Docket: IMM-1766-15
Citation: 2016 FC 962
Ottawa, Ontario, August 24, 2016
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN: |
B095 |
Applicant |
And |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION |
Respondent |
PUBLIC JUDGMENT AND REASONS
[1] This is an application by the Applicant challenging a decision of the Immigration Division of the Immigration and Refugee Board [Board] by which he was found to be inadmissible to Canada under paragraph 34(1)(f) of the Immigration Refugee and Protection Act, SC 2001, c 27 [IRPA]. This provision states that a foreign national is inadmissible to Canada based on a history of membership in, inter alia, a terrorist organization.
[2] The Applicant is a citizen of
Sri Lanka
. He was referred for an inadmissibility hearing on February 14, 2011 on the basis of a concern that he had been a member of a terrorist organization, namely the Liberation Tigers of Tamil Eelam [LTTE]. Following a hearing, the Immigration Division found the Applicant to be inadmissible. However, that decision was set aside on consent by Order of this Court issued on April 3, 2014.
[3] The decision now under review was rendered by the Board largely on the record of evidence developed during the first hearing. In particular, both parties waived the right to re-examine witnesses, relying instead on the transcript of testimony presented at the first hearing (see paras 5 to 8 of the Board’s reasons).
[4] In holding the Applicant inadmissible, the Board found that he was a “knowing participant”
in the LTTE and shared its goals. The Board also found that the Applicant was not acting under duress and was, instead, a “willing member of the LTTE, and likely for a period significantly longer than he is prepared to admit”
.
[5] The Applicant arrived in
Canada
as a passenger on the MV Sun Sea on August 13, 2010. He was initially held in custody during which time he was subjected to several Canadian Border Security Agency [CBSA] interviews. In those interviews, the Applicant acknowledged that he had worked in the financial section of the LTTE but claimed to have done so under duress.
[6] The Applicant admitted he was paid a monthly salary along with overtime and worked under an LTTE-assigned alias. In testimony, he described his enlistment and involvement with the LTTE in the following way:
Q. Okay earlier you had started telling me about how you had another problem with the LTTE it was when you were about — or asked to work for them, can you tell me a bit about that?
A. At the last stages of the war they asked the young people to come and — to fight for them. Little bit and people who have grown up they — they wanted them to work in the front line. Like digging bunkers and that kind of thing.
Q. How old were you at the time?
A. 42, 43.
Q. So did you fall under that category of young people at 42, 43.
A. No.
Q. Okay, so what happened?
A. They asked me to — they asked me to go to the bunker to the frontline to help, I refused and then they said there is — there is an opening or there is an opportunity to work in the office and I went and worked there.
Q. So they offered this to you?
A. I told them — that I’m scared to go to the front. Yeah they asked me to work in the office and then I worked there.
Q. So who asked you to first of all to go to work for them digging front lines, the LTTE that is?
A. There was one guy who was responsible for that area. The Puthukudiyruppu area. He used to call people and tell them you know I should go there.
Q. Do you remember his name?
A. Illamplrithi. I-l-l-a-m-p-a-r-i-t-h. Okay, illamplrithi, I-l-l-a-m-p-l-r-i-t-h-i. Illamplrithi.
Q. And what did he say to you?
A. Then after talking to me then he said that okay there is — you can go and talk to people who are responsible for finances and you go and talk to these people and you can work with them.
Q. Okay but sorry prior to him saying that you can talk to these people and work for finance how — what did he said when you were first approached?
A. They were forcing us — they were compelling us — he was compelling me to work for them but I refused and I—when I started crying and then I begged him not to send me then he did this for me.
Q. When you were crying and begging them not to work for them what did you say?
A. I told him that I’m scared them I may die there I’m so scared to go there; there is killing going on, soother then that if I can do something for you here I will do it. If I didn’t do anything for them they might put me in — in detention or in jail.
Q. How do you know this?
A. I know there were people who were detained or who were put in detention because of that.
Q. So you said if I can do something here I will do it. How did the — how did Illamplrithi respond?
A. He said okay and then he sent me to this finance section.
Q. And where was the finance section located?
A. Also in Puthukudiyruppu.
Q. And when you say it was the finance section, was it the finance section of the LTTE or a bank or what was it the finance section of?
A. Its an office of LTTE there a lot of people who were working there who were civilians.
Q. And what were you told that your duties would be?
A. That is the kind of place where they would distribute money or distribute wealth so whoever they had come here I had to give them hand over them money.
Q. And who were these people that would come for money?
A. They are those who had lost their husbands, parents of people who had died in the fight or the war, people who were affected by the Tsunami, and people who were below the poverty line.
