Docket: IMM-11762-22
IMM-11916-22
Citation: 2025 FC 448
Ottawa, Ontario, March 11, 2025
PRESENT: Mr. Justice Pentney
BETWEEN: |
NATHANIEL RANDY-AKOMI
|
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant, Nathaniel Randy-Akomi, seeks judicial review of the decision of the Immigration Division [ID] to issue two deportation orders against him. The ID found the Applicant to be inadmissible for serious criminality pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and paragraph 229(1)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The Panel also found the Applicant to be inadmissible for participation in organized criminality pursuant to paragraph 37(1)(a) of IRPA and paragraph 229(1)(e) of the IRPR.
[2] The Applicant submits that the ID decisions should be overturned because he was denied procedural fairness due to the ineffective assistance of counsel. He was represented by an immigration consultant at the ID hearing, and did not contest the allegations of serious criminality or being a member of a criminal organization. The Applicant claims this was because his immigration consultant did not properly advise him of the ramifications of being found inadmissible for participation in organized crime. Based on the Applicant’s concession to the allegations of serious criminality and involvement in organized crime and its assessment of the evidence about his criminal convictions, the ID found the Applicant to be inadmissible on both grounds and issued deportation orders against him.
[3] The Applicant launched judicial reviews, challenging both decisions. The judicial reviews were heard together, and a copy of this judgment and reasons will be placed in both files.
[4] For the reasons that follow, the Applicant’s applications for judicial review will be dismissed. Although I accept that the Applicant’s former representative’s advice fell below professional standards of competence, I am not persuaded that there was any miscarriage of justice as a result of the ineffective assistance of the former representative.
I. Background
[5] The Applicant is a citizen of Ghana. He became a permanent resident of Canada in 2001.
[6] Between 2006 and 2016, the Applicant accumulated numerous convictions, including for fraud, possession of property obtained by crime, uttering a forged document, trafficking in identity information, conspiracy, and assault. A summary of some of these offences indicates that the Applicant worked with several accomplices to open accounts at various bank branches, using a forged Ontario driver’s license, and other illegally obtained documents such as a credit card or birth certificate. The Applicant and his accomplice received a debit card to access the account. The Applicant subsequently drove the accomplice to the bank branches to deposit cheques, which had been stolen. The funds were then withdrawn from the accounts, causing the banks to lose significant sums of money.
[7] Two documents in the record provide an insight into the nature of the Applicant’s criminal history. In April 2012, he entered a guilty plea to a number of charges including conspiracy to commit fraud, using a forged document and breach of probation. These incidents involved the Applicant using forged cheques to defraud various banks. At sentencing, the judge described the Applicant as “a willing party to large-scale frauds over a significant period of time, with lots and lots of involvement by yourself... making large-scale raids on commercial banks…”
[8] In December 2014, a search warrant was executed at the Applicant’s home, resulting in the seizure of cellular phones and a computer. A forensic analysis of the cellular phones and computer recovered images of text files containing identity information belonging to several Canadians, as well as credit card information and other personal information. Several pictures of forged identification documents, confirmed to have been used to commit fraud, were also located on the Applicant’s phone.
[9] In August 2013, the Applicant was reported as inadmissible to Canada pursuant to paragraphs 36(1)(a) and 37(1)(a) of IRPA. In June 2017, the Canada Border Services Agency [CBSA] sent a letter to the Applicant informing him that an inadmissibility report had been prepared against him and inviting him to make submissions about whether a removal order should be issued against him. In July 2017, the Applicant’s immigration consultant, Mr. David LeBlanc (the “consultant”
or “Mr. Leblanc”
), made submissions arguing that the Applicant’s actions did not meet the definition of organized criminality pursuant to paragraph 37(1)(a) of IRPA, and that humanitarian and compassionate (H&C) factors, including the best interests of the Applicant’s two Canadian-born children, weighed in favour of not issuing a removal order.
[10] Although the record shows that on October 14, 2013, a CBSA Officer referred the Applicant for an admissibility hearing pursuant to s. 44(2) of IRPA in relation to serious criminality (para 36(1)(a)) and organized crime (para 37(1)(a)), it does not appear that the Applicant was advised of this at that time. He says that he was only advised of this on August 25, 2022.
