The Fedreal Court ruled that a drug trafficker who attempted to import over 50 KG of marijuana to the US does not have the right to appeal to the IAD based on the interprestaion of the organized criminality section of IRPA. However, the court also certified a question of general importance to be decided by the Federal Court of Appeal, so a more definite answer will be forthcoming in the next few months. Excellent analysis by the court.
Canada (Minister of Citizenship and Immigration) v.
Dhillon
Between
The Minister of Citizenship and Immigration, Applicant, and
Rajinder Singh Dhillon, Respondent
[2012] F.C.J. No. 710
2012 FC 726
Docket IMM-6888-11
Federal Court
Vancouver, British Columbia
Snider J.
Heard: May 3, 2012.
Judgment: June 11, 2012.
(73 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SNIDER J.:--
I. Introduction
1 Mr.
Dhillon, a citizen of India, is a permanent resident of Canada. In October
2003, Mr. Dhillon and another man carried four hockey bags filled with 78.55 kg
of marijuana from Canada into the United States. In December 2003, Mr. Dhillon
pleaded guilty in Washington State to conspiracy to import marijuana over 50
kg; he was convicted in March 2004 and sentenced to nine months imprisonment
and three years supervised release. Upon completion of his sentence in the
United Sates, he was deported to Canada, where he faced allegations that he was
inadmissible to Canada.
2 In
a decision dated February 18, 2010 (the ID Decision), a member of the
Immigration and Refugee Board, Immigration Division (ID) concluded that Mr.
Dhillon was inadmissible to Canada for serious criminality under s. 36(1)(b) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
but not inadmissible under s. 37(1)(b) of IRPA in respect of organized crime.
3 Both
Mr. Dhillon and the Minister of Citizenship and Immigration (Minister) appealed
the ID Decision to a panel of the Immigration and Refugee Board, Immigration
Appeal Division (IAD). In a decision dated September 16, 2011 (the IAD
Decision), the IAD dismissed the appeal of the Minister from the ID Decision.
Stated differently, the IAD concluded that Mr. Dhillon was not inadmissible to Canada under s. 37(1)(b)
of IRPA. The basis of the IAD
Decision was that drug smuggling did not constitute a crime included in s.
37(1)(b).
4 In
this application for judicial review, the Minister seeks to overturn the IAD
Decision.
II. Issues
5 This
application raises one issue. Specifically, can the IAD's conclusion that Mr.
Dhillon is not inadmissible under s. 37(1)(b) of IRPA for having been convicted of conspiracy to import marijuana into the
United States withstand scrutiny on the applicable standard of review?
6 A
preliminary issue is for this Court to establish the applicable standard of
review. Is the IAD's interpretation of s. 37(1)(b) of IRPA reviewable on a standard of reasonableness or correctness?
III. Statutory Context
7 I
begin with an overview of the relevant statutory provisions.
8 Sections
36 and 37 of IRPA establish the
two bases of inadmissibility that are relevant on this application. Section 36
describes the circumstances in which a permanent resident or a foreign national
is inadmissible on grounds of serious criminality or criminality. In summary
form relevant to this application, s. 36(1)(b) provides that a person is
inadmissible on grounds of serious criminality for "having been convicted
of an offence outside Canada that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of imprisonment
of at least 10 years". There is no dispute that Mr. Dhillon falls under
this provision.
9 Section
37 establishes that an individual may also be found inadmissible on the basis
of organized criminality. Of particular relevance to this application is s.
37(1)(b):
· 37. (1) A permanent resident or a foreign
national is inadmissible on grounds of organized criminality for
· ...
· (b) engaging, in the
context of transnational crime, in activities such as people smuggling,
trafficking in persons or money laundering.
* * *
· 37. (1) Emportent interdiction de territoire
pour criminalité organisée les faits suivants :
· ...
· 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.
10 Once
a foreign national or permanent resident in Canada is found to be inadmissible,
the normal next step is the issuance of a removal order. In the case before me,
Mr. Dhillon is currently subject to a removal order because of the finding of
the ID, as affirmed by the IAD, that he is inadmissible to Canada for serious
criminality under s. 36(1)(b).
11 Most
persons who are the subject of a removal order have an automatic right of
appeal to the IAD (IRPA, above at
s. 63(3)). Pursuant to s. 67(1)(c) of IRPA, an appeal may be allowed if:
· ... taking onto account the best interests of a child directly
affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of the
case.