Q. Where did the money come from that you were giving to these individuals?
A. There in — in the office there there’s one guy cashier, he gives us the money.
Q. Where does the cashier get the money from?
A. It comes from the top I don’t know.
Q. What do you mean top, I don’t know?
A. I don’t know, I worked in the distribution section of this office, but they might get it from Polinouchi (phonetic), or from other places I don’t know, or maybe from the bank.
Q. What was this place called?
A. Distribution section, or the actual translation is handing over section.
Q. Was this distribution section under the control of the LTTE?
A. Yes.
Q. Did the funds come from the LTTE?
A. Yes.
[7] In early 2009 the Applicant was displaced and, later that year, he relocated to an IDP camp in Vavuniya. From there he went to Colombo, finally leaving Sri Lanka on October 16, 2009. Ultimately he made his way to Canada among many other Sri Lankans aboard the MV Sun Sea.
[8] The Applicant raises a number of procedural and substantive issues which are listed below:
(a)What is the appropriate standard of review?
(b)Did the Board err in determining that the Applicant was a compellable witness?
(c)Did the Board err by requiring the Applicant to request a summons to compel the attendance of CBSA witnesses in lieu of requiring the Minister to present the witnesses for cross-examination?
(d)Did the Board err in its treatment of “confidential informant”
evidence?
(e)Did the Board err by failing to exclude certain evidence?
(f)Did the Board err in finding the Applicant to be a “member”
of the LTTE?
(g)Did the Board err in finding that the Applicant was not acting under duress?
(h)Do paragraphs 34(1)(c) and (f) of the IRPA infringe section 2, 7 or 15 of the Charter of Rights of Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]?
[9] Many of the issues raised on behalf of the Applicant are framed in procedural fairness terms. These include Board rulings concerning the Applicant’s compellability, the receipt of hearsay evidence obtained from undisclosed sources, the opportunity to cross-examine witnesses and the failure to exclude certain evidence.
[10] I am of the view that interlocutory rulings of the sort challenged by the Applicant must be assessed on the standard of reasonableness. They involve the exercise of a discretion afforded to the decision-maker under the home statute or under its rules of procedure. The Board is, to a very large extent, the master of its own procedure and is governed by a fairly relaxed set of evidentiary rules. When it makes these types of rulings, it is entitled to a degree of deference – albeit within the limits of what a reviewing Court will consider to be reasonable. An interlocutory procedural or evidentiary ruling that deprives a person of a fair hearing is inherently unreasonable. However, short of that threshold, the Board is entitled to deference over the rulings it makes at least when there is a factual or evidentiary aspect to the determination: see Satheesan v
Canada
(Public Safety and Emergency Preparedness), 2013 FC 346 at paras 36-37.
[11] The procedural and evidentiary rulings made by the Board in this case are not unlike those recently considered by the Supreme Court in Commission scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] SCJ No 8. That appeal arose from a labour dispute where the arbitrator ruled that the members of the executive committee who effected the termination of an employee could be cross-examined about their in camera deliberations. The Court held that deference was owed, in part, to preserve the expeditious, effective and specialized dispute settlement method that had been engaged [see para 68]. The issue was also not one of central importance to the legal system that was outside of the decision-maker’s area of expertise [see para 37].
[12] It strikes me that the procedural issues raised by counsel for the Applicant fall squarely within the above analysis and, similarly, are reviewable on the standard of reasonableness. However, if I am wrong on that point, I am also satisfied that the Board correctly decided the procedural and evidentiary matters that have been challenged by the Applicant.
[13] The remaining issues raised by the Applicant involve the Board’s assessment of the evidence and those are indisputably assessed on the reasonableness standard: See Kanagendren v Canada (MCI), 2015 FCA 86; [2015] FCJ No 382 at para 11.
[14] The Applicant argued before the Board that he was not a compellable witness and should be excluded from testifying based on procedural fairness grounds. This was a strange argument in the face of the Applicant’s assertion that, notwithstanding his admitted LTTE employment, he was not a willing member of that organization. How the Applicant intended to advance a plausible argument of duress and to contest the evidence of his LTTE involvement without testifying was left unstated before the Board and before me. Indeed, no argument was advanced to illustrate how the Applicant’s testimony, whether compelled or not, gave rise to some form of prejudice or otherwise introduced unfairness to the process. In any event, the argument that a breach of fairness occurred or that the Applicant’s section 7 Charter rights were violated when the Board compelled his testimony has no legal foundation and the Board was correct to reject it.