[11] Prior to the admissibility hearing, the Applicant consulted Mr. LeBlanc. These interactions form the basis of the Applicant’s allegation of ineffective assistance against his former representative (a Registered Immigration Consultant), and they are discussed in more detail below. The key point here is that at the outset of the hearing before the ID, Mr. LeBlanc indicated that he was instructed by the Applicant to concede both the allegations of serious criminality and participation in organized crime. Based on the concessions, and the evidence about the Applicant’s criminality, the ID Member found him inadmissible based on serious criminality pursuant to paragraph 36(1)(a) and participation in organized criminality pursuant to paragraph 37(1)(a). As a result of those findings, the ID issued two deportation orders against the Applicant.
[12] The Applicant seeks judicial review of the ID’s decision to issue these two orders.
II. Issues and Standard of Review
[13] The only issue in this case is whether the Applicant has demonstrated that he was denied procedural fairness because of ineffective assistance of counsel.
[14] The Applicant’s claim of ineffective assistance of counsel is being raised for the first time on judicial review, and therefore it does not engage a standard of review: Discua v Canada (Citizenship and Immigration), 2023 FC 137 [Discua] at para 31. Instead, the principles summarized by Justice Norris in Discua apply:
[30] The framework within which an allegation of ineffective assistance of counsel is to be assessed in the context of an application for judicial review under the IRPA is well-established. First, as a prerequisite to having the issue considered by the reviewing Court, an applicant must establish that former counsel has had a reasonable opportunity to respond to the allegations. Then, on the merits of the allegation, the applicant must establish that the conduct of former counsel was negligent or incompetent (the performance component) and that this resulted in a miscarriage of justice (the prejudice component). See, among other cases, Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36-38; Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 33-39; and Nik v Canada (Citizenship and Immigration), 2022 FC 522 at paras 22-24.
[15] The procedures for raising such claims were set out in the Court’s Protocol Re Allegations against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014). The protocol has since been further elaborated upon and incorporated into the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (June 24, 2022, last amended October 31, 2023) (see paragraphs 46-63) [the Guidelines]. The steps set out in the Guidelines help to ensure that all relevant information is before the Court when an allegation is made against former counsel. It also provides procedural fairness to former counsel, whose competence is being called into question and whose professional reputation is therefore at stake.
III. Analysis
A. The legal framework for allegations of ineffective assistance of counsel
[16] There are two components to the legal framework that apply here: procedural requirements, and the substantive test for demonstrating ineffective assistance of counsel.
[17] On the procedural point, fairness demands that before the Court considers an allegation of ineffective assistance, notice of the allegation is provided to the former representative (including legal counsel or an immigration consultant) and that they have an opportunity to respond. The procedure is set out in the Guidelines, which requires the former representative to be provided with sufficient information about the allegation to respond with whatever explanation they wish to provide. The initial notice is to be provided prior to the application for leave and judicial review being filed, and any response from the former representative is to be included in the leave materials. If leave is granted, the former representative is to be advised so that they can decide whether they wish to retain counsel and seek leave to intervene to provide further evidence and/or representations at the hearing.
[18] In this case, current counsel for the Applicant advised the former representative about the specific allegations of ineffective assistance before leave was sought, and the former consultant’s affidavit in response to those claims was filed with the Court. These are discussed below.
[19] The Applicant’s counsel also served the leave granted Order on the former representative on June 17, 2024, some ten days prior to the date set for the hearing of this matter. That did not comply with the requirement set out in the Guidelines that the Order be served on former counsel within five days of the Order. However, I am satisfied that no injustice resulted from this, because during the interval between the date of service and the hearing date, the former representative had sufficient time to apply for leave to file further evidence or to retain counsel and to apply to intervene, but he did not do so. I am satisfied that the Court had sufficient information to assess the allegations of ineffective assistance, and that there was no unfairness to the former representative: Pacheco v Canada (Citizenship and Immigration), 2018 FC 617 [Pacheco] at para 20; Discua at paras 46-51.
[20] In order to establish ineffective assistance, the Applicant must demonstrate that the former representative’s conduct was negligent or incompetent (the performance component) and that a miscarriage of justice resulted from the conduct (the prejudice component): Discua at para 30. In R v GDB, 2000 SCC 22, [GDB], the Supreme Court of Canada ruled that miscarriages of justice may take many forms in the context of ineffective assistance of counsel, including where the impugned conduct may have resulted in procedural unfairness or where the reliability of the outcome of the proceeding may have been compromised: GDB at para 28.
