Docket: IMM-3296-15
Citation:
2016 FC 1119
Ottawa, Ontario, October 6, 2016
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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CARMELO
BRUZZESE
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Applicant
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and
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MINISTER OF PUBLIC SAFETY &
EMERGENCY PREPAREDNESS, and
MINISTER OF CITIZENSHIP
& IMMIGRATION
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Respondents
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JUDGMENT AND REASONS
[1]
This application for judicial review challenges
a decision of the Immigration Division of the Immigration and Refugee Board
[the Board] by which the Applicant, Carmelo Bruzzese, was found inadmissible to
Canada under paragraph 37(1)(a) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] and ordered deported to Italy. The basis
for the Board’s decision was its finding that Mr. Bruzzese was a member of
an organized crime group, namely the Calabrian organization known as the “Ndrangheta”.
I.
Background
[2]
Mr. Bruzzese is a citizen of Italy. He
acquired Canadian permanent residency in 1974 and is married to a Canadian
citizen. Between 1977 and 1990 Mr. Bruzzese mostly lived in Italy,
returning on an occasional basis to Canada.
[3]
In 2008, Mr. Bruzzese was prosecuted in
Italy for being associated with a Sicilian criminal organization. He was
ultimately acquitted of that charge. However, in 2010 a warrant for Mr. Bruzzese’s
arrest was issued by the Italian authorities alleging that he was wanted in
relation to his alleged association with the Ndrangheta. That warrant made up a
significant part of the Minister of Public Safety and Emergency Preparedness’
case in the hearing before the Board. The English translation of the warrant
came to 910 pages. It contained sixteen intercepted conversations referring to Mr. Bruzzese’s
association with the Ndrangheta, including several verbatim discussions. Those
intercepts are summarized at pages 87 to 90 of the Board’s decision. Other
matters covered in the warrant included surveillance evidence depicting Mr. Bruzzese’s
attendance at meetings with other known members of the Ndrangheta. The Board
characterized the evidence implicating Mr. Bruzzese in the following way:
[345] In essence, then, the evidence does
not depict a depthless or superficial affiliation with the ‘Ndrangheta. It is
rather revealing and discloses that Mr. Bruzzese is a high ranking member
of the ‘Ndrangheta, the Capo, managing the Grotteria Locale, and making the
most important decisions.
[346] He participates in important events
of the group, like attending meetings to receive updates, to maintain
coordination and to understand the current state of the ‘Ndrangheta, attending
functions where ranks are conferred, and deliberating on the strategic steps to
take to open new Locali or to set up control bodies. He fosters relationships
with the other branches of the organization, and is involved in conflict
resolution and mediation.
[347] Although Mr. Bruzzese
testified that he was not a part of the ‘Ndrangheta, that he did not know what
it means, and that he did not know about its existence prior to his detention,
only hearing about it from the Minister when he was detained, the Tribunal is
satisfied that this is simply an expedient detachment for him.
[348] In reality, he possesses the
requisite mens rea for membership. The evidence shows that he is part of
the organizational structure of the ‘Ndrangheta and knows of its criminal
nature and criminal activities; at the very least, he must be deemed to know or
imputed with that knowledge, given his leadership role in the organization, and
the overwhelming criminal history of the group.
[Footnotes omitted.]
[4]
The Board’s reliance on the Italian arrest
warrant was based in large measure on the testimony given by Major Giuseppe De
Felice. Major De Felice is a high-ranking member of the Carabinieri. He has a
law degree and considerable expertise in the workings of Italian organized
crime. He was directly involved in the investigation of the Ndrangheta between
2008 and 2010, and, in that capacity, he was privy to the evidence that
concerned Mr. Bruzzese.
[5]
Major De Felice testified that in 2008 the
Carabinieri obtained judicial authorization to intercept the communications referenced
in the arrest warrant. He also described the surveillance that was applied to Mr. Bruzzese
and to other persons of interest. The Board summarized the process that was
followed for the judicial grant of the arrest warrant, describing it as “thorough”, “circumspect”,
“well-considered”, “insightful”
and “reliable”. On that basis the Board found
the warrant to be a trustworthy description of the Italian criminal case
against Mr. Bruzzese and afforded the warrant “significant
weight”. In considering the contents of the warrant the Board drew the
following conclusions:
[335] That said, the common thread
running through the intercepted conversations and the surveillance records is
that they reasonably project Mr. Bruzzese as a central figure in the ‘Ndrangheta
ranks and at the centre of its operations. Although the length of time he has
been in the group is rather unclear, the nature of his involvement and the
degree of his establishment in the group is well established by evidence.
...
