Canada (Public Safety and Emergency Preparedness) v. Gaytan

Canada (Public Safety and Emergency Preparedness) v. Gaytan
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-08-05
Neutral citation
2021 FCA 163
File numbers
A-392-19
Notes
A correction was made on August 12, 2021.
Decision Content
Date: 20210812
Docket: A-392-19
Citation: 2021 FCA 163
CORAM:
NEAR J.A.
GLEASON J.A.
LEBLANC J.A.
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
EDGAR ALBERTO LOPEZ GAYTAN
Respondent
and
THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS (CARL)
Intervener
Heard by online video conference hosted by the registry on January 20, 2021.
Judgment delivered at Ottawa, Ontario, on August 5, 2021.
REASONS FOR JUDGMENT BY:
LEBLANC J.A.
CONCURRED IN BY:
NEAR J.A.
GLEASON J.A.
Date: 20210812
Docket: A-392-19
Citation: 2021 FCA 163
CORAM:
NEAR J.A.
GLEASON J.A.
LEBLANC J.A.
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
EDGAR ALBERTO LOPEZ GAYTAN
Respondent
and
THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS (CARL)
Intervener
AMENDED REASONS FOR JUDGMENT
LEBLANC J.A.
I. Introduction
[1] This is an appeal by the Minister of Public Safety and Emergency Preparedness (the Minister) from a decision rendered by Manson J. of the Federal Court (the Judge). In his decision, dated September 11, 2019 and reported as 2019 FC 1152 (the Judgment), the Judge determined that it is open to the Immigration Division (the ID) and the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board of Canada (collectively, the Board) to consider the criminal law defence of duress when assessing whether a permanent resident or a foreign national is inadmissible to Canada for being a member of a criminal organization or for engaging in the criminal activities of said organization, as per paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] In concluding as he did, the Judge dismissed the claim that the authority to consider criminal law defences in inadmissibility proceedings brought under subsection 37(1) of the Act is vested exclusively in the Minister by virtue of subsection 42.1(1) of the Act. That provision empowers the Minister to grant ministerial relief from a number of inadmissibility findings, i.e. those made pursuant to section 34, paragraphs 35(1)(b) and (c) and subsection 37(1) of the Act, when he is satisfied that doing so would not be contrary to the national interest. In particular, the Judge rejected the Minister’s contention that allowing the Board to consider such defences in matters contemplated by subsection 42.1(1) of the Act would deprive that provision of its function.
[3] Having determined that the Board could consider the respondent’s defence of duress, the Judge saw no basis for interfering with the IAD’s finding that the respondent had successfully established the elements of that defence and was not, therefore, inadmissible to Canada under paragraph 37(1)(a) of the Act.
[4] As permitted by paragraph 74(d) of the Act, the Judge certified the following question of general importance:
In determining whether an individual is inadmissible under paragraph 37(1)(a) of the [Act], are the [ID] and [IAD] entitled to consider the defence of duress?
[5] For the reasons that follow, I am of the view that the Judge did not err in answering that question in the affirmative. I am also of the view that he did not commit any error in finding that it was reasonably open to the IAD to conclude as it did on the actual merits of the defence of duress raised by the respondent.
II. Background
[6] The respondent is a citizen of Mexico. He entered Canada in the spring of 2009. A few weeks later, he filed for refugee protection alleging that he feared returning to Mexico because of his involvement with the Sinaloa Cartel, a Mexican drug trafficking organization (the Cartel). In particular, he feared for his life because he had attempted to break free from the grip of the Cartel prior to fleeing to Canada.
[7] The respondent’s circumstances, as they relate to the Cartel, are not in dispute in the present proceedings. They were summarized as follows by the IAD:
[8] […] The Respondent is a citizen of Mexico and he characterized himself as a crystal meth addict around the time he turned 18 years old. He bought his drugs from affiliates of the Sinaloa Cartel in his town. He was forcibly recruited to work for the Cartel and worked for them for about 18 months. He would be picked up from his home by members of the Cartel in the morning and would spend the day packaging and selling drugs. At the end of the day, he would be brought home. At times, he also delivered bribe money to the police. During these 18 months, Mr. Lopez Gaytan was physically assaulted and serious threats were made against him and his mother. Instead of receiving payment for his services, Mr. Lopez Gaytan was supplied with drugs to fuel his addiction.
