The Federal Court has held that a conviction for drug trafficking into the US made a Canadian resident inadmissible for "organized criminality".
Sidhu v. Canada (Minister of Citizenship and Immigration)
Between
Sukhchainpreet Singh Sidhu, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1652
2012 FC 1533
Docket IMM-3327-11
Federal Court
Toronto, Ontario
Mandamin J.
Heard: February 7, 2012.
Judgment: December 20, 2012.
(44 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MANDAMIN J.:-- This is an application for
judicial review of the decision made by a member of the Immigration Appeal
Division [IAD] which granted the Minister's appeal of an Immigration Division
[ID] decision. The IAD overturned an ID decision which had found that the
Applicant was not inadmissible for organized criminality, specifically,
transnational crime, pursuant to s. 37(1)(b) of the Immigration
and Refugee Protection Act SC 2001, c 27 [IRPA].
Background
2 The
Applicant, Sukhchainpreet Singh Sidhu, is a citizen of India and became a permanent
resident of Canada in 2000.
3 On
January 29, 2008, the Applicant entered the USA from Canada, arriving in
Blaine, Washington. The Applicant rented a van and bought a cellular phone from
a convenience store. He called a Mr. Kulwant Singh Brar and checked into a
motel. He then received a call with instructions to drive to the border between
the USA and Canada. The Applicant parked the van on the U.S. side of the
border, and then met Mr. Brar and others, who were in a vehicle on the Canadian
side of the border. In Mr. Brar's vehicle was 49kg of marijuana. Mr. Brar and
the Applicant carried the marijuana across the border and placed them into the
rental van. The Applicant intended to deliver the marijuana to another
individual in the US for distribution.
4 On
August 8, 2008, the Applicant was convicted in the USA of importation of a
controlled substance. His sentence was 12 months and 1 day incarceration, and 2
years of supervised release.
5 As
a result of this conviction, he was found inadmissible to Canada for serious
criminality. Because of this, he became the subject of a s 44(1) IRPA Report on the basis that he was also
inadmissible to Canada for organized criminality pursuant to s 37(1)(b) IRPA, specifically transnational crime.
Decisions Under Review
6 The
ID decided that the Applicant was not inadmissible under s 37(1)(b). The
Minister appealed to the IAD, which allowed the appeal, holding that the
decision of the ID was wrong in law. The IAD's decision is the subject of this
application.
7 The
IAD set out s 37(1)(b). It stated that the question in this case was whether
the Applicant engaged, in the context of transnational crime, in activities
such as people smuggling, trafficking in persons or money laundering - the
three listed as examples of crimes coming under s 37(1)(b). The IAD noted that
the ID found, essentially, that s 37(1)(b) does not include importation of
drugs. The IAD disagreed and found that, in the circumstances of this case, s
37(1)(b) did include the offence of transnational importation of drugs.
8 The
IAD then set out five elements which it believed were required to be proven in
order for s 37(1)(b) to apply:
· (a)
the person must have
engaged in something;
· (b)
this engaging or
engagement must have been in the context of transnational crime;
· (c)
the engaging or
engagement in must have been in an activity;
· (d)
the activities must
have been generated in the context of an organisation; and
· (e)
the activity must have
been something such as people smuggling, trafficking in persons or money
laundering.
9 The
IAD held the crucial language of the section was, "...activities such as
people smuggling, trafficking in persons or money laundering." The IAD
noted it did not mention drugs, or importation of drugs, and therefore, the
question was whether the phrase "activities such as" allows the
decision-maker to find that the section covers importation of drugs. The IAD
held it did.
10 The
IAD noted that the list in s 37(1)(b) was not exclusive as the phrase
"activities such as" indicated that the inclusion of other activities
is contemplated. The IAD also noted the phrase "such as" indicated
that, while there must be some similarity between the listed activities and the
unlisted activities, they are not expected or required to be the same. The IAD
held the task was to identify any common elements between the listed activities
which would also be present in any proposed unlisted activities.
11 The
IAD held that the common elements of the three listed activities include
attributes of organised criminality and movement across international borders.
The IAD viewed the smuggling of drugs, an activity which could be carried out
by criminal organizations and across international borders, is an obvious,
although unlisted, activity to associate with the listed activities in s
37(1)(b). The IAD held that this was based on a plain reading of the section,
put in its obvious context and purpose.