* * *
· ... il y a -- compte tenu de l'intérêt supérieur de l'enfant
directement touché -- des motifs d'ordre humanitaire justifiant, vu les autres
circonstances de l'affaire, la prise de mesures spéciales.
12 In
other words, a person who is inadmissible may be permitted to remain if
"special relief" is warranted on the basis of humanitarian and
compassionate (H&C) considerations.
13 However,
Parliament determined that certain persons found to be inadmissible to Canada
should not be permitted to appeal to the IAD on H&C grounds. Specifically,
s. 64 of IRPA prevents those found
inadmissible under s. 37 from appealing their removal order to the IAD:
· 64. (1) No appeal may be made to the
Immigration Appeal Division by a foreign national or their sponsor or by a
permanent resident if the foreign national or permanent resident has been found
to be inadmissible on grounds of security, violating human or international
rights, serious criminality or organized criminality.
· [Emphasis added]
* * *
· 64. (1) L'appel ne peut être interjeté par le
résident permanent ou l'étranger qui est interdit de territoire pour raison de
sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée,
ni par dans le cas de l'étranger, son répondant.
· [Je souligne]
14 For
purposes of s. 64(1), serious criminality includes only a crime that "was
punished in Canada by a term of imprisonment of at least two years" (IRPA, above at s. 64(2)). Mr. Dhillon, does
not meet this threshold as his crime was committed and punished in the United
States.
15 Simply
stated, the result of this statutory scheme is the following:
· 1.
if Mr. Dhillon is
inadmissible for serious criminality under s. 36(1)(b), he has a right of
appeal to the IAD where he may argue that sufficient H&C considerations
warrant "special relief"; and
· 2.
if Mr. Dhillon is
inadmissible on grounds of organized criminality under s. 37(1)(b), he loses
his right of appeal to the IAD.
IV. Standard of Review
16 The
question before the IAD was whether Mr. Dhillon was inadmissible to Canada on
the grounds of organized criminality. Since Mr. Dhillon does not dispute that
he committed a crime that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of imprisonment of at
least 10 years, there was no factual determination to be made by the IAD. Thus,
the only question before the IAD was one of pure statutory interpretation: Does
s. 37(1)(b) include the crime committed by Mr. Dhillon?
17 The
Court of Appeal, in Sittampalam v Canada (Minister of
Citizenship and Immigration), 2006 FCA 326 at para 15,
[2007] 3 FCR 198 [Sittampalam],
held that the assessment of the proper interpretation of the language in s.
37(1)(a) of IRPA was a question
of law subject to review on a standard of correctness. Arguably, a statutory
interpretation of the closely-related s. 37(1)(b) should be subject to the same
standard.
18 However,
I hesitate to rely wholly on Sittampalam. Since the Court of Appeal's determination of a correctness
standard, the Supreme Court of Canada has held, in a number of decisions, that
decisions of tribunals involving interpretation of their "home"
legislation are entitled to deference. As instructed by the Supreme Court of
Canada, unless the question is one of "general legal importance", a
tribunal's decision will generally be reviewed on a reasonableness standard.
For example, in Canada (Canadian Human Rights
Commission) v Canada
(Attorney General), 2011 SCC 53 at para 24, [2011] 3 SCR
471 [Mowat], the Supreme Court
unanimously wrote:
· In substance, if the issue relates to the interpretation and
application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the
Tribunal will be entitled to deference.
· [Emphasis added]
19 Does
the question of whether drug smuggling is a transnational crime within the
meaning of s. 37(1)(b) raise an issue of general legal importance? I think that
the better legal view is that it does.
20 The
question of inadmissibility of foreign nationals or permanent residents to
Canada transcends an IAD determination of whether a person is able to access
the H&C provisions in an appeal to the IAD. A finding of inadmissibility
due to serious criminality or organized crime has implications for and
application to a number of other processes involved in the immigration context.
For example, a visa officer in an overseas post must take into account the
admissibility of a person applying for permanent residence status. An
immigration officer may conclude that a claim is not eligible to be referred to
the Refugee Protection Division of the Immigration and Refugee Board because of
inadmissibility. In sum, there are many tribunals or decision-makers who must
consider and apply s. 37(1)(b) in their daily jobs. In this sense, the question
before me is one of general legal importance. I would apply a standard of
review of correctness.