[21] In many cases, the focus of the prejudice element has been on whether, “but for the impugned conduct, there is a reasonable probability that the outcome would have been different…”
(Kandiah v Canada (Citizenship and Immigration), 2021 FC 1388, at para 48). However, this is not always required, if the allegedly ineffective assistance resulted in an unfair proceeding. Nothing turns on this point in the present case, as explained below.
[22] Allegations of ineffective or incompetent assistance must be sufficiently specific and clearly supported by the evidence. And there is a strong presumption that the former counsel’s conduct fell within the wide range of reasonable professional assistance: Pacheco at para 26, citing Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17. A reviewing court must avoid second-guessing the tactical decisions of counsel, and the wisdom of hindsight has no place in the assessment: GDB at par 27.
B. The allegations of ineffective assistance
[23] At the hearing of this application, the Applicant raised two instances of ineffective assistance: the advice that he should concede the organized crime allegation under s. 37, and the advice that his best chance to remain in Canada was by applying for H&C relief. He claims that this advice fell below the standard of professional competence, and that he was prejudiced because he followed his former representative’s advice.
[24] I note in passing that the current counsel’s letter advising the former representative about the allegations of ineffective assistance mentioned other matters, including the failure to allege abuse of process because of the delay between the inadmissibility reports and the notice of the hearing before the ID. These matters were not pursued in submissions before the Court, and it is therefore not necessary to address them here.
[25] The evidence on the allegation of ineffective assistance is contained in the Applicant’s affidavit and exhibits, including email exchanges with his former representative, as well as in the affidavit provided by the former representative. There was no cross-examination on either affidavit.
[26] There is agreement on a few points in the chronology. First, both the Applicant and former representative state that in response to the admissibility reports prepared in June 2017, the former representative filed submissions denying that the Applicant’s criminal conduct met the definition of organized criminality under s. 37. In these submissions, the representative also put forward an argument that the Applicant should have to face an inadmissibility hearing based on H&C considerations relating to his life in Canada and his relationship with his children. It is agreed that neither the Applicant nor the former representative received the October 2017 inadmissibility report when it was first issued.
[27] There is also agreement that in September 2022, the Applicant retained the former representative to represent him before the ID when he received notice of the admissibility hearing. At that time, the Applicant and his representative received a disclosure package which, among other things, detailed the Applicant’s 17 criminal convictions, and a subsequent disclosure contained Justice Rosenberg’s reasons for sentencing dated November 2, 2016 (discussed below).
[28] The narratives diverge on the sequence of events that resulted in the Applicant’s former representative conceding the allegations of serious criminality and participation in organized crime before the ID. The Applicant states that prior to the ID hearing, “I was advised by my former representative… at an in-person meeting, that I had no choice but to concede to the allegations since I was already found guilty in my criminal court case. I feel like I was misled as [the former representative] did not explain my options and the process to me thoroughly.”
The Applicant acknowledges that he was advised that if the organized crime allegation was sustained, he would not be able to appeal the decision to the Immigration Appeal Division. However, he points to an email from his former representative that held out the possibility that he could still seek H&C relief.
[29] The Applicant’s claim of ineffective representation relies heavily on an email he received from his former representative on October 19, 2022, which contained the following advice:
The Immigration Division will review all of the additional information they sent to us last week, and the content of both reports – the original 142 pages, and the additional disclosures sent last week, are clear that the IRCC ID has a clear case of describing you as being a member of Organized Crime. In the hearing, they will ask me as your counsel, if you are described in IRPA Sec. 37. We can say no, you are not, and then they will fight with us all day, to wear you down, and then the conclusion will be the same.
Sadly, Sec. 37 hearings at the ID do not have any appeal recourse to the IAD – the Immigration Appeal Division. It is one of 2 criminality determinations that are not appealable.
The Hearings officer confirmed that they did make an error in the notes of a previous deportation order. He also confirmed that it will be the Dept’s intent to issue a deportation order at the end of the hearing.
I do need your instructions on if you wish us to concede – agree to their findings of you being described in this Section. Please confirm your wishes.