[9] The drug house where the Respondent worked was raided by the police and the Respondent was arrested. He confided in the police in the hope of gaining freedom from the Cartel. However, that did not happen. Instead, the police brought him to a location where members of the Cartel beat him, stabbed him with a machete, and threatened to kill him. The following day, Mr. Lopez Gaytan overdosed on crystal meth. He then recalls waking up in a rehabilitation facility. Eventually his mother came to know where he was and moved him to a different facility under an alias. He remained there for three months and he has been free from drug addiction since then. Mr. Lopez Gaytan and his mother lived in a different city for about two years and then returned to their home town. Mr. Lopez Gaytan was identified by a member of the Cartel and he was shot at. He left Mexico the next day. [Appeal Book, Vol. 1, page 38.]
[8] In January 2011, while his refugee claim was still pending, the respondent’s involvement in the Cartel’s criminal activities gave rise to an inadmissibility report prepared under subsection 44(1) of the Act. That report, in turn, gave rise to an inadmissibility hearing before the ID pursuant to subsection 44(2) and section 45 of the Act. These proceedings caused the suspension of the respondent’s refugee claim.
[9] Before the ID, the respondent did not challenge the Minister’s assertion that the Cartel is a criminal organization within the meaning of paragraph 37(1)(a) of the Act. He likewise did not challenge that he had personally engaged in activities, such as packaging and trafficking drugs and delivering protection money to the police, that were part of the Cartel’s criminal enterprise. However, he claimed that his involvement with the Cartel had been involuntary in that he had been forcibly recruited into it and honestly believed that he and his mother were at risk of being killed if he did not heed the directions of the Cartel.
[10] The ID considered, but did not accept, the respondent’s defence of duress on the ground that he had failed to establish two of the three constituent elements of that defence, namely the immediacy of the threat and the absence of a safe avenue of escape. In the ID’s view, the respondent had not been under duress throughout the entire two-year period he worked for the Cartel.
[11] In September 2012, the ID’s decision was set aside in Lopez Gayt[a]n v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1075, 2012 CarswellNat 3550 (WL Can) (Lopez Gaytan 2012). The Federal Court held that the ID made a reviewable error in its application of the law relating to the defence of duress to the respondent’s circumstances. More particularly, it found that the ID had failed to consider the impact of the respondent’s drug addiction on his ability to make a rational assessment of his potential avenues of escape. The matter was remitted to the ID for re-determination.
[12] On re-determination, the Minister asserted for the first time that the ID lacked jurisdiction to consider the respondent’s defence of duress. On November 27, 2017, the ID dismissed that contention on the ground that it ran contrary to the Federal Court’s decision in B006 v. Canada (Citizenship and Immigration), 2013 FC 1033, 440 F.T.R. 185 (B006), where a similar argument had unsuccessfully been made by the Minister. Then, applying the elements of the defence of duress to the respondent’s circumstances in light of the Federal Court’s directions in Lopez Gaytan 2012, it determined that the respondent was not a person described in paragraph 37(1)(a) of the Act.
[13] The Minister appealed that decision to the IAD. On December 31, 2018, the IAD dismissed the appeal (the 2018 Decision). First, it summarily rejected the Minister’s jurisdictional argument, stating that the Federal Court’s decision in Canada (Public Safety and Emergency Preparedness) v. Aly, 2018 FC 1140, 2018 CarswellNat 6697 (WL Can) (Aly) was determinative of the issue. Then, it confirmed the ID’s findings that the respondent’s criminal activities on behalf of the Cartel had been morally involuntary and that paragraph 37(1)(a) of the Act therefore did not apply to him.
[14] The Minister sought judicial review of both aspects of the 2018 Decision.
III. The Judgment
[15] As indicated at the outset of these reasons, the Minister’s challenge of the 2018 Decision proved unsuccessful. After noting that the “Federal Court has consistently found that the defence of duress is applicable in inadmissibility proceedings” (Judgment at para. 17), the Judge agreed with his colleagues in B006 and Aly that the ability to raise the criminal law defences of duress or necessity as a basis for relief under subsection 42.1(1) of the Act did not preclude claimants from raising them in an admissibility hearing, hereby dismissing the Minister’s contention that allowing the Board to consider these defences in such proceedings “would deprive subsection 42.1(1) of its function” (Judgment at para. 19). He also agreed that this Court’s decision in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103, 415 N.R. 121 (Agraira) provided no support for the argument advanced by the Minister. More particularly, the Judge was satisfied that Agraira “was simply providing an example of factors that could be considered in a Ministerial relief application, not ruling out the possibility of a defence of duress being raised at inadmissibility hearings” (Judgment at para. 21).