21 However,
if I am wrong on this question of standard of review, I will also determine
whether the interpretation found by the IAD was reasonable. When applied to a
question of statutory interpretation, it appears to me that a decision that
does not accord with the well-established principles of statutory
interpretation will be unreasonable. As stated in Mowat, above at paragraph 33:
· The question is one of statutory interpretation and the object is to
seek the intent of Parliament by reading the words of the provision in their
entire context and according to their grammatical and ordinary sense,
harmoniously with the scheme and object of the Act and the intention of
Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at
para. 21).
22 In
Mowat, the Supreme Court
concluded that, when a full contextual and purposive analysis of the provisions
was undertaken, it became clear that no reasonable interpretation supported the
conclusion reached by the tribunal (Mowat, above at para 34).
V. IAD Decision
23 It
was not disputed before the IAD that the Respondent had engaged in activity
"in the context of transnational crime". The only issue was whether
the importation of marijuana constituted an activity "such as people
smuggling, trafficking in persons or money laundering".
24 In
determining which other activities might be covered by s. 37(1)(b), the IAD
considered the relationship between the listed activities; interpreted the
provision in light of s. 3(3) of IRPA; and considered the cases cited by the parties.
25 First,
the IAD noted that there was a relationship between people smuggling and
trafficking in persons, and, while less obvious, between people smuggling and
money laundering, as the United Nations Convention
against Transnational Organized Crime, 15 November 2000,
2225 UNTS 209 (entered into force 29 September 2003, ratified by Canada 13 May
2002) (the Convention, or UNCTOC)
references both money laundering and trafficking in persons. Noting that
corruption and obstruction of justice are also referenced in the Convention,
the IAD reasoned that an argument could be made that they also fall within s.
37(1)(b). The IAD also held that "the enumerated activities in paragraph
37(1)(b) do not all necessarily have to be connected, as Parliament could have
been providing two different types of activities and indicating that activities
such as either of those two
different activities would fall under paragraph 37(1)(b)" (emphasis in
original). As will be seen, however, the IAD went on to require that there be
"an articulable similarity between the subject offence and either human
trafficking (people smuggling/trafficking in persons) or money laundering"
as well as a "significant similarity" between the unlisted activity
and those two activities.
26 Second,
the IAD considered the interpretation of s. 37(1)(b) in light of ss. 3(3)(a),
(b), (c) and (f) of IRPA. Those
provisions, which describe the application of IRPA, are set out here for ease of reference:
· (3)
This Act is to be
construed and applied in a manner that
· (a) furthers the
domestic and international interests of Canada;
· (b) promotes
accountability and transparency by enhancing public awareness of immigration
and refugee programs;
· (c) facilitates
cooperation between the Government of Canada, provincial governments, foreign
states, international organizations and non-governmental organizations;
· ...
· (f) complies with
international human rights instruments to which Canada is signatory.
* * *
· (3)
L'interprétation et la
mise en oeuvre de la présente loi doivent avoir pour effet :
· a) de promouvoir les intérêts du Canada sur
les plans intérieur et international;
· b) d'encourager la responsabilisation et la
transparence par une meilleure connaissance des programmes d'immigration et de
ceux pour les réfugiés;
· c) de faciliter la coopération entre le
gouvernement fédéral, les gouvernements provinciaux, les États étrangers, les
organisations internationales et les organismes non gouvernementaux;
· ...
· f) de se conformer aux instruments
internationaux portant sur les droits de l'homme dont le Canada est
signataire.
27 With
respect to s. 3(3)(a), the IAD reasoned that it was not clear how reading drug
trafficking into s. 37(1)(b) of IRPA would further Canada's domestic and international interests, as the
loss of the right to appeal a removal order on humanitarian and compassionate
grounds could also hinder those interests. The IAD noted that "[t]he
evidence and argument on that point simply are not before me". The IAD
then reasoned that,
· If inclusion of all transnational crimes was the intention of
Parliament, then Parliament would likely have used other wording, to clearly
define that and given that drug trafficking is a common transnational crime, I
find it unlikely that Parliament overlooked listing it within the enumerated offences
in paragraph 37(1)(b). I must conclude that Parliament carefully chose the
language and list of enumerated offences and I am bound to interpret the
specific wording chosen by Parliament in my analysis. I note that paragraph
37(1)(a) already removes the right of appeal for persons who meet the
definition in that paragraph, of organized criminality.
