Date:
20140228
Docket:
IMM-2825-13
Citation:
2014 FC 198
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
February 28, 2014
Present: The
Honourable Mr. Justice Roy
BETWEEN:
Catalina
Luminita DAIA
Applicant
and
THE MINISTER
OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This application for judicial review relates to a decision to
issue a removal order against the applicant because she is inadmissible under section
37 of the Immigration and Refugee Protection Act, SC (2001), c 27 (the Act).
It is important to note from the start that the applicant is also inadmissible under
section 36 of the Act and that that decision is not the subject of this judicial
review.
Facts
[2]
The decision for which judicial review is requested was made
on April 3, 2013. The applicant pleaded guilty on May 25, 2012, on
three counts of attempted credit card theft and to two counts of credit card
theft, all inadmissible under sections 463 and 342 of the Criminal Code,
RSC (1985), c C-46. This was following her arrest, which occurred on
October 4, 2011. A police officer of the Montréal Police Department testified
as to the circumstances surrounding the commission of these offences. She was
the primary investigator in a police investigation that apparently led to the
arrest of the applicant and other people who were acting in concert to steal credit
cards. This is how the member of the Immigration Division described the procedure:
[translation]
The modus operandi of the
group was described as follows by Ms. Tremblay: people work in groups of three
or four. After locating a victim, often an older woman, at the terminal of the
point of sale in a store, the members of the group place themselves behind her
to be able to read the personal identification number (the PIN) of the card
used, either debit or credit.
When the victim goes to her
automobile, she is followed by the members who located her, is approached by
one other person who asks for information using a road map unfolded under her
eyes. Once the victim is distracted by the new person, the accomplices steal
the debit or credit cards. The group of people then goes to a bank branch to
make a withdrawal using the stolen card.
The police
officer testified that video and photographic surveillance and evidence showed
the direct participation of the applicant whose role was to request information
using the road map.
Arguments
[3]
The applicant made three arguments:
a)
the Immigration Division was wrong to designate the police
officer as an expert witness. The applicant claimed that that was a breach of
procedural fairness, which results in a standard of review of correctness;
b)
in the applicant’s view, the assessment of the testimony is
unreasonable, which of course results in a standard of review of reasonableness;
c)
the applicant argued that the Immigration Division had to
consider her intention with respect to being part of a pattern of criminal
activity planned and organized, which would result in a standard of review of correctness.
None of the
three reasons put forward by the applicant resulted in the Court’s approval.
Analysis
[4]
The first grievance concerns the designation of the police
officer as expert witness. The respondent argued that the conditions of section
32 of the Immigration Division Rules, SOR/2002-229, were met and that it
was not appropriate to discuss the expert designation. The following are the
relevant paragraphs:
|
32. (1) If a party wants to call a witness, the party must
provide in writing to the other party and the Division the following witness
information:
(a) the purpose and substance of the witness’s
testimony or, in the case of an expert witness, a summary of the testimony to
be given signed by the expert witness;
(b) the time needed for the witness’s testimony;
(c) the party’s relationship to the witness;
(d) in the case of an expert witness, a
description of their qualifications;
…
|
32. (1) Pour faire comparaître un témoin, la partie transmet
par écrit à l’autre partie et à la Section les renseignements suivants :
a) l’objet du témoignage ou, dans le cas du témoin expert,
un résumé, signé par lui, de son témoignage;
b) la durée du témoignage;
c) le lien entre the witness et la partie;
d) dans le cas du témoin expert, ses compétences;
[…]
|
I agree with the
respondent that the conditions of rule 32 were met in this case. But, in my
view, that is not the issue. However, the applicant claims that the expert
designation was done ex post facto, without her being able to argue on
the true expert qualifications of the police officer. She stated that she
should have been allowed to be heard. In my view, the discussion surrounding
the expert designation seems moot.
[5]
Indeed, in reviewing the decision, we note that the police
officer testified regarding what she saw and received during her investigation.