[15] The Applicant relies heavily on the decision of Justice Eleanor R. Dawson in Jaballah (Re), 2010 FC 224, [2010] FCJ No. 257. The Board distinguished the Jaballah decision on the basis that it turned on unique statutory language applicable in security certificate cases. According to the Board, it was in that context that Justice Dawson found Mr. Jaballah not to be compellable.
[16] I agree with the Board that an admissibility hearing does not engage the same considerations or interests that apply in a security certificate case where immediate liberty interests are at stake.
[17] Outside the criminal sphere, the state may be prevented from compelling a person to testify but only in very limited circumstances. In the civil or administrative context, unless statutorily proscribed, interested parties are almost always compellable. The common law presumption favouring compellability is only displaced by statute or where the state is attempting to use an administrative process as a substitute for what is, in truth, a form of criminal investigation or discovery or is otherwise acting in bad faith.
[18] In Phillips v
Nova Scotia
, [1995] 2 S.C.R. 97, [1995] SCJ No 36, the Court considered the problem of two persons facing serious Criminal Code offences who were, among others, simultaneously material witnesses in a provincial public inquiry. Notwithstanding the potential conflict between two processes, the Court recognized that both accused were compellable before the inquiry:
110 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.
111 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.
[19] In this situation, the testimony elicited from the Applicant was properly related to the Board’s statutory mandate to determine his admissibility. The Board was required to enquire into the evidence relevant to that issue. There is no plausible suggestion that the Applicant’s testimony was being obtained to serve some illegitimate collateral purpose in
Canada
or elsewhere.
[20] In Engel v Canada, 75 FTR 151, aff’d 94 FTR 172 (FCA), 29 Imm. LR (2d) 234, Justice Barry L. Strayer dealt with the issue of compellability in the context of an admissibility hearing. Justice Strayer could not identify a principle of fundamental justice that would be violated by compelling testimony from the interested party. He noted that the process was purely civil in nature, uncoloured by any other collateral purpose. That view is equally valid in this case.
[21] In my view the Board’s analysis of its statutory powers to compel testimony from the Applicant, as set out below, is both correct in law and reasonable:
[20] The legislative provisions of the IRPA are informed by its objectives. Specifically, the objectives include the protection of the safety and security of
Canada
. These objectives also include applicants for refugee protection.
[21] To meet these objectives, specific powers are given to a member of the Immigration Division as set out in s. 165 IRPA. Part I of the Inquiries Act speaks directly to the issue witnesses, and the authority vested in a member to compel a witness to testify. I am satisfied that both the IRPA and the Inquiries Act give me the legislative authority, in keeping with the objectives of the IRPA, to compel [the Applicant] to testify at his admissibility hearing. This position, in my view, is reinforced by s. l27(c) of IRPA, which makes it an offence to refuse to answer questions at a proceeding under this Act. The legislators saw fit to make it an offence for a person to refuse to answer questions at an admissibility hearing (i.e., proceeding under this Act). Therefore, it is reasonable to conclude that the person concerned at an admissibility hearing is a compellable witness.
[Footnotes omitted.]
[22] The statutory language applicable to an admissibility hearing is very different from the language that was considered by Justice Dawson in Jaballah, above, and it supports the Board’s finding of compellability. An admissibility hearing is, after all, a form of inquiry. It carries no penal consequences. To appropriately carry out its mandate, the Board must be able to compel testimony, particularly from the person most likely to have the facts. To allow otherwise would be to frustrate the very purposes of the Board’s inquiry. In the result, no breach of fairness occurred by compelling the Applicant to testify and he suffered no unlawful prejudice by having done so.
[23] The Applicant argues that the Board erred by relying on incriminating hearsay evidence obtained by the CBSA from confidential sources. In the absence of a confidential source privilege, this evidence, he says, should either have been excluded from consideration or the names of the sources disclosed by the Minister.
[24] Over the Applicant’s objections, the Board received this evidence but with some reservations going to weight. The Board correctly observed that, under its relaxed rules of procedure, it was entitled to receive hearsay evidence. By its very nature, hearsay evidence is difficult to test for reliability. Nevertheless, the Applicant was extended the opportunity to question the CBSA officers who took the impugned statements and his counsel declined the offer. Furthermore, the Board independently assessed the reliability of this evidence and, in the end, only attached “some weight”
to it. This reliance was expressly limited to the Applicant’s LTTE-assigned alias which one source had disclosed and which the Applicant then belatedly acknowledged. The Board also noted that some of the evidence provided by one of the confidential sources was given spontaneously upon being shown only the Applicant’s photograph. This was accepted by the Board as a marker of reliability.
