Docket: IMM-5314-14
Citation:
2015 FC 591
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 6, 2015
PRESENT: The Honourable Madam Justice
Tremblay-Lamer
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BETWEEN:
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MICHELE TORRE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], of a decision of the Immigration Division [ID], in which the
ID determined that the applicant is inadmissible on grounds of serious
criminality and organized criminality under paragraphs 36(1)(a) and
37(1)(a) of the IRPA.
[2]
The applicant is challenging solely his
inadmissibility on the grounds of organized criminality under paragraph 37(1)(a).
II.
Facts
[3]
The applicant is an Italian citizen and obtained
his permanent residence in Canada on April 13, 1967.
[4]
He was arrested in Toronto in April 1996
while attempting to pick up 170 kilograms of cocaine.
[5]
On September 27, 1996, the applicant
pleaded guilty to a charge of conspiracy to traffic cocaine. He was sentenced
to eight years and nine months in prison. In the same matter, Frank Cotroni Sr.
pleaded guilty, and Francesco Cotroni and Giovanni Marra, the owners of Café Sinatra,
where the applicant had been working for four years, were convicted.
[6]
In 2006, the applicant was arrested as part of
Operation Colisée targeting the Italian mafia in Montréal. No charges were
brought against him.
[7]
On April 8, 2013, two reports were prepared
regarding the applicant under subsection 44(1) of the IRPA; they were
referred to the ID for an admissibility hearing in June 2013.
[8]
On March 13, 2014, the applicant filed a
motion for a stay of proceedings for unreasonable delay, given the time that had
elapsed between his conviction in 1996 and the referral of the reports in 2013.
The ID dismissed this motion on March 19, 2014.
III.
Impugned decision
[9]
In an oral decision dated March 19, 2014,
the ID declined hearing the applicant’s motion for a stay of proceedings for
unreasonable delay since it did not have the necessary jurisdiction. It noted
in its reasons, however, that even though 17 years had elapsed since the
applicant’s conviction for trafficking cocaine, this delay did not adversely
affect the conduct of the hearing since the applicant had an excellent
recollection of the events surrounding his arrest in 1996.
[10]
Regarding the documentary evidence on the
record, the ID stated that it was not bound by any legal or technical rules of
evidence under section 173 of the IRPA. Having said that, the ID accepted
the evidence on the record and rejected the applicant’s argument that some of
the evidence, including the reports from Correctional Service Canada [CSC] and
the National Parole Board [NPB], and the document entitled “Sentence / Michel
Torre / 500-01-025160-968”, could not be taken into
consideration. Moreover, the ID accepted an excerpt from a book by Peter
Edwards, well-recognized for his work on organized crime, and the information
regarding Operation Colisée.
[11]
In light of all the evidence, the ID concluded
that “when taken as a whole, [the evidence was]
relevant, credible and trustworthy”.
[12]
The ID reviewed the burden the Minister has to
satisfy in order to establish that the applicant is covered by paragraph 37(1)(a)
of the IRPA. It noted, among other things, that the burden of proof in this
case is not the same as in a criminal proceeding. Moreover, the ID was not in
any doubt about the Italian mafia’s presence in Montréal and noted that the
applicant maintained close ties with the members of the Cotroni clan over the
years. Applying the decisions in Ali v Canada (Solicitor General),
2005 FC 1306, and Chung v Canada (Citizenship and Immigration),
2014 FC 16 [Chung], the ID concluded that it was implausible for “[the applicant] to [claim] that he was not aware, in
general, of the criminal nature of some of the activities of his employers . . .
and in particular, of the nature of the job to be carried out in Toronto in April 1996”.
[13]
Consequently, there were reasonable grounds to
believe that the applicant was or is a member of a criminal organization and
that he engaged in activity that was part of a pattern of organized or planned
criminal activity.
IV.
Issues
[14]
This application for judicial review raises the
following issues:
1.
Did the ID err in stating that it lacked
jurisdiction with respect to the stay of proceedings for unreasonable delay?
2.
Was there an abuse of process?
3.
Was the ID’s assessment of the evidence
reasonable?
4.
May the applicant raise the issue of whether
paragraph 37(1)(a) is constitutional for the first time before the
Federal Court?
5.
If so, is paragraph 37(1)(a)
constitutionally valid?
V.
Standards of review
[15]
It is trite law that the ID’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”, see: Lennon Sr v Canada
(Public Safety and Emergency Preparedness), 2012 FC 1122, at para 13,
and Chung, above, at para 22.