The description of the modus operandi is nothing more than the
description of facts observed. In The Law of Evidence in Canada, 3rd Ed.,
LexisNexis, 2009 (A.W. Bryant, S.N. Lederman and M.K. Fuerst), we read on
page 771:
§12.2 As
a general rule, a witness may not give opinion evidence but may testify only to
facts within her or his knowledge, observation and experience. It is the province
of the trier of fact to draw inferences from the proven facts. A qualified
expert witness, however, may provide the trier of fact with a “ready-made
inference” which the jury is unable to draw due to the technical nature of the
subject matter. Thus, expert opinion evidence is permitted to assist the fact-finder
form a correct judgment on a matter in issue since ordinary persons are
unlikely to do so without the assistance of persons with special knowledge,
skill or expertise.
The description of
a modus operandi and the participation of different people in criminal
activity do not require any expertise proceeding from the technical nature of
the subject. It is certainly possible for such a witness to submit hearsay
evidence. However, as is well known, that is allowed in administrative matters (Judicial
Review of Administrative Action in Canada by Brown and Evans No. 10:5420).
[6]
The mere designation of “expert” does not change anything
by the fact that, contrary to what the applicant claims, the witness could have
described the investigation that she was responsible for without being
designated an “expert”. The expert designation is not at all necessary. It was possible
to attack the credibility or the probative value of this evidence but there
would have been no doubt, in my view, as to its admissibility.
[7]
The recent decision of the Supreme Court of Canada in R
v Sekhon, 2014 SCC 15, (Sekhon) reinforces my conclusion that the expert
designation made in the reasons for decision was not necessary and, in fact, would
probably not have been appropriate. I note in paragraph 45 that “Mohan
holds that ‘[i]f on the proven facts a judge or jury can form their own
conclusions without help, then the opinion of [an] expert is unnecessary’ (p.
23, quoting Lawton L.J. in R v. Turner, [1975] 1 Q.B. 834, at p. 841).”
[8]
In this case of importing narcotics, a police officer who qualified
as an expert testified that smugglers do not act involuntarily or are not
unaware of what they are carrying. The Court found that such expertise was not necessary
and appropriate and that the trial judge should not have relied on this part of
the testimony (the minority would not have applied the remedial provision on
appeal (subparagraph 686(1)(b)(iii) of the Criminal Code)).
[9]
In our case, the Immigration Division did not rely on
expertise in finding as it did. Further, the testimony given did not require
any legally admissible expertise. Therefore, there was no breach of procedural
fairness regarding the fact that the expert designation was allegedly made before
the applicant could argue the appropriateness of this designation.
[10]
Moreover, it was the responsibility of the Immigration
Division to make a finding on the application to the facts of the case at paragraph
37(1)(a) of the Act. This paragraph 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;
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Therefore, it is
up to the decision-maker to have reasonable grounds to believe required under
paragraph 37(1)(a). He or she must be satisfied that the activities
submitted as evidence are part of a pattern of criminal activity planned and
organized by several people acting in concert.
[11]
The applicant alleged that the expert designation made ex
post facto ensured that the Immigration Division gave greater credibility
to the police officer’s testimony. Certainly, one must be cautious, as the
minority reminds us in Sekhon, above, of “the Crown’s theory of the case
cloaked with an aura of expertise” (paragraph 75). Therefore, I read the hearing
transcripts with this caution in mind. I cannot find any error in this regard
that would require the intervention of a reviewing court. Indeed, the decision
seems reasonable and I could not detect that the decision-maker allegedly
abandoned his adjudicative role. Of course, he noted that he believed the
police officer, but nothing in her factual testimony was shaken. Moreover, is
it necessary to repeat that the applicant pleaded guilty? Given the evidence
before the Immigration Division, it is hard to see how this conclusion could be
unreasonable.
[12]
In this case, it was indeed the panel that found that a
group of people were acting in concert. Further, the panel stated at page 7 of
its decision that [translation] “the
group in question was not formed randomly for the immediate commission of a
single offence. On the contrary, the formation and existence of such a group
are necessary for this type of distraction robbery”. The qualification of expert,
in this case, changed nothing in the findings that had to be made by the panel.