I am inviting both you and your Canadian partner […] to call and make an appointment to discuss this, and next steps.
The strongest option to rescue you from being removed, is to do a Humanitarian and Compassionate application.
Humanitarian and Compassionate (H&C) applications are unique, and building a good application takes imagination, patience, and strong story telling.
Your story is unique, and there are many strong points to emphasise now in spite of this pending hearing:
you have not had any legal conflicts since 2014
you have established yourself for 21 years in Canada
you have Canadian children, that we will present arguments for the Best Interests of the Child
you have friends, family here
you have a Canadian girlfriend, who may be willing to marry – request your continuing presence with her here
you are gainfully employed
you have applied for a pardon
you have made efforts to rehabilitate – and seeing a therapist – pastor
We need to take your life story and your 21 years already in Canada, and make it into a compelling narrative, one that the Visa Officer makes a personal connection to. That officer needs to be moved by your story: it is their vote that gets them to be allowed to stay. And the file is always best begun early, and in your circumstances well in advance of Removals action being started.
(emphasis in original; coding errors have been deleted for ease of comprehension)
[30] The Applicant claims this advice fell below the standards of professional competence because failing to challenge the allegation of organized criminality made him ineligible to file a H&C claim under s. 25 of IRPA. He says that the former representative did not explain this to him. The Applicant points out that the October 19 email quoted above contained a quote for professional services for preparing a H&C request which he says supports his claim that he was misled into believing that he could still pursue this avenue. He emphasizes that his the former representative portrayed the H&C request as the “strongest option to rescue [him] from being removed.”
[31] The Applicant argues that this evidence meets the performance element of the test, because it shows that his former representative provided advice that misrepresented the legal effects of conceding the organized crime allegation.
[32] The former representative’s affidavit paints a different picture of his interactions with the Applicant. He states that from the very beginning of their working relationship, the Applicant had indicated that he was not part of any organized crime group but rather that he had acted on his own. Based on this understanding, the representative filed representations in July 2017 arguing that the Applicant’s criminality did not meet the definition of organized crime set out in s. 37 of IRPA and advancing H&C considerations in favour of leniency on the serious criminality allegation. The representative indicated that he did not believe there was any realistic chance of contesting the serious criminality allegation based on the Applicant’s record of convictions.
[33] The representative stated that the Applicant had reported that he received a terms and conditions letter from the CBSA in December 2017, which led the representative to conclude that his submissions had been successful and no referral to an admissibility hearing would be made.
[34] However, on September 6, 2022, the Immigration and Refugee Board contacted the representative asking whether he still represented the Applicant because they wanted to schedule an admissibility hearing. The representative replied that he had not acted for the Applicant for several years and did not have current contact information for him. Later in September, the Applicant visited the representative’s office with a copy of the Notice of Hearing before the ID. The Applicant asked the former representative to act for him at this hearing. Around this time, the representative received new disclosures from the CBSA, setting out the Applicant’s 17 criminal convictions. A subsequent disclosure provided Justice Rosenberg’s 2016 sentencing reasons, which provided further insights into the Applicant’s role in the crimes.
[35] The representative provided the following explanation of the advice he provided to the Applicant on the key issues in question:
13. I met with [the Applicant] in office several times between October 11th and 19th, 2022 and discussed what was contained in new disclosures from CBSA, how he wanted to handle matters on the day of the Hearing: if he wanted to proceed either as described in CBSA’s materials, or contest the allegations. We had hours of long discussions in the office and on the phone. I explained to him that, if he was found not to be inadmissible for organized criminality, there were merits to a humanitarian and compassionate file.
14. The emailed recap of these discussions, sent on October 19th, 2022, was merely a summary and did not clearly capture all of the details of what we had discussed. This did include a summary of my assessment of the merit of trying to deny the allegations of organized criminality. Based on the new disclosure from CBSA, it became clear to me that trying to deny the allegations of organized criminality would be extremely difficult, and not likely to be successful. While I understood that the onus was on the Minister to prove the allegations on a reasonable grounds to believe standard, this is a very low threshold (see for example Vimalenthirakumar v Canada (Citizenship and Immigration), 2010 FC 1181, para 12), and the Minister had Canadian police reports and judicial sentencing reasons to support the allegation of organized criminality. While I wish the circumstances had been different for [the Applicant], and sincerely desired the most favorable outcome for him, I had to acknowledge the realities of the merits of his case.
