IMM-4621-02
2004 FC 349
Sharone Thanaratnam (Applicant)
v.
The Minister of Citizenship & Immigration (Respondent)
Indexed as: Thanaratnam v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, O'Reilly J.--Toronto, September 3, 2003; Ottawa, March 9, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Membership in criminal organization -- Board finding applicant, Sri Lankan citizen, member of Tamil gang -- Whether Board erred in considering evidence apart from criminal record -- Police believe applicant implicated in numerous gang-related incidents -- Question before Board: were there reasonable grounds to believe applicant criminal organization member -- Mere suspicion insufficient -- Whether Board may consider unresolved criminal charges -- Merely being charged perhaps relevant to gang membership issue -- Whether Tamil gangs "organizations" within Immigration and Refugee Protection Act, s. 37(1)(a) -- Word "organization" not defined in Act -- Police gang membership criteria not met -- No evidentiary basis for conclusion applicant "belonged" to criminal organization.
This was an application for judicial review of an Immigration and Refugee Board decision that applicant, a citizen of Sri Lanka and permanent resident in Canada should be deported. The panel accepted the Minister's arguments as to both grounds for removal: (1) conviction of an offence punishable by five or more years' imprisonment and (2) membership in a criminal organization--a Toronto Tamil gang. Applicant admitted the convictions but denied the second allegation.
Held, the application should be allowed.
The first issue was whether the Board erred in relying on evidence apart from applicant's criminal record. The Board had taken into account police reports and the testimony of police officers in concluding that applicant belonged to a criminal organization. The Board is not bound by any rules of evidence and it is entitled to rely on any evidence it considers credible and trustworthy. Still, applicant's submission was that the Board should accord little if any weight to hearsay. The Board had considered all of applicant's involvement with the police since 1985. The police believed that he had been implicated in a number of gang-related incidents. On all of the evidence, the Board concluded that applicant did belong to VVT--a Tamil gang.
The Board's role under Immigration and Refugee Protection Act, section 33 was to determine whether there were "reasonable grounds to believe" applicant was a member of a criminal organization--a low evidentiary threshold commonly used in the criminal law in relation to the issuance of warrants. But "reasonable grounds to believe" is more than mere suspicion and connotes a degree of probability based on credible evidence. Even so, it has been made clear that, in the immigration context, it is less than a balance of probabilities. And, in the criminal law context, it is well established that this standard can be met by hearsay evidence and other forms of proof not normally admissible at trial. Applicant argued, however, that the case law is to the effect that the Board must rely only on convictions and not consider unresolved criminal charges: decision of Rouleau J. in Bakchiev v. Canada (Minister of Citizenship and Immigration). A decision going the other way was that of MacGuigan J.A. in Legault v. Canada (Secretary of State) (holding that the Board was entitled to rely on a warrant and indictment issued in the U.S.A. in deciding whether there were reasonable grounds for believing a person had committed a crime outside Canada). The cases relied upon by the applicant and the respondent were reconciled thus: in situations where the law does not specifically require proof of a conviction, the Board may consider other credible and trustworthy evidence of involvement in criminal activities, especially where the standard of "reasonable grounds to believe" applies.
Still a balance had to be struck and the reasonable grounds standard operates as a safeguard against arbitrary or capri-cious actions by the state. While the Board was entitled to consider the various forms of evidence before it and to determine the weight to be assigned thereto, its conclusion that applicant belonged to a criminal organization was unsupported by the evidence.
The next issue was whether the Tamil gangs with which applicant was said to be associated are "organizations" within Immigration and Refugee Protection Act, paragraph 37(1)(a). While there was before the Board evidence that these groups are involved in criminal activities, the question remained as to whether they could properly be described as "organizations". While the Criminal Code defines "criminal organization" in some detail, the Act fails to define the word "organization". Under the Code, a criminal organization does not include "a group of persons that forms randomly for the immediate commission of a single offence". But the Code does not stipulate any particular formalities or decision-making arrangements and its use of the words "however organized" suggest that there are no minimum or mandatory attributes that the group must have. The Tamil groups at issue had some of the characteristics of an organization and the Board did not err in concluding they were caught by Act, paragraph 37(1)(a).
