Date:
20151218
Docket:
IMM-4413-14
Citation: 2015 FC 1397
Toronto, Ontario, December 18, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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AKIN OLULOPE
AKINSUYI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND
REASONS
[1]
Mr. Akin Olulope Akinsuyi (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board, Immigration Division (the “Board”), dated May 15, 2014. In its decision, the
Board determined that the Applicant is inadmissible to Canada on grounds of organized
criminality and participation in transnational crime, pursuant to paragraph
37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”).
[2]
The Applicant is a citizen of Nigeria. He became
a permanent resident in Canada on May 9, 2006.
[3]
On July 4, 2013, the Applicant attended the
Downsview Postal Outlet. In the hearing of an undercover RCMP officer, he said
that he was waiting for a package that he had been tracking. The Postal Outlet
employee advised the RCMP officer, who was posing as an employee and waiting in
the rear room, that the Applicant was known to the Postal Outlet as Jordan
Soyar, the renter of mailbox 30033. The employee showed the Applicant the
package. The Applicant said “yeah, that’s it”,
signed for the package, and left.
[4]
The package contained heroin and unbeknownst to
the Applicant, it had been intercepted by the United Kingdom-International
Crime Team (Border Agency) at London Heathrow Airport on June 27, 2013. The
package had been seized by the RCMP on July 2, 2013 upon its arrival in Canada.
On July 4, 2013, the RCMP obtained a warrant to facilitate a controlled
delivery of the package and executed the controlled delivery the same day.
[5]
The Applicant was arrested 10 minutes after
leaving the Postal Outlet. He was carrying two cell phones, one of which
contained sent text messages with the name “Jordan
Soyar”.
[6]
After his arrest, the Applicant told RCMP
Constable Hung that he was paid $950.00 to receive the package. He was arrested
by the Canada Border Services Agency (the “CBSA”)
on August 7, 2013.
[7]
The Applicant was charged with four offences, specifically:
i. Importing Heroin to Canada,
contrary to subsection 6(1) of the Controlled Drugs and Substances Act,
S.C. 1996, c. 19 (the “CDSA”);
ii. Conspiracy to import heroin
contrary to subsection 6(1) of the CDSA, and contrary to paragraph 465(1)(c) of
the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”);
iii. Possession of heroin for the
purpose of trafficking, contrary to subsection 5(2) of the CDSA; and
iv. Conspiracy to possess heroin for
the purposes of trafficking, contrary to subsection 5(2) of the CDSA and
paragraph 465(1)(c) of the Code.
[8]
By a Report dated July 31, 2013, the Applicant
was found inadmissible to Canada. A Report pursuant to subsection 44(1) of the
Act, dated September 20, 2013, was reviewed by an Enforcement Officer on
September 23, 2013. On September 23, 2013 pursuant to subsection 44(2) of the
Act, the Applicant was referred for an admissibility hearing.
[9]
On February 3, 2014, the Applicant sought a stay
of the admissibility hearing pending the result of his criminal trial.
[10]
Following a hearing held on February 17, 2014,
the Board found the Applicant to be inadmissible pursuant to paragraph 37(1)(b)
of the Act. Although the Applicant did not testify at the hearing, written
arguments were file on his behalf.
[11]
In its decision, dated May 15, 2014, the Board
rejected the Applicant’s submissions that he was not inadmissible because there
was no evidence to show that he was aware that the package contained heroin. It
considered that the Applicant hid his name from the Postal Outlet and that he
was paid $950.00 for taking delivery of the package. It concluded that
he must have known that an illegal act was involved since he was paid so much
for doing so little.
[12]
The Board determined that the evidence showed a
serious possibility that the Applicant had knowingly engaged in a transnational
crime and that it was reasonable to believe he is inadmissible to Canada on the
grounds of organized criminality, that is the unauthorized importation of
heroin into Canada.
[13]
The Applicant now argues that the Board breached
procedural fairness by refusing to stay the admissibility hearing pending the
adjudication of the criminal charges, in a criminal trial. He submits that
denial of an adjournment impacted upon his ability to present a full answer and
defence in the admissibility hearing, without prejudice to his right not to
testify in the criminal proceedings. Although the Board sealed the record of
the admissibility hearing, the Applicant argues this protection did not
adequately respect the degree of procedural fairness to which he was entitled.
[14]
The Applicant next submits that the Board erred
in its conclusion that lack of personal testimony from the Applicant means that
there was no evidentiary basis to support the theory that it found to be
most likely. He pleads that this perverse finding because the Board’s decision
to deny him an adjournment of the admissibility hearing prevented him from
presenting evidence, by personal testimony, to support an alternative theory.
[15]
Issues of procedural fairness are reviewable on
the standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43.
[16]
The Board’s findings of fact are reviewable on
the standard of reasonableness; see the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 53.
[17]
On judicial review, in order to meet the
reasonableness standard, the reasons offered must be justifiable, transparent,
intelligible and fall within a range of possible, acceptable outcomes; see the
decision in Dunsmuir, supra at paragraph 47.