28 Regarding
s. 3(3)(b), the IAD stated that excluding drug trafficking from s. 37(1)(b)
would not remove accountability for that offence, as it continues to have
serious criminal sanctions as well as serious consequences under IRPA, including the issuance of a removal
order with the right of appeal on humanitarian and compassionate grounds or
possibly removal under s. 37(1)(a). In addition, the IAD reasoned that
"'importing' drug trafficking into the enumerated list in paragraph
37(1)(b) is anything but transparent".
29 As
for s. 3(3)(c), the IAD found that it was impossible, in the absence of clearer
language indicating Parliament's intention, to conclude which interpretation
would facilitate cooperation. The IAD thus reasoned that it was only possible
to "construe the provisions of paragraph 37(1)(b) according to the
language utilized by Parliament".
30 The
IAD then considered s. 3(3)(f), and found that he had "not been directed
to any international obligation that mandates the removal of appeal rights,
based on humanitarian and compassionate grounds, for persons convicted of
serious drug charges".
31 The
third step of the IAD's reasoning included a consideration of three cases cited
by the Minister: Canada (Public Safety) v Almonte (2009), ID 0003-A8-02583; Canada (Public
Safety) v Halls (2010), ID 0003-A3-02628; and Sidhu v Canada (Minister of Public Safety and Emergency Preparedness), [2011] I.A.D.D. No. 1288 (QL), 2011 CanLII 93851 (IRB) [Sidhu]. The IAD found that the first two cases
were unhelpful and that, while relevant, the decision in Sidhu was unsupportable. In particular, the
IAD explained that he understood the panel in Sidhu to have held that very little similarity is required between the
activities listed in s. 37(1)(b) and "unlisted" activities caught by
that provision. In contrast, the IAD stated that he believed "significant
similarity is required to satisfy the description, 'such as'". The IAD
thus disagreed with the conclusion of the panel in Sidhu that the "common elements" of organized criminality and
movement across international borders linked unlisted activities to the listed
activities, and thus made drug smuggling an "obvious, although unlisted,
activity to associate with the listed activities in paragraph 37(1)(b)"
(see Sidhu, above at para 16).
According to the IAD, organized criminality is an unhelpful
"attribute" because, although "a generalized 'organized
criminality'" applies to both ss. 37(1)(a) and (b), "[t]here must be
a purpose for Parliament to have utilized these two sections, one specifying
the components of organized criminality and the other specifying 'activities such
as...' the enumerated list". The IAD further held that movement across
international borders is not a "true common factor" that can help
identify unlisted activities, because it applies to all transnational crimes,
and s. 37(1)(b) is clearly narrower.
32 The
IAD then proceeded to articulate its view that a significantly higher level of
similarity is required for an unlisted activity to be caught by s. 37(1)(b):
· The consequence of a paragraph 37(1)(b) determination is extremely
serious, being the elimination of any right to appeal. Inclusion of a category
of offences under that provision, therefore, ought not to be made without a
clear and rational association having been established. I conclude that in order for an activity to meet the test of being "such
as" the enumerated activities, there must be an articulable similarity
between the subject offence and either human trafficking (people
smuggling/trafficking in persons) or money laundering and the activity must
have significant similarity to those two activities. If
the only similarity is that the offences are transnational, as submitted by the
Minister, then this similarity has not been made out.
· [Emphasis added]
33 The
IAD accordingly dismissed the Minister's appeal, noting that the Respondent
remained subject to a deportation order under s. 36(1)(a), although he had a
right of appeal to seek humanitarian and compassionate relief.
VI. Analysis
A. The principles
34 As
noted at paragraph [16] above, the only question before the IAD was one of pure
statutory interpretation: Does s. 37(1)(b) include conspiracy to import
marijuana into the United States?
35 In
this question of statutory interpretation, I am guided by much jurisprudence.
In Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21, [1998] S.C.J. No. 2, Mr. Justice
Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer
Driedger in Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) that:
· Today there is only one principle or approach, namely, the words of
an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament.
36 The
remarks of Chief Justice McLachlin and Justice Major in Canada
Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10,
[2005] 2 SCR 601 are also helpful:
· It has been long established as a matter of statutory interpretation
that "the words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act,
the object of the Act, and the intention of Parliament": see 65302 British Columbia Ltd. v. Canada, [1999]
3 S.C.R. 804, at para. 50. The interpretation of a
statutory provision must be made according to a textual, contextual and
purposive analysis to find a meaning that is harmonious with the Act as a
whole. When the words of a provision are precise and
unequivocal, the ordinary meaning of the words play a dominant role in the
interpretive process. On the other hand, where the words can support more than
one reasonable meaning, the ordinary meaning of the words plays a lesser role.