[13]
The applicant argued that the assessment of her testimony
by the panel was unreasonable. With respect, I cannot see how this assessment could
be characterized as such.
[14]
The applicant pleaded ignorance as to what was happening and
to the scheme that she agrees that she participated in several times. The evidence
shows the applicant’s participation in the repeated activities of a group of people
over a period of a few weeks. Further, the activities were such that the
applicant could not be unaware of them: while she very clearly distracted
victim, her accomplices would steal the victim’s wallet. She could only have been
involved and essential to the scheme that was used repeatedly.
[15]
She pleaded guilty to five offences relating to her activities
with this same group of people, which is the best proof possible. She acknowledged
that she committed these offences, including having the required mens rea.
These admissions cannot be reversed. Other charges weigh on her for similar activities
in Ontario. The applicant asks for leniency in the sentence that would have
been imposed on her and claims that [translation]
“the panel did not review the applicant’s testimony in its context and in light
of all the evidence”. These allegations had nothing to do with the standard of
reasonableness that was described in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, (Dunsmuir) at paragraph 47.
[16]
Finally, the applicant states in her factum that she did
not consciously take part in the activities that fall within paragraph 37(2)(a).
This argument is particularly vague since it is based on the discretion conferred
on the Minister not to make inadmissible someone who the Minister is satisfied
would not be detrimental to the national interest. The text reads as follows:
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37. (2) The following provisions
govern subsection (1):
(a) subsection (1) does not apply in the case of a
permanent resident or a foreign national who satisfies the Minister that
their presence in Canada would not be detrimental to the national interest;
and
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37. (2) Les
dispositions suivantes régissent l’application du paragraphe (1) :
a) les faits visés n’emportent pas interdiction de
territoire pour le résident permanent ou l’étranger qui convainc le ministre
que sa présence au Canada ne serait nullement préjudiciable à l’intérêt
national;
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[17]
If, in fact, the applicant wanted to refer to
paragraph 37(1)(a), the argument presented seems to be that the
evidence that the applicant intentionally participated in the activities described
must be provided.
[18]
The applicant’s argument is not clear. She seems to rely on
Talavera Morales v Canada (Public Safety and Emergency Preparedness),
2010 FC 768, (Talavera) but this decision deals with what is necessary
to be a member of an organization within the meaning of section 37. Ultimately,
one would have to consciously participate in activities that are part of a
pattern of criminal activity planned and organized.
[19]
In my view, the guilty pleas considered as part of the modus
operandi submitted in evidence were the required basis to satisfy the
elements of paragraph 37(1)(a) of the Act. The description made in
the manner used to steal the credit cards does not leave room for doubt on how
this group operates. The applicant’s participation was repeated. The activities
were criminal, they were organized; indeed, they were done in concert. The
Immigration Division was not wrong to disagree; the applicant was not an innocent
victim. The guilty pleas made all doubt disappear in this regard.
[20]
As in Talavera, I note that the standard of review
is that of reasonableness as regards the concept of “member”. The applicant did
not meet her burden that the Immigration Division’s finding does not fall within
the “range of possible acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, above, at paragraph 47). The argument that
the applicant is short in relation to the applicable standard of review that requires
deference for the decision made. It is useful to recall that “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” (Castelly v Canada
(Minister of Citizenship and Immigration), 2008 FC 788, [2009] 2 FCR 327, at
paragraph 40).
[21]
Clearly, the Immigration Division would have no jurisdiction
under paragraph 37(2)(a) of the Act and there can be no judicial
review of a decision that was not made. Therefore, this argument has no relevance
with respect to the dispute before this Court and it can only be dismissed. As
to the dispute relevant to subject of paragraph 37(1)(a), it must
also be dismissed, as I attempted to explain.
[22] Therefore, the application for judicial review is dismissed.
There is no question of importance that must be certified.
JUDGMENT
The application
for judicial review of the decision made on April 3, 2013, by the
Immigration Division of the Immigration and Refugee Board of Canada is
dismissed. There is no question to certify.
“Yvan Roy”
Certified true
translation
Catherine Jones,
Translator
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