[16]
Consequently, it is not for this Court to
reweigh the evidence or to change the panel’s decision, as long as the decision
falls “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] at para 47.
[17]
Regarding constitutional questions, the Supreme
Court of Canada held in Dunsmuir, above, at paragraph 58, that
these are subject to correctness review. Similarly, abuse of process questions
are also reviewable against a correctness standard: Herrera Acevedo v Canada
(Citizenship and Immigration), 2010 FC 167 at para 10.
VI.
ID’s jurisdiction to hear a motion for a stay of
proceedings for unreasonable delay
[18]
Since the trilogy of judgments in Douglas/Kwantlen
Faculty Assn. v Douglas College, [1990] 3 SCR 570 [Douglas], Cuddy
Chicks Ltd v Ontario (Labour Relations Board), [1991 2 SCR 5 [Cuddy
Chicks], and Tétreault-Gadoury v Canada (Employment and Immigration
Commission), [1991] 2 SCR 22 [Tétreault-Gadoury], the Supreme
Court has established that an administrative tribunal with the authority to
decide questions of law is in the best position to hear and decide the
constitutionality of its statutory provisions.
[19]
More recently, in R v Conway,
2010 SCC 22, [2010] 1 SCR 765, it developed an analysis framework for
determining whether a tribunal has the authority to grant a Charter remedy.
Justice Abella had the following to say at paragraph 81:
Building on the jurisprudence, therefore,
when a remedy is sought from an administrative tribunal under s. 24(1),
the proper initial inquiry is whether the tribunal can grant Charter remedies
generally. To make this determination, the first question is whether the
administrative tribunal has jurisdiction, explicit or implied, to decide
questions of law. If it does, and unless it is clearly demonstrated that the
legislature intended to exclude the Charter from the tribunal’s jurisdiction,
the tribunal is a court of competent jurisdiction and can consider and apply
the Charter — and Charter remedies — when resolving the matters properly
before it.
[20]
In the matter at bar, subsection 162(1) of
the IRPA clearly establishes that the ID has jurisdiction to dispose of
questions of law. In this case, it has jurisdiction to examine and apply the
Charter. Having said that, does it have the jurisdiction to grant the specific
remedy sought, namely, a permanent stay of proceedings?
[21]
In my opinion, in light of the statutory
framework, it is unlikely that this is the case.
[22]
In fact, the ID has limited authority at the stage
when a report is referred to it under subsection 44(2) of the IRPA. In
fact, the ID has no discretion. It has to hold an admissibility hearing
quickly, and if it finds the person inadmissible, it must make a removal order:
Hernandez v Canada (Minister of Citizenship and Immigration),
2005 FC 429.
[23]
In Wajaras v Canada (Citizenship and
Immigration), 2009 FC 200, my colleague Justice Barnes reiterated at paragraph 11
that the ID’s admissibility hearing “is not the place
to embark upon a humanitarian review or to consider the fairness or
proportionality of the consequences that flow from a resulting deportation
order. Those are consequences that flow inevitably by operation of law and they
impart no mitigatory discretion upon the [ID]”.
[24]
Allowing the ID, therefore, to examine the issue
of whether the delay before the admissibility hearing was excessive would amount
to giving it the jurisdiction to examine the individual’s ability to make a
full answer and defence and the consequences of the removal order for the individual,
issues that are at the centre of a debate on unreasonable delay. Following this
review, the ID would then have to examine whether it should grant a stay of the
proceeding it is obliged to hold quickly.
[25]
The specific remedy sought seems incompatible
with Parliament’s intention. In my opinion, the ID did not err when it refused
to hear the motion for a stay of proceedings because it lacked jurisdiction.
VII.
Abuse of process
[26]
However, even though I have concluded that the
ID did not have the required jurisdiction to hear the motion for a stay of
proceedings, the delay remains, and I must determine whether there was an abuse
of process.
[27]
The applicant claims that the delay between his
conviction for drug trafficking and the preparation of reports under section 44
of the IRPA is sufficient in itself to raise the question of an abuse of
process.
[28]
In order to determine whether this delay does in
fact qualify as an abuse of process, it is important to properly define abuse
of process.