[25] In my view, the Board did not err by receiving and weighing this evidence. The Board is not bound by the strict rules of evidence. It can rely upon hearsay notwithstanding the difficulties facing an applicant who would, in many cases, wish to directly impeach the source.
[26] The Board recognized the potential frailties of this type of evidence and appropriately gave it limited weight. The Board’s approach was reasonable and no breach of fairness occurred when this evidence was admitted.
[27] The Applicant complains that he was denied the opportunity to effectively cross-examine the CBSA officers who prepared declarations concerning their interviews with him. This argument was constructed on a non-existent factual platform and has no merit.
[28] Counsel for the Minister agreed to make the CBSA witnesses available to testify by videoconference. The Board advised counsel that a summons could be requested to facilitate the process. Counsel objected to being “compelled”
to call the witnesses as part of the Applicant’s case. In the result counsel declined the Board’s offer. The Board described the impasse as follows:
[31] Counsel’s interest in questioning the CBSA officers was two-fold. Counsel submitted that the person concerned’s Charter rights were breached by the manner in which these interviews were conducted, and on that basis the evidence should be excluded. She sought to elicit testimony on how the interviews were conducted, with a view to any potential Charter breach. Counsel also sought to elicit testimony on the content of the documents, in the event that there was some dispute as to the accuracy of the content.
[32] In the end, Counsel chose not to seek a summons, and to waive her right to cross-examine the officers regarding the conduct of the interviews. Counsel argued, instead, that the person concerned could testify to the issue. In fact, Counsel further argued that once the person concerned testified on issues relating to the admissibility of the Minister’s evidence, the Minister should not be allowed to call the officers to testify on the issue. At the same time, Counsel did reserve the right to have the officers called as witnesses to answer to the accuracy of the content of the notes/statutory declarations.
[33] During the course of [the Applicant]’s examination by the Minister regarding his activities in Sri Lanka, Counsel stated for the record that the information contained in the interview notes/statutory declarations were an accurate reflection of the information provided by the person concerned to CBSA officers. She further stated that they are a true depiction of [the Applicant]’s history. I am satisfied, therefore, that further testimony from the officers in regard to the content of the notes and statutory declarations would be redundant.
[34] In summary, I find that the person concerned does have a right to cross-examine the authors of the interview notes and statutory declarations. The Minister was prepared to make the witnesses available. However, I also find that Counsel chose to waive that right by withdrawing her application for a summons.
[Emphasis added.]
[29] No breach of fairness occurred in these circumstances. Counsel for the Applicant could have easily facilitated the attendance of these witnesses for cross-examination and she made a strategic decision not to do so. This complaint is all the more perplexing given counsel’s stipulation that the recorded content of the CBSA interviews of the Applicant was truthful and accurate (see transcript of hearing of October 25, 2012 at p 40).
[30] The Board found as a fact that the LTTE was a terrorist organization as envisaged by paragraphs 34(1)(c) and (f) of the IRPA. The Applicant says this finding was made without any analysis and was simply presumed. This assertion is both surprising and wrong. It is surprising because, as the Board noted, the Applicant did not attempt to prove otherwise. Indeed, he alleged that he had been victimized by the LTTE through beatings and detention and only provided assistance under duress. The argument is wrong because the Board had before it ample evidence of the LTTE’s terrorist activities which it summarized as follows:
[75] The LTTE emerged as an organization in May 1976, under the leadership of Vellupillai Prabhakaran, out of an earlier militant Tamil student movement. In the quest for a separate state for ethnic Tamils, the LTTE embarked on a campaign of terror. Specific terrorist acts attributed to the LTTE include but are not limited to suicide bombings, assassination of world leaders and prominent government officials, forcible military recruitment of children, illegal activities abroad such as credit card fraud, extortion, human trafficking and money laundering to acquire funds, arms smuggling, association with other terrorist organizations, piracy, deliberate targeting of civilians, ethnic cleansing, attacks meant to disrupt civilian populations, and torture and execution. The LTTE is currently a listed entity.
[76] In view of the foregoing, I find that the specific activities in which the LTTE has engaged support the view that the LTTE is an organization that has engaged in terrorism. There is clear indication that the LTTE has engaged in acts intended to cause death or serious bodily injury to civilians, and that the purpose of such acts was to intimidate the population and to compel the government of
Sri Lanka
to grant the Tamils a separate homeland. Therefore, I am satisfied that there are reasonable grounds to believe that the LITE is a terrorist organization envisaged in paragraph 34(l)(c) and (f) of IRPA.
