Docket: IMM-5146-14
Citation:
2015 FC 746
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, June 12, 2015
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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IONEL ION
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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
(judgment delivered from
the bench)
I.
Preliminary
[1]
The Immigration Division (ID) of the Immigration
and Refugee Board of Canada found that the applicant’s conviction on the charges
brought against him, with respect to the applicant was represented by counsel at
the time of his guilty plea, is sufficient to conclude that the applicant engaged
in activities linked to a criminal organization, according to the terms of paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
The Federal Court has recognized that a guilty
plea from an individual affiliated with a criminal organization following a modus
operandi is the best proof possible of a criminal offence since it is recognition
of the commission of an offence. In this respect, the Court adopts the words of
Justice Yvan Roy in Daia c Canada (Ministre de la Sécurité publique et de la
Protection civile), 2014 CF 198 at para 15 (Daia):
[15] She pleaded guilty to five offences
relating to her activities with this same group of people, which is the best
proof possible. She acknowledged that she committed these offences, including
having the required mens rea. These admissions cannot be reversed. Other
charges weigh on her for similar activities in Ontario. The applicant asks for
leniency in the sentence that would have been imposed on her and claims that
[translation] “the panel did not review the applicant’s testimony in its
context and in light of all the evidence”. These allegations had nothing to do
with the standard of reasonableness that was described in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, (Dunsmuir) at paragraph 47.
[3]
The ID notes, in particular, that the applicant is
a key player in the criminal operations for which he was accused and convicted.
The evidence shows that the applicant facilitated the commission of two robbery
attempts as a driver and that his role was essential to the modus operandi
of the organization, which required the motorized transportation of its members
to businesses and financial institutions. The applicant’s role as a “facilitator” was also confirmed by the testimony of Ms. Tremblay
before the ID (Transcript of hearing, Tribunal Record, at p 477).
[4]
The Court finds that in light of the evidence and
the facts that were available, it was reasonable for the ID to find that there
were reasonable grounds to believe that this organization falls within
paragraph 37(1)(a), thus, a criminal organization.
II.
Introduction
[5]
This is an application for judicial review under
the IRPA of a deportation order issued by the ID against the applicant for organized
criminality in accordance with paragraph 37(1)(a) of the IRPA.
III.
Factual background
[6]
The applicant is a citizen of Romania. On July 12,
2005, the applicant became a permanent resident of Canada.
[7]
On February 8, 2012, following the
applicant’s arrest in the police operation “Feinte 2”
of the Service de police de la Ville de Montréal, the applicant pleaded guilty
to three counts of attempted robbery of credit cards, including one count of
complicity. The applicant received a suspended sentence and a probation order
for a period of 18 months.
[8]
On October 31, 2012, the applicant was reported
under subsection 44(1) and paragraph 37(1)(a) of the IRPA. The
report was then referred to the ID for an investigation.
[9]
On March 13, 2013, proceedings were
instituted by City of Quebec against the applicant in connection with allegations
of fraud in March 2013.
[10]
On June 13, 2014, after a hearing that lasted 15
days between November 21, 2012, and May 7, 2014, the ID found that
there were reasonable grounds to believe that the applicant engaged in activities
related to a criminal organization under paragraph 37(1)(a) of the
IRPA and an exclusion order was issued against him.
IV.
Statutory provisions
[11]
Sections 33 and 37 of the IRPA are reproduced
below:
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Rules of interpretation
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Interprétation
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33. The
facts that constitute inadmissibility under sections 34 to 37 include facts
arising from omissions and, unless otherwise provided, include facts for
which there are reasonable grounds to believe that they have occurred, are
occurring or may occur.
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33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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Organized criminality
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Activités de criminalité organisée
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37. (1)
A permanent resident or a foreign national is inadmissible on grounds of
organized criminality for
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37. (1) Emportent interdiction de
territoire pour criminalité organisée les faits suivants :
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(a) being a member of an organization that is believed on
reasonable grounds to be or to have been 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 under an
Act of Parliament by way of indictment, or in furtherance of the commission
of an offence outside Canada that, if committed in Canada, would constitute
such an offence, or engaging in activity that is part of such a pattern; or
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a) être membre d’une organisation dont
il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à
des activités faisant partie d’un plan d’activités criminelles organisées par
plusieurs personnes agissant de concert en vue de la perpétration d’une
infraction à une loi fédérale punissable par mise en accusation ou de la
perpétration, hors du Canada, d’une infraction qui, commise au Canada,
constituerait une telle infraction, ou se livrer à des activités faisant
partie d’un tel plan;
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(b) engaging, in the context of transnational crime, in
activities such as people smuggling, trafficking in persons or laundering of
money or other proceeds of crime.
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b) se livrer, dans le cadre de la
criminalité transnationale, à des activités telles le passage de clandestins,
le trafic de personnes ou le recyclage des produits de la criminalité.
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Application
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Application
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(2) Paragraph (1)(a) does not lead to a determination of
inadmissibility by reason only of the fact that the permanent resident or
foreign national entered Canada with the assistance of a person who is
involved in organized criminal activity.
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(2) Les faits visés à l’alinéa (1)a) n’emportent pas interdiction
de territoire pour la seule raison que le résident permanent ou l’étranger
est entré au Canada en ayant recours à une personne qui se livre aux
activités qui y sont visées.
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V.