[16] The Judge then considered the Minister’s submission that cases in which the Federal Court had found that the defence of duress could be considered by the Board when dealing with paragraph 37(1)(b) of the Act ought to be distinguished from cases involving paragraph 37(1)(a). He saw no principled reason for drawing such a distinction, as the underlying rationale for both defences is moral involuntariness (Judgment at paras. 26-27). He further rejected the Minister’s contention that the defence of duress was not relevant in inadmissibility proceedings because, in the criminal law context, it only serves to negate the mens rea requirement of an offence, whereas in inadmissibility proceedings no such mental element is required to demonstrate inadmissibility. Quoting from Lamer C.J.’s judgment in R v. Hibbert, [1995] 2 S.C.R. 973, 184 N.R. 165 (Hibbert), he held that duress can provide a defence not only by negating the requisite mens rea of the conduct in question but also by excusing the actions of the individual, resulting in mens rea being an irrelevant consideration when duress operates as an excuse (Judgment at paras. 28-29).
[17] For the same reason, the Judge found that the distinction the Minister drew between the use of the terms “engaging in” and “committing” in certain inadmissibility provisions of the Act had no effect on the applicability of the defence of duress because when it operates as an excuse, that defence “goes to the voluntariness of the act in question, whether that be membership in an organization or otherwise” (Judgment at paras. 30-31).
[18] As for the merits of the 2018 Decision, the Judge noted that the only issue to be determined was whether the respondent had a “safe avenue of escape”. He found no reason to interfere with the IAD’s findings on that point, being satisfied that the respondent’s drug addiction was one of a number of factors considered by the IAD, the others being the repeated beatings, the continuous death threats, and the honest belief that the Cartel was willing and able to track down the respondent and his mother. In short, the Judge was satisfied that the IAD’s conclusion, i.e. that a reasonable similarly situated person could not have extricated themselves from the situation of duress the respondent found himself in, fell within a range of rational outcomes (see Judgment at paras. 37-43).
IV. Issues and Standard of Review
[19] This appeal raises the following issues:
1) In determining whether an individual is inadmissible under paragraph 37(1)(a) of the Act, is the Board entitled to consider the defence of duress?
2) If so, was the IAD’s application of the defence of duress to the respondent’s circumstances reasonable?
[20] It is trite that on appeal from a decision of the Federal Court sitting in judicial review, this Court must determine whether the Federal Court chose the appropriate standard of review and, if so, whether it properly applied it in reviewing the impugned decision. This requires the Court to “step into the shoes” of the Federal Court and effectively focus on the administrative decision under review (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 (Agraira SCC)).
[21] Here, the Judge chose to review the 2018 Decision on a standard of reasonableness. Both parties are of the view that the Judge made the proper choice and that this choice remains valid under the review framework laid out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov),. In Vavilov, the Supreme Court stated that when reviewing an administrative decision, the reviewing court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness” (Vavilov at para. 25).
[22] That presumption extends to matters where the impugned decision turns on the decision maker’s interpretation of its home statute. This was already well established by cases such as Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 30 and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 22-23. It was reiterated in Vavilov (at para. 25).
[23] On reasonableness review, the focus of the inquiry “must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (Vavilov at para. 83). Ultimately, the reviewing court must be satisfied that the administrative decision is “based on an internally coherent and rational chain of analysis and … is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para. 85). When the matter at issue concerns more specifically the decision maker’s interpretation of its home statute, reasonableness review means that although the decision maker’s interpretation must be consistent with the text, context, and purpose of the provision, as required by the usual principles of statutory interpretation (Vavilov at para. 120), the reviewing court must refrain from undertaking a de novo analysis of the question or from asking itself “what the correct decision would have been”. It must instead, “examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (Vavilov at para. 116).
[24] The reasonableness review framework clearly applies to the second question in issue in the present matter. However, it is less clear that it applies to the first one, the jurisdictional issue as Vavilov sets out a limited number of instances where the presumption of reasonableness review can be rebutted. One such instances concerns questions regarding “the jurisdictional boundaries between two or more administrative bodies” (Vavilov at para. 63) as “the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another”. This is to avoid “pulling a party in two different and incompatible directions” (Vavilov at para. 64). The examples given by the Supreme Court in support of this exception to the presumption of reasonableness review all deal with administrative bodies deriving their authority from different statutory regimes, not, as is the case here, from the same statutory framework. The issue of the applicability of this exception to the case at bar not having been raised or addressed by the parties, it is preferable to leave it for another day.
[25] That said, I am satisfied, for the reasons that follow, that the IAD’s finding that it is entitled to consider the defence of duress when determining whether an individual is inadmissible under paragraph 37(1)(a) of the Act, is not only reasonable, but correct.
