Date: 20120611
Docket: IMM-5723-11
Citation: 2012 FC 727
Ottawa, Ontario, June 11,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RAOUL ANDRE BURTON
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Raoul Andre Burton, seeks judicial review of a decision of the
Immigration Division of the Immigration and Refugee Board (the Board), dated
August 3, 2011. He was found inadmissible to Canada under the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) based on subsections
36(1)(a) related to criminality and 37(1)(a) for organized criminality. Consequently,
a Deportation Order was issued against him.
[2]
For
the reasons set out below, I am dismissing his application.
I. Facts
[3]
The
Applicant is a citizen of Jamaica. On November 17, 1993,
he became a permanent resident of Canada at the age of 10 years
old.
[4]
On
March 9, 2005, he pled guilty to one count of participating in a criminal
organization known as the Malvern Crew under subsection 467.11(1) of the Criminal
Code of Canada, RSC 1985, c C-46. In a letter regarding the plea
agreement, Crown Counsel indicated that “[b]ased upon consultation,
CBS-Immigration [sic] does not have any intent to initiate any
enforcement action at this time.”
[5]
On
December 27, 2006, the Applicant was convicted of two counts of possession for
the purposes of trafficking contrary to subsection 5(2) of the Controlled Drugs
and Substances Act, SC 1996, c 19.
[6]
As
a result of these convictions, a report on his inadmissibility was made under
subsection 44(1) of the IRPA. An initial hearing on the matter was
cancelled. On January 14, 2011, however, a new report was issued against the
Applicant.
[7]
The
reports were reviewed by the Minister’s Delegate and the matter was referred to
the Immigration Division for an admissibility hearing that took place on
April 20, 2011 and May 11, 2011.
II. Decision
Under Review
[8]
The
Board denied the request of Counsel for the Applicant to issue subpoenas to
individuals who would testify to an alleged agreement between the Crown
Attorney and Canada Border Services Agency (CBSA) related to the initial
conviction. The Board stated that it lacked jurisdiction to look into the
report and referral of the Applicant for an admissibility hearing.
[9]
Counsel
for the Applicant also objected to the inclusion of documentary evidence on the
referral for inadmissibility based on the alleged agreement with CBSA. The
Board did, however, admit these documents as recounted in its reasons “[t]he
interplay of these matters of witnesses, exclusion of evidence, and adjournment
request was ruled on by the panel, essentially against Mr. Burton.”
[10]
The
Board appears to have accepted the position of the Minister that the Crown
Attorney’s letter “is couched in ephemeral terms, there is no conclusive
evidence that a representation was made by the CBSA that enforcement action
against Mr. Burton would never be taken” [emphasis in original]. It
therefore dismissed the Applicant’s legitimate expectations argument, noting
that he was given the opportunity to make representations and was consulted on
the matter.
[11]
In
light of his convictions for trafficking a controlled substance, an offence
punishable for a term of imprisonment of at least ten years, the Board was
satisfied that the Applicant was inadmissible for serious criminality under
subsection 36(1)(a).
[12]
Considering
documentary evidence and prior criminal case law, there were also reasonable
grounds to believe that the Malvern Crew was a criminal organization as
contemplated by subsection 37(1)(a). The Board noted the Malvern Crew’s
involvement in the trafficking, importation and distribution of drugs as well
as other offences of theft, robbery, firearms and murder.
[13]
While
a finding of inadmissibility for organized criminality does not require a
conviction, the Board placed “considerable reliance” on the Applicant’s guilty
plea and conviction to establish his membership in the Malvern Crew and
participation in its criminal activities.
[14]
The
Board summarized the Applicant’s level of involvement with the organization as
follows:
[132] The incidents recounted above, the
observed gang-related activity, and the judgment, all show that Mr. Burton was
right in the thick of things, an active member of the Malvern Crew, actively
participating in the activities of the organization, and that he may have
occupied a rather influential or responsible place in the organization.
[133] He is a person who has been
identified as a member of the Malvern Crew by means of video, physical and
wire-tap evidence, and by reliable police source information [...]
[134] The Tribunal finds that Mr.
Burton’s involvement with the Malvern Crew was significant. He was obviously
fully integrated and well-invested into the organization, having done what was
required to gain acceptance and recognition within that group. Not only was he
a member, but he was also prepared to engage in criminal activities on a
significant scale for the benefit of the organization, and he thereby enhanced
the ability of the organization to commit crime. [...]