As to whether applicant belonged to a criminal organization, it was suggested that the Board's finding resulted from speculation and stereotyping. Applicant claimed that the Board assumed that his association with others of the same background in combination with spontaneous criminal acts constituted proof of gang membership. On the evidence, the Board found that applicant was "in the middle of things". But did the evidence demonstrate actual gang membership? Even the police recognized that being linked to gang-related activity is an insufficient basis for the conclusion that one is a gang member. The Board set out a list of criteria identified by the police as having to be taken into account in drawing such an inference. While the Board correctly noted that it was not bound by the police criteria, it placed great reliance on the testimony and documentary evidence tendered by police witnesses. But it did not appear that the criteria developed by the police had been here met. Most of the criteria had not been satisfied. In particular, there was nothing on the face of applicant's criminal record indicating court findings--or even testimony--that applicant was a gang member. A detective who testified before the Board had formed the belief that applicant was "entrenched completely within a sub-culture" and participated in criminality but he did not go so far as to say that the evidence--much of it hearsay--was sufficient to sustain an inference that applicant belonged to a gang. There was accordingly no evidentiary basis for the Board's conclusion that applicant "belonged" to an organization devoted to criminal activities.
This matter should be referred back to the Board for redetermination, by a different panel, of the question whether applicant is a member of a criminal organization.
statutes and regulations judicially
considered
Criminal Code, R.S.C., 1985, c. C-46, s. 467.1(1) "original organization" (as enacted by S.C. 1997, c. 23, s. 11; 2001, c. 32, s. 27).
| Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11), (c.1) (as enacted idem; 1995, c. 15, s. 2), (c.2) (as enacted by S.C. 1992, c. 49, s. 11; 1996, c. 19, s. 83), 27(1)(a) (as am. by S.C. 1992, c. 49, s. 16), (a.1) (as enacted idem; 1995, c. 15, s. 5), (d) (as am by S.C. 1992, c. 47, s. 78), 53(1) (as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 37(1)(a), 173. |
cases judicially considered
applied:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192; 219 N.R. 376 (F.C.A.).
distinguished:
Bakchiev v. Canada (Minister of Citizenship and Immigration) (2000), 196 F.T.R. 306; 12 Imm. L.R. (3d) 75 (F.C.T.D.).
referred to:
R. v. Debot, [1989] 2 S.C.R. 1140; (1989), 52 C.C.C. (3d) 193; 73 C.R. (3d) 129; 45 C.R.R. 49; 102 N.R. 161; 37 O.A.C. 1; Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349; (1996), 136 D.L.R. (4th) 433; 37 C.R.R. (2d) 112; 114 F.T.R. 247; 34 Imm. L.R. (2d) 259 (T.D.); Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642; (1998), 141 F.T.R. 81 (T.D.); R. v. Collins, [1987] 1 S.C.R. 265; (1987), 38 D.L.R. (4th) 508; [1987] 3 W.W.R. 699; 13 B.C.L.R. (2d) 1; 33 C.C.C. (3d) 1; 56 C.R. (3d) 193; 28 C.R.R. 122; 74 N.R. 276.
APPLICATION for judicial review of an Immigration and Refugee Board panel's decision that applicant should be deported on two grounds: serious criminal conviction and membership in a criminal organization. Application allowed with regard to second ground.
appearances:
Barbara Jackman for applicant.
Gregory G. George for respondent.
solicitors of record:
Barbara L. Jackman, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1]O'Reilly J.: Mr. Sharone Thanaratnam is a permanent resident of Canada and a citizen of Sri Lanka. He is 26 years old. There are two grounds on which the Minister bases his efforts to remove Mr. Thanaratnam from Canada. First, the Minister alleges that Mr. Thanaratnam has been convicted of an offence punishable by five or more years of imprisonment (Immigration Act, R.S.C., 1985, c. I-2, paragraph 27(1)(d) [as am. by S.C. 1992, c. 47, s. 78]; relevant enactments are set out in an Annex). He also alleges that there are reasonable grounds to believe Mr. Thanaratnam is a member of a criminal organization--namely, a Toronto Tamil gang (Immigration Act, R.S.C., 1985, c. I-2, paragraphs 27(1)(a) [as am. by S.C. 1992, c. 49, s. 16], 19(1)(c.2) [as enacted idem, s. 11; 1996, c. 19, s. 83]).