[349] All of the information considered
demonstrates that Mr. Bruzzese integrally belongs to the ‘Ndrangheta. That
connection would satisfy that “institutional link” or “knowing participation”
in the group’s activities required for a finding of membership, that was
endorsed in Sinnajah v. Canada (M.C.I.). Consequently, the
Tribunal is satisfied that Mr. Bruzzese unreservedly meets the broad and
unrestricted test for membership in the organized crime group ‘Ndrangheta.
[Footnotes omitted.]
II.
Issues and Standard of Review
[6]
Mr. Bruzzese argues that he was deprived of
a fair hearing because the Board was biased and because some of its
interlocutory rulings left him unable to challenge and test the case against
him. In addition, Mr. Bruzzese contends that the Board erred by giving undue
weight to certain evidence and by making an unreasonable determination of
inadmissibility.
[7]
Mr. Bruzzese contends that the Board
deprived him of a fair hearing by refusing to order the production of the
Italian wiretap recordings. He also argues that the Board breached the duty of
fairness by compelling his testimony and by dismissing his motion to recuse in
the face of evidence of bias. He also asserts that the Board was unfair and
made a jurisdictional error by refusing to entertain an argument that the
inadmissibility case was, in reality, a disguised extradition (i.e. an abuse of
process). Finally, Mr. Bruzzese complains that the Board unfairly made
rulings without the benefit of counsel’s submissions and limited counsel’s
ability to cross-examine the Minister’s witnesses. All of these concerns, he
says, are matters of jurisdiction or procedural fairness and subject to the
standard of review of correctness.
[8]
Given that the Board considered all of these
issues and resolved them on their merits, I have serious reservations about
whether correctness is the applicable standard of review. In its interlocutory
rulings the Board was interpreting its home statute and applying its rules of
procedure in the context of the record before it. In my view the Board is owed
some deference in the exercise of its procedural jurisdiction subject, of
course, to the caveat that where such a ruling renders the process unfair, the
ultimate disposition is inherently unreasonable. Another way of asking the
question is whether any of the Board’s procedural rulings rendered the process
unfair in the sense of depriving Mr. Bruzzese of the right to know and
answer the case against him. If I am wrong about this, I am satisfied that the
Board correctly decided these issues and afforded a fair hearing to Mr. Bruzzese.
[9]
Mr. Bruzzese’s evidence-based arguments
are, of course, reviewable on the standard of reasonableness.
A.
Did the Board err by compelling testimony from Mr. Bruzzese?
[10]
Ms. Jackman argues that her client was
prejudiced by being compelled to testify because his credibility was
successfully impeached and then his evidence was used against him by the Board.
Left to his own devices, Ms. Jackman says, Mr. Bruzzese would not
have exposed himself to this risk.
[11]
There is not much doubt that Mr. Bruzzese did
himself no favours with some of the testimony he gave. For example, his
evidence that he knew nothing about the Ndrangheta despite his established
friendships with several of its high-ranking members was not believable. On
several other issues, as the Board duly noted, Mr. Bruzzese was evasive or
nonresponsive. The Board took particular note of Mr. Bruzzese’s claim
that, while he was a friend of the notorious Mafia leader, Vito Rizzuto, he
knew nothing at all about Mr. Rizzuto’s extensive criminal background. In
the main, though, his evidence amounted only to a bare denial of the Italian criminal
allegations.
[12]
But whether Mr. Bruzzese’s credibility was
successfully impeached or not, the simple fact that he was required to testify
against his interests before the Board is of no legal consequence. The very
point of compelling testimony in an administrative process is to obtain
relevant evidence. The process followed here is in the nature of an inquiry about
admissibility, carrying no penal consequences. Any detention that follows a
finding of inadmissibility will be limited to situations of perceived public
danger or where a flight risk is established, and any such detention is subject
to periodic administrative and judicial review.
[13]
What the Board did here was in conformity with
the law. Section 165 of the IRPA grants to the Board the powers and
authority of a Commissioner appointed under Part I of the Inquiries Act, RSC
1985, c I-11. The Board may also do any other thing it considers necessary to
provide a full and proper hearing. Section 4 of the Inquiries Act grants
to a Commissioner the power to summons any witness and to compel the witness to
testify under oath or affirmation. This statutory framework is sufficient to
permit the Board to compel testimony from the subject of an admissibility
hearing, at least to the extent that the predominant purpose is to advance a
lawful, legitimate goal. This point was made in Branch v British Columbia
Securities Commission, [1995] 2 S.C.R. 3 at para 35, 123 DLR (4th)
462:
35. Clearly, this purpose of the Act
justifies inquiries of limited scope. The Act aims to protect the public from
unscrupulous trading practices which may result in investors being defrauded.