[29]
Writing for the majority in Blencoe v British
Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307
[Blencoe], Justice Bastarache described abuse of process in the
following manner:
[120] In order to find an abuse of
process, the court must be satisfied that, “the damage to the public interest
in the fairness of the administrative process should the proceeding go ahead
would exceed the harm to the public interest in the enforcement of the
legislation if the proceedings were halted” (Brown and Evans, supra,
at p. 9-68). According to L’Heureux-Dubé J. in Power, supra, at
p. 616, “abuse of process” has been characterized in the jurisprudence as a
process tainted to such a degree that it amounts to one of the clearest of
cases. In my opinion, this would apply equally to abuse of process in
administrative proceedings. For there to be abuse of process, the
proceedings must, in the words of L’Heureux-Dubé J., be “unfair to the
point that they are contrary to the interests of justice” (p. 616). “Cases
of this nature will be extremely rare” (Power, supra, at p.
616). In the administrative context, there may be abuse of process where
conduct is equally oppressive.
[Emphasis added]
[30]
It is my opinion that for the delay to qualify
as an abuse of process, it must have been part of an administrative or legal
proceeding that was already under way. As emphasized by Justice Bastarache in Blencoe,
at paragraph 132:
As expressed by Salmon L.J. in Allen v.
Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543
(C.A.), at p. 561, “it should not be too difficult to recognise inordinate
delay when it occurs”. In my opinion, the five-month inexplicable delay or even
the 24-month period from the filing of the Complaints to the referral to the
Tribunal was not so inordinate or inexcusable as to amount to an abuse of
process. Taking into account the ongoing communication between the parties, the
delay in this case does not strike me as one that would offend the community’s
sense of decency and fairness. While I would not presume to fix a specified
period for a reasonable delay, I am satisfied that the delay in this case was
not so inordinate as to amount to an abuse of process.
[31]
In Canada (Minister of Citizenship and
Immigration) v Katriuk, [1999] 3 FC 143, [1999] FCJ No 216 (QL), a
case concerning a revocation of Canadian citizenship, Justice Nadon writes as
follows at paragraph 23:
There is a difference between the point in time when the alleged
wrong came to the attention of the authorities, about 1986, the point in time
when the authorities chose to begin proceedings against the wrongdoer, 1996,
and the point in time of the unfolding of the proceedings, 1997-1998. As the
Minister has demonstrated that Mr. Katriuk obtained his citizenship by
concealing material circumstances, any suffering by Mr. Katriuk will be
the result of his own making. The only period of delay with which I am
concerned is the period between the filing of the statement of claim in October
1996 and the unfolding of these proceedings in 1997 and 1998. I cannot
conclude that the respondent has suffered due to an undue delay in this matter.
[Emphasis added]
[32]
In light of the above, the only delay this Court
should consider in order to determine whether there was an abuse of process is
the delay between the decision made by the Minister to prepare a report under section 44
of the IRPA and the ID’s admissibility finding. Any other period of time should
not be used to calculate an unreasonable delay resulting in an abuse of
process.
[33]
In any event, if the 17-year delay before the
inadmissibility proceeding was instituted were part of the calculation to
determine whether there was an abuse of process, the applicant would have to
establish that the delay caused “actual prejudice of
such magnitude that the public’s sense of decency and fairness is affected”:
Blencoe, above, at para 133.
[34]
Even though the applicant alleges that the delay
jeopardized his physical and psychological integrity, and [translation] “undermined
his ability to make a full answer and defence to” the allegations
against him as part of the inadmissibility inquiry, he failed to establish that
it caused prejudice of such magnitude.
[35]
The applicant’s evidence does not support his
claim that the referral to the ID tainted the proceeding and that he was unable
to defend himself against the allegations made under paragraph 37(1)(a)
of the IRPA.
[36]
While it is certainly unfortunate for the
applicant to be found inadmissible 17 years after he committed a wrongful
act, it is not clear here that the administrative proceeding instituted against
him was unfair to the point of being contrary to the interests of justice.
[37]
The applicant was able to enjoy being in Canada
for a long time even though he could have been found inadmissible 17 years
ago.
[38]
In my view, the comments made by Justice Gibson
in Canada (Minister of Citizenship and Immigration) v Malik, [1997] FCJ
No 378, 128 FTR 309, apply, by analogy, to the facts of this case. At paragraph 17,
Justice Gibson writes as follows:
Indeed, it might be argued in the absence of
evidence to the contrary, that the Respondent, rather than suffering prejudice,
benefitted from the fact that he has remained in Canada, as a Canadian citizen,
throughout the length of time taken to bring this matter before this Court.