[2]A panel of the Immigration and Refugee Board found that the Minister had proved both allegations and that Mr. Thanaratnam should therefore be deported from Canada. Mr. Thanaratnam admits that he has been convicted of offences punishable by five or more years of imprisonment and, therefore, does not contest the Board's finding on that issue. However, he does argue that the Board made a serious error when it concluded that there were reasonable grounds to believe he was a member of a criminal organization. In his application for judicial review, he asks me to overturn that part of the Board's decision and refer the matter back to another panel of the Board.
[3]For the most part, I find that the Board's analysis was proper. However, I have concluded that the Board erred in its finding that Mr. Thanaratnam was a "member" of a gang. Therefore, I will grant this application for judicial review.
[4]The Immigration and Refugee Protection Act, S.C. 2001, c. 27, came into force while this matter was before the Board. For present purposes, there is no material difference between that statute and its predecessor, the Immigration Act. Throughout the remainder of these reasons, I will refer to the new Act, unless the context requires otherwise.
I. Issues
[5]Mr. Thanaratnam raised three issues:
1. Did the Board err when it relied, in part, on evidence other than Mr. Thanaratnam's criminal convictions?
2. Was the Board's definition of "organization" correct?
3. Was the Board wrong to conclude that Mr. Thanaratnam was a "member" of a criminal organization?
II. Analysis
A. Did the Board err when it relied, in part, on evidence other than Mr. Thanaratnam's criminal convictions?
| (1) The Evidence |
[6]Mr. Thanaratnam argues that the Board should not have relied to any significant degree on evidence of his conduct other than the crimes of which he had actually been convicted. The Board considered various police reports and the testimony of experienced police officers in arriving at its conclusion that Mr. Thanaratnam was a member of a criminal organization. According to these sources of information, Mr. Thanaratnam was believed to have been involved in a number of criminal matters but they either did not proceed to trial or he was acquitted. Further, some reports showed he was a victim of crimes rather than the alleged perpetrator.
[7]The Board is not bound by "any legal or technical rules of evidence". It may rely on any evidence it considers "credible or trustworthy in the circumstances" (Immigration and Refugee Protection Act, paragraphs 173(c),(d)). Mr. Thanaratnam acknowledges that the Board has a great deal of flexibility in terms of the evidence it may consider. However, he argues that any evidence that amounts to hearsay should be given little or no weight.
[8]The Board's approach was to receive all the evidence it considered credible and trustworthy and then assign it weight proportionate to its relevance and reliability. Accordingly, it considered all the evidence of Mr. Thanaratnam's various contacts with the police since 1985. That evidence reflected the belief of police authorities that he had been involved in several gang-related incidents along with other persons of Sri Lankan origin.
[9]On the whole, the Board found that the documentary evidence and the police officers' testimony were reliable. From that evidence, it concluded that Mr. Thanaratnam was indeed a member of a Tamil gang called the VVT:
I believe the evidence places [Mr. Thanaratnam] on many occasions in the company of persons also alleged to be involved in criminal/gang activities. In my estimation a reasonable person viewing all the evidence put together at this hearing would conclude he was part of this gang activity. In the final analysis of the overall evidence therefore, I am satisfied that the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.
| (b) The Board's Role |
[10]The Board had to determine whether there were "reasonable grounds to believe" that Mr. Thanaratnam was a member of a criminal organization (Immigration and Refugee Protection Act, section 33). That standard, combined with the freedom to consider any "credible and trustworthy evidence", defines the role of the Board in this context.
[11]The words "reasonable grounds to believe" create a relatively low evidentiary threshold. It is a standard commonly used in the criminal law in relation to the issuance of warrants or other forms of legal process. Justice Brian Dickson [as he then was] described it as an objective standard with the following important purpose (Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at pages 167-168):
The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.