It is designed to ensure that the public may rely on honest traders of good
repute able to carry out their business in a manner that does not harm the
market or society generally. An inquiry of this kind legitimately compels
testimony as the Act is concerned with the furtherance of a goal which is of substantial
public importance, namely, obtaining evidence to regulate the securities
industry. Often such inquiries result in proceedings which are essentially of a
civil nature. The inquiry is of the type permitted by our law as it serves an
obvious social utility. Hence, the predominant purpose of the inquiry is to
obtain the relevant evidence for the purpose of the instant proceedings, and not
to incriminate Branch and Levitt. More specifically, there is nothing in the
record at this stage to suggest that the purpose of the summonses in this case
is to obtain incriminating evidence against Branch and Levitt. Both orders of
the Commission and the summonses are in furtherance of the predominant purpose
of the inquiry to which we refer above. The proposed testimony thus falls to be
governed by the general rule applicable under the Charter, pursuant to which a
witness is compelled to testify, yet receives evidentiary immunity in return: S.
(R.J.), supra.
[14]
In Phillips v Nova Scotia, [1995] 2 SCR
97, 124 DLR (4th) 129, the Court considered the issue of the
compellability before a public inquiry of two persons who were simultaneously facing
criminal charges. Both proceedings arose out of a coal mine explosion at the Westray
Mine in Stellarton, Nova Scotia. The Court had no difficulty in holding that
the two accused were compellable before the inquiry notwithstanding the
potential for conflict between the two proceedings:
98 In oral argument before this
Court, the Attorney General of Nova Scotia acknowledged the risks in proceeding
immediately with a full inquiry. He nonetheless stated that his government
considered the immediate resumption of the Inquiry to be of such overriding
importance to the community that it is willing to accept the risk that the
criminal prosecutions may be adversely affected or even stayed as a result of
the Inquiry proceedings. The government is almost certainly better placed than
the courts to assess the need for and value of the Inquiry. It is best able to
calculate and weigh the risks and benefits to the public of proceeding with the
Inquiry. In the absence of demonstrated misconduct on the part of government,
such as a refusal to enforce the criminal law in a manner that amounts to a
flagrant impropriety, courts should not interfere with the choice it has made.
99 To put it another way, unless it
can be shown that the government is acting in bad faith, prior restraint of
government action in creating and proceeding with a public inquiry that is
within its jurisdiction will be rare. There is no evidence of bad faith or of a
refusal to enforce the criminal law in this case. The government of Nova
Scotia has appreciated and considered the possibility that Gerald Phillips and
Roger Parry may never be brought to trial, and there is nothing to indicate
that its decision should be reviewed by this Court. If the Inquiry were to be
held prior to the criminal trials by jury, it would be for the trial judge to
determine the appropriate remedy for the breach of any Charter rights
which the hearings might have occasioned.
100 To summarize, there can be no doubt
that the respondents Gerald Phillips and Roger Parry would be compellable
witnesses before the public Inquiry. They clearly meet all the requirements set
out in S. (R.J.) and in Branch. They are not being called to
testify in order to demonstrate their criminal guilt. Rather, the predominant
purpose of obtaining their evidence is to further the objectives of the Inquiry
which are of very significant public importance central to the nature and effectiveness
of the Inquiry.
101 Nonetheless, although Phillips and
Parry are compellable witnesses, there may be grounds for objecting to
individual questions posed to them which might go beyond the purposes of the
Inquiry. For the moment, however, the only prejudice which they stand to suffer
relates to the use of evidence derived from their testimony. As indicated in Branch,
this is not a sufficient ground for refusing to compel them.
[15]
In this case, unlike Branch and Phillips,
there was no collateral proceeding in Canada involving Mr. Bruzzese.
Therefore, no ulterior purpose could be served by attempting to elicit
incriminating testimony for use in some other proceeding.
[16]
Mr. Bruzzese’s reliance on the decision by
Justice Eleanor Dawson in Re Jaballah, 2010 FC 224, [2011] 3 FCR 155 is
misplaced. The statutory language that applies in security certificate cases
and the consequences for the interested person are very different from those
that apply here.
[17]
In the context of a case like this, much of the
relevant evidence will be known only to the interested person. To properly
carry out its mandate the Board must have the means to compel testimony and to
weigh it against other evidence. To allow a person like Mr. Bruzzese to
avoid giving testimony would be to potentially frustrate the legitimate
purposes of the Board’s inquiry. The fact that Mr. Bruzzese was not
believed by the Board is not a basis for concern. Indeed, the ability to test
this evidence is the very rationale for compelling it in the first place.