[15]
Overall,
the Board was satisfied that the Minister had discharged his burden of proving
the facts exist to support that the Applicant was inadmissible under subsection
37(1)(a). He was a member of the Malvern Crew, an organization that on
reasonable grounds is believed to be engaged in activity that is part of a
pattern of criminal activity planned and organized by a number of persons
acting in concert in furtherance of the commission of an offence punishable by
indictment. The Applicant was also inadmissible for engaging in activity that
is part of such a pattern.
III. Issues
[16]
This
application raises various issues of procedural fairness that arose from the
Board proceeding with the admissibility hearing at the time, namely:
(a) Did
the Board err in issuing a removal order given the questions raised as to the
validity of the Minister’s referral?
(b) Did
the Board err by refusing to issue a summons requested by Applicant’s counsel
in relation to the validity of the referral?
(c) Did
the Board err in denying an adjournment for the Applicant to pursue an
application for leave and judicial review of the referral?
[17]
Also
before the Court is the Board’s finding that the Applicant was inadmissible for
organized criminality under subsection 37(1)(a) as this deprives him of the
right of an appeal on humanitarian and compassionate grounds to the Immigration
Appeal Division. More specifically, the questions to be considered are as
follows:
(d) Did the Board err by relying on
findings of fact from other courts or tribunals?
(e) Did
the Board err in emphasizing the Applicant’s conviction under section 467 of
the Criminal Code to find the Applicant described in subsection 37(1)(a)
of the IRPA?
(f) Did the Board err in relying on
concessions made by Applicant’s counsel at the hearing?
IV. Standard
of Review
[18]
Questions
of law, jurisdiction and procedural fairness demand the correctness standard (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[19]
By
contrast, the Board’s findings of fact as to membership in a criminal
organization should be reviewed based on reasonableness (see Tang v Canada (Minister of
Citizenship and Immigration), 2009 FC 292, [2009] FCJ no 671 at para
17; Castelly v Canada (Minister of
Citizenship and Immigration), 2008 FC 788).
[20]
Under
this standard, the Court will only intervene where the decision does not
reflect the principles of justification, transparency and intelligibility or
falls outside the range of possible, acceptable outcomes (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47; Khosa, above at
para 59
V. Analysis
[21]
As
a preliminary matter, I note that counsel were invited to prepare submissions
for consideration by the Court on the issue of res judicata, given the
order of Justice Robert Barnes in IMM-6499-11 denying leave to the Applicant
for judicial review as to the lawfulness of his referral for an admissibility
hearing and the denial of an adjournment. The Court has reviewed these
submissions. However, in light of my conclusion with respect to the issues
raised in this application, it is unnecessary for me to make a finding with
respect to res judicata. Though I do note (by way of obiter)
that, given the strict requirements for the application of res judicata,
the Court should be very cautious where the prior judgment relied upon is an
order denying leave for judicial review without reasons.
A. Procedural
Fairness
[22]
The
Applicant asserts that the Minister’s referral to an admissibility hearing was
invalid based on the terms of the plea agreement he entered into in 2005 for
the charge of participating in a criminal organization. He insists the clear
intent of that agreement as recorded in a letter from the Crown Attorney was to
protect him from removal. As a consequence, CBSA’s conduct in making the
referral breached his legitimate expectations and constituted an abuse of
process.
[23]
For
the doctrine of legitimate expectations to apply, there must be conduct or
representations that are “clear, unambiguous and unqualified” and induced in
the Applicant a reasonable expectation that he would retain a particular
benefit, in this instance protection from removal by CBSA (see for example Canada
Union of Public Employees v Ontario (Minister of Labour), 2003 SCC 29,
[2003] SCJ no 28 at para 131; Mount Sinai Hospital Center v Quebec (Minister
of Health and Social Services), 2001 SCC 41, [2001] SCJ no 43).
[24]
Considering
the letter at issue, I must agree with the Respondent and the Board’s initial
finding that the requirements for establishing legitimate expectations are not
present. To the contrary, the letter is unclear, ambiguous and qualified. Enforcement
action would not be pursued “at this time.” This did not foreclose the
possibility of such action in the future, particularly if other offences were
subsequently committed as was the case with the Applicant. Indeed, the letter
is contradictory in that it expressly contemplates any initiated enforcement
actions by excluding members of the Toronto Police Service from appearing as
witnesses.
