Yuen v. Canada (Minister of Citizenship and Immigration), docket IMM-5272-97

Date: 19990204

Docket: IMM-5272-97

BETWEEN:

     KWONG YAU YUEN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

FACTS:

[1]      The applicant, a citizen of Hong Kong who arrived in Canada in 1982, seeks judicial review of a decision of an Adjudicator of the Adjudication Division - Immigration and Refugee Board ("Adjudicator") dated 12 December 1997. In that decision, the Adjudicator determined that the applicant was a person described in subsection 27(2) of the Immigration Act (hereinafter "the Act") (that is, a person who is other than a Canadian citizen or permanent resident of Canada) who is inadmissible to Canada under paragraph 19(1)(c.2) and subparagraph 19(2)(a.1)(i) of the Act. On 12 December 1997, the applicant was ordered deported from Canada pursuant to subsection 32(2) of the Act.

[2]      The applicant was a member of the 14K Triad gang ("the gang") which he joined in Hong Kong as a teenager. He was convicted of theft in Hong Kong in 1979. In September 1988, he was arrested by the Metro Toronto Police and charged with several drug offenses. The charges were stayed at the request of the Crown in the District Court of Ontario at Toronto on 21 December 1989.

[3]      The applicant is married to a Canadian citizen and father to two Canadian-born daughters, and resides with his family in Brampton, Ontario.

ISSUES:

[4]      1. Did the Adjudicator err in finding that the applicant's inadmissibility to Canada by reason of his membership in the gang was not violative of the applicant's guaranteed right to freedom of association as found in subsection 2(d) of the Canadian Charter of Rights and Freedoms ("the Charter")?

[5]      2. Did the Adjudicator err by finding that the applicant was a member of an organization whose criminal activities are proscribed in paragraph 19(1)(c.2) of the Act?

[6]      3. Did the Adjudicator err in law in finding that the Applicant's conviction for the offence of theft in Hong Kong was equivalent to a conviction for theft in Canada under the Criminal Code of Canada ("CCC"), thereby rendering the applicant inadmissible under subparagraph 19(2)(a.1)(1) of the Act?

ARGUMENT:

Applicant:

[7]      The applicant submits that the mere fact of membership in an organization does not engage the operation of paragraph 19(1)(c.2) of the Act regardless of the nature of the member's conduct as a member of that organization. To render the applicant inadmissible simply because he was a member of the gang in Hong Kong violated the applicant's guaranteed right to freedom of association under subsection 2(d) of the Charter and is not justified under section 1 of the Charter: Yamani v. Canada (Solicitor General) (1996), 31 Imm. L.R. (2d) 191 (F.C.T.D.) ("Yamani").

[8]      The applicant submits by way of analogy the fact that mere membership in an organization involved in international offenses is not sufficient basis to invoke the exclusion provisions to the definition of Convention refugee (Moreno v. Canada (M.E.I.) (1993), 21 Imm. L.R. (2d) 221 (F.C.A.)("Moreno")) and that under Bill C-95 ("An Act to amend the Criminal Code"), "participation in a criminal organization" is criminalized while "membership in a criminal organization" is not.

[9]      It is submitted that McAllister v. Canada (MCI), [1996] 2 F.C. 190, (1996) 108 F.T.R. 1 ("McAllister"), relied on by the Adjudicator, may be distinguished from the facts of this case because the constitutional violation alleged in McAllister was not raised at McAllister's inquiry but was raised in a collateral matter under the Act.

[10]      It is submitted that paragraph 19(1)(c.2) becomes engaged when an Adjudicator finds there are reasonable grounds to believe that a person is or was a member of a proscribed organization, and that the word "or" is to be interpreted disjunctively. It is submitted that the Adjudicator erred in law by giving the word a conjunctive meaning. It is submitted that the Adjudicator erred in law in finding that the applicant was a member of an organization described in paragraph 19(1)(c.2) of the Act.

[11]      It is submitted that the Adjudicator erred in law in finding that the applicant's conviction in Hong Kong in 1979 on a charge of theft would be equivalent to the Canadian offence of theft, thereby rendering the applicant inadmissible under paragraph 19(2)(a.1)(1) of the Act. It is submitted that the Adjudicator must investigate the criminal laws of Hong Kong and Canada in order to determine whether there is an equivalent offence under Canadian law: Masasi v. MCI, (1997) 138 F.T.R. 121, [1997] F.C.J. No. 1410 (QL). It is submitted that the Canadian definition of theft is wider than the Hong Kong definition and that there is nothing in the Hong Kong definition which includes the additional Canadian requirement that the taking be "without colour of right" (assuming that "fraudulently" taking property is equivalent to "dishonestly" appropriating property): Brannson v. MEI [1981] 2 F.C. 141 (F.C.A.). It is submitted that the issue of equivalency between the Hong Kong and Canadian definitions of theft is an important issue of law which ought to be decided by the Honourable Court.