[18]
In finding Mr. Bruzzese to be compellable
the Board rendered a thoughtful and comprehensive decision that, in my view,
correctly resolved the issue before it (see Certified Tribunal Record [CTR],
Vol 1, pp 135-158).
B.
Did the Board Err by Declining to Order Further
Production of Evidence?
[19]
Mr. Bruzzese complains that the
Board infringed the duty of fairness by failing to order the Minister to seek
and, if successful, to produce the audio tapes of the wiretap intercepts that
underpinned the Italian arrest warrant.
[20]
I have no doubt that, in the context of an
admissibility hearing like this one, the Minister has a duty of disclosure.
Indeed, the Board did not hold otherwise, describing the obligation as follows:
[311] In light of all the circumstances
of this case, the Tribunal rendered an interlocutory decision essentially
declining to endorse Mr. Bruzzese’s expectation of fuller disclosure from
the Minister. Whilst recognizing that the Minister is obligated to provide to Mr. Bruzzese
adequate disclosure that makes clear the case to be met and the opportunity to
respond, the Tribunal was satisfied that, in this matter, the case to be met
had been amply made known to Mr. Bruzzese. The Tribunal did not consider
the absence of full intercepts as somehow attenuating or compromising his
ability to respond or as undermining the fairness of the proceedings to him.
[Footnotes omitted.]
[21]
In Canada v Harkat, 2014 SCC 37, [2014] 2
SCR 33 [Harkat], the Court discussed the disclosure requirement in the
context of a security certificate proceeding where only summaries of
intercepted communications were available. The Court held that disclosure will
be sufficient if it enables the interested party to know and meet the case
being asserted. Presumably, this also implies a duty of good faith in the sense
that the government cannot knowingly withhold evidence that could assist the
interested party. The Court’s discussion about reliance on evidentiary
summaries is particularly apt in this case:
[96] Thus, the question here is whether
the exclusion of the summaries is necessary to remedy the prejudice to Mr. Harkat’s
ability to know and meet the case against him, or to safeguard the integrity of
the justice system. In my view, it is not.
[97] The disclosure of the summaries in
an abridged version to Mr. Harkat and in an unredacted form to his special
advocates was sufficient to prevent significant prejudice to Mr. Harkat’s
ability to know and meet the case against him. It is true, as the Federal Court
of Appeal noted, that the destruction of the originals makes it impossible to
ascertain with complete certainty whether the summaries contain errors or
inaccuracies: para. 133. “An assessment of prejudice is problematic where, as
in this case, the relevant information has been irretrievably lost”: R. v.
Bero (2000), 137 O.A.C. 336, at para. 49. However, the impact of the loss
of evidence on trial fairness must be considered “in the context of the rest of
the evidence and the position taken by the defence”: R. v. J.G.B.
(2001), 139 O.A.C. 341, at para. 38.
[98] The destruction of the original
operational materials did not significantly prejudice Mr. Harkat’s ability
to know and meet the case against him. As Noël J. noted, reliable summaries of
the original materials pertaining to the intercepted conversations were
disclosed to Mr. Harkat. Mr. Harkat’s position was to deny the very
occurrence of most of those conversations rather than to challenge their
specifics. And the content of the summaries is corroborated by the overall
narrative of Mr. Harkat’s life which emerged during the proceedings: 2010
FC 1243, at paras. 66-67.
[99] Moreover, I am satisfied that the
admission of the summaries does not undermine the integrity of the justice
system. While the destruction of CSIS operational materials was a serious
breach of the duty to preserve evidence, it was not carried out for the purpose
of deliberately defeating the Minister’s obligation to disclose. It must also
be recognized that, prior to this Court’s holding in Charkaoui II, the
existence and scope of CSIS’s legal obligation to preserve operational
materials had not been definitively settled by the courts. It cannot be said
that CSIS’s application of policy OPS-217 evidenced a systematic disregard for
the law. Since the admission of the summaries would neither deny procedural
fairness to Mr. Harkat nor undermine the integrity of the justice system,
I conclude that Noël J. made no reviewable errors in refusing to exclude the
impugned summaries of intercepted conversations.
[22]
In Harkat, above, the Court also
discussed the Minister’s obligation to seek relevant evidence in the possession
of foreign government agencies in the context of ex parte proceedings
where candour and utmost good faith are required. The scope of this duty was
said to be the following:
[100] The special advocates argue that
duties of candour and utmost good faith required the ministers to make
extensive inquiries of foreign intelligence agencies for information and
evidence regarding several alleged terrorists with whom they claim that Mr. Harkat
had associated. They contend that the ministers failed to discharge these
duties. The courts below found that the ministers made reasonable efforts to
obtain information sought by the special advocates.