[12]In other words, "reasonable grounds to believe" is more than mere suspicion. It connotes a degree of probability based on credible evidence. In other jurisprudence, the Supreme Court of Canada has described it as a "reasonable probability"or a "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at page 1166. However, it is certainly less than a balance of probabilities, as has been made clear in immigration cases: Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.); Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.).
[13]It is also well established in the criminal context that the standard of "reasonable grounds to believe" can be met by way of hearsay evidence and other forms of proof that would not normally be admissible at a trial, including evidence about a person's reputation or criminal record: Debot, above; R. v. Collins, [1987] 1 S.C.R. 265, at page 279.
[14]However, Mr. Thanaratnam argues that the prevailing case law clearly instructs the Board not to rely on outstanding charges or other information about alleged criminal conduct--it must only consider actual convictions. True, Rouleau J., for example, has held that outstanding, unresolved criminal charges must not be considered by the Board when determining whether a person represents a danger to the Canadian public (Bakchiev v. Canada (Minister of Citizenship and Immigration) (2000), 196 F.T.R. 306 (F.C.T.D.), at paragraph 12):
It must be emphasized that unresolved criminal charges are, until proven otherwise, nothing more than mere allegations against an accused. They are not indicative of guilt and obviously therefore, are not indicative of a propensity to re-offend either, until they have been proven beyond a reasonable doubt by the Crown in a court of law. Accordingly, they are inadmissible in the determination of whether an applicant constitutes a danger to the public.
[15]On the other hand, the Federal Court of Appeal held that the Board was entitled to rely on an indictment and a warrant issued in the United States in deciding whether there were reasonable grounds to believe a person had committed a crime outside Canada: Legault v. Canada (Secretary of State) (1997), 42 Imm. L.R. (2d) 192 (F.C.A.). Justice MacGuigan stated, at paragraph 10:
As the adjudicator stated, the indictment and the warrant "identify in detail the infractions and provide a detailed description of the procedure followed for the commission of the different infractions". He considered this evidence credible or trustworthy in the circumstances of the case, and in my opinion such a decision is entirely within his discretion.
[16]For four reasons, I find the approach in Legault more apt to the circumstances of this case than the analysis in Bakchiev. First, in Bakchiev, the issue was whether the person was actually a danger to the public, not whether there were reasonable grounds for believing that was the case. As explained above, the reasonable grounds standard, in itself, usually permits consideration of a broad range of information.
[17]Second, the question whether a person constitutes a danger to the public, the issue in Bakchiev, was specifically connected to actual convictions under the prevailing statute. The relevant provision of the Immigration Act, subsection 53(1) [as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12], applied to persons who there were reasonable grounds to believe had been convicted of serious criminal offences. It expressly referred to persons described in paragraph 19(1)(c) [as am. by S.C. 1992, c. 49, s. 11], subparagraphs 19(1)(c.1)(i) [as enacted idem; 1995, c. 15, s. 2], 27(1)(a.1)(i) [as enacted idem, s. 16; 1995, c. 15, s. 5] and paragraph 27(1)(d) of the Act, all of which related to persons convicted of crimes. Accordingly, it was appropriate that a danger opinion be based solely on evidence of convictions, not mere allegations of wrongdoing, because of the clear ambit of the relevant provisions.
[18]Third, it is notable that subsection 53(1) of the former Act did not refer to subparagraph 19(1)(c.1)(ii) [as enacted by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2], the provision that was in issue in Legault. The latter provision described a person who there were reasonable grounds to believe had committed a crime. It did not require that the person be convicted. In that context, understandably, the Federal Court of Appeal held that consideration of an outstanding charge and warrant was permissible.
[19]Fourth, the issue here is whether there are grounds for believing Mr. Thanaratnam is a member of a group involved in crime. The question is not whether he was personally responsible for a particular offence. Reasonable grounds for believing that a person is a member of a group dedicated to criminal activity does not require proof beyond a reasonable doubt that his or her involvement in that activity rose to the level of actual commission of offences or even culpable participation in them as a party. In other words, the fact that a person has been charged with a crime may be relevant to the issue of membership, even where there is an absence of proof that would satisfy the criminal standard of liability.