[Footnotes omitted.]
[31] This was the only reasonable interpretation open to the Board on the record and its finding that the LTTE is a terrorist organization is unimpeachable.
E. Does the Scope of “membership”
Described in Paragraph 34(1)(f) Violate Sections 2, 7 and 15 of the Charter?
[32] The Applicant asserts that, with the narrowing of the scope of Ministerial relief under the IRPA and loss of recourse to Humanitarian and Compassionate [H & C] relief, subsection 34(1) is no longer Charter compliant. According to this argument, in the absence of recourse to meaningful discretionary relief, the reach of subsection 34(1) is overly broad, disproportionate and arbitrary and its application to this case violates the Applicant’s section 7 Charter interests. This argument has been expressly rejected in a number of previous cases and has no merit.
[33] It bears remembering that this judicial review concerns an inadmissibility finding. It is not a challenge to the exercise of ministerial discretion under section 42.1 or to some other decision on which the Applicant’s freedom or refoulement would be in issue.
[34] In B010 v Canada, 2015 SCC 58, [2015] 3 S.C.R. 704, the Court considered and rejected the same argument at paras 74-75:
[74] The appellants argue in the alternative that s. 37(1)(b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers. As a result, they submit that s. 37(1)(b) is of no force or effect under s. 52(1) of the Constitution Act, 1982, to the extent it catches these groups. I have concluded that the appellants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). Therefore, I find it unnecessary to consider the appellants’ constitutional challenge.
[75] The argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to
Canada
under s. 37(1). This Court recently held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA.
Also see Posteh v Canada, 2005 FCA 85; [2005] 3 FCR 487 at paras 62-63, JP v Canada, 2013 FCA 262; 20 Imm LR (4th) 199 at paras 117-125.
[35] While an inadmissibility finding may give rise to significant inconveniences, its effect is not to deport to torture or to automatically trigger a detention – decisions that could engage section 7 of the Charter.
[36] The Applicant’s sections 2 and 15 Charter arguments also have no merit. The Applicant’s rights of free expression, association and political opinion are not breached by the application of section 34(1) of the IRPA.
[37] The Board’s analysis of these issues bears repeating:
SECTION 2
[121] The Courts have found that the Charter does not extend a constitutional right to belong to or participate in the affairs of organizations that engage in violence. I have found [the Applicant]’s evidence is not credible that he was forced to assist the LTTE. In addition, even if [the Applicant] did not participate in any acts of violence for the LTTE, and his participation was limited to activities on behalf of the civil administration of the LTTE, nevertheless, he participated in the affairs of an organization that has engaged in acts of terrorism. The civil administration does not exist separate and apart from the LTTE as a whole. The civil administration, and its concomitant ideology that violence and acts of terrorism are a means to an end, is part of the whole and subject to the same overriding authority of the whole.
[122] I find that [the Applicant] has not made out a case that his rights under s.2 of the Charter have been violated.
SECTION 15
[123] In light of the nature of the LTTE, I do not find counsel’s argument persuasive that [the Applicant]’s s.l5 Charter rights are infringed by ethnic and racial identity attached to his political opinion as an individual who believes in and supports Tamil self-determination. Equal protection before the law without discrimination does not extend to terrorist organizations, even if their political orientation is ethnically or racially based. In addition, the Court found in Khalil and Al Yamani that s. 34(1)(f) does not offend s. 15 of the Charter.
[Footnotes omitted.]
[38] The law on these issues is well-settled and the Board’s analysis cannot be faulted. On this issue, I share the views of Justice Yves de Montigny in Stables v Canada (MCI), 2011 FC 1319, 400 FTR 135 (Eng.), where he held:
[33] It is not in dispute that freedom of expression does not protect expressive activity that takes the form of violence. Violence or criminal activity do not involve any of the recognized rationales underlying the constitutional protection of freedom of expression, namely its role as an instrument of democratic government, of truth and of personal fulfilment. Similarly, freedom of association has been found to encompass only lawful activities and cannot protect a person who chooses to belong to a criminal organization. As the Supreme Court stated in Suresh v
Canada
, above, at para 107:
It is established that s. 2 of the Charter does not protect expressive or associational activities that constitute violence: Keegstra, supra. This Court has, it is true, given a broad interpretation to freedom of expression, extending it, for example, to hate speech and perhaps even threats of violence: Keegstra; R. v. Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain that the restriction of such expression may be justified under s. 1 of the Charter: see Keegstra, at pp. 732-733. The effect of s. 2(b) and the justification analysis under s. 1 of the Charter suggest that expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the Charter.