[101] In Ruby, this Court
recognized that duties of candour and utmost good faith apply when a party
relies upon evidence in ex parte proceedings: “The evidence presented
must be complete and thorough and no relevant information adverse to the
interest of that party may be withheld” (para. 27). The Federal Court added, in
Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, at para. 500, that
“[t]he duties of utmost good faith and candour imply that the party relying
upon the presentation of ex parte evidence will conduct a thorough
review of the information in its possession and make representations based on
all of the information including that which is unfavourable to their case.”
[102] The duties of candour and utmost
good faith require an ongoing effort to update, throughout the proceedings, the
information and evidence regarding the named person: see, for example, Almrei,
2009 FC 1263, at para. 500. The special advocates argue that, pursuant to these
duties, the ministers must send detailed requests to foreign intelligence
agencies. In their view, those requests must explain the context of security
certificate hearings, the purposes for which the information will be used, and
the consequences for the named person if the information is not provided.
[103] The position advocated by the
special advocates is tantamount to requiring the ministers to conduct an
investigation under the instructions of the special advocates. The ministers
have no general obligation to provide disclosure of evidence or information
that is beyond their control: R. v. Chaplin, [1995] 1 S.C.R. 727, at
para. 21; R. v. Stinchcombe, [1995] 1 S.C.R. 754, at para. 2. With
respect to evidence and information held by foreign intelligence agencies, the
ministers’ duty is to make reasonable efforts to obtain updates and provide
disclosure. What constitutes reasonable efforts will turn on the facts of each
case. In the present appeal, I agree with Noël J. that reasonable efforts were
made by the ministers: see 2010 FC 1243, Annex “A”, at paras. 6-7. The
ministers sent letters of request to the relevant foreign intelligence
agencies. The outcome of those requests may not have been satisfactory to the
special advocates, but this fact alone is not enough to conclude that the
efforts made by the ministers were insufficient.
[23]
It seems to me that, in the context of an inter
partes proceeding, the ability of the interested person to seek the
requested disclosure from a third party (in this case from the Italian
prosecuting authorities) is a factor the Board is entitled to consider in
determining the limits of the Minister’s corresponding obligation. Although the
evidentiary record is not entirely clear about the opportunities open to Mr. Bruzzese
to seek the recorded Italian intercepts, there was sufficient evidence to
support the Board’s conclusion that he had made no attempt to secure this
evidence through his Italian criminal counsel. Indeed, his counsel testified
that he had listened to the wiretaps and found the quality “not exactly the best” [see CTR, Vol 19, p 4135]. The
obvious inference is that the recordings were accessible to Mr. Bruzzese
but he elected not to obtain them for use before the Board. In this case the
Board found that the Italian arrest warrant was inherently reliable and very
detailed. The warrant was not solely based on intercepted communications; it also
included considerable surveillance evidence confirming Mr. Bruzzese’s
attendance at Ndrangheta meetings. The summaries of the intercepts were also
sufficiently particularized to permit a meaningful challenge.
[24]
Mr. Bruzzese’s stated purpose for seeking
the intercepted recordings was simply to test the fidelity of the summaries
contained in the Italian arrest warrant. He presented nothing to cast doubt on
the accuracy of the summaries. In the face of the Board’s thorough assessment of
the reliability of the content of the Italian arrest warrant, the idea that
there could be inconsistencies is largely a matter of speculation.
[25]
This interlocutory decision by the Board
involved the weighing of evidence and the exercise of discretion. The Board
understood that a proper balance was required. In these circumstances
exhaustive disclosure by the Minister was not necessary for Mr. Bruzzese
to answer the Minister’s case. The Minister is not, after all, required to
search out every scrap of relevant evidence that may be in the possession of a
foreign agency, particularly where what is produced is inherently reliable. The
Board’s decision was reasonable, fair and correct in law. Mr. Bruzzese was
not deprived of a meaningful opportunity to answer the case against him.
[26]
I would add to this that the record before me
indicates in a number of places that counsel for the Minister made an effort to
obtain the intercepted recordings but was unsuccessful. Although better
evidence on this point could have been produced, I am satisfied that, to the
extent that a higher duty of disclosure was required, it was fulfilled in
accordance with the principles expressed in Harkat, above.
C.
Was a Reasonable Apprehension of Bias made out?
[27]
Mr. Bruzzese alleges that a reasonable
apprehension of bias arises from the Board Member’s previous involvement with
his case. It is argued that, by hearing and dismissing an earlier detention
review, the Member had essentially made up her mind about Mr. Bruzzese’s
credibility and would not be seen to be objective in presiding over his
admissibility hearing. On an earlier motion Justice Yvan Roy declined to
entertain this argument and dismissed the motion.