V. Analysis
A. The jurisdictional issue
[26] The Board relied on Federal Court precedents in reaching its conclusion on jurisdiction. Therefore, it can hardly be faulted for having concluded that those precedents were binding on it (see Vavilov at para. 112). As a result, the focus of the inquiry must be on the Judge’s treatment of these precedents. What needs to be determined in this context is whether the interpretation of the interplay between section 42.1 and the other relevant provisions of the inadmissibility framework articulated in those precedents, accepted as good law by the Judge, should be disturbed on appeal, keeping in mind that these provisions 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 (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; R. v. Penunsi, 2019 SCC 39, 435 DLR (4th) 65, at para. 36).
(1) The parties’ position
[27] The Minister submits that the Judgment is inconsistent with the scheme of the Act as well as with appellate jurisprudence. He claims that, contrary to the true essence of the Act’s inadmissibility framework, the Judgment permits the Board to exercise a relieving authority that Parliament has vested in him, and no one else, as per the operation of subsection 6(3) of the Act, that is the authority to relieve someone from the objective fact of their inadmissibility, when this is not contrary to the national interest. According to that framework, when ministerial relief is available, inadmissibility becomes a two-step process where duress can only be raised as an excuse for a person’s conduct at the ministerial relief stage.
[28] The Minister further claims that the Judgment is inconsistent with the scheme of the Act because it imports into the inadmissibility framework criminal law notions that have no direct application to it. The legal defence of duress, he claims, is aimed at protecting persons charged with an offence from unconstitutional punishment, that is from punishment for morally involuntary actions, whereas inadmissibility is purely a finding that an individual falls within a class of persons defined by Parliament. As such, inadmissibility is not concerned with moral blameworthiness, is not imposed as a punishment for an individual’s actions, and does not engage one’s rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the Charter), as would punishing an accused for his or her morally involuntary actions. According to the Minister, the Judge made a critical error in failing to account for these crucial distinctions.
[29] Finally, the Minister asserts that his position on the jurisdictional issue is consistent with appellate jurisprudence, and in particular with the Supreme Court of Canada’s decision in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh) and the judgments of this Court in Agraira, Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262, [2015] 4 F.C.R. 162 (Najafi), and Canada (Citizenship and Immigration) v. Kassab, 2020 FCA 10, 441 D.L.R. (4th) 369 (Kassab). He further contends that the line of reasoning emanating from these judgments has been followed in a number of Federal Court cases, namely Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, 343 D.L.R. (4th) 510 (Stables), Saleh v. Canada (Citizenship and Immigration), 2010 FC 303, 363 F.T.R. 204 (Saleh) and Gazi v. Canada (Citizenship and Immigration), 2017 FC 94, 2017 CarswellNat 134 (WL Can) (Gazi).
[30] According to the Minister, the common principle underlying this line of cases is that membership is to be interpreted broadly, while duress is a factor to be raised and considered personally by him in a subsequent application for ministerial relief under subsection 42.1(1), making it thereby possible for those who can establish that their participation in a criminal organization was coerced to be relieved from the consequences of inadmissibility. For the Minister, the line of jurisprudence followed by the Judge runs contrary to that principle as it narrows the intended broad meaning of membership and impermissibly alters the two-step process laid out in the Act’s inadmissibility framework in matters where ministerial relief is available and does so at the expense of the safety and security of Canadians, which are the two key considerations in determining whether such relief is warranted.
[31] The respondent does not agree with any of these submissions. He contends that the Minister’s position prevents a harmonious reading of the Act, one that is both consistent, internally and externally, and predictable. He claims, in that regard, that although common law defences are part of the criminal law, they do provide context for the interpretation of the criminality and security provisions of the Act, as evidenced by the fact that they have been widely found applicable to inadmissibility matters for over 20 years, regardless of the availability of ministerial relief. Moreover, the Minister’s approach, if accepted, would irrationally “forgive” nonculpable conduct and would not serve any of the Act’s objectives, as articulated in section 3 of the Act, since there would be nothing for the Minister to relieve.
[32] The intervener, the Canadian Association of Refugee Lawyers, which supports the conclusion reached by the Judge, claims that from the perspective of refugee protection, the Minister’s approach will effectively eliminate criminal law defences in the context of inadmissibility determinations, while preserving them for exclusion determinations made pursuant to Article 1F of the Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6. (the Convention) and section 98 of the Act, despite both processes assessing identical legal elements, including, in most instances, identical alleged criminal conduct. Such an approach, according to the intervener, would run contrary to principles of statutory interpretation and to binding case law; lead to inconsistent results between inadmissibility determinations under sections 34, 35 and 37 of the Act and exclusion determinations under section 98; and put Canada at odds with its international law obligations.