…
[37] The Applicant has not even tried to challenge this finding, let alone endeavour to demonstrate that it is unreasonable. In those circumstances, it cannot seriously and credibly be contended that section 37 violates the Applicant’s freedoms of expression and association, or that section 2 protects his right to join the Hells Angels, given the violent and criminal activities of that organization. Nor can the Applicant claim that he was an innocent member of that organization. This is not a case where the Applicant did not know the nature of the organization until it was too late – either he did not care or chose to be wilfully blind to its activities. Clearly, the framers of the Charter could not have intended that the Applicant’s membership in the Hells Angels could be protected through his freedom of association and expression, despite the overwhelming criminal history of the organization.
Also see Khalil v Canada, 2007 FC 923, [2007] FCJ No 1221 at paras 300-329; Al Yamani v Canada, 2006 FC 1457, [2006] FCJ No 1826 at paras 51-57, and Najafi v Canada, 2013 FC 876, 438 FTR 135 (Eng) at para 89.
[39] In conclusion, none of the Applicant’s Charter rights were infringed by the Board’s approach to the membership issue.
[40] The Applicant asserts several errors by the Board in its acceptance of evidence that, he says, should have been excluded. He complains that the Board acted unfairly by allowing the Minister to introduce notes of CBSA interviews without providing full transcripts. He also maintains that his right to counsel was compromised on a number of occasions such that the derived statements ought to have been excluded. These arguments have no merit.
[41] The Board dealt with the transcript issue in the following way:
[54] Counsel submits that the interview notes and statutory declarations should be excluded because they are not in the form of a transcript (i.e., verbatim record of recorded interviews with the person concerned). The Minister has chosen to submit evidence of the interviews in the form of notes and statutory declarations. The form in which the evidence is provided, in my view, does not render the evidence inadmissible. Counsel is in receipt of the entirety of the recorded interview and was free to submit her own transcripts if she wished to challenge the accuracy of the content. Counsel did not, in fact, argue that the content was inaccurate. Counsel took no issue with the substance of the evidence, simply its form. A blanket objection to the form in which evidence is presented, in my view, is insufficient to sustain the argument that the evidence is, thereby, inadmissible.
[Footnotes omitted.]
[42] This was an entirely reasonable ruling in the face of the Applicant’s stipulation that the content of the notes was accurate and considering the Applicant’s possession of the interview recordings. If there were any inconsistencies it was open to the Applicant to play the recordings back to the Board in whole or in part. As counsel for the Applicant conceded at paragraph 35 of the Applicant’s Memorandum of Fact and Law… “it was ultimately fairer to the Applicant to rely on the notes, which were admitted to, rather than be re-examined on the content of his interviews with CBSA given the consequent problem of the passage of time and testimony obtained through an interpreter”
. In short, the Applicant, through his counsel, made a strategic decision not to introduce the supposedly better evidence and he accepted the reliability of what the Minister tendered. It is disingenuous to subsequently complain that the Board acted unfairly by ruling as it did.
[43] The Applicant’s complaint that he was, at times, denied the right to counsel was rejected by the Board as factually untenable. In my view that was a reasonable finding in the face of the many established occasions when counsel was provided to assist the Applicant. As the Board noted and as the record discloses, the Applicant consulted with three legal counsel concerning the execution of a consent to release UNHCR information and had counsel for his several detention reviews (some of which preceded his CBSA interviews). On the strength of this regular access to counsel, the Board made the following finding:
[62] The person concerned was already in detention for some time before these interviews commenced, and remained in detention throughout the course of the interviews. He clearly had frequent and regular access to counsel. He exercised his right to counsel for those detention reviews. He sought the advice of counsel on matters outside those reviews (i.e., the UNHCR waiver). Counsel, as a topic of conversation, arose at the start of every interview. The notes of the first interview reference the person concerned acknowledging his right to counsel.
[63] I am persuaded that the person concerned was advised of his right to counsel for the purpose of the interviews with CBSA. Such is evident at the commencement of the first interview on 1 September 2010. It then becomes his obligation to exercise that right as he see fit. [the Applicant] is a mature, educated man who is also conversant in English. Regardless of what others may tell him about the trustworthiness or availability of lawyers, he is capable of thinking for himself. If [the Applicant] chooses or does not choose to invoke his rights regarding counsel, for whatever reason, that is his decision.
[64] I find that [the Applicant]’s rights under s. 10(b) of the Charter were engaged with respect to these interviews with CBSA officials, but that they were not violated. Therefore, the interview notes and statutory declarations contained in Exhibit #1 are admissible to this proceeding.
