Docket: IMM-4621-16
Citation:
2017 FC 568
Vancouver, British Columbia, June 9, 2017
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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BABAK AGHEVLI
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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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JUDGMENT AND REASONS
[1]
On this application, Babak Aghevli challenges a
decision of the Immigration Division of the Immigration and Refugee Board [Board]
by which he was declared inadmissible on the grounds of organized criminality
and ordered deported. Mr. Aghevli contends that the Board erred by misapplying
section 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001
c27 [IRPA] to the evidence.
[2]
The underlying facts of Mr. Aghevli’s
immigration problems are not materially in dispute. The Board’s inadmissibility
finding was based on Mr. Aghevli’s undisputed involvement in a narcotics
trafficking enterprise described by the Board as a “dial-a-dope
operation on the North Shore of Vancouver”. Mr. Aghevli’s role was that
of a weekend street-level seller working under the direction of Waheed Kara.
Mr. Aghevli was one of a number of “runners”
working for Mr. Kara. Although Mr. Aghevli was never criminally charged, his
trafficking activity was established by way of a police undercover operation.
Mr. Kara was, on the other hand, convicted for his role and sentenced to three
years in custody.
[3]
Mr. Aghevli’s principal argument is that the
Board had no evidence that he was aware of the scope of Mr. Kara’s trafficking
operation. Without proof that Mr. Aghevli knew that the operation consisted of
more members than solely Mr. Kara and himself, the Board could not reasonably
find that he was a knowing participant in a criminal organization. This, he
says, flows from my finding in Saif v Canada (MCI), 2016 FC 437, [2016] FCJ
No 412 (QL) [Saif], that, for the purposes of applying section 37(1)(a),
a criminal organization requires the concerted activity of three or more
participants. Mr. Aghevli also takes from the decision in Saif , above, that
the involvement of independent parties in the narcotics supply chain do not
count as participants in the organizational structure required by section
37(1)(a).
[4]
According to Mr. Aghevli, the Board erred by
concluding that he must have known the cocaine he was selling came from someone
above Mr. Kara in the supply chain and he was thus part of a criminal
organization. In the absence of evidence of some recognized organizational
structure (e.g. identity, leadership, territory), Mr. Aghevli says there was
nothing to support a finding that the supplier was a member of the operation.
[5]
Indeed, the only evidence on point, he contends,
was to the effect that the “kilo level” supplier
to Mr. Kara was operating independently of Mr. Kara’s operation (see the
testimony of Sgt. Koberly at pp 205-206 of the Applicant’s Record). The
argument is summarized in the Applicant’s Memorandum of Argument in the
following way.
21. It is submitted that the
above-noted analysis does not fall within the range of acceptable outcomes
because there is no indication that the Member considered the legal necessity
for the existence of common organizational characteristics that was mandated by
the Court of Appeal in Sittampalam. It is submitted that, had the Member
properly considered these factors, she would have been obliged to find that
there was no reason to suspect that Waheed KARA had any organizational ties to
his drug supplier(s) and that it was therefore unreasonable to find that his
relationship with his drug supplier(s) could be characterized as an
organization. The Member's failure to consider the presence of any common
organizational characteristics resulted in her to apply [sic] an
interpretation of the definition of a criminal organization that was
unreasonably broad and far too flexible. Since it was unreasonable to find that
Waheed KARA’s cocaine supplier(s) were members of an organization with Waheed
KARA, there was no reason for the Member to find that the applicant was a
member of a criminal group containing more than two people. It was therefore
unreasonable to find that he was a member of a criminal organization as
described in section 36(1)(a) [sic] and this decision should be
overturned on this basis.
[6]
There are two fundamental problems with Mr.
Aghevli’s argument.
[7]
Mr. Aghevli draws comfort from a point I made by
analogy in Saif, above, that bare street level purchasers of drugs
cannot be seen as falling within the organizational structure contemplated by section
37(1)(a). I described that type of involvement as “peripheral”
to the existence “of a pattern of criminal activity
planned and organized by a number of persons acting in concert in furtherance
of a commission of an offence . . .”.
[8]
In this case, the Board found at para 37 that “Kara was buying large amounts of cocaine from another person
and then re-selling street level amounts of cocaine himself with the assistance
of Mr. Aghevli”. Mr. Aghevli had knowledge that the operation consisted
of “at least three people” and he was therefore
a knowing participant in the criminal organization.