[25]
As
to the allegations of abuse of process, I am not convinced that this would
apply under the circumstances or that the requirements would be met in the
Board’s decision to proceed on the basis of the referral. Abuse of process
only relates to proceedings that are “oppressive and vexatious” and would
violate the fundamental principles of justice underlying the community’s sense
of fair play and decency. It is intended to protect an abuse of the court’s
process (see the summary of this concept in Toronto (City) v Canadian Union
of Public Employees (CUPE) Local 79, 2003 SCC 63, [2003] SCJ no 64 at paras
35-37). In Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44, [2000] SCJ no 43 it was suggested
that proceedings “must be unfair to point that they are contrary to the
interests of justice.”
[26]
As
discussed, the agreement relied on by the Applicant does not eliminate the
possibility of future referrals. The admissibility hearing proceeded on the
basis of a referral documenting the Applicant’s convictions, including those
that occurred in 2006 following the plea agreement and form the basis of the
inadmissibility finding under subsection 36(1)(a).
[27]
The
Applicant further contends that the Board erred in finding it lacked
jurisdiction to address the validity of the referral and, consequently,
declining to issue the requested summons to have individuals testify as to the
nature of the plea agreement.
[28]
He
relies on Hernandez v Canada (Minister of Citizenship and Immigration),
2005 FC 429, [2005] FCJ no 533 at paras 77 where Justice Judith Snider
determined that a referral was invalid and therefore quashed the decision of
the Board because it lacked jurisdiction to proceed with the admissibility
hearing. This determination proves to be of limited assistance to the
Applicant as Justice Snider was concurrently considering the nature of the
report and referral as well as its impact on the issuance of a Deportation
Order. Her finding regarding admissibility naturally flowed from the
invalidity of the referral. Until the Applicant establishes that the initial
referral is invalid, it is no consequence for the Board’s decision. As noted,
the application for judicial review of the referral (IMM-6499-11) was recently
dismissed.
[29]
The
Applicant also points to the finding of Justice Luc Martineau in Wong v
Canada (Minister of Citizenship and Immigration), 2011 FC 971, [2011] FCJ
no 1193 that quashed a decision to uphold a removal order where there were
“strong doubts” as to whether the report had been reviewed and validated. However,
that is not the situation facing the Applicant. As the Respondent stresses, he
could have raised concerns regarding the referral and the nature of the plea
agreement during his interview or otherwise prior to the admissibility hearing.
Once the matter was placed with the Board for a hearing, the only question for
determination was the Applicant’s inadmissibility.
[30]
Though
the Applicant insists the requested summons should have been granted as it
would have allowed individuals to testify who had relevant knowledge of the
plea agreement, there was no requirement to do so. In my view, the suggestion
of Justice Martineau in Wong, above that the Minister could have had
officials testify as to what occurred with the report and referral in that case
does not lead to a requirement to grant the Applicant’s request to have
individuals testify or accept his characterization of the agreement. It was
merely an obiter comment.
[31]
At
the stage of the admissibility proceeding, the Applicant’s referral was not
directly at issue as the Board stressed at the outset of its reasons. The
summons was not necessary for a full and proper hearing under the Immigration
Division Rules, SOR/2002-229, s 33. The appropriate forum for challenging
the referral was not the Board, but an application for judicial review before
this Court.
[32]
However,
I see no requirement that Board should have granted the adjournment. The
Applicant was not prejudiced in his ability to seek judicial review before this
Court following the hearing. It was not necessary to further delay the
hearing. In Philistin v Canada (Minister of
Citizenship and Immigration), 2011 CF 1333, [2011] ACF no 1860, for
example, a decision by the Board to refuse an adjournment to challenge the
referral was found reasonable.
[33]
I
therefore find no breaches of procedural fairness in the Board’s handling of
the proceedings despite allegations of invalidity of the referral, and the
requests for summons and adjournment. The Applicant has yet to establish that
the referral was invalid under the circumstances.
B. Organized
Criminality
[34]
The
Applicant takes issue with the Board’s reliance on findings of fact from
criminal courts to determine that the Malvern Crew constitutes a criminal
organization. He insists that the Board had an obligation to consider
“credible and trustworthy evidence.” He also refers to various decisions of this
Court that caution against directly importing such factual findings.