[Footnotes omitted.]
[44] This was an evidence-based finding that was reasonably available to the Board. The finding is not open to challenge on judicial review based on vague assertions that assigned counsel were inadequate to the task, that the Applicant felt pressure to go along or that the interpreters misrepresented the process. As the Board observed, the Applicant was aware of and acknowledged his right to counsel for his CBSA interviews and chose not to take up that option. There is nothing in the record to undermine the Board’s finding that the Applicant’s right to counsel, to the extent that he enjoyed that right, was fully respected.
[45] The Applicant also contends that the Board’s finding of his “membership”
in the LTTE was unreasonable because it was based on an erroneous credibility assessment and lacked “the necessary level of engagement with the evidence”
. It is argued, in particular, that the Board failed to adequately consider the Applicant’s limited administrative role in supporting, under duress, what was a de facto LTTE government offering state services to civilians.
[46] The legal errors asserted by the Applicant concerning the Board’s membership assessment are set out more fully in paragraph 60 of his Further Memorandum:
60. The Applicant submits that the ID’s membership finding was made in error, and that meaning of “member” must have limits: applying principles of statutory interpretation leads to a conclusion that “proxy” membership extends the meaning beyond what Parliament intended. The Applicant maintains that the test for determining membership must involve an analysis of his own relationship to the terrorist organization, which was lacking in this decision. The Member failed to identify a single way in which [the Applicant] had “joined” the LTTE or contributed in any way, much less in a significant way, to its wrongful purposes. Nothing in the statutory scheme requires or permits interpretive expansion beyond the ordinary meaning of ‘member’. Should this Court find otherwise, the Applicant submits that the provision is in breach of s. 7 of the Charter, as set out below.
[Footnotes omitted.]
[47] These criticisms are unfounded. The Board clearly understood that the Applicant’s membership status had to be determined on the strength of his circumstances including his intentions, the degree and length of his involvement with the LTTE, and his level of commitment to the LTTE and its objectives. Minimal or marginal activities were said to be insufficient and coercion, presumably falling short of duress, was recognized as a relevant consideration (see para 85 of the Board’s reasons).
[48] At paragraph 85 of its reasons the Board correctly identified the above factors along with the applicable legal authorities. The Board also found that the LTTE was a monolithic organization with a top-down chain-of-command. Accordingly, the willing provision of service to any part of the LTTE was to support its ideology and methods. On this issue, it is worth noting the Applicant’s testimony that the LTTE conscripted his administrative assistance in lieu of a combat role. This was an acknowledgement that there was no apparent separation between the administrative and the combat functions of the LTTE. It is clear from the Board’s analysis of the membership issue the Applicant’s exculpatory testimony was rejected largely on credibility grounds. Among other things, the Board identified the following credibility concerns:
(a)The Applicant denied any association to the LTTE and only admitted his involvement when confronted with CBSA intelligence;
(b)The Applicant initially denied that his wife had some involvement with the LTTE but later acknowledged that she was paid by the LTTE to teach school;
(c)In the face of country condition reports, the Board did not accept the Applicant’s evidence that the LTTE was, for many years, indifferent to the neutrality of his extended family. The Applicant was living in an LTTE controlled area (at one point opposite and LTTE armed camp) and it was not plausible that he and his family would remain virtually untouched for decades;
(d)The Applicant gave inconsistent evidence about an incident where the LTTE killed his goat. The inconsistency is reflected in the hearing transcript from October 25, 2012 during the following exchange:
Q. I’m just going to bring you back to the incident about your goat where you had that incident with the LTT’E. When they shot your goat and you approached them and you said, why did you shoot my goat and they said, oh it was an accident, did anything else happen?
A. Oh I forgot to tell you at that time the kept — they kept me in custody for three days. They kept me and beat me for three days and after they told me they’d release me.
Q. Any reason why you would forget something like that; the fact that you were detained and beaten?
A. I was not beaten, I was detained. I was not beaten.
(e)The Applicant had an oddly inconsistent employment history. Initially he claimed to be a teacher and later he said his principal employment was as a farmer. Nevertheless, his Claim For Refugee Protection form contained no reference to farming and his UNHCR form listed his occupation as an accountant (see Application Record at p 58 and p 190).This caused the Board to believe that he had not been candid about his activities in Sri Lanka;
(f)The Applicant initially denied being assigned to LTTE of alias of “Manimaran”
. Only when he was confronted with contrary evidence obtained from a confidential source did he admit the truth of the allegation.
