral
and documentary: see, e.g., Hill v. Canada (Minister of Employment and
Immigration) (1987), 73 N.R. 315, 1 Imm. L.R. (2d) 1 (F.C.A.); Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (F.C.A.)."
[17]
It is worth quoting Justice de Montigny’s decision at paragraph 37 of Qi,
above, because he took pains to make it clear that he was not saying that
expert evidence is required in all cases where an equivalency test is to be
considered; rather, in a case such as the one he had before him where the
applicant (person likely to be deported) had put credible expert evidence
before the officer, then some evidence of like nature may be required to rebut
it. He wrote at paragraph 37:
37 I wish to make it clear that
these reasons should not be interpreted as requiring expert opinion in all
circumstances where immigration officials make decisions predicated on foreign
law. However, when an applicant's position is buttressed by credible and
well-articulated opinion authored by an expert whose credentials are not in
dispute, it will most likely be unreasonable to come to an opposite conclusion
without the benefit of any expert evidence to the contrary.
[18]
As to the nature and quality of evidence required in considering an
offence in a foreign jurisdiction, it is well to keep in mind the distinction
made by Justice Urie of the Federal Court of Appeal in Brannson v Canada
(Minister of Employment and Immigration), [1981] 2 FC 141 between offences malum
in se and offences malum prohibitum; in other words, offences which
by their very nature can be considered to be an offence in any civilized nation,
and those offences that may be more particular to a certain nation and may
require a study of the pertinent legal provisions and jurisprudence in that
nation and Canada. He wrote at paragraph 6:
6 I recognize, of course, that
there are some offences such as murder, which may be compendiously described as
crimes malum in se, where the extent of the proof required to satisfy the duty
imposed on the Adjudicator is not so great. A conviction for such a crime would
usually arise from circumstances which would constitute offences in Canada. It is in the sphere of statutory offences which may be described as offences malum
prohibitum in contradistinction to offences malum in se, that the comments
which I have previously made have particular applicability1.
[19]
This passage, and other jurisprudence, was recently considered by Justice
Roy of this Court in Victor v Canada (Minister of Public Safety and
Emergency Preparedness), 2013 FC 979, where he was asked to consider
“equivalency” having regard to subsection 37(1)(b) of IRPA (not (a)).
I repeat paragraphs 38, 39 and 44 of his Reasons:
[38] In any event, as we
shall see later, the case law on paragraph 36(1)(b) has since evolved so as to
allow this so-called equivalency to mean something other than having the
essential ingredients of the offences correspond perfectly. If we look at this
case law, I do not see how the applicant’s argument can succeed, whether it is
paragraph 36(1)(b) or paragraph 36(1)(c) that is relied on here.
[39] The applicant tries
to convince us that the decision cited repeatedly on the means of establishing
so-called equivalency (within the framework of paragraph 36(1)(b)) does not
support the methods set out therein, but instead establishes an analysis grid
that requires the trier of fact to justify his or her choice among several ways
of determining equivalency.
.
. .
[44] Therefore, in my
opinion, there is nothing to lead us to doubt that the Federal Court of Appeal,
in Hill, made available alternative methods of determining so-called
“equivalency.” In addition, I would add that the internal logic of the three
methods is inconsistent with the conclusion sought by the applicant. Indeed, it
is difficult to understand how a method described as being hybrid, the third,
would be inferior to the second method that was based on the evidence adduced
to determine the essential ingredients of the offence in Canada.
[20]
In reviewing these and other authorities cited by Counsel for each of
the parties, I conclude that there is indeed a requirement that the Panel
Member consider equivalency between the law of the foreign jurisdiction in
which the alleged offence was committed, and the appropriate laws of Canada. That determination is to be based on the record before the Member; for instance, if
one party leads credible expert evidence, then the other party would be well
advised to do likewise. However, where the alleged offences are such that, regardless
of the jurisdiction, most civilized countries would have laws condemning such
an offence, it would be ludicrous to expect that expert evidence would have to
be led in such a case. While in no way limiting examples of such an offence, it
must readily be agreed that murder, unprovoked assault, mutilation, extortion,
and other offences, would easily meet such a criterion.
[21]
Returning to Applicant’s Counsel’s contentions respecting this issue, I
agree that the Member’s decision does not say “I hereby make the following
determination as to equivalency…” and I agree that there was no specific piece
of legislation or jurisprudence before the Member as to what the laws of Macau
were at the pertinent time respecting offences such as murder, extortion,
assault, and so forth. However, I disagree that the decision should be set
aside for such reasons.
[22]
The Supreme Court of Canada in Medovarski v Canada (Minister
of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 has stated
that in IRPA we find a number of provisions that are intended to facilitate the
removal of permanent residents who have engaged in serious criminality. At
paragraphs 9 and 10 the Chief Justice, for the Court, wrote:
9 The IRPA enacted a series of
provisions intended to facilitate the removal of permanent residents who have
engaged in serious criminality. This intent is reflected in the objectives of
the IRPA, the provisions of the IRPA governing permanent residents and the
legislative hearings preceding the enactment of the IRPA.