The relative effects of ordinary meaning, context and purpose on the
interpretive process may vary, but in all cases the
court must seek to read the provisions of an Act as a harmonious whole.
· [Emphasis added]
37 In
undertaking the task of interpreting a statute, the court should not ignore the
words used. The Supreme Court of Canada recently confirmed that statutory
interpretation "involves a consideration of the ordinary meaning of the
words used and the statutory context in which they are found" (Celgene Corp v Canada (Attorney General), 2011
SCC 1 at para 21, [2011] 1 SCR 3). The Court further explained that "[t]he
words, if clear, will dominate; if not, they yield to an interpretation that
best meets the overriding purpose of the statute" (Celgene, above at para 21).
38 From
this brief synopsis of the jurisprudence, I learn that, where there are
conflicting but not unreasonable interpretations available, the contextual
framework of the legislation becomes even more important.
B. The words used
39 As
taught by the jurisprudence, I begin by looking at the words of the provision
in question. Section 37(1)(b) states that,
· 37. (1) A permanent resident or a foreign
national is inadmissible on grounds of organized criminality for
· ...
· (b) engaging, in the
context of transnational crime, in activities such as people smuggling,
trafficking in persons or money laundering.
* * *
· 37. (1) Emportent interdiction de territoire
pour criminalité organisée les faits suivants :
· ...
· 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.
40 The
IAD correctly points out that Parliament chose not to expressly refer to drug
smuggling in s. 37(1)(b). I agree that Parliament could have explicitly
included drug trafficking in the list of transnational crimes that attract the
severe consequences of being implicated in organized criminality. Does this
omission mean that international drug smuggling is not caught by s. 37(1)(b)?
41 At
its narrowest, the issue on this application is whether the phrase "such
as" can refer to drug smuggling.
42 I
note at the outset that the French version of s. 37(1)(b) uses the word "telles".
It is almost identical to the English phrase "such as". According to
the Collins-Robert French-English, English-French
Dictionary, 2d ed (Toronto: Collins, 1987),
"telle" translates as "such" or "like", while
"telle que" means "like" or "such as". There is
no conflict between the French and English versions of the provision in
question.
43 The
IAD held that the phrase "such as" requires that there be
"significant similarity" between the activity sought to be included
and the listed offences. I do not agree.
44 In
my view, in its ordinary use, the phrase "such as" is illustrative
and suggests an example rather than a limit. This interpretation is supported
by this Court's decision in Hadwani v Canada (Minister
of Citizenship and Immigration), 2011 FC 888 at para 9,
394 FTR 156 [Hadwani], where
Justice Hughes held that the notation "i.e." in a Canadian High
Commission document check list denoted "such as", thus "meaning
a degree of flexibility is permissible". In that case, Justice Hughes found
that a Designated Immigration Officer had erred in rejecting the hospital
record of a birth, when the check list only stated that documents "such
as" a birth certificate were required (Hadwani, above at para 10). In my opinion, the IAD's requirement of "significant
similarity" also creates too high a standard.
45 This
conclusion is further supported by the principle that the limited class, or ejusdem generis, rule does not apply where
general words precede rather than follow a specific enumeration. As the Supreme
Court explained in National Bank of Greece (Canada) v
Katsikonouris, [1990] 2 SCR 1029 at 1040, [1990] S.C.J.
No. 95:
· Whatever the particular document one is construing, when one finds a
clause that sets out a list of specific words followed by a general term, it
will normally be appropriate to limit the general term to the genus of the
narrow enumeration that precedes it. But it would be
illogical to proceed in the same manner when a general term precedes an
enumeration of specific examples. In this situation, it is logical to infer
that the purpose of providing specific examples from within a broad general
category is to remove any ambiguity as to whether those examples are in fact
included in the category. It would defeat the intention
of the person drafting the document if one were to view the specific
illustrations as an exhaustive definition of the larger category of which they
form a part.
· [Emphasis added]
46 In
this case, the general term "activities" precedes the listed
activities, suggesting that those offences are examples only and that the
provision does not establish a limited class. Because the listed activities are
non-exhaustive examples, there is, as correctly argued by the Minister, no room
for the application of the implied exclusion rule either (see United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19 at para 14, [2004] 1 SCR 485).