[36] In addition, the former representative added the following information about the steps that preceded the ID hearing:
17. On November 8th, 2022, the morning before the Hearing, I spoke to [the Applicant] to discuss hearing procedures, and the content of the CBSA disclosure documents. I asked if he agreed that the Ontario Court of Justice’s Sentencing Record sent separately by CBSA was accurate and did describe him as a member of an Organized Crime group. He admitted that yes, it was accurate. He confirmed that he did not wish to prolong the process and was prepared to concede to the issue of organized criminality at the Hearing the next day.
18. Based on [the Applicant’s] admission that CBSA’s evidence was accurate in this regard, I could not represent facts which I then knew to be false. Section 12 of the Code of Professional Conduct for College of Immigration and Citizenship Consultants Licensees, SOR/2022-12, states, “A licensee must not, in any of their professional dealings, knowingly assist in or encourage dishonesty, fraud or illegal conduct.” I was therefore extremely limited in my ability to contest the organized criminality allegations, and had instructions from my client who had been properly informed not to contest these allegations.
[37] Based on this explanation, the former representative denies that he provided ineffective representation. He says that while he provided a quotation for the fees associated with a H&C request, this was on the understanding that such a claim would only proceed if the Applicant decided to contest the organized crime allegation. The representative states that he consulted with senior immigration counsel on the options available for the Applicant. Based on their advice, the former representative concluded that the best approach was to pursue Ministerial Relief pursuant to s. 42.1 of IRPA, since that form of relief was not barred by the inadmissibility findings. However, before he could take any steps on that option the Applicant advised that he had retained his current counsel.
[38] The question is who to believe. If I accept the Applicant’s evidence, I would have little difficulty finding that the performance component of the ineffective assistance test had been met. Advice that the Applicant should concede the organized crime allegation and then pursue H&C relief would clearly fall below the standard of competent representation because it ignores the clear wording of s. 25 of IRPA, which bars a claimant who is inadmissible under s. 37 from seeking H&C relief.
[39] On the other hand, if I accept the former representative’s narrative, the Applicant received advice both on the limited prospects of a successful challenge to the organized criminality allegation and on the strength of a H&C claim if he did decide to contest the organized criminality allegation.
[40] The evidentiary record on this question is somewhat mixed. On the one hand, the former representative’s email to the Applicant dated October 19, 2022, is consistent with the Applicant’s version of events. It describes the difficulty the Applicant would face in challenging the organized crime allegation, and then states that “[t]he strongest option to rescue you from being removed, is to do a [H&C] application.”
The email does not indicate that these are alternative courses of action, and it summarizes the submissions that could be made in support of an H&C claim, as well as the fees the representative would charge for assembling and submitting it.
[41] Two other emails in the record tend to support the Applicant’s evidence. In reply to the October 19, 2022 email summarized above, the applicant sent the following email dated October 20, 2022:
Good morning David. I totally take full responsibility of my [charges] and wouldn’t want to prolong the matters. Let’s just go ahead with everything. I will call in and book an appointment to come in with my girlfriend […] so you can explain everything to her. And also bring some money so we can start the process of the Humanitarian and compassionate application.
[42] On October 25, 2022, the former representative sent an email to the Applicant saying, in part, “thanks so much for today’s meeting with [the girlfriend]: she was able to give very valuable additions to the Humanitarian file.”
That message set out payment details regarding the H&C application, and then stated “Confirming you and [the girlfriend] will begin this file next Monday October 31st…”
[43] This is all consistent with the Applicant’s evidence that he believed that he could concede the organized crime allegation and still pursue a H&C claim. The transcript of the hearing before the ID provides some support for this as well. Early on in the hearing, the former representative stated: “I have had extensive meetings with my client… and he has instructed me and given me authority to concede.”
The representative indicated he had some submissions he wished to make, including to clarify an error in the admissibility report. He also raised the lengthy delay between the October 2017 admissibility report and the notice of hearing received in 2022. The former representative and ID member then had the following exchange:
COUNSEL: … And, you know, this may not be the place or the time because of the fact that, you know, this is not the Appeals Division, but, you know, there are a long list of extenuating circumstances around humanitarian grounds to ask for some leniency in your decision. And that is -- those are the end of my points.