[20]It is possible, therefore, to reconcile the cases relied on by the applicant and the respondent: In situations where the law does not specifically require proof of a conviction, the Board may consider other credible and trustworthy evidence of involvement in criminal activities, especially where the standard of "reasonable grounds to believe" applies.
[21]Still, there is an important balance to be struck. On the one hand, Parliament has established a fairly low evidentiary threshold in this area and has given the decision maker a good deal of freedom to receive any evidence it considers reliable, whether or not it would normally be admissible in a court. Clearly, Parliament wanted the Board to have a maximum amount of flexibility. Further, it did not want to impose a burdensome evidentiary threshold on the Minister. Yet, the other side of this equation must be emphasized. The reasonable grounds standard operates as a protection against arbitrary, capricious or ill-founded state action. As Dickson J. [as he then was, in Hunter et al., supra] points out, it is this standard that must be satisfied before the state can interfere with an individual's right to be left alone. It is an important and meaningful threshold. It requires an objective assessment and can be satisfied only where it is supported by credible evidence.
[22]Here, the Board found the evidence, both oral and documentary, relating to Mr. Thanaratnam's various interactions with the police to be credible. It also considered Mr. Thanaratnam's five actual criminal convictions. In my view, it was entitled to consider the various forms of evidence before it and assign it a weight corresponding to its reliability. However, as will be seen below, I find that the Board's ultimate conclusion that Mr. Thanaratnam was a member of a criminal organization is unsupported by that evidence.
B. Was the Board's definition of "organization" correct?
[23]The Board found that the Tamil gangs with which Mr. Thanaratnam was allegedly associated were "organizations" within the meaning of that term in paragraph 37(1)(a) of the Immigration and Refugee Protection Act. The Board stated:
| a) The groups or "gangs" known as V.V.T. and A.K. Kannan are organizations that exist, and that operate primarily in the Toronto area. |
| b) There are reasonable grounds to believe that these two groups are engaged in criminal activity including assaults, drug offences, kidnappings, weapons offences etc. This activity is contrary to either the Criminal Code or the Controlled Drugs and Substances Act. |
| c) The criminal activity is planned and organized by a number of persons acting in concert--planned in particular by the group leaders primarily and put into effect by the members. |
[24]The Board concluded that there were reasonable grounds for believing that two Toronto Tamil gangs called the VVT and A.K. Kannan are organizations "engaged in criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of offences under an Act of Parliament".
[25]As mentioned, the Board's conclusion on this issue derived, in part, from the oral testimony of Toronto police officers who described their working definition of a "gang" and their knowledge of the activities of certain Tamil groups in Toronto. Detective Constable Fernandes, an expert on Tamil gangs, said that a gang was a group of people who "work together towards a criminal and antisocial behaviour, primarily to a defined area where they create intimidation and fear in that community".
[26]The officers described A.K. Kannan and VVT as having a "loose hierarchical organizational structure". There were no specific job titles within the groups, but "there are leaders and followers". The groups had subsidiary subgroups and offshoots made up mainly of younger persons. The younger groups acted on their own and committed less serious crimes, but still took some direction from the core leadership especially in respect of more serious matters. Detective Constable Fernandes described several serious crimes which he believed to be the product of Tamil gang activity.
[27]According to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, a person is inadmissible to Canada if he or she is a member of an organization believed on reasonable grounds to be involved in a pattern of criminal activity planned and organized by a number of persons acting in concert. Clearly, there was evidence before the Board indicating that the two Tamil groups were involved in various criminal activities and that those activities were carried out by a number of persons together as directed by the groups' leaders. The question that remains is whether those groups could be described as "organizations".
[28]The Board did not analyse this issue in any detail. But it did take into account evidence that the Tamil groups had a form of leadership, had loose structural arrangements, subgroups and affiliations, and had distinct identities. As such, there were features of the two Tamil groups that supported the Board's conclusion that they met the definition of an organization.