47 Moreover,
as is more apparent from the contextual review that follows, it appears likely
that Parliament highlighted "people smuggling, trafficking in persons or
money laundering" for the purpose of removing any ambiguity as to whether
these crimes are included in the category.
48 While
the IAD appears to acknowledge that the examples in s. 37(1)(b) are not
exhaustive, the words of the IAD, in its decision, show that the tribunal took
an overly-narrow view. For example, at paragraph 10 of its decision, the IAD
states that "... it is not clear on the evidence before me how Canada's
international interests would be furthered by adding drug trafficking to the
list of offences in paragraph 37(1)(b) ...". With respect, these words
show that the IAD was indeed - and unreasonably - treating this as an
exhaustive list.
49 That
is not to say that the IAD's conclusion that s. 37(1)(b) does not include all transnational offences is incorrect. In
the same way that the phrase "such as" is not entirely exclusive, it
also cannot be wholly inclusive, otherwise, as Mr. Dhillon points out, that
phrase would be redundant.
50 Having
reviewed the words of the provision, I am not persuaded that it is sufficiently
(or at all) clear that international drug smuggling is either included or
excluded from the "activities" caught by s. 37(1)(b). Thus, the next
step of my analysis is to review the contextual framework of the legislation.
C. Contextual framework
51 There
are two key contextual matters that are relevant. The first is the context of
s. 37(1)(b) within IRPA and the
second is the notion of drug smuggling and transnational crime in the context
of Canada's international obligations.
· (1)
Prioritization of
security for Canadians
52 As
noted above, the first aspect of the contextual framework is the overall
statutory scheme of IRPA in addressing
criminality and serious criminality. The provision in question does not sit in
isolation in IRPA; rather, it is
contained in the division of IRPA
dealing with inadmissibility and must be read in context. In ss. 34 to 37, in
particular, IRPA addresses the
inadmissibility of persons on a number of grounds: security (s. 34), human and
international rights violations (s. 35), serious criminality (s. 36) and
organized criminality (s. 37). Read together, these provisions clearly signal
the intent of Parliament to address criminality seriously. For certain classes
of persons, Parliament has stripped away the right to appeal to the IAD on
H&C grounds, subject to s. 64(2).
53 Mr.
Dhillon, like the IAD, places significant weight on the fact that a finding
that drug smuggling is captured by s. 37(1)(b) would result in the removal of
the individual's right to appeal on the basis of H&C grounds. This argument
ignores the interest of Canada in maintaining the security of Canadians. The
Federal Court of Appeal has endorsed a broad interpretation of s. 37(1)(a) on
the basis that IRPA
"signifies an intention, above all, to prioritize the security of
Canadians" (Sittampalam,
above at para 36). This priority was even more strongly expressed in the
Supreme Court of Canada's decision in Medovarski v
Canada (Minister of Citizenship and Immigration); Esteban v Canada (Minister of
Citizenship and Immigration), 2005 SCC 51 at paras 9-10,
[2005] 2 SCR 539, where the unanimous Court stated:
· 9 The IRPA enacted a
series of provisions intended to facilitate the removal of permanent residents
who have engaged in serious criminality. This intent is reflected in the
objectives of the IRPA, the
provisions of the IRPA governing
permanent residents and the legislative hearings preceding the enactment of the
IRPA.
· 10 The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given
effect by preventing the entry of applicants with criminal records, by removing
applicants with such records from Canada, and by emphasizing the obligation of
permanent residents to behave lawfully while in Canada. This marks a change
from the focus in the predecessor statute, which emphasized the successful
integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the
former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s.
3(i) of the former Act. Viewed
collectively, the objectives of the IRPA and its provisions concerning
permanent residents, communicate a strong desire to treat criminals and
security threats less leniently than under the former Act.
An interpretation which prioritizes a foreign
national's appeal rights is accordingly inconsistent with the broad intention
of IRPA.
54 In
sum, this emphasis on security for Canadians supports an expansive view of s.
37(1)(b) that arguably includes the crime of "Conspiracy to Import
Marijuana -- over 50 kilograms" for which Mr. Dhillon was convicted.
· (2)
International
treaties
55 The
second consideration is the notion of transnational crime and Canada's interest
in this subject through its international treaty obligations. One of the
objectives of IRPA is the
promotion of "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" (IRPA, above at s. 3(1)(i)).