[49] The Board found the Applicant not to be credible. That was a reasonable conclusion based, as it was, on the above-noted testimonial deficiencies. The Applicant denied any association with the LTTE and only recanted after he was confronted by contrary information developed by the CBSA. This was a material misrepresentation that was on its own sufficient to support the Board’s credibility assessment.
[50] The fact the Applicant gave an excuse for lying to the CBSA for more than a year did not mean the Board had to accept it. Persons who misrepresent their histories to Canadian immigration authorities do so at considerable risk to their credibility. If the Applicant was wrongly informed about his legal obligations, he had ample opportunity to seek more appropriate advice on the several early occasions he was afforded legal representation. On this record, it was open to the Board to conclude the Applicant lied to the CBSA in the initial hope his LTTE involvement would never be brought to light. It was also reasonable for the Board to discount the Applicant’s subsequent explanations as an attempt to minimize the extent of his LTTE engagement. Further, having regard for the Board’s overall credibility assessment, there was no requirement for it to address every exculpatory explanation the Applicant gave.
[51] In addition, the Board noted the Applicant was a salaried employee of the LTTE and, on one occasion, had attempted to negotiate a higher salary. He was relieved of combat duty and was assigned a working alias. The Applicant’s initial statement to the UNHCR stated only that he “worked for wages with LTTE as a counsellor and cashier”
for which he had been beaten by the Sri Lankan army. No mention was made of forced employment or a lack of commitment to the LTTE.
[52] The Board conducted a thorough review of the relevant evidence and concluded its analysis as follows:
[99] For these reasons, I find that [the Applicant’s] claim of minimal and forced involvement with the LTTE is not credible. It is more likely that [the Applicant] shared the goals of the LTTE and was a knowing participant in that organization. As such, I am satisfied that he was a member of the LTTE, a terrorist organization.
[53] Against this record, I can identify no error in the Board’s approach to the membership issue and, in particular, with its rejection of the Applicant’s claim of minimal involvement with the LTTE.
[54] The Applicant’s challenge to the Board’s duress finding is limited to the following:
47. To the extent that the Member made flawed credibility findings, the Applicant submits that her findings on duress cannot be permitted to stand.
[55] As discussed above, I do not accept the argument that the Board made any flawed credibility findings. For the reasons I have given concerning the Board’s membership analysis, the Applicant’s challenge to the Board’s duress finding is rejected.
[56] The Applicant complains that it was unfair for the Board to make adverse credibility findings without the benefit of hearing his direct testimony. This point is seemingly inconsistent with the argument that the Board had no right to compel the Applicant’s testimony. This complaint is further unjustified because the Applicant agreed to proceed without the need to re-testify. The Board had the evidentiary record from the first hearing including the full transcripts of the Applicant’s testimony. The credibility issues identified by the Board were there to be seen and addressed. The Applicant was free to testify again and elected not to do so. Again, this was a strategic choice that presumably had some advantages; but having made the choice the Applicant must live with the consequences including the potential disadvantages it created.
[57] For the foregoing reasons, this application is dismissed.
[58] The Applicant proposes the following question for certification:
Does the current wording of s. 42.1 of the Immigration and Refugee Protection Act restrict the Minister’s discretion to grant an exemption from s. 34(1)(f) of the Act in such a manner that renders s. 34(1)(f) to be in breach of s. 2(b) and/or s. 2(d), and/or s. 7, and/or s. 15(1) of the Charter of Rights and Freedoms, as unconstitutionally sanctioning legitimate expression and/or association, being overly broad and/or grossly disproportionate in its reach and/or encouraging discrimination against individuals on the basis of ethnicity and perceived political opinion?
[59] The Minister opposes the above question saying that the legal issues it poses are well-settled in the appellate jurisprudence.
[60] I agree with the Minister. I do not agree that the statement in B010 v Canada (MCI), above, at para 75, is merely obiter. It is, rather, an alternative foundation for the decision supported by the Court’s previous holding in Febles v Canada (MCI), 2014 SCC 68, [2014] 3 S.C.R. 431.
[61] I also agree that the evidence given by the Applicant would not support relief under section 2 or 15 of the Charter. The Applicant claimed that he was forced to assist the LTTE. He never contended that his rights to free association or political opinion were infringed by the application of the inadmissibility provisions of the IRPA and there is nothing in the evidentiary record to support those arguments. It is also well settled that the Charter does not afford protection for terrorist or other violent activity: see Suresh v Canada, 2002 SCC 1, [2002] 1 S.C.R. 3 at para 107, and Najafi v Canada (MPSEP), above at para 105. I, therefore, decline to certify the question posed by the Applicant.
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