[29]No guidance is given in the Immigration Act or the Immigration and Refugee Protection Act as to what an "organization" is. By contrast, the Criminal Code, R.S.C., 1985, c. C-46, subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, c. 32, s. 27] defines a "criminal organization" in some detail. It states that a criminal organization is a group, "however organized", that is made up of three or more persons and "has as one of its main purposes or activities" the commission of serious criminal offences that would likely yield some kind of benefit to the members of the group. Specifically, a criminal organization under the Code does not include "a group of persons that forms randomly for the immediate commission of a single offence".
[30]The Criminal Code's definition does not apply directly to the immigration setting. However, I believe it is noteworthy that the Code does not require any particular formalities or decision-making arrangements. Presumably, to meet the definition, a group must have some form of organizational structure. The words "however organized" suggest that it must be organized in some fashion, but there are no minimum or mandatory attributes that the group must have.
[31]Here, the two Tamil groups described by the police had some characteristics of an organization-- identity, leadership, a loose hierarchy and a basic organizational structure--and I can therefore find no error in the Board's conclusion that they fell within the terms of paragraph 37(1)(a) of the Immigration and Refugee Protection Act.
C. Did the Board err on the issue of Mr. Thanaratnam's membership in a criminal organization?
[32]The Board devoted much of its decision to the issue whether there were reasonable grounds to believe Mr. Thanaratnam was a member of an organization involved in criminal activities. Here again, it relied on the evidence of experienced police officers. It also considered the criteria used by the police to decide whether a person was involved in activities that could be characterized as gang-related. To repeat, in respect of Mr. Thanaratnam, the Board concluded:
I believe the evidence places him on many occasions in the company of persons also alleged to be involved in criminal/gang activities. In my estimation a reasonable person viewing all the evidence put together at this hearing would conclude he was part of this gang activity. In the final analysis of the overall evidence therefore, I am satisfied that the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.
[33]Mr. Thanaratnam argues that the Board erred in arriving at this finding. In particular, he suggests that the Board's conclusion was the product of speculation and stereotyping. He claims there was no evidence that he was personally involved in planning any gang activity or took orders from the gang leadership. Rather, he says, the Board simply assumed that his association with other persons with the same background combined with spontaneous criminal acts amounted to proof of membership in a gang.
[34]The Board referred to the following evidence:
· Mr. Thanaratnam was a suspect in respect of numerous criminal acts.
· On those occasions, he was usually in the company of other persons of Sri Lankan origin.
· Numerous charges against him were withdrawn or not proved.
· Mr. Thanaratnam was seen in a group of arguing VVT and A.K. Kannan members.
· He was the victim of beatings or shootings on four occasions, always in the company of other persons; the attackers were usually of Sri Lankan origin.
· Three of the attacks on him involved attempts on his life. In one of them, a companion was killed.
· After he was assaulted by members of a gang, Mr. Thanaratnam was arrested as a suspect in an attempted murder, believed by police to be retaliatory. He admitted lying to police about the original assault. Charges against him were withdrawn after forensic tests showed that his car had not been involved in the attempted murder.
· Mr. Thanaratnam had five criminal convictions: failure to comply with a recognizance, mischief, impaired driving, uttering threats, and assault causing bodily harm. On the assault charge, Mr. Thanaratnam was sentenced to five months' imprisonment.
[35]In addition, the Board did not find Mr. Thanaratnam's testimony credible. He told the Board that he was unfamiliar with Tamil gangs and did not knowingly associate with their members.
[36]Based on this evidence, the Board found that there were reasonable grounds to believe that Mr. Thanaratnam was a gang member and, therefore, a member of an organization devoted to criminal activities. I can only intervene if this finding is patently unreasonable, in the sense that it is at odds with the evidence before the Board.
[37]As the Board put it, Mr. Thanaratnam was certainly "in the middle of things". But what was the evidence showing actual membership in a gang?