56 Two
of the more relevant international treaties are the following:
· *
United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988, 20 December 1988, 1582 UNTS 95
(entered into force 11 November 1990, ratified by Canada 5 July 1990) [1988 Drugs Convention]; and
· *
UNCTOC, above.
57 Mr.
Dhillon submits that drug smuggling is a "totally different
offenc[e]" from people smuggling, human trafficking and money laundering.
Similarly, and relying on the UNCTOC, the IAD appeared to find a link between money laundering and
trafficking in persons but concluded that there was no "articulable
similarity" between drug smuggling and either human trafficking or money
laundering. I do not agree. The problem with this position is that both the IAD
and Mr. Dhillon have failed to appreciate the nature of the crime of drug
trafficking or smuggling within the larger context of international crime and
Canada's international treaty obligations.
58 While
neither the 1988 Drugs Convention
nor the UNCTOC is incorporated
into Canadian law, s. 3(1)(i) directs that IRPA must be construed and applied in a manner that complies with them
(see de Guzman v Canada (Minister of Citizenship and
Immigration), 2005 FCA 436 at para 73, [2006] 3 FCR
655). At the very least, a proper contextual interpretation of s. 37(1)(b)
should be informed by those international treaties.
59 A
review of the background information provided by the Minister on this
application is informative. As of the date of the 1988
Drugs Convention, the main focus of the states parties
was on drug trafficking. However, it is clear that drug trafficking and money
laundering are inextricably linked. This is apparent from the 1988 Drugs Convention, which establishes a
connection between drug trafficking and money laundering. In particular, the
preamble to that convention refers to the states parties' desire,
· [T]o conclude a comprehensive, effective and operative international
convention that is directed specifically against illicit traffic and that
considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties
in the field of narcotic drugs and psychotropic substances ...
· [Emphasis added]
60 In
addition to requiring that states parties criminalize, inter
alia, the production, distribution, sale and purchase of
narcotics, the 1988 Drugs Convention also requires criminalization of what is commonly referred to as
money laundering. In particular, Article 3.1 states that,
· 1.
Each Party shall adopt
such measures as may be necessary to establish as criminal offences under its
domestic law, when committed intentionally:
· ...
· b) i) The conversion or transfer of property,
knowing that such property is derived from any offence or offences established
in accordance with subparagraph (a) of this paragraph, or from an act of
participation in such offence or offences, for the purpose of concealing or
disguising the illicit origin of the property or of assisting any person who is
involved in the commission of such an offence or offences to evade the legal
consequences of his actions;
· ii)
The concealment or
disguise of the true nature; source, location, disposition, movement, rights
with respect to, or ownership of property, knowing that such property is
derived from an offence or offences established in accordance with subparagraph
(a) of this paragraph or from an act of participation in such an offence or
offences ...
61 The
inclusion of this provision in the 1988 Drugs Convention indicates that, since at least 1988, states have recognized that
money laundering is an important aspect of international drug trafficking. The
close relationship between money laundering and drug trafficking has been long
recognized. As pointed out by Professor Gerhard Kemp in his article, "The
United Nations Convention Against Transnational Organized Crime: A milestone in
international criminal law" (2001) 14 S Afr J Crim Just 152 at 157:
· The provisions of the Convention criminalizing money laundering is
clearly based on the provisions of the 1988 United Nations Drug Convention.
However, under the 1988 Convention the crime of money laundering is restricted
to laundering proceeds of drug offences.
62 In
2000, Canada signed the UNCTOC.
The foreword to the UNCTOC
similarly refers to the relationship between the narcotics trade and other
transnational crimes:
· Arrayed against these constructive forces, however, in ever greater
numbers and with ever stronger weapons, are the forces of what I call
"uncivil society". They are terrorists, criminals, drug dealers, traffickers in people and
others who undo the good works of civil society.
· [Emphasis added]
63 The
UNTOC thus expaned the notion of
serious organized transnational crime beyond an exclusive focus on drug crimes.
64 In
a real sense, money laundering overlaps substantially with drug trafficking.
Quite simply, drug smuggling and trafficking give rise to money laundering (see
e.g. Peter M. German, Proceeds of Crime and Money
Laundering: Includes Analysis of Civil Forfeiture and Terrorist Financing
Legislation (Toronto: Carswell, 1998) at 1A-9). In this
context and with this understanding of the nature of the crimes involved, it is
not logical to me that Parliament would include money laundering as a
transnational crime under s. 37(1)(b) and not drug smuggling.