[39]
In fact, if any prejudice was caused in this
case, it would be the respondent who could complain about it, as the burden was
on the respondent to establish that the applicant is covered by paragraph 37(1)(a).
The passing of time could not have helped him in this.
[40]
The process following the issuance of the inadmissibility
report on the grounds enumerated in paragraph 37(1)(a) of the IRPA
was carried out quickly and did not cause the applicant any serious prejudice.
Even though some witnesses are deceased, the evidence on the record was
sufficient for the panel to conclude that the applicant is inadmissible under paragraph 37(1)(a)
of the IRPA. Consequently, it is my opinion that there was no abuse of process
as the result of an unreasonable delay.
VIII.
ID’s assessment of the evidence
[41]
The impugned provision, paragraph 37(1)(a)
of the IRPA, provides as follows:
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37. (1) A permanent resident or a foreign national is inadmissible
on grounds of organized criminality for
(a) being a member of an organization that is
believed on reasonable grounds to be or to have been engaged in activity that
is part of a pattern of criminal activity planned and organized by a number
of persons acting in concert in furtherance of the commission of an offence
punishable under an Act of Parliament by way of indictment, or in furtherance
of the commission of an offence outside Canada that, if committed in Canada,
would constitute such an offence, or engaging in activity that is part of
such a pattern;
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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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[42]
Section 33 of the IRPA sets out the
standard of proof applicable in assessing the facts under paragraph 37(1)(a),
and reads as follows:
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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.
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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.
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[43]
These provisions of the IRPA provide that a
person may be found inadmissible if there are reasonable grounds to believe
that the person is a member of a criminal organization or engaged in activity
that is part of a pattern of organized or planned criminal activity. In Talavera
Morales v Canada (Public Safety and Emergency Preparedness), 2010 FC
768, Justice Mactavish writes as follows at paragraph 9:
[9] In order to conclude that Mr. Talavera
was inadmissible to Canada under paragraph 37(1)(a) of IRPA, the
Immigration Division had to find that he was, or had been, a member of an
organization for which there are reasonable grounds to believe is or was
engaged in organized criminality as defined in section 37 of the Act.
There are thus three aspects involved in such an inadmissibility finding: the
definition of “organized criminality”, the “reasonable grounds to believe”
standard, and the concept of “membership”.
In the matter at bar, the ID found the
applicant to be inadmissible for these two reasons.
[44]
It is important to recall 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. There must be an
objective basis for the belief which is based on compelling and credible
information: Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40, [2005] 2 SCR 100; and Charkaoui v Canada (Citizenship
and Immigration), 2007 SCC 9, [2007] 1 SCR 350.
[45]
Did the evidence before the ID include enough
credible information to offer an objective basis for its findings of fact?
[46]
The applicant submits that the ID erred in its
assessment of the evidence, specifically with respect to its findings
concerning the CSC and NPB reports. In his opinion, no weight should be given
to these exhibits, in accordance with this Court reasoning in Ménard v
Canada (Attorney General), 2014 FC 260. Moreover, the ID erred in
characterizing as an [translation]
“expert” a journalist and author of a book on
organized crime from which excerpts were considered by the ID.
[47]
The respondent points out that paragraphs 173(c)
and (d) of the IRPA allow the ID to “receive . . .
evidence adduced in the proceedings that it considers credible or trustworthy”.
It is therefore the ID’s role to assess the evidence and not the Court’s to
reassess the weight given to this evidence as the applicant is asking it to do here.
I believe this for the following reasons.
[48]
The ID first found the evidence about the
existence, in Montréal, of Italian-based organized crime (the mafia and the
Cotroni crime family) to be compelling. This conclusion was based on serious,
trustworthy documentary evidence from various sources, such as journalists who
have covered the world of organized crime for years, authors of books on the
subject and officers from the Royal Canadian Mounted Police and the Criminal
Intelligence Service Canada. The applicant did not establish that this
conclusion is unreasonable.
[49]
The ID then analyzed the evidence in order to
determine whether there were reasonable grounds to believe that the applicant
engaged in activity that was part of a pattern of organized or planned criminal
activity.
[50]
As summarized by the respondent in its
memorandum, the ID considering the following evidence to conclude that this was
the case.
- The applicant’s
testimony on some aspects of his knowledge of and participation in the
criminal activities allegedly committed by his bosses, Mr. Cotroni
Jr. and Mr. Marra, lacks credibility.