12 The
IAD noted that the words of a statute are to be read in context, and having
regard to the purpose of the legislation and the intention of Parliament.
13 The
IAD stated that Canada intends to combat cross-border drug trade and cited
statements and conventions Canada has made to eliminate the trafficking of
drugs.
14 The
IAD discussed whether the elements to the section, which the IAD set out above,
had been proven. The IAD held that the Applicant had been engaged in activities
which took place in the context of transnational crime in that he was involved
with moving large amounts of drugs across the border from Canada to the U.S.
The IAD also held that these activities the Applicant was engaged in were
generated in the context of an organisation. The IAD specifically noted that
there were other individuals besides the Applicant involved in these activities
and that each carried out specific roles and tasks. The IAD then found that the
trafficking of drugs across the border was an activity such as people smuggling,
trafficking in person, and money laundering.
15 The
IAD also discussed submissions made by the Applicant's counsel. The IAD stated
that the Applicant's attorney in the U.S., as well as his counsel at the
inadmissibility hearing, characterized his role in these events as minor, not
so complicated, and of a stupid, minor character. The IAD made two comments
regarding this point. First, the IAD noted that for the purposes of s 37(1)(b)
it was irrelevant whether one was a minor or major player. Second, the IAD held
that the Applicant was not a minor player, but one of the people at the center
of the operation.
16 The
IAD then discussed what offence the Applicant might have been charged with in
similar circumstances in Canada. The IAD noted that the Applicant could have
been charged with an offence that would have made him liable for incarceration
up to fourteen years. The IAD stated that this indicated that these activities
were regarded very seriously by Parliament.
17 Finally,
the IAD noted there were attempts on the part of the Applicant's attorney in
the U.S. and his counsel here in Canada, to portray him as a sympathetic
character who was at heart honest and law-abiding, who had certain family
problems and who would never get involved in this type of thing again. The IAD
held that these types of considerations are not relevant to the determination
under s 37(1)(b).
18 The
IAD concluded by finding that the ID erred and that s 37(1)(b) did apply in
this case. The IAD allowed the appeal and made a Deportation Order against the
Applicant.
Legislation
19 Immigration and Refugee Protection Act SC
2001, c. 27:
· 33.
The facts that
constitute inadmissibility under sections 34 to 37 include facts arising from
omissions and, unless otherwise provided, include facts for which there are
reasonable grounds to believe that they have occurred, are occurring or may
occur.
· [...]
37. (1) A permanent resident or a foreign national
is
inadmissible on grounds of organized criminality for
· (a)
being a member of an
organization that is believed on reasonable grounds to be or to have been
engaged in activity that is part of a pattern of criminal activity planned and
organized by a number of persons acting in concert in furtherance of the
commission of an offence punishable under an Act of Parliament by way of
indictment, or in furtherance of the commission of an offence outside Canada
that, if committed in Canada, would constitute such an offence, or engaging in
activity that is part of such a pattern; or
· (b)
engaging, in the
context of transnational crime, in activities such as people smuggling,
trafficking in persons or money laundering.
· (2)
The following
provisions govern subsection (1):
· (a)
subsection (1) does not
apply in the case of a permanent resident or a foreign national who satisfies
the Minister that their presence in Canada would not be detrimental to the
national interest; and
· (b)
paragraph (1)(a) does
not lead to a determination of inadmissibility by reason only of the fact that
the permanent resident or foreign national entered Canada with the assistance
of a person who is involved in organized criminal activity.
* * *
· 33.
Les faits -- actes ou
omissions -- mentionnés aux articles 34 à 37 sont, sauf disposition contraire,
appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus,
surviennent ou peuvent survenir.
· [...]
· 37.
(1) Emportent
interdiction de territoire pour criminalité organisée les faits suivants
:
· a)
être membre d'une
organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou
s'est livrée à des activités faisant partie d'un plan d'activités criminelles
organisées par plusieurs personnes agissant de concert en vue de la
perpétration d'une infraction à une loi fédérale punissable par mise en
accusation ou de la perpétration, hors du Canada, d'une infraction qui, commise
au Canada, constituerait une telle infraction, ou se livrer à des activités
faisant partie d'un tel plan;
· 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.