[28]
The test for a finding of bias is not a matter
of controversy. The law was thoroughly canvassed by the Supreme Court in Yukon
Francophone School Board, Education Area #23 v Yukon (AG), 2015 SCC 25,
[2015] 2 S.C.R. 282, and captured in the following passage:
[20] The test for a reasonable
apprehension of bias is undisputed and was first articulated by this Court as
follows:
... what would an informed person,
viewing the matter realistically and practically – and having thought the
matter through – conclude. Would he think that it is more likely than not that
[the decision-maker], whether consciously or unconsciously, would not decide
fairly. [Citation omitted.]
(Committee for Justice and Liberty v.
National Energy Board, [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.
(dissenting))
[21] This test – what would a reasonable,
informed person think – has consistently been endorsed and clarified by this
Court: e.g., Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at
para. 60; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539, at para. 199; Miglin v. Miglin, [2003] 1 S.C.R. 303, at para. 26; Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
at para. 46; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per
Major J., at para. 31, per L'Heureux-Dubé and Mclachlin JJ., at para. 111, per
Cory J.; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, at
para. 45; R. v. Lippé, [1991] 2 S.C.R. 114, at p. 143; Valente
v. The Queen, [1985] 2 S.C.R. 673, at p. 684.
[22] The objective of the test is to
ensure not only the reality, but the appearance of a fair adjudicative process.
The issue of bias is thus inextricably linked to the need for impartiality. In
Valente, Le Dain J. connected the dots from an absence of bias to impartiality,
concluding "[i]mpartiality refers to a state of mind or attitude of the
tribunal in relation to the issues and the parties in a particular case"
and "connotes absence of bias, actual or perceived": p. 685.
Impartiality and the absence of the bias have developed as both legal and
ethical requirements. Judges are required - and expected - to approach every
case with impartiality and an open mind: see S. (R.D.), at para. 49, per
L'Heureux-Dubé and Mclachlin JJ.
[23] In Wewaykum, this Court confirmed
the requirement of impartial adjudication for maintaining public confidence in
the ability of a judge to be genuinely open:
... public confidence in our legal
system is rooted in the fundamental belief that those who adjudicate in law
must always do so without bias or prejudice and must be perceived to do so.
The essence of impartiality lies in
the requirement of the judge to approach the case to be adjudicated with an
open mind. [Emphasis in original; paras. 57-58.]
[29]
There is, of course, no presumption of bias by
the mere fact that an adjudicator sits in judgment over related matters: see Arthur
v Canada, [1993] 1 FC 94, [1992] FCJ No 1000 (CA) at paras 15-17. Something
more is required to establish a predisposition as to the issue to be decided in
the second proceeding. This necessarily involves a consideration of the
relationship or overlap of issues between the two proceedings and a review of
the procedural record to identify any indications of prejudgment.
[30]
There is very little in common between a
detention review and an admissibility hearing. The first is concerned with two
issues: does a person represent a future danger to the public or a flight risk.
Although these issues may relate to a person’s history of criminality, no final
determination of culpability is required. In contrast, an admissibility hearing
turns on findings of past associations or conduct, and not about predictions
for future behaviour.
[31]
A review of the detention review decision concerning
Mr. Bruzzese rendered by the Board Member indicates that, in maintaining
his detention, heavy reliance was placed on the prior detention review
decisions. The Member held that nothing substantive had been put to her “that would warrant a departure from those decisions”.
The Member explicitly acknowledged that the pending admissibility hearing had “yet to be determined”. Indeed, the Member clearly
distanced herself from the pending admissibility process with the following
disclaimer:
I will not be making any findings about your
guilt or complicity and I will not be making findings that you are inadmissible
to Canada, that is a matter for the admissibility hearing.
[32]
In summary, there is nothing about the Member’s
detention review decision that suggests a negative predisposition. The Member
was careful not to trench into admissibility considerations and made no
definitive pronouncements about Mr. Bruzzese’s credibility. On the record
before me there is nothing to support a finding of a reasonable apprehension of
bias or to suggest that the Board had closed its mind to the issues it was
required to adjudicate based on its earlier involvement.
[33]
Ms. Jackman also argues that a reasonable
apprehension of bias arises in this case based on the Board’s ostensible
imbalanced treatment and overt hostility to Mr. Bruzzese’s case and to his
counsel.