Respondent:

[12]      The respondent submits that the Adjudicator did not err in determining that paragraph 19(1)(c.2) did not violate subsection 2(d) of the Charter. It is submitted that paragraph 19(1)(c.2) limits an alien's opportunity to come into or remain in Canada as a result of his membership in an organization involved in a pattern of illegal activity. The fact that this section limits the applicant's right to enter or remain in Canada does not mean that subsection 2(d) of the Charter is engaged. It is submitted that subsection 2(d) is not engaged because the right conferred by that section does not extend beyond the boundaries of Canada to protect the right of a foreign national to be a member of a foreign criminal organization. To hold otherwise would be to improperly give subsection 2(d) extraterritorial effect: R. v. Harrer, [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81 (QL). In any event, the freedom to associate in a criminal organization is not protected by subsection 2(d) of the Charter because this guarantee cannot be used to protect individuals whose organizations or associations, like the gang, pursue unlawful objects: Lavigne v. OPSEU [1991] 2 S.C.R. 211, (1991), 81 D.L.R. (4th) 545 (S.C.C.). It is submitted that membership in an organization enumerated in paragraph 19(1)(c.2) is not protected by subsection 2(d) of the Charter.

[13]      It is submitted that Yamani can be distinguished from the case at bar in that the applicant in that case was a permanent resident while the applicant in the case at bar is a foreign national. Further, the section at issue in Yamani, paragraph 19(1)(g), loosely defined an organization while paragraph 19(1)(c.2) specifically refers to organizations which engage in activity that is criminal, planned, organized and for the purpose of the commission of offences under the Criminal Code or Controlled Drug and Substances Act: McAllister.

[14]      The respondent submits that it was open to the Adjudicator to determine, based on the applicant's own testimony and the evidence before it, that the gang was a criminal organization, that the applicant was a person described in paragraph 19(1)(c.2) and that his rights pursuant to subsection 2(d) of the Charter were not violated.

[15]      The respondent distinguishes Moreno, relied on by the applicant, on the basis that the section considered therein contained exclusion provisions that apply when there are serious reasons for considering that a refugee claimant was complicit in the commission of crimes against humanity. It is submitted that mere membership in an organization involved in international offences is not a sufficient basis to invoke exclusion provisions because those refer to a commission of a crime against peace, a war crime or a crime against humanity and not membership and these have the effect of excluding an individual from protection of Convention refugee status. The Federal Court of Appeal has recognized that mere membership was sufficient to hold someone responsible for the commission of the organization's crimes if the organization had a "limited and brutal purpose": Sivakumar v. Canada (MEI), [1994] 1 F.C. 433. It is submitted that the organizations described in paragraph 19(1)(c.2) have such a purpose in that they seek financial gain through illegal activity including threats, violence and intimidation.

[16]      It is submitted that the applicant's contention that paragraph 19(1)(c.2) criminalizes membership in a criminal organization is not supportable, as the section's purpose is not to criminalize membership but to preclude from admission to Canada those who are unable to satisfy the Minister that their admission would not be detrimental to the national interest: McAllister.

[17]      It is submitted that the Adjudicator did not err in finding that the applicant was a person described in paragraph 19(1)(c.2). The burden of proving that an applicant has a right to come into Canada or that his admission would not be contrary to the Act or Regulations rests upon that person. The onus is upon the applicant to demonstrate that he was not a person described in paragraph 19(1)(c.2); the applicant stated that he was a member of the gang and could not state that he was no longer a member of that organization. It is submitted that the applicant's argument that "are or were" in the section should be interpreted in a mutually exclusive fashion and that the section thus does not apply to him is without foundation and that such an interpretation would ignore the plain meaning of paragraph 19(1)(c.2) of the Act and ignore the normal construction of the words.

[18]      It is submitted that the Adjudicator did not err in determining that the applicant's conviction for theft in Hong Kong was equivalent to the Canadian offence of theft and that it was open to him on the basis of the evidence before him to make that determination. It is submitted that the Adjudicator examined the elements of the offence of theft in Hong Kong and its equivalent in the Criminal Code, through examination of the wording of both statutes and evidence provided by the Applicant: Steward v. Canada (MEI) (1988), 84 N.R. 236 (F.C.A.) ("Steward").