- It is
inconceivable that the heads of the Cotroni crime family would send a
person whom they did not fully trust to Toronto to pick up
170 kilograms of cocaine.
- The applicant
admitted at the admissibility hearing that he suspected that there was
something shady about the operation.
- The applicant’s
statement that he was not aware until after his arrest of a
$25,000 bonus for carrying out this task contradicts the CSC report.
- The applicant
knew that Mr. Cotroni Sr. was considered to be one of the leaders of
the Montréal mafia. He came regularly to the Café Sinatra, where the
applicant worked, and occasionally met other people there.
[51]
Relying on all of this evidence, the ID concluded
that the applicant was an associate in the organization and that, even though
he was not a decision-maker, he had the trust of the organization, which led
him to be involved in the 1996 activities. In my opinion, it was not
unreasonable to conclude that there are reasonable grounds to believe that the
applicant was engaged in activity that was part of a pattern of organized or
planned criminal activity. This finding falls within the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law”: Dunsmuir, above, at para 47.
[52]
It is true that the applicant provided a
different explanation, which the ID deemed not to be credible, given the
implausibility of Mr. Torre’s claim that he was not aware of the criminal
nature of some of the activities of his employers, Mr. Cotroni Jr. and Mr. Marra.
I emphasize that it is the administrative tribunal’s role to assess the
credibility of the testimony: Chung, above.
[53]
Regarding membership in a criminal organization,
for the purposes of paragraph 37(1)(a), it is unnecessary to
establish that the person in question is a member of an organization but rather
that there are reasonable grounds to believe that he or she is or was a member,
regardless of the time that has gone by: Moreno v Canada (Minister of
Employment and Immigration), [1994] 1 FC 298, [1993] FCJ No 912 (QL); Amaya
v Canada (Public Safety and Emergency Preparedness), 2007 FC 549, at para 22
[Amaya].
[54]
In Amaya, above, I discussed the
definition of the word “organization” within the
meaning of paragraph 37(1)(a). At paragraphs 22 and 23 of this
decision, reiterating the words of Justice Linden in Sittampalam v Canada
(Minister of Citizenship and Immigration), 2006 FCA 326, I wrote as
follows:
Justice O’Reilly’s approach to the
definition of organization was affirmed by Justice Linden of the Federal Court
of Appeal in Sittampalam v. Canada (M.C.I.), 2006 FCA 326. Justice
Linden clarified two issues on appeal. First, Justice Linden confirmed that the
provision does not require current membership. Thus, a person can be
inadmissible for a prior association. Second, Justice Linden confirmed at paragraph 36
that the definition of organization is to be given a broad and unrestricted
definition and affirms the interpretation of organization provided for by
Justice O’Reilly . . .
Justice Linden concluded at paragraph 55:
The word “organization”, as it is
used in paragraph 37(1)(a) of the IRPA, is to be given a broad and
unrestricted interpretation. While no precise definition can be established
here, the factors listed by O’Reilly J. in Thanaratnam, supra, by
the Board member, and possibly others, are helpful when making a determination,
but no one of them is an essential element. The structure of criminal
organizations is varied, and the Board must be given flexibility to evaluate
all of the evidence in the light of the legislative purpose of IRPA to
prioritize security in deciding whether a group is an organization for the
purpose of paragraph 37(1)(a). […]
[55]
The word “member”
must be given a broad and unrestricted interpretation, and therefore member
simply means belonging to an organization. To be a member of an organization,
it is not necessary for the individual to have a membership card or to be a
member in good standing: Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 297, [2000] FCJ No 2043 (QL), at para 57; and Poshteh
v Canada (Minister of Citizenship and Immigration), 2005 FCA
85 at paras 27 and 29 [Poshteh].
[56]
Regarding the question of membership in a
criminal organization, the ID relied on the following evidence:
- Mr. Torre
was employed by Mr. Cotroni Jr. and Mr. Marra from 1992 to
1996. He was subsequently arrested, along with nearly 100 people, in
fall 2006, as a result of Operation Colisée.
- Although Mr. Torre
might not have been convicted as part of Operation Colisée—recall that the
burden of proof in a criminal court is very different from the burden of
proof for the Immigration Division—the judge who reviewed his case
decided, after considering the evidence before him at that time, not to release
him with conditions pending his trial because [translation] “…he was nevertheless involved”. Mr. Torre’s
closeness to well-known members of the Montréal mafia, their trust in him,
and the association’s persistence over the years are indications to me
that there are also reasonable grounds to believe that Mr. Torre is
or was a member of the Cotroni crime family.