· (2)
Les dispositions
suivantes régissent l'application du paragraphe (1) :
· a)
les faits visés
n'emportent pas interdiction de territoire pour le résident permanent ou
l'étranger qui convainc le ministre que sa présence au Canada ne serait
nullement préjudiciable à l'intérêt national;
· b)
les faits visés à
l'alinéa (1)a) n'emportent pas interdiction de territoire pour la seule raison
que le résident permanent ou l'étranger est entré au Canada en ayant recours à
une personne qui se livre aux activités qui y sont visées.
Issue
20 The
issue arising in this case is whether the IAD erred in its interpretation of IRPA s 37(1)(b).
Standard of Review
21 The
IAD's interpretation of s 37(1)(b) attracts a correctness standard Patel v Canada (Minister of Citizenship & Immigration), 2011 FCA 187, 98 Imm LR (3d) 175 at para 27.
22 If
the issue is answered in the negative, then this court will examine whether the
IAD's decision was a reasonable one, in light of the facts and law. Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, 2008 SCC 9 at para 51
Analysis
23 The
Applicant argues that the IAD made several reviewable errors. First, by
interpreting IRPA s 37(1)(b) as
including "organized criminality." Second, by interpreting the
section as including importing drugs. Third, the IAD engaged in an incorrect
criminal equivalency assessment.
Did the IAD err in interpreting IRPA s 37(1)(b) as
including "organized criminality"?
24 The
Applicant submits that the IAD misconstrued the test for determining inadmissibility
under section 37(1)(b). Indeed, the Applicant correctly argued that the IAD set
out its own unprecedented five-part test for s 37(1)(b). The Applicant argues
that a plain reading of s 37(1)(b) requires only an assessment of whether (a) an individual engaged in an activity,
(b) if so, whether the individual's engagement in the activity occurred in the
context of transnational crime, and (c) whether the individual engaged in an
activity such as people smuggling, trafficking in persons, or money laundering.
The Applicant argues the requirement for a finding that "the activities
must have been generated in the context of an organisation" is an
incorrect interpretation of the IRPA, and thus is a reversible error.
25 The
Respondent submits that s. 37(1)(b) renders a person inadmissible where a
foreign national i) has engaged; ii) in transnational crime (i.e. crime
crossing international borders; iii) that is serious enough to be comparable to
people smuggling, human trafficking, or money laundering. The Respondent
submits that these three basic elements were met.
26 I
agree with the Respondent. Further, I disagree with the Applicant that to
conclude "the activities or crime must have been generated in the context
of an organization" is an error. The reason for this is that s. 37(1)
regards inadmissibility on grounds of organized criminality. While part (b)
makes no specific mention of being a member of an organization as it does in
part (a), the entirety of s. 37(1)(b) must be given effect. To not do so would
lead to results that are not intended by Parliament in enacting s. 37(1).
27 In
order to determine the correct interpretation of s. 37(1)(b), it is helpful to
set out the relevant provision.
· 37.(1) A permanent resident or 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
28 Although
I consider the elements a) and c) set out by the IAD and repeated below to be
redundant:
· a.
the person must have
engaged in something;
· b.
the engaging or
engagement in must have been in an activity;
I nonetheless find that the IAD interpreted s
37(1)(b) correctly. In my opinion the activities which make a person
inadmissible under IRPA s
37(1)(b) must have been generated in the context of an organized criminality,
that is involving more than a single individual in an organized criminal
activity.
Did the IAD err in interpreting IRPA s 37(1)(b) as
including importing drugs?
29 I
begin with Justice Snider's words in Dhillon v Canada
(MCI) 2012 FC 726 at para 66: "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."
30 The
Applicant submits that the IAD failed to conduct an analysis of or explain how
the activities in which the Applicant engaged were similar to people smuggling,
trafficking in persons, or money laundering. In particular, the Applicant
submits the IAD failed to engage in any comparison between the nature and
substance of the Applicant's offence and the listed offences.
31 The
Applicant submits that Parliament specifically chose to include the list in
section 37(1)(b) to indicate that the section is not meant to encompass all
transnational crimes, but is instead meant to encompass only those
transnational crimes that rise to the particularly egregious level of people
smuggling, trafficking in persons, or money laundering.
32 It
is true that the importation or trafficking of drugs is not listed as one of
the activities under s 37(1)(b) that leads to a finding of inadmissibility for
organized criminality. However, the IAD, correctly in my view, noted that the
words "activities such as" indicate that the list of activities found
in s 37(1)(b), namely people smuggling, trafficking in persons and money
laundering, is not exclusive and that Parliament intended that other crimes
could also be included.