[34]
A review of the transcript does disclose that
the hearing before the Board was challenging for everyone involved and, at
times, unduly acrimonious. However, there is nothing in the record that comes
close to suggesting the Board had closed its mind to the issues it was required
to determine. Although a sense of frustration is evident on occasion from the
Board, it is mostly the result of some provocation from counsel. For example,
at one point counsel accused the Board of “not doing
anything all day”. This drew a pointed but not inappropriate rebuke from
the Board (see CTR, Vol 16, p 3422). In many other instances the Board found it
necessary to control interruptions by counsel or to deal with other troubling behavior.
The situation was of sufficient concern that the Board appropriately admonished
counsel at length during the hearing on June 26, 2014 (see CTR, Vol 15, pp
3130-3132). Another example of an inappropriate exchange by counsel can be
found at pages 3008 to 3011 of Volume 15 of the CTR, from the transcript of
June 24, 2014.
[35]
If Mr. Bruzzese is aggrieved by the Board’s
treatment of his counsel’s objections and the frequency with which they were
rejected, it is assuredly not because of a lack of even-handedness. Objections
are only as strong as the facts and the law will permit. On those occasions
where objections were dismissed by the Board there was ample basis for the
rulings.
[36]
The Board’s rejection of Mr. Bruzzese’s
bias argument is laid out at pages 10 to 18 of its decision, the conclusion of
which is set out below:
[51] Rendering decisions that are
unfavourable to a party is not evidence of bias. Neither is exercising proper
judicial control to bring decorum, structure and boundaries to the
Admissibility Hearing evidence of bias. In fact, if decision-makers were to
make unjustified rulings, or gloss over inappropriate circumstances, or somehow
endorse improper conduct before a hearing could be said to be free from bias,
that would gravely undermine the dispensation of justice and strengthen
improper actions by Counsel who can then selectively eliminate presiding Members
by their conduct.
[52] This Tribunal agrees with Mad.
Justice Boyd’s insightful statements made in Middlekamp v. Fraser
Valley Real Estate Board, when she was similarly plagued by the allegation
of bias and recusal:
I cannot accede to such an argument
since to do so, in my view, would establish a very dangerous precedent in these
courts. In effect, I would be inviting disgruntled, unhappy litigants or their
counsel to make whatever allegations they wished, in support of an application
for the judge to disqualify himself or herself. If the allegations failed to
provide a proper foundation for a finding of bias or a reasonable apprehension
of bias, the litigant could nevertheless take comfort in the knowledge that the
mere making of the allegations would, by their very nature, taint the process
and force the disqualification of the judge. This very danger was recognized by
Chief Justice McEachern, C.J.B.C. in G.W.L. Properties Limited v. W.R. Grace
& Company of Canada Ltd. (1992 CanLII 934 (BC CA), 74 BCLR (2d) 283
(BCCA) where he said:
“A reasonable
apprehension of bias will not usually arise unless there are legal grounds upon
which a judge should be disqualified. It is not quite as simple as that because
care must always be taken to insure that there is no appearance of unfairness.
That, however, does not permit the court to yield to every angry objection that
is voiced about the conduct of litigation. We hear so much angry objection
these days that we must be careful to ensure that important rights are not
sacrificed merely to satisfy the anxiety of those who seek to have their own
way at any cost or at any price…”
It is tempting for a trial judge, in
circumstances such as those at hand, to yield to the disgruntled litigant or to
his or her counsel. But to do so would be to ignore and abandon the rights of
the many litigants in this action, who have thus far participated in almost
four months of trial. My public duly is to sit and continue to sit fairly and
impartially and see this trial to its conclusion. I am confident that can be
done in an atmosphere of goodwill, of fairness and impartiality.
[53] Indeed, this Tribunal has no stake
in the outcome of these proceedings, but recognizes, and is mindful of, the
important rights at stake for the parties involved. It has therefore only been
interested in discharging its duty by fairly and impartially adjudicating this
matter and making a determination that is reasonably supported by the evidence.
[54] In conclusion, the Tribunal has
not aligned itself with either party in any way. The record simply does not
provide a foundation for a reasonably informed person well apprised of the
context and circumstances to have a reasonable apprehension of bias.
[Footnotes omitted.]
[37]
On my review of the transcript the Board’s
handling of the matters before it was beyond reproach and no arguable case for
bias was made out before the Board or before me.
D.
Did the Board Err by Declining to Entertain an
Abuse of Process Argument?
[38]
Mr. Bruzzese complains that the Board
unfairly deprived him of the opportunity to attack the Respondent Minister of
Public Safety and Emergency Preparedness’ (the Respondent) motives for
convening an admissibility hearing. According to this argument the Respondent’s
conduct amounted to an abuse of process intended to get around the inability to
extradite. This was an argument previously raised in this Court in support of a
production order in the context of a judicial review seeking declaratory relief
and a prohibition order. Justice Peter Annis declined to order production
because the underlying allegation of bad faith lacked an “air of reality”. The same can be said of the argument
now advanced to me: it amounts only to speculation.