[19]      The respondent submits that the applicant incorrectly argues that the Hong Kong definition of theft does not make provision for "without colour of right". The definition of "dishonestly" in the Hong Kong definition of theft provides for circumstances where an individual takes another person's property to which he believes that he has in law the right to deprive the other of it, or he believes that he would have the other's consent if they knew of the appropriation or that he appropriates property in belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. It is submitted that the Hong Kong definition thus contains the element regarding colour of right: Applicant's Record, page 39. It is submitted that the wording of the statutes in the case at bar do not have to be exactly the same as the applicant contends: Barnett v. Canada (MEI), (1996) 33 Imm. L.R. (2d) 1 ("Barnett").

ANALYSIS:

[20]      The instant case can be distinguished from Yamani in a manner similar to that used by MacKay J. to distinguish the case in McAllister. While Yamani was a permanent resident and that status was central to MacKay J.'s finding that his subsection 2(d) rights had been infringed, the applicant in the instant case is a foreign national and not a permanent resident. Further, paragraph 19(1)(c.2) defines the organization concerned with more particularity than that used in paragraph 19(1)(g), the section at issue in Yamani. Paragraph 19(1)(c.2) precludes admission to Canada for those who are or were members of an organization that on reasonable grounds is or was engaged in activity that is criminal, planned, organized and for the purpose of commission of offences under the Criminal Code or CDSA. The organization concerned in paragraph 19(1)(g), in contrast, is phrased much more broadly.

[21]      While the applicant's analogies in support of his submission that the mere fact of membership in an organization does not engage paragraph 19(1)(c.2) are interesting, they are not directly applicable to the case at hand and do not assist in the subsection 2(d) of the Charter analysis required. I find that the Adjudicator did not err in determining that the section did not violate subsection 2(d). MacKay J.'s comments in McAllister, a case also involving a foreign national, with respect to clause 19(1)(f)(iii)(B) apply equally to the case at bar:

[22]      In the instant case, paragraph 19(1)(c.2) limits an alien's opportunity to come into or remain in Canada as a result of his membership in an organization involved in a pattern of illegal activity. I agree with the respondent that subsection 2(d) of the Charter is not engaged because the right conferred by that section does not extend beyond the boundaries of Canada to protect the right of a foreign national to be a member of a foreign criminal organization. Even if subsection 2(d) were engaged, the restriction on the right to freedom of association contained in paragraph 19(1)(c.2) is a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society: section 1, Charter.

[23]      I do not accept the applicant's submission that "are or were" in paragraph 19(1)(c.2) should be given a mutually-exclusive meaning. There is no evidence given in support of this submission. I agree with the respondent that such an interpretation would contradict the plain meaning of the section and ignore the normal construction of the words.

[24]      I agree with the respondent that the applicant's contention that paragraph 19(1)(c.2) criminalizes membership in a criminal organization is not supportable. As noted above, the section's purpose is not to criminalize membership but to preclude from admission to Canada those who are unable to satisfy the Minister that their admission would not be detrimental to the national interest: McAllister.

[25]      I agree with the respondent that the Adjudicator did not err in finding that the applicant was a person described in paragraph 19(1)(c.2). The burden of proving that the applicant has a right to come into Canada or that his admission would not be contrary to the Act or regulations rests upon the applicant. The onus is upon the applicant to demonstrate that he was not a person described in paragraph 19(1)(c.2). In this case, the applicant stated that he was a member of the gang and was unable to state that he was no longer a member of that organization.

[26]      I am satisfied that the Adjudicator did not err in determining that the essential elements of the offence of theft in the Criminal Code correspond to those in the Hong Kong statute and I am satisfied that he followed the procedure outlined in Steward in so doing. The wording of both statutes was in evidence before the Adjudicator and it was open to him on that evidence to make the determination he did.

[27]      I agree with the applicant that the definition of "dishonesty" in the Hong Kong statute makes provision for the "without colour of right" element included in the Canadian statute. The Hong Kong definition states:

[28]      In [1983] 1 S.C.R. 794">R. v. Lilly, [1983] 1 S.C.R. 794, (1983) 5 C.C.C. (3d) 1, the Supreme Court of Canada found that the defence of "colour of right" is dependent on whether D, at the time of the transfer of money, had an honest belief that D had the right to the money.

[29]      I note that in Barnett, Jerome A.C.J. stated:

CONCLUSION:

[30]      The application is dismissed.

OTTAWA, ONTARIO      B. Cullen

February 4, 1999.      J.F.C.C.