[57]
Even though the applicant challenges the probative
value of the documentary evidence, specifically Exhibits C-10 and C-12,
the Court notes first that the ID is not bound by the usual rules of evidence
and may receive any evidence considered credible or trustworthy. Exhibit C‑10 was
written by a representative of the Crown with respect to the applicant’s arrest
in Toronto and indicates that the applicant is a barman at Café Sinatra, that
he is Francesco Cotroni’s and Giovanni Marra’s go-to guy in the distribution of
drugs and Mr. Marra’s associate in major cocaine deals. It was not
unreasonable for the ID to find this document to be relevant, credible and
trustworthy.
[58]
Similarly, it could give probative value to the
documents from the CSC and the NPB, which are contemporaneous to the time of
the applicant’s incarceration.
[59]
Indeed, the ID explained that it was not basing
its decision solely on these two documents and did not accept the information
in them to be fact.
[60]
Regarding the probative value of Exhibit C-20,
the ID noted that the document corroborates the information from other sources concerning
the events surrounding the conspiracy to possess cocaine for the purpose of
trafficking, to which Mr. Torre pleaded guilty. The document was part of
the evidence, and it was open to the applicant to challenge its probative value,
which he failed to do.
[61]
Generally speaking, the Minister was not
governed by the best evidence rule and could adduce any credible or trustworthy
evidence. It was the ID’s role to assess the probative value of this evidence,
and it is not this Court’s role to reassess the probative value the ID afforded
it.
IX.
Constitutional questions
A.
Failure to raise the constitutional question
before the ID
[62]
The applicant did not raise the
unconstitutionality of paragraph 37(1)(a) before the ID. The
respondent submits that the failure to argue the unconstitutionality of paragraph 37(1)(a)
before the ID does not authorize the applicant to do so before this Court.
While it is true that in Stables v Canada (Citizenship and Immigration),
2011 FC 1319 [Stables], Justice de Montigny found that it was
preferable, in principle, that this Court not dispose of a constitutional
question when it had not been raised before the administrative tribunal, he
nonetheless ruled on the constitutional question in the event that he had erred
in concluding that it should have been raised before the ID first.
[63]
More recently, in Canada (Public Safety and
Emergency Preparedness) v JP, 2013 FCA 262 [JP] at para 101,
the Federal Court of Appeal was asked to rule on this issue. Justice Mainville
noted that the failure to complete a notice of constitutional question before
the administrative tribunal was not fatal. Where the factual foundation is
sufficient to determine constitutional issues, the Court may be in a position
to address the issues. He recalled that the Federal Court of Appeal has held
that, as a general principle, it will not entertain arguments that are not
supported by a proper evidentiary foundation, principally to avoid prejudice to
the opposing party who could have adduced evidence concerning the arguments: Bekker
v Canada, 2004 FCA 186; Somodi v Canada (Citizenship and
Immigration), 2009 FCA 268. In the matter at bar, I fail to see which
missing facts would result in prejudice to the respondent since he replies to
the constitutional arguments in his memorandum and does not refer to any
prejudice suffered.
[64]
In light of the case law of the Federal Court of
Appeal, it is my opinion that it is open to me to consider the argument
concerning the constitutional validity of paragraph 37(1)(a) raised
by the applicant. Even though the applicant did not prepare a notice of
constitutional question before the ID, he nonetheless respected subsection 57(1)
of the Federal Courts Act, RSC 1985, c F-7, and served the attorney
generals with his intention to challenge the constitutionality of paragraph 37(1)(a).
B.
Constitutionality of paragraph 37(1)(a)
[65]
The applicant submits that paragraph 37(1)(a)
of the IRPA is not constitutionally valid because it violates his right to
life, liberty and security of the person under section 7 of the Charter.
He notes that the wording of paragraph 37(1)(a) is vague and that
the provision carries a light burden of proof; consequently [translation] “strange
situations lead to expulsions from Canada without right to appeal”, and
certain statutory provisions, such as section 25, which provides for an
exemption on humanitarian and compassionate considerations, do not apply to the
applicant.
[66]
In Stables, above, my colleague Justice
de Montigny thoroughly analyzed whether or not paragraph 37(1)(a)
of the IRPA was constitutional in relation to the rights under section 7 of
the Charter. The same constitutional argument is made in the matter at bar. I
fully agree with Justice de Montigny’s analysis, and reach the same
conclusions.