[39]
In an interlocutory decision rendered on January
22, 2015, the Board declined to entertain Mr. Bruzzese’s abuse of process
challenge on the basis of an absence of jurisdiction. After a thorough review
of the case law, including some contradictory views, the Board concluded as
follows:
[37] Respectfully, this Tribunal
prefers the Rogan trajectory, and considers the abuse of process and disguised
extradition argument to be irrelevant to the present Admissibility Hearing; it
in fact constitutes an indirect or collateral challenge or attack on the
validity or legality of the report and referral, and this Tribunal finds that
it has no jurisdiction to look behind the report and the referral.
[38] As indicated above, subsection
162(1) of the IRPA explicitly empowers the Immigration Division to consider all
questions of law, including questions of jurisdiction. Although wide-ranging,
this power is nonetheless circumscribed where the legislator has, either
expressly or impliedly, removed that power from the Tribunal.
[39] In the context of Admissibility
Hearings, section 45 of the IRPA, by its wording, limits the powers of the
Immigration Division. It reads as follows:
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.
[40] The options, therefore, are quite
limited, and, practically, the only action that can be taken by the Immigration
Division at the conclusion of an Admissibility Hearing has to be under
paragraph 45(d) of the IRPA. There is no other way for the Immigration Division
to conclude or terminate the process. This provision does not grant the
Immigration Division the authority to make determinations about the bona fides
of processes undertaken by the CBSA, culminating in the referral of reports to
the Division.
[41] Whilst the Immigration Division
does retain some focused authority to prevent an abuse of its own process
within its own proceedings and context in order to ensure that Charter rights
and procedural rights are respected, its role cannot be overextended to include
the scrutiny and evaluation of steps taken under processes which are peripheral
to, or outside, its processes.
[42] The Admissibility Hearing, then,
is not the forum to delve into considerations and assessments relating to how
the report came to be, and/or what animated the report and the referral. It is
simply the mechanism to determine admissibility or inadmissibility based on the
totality of the evidence and, where justified and required, the mode to issue a
removal order. This result, the Federal Court concludes, is a foregone
conclusion.
…
[56] In conclusion, this Tribunal rules
that it does not have the authority to consider the abuse of process through
disguised extradition argument raised by Mr. Bruzzese. To consider that
argument would be to entertain a matter which has nothing to do with the
central question of whether or not Mr. Bruzzese is inadmissible to Canada
under subsection 37(1) of the IRPA. Additionally, to do so would be tantamount
to questioning the validity or legality of the inadmissibility report and the
related referral, something that the Immigration Division does not have the
authority to do.
[Emphasis in original.] [Footnotes
omitted.]
[40]
The Board’s reasons for declining to open up the
hearing to an attack on the Respondent’s motives are thoughtful, thorough and
in accordance with the weight of the applicable jurisprudence. Although the
Board framed the issue as jurisdictional this is still an issue that involves
the interpretation of the IRPA. It is, therefore, a ruling that is
entitled to deference. The fact that Mr. Bruzzese can point to some
competing legal authority does not render the decision unreasonable. If I am
wrong about the requirement for paying deference to this finding, I am also
satisfied that the Board was correct in ruling as it did.
E.
Did the Board Unfairly Restrict Mr. Bruzzese’s
Right to Answer the Case Against Him?
[41]
Mr. Bruzzese’s written argument asserts
that the Board made interlocutory rulings without the benefit of hearing his
counsel and limited his counsel’s right of cross-examination. It is, however,
noteworthy that these allegations are unsupported by any cited examples. My
review of the record validates the Minister’s point that Mr. Bruzzese had
the benefit of ample due process in the form of 280 pages of cross-examination
of Major De Felice spread over five sittings and with Mr. Bruzzese’s friendly
cross-examination taking up some 59 pages in the transcript.
F.
Was the Board’s decision unreasonable?
[42]
Mr. Bruzzese contends that the Board erred
in its attribution of weight to the evidence by accepting, at face value, Major
De Felice’s assurances of reliability. There is nothing in the decision to
support this argument. Indeed, the Board’s reasons reflect a sensitive, thoughtful
and careful assessment of the evidence leading to the reasonable conclusion
that Mr. Bruzzese was a member of the Ndrangheta and that the Minister had
met the requisite burden of proof.
[43]
For the foregoing reasons this application for
judicial review is dismissed.
[44]
Counsel for Mr. Bruzzese will have five
days to propose a certified question and counsel for the Minister will have three
days to respond.
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