[9]
The Board is, of course, entitled to
considerable deference in the area of fact finding. It is also entitled some
latitude in the interpretation of the IRPA. A helpful discussion about
the applicable standard of review can be found in the following passage from Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]:
[11] It is worth repeating the key passages
in Dunsmuir that frame this analysis:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
. . . What
does deference mean in this context? Deference is both an attitude of the court
and a requirement of the law of judicial review. It does not mean that courts
are subservient to the determinations of decision makers, or that courts must
show blind reverence to their interpretations, or that they may be content to
pay lip service to the concept of reasonableness review while in fact imposing
their own view. Rather, deference imports respect for the decision-making
process of adjudicative bodies with regard to both the facts and the law. The
notion of deference “is rooted in part in respect for governmental decisions to
create administrative bodies with delegated powers” . . . . We agree with
David Dyzenhaus where he states that the concept of “deference as respect”
requires of the courts “not submission but a respectful attention to the
reasons offered or which could be offered in support of a decision” . . . .
[Emphasis added; citations omitted; paras. 47-48.]
[12] It is important to emphasize the
Court’s endorsement of Professor Dyzenhaus’s observation that the notion of
deference to administrative tribunal decision-making requires “a respectful
attention to the reasons offered or which could be offered in support of a
decision”. In his cited article, Professor Dyzenhaus explains how
reasonableness applies to reasons as follows:
“Reasonable”
means here that the reasons do in fact or in principle support the conclusion
reached. That is, even if the reasons in fact given do not seem wholly adequate
to support the decision, the court must first seek to supplement them before
it seeks to subvert them. For if it is right that among the reasons for
deference are the appointment of the tribunal and not the court as the front
line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc,
then it is also the case that its decision should be presumed to be correct even
if its reasons are in some respects defective. [Emphasis added.]
(David Dyzenhaus, “The Politics of
Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The
Province of Administrative Law (1997), 279, at p. 304)
See also David Mullan, “Dunsmuir v. New
Brunswick, Standard of Review and Procedural Fairness for Public Servants:
Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip
Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law
(5th ed. 2009), at p. 380; and Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63.
[10]
The Board’s interpretation in this case of what
constitutes a criminal organization is accordingly deserving of judicial
respect. It does not seem unreasonable to me that the analogy used in Saif,
above, was not applied by the Board to the relationships that existed in this
case. Although there may well be varying degrees of organizational structure,
leadership, and hierarchy in the distribution of drugs, everyone involved is
presumably working in furtherance of a common goal – that is, to get the
product into the hands of the users. Although Mr. Kara may have enjoyed a
degree of independence from his own supplier or suppliers, the activity still
required some planning within a network of participants acting together in the
furtherance of the commission of an offence. The Board, by implication, found
it sufficient that Mr. Kara had to have had an ongoing business relationship
with a wholesale supplier and Mr. Aghevli must have known about it. I also do
not accept that it was unreasonable for the Board to find a criminal
organization in the face of Sgt. Koberly’s testimony. Although Sgt. Koberly did
speak to a level of independence commonly existing within narcotics
distribution networks, he did not say that ongoing supply relationships did not
exist among the participants.
[11]
I am also not convinced that the Board was
unmindful of Mr. Aghevli’s awareness of other street-level runners operating
within Mr. Kara’s group. The Board did note that there was no direct
evidence of that knowledge but it also observed that Mr. Kara was moving large
amounts of cocaine over an extended period of time. Mr. Aghevli was only
working on weekends. Common sense suggests that he was aware of others working
at his level. This inference is consistent with the Board’s statement that Mr.
Aghevli knew “that at least three people were
involved with Kara’s operation at any given time”.
[12]
This inference is also consistent with evidence
in the record that Mr. Aghevli shared a cell phone with another street-level
seller working for Mr. Kara, and had disclosed to an undercover officer that he
was the “new guy” working the phone on weekends.
Although the Board did not refer to this evidence, it is open to the Court to
consider the entirety of the record to assess the reasonableness of the
decision: see, Newfoundland Nurses, above.
[13]
For the foregoing reasons, the application is
dismissed. Neither party proposed a certified question and no issue of general
importance arises on this record.
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