[38]The Board heard evidence to the effect that Mr. Thanaratnam was linked to gang-related activity. But this is not, as the police witnesses themselves readily acknowledged before the Board, sufficient evidence from which to draw an inference that a person is a gang member. According to criteria used by police, other factors must be taken into account before one can draw an inference that a person may be a gang member. The Board set out those criteria in its reasons:
· involvement directly or indirectly in a gang-related crime or incident;
· acknowledges gang membership or gang association;
· identified as a gang member or gang associate by physical evidence;
· identified as a gang member or gang associate by reliable source information;
· police information provided or received as the result of directly observed association with other known gang members or gang associates;
· common or symbolic gang identifier(s) or paraphernalia;
· previous court findings including, but not limited to sworn testimonials that the person is a gang member or gang associate.
[39]Police would consider a person to be a gang member only if the first of these criteria was met, along with at least two others. The Board rightly noted that it was not bound by these criteria. At the same time, however, the Board relied heavily on the testimony and documentary evidence tendered by police witnesses to conclude that there were reasonable grounds for believing Mr. Thanaratnam was a gang member. Yet, as I read the evidence, the criteria used by the police themselves did not appear to be met. As mentioned, there was some evidence that Mr. Thanaratnam was involved in gang-related events and that he was occasionally seen associating with gang members. However, I cannot find in the evidence anything that would satisfy any of the other police criteria for determining gang membership or, indeed, would otherwise indicate that Mr. Thanaratnam actually belonged to a gang.
[40]One of the police witnesses, Detective Constable Smith, testified that he thought a third criterion was satisfied in Mr. Thanaratnam's case; namely, "previous court findings including, but not limited to sworn testimonials that the person is a gang member or gang associate". He believed that Mr. Thanaratnam's criminal record provided that evidence. However, there is nothing on the face of Mr. Thanaratnam's criminal record that would indicate that there had been court findings or even testimony to the effect that Mr. Thanaratnam was a member of a gang. Indeed, Detective Constable Smith himself did not go that far in his testimony before the Board. He was only able to say, based on the entire package of police information on Mr. Thanaratnam, that "all incidents, criminal convictions, arrests, associations, it's all part of a belief that a person is entrenched completely within a sub-culture . . . and take part in criminality. That, I believe, is supported in this package and taking it all into consideration that finding I think is obvious". He did not say that the evidence he had compiled, much of it hearsay in any case, would sustain an inference that Mr. Thanaratnam was a member of a gang.
[41]Accordingly, in my view, the Board's conclusion on this issue was out of keeping with the evidence before it. I see no basis for its finding that there were reasonable grounds to believe that Mr. Thanaratnam was a member of an organization devoted to criminal activities in the sense that he actually "belonged" to such a group: Chiau, above.
III. Conclusion
[42]The Board proceeded properly by hearing and relying on evidence it found credible and trustworthy. Its finding that the gang Mr. Thanaratnam was alleged to be part of was an "organization" for purposes of paragraph 37(1)(a) of the Immigration and Refugee Protection Act was consistent with the evidence before it. However, the Board's conclusion that Mr. Thanaratnam was a member of a gang was not supported by the evidence. Therefore, this application for judicial review is allowed and the matter is referred back to the Board for redetermination by a different panel. Since the only matter that is in doubt is whether Mr. Thanaratnam is a member of a criminal organization, the new hearing should be confined to that issue.
[43]Counsel requested an opportunity to propose questions of general importance for certification. Any such submissions shall be served and filed within 10 business days of this judgment.
JUDGMENT
| THIS COURT'S JUDGMENT IS that: |
1. The application for judicial review is allowed. The issue whether Mr. Thanaratnam is a member of a criminal organization is referred back to the Board for redetermination by a different panel;
2. Request by counsel for an opportunity to propose a question of general importance for certification is granted. Submissions should be filed within 10 business days following this judgment.
Annex
Immigration Act, R.S.C., 1985, c. I-2
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;
(c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
. . .
(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was 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 any offence under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
. . .
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);
(a.1) outside Canada,
(i) has been convicted of an offence that, if committed in Canada, constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
. . .
(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed;
. . .
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or
(c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Inadmissibility
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;
. . .
173. The Immigration Division, in any proceeding before it,
. . .
(c) is not bound by any legal or technical rules of evidence; and
(d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.