Issues
[12]
Is the ID’s decision finding that the applicant falls
under paragraph 37(1)(a) of the IRPA reasonable?
VI.
Analysis
[13]
Case law established that the ID’s findings
relating to the participation in activities linked to an organization referred
to in paragraph 37(1)(a) are subject to the standard of reasonableness.
These determinations of fact and mixed fact and law fall within the ID’s
expertise and are entitled to a high level of deference from the Court (Sittampalam
v Canada (Minister of Citizenship and Immigration), [2006] FCJ 1512 at para
53 (Sittampalam); Molares v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 768 at para 7).
[14]
The applicable standard of proof of “reasonable grounds to believe”, set out in
section 33 of the IRPA, requires “more than mere
suspicion” but nevertheless remains “less than
the standard applicable in civil matters of proof on a balance of probabilities”
(Mugesera v Canada (Minister of Citizenship and Immigration), [2005] SCJ
39 at para 114).
[15]
Case law establishes that the expression “organization” provided at paragraph 37(1)(a)
of the IRPA must receive a broad, flexible and liberal interpretation so that
looseness and informality in the structure of a group do not thwart the purpose
of the IRPA to ensure public safety (Lennon v Canada (Minister of Public
Safety and EmergencyPreparedness), 2012 FC 1122 at para 19; Sittampalam,
above at para 35 and 36).
[16]
This principle is further stated in
paragraphs 3(1)(h) and (i) of the IRPA, which set out that
the purpose of the IRPA includes, among other things, protecting “public health and safety”, maintaining
the “security of Canadian society”, and promoting “international justice and security by fostering respect for
human rights and by denying access to Canadian territory to persons who are
criminals or security risks”.
[17]
Moreover, since the structure of criminal
organizations varies, the ID must have some latitude to assess all the evidence
in light of the purpose of the IRPA (Sittampalam, above at para 39).
[18]
In its reasons, the ID first conducts an analysis
to determine whether there are reasonable grounds to believe that the organization
with which the applicant is associated falls under paragraph 37(1)(a)
of the IRPA.
[19]
Following a review of the evidence, including
the testimony of Ms. Tremblay and of the applicant, the ID first noted
that the organization in question was not formed by accident for the immediate
commission of a single offence.
[20]
The ID observed that the organization is composed
of sub-cells of three to five persons, formed of individuals of Romanian origin
with connection to family or friends, working together according to a modus
operandi, i.e. committing robbery of debit and credit cards by distracting
their victims. The ID also noted that these individuals used the same residence,
which was a starting point for committing offences.
[21]
Furthermore, the ID observed that the organization
does not consist of a proper name or symbol, or a formal or organizational
structure. However, the ID found that [translation]
“the members committed criminal offences according to a
well-established modus operandi, specific to their organization”
(ID’s decision, at para 44).
[22]
The Court finds that in light of the evidence and
the facts before it, it was reasonable for the ID to conclude that there were reasonable
grounds to believe that this organization falls within paragraph 37(1)(a),
thus a criminal organization.
[23]
It should be noted that the Federal Court had
come to this very conclusion in Daia, above, in which Justice Roy found
that the organization in question, which was similar to that in this case, is a
criminal organization within the meaning of paragraph 37(1)(a) of the
IRPA.
[24]
In addition, the ID considered whether there
were “reasonable grounds to believe” that the
applicant engaged in activities linked to this organization.
[25]
The ID notes, in particular, that the applicant is
a key player in the criminal operations, for which he was charged and sentenced.
The evidence shows that the applicant facilitated the commission of two
attempted robberies as a driver and that his role was essential to the modus
operandi of the organization, which required the motorized transportation
of its members to businesses and financial institutions. The applicant’s role as
a [translation] “facilitator” was also confirmed by Ms. Tremblay’s
testimony before the ID (Transcript of hearing, Tribunal Record, at p 477).
[26]
The ID found that the applicant’s criminal
conviction regarding the charges brought against him, with respect to the fact
that the applicant was represented by a lawyer when he pleaded guilty, is sufficient
to conclude that the applicant engaged in activities linked to a criminal
organization, under paragraph 37(1)(a) of the IRPA.
[27]
The Federal Court has recognized that a guilty
plea from an individual affiliated with a criminal organization following a modus
operandi is the best proof possible of a criminal offence since it is
recognition of the commission of an offence. In this respect, the Court adopts
the words of Justice Roy in Daia, above at para 15:
[15] She pleaded guilty to five offences
relating to her activities with this same group of people, which is the best
proof possible. She acknowledged that she committed these offences, including
having the required mens rea. These admissions cannot be reversed. Other
charges weigh on her for similar activities in Ontario. The applicant asks for
leniency in the sentence that would have been imposed on her and claims that
[translation] “the panel did not review the applicant’s testimony in its
context and in light of all the evidence”. These allegations had nothing to do
with the standard of reasonableness that was described in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, (Dunsmuir) at paragraph 47.
[28]
With respect to the ID’s analysis, as set out in
these reasons and the record as a whole, the Court considers that the ID’s
decision is reasonable.
VII.
Conclusion
[29]
It was reasonable for the ID to find that there
are reasonable grounds to believe that the organization concerned referred to
in paragraph 37(1)(a) of the IRPA and that the applicant engaged in
activities linked to this criminal organization.
[30]
The application for judicial review is dismissed.
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