10 The objectives as expressed
in the IRPA indicate an intent to prioritize security. This objective is given
effect by preventing the entry of applicants with criminal records, by removing
applicants with such records from Canada, and by emphasizing the obligation of
permanent residents to behave lawfully while in Canada. This marks a change
from the focus in the predecessor statute, which emphasized the successful
integration of applicants more than security: e.g. see s. 3(1)(i) of the IRPA
versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the
former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed
collectively, the objectives of the IRPA and its provisions concerning
permanent residents, communicate a strong desire to treat criminals and
security threats less leniently than under the former Act.
[23]
Thus, I am instructed to take a broad view of the provisions of IRPA
respecting removal for criminal activity.
[24]
In Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62, Justice Abella,
writing for the Supreme Court, cautioned against discrete analysis of decisions
such as that under review here. A reviewing Court must show respect for the
decision-making process and determine the reasonableness in light of both the
outcome and the reasons.
[25]
A review of the record before the Member here shows abundant evidence
that Triads in Macau were engaged in a number of activities that any civilized
country would find to be illegal and indictable; including cold-blooded murder
in public, extortion, assault, and more. A discrete analysis was unnecessary.
Further, the evidence directly names the Applicant as a principal member of the
Triads in question. Against this, the Applicant led no evidence of any material
value. With such a wealth of evidence against the Applicant and virtually
nothing to support his position, the result was not only predictable, but
inevitable. I see no point in quashing the decision and sending it back.
Issue
Three: Has the Member committed an error in law
by determining that homicide is an indictable offence in Canada?
[26]
Applicant’s Counsel argues that the Member uses the word “homicide” in
many places in the reasons under review. Counsel argues that, in Canada, there are homicides which are indictable, as well as homicides which are not; and
the Member does not distinguish between them in the reasons.
[27]
While this is strictly true, it does not mean that the decision should
be quashed and sent back for re-determination. The evidence shows that the
Triads committed, among other things, cold-blooded murder in full public view;
undoubtedly, an indictable offence. There is no doubt that the Member’s reasons
were directed at least to such murders when the word “homicide” was used.
Issue
Four: Has the Member committed an error in law
by applying the wrong standard of proof in determining that the Applicant was a
“member” of an organization?
[28]
I begin with citing the Reasons of Justice Martineau in Castelly v
Canada (Minister of Citizenship and Immigration), 2008 FC 788, at paragraph
26, where he wrote that subsection 37(1)(a) of IRPA does not require
actual proof of membership; rather, it requires only reasonable grounds to
believe that the person is a member. He wrote:
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.
[29]
To cite again Justice Russell in Chung, supra, at paragraph 22,
membership is largely an assessment of facts.
[30]
The Federal Court of Appeal in Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 FCR 198, did not give
membership a narrow meaning; it gave it a broad meaning, so as to include, in
that case, former membership. Linden, JA, for the Court, wrote at paragraphs 18
to 21:
18 One of Parliament's
objectives when enacting the IRPA was to simplify the former Act. Section 33
does just that: it reduces the necessary repetition of the phrases denoting
past, present and future membership in the former Act by establishing a
"rule of interpretation" that permits a decision-maker to consider
past, present and future facts when making a determination as to inadmissibility.
19 If one were to interpret
paragraph 37(1)(a) as including only present membership in an organization, it
would, in effect, render section 33 redundant. The Board said (at page 49), and
I concur, that consideration of evidence of a person's history and future plans
would be relevant to the question of whether a person is currently a member of
an organization described in section 37, even without codification to such
effect in legislation.
20 In my view, Parliament must
have intended section 33 to have some meaning. The language of section 33 is
clear that a present finding of inadmissibility, which is a legal
determination, may be based on a conclusion of fact as to an individual's past
membership in an organization. In other words, the appellant's past membership
in the A.K. Kannan gang, a factual determination, can be the basis for a legal
inadmissibility finding in the present.
21 Second, this interpretation
is consistent with the purpose of the inadmissibly provisions and the IRPA as a
whole. The inadmissibility provisions have, as one of their objectives, the
protection of the safety of Canadian society. They facilitate the removal of
permanent residents who constitute a risk to Canadian society on the basis of
their conduct, whether it be criminality, organized criminality, human or
international rights violations, or terrorism. If one were to interpret
"being a member" as including only present membership in an
organization described in paragraph 37(1)(a), this would have a contrary
effect, by narrowing the scope of persons who are declared inadmissible,
thereby increasing the potential risk to Canadian safety.
[31]
In the present case, the Member had abundant evidence in the record,
including a book and an article directly implicating the Applicant as a
prominent Triad member. There is no basis for setting the decision aside on
this issue.
CONCLUSION
[32]
Counsel for the Applicant must be given credit for the direct and candid
manner in which his arguments were presented; however, viewing the decision and
outcome as a whole, based on the abundant record before the Member, I am
satisfied that the Member correctly appreciated the legal principles to be
addressed and came to a reasonable conclusion based on the record.
[33]
I appreciate that the interpretation of subsection 37(1)(a) of
IRPA is not entirely free from doubt, and that the opinion of the Federal Court
of Appeal would be welcome in this regard. Therefore, I will certify the
following question as proposed by Applicant’s Counsel:
In section 37(1)(a) of the
Immigration and Refugee Protection Act, does the phrase “in furtherance of the
commission of an offence outside Canada that, if committed in Canada, would
constitute such an offence” require evidence of the elements of a specific
foreign offence and an equivalency analysis and finding of dual criminality
between the foreign offence and an offence punishable under an Act of
Parliament by way of indictment.
[34]
There are no special reasons to award costs.
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