[35]
I
note, however, that many of these decisions referred to by the Applicant
expressed that principle in rather different contexts, such as accepting
findings regarding constantly evolving country conditions in making refugee
determinations.
[36]
In
this instance, the Board did not rely solely on the findings of other courts or
tribunals as the Applicant implies. Although the Board relied significantly on
this information, its reasons also discuss corroborating documentary evidence. The
judicial pronouncements were highly relevant in discussing the activities of
the Malvern Crew and mentioning the Applicant’s involvement. I fail to see how
this evidence was not ultimately “credible and trustworthy in the
circumstances”, particularly since the Board does not have to adhere to strict
rules of evidence and has considerable flexibility in examining what is
relevant (see Thanaratnam v Canada (Minister of Citizenship and Immigration),
[2004] 3 FCR 301 at para 7, reversed on other grounds, [2006] 1 FCR 474 (FCA)).
[37]
The
Applicant also insists that the Board erroneously relied on his conviction
under section 467 of the Criminal Code as a “determinative factor”
in finding that he was inadmissible under subsection 37(1)(a) of the IRPA. Sittampalam
v Canada (Minister of
Citizenship and Immigration), 2006 FCA 326, [2006] FCJ no 1512 at para
40 rejected the argument that criminal jurisprudence and international
instruments should inform the meaning of a criminal organization for
interpretation stating “[t]he wording in paragraph 37(1)(a) is different, because
its purpose is different.”
[38]
While
the terms as considered in criminal and immigration jurisprudence are distinct,
the Board was not precluded from assigning significant weight to the
Applicant’s conviction in this regard. Despite the Board’s use of the word
“determinative”, as the Respondent stresses, it proceeded to consider the
“facts and conclusions underlying that conviction.”
[39]
I
find the Board’s reliance on his conviction as a critical factor in concluding
that there were “reasonable grounds to believe” he was involved with the
criminal activities of the Malvern Crew appropriate in the circumstances (see
the factors relevant to this analysis as discussed in Thanaratnam,
above).
[40]
The
Applicant now claims that he pled guilty to the offence of participating in a
criminal organization under threat of deportation, reinforcing that the Board
cannot rely solely on his conviction in the circumstances. In support of this
argument, he references a similar finding in Tang, above.
[41]
The
Respondent distinguishes the ruling in Tang as that individual pled
guilty in a foreign jurisdiction. It is also emphasized that the Applicant did
not raise this argument with the Board and provided no evidence to support it.
[42]
At
paragraph 19 of the Tang, Justice Michael Phelan emphasized:
[19] As a general proposition, a
conviction may form the basis for a conclusion of inadmissibility but does not
necessarily always do so. A conviction may form that basis where there is
reason to believe that the allegations on which the conviction is based are a
true statement of facts. However, to rely upon a conviction does require an
inquiry into the meaning of the conviction and may engage an analysis of the
circumstances surrounding it. For example, a plea bargain may raise different
considerations than a finding of guilt after a trial.
[43]
The
Board’s conclusion was consistent with these principles in examining the
conviction and surrounding circumstances. While there was a guilty plea in
this instance, that should not in itself call into question the validity and
relevance of a conviction in assessing inadmissibility. The Applicant did not
demonstrate to the Board or before this Court that the facts as presented based
on the conviction are somehow inaccurate in light of the guilty plea or other
reasons.
[44]
The
Applicant also draws this Court’s attention to various authorities relating the
incompetence of counsel in the proceedings. He disputes his previous counsel’s
concession at the hearing as contrary to his instructions that he was involved
with a criminal organization and is therefore inadmissible. However, he does
not protest the concession made as to criminality under subsection 36(1)(a). The
Respondent insists that the Applicant failed to properly raise these
allegations of incompetence at an earlier stage.
[45]
Regardless,
I find it unnecessary to further address the jurisprudence on this matter as
the Board’s decision acknowledges the concessions but proceeds to conduct a
detailed analysis as there must “be a sufficient evidentiary basis to support a
finding of inadmissibility.” The concessions ultimately proved immaterial and
no breach of procedural fairness resulted for the Applicant under the
circumstances.
[46]
I
am not persuaded that the Board’s assessment of the Applicant’s inadmissibility
as it relates to involvement in a criminal organization was unreasonable and
warrants the Court’s intervention.
VI. Conclusion
[47]
Given
that there was no breach of procedural fairness and the Board’s finding as to
organized criminality was reasonable, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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