MEMBER: Sorry, I am just -- on the last point, I am not clear. Could you repeat, like, the last couple sentences that you said there?
COUNSEL: Yes. There are a long series of humanitarian factors that -- I mean, we thought that in our submissions in the end of 2016, 2017, to the Division when he was called in to Airport Road, we thought that those arguments had been taken into account and taken seriously, and we did not know until we received this package, this disclosures, that there were comments in -- you know, dismissing them, you know, because of the 36 and 37 citations.
MEMBER: Right, but in terms of what I can do today, like, I cannot take into account Humanitarian and Compassionate considerations.
COUNSEL: Yeah. This is what we realized. So, it is -- I mean, it is one (1) thing to have a concern, but it is knowing the right place to deliver them, and today is not the right place.
[44] This provides support for the Applicant’s position, insofar as it indicates that the former representative had intended to ask for leniency based on H&C factors, but by the time of the hearing he had realized that it was not the proper forum to advance that argument. I note that there is no indication in the transcript exchange that the former representative understood that the Applicant was ineligible to submit a H&C claim by virtue of the concession on the organized crime allegation.
[45] On the other hand, there is evidence to buttress the former representative’s narrative regarding the sequence of events. His submissions on the original inadmissibility report contested the organized crime allegation based on his understanding of the Applicant’s involvement in those crimes. He also put forward lengthy and detailed H&C submissions, showing a strong familiarity with the Applicant’s situation. The former representative’s sworn evidence is that his approach to the Applicant’s situation had to evolve once he learned of the extensive criminal record as well as the organized nature of the criminality. The former representative indicates that he advised the Applicant that the only seek H&C relief if he contested the organized crime allegation, but he also provided his assessment of the difficulty of challenging that allegation.
[46] In my view, it is important that the Applicant did not challenge or contradict the former representative’s evidence about the meeting that occurred the day before the ID hearing. The former representative states that he discussed the H&C claim with the Applicant and his girlfriend, and steps were taken to begin the process. However, the former representative emphasizes that this was done before the Applicant admitted the truth of the narrative set out in the CBSA disclosure regarding his participation in organized criminality. Once that admission was made, the day before the ID hearing, the former representative rightly concluded that his professional ethical obligations prevented him from advancing evidence or arguments contesting the s. 37 allegation.
[47] It is also telling that the Applicant did not contest the former representative’s evidence that they had several meetings and lengthy discussions. The documentary record is consistent with the former representative’s statement that until he received the CBSA disclosure in October 2022, he was not aware of the nature and extent of the Applicant’s criminal record. The representative’s July 2017 submissions on the admissibility report are consistent with this, as is the opening part of the representative’s October 19, 2022 email to the Applicant, in which he stated:
If things were exactly as you described in our first meetings in July 2017, we would have a completely different approach to your hearing coming up on Wednesday November 9th. Because the Immigration Dept never sent you, or I, a copy of their referral report from October 3, 2017, we were not aware of the referral to a full hearing, which has now just come up after 5 full years! If we did, we could have jumped into action then.
[48] In the end, however, the evidence that I find most compelling on this point is the Applicant’s response to the October 19, 2022 email, in which he states:
I totally take full responsibility of my changes (sic) and wouldn’t want to prolong the matters. Let’s just go ahead with everything. I will call in and book an appointment to come in with my girlfriend […] so you can explain everything to her. And also bring some money so we can start the process of the [H&C] application.
[49] The first part of the email indicates that the Applicant accepted the former representative’s advice and decided not to contest the organized criminality allegation, so as not to “prolong the matters.”
The second part of the email indicates that despite this concession, the Applicant nevertheless intended to pay the former representative to prepare an application for H&C relief.
[50] In my view, this confirms the Applicant’s understanding of the former representative’s advice prior to the hearing, and it reflects the contents of the former representative’s October 19th email. While I do not reject the former representative’s evidence that he provided an accurate statement of the law in previous meetings, the email exchange is telling. In particular, the Applicant’s October 20th reply message confirms that he was operating under a false understanding of the law, which reflects the advice set out in the former representative’s email of October 19th.