33 Although
the IAD's analysis on this point is abbreviated, it found that the common
elements of the listed activities include attributes of organised criminality
and movement across international borders. The IAD also noted that Canada,
through its international obligations, has committed to fight the illicit
traffic in narcotic drugs and psychotropic drugs by agreeing to establish as
criminal offences, among other things, the importation or exportation of any
narcotic substance, including marijuana.
34 The
Respondent challenges the Applicant's proposed restricted definition of
transnational crime as inconsistent with international law. The Respondent
submits a restricted definition is inappropriate because it would exclude such
cross-border crimes such as weapons trafficking, illicit trade in nuclear
materials, trade in biological weapons, proliferation of child pornography and
others. I agree.
35 IRPA s 37(1)(b) employs the phrase "such
as". This indicates that the following list of activities is not a closed
set. I find the IAD correctly determined that trafficking in drugs falls under
s 37(1)(b). The importation of drugs, with which the Applicant was convicted
of, meets the two elements the IAD found were shared by those crimes listed
under s 37(1)(b). I am unable to agree with the Applicant that the illicit
trafficking in drugs is not as egregious as money laundering. I agree with
Justice Snyder in Dhillon, supra
that the activities listed in s 37(1)(b) include the activity of transnational
drug smuggling.
Criminal Equivalency Assessment
36 The
Applicant submits that where an equivalency assessment is done, and the wrong
Canadian offence is put forward as being equivalent, the decision cannot stand.
The Applicant submits it is clear from the IAD's analysis that it informed
itself of the wrong Canadian equivalent.
37 The
Applicant argues that the IAD based its decision on an incorrect assessment of
the nature of the offence with which the Applicant was convicted. The Applicant
argues that the IAD engaged in an incorrect equivalency assessment which should
result in a review of the IAD's decision. I disagree.
38 The
Respondent submits that there is no criminal equivalency analysis required for
an inadmissibility finding under s 37(1)(b). The Respondent argues that as
such, the IAD's finding regarding equivalent Canadian offences is similarly
superfluous and that if there are any errors therein, they would be immaterial
and insufficient to disturb the IAD's decision.
39 The
Respondent is correct that no criminal equivalency analysis was required in
this case. Contrary to the claims of the Applicant, I do not find that the IAD
engaged in a criminal equivalency analysis. At paragraph 23, the IAD described
what offence the Applicant might have been charged with in similar
circumstances in Canada. In my view, this was not done in the context of a
criminal equivalency analysis. Rather, it was done in order to demonstrate the
seriousness of the offence committed by the Applicant for the purposes of
explaining that importing drugs was a serious activity on par with those
activities listed under s 37(1)(b), the IAD described what offence the
Applicant might have been charged with in similar circumstances in Canada. The
IAD made no error.
Was the IAD's decision reasonable?
40 Having
determined that the IAD correctly interpreted section 37(1)(b) of the IRPA as including drug smuggling, I must now
turn to the question of whether the IAD reasonably applied the law to the facts
of this case. "Questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness." Dunsmuir, supra at para 51
41 The
IAD considered that the Applicant had engaged in an activity (drug smuggling)
in the context of transnational crime. At paragraph 21 of its decision, the IAD
applied the test that it had set out to the facts of the case at bar. While I
have noted at paragraph 28 of this decision that I would change the wording of
the test, the interpretation and application of section 37(1)(b) are not in
error in the Respondent's decision.
42 The
IAD considered that the Applicant had bought rented a vehicle, bought and used
a cellular telephone, drove to the border, carried marijuana across the border,
and placed the drugs into another vehicle, all with the intention of
participating in drug smuggling. The IAD considered that these activities were
carried out in the context of an organization. Indeed, other individuals who
each had specific tasks for their involvement in the transnational criminal
activity of drug smuggling.
43 Judicial
review "is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process" (Dunsmuir supra at para 47). I am satisfied that the IAD's decision fulfills these
requirements.
Conclusion
44 Since
the IAD, in my opinion, correctly interpreted section 37(1)(b) of IRPA to include "drug smuggling" as
one of the activities leading to a finding of inadmissibility, and since it
reasonably considered the law as it applies to the facts in the case at bar, I
find that the IAD made no reviewable error. The application is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
· 1.
The application for
judicial review is dismissed.
· 2.
No question of general
importance is certified.
MANDAMIN J