[67]
In Stables, the applicant argued that the
terms “member”, “organized
criminality” and “pattern of criminal activity”
found in paragraph 37(1)(a) of the IRPA were “unconstitutionally vague and overbroad”, which violated
his rights under section 7 of the Charter: Stables at para 38.
[68]
However, Justice de Montigny found this argument
to be flawed because one must first establish that the interest in respect of
which the applicant asserted his or her claim falls within the ambit of section 7
of the Charter. He writes at paragraph 39:
. . . It is well established that
the principles of fundamental justice in section 7 of the Charter are not
independent self-standing notions, and are to be considered only when it is
first demonstrated that an individual is being deprived of the right to life,
liberty or security of the person. As Justice Bastarache stated, on behalf of
the majority of the Supreme Court in Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44 at para 47, [2000]
2 SCR 307 [Blencoe]:
[…] before it is even possible to
address the issue of whether the respondent’s s. 7 rights were infringed in a
manner not in accordance with the principles of fundamental justice, one must
first establish that the interest in respect of which the respondent asserted
his claim falls within the ambit of s. 7.
[69]
Moreover, as Justice de Montigny points out at paragraph 40,
a finding of inadmissibility does not, in and of itself, engage an individual’s
section 7 interests, as confirmed by the Federal Court of Appeal in Poshteh,
above:
It has been held, time and again, that a
finding of inadmissibility does not, in and of itself, engage an individual’s section 7
interests (see, for example, Poshteh v Canada (MCI), 2005 FCA
85 at para 63, [2005] 3 FCR 487 [Poshteh]; Barrera v
Canada (MEI), [1993] 2 FC 3 at pp 15-16, 99 DLR (4th) 264.
Even if it is true that the Applicant, not being a refugee, could be deported
while he awaits the processing of his ministerial relief application, it would
still not be sufficient to trigger the application of section 7 rights
(citations omitted).
[70]
In fact, if we continue to follow the reasoning
of Justice de Montigny in Stables, “[i]t [is]
the risk of torture on removal, though, and not the fact of removal itself,
that engage the applicant’s section 7 interests: Stables
at para 42.
[71]
Indeed, more recently, the Federal Court of
Appeal confirmed in JP, above, that an inadmissibility hearing did not
engage section 7 of the Charter because the foreign national was not going
to be deported to a country that could subject him to a danger of torture. In
fact, it is only at a subsequent stage of the inadmissibility finding that section 7
of the Charter may be engaged: JP at para 125.
[72]
In Stables, the applicant was facing
removal to the United Kingdom. However, no evidence was offered in that matter
to establish that the applicant’s life, liberty and security were in danger
should he return to this country. Similarly, the applicant in the case at bar
has not adduced any evidence to demonstrate how his life, liberty and security
would be in danger should he return to Italy.
[73]
In Stables, Justice de Montigny also
dealt with the very broad application of section 37, noting that the
courts have upheld this interpretation because it is “consistent
with Parliament’s objective to ensure the security of Canadians”: paras 45-47.
[74]
Another point raised in Stables concerns
whether the inadmissibility process is consistent with the principles of
fundamental justice. Justice de Montigny reviews the various stages of the
process available to the applicant in that matter and concludes that the
process is indeed consistent with the principles of fundamental justice: para 56.
[75]
In the matter at bar, other steps in the
inadmissibility process under paragraph 37(1)(a) are available to
the applicant. As indicated by the respondent in his memorandum, despite the
inadmissibility finding, it remains open to the applicant to apply for a pre-removal
risk assessment [PRRA] or an exemption under section 42.1 of the IRPA.
Both avenues are reviewable by the Federal Court.
[76]
While it is true that subsection 25(1) of
the IRPA does not apply to a person found inadmissible under section 37,
it must be remembered that section 25 provides for a discretionary
exceptional remedy. It does not set out a right or a principle of fundamental
justice.
[77]
The Supreme Court held that “in determining the scope of principles of fundamental
justice as they apply to this case, the Court must look to the principles and
policies underlying immigration law. The most fundamental principle of
immigration law is that non-citizens do not have an unqualified right to enter or
remain in the country”: Canada (Minister of Employment and Immigration) v
Chiarelli, [1992] 1 SCR 711 at para 24, and Medovarski v
Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005]
2 SCR 539 at para 46.
[78]
It follows that Parliament has the right to
enact legislation that sets out the conditions to be fulfilled by non-citizens
wishing to enter and to remain in Canada. Public policy consideration may
outweigh humanitarian considerations.