[51] As indicated previously, there can be no doubt that advising the Applicant that the “strongest option to rescue [him] from being removed is to do a [H&C] application”
might have been accurate, if it was not tied to advice that he should not try to challenge the organized criminality allegation. The advice set out in the former representative’s email of October 19th falls below the standard of professional competence because it ignored the clear and unequivocal wording of s. 25 of IRPA, which bars H&C claims by persons found inadmissible for organized criminality.
[52] Based on the reasons set out above, I conclude that the Applicant had established that the former representative’s advice fell below the standard of professional competence. The performance component has therefore been made out.
[53] The next step is to determine whether a miscarriage of justice has been established. I will state at the outset that for the reasons set out below, I am not persuaded that there has been any miscarriage of justice in this case.
[54] The key question on this element of the test is whether the Applicant had any realistic chance of contesting the organized crime allegation. His current counsel rightly points out that in previous cases this Court has found that the failure to present evidence or to challenge the Minister’s evidence could satisfy the prejudice component of the test: Tapia Fernandez v Canada (Citizenship and Immigration), 2020 FC 889 at para 31. The Applicant’s counsel refers to decisions supporting the view that the concept of organized criminality requires some flexibility in assessing how organized the group must be to fall within its ambit: Clarke v Canada (Public Safety and Emergency Preparedness), 2021 FC 128 at para 27.
[55] It is obvious that each case will turn on its particular facts. In my view, there was no miscarriage of justice in this case for two principal reasons. First, the day before the hearing, the Applicant admitted admission to the former representative that the facts supporting the organized crime allegations were true. The former representative quite properly concluded that he was therefore constrained by his professional obligations from putting forward evidence or arguments that contradicted the Applicant’s admission. My decision does not rest on this, because if the Applicant had been advised to contest the allegations, he may never have been asked whether the narrative supporting the organized crime allegation was true. Absent that admission, the former representative could have mounted a challenge to the allegations without breaching any of his professional duties. In doing so, the Applicant and his former representative would have simply been relying on the onus of proof (which rested with the Minister) and seeking to poke holes in the evidence and arguments put forward against him. That is consistent with the onus of proof in these sorts of cases, and the former representative would have been acting ethically in mounting a vigorous defence of his client. This did not occur, and I will therefore say no more on this point.
[56] More telling, in my view, is the evidence about the nature and extent of the Applicant’s involvement in the crimes for which he was convicted. This is set out in stark detail in two sets of reasons for sentence and a summary of the criminality that were included in the CBSA disclosure to the Applicant prior to the ID hearing.
[57] The first sentencing reasons were delivered by Justice Bellefontaine on April 24, 2012, in relation to charges of conspiracy to commit fraud, fraud over $5,000, two counts of uttering a forged document, fraudulent impersonation, as well as breach of probation. The Applicant pleaded guilty to all of the charges and was sentenced on July 31, 2012. In the sentencing reasons, the judge describes the Applicant’s criminality as “being a willing party to large-scale frauds over a significant period of time, with lots and lots of involvement by yourself… You were obviously a willing party to helping people out, making large-scale raids on commercial banks that we all end up paying for.”
[58] The second set of sentencing reasons were delivered by Justice Rosenberg on November 2, 2016. The reasons begin with an agreed statement of facts that sets out the modus operandi of the Applicant and his collaborators. The following summary provides an insight into the operation:
In executing their scheme, the following pattern developed. Mr. Akomi would pick up and transport [his accomplice] to financial institutions in the [Greater Toronto Area] and elsewhere in Ontario for the purpose of opening bank accounts, using falsified identification materials that Mr. Akomi supplied during the drive. [The accomplice] would deposit fraudulent cheques that Akomi supplied into these accounts.
The funds would then be depleted from the account and provided back to Mr. Akomi with a share going back to [the accomplice], usually 20 percent was her take.
The falsified documents ranged from business licences, phone bills, credit cards, social insurance numbers and driver's licences. The cheques were usually unlawfully acquired from legitimate businesses and then falsely paid to [the accomplice] under false identification.
[59] The judge recounts the extent to which the Applicant obtained cheques from a variety of sources, including from “connections at the post office”
and that he had false identifications “made and acquired through unknown sources.”