[18]
The Board committed no breach of procedural
fairness in denying the Applicant’s Motion for a stay. The Applicant sought a
stay of the admissibility hearing in cause number IMM-620-14, an application
for leave and judicial review of the delegate’s decision to refer the matter to
an admissibility hearing. The stay motion was heard on February 3, 2013.
By Order dated February 4, 2013, that motion was dismissed by Justice Phelan.
[19]
The Board is master of its own proceedings; see
section 161(1) of the Act and section 49 of the Immigration Division Rules,
SOR/2002-229. I refer to pages 189 to 199 of the Certified Tribunal Record
where the Board dealt with the Applicant’s further motion for an adjournment, at
the commencement of the admissibility hearing on February 17, 2014.
[20]
I see nothing here to suggest the Board erred
in its disposition of that motion. The Applicant’s arguments were presented and
considered. There was no breach of procedural fairness, an issue to be assessed
relative to the proceedings at hand, that is the admissibility hearing. The
requirements of procedural fairness are to be assessed in context; see the
decision in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R.
643 at page 654, as recently discussed in Trinity Western University v. The
Law Society of British Columbia, 2015 BCSC 2326 at paragraph 91, where
Chief Justice Hinkson said:
The Supreme Court of Canada has long
recognized that both the process and the outcome of an administrative decision
must conform to the rationale of the statutory regime set up by the
legislature. As Mr. Justice Le Dain wrote for the unanimous Court in Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 653 [Cardinal],
“there is, a general common law principle, a duty of procedural fairness lying
on every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges, or interests of an
individual”
[21]
The Board was to concern itself with respect for
the procedural fairness rights of the Applicant in the admissibility hearing.
It had no role or responsibility for the procedural protections afforded by the
law in criminal prosecutions.
[22]
Criminal proceedings are characterized by two
key principles, that is the presumption of innocence and the requirement of
proof beyond a reasonable doubt that the alleged offence has been committed;
see the decision in R. v. Lifchus, [1997] 3 S.C.R. 320.
[23]
As noted above, the requirements of the content
of procedural fairness are to be assessed against the “rationale
of the statutory regime” established by the legislation.
[24]
The purpose of an admissibility hearing is to
determine if a person is inadmissible. An admissibility hearing proceeds before
the Immigration Division.
[25]
Such a hearing is an administrative proceeding,
not a trial of charges that are subject to the Code and the legal principles
that apply in criminal prosecution.
[26]
The Applicant had a choice, to testify or not,
before the Immigration Division.
[27]
The Act makes it clear that anyone seeking
admission into Canada, including the Applicant, carries the burden of showing
that they are not inadmissible and meet the requirements of the Act; see
subsection 11(1) of the Act. The Applicant knew, or can be deemed to have
known, that he had to make his case to show that he was admissible to Canada.
He cannot plead that his ability to do so was hamstrung by his right to present
a full defence to outstanding criminal charges.
[28]
The Applicant’s arguments about a breach of
procedural fairness flow over into his challenge to the factual findings of the
Board, that is its conclusion that he was part of a scheme to import heroin. He
submits that his ability to present evidence to support an alternative factual picture
was compromised by the Board’s denial of an adjournment, to allow the criminal
charges to be tried.
[29]
In effect, the Applicant’s challenge to the
Board’s factual findings rests upon his choice not to testify and to present
evidence to challenge that submitted by the Respondent.
[30]
The evidence before the Board included the RCMP
arrest report, the testimony of Constable Hung and the testimony of CBSA Officer
Clare who arrested the Applicant on August 7, 2013.
[31]
Pursuant to section 33 of the Act, the standard
of proof under section 37 is “reasonable grounds to
believe”. This is more than mere suspicion, but less than proof on a
balance of probabilities. Reasonable grounds exist where there is an objective
basis for the belief based on compelling and credible evidence; see the
decision in Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100 at paragraph 114.
[32]
In my opinion, the evidence of the police
officers and the arrest report, referred to above, constitutes an objective
basis for the Board’s belief. Paragraph 37(1)(b) of the Act includes
international drug trafficking; see the decisions in Canada (Minister of
Citizenship and Immigration) v. Dhillon (2012), 413 F.T.R. 21 at paragraph
66 and Sidhu v. Canada (Minister of Citizenship and Immigration) (2012),
424 F.T.R. 110 at paragraph 35. There was sufficient evidence to support the
Board’s conclusion that there was a serious possibility that the Applicant
knowingly engaged in transnational crime, that is the importation of heroin.
[33]
I am satisfied that the Board’s ultimate
findings, about the Applicant’s inadmissibility to Canada, are reasonable and
meet the test for reasonableness set out in Dunsmuir, supra.
There is no basis for judicial intervention.
[34]
In the result, this Application for judicial
review is dismissed. There is no question for certification arising.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, there is no
question for certification arising.
“E. Heneghan”
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