[79]
For the reasons set out above, therefore, I do
not see how the wording of paragraph 37(1)(a) violates the applicant’s
section 7 rights.
[80]
Consequently, as in Stables, the
applicant’s argument regarding the constitutionality of paragraph 37(1)(a)
is rejected.
X.
Conclusion
[81]
The applicant did not demonstrate that his section 7
rights were breached because the case law clearly establishes that the
inadmissibility hearing alone cannot engage section 7 rights.
[82]
In the matter at bar, the evidence considered by
the ID was credible and compelling. It provided an objective basis for the ID’s
conclusion that there were reasonable grounds to believe that the applicant was
a member of a criminal organization and that he engaged in activity that was part
of a pattern of organized or planned criminal activity.
[83]
Regarding the delay, the applicant failed to
establish that he would suffer prejudice of such magnitude as to result in an
abuse of process. I note that the applicant is also inadmissible on grounds of
serious criminality under paragraph 36(1)(a) of the IRPA. This
finding was not disputed even though the question of unreasonable delay also
applies to it.
[84]
Unfortunately for the applicant, his actions led
to the inadmissibility finding. He was nonetheless able to enjoy the benefits
of living in Canada for almost 50 years.
[85]
In Prata v Minister of
Manpower & Immigration, [1976] 1 SCR 376, the Supreme
Court held that immigration to Canada is a privilege and not a right. Not being
a citizen, the applicant has no right to stay in Canada since he abused the
privilege this country granted him.
[86]
For all these reasons, the application for
judicial review is dismissed.
XI.
Certified questions
[87]
Under paragraph 74(d) of the IRPA, a
decision of the Federal Court may be appealed only if, in rendering judgment,
the judge certifies that a serious question of general importance is involved.
[88]
In Zhang v Canada (Citizenship and
Immigration), 2013 FCA 168, the Federal Court of Appeal reiterated the
test for certifying a question, writing as follows at paragraph 9:
It is trite law that to be certified, a question
must (i) be dispositive of the appeal and (ii) transcend the interests of the
immediate parties to the litigation, as well as contemplate issues of broad
significance or general importance. As a corollary, the question must also have
been raised and dealt with by the court below and it must arise from the case,
not from the Judge’s reasons (Canada (Minister of Citizenship and
Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S. (3d) 910
(F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (C.A.) at paragraphs
11-12; Varela v. Canada (Minister of Citizenship and Immigration),
2009 FCA 145, [2010] 1 F.C.R. 129 at paragraphs 28, 29 and
32).
[89]
Moreover, for a question to be certified, it
must not have already been determined: Huynh v Canada, [1995] 1 FC
633, [1994] FCJ No 1766 (QL); Oloumi v Canada (Citizenship and Immigration),
2012 FC 428 at para 55.
[90]
The applicant submitted the following questions
for certification:
(1)
Does paragraph 37(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27, infringe section 7 of
the Canadian Charter of Rights and Freedoms?
(2)
If so, is the infringement subject to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society, in accordance with section 1 of the Canadian
Charter of Rights and Freedoms?
(3)
Does the Immigration Division of the Immigration
and Refugee Board have the jurisdiction to dispose of a motion filed under the
Charter?
(4)
If so, does it have the jurisdiction to grant
relief under subsection 24(1) of the Canadian Charter of Rights and
Freedoms?
[91]
The Federal Court of Appeal has dealt with the
first two questions on at least two occasions, determining that an
inadmissibility finding does not engage section 7 rights: Poshteh,
above, and JP, above.
[92]
The third question was ruled on by the Supreme
Court in the Douglas, Cuddy Chicks and Tétreault-Gadoury
trilogy, where the Court concluded that administrative tribunals have
jurisdiction to determine Charter issues.
[93]
Having said that, I find the fourth question to
have merit as it transcends “the interests of the
immediate parties to the litigation”. I would, however, reword the
question so that it reads as follows:
Does the Immigration Division of the
Immigration and Refugee Board have the jurisdiction to grant a stay of
proceedings under subsection 24(1) of the Canadian Charter of Rights
and Freedoms in the context of an admissibility hearing following the
referral of a report prepared under subsection 44(1) of the IRPA?
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