The Applicant drove his accomplice to various financial institutions, providing her with precise instructions about what to do in both depositing and later withdrawing funds. The reasons also describe the results of a police search warrant of the Applicant’s residence, including the discovery of cell phone and computer records containing identity information of several Canadians, credit card numbers, their expiry dates and CCV information, home addresses, social insurance numbers, birthdates and maiden names of several different people – none of whom have any relationship with the Applicant. These individuals had reported identity theft or fraudulent activity on their accounts.
[60] The inadmissibility report on the s. 37 allegation sets out the information that supports the existence of a criminal organization. It refers to a Durham Regional Police Report that indicates:
[T]he organization in question had a hierarchical structure, with a Mr. [B.E.] “at the top.” This report notes that a search of [B.E.’s] residence […] led to the seizure of “stolen cheques, colour scanned cheques, counterfeit identification depicting photographs of accused with other names, counterfeit identification in other names, passport photos of accused and other unknown males and females, Master Business Licences, and numerous bank documents involving all the major financial institutions in names of fake name account holders that match up with some of the counterfeit identification.” The report further notes that ‘a FINTRAC and FINCEN report indicated millions od dollars passing through Bradley EHIMWENMA EHSTO Management business account… with multiple suspicious transaction reports [STR’s] and large cash deposits occurring during this time period.”
Durham Regional Police Report […] also states that police received “information from a confidential human source that identified Nathaniel RANDY-AKOMI […] as working in partnership with [B.E.] to commit the frauds.”
This group also included “several unidentified ‘runners’” who “opened bank accounts with counterfeit identification” and then “handed over their bank cards and pin number” to other persons involved with the organization.
[61] The inadmissibility report discusses the Applicant’s role in the organization in some detail, with reference to a series of fraudulent transactions involving different banks. The report states that the Applicant “is clearly performing a managerial role in the organization.”
Based on this information, the report recommends referring the Applicant’s case to an admissibility hearing. This report discusses the H&C factors put forward by the Applicant, but did not find these weighed sufficiently in his favour to prevent a referral to an admissibility hearing.
[62] This is the evidence that the former representative had assessed when he advised the Applicant about the challenges, he would face in contesting the organized criminality allegation. In his affidavit, the former representative acknowledged that the onus lies on the Minister to establish the allegation, but also pointed out that the allegations only needed to be established on a “reasonable grounds to believe”
standard, which is a very low threshold. This is an accurate description of the law: see Clarke v Canada (Public Safety and Emergency Preparedness), 2021 FC 128 at para 11. The “reasonable grounds to believe”
standard “requires something more than mere suspicion, but less than the standard applicable in civil matters of proof.”
: Canada (Minister of Citizenship and Immigration) v Tran, 2016 FC 760 at para 22, and the cases cited therein.
[63] The question that arises is whether the Applicant has established that a miscarriage of justice occurred as a result of the ineffective assistance of counsel. I am not persuaded that the Applicant has met his burden on this point. I find that there was overwhelming evidence in the record regarding the nature and extent of the Applicant’s involvement over a long period of time with an organized fraud ring, and in particular the evidence of his leadership and directing role in executing the frauds on various banks. The summary of police reports and the criminal judges’ sentencing reasons confirm the Applicant’s involvement and role and describe the modus operandi of the group that he worked with in painstaking detail.
[64] In the face of this evidence, I am not persuaded by the Applicant’s argument that he could have challenged the Minister’s case or attempted to bring forward evidence on his own behalf. On this point, I note that the Applicant has not pointed to any specific evidence or legal arguments that he could have made to challenge the organized crime allegation, beyond putting the Minister to their proof.
[65] In my view, the evidence provides very strong support for the organized crime allegation, particularly considering the very low burden on the Minister of simply showing “reasonable grounds to believe”
that the Applicant was involved in organized criminality. The ID was not in a position to second-guess the trial judges’ sentencing reasons or the police reports detailing the Applicant’s involvement in the various crimes and the degree of organization that characterized the group he worked with. There was simply no realistic prospect that any attempt by the Applicant to contest the allegation would have had any chance of succeeding.
[66] For the reasons set out above, I find that there was no miscarriage of justice in the present case. The Applicant has not met his burden of establishing this element of the test, and therefore his claim that he was denied procedural fairness due to the ineffective assistance of counsel cannot succeed.
IV. Conclusion
[67] Based on the analysis set out above, the application for judicial review will be dismissed.
[68] There is no question of general importance for certification.
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