65 Certainly,
it would have been clearer for Parliament to specifically list drug smuggling
in the provision. However, we must appreciate that, in 2001 when this provision
was implemented into our immigration law, the crimes of people smuggling, money
laundering, and human trafficking were not as well known. Nations were
searching for ways to control, not only drugs, but these transnational crimes
as well. The fact that Parliament chose to highlight these three crimes can be
seen as a direction that these three transnational crimes were included, even
though a reader might not initially direct his mind to them. It does not mean,
in my view, that Parliament intended to exclude the equally serious
transnational crime of drug smuggling from s. 37(1)(b).
66 It
follows that the words of s. 37(1)(b), when read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of IRPA, the object of IRPA, and the intention of Parliament include the activity of
transnational drug smuggling. Stated differently, the crime of "Conspiracy
to Import Marijuana -- over 50 kilograms" for which Mr. Dhillon was
convicted is the foundation for a finding of inadmissibility on grounds of both
serious criminality under s. 36(1)(b) of IRPA and organized
criminality under s. 37(1)(b) of IRPA.
67 In
my view, the IAD failed to have regard to: (a) the intention of Parliament to
prioritize security of Canadians; and (b) the interrelationship of drug
smuggling and money laundering as reflected in the relevant international instruments.
In addition, the IAD erred in concluding that the only similarity between the
activities listed in s. 37(1)(b) and drug smuggling is that both offences are
transnational.
68 If
the IAD Decision is reviewable on a standard of correctness, the interpretation
by the IAD is incorrect. On a standard of reasonableness, the interpretation
was unreasonable; paraphrasing the words of the Supreme Court in Mowat, above at paragraph 34, when a full
contextual and purposive analysis of s. 37(1)(b) is undertaken, it becomes
clear that no reasonable interpretation supports the conclusion reached by the
IAD.
VII. Conclusion
69 In
summary, I conclude that:
· (a)
the use of the words
"such as" does not limit the application of s. 37(1)(b) to the crimes
of people smuggling, trafficking in persons and money laundering;
· (b)
the loss of Mr.
Dhillon's right to an appeal to the IAD on H&C grounds is consistent with
the objective of Parliament to prioritize security for Canadians; and
· (c)
a textual, contextual
and purposive analysis to find a meaning that is harmonious with IRPA as a whole results in a conclusion that
the transnational crime of drug smuggling is included in s. 37(1)(b).
70 Accordingly,
this application for judicial review will be allowed.
71 I
wish to make it clear that I am not concluding that all transnational crimes
will fall within the meaning of s. 37(1)(b). Clearly, there may be
transnational crimes that do not fit within the definition. However, I am
satisfied that the crime of drug smuggling of which Mr. Dhillon was convicted
is included in the proper meaning of s. 37(1)(b). I express no views on any
other transnational crimes or how "similar" such crimes would have to
be to fall within that provision.
72 The
Minister proposes the following question for certification:
· Is the importation of narcotics into another country a transnational
crime for the purposes of the section 37(1)(b) inadmissibility provision?
73 I
agree that the question is one of general importance that should be certified.
The question satisfies the requirements set out by the Court of Appeal in Liyanagamage v Canada (Minister of Citizenship and Immigration), 176 NR 4 at paras 4-6, [1994] F.C.J. No. 1637 (QL) (see also Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at paras 11-12, 318 NR 365; and Varela
v Canada (Minister of Citizenship and Immigration), 2009
FCA 145 at paras 22-29, [2010] 1 FCR 129). Specifically, the question is a
serious question of broad significance and it would be dispositive of the
appeal. I would, however, rephrase the question as follows:
· Is the importation of narcotics into another state an activity 'such
as people smuggling, trafficking in persons or money laundering' within the
meaning of s. 37(1)(b) of IRPA?
JUDGMENT
· THIS COURT ORDERS AND ADJUDGES that:
· 1.
the application for
judicial review is allowed, the decision of the IAD is quashed and the matter
remitted to the IAD for re-consideration by a different member of the IAD, in
accordance with these reasons; and
· 2.
the following question
of general importance is certified:
Is the importation of narcotics into another state
an activity 'such as people smuggling, trafficking in persons or money
laundering' within the meaning of s. 37(1)(b) of IRPA?
SNIDER J.