[33] I will first examine the relevant provisions of the Act. I will then turn to the jurisprudence relied upon by the Minister. For ease of reference, relevant provisions not reproduced in the body of these reasons are set forth in the annex.
(2) The relevant statutory framework
[34] The most fundamental principle of immigration law is that “non-citizens do not have an unqualified right to enter or remain in the country.” When a non-citizen is permitted to enter or remain in Canada, that permission is usually subject to conditions and the failure to respect them may give rise to an inadmissibility finding (Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at 733, 135 N.R. 161; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, 67, [2020] 2 F.C.R. 355 at para. 54 (Revell)).
[35] Inadmissibility can be sought on various grounds ranging from national security to public health. These grounds are set out in sections 34 to 42 of the Act (under “Division 4 – Inadmissibility”). One of their objectives is to protect the safety of Canadian society (Sittampalam v. Canada (MCI), 2006 FCA 326, [2007] 3 F.C.R. 198 at para. 21 (Sittampalam)). Sections 44 to 53 of the Act (“Division 5 – Loss of Status and Removal”) outline a comprehensive scheme for the adjudication of inadmissibility allegations and the enforcement of inadmissibility determinations.
[36] Relevant to the present matter are sections 34 to 37 of the Act, which set out inadmissibility grounds aimed at “facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism” (see Sittampalam at para. 21, cited in Stables at para. 14).
[37] Inadmissibility for organized criminality is provided for by subsection 37(1) of the Act. According to that provision, a non-citizen is inadmissible either for being a member of a criminal organization or engaging in the activities of the organization, or for engaging, in the context of transnational crime, in activities such as people smuggling or money laundering. Subsection 37(1) reads as follows:
Organized criminality
Activités de criminalité organisée
37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
37 (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
(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
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) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
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.
[38] For non-citizens who are in Canada, inadmissibility proceedings normally begin when the Minister is provided with the report of an immigration officer setting out the facts that led the officer to believe that a person is inadmissible. Then, subject to two exceptions which have no application in the present matter, the Minister may refer the report to the ID for an admissibility hearing pursuant to subsection 44(2) of the Act if he is of the opinion that the report is well-founded. If satisfied at the conclusion of the hearing that the permanent resident or foreign national who is the subject of the report is inadmissible, paragraph 45(d) of the Act directs the ID to make the applicable removal order.
[39] The authority to prepare such a report and to refer it to the ID is “permissive”, meaning that both the officer and the Minister retain discretion to consider the particular circumstances of the person being investigated when determining whether to issue a report or defer the matter to the ID (see B010 v. Canada (Citizenship and Immigration), 2013 FCA 87, [2014] 4 F.C.R. 326 at para. 93, reversed on other grounds by 2015 SCC 58, [2015] 3 S.C.R. 704 (B010)).
[40] Pursuant to section 33 of the Act, it is sufficient, in order to establish inadmissibility under sections 34 to 37, that there be “reasonable grounds to believe” that the facts giving rise to inadmissibility “have occurred, are occurring or may occur.” This relatively low evidentiary standard requires more than mere suspicion but less than proof on the balance of probabilities, meaning that such standard will be met “where there is an objective basis for the belief which is based on compelling and credible information” (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114).
[41] In proceedings brought before it under the Act, which include inadmissibility proceedings, the Board, by virtue of subsection 162(1) of the Act, has “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction” (my emphasis).
[42] For its part, section 42.1 of the Act empowers the Minister to declare that the matters referred to in section 34 (security), subsection 37(1) (organized criminality), and part of section 35 of the Act (human or international rights violations) do not constitute inadmissibility. That power, which the Minister alone can exercise as per subsection 6(3) of the Act, permits the granting of an exemption from the application of these inadmissibility provisions provided the Minister is satisfied that the presence in Canada of the person seeking the exemption, or for whom it is considered, would not be contrary to the national interest.
[43] In making that determination, the Minister, as per subsection 42.1(3), “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.” In Agraira SCC, the Supreme Court held that the test is no longer focused solely on national security, as was the case prior to the amendments made in 1977 to the inadmissibility provisions of the Immigration Act, 1976, S.C. 1976-77, c. 52, but is instead premised on a “broader array of domestic and international considerations constituting the ‘national interest’” (Agraira SCC at paras. 69-70).
[44] That relieving power is meant to exempt non-citizens “who innocently contribute to or become members of terrorist [or, in the case at bar, criminal] organizations” from the consequences of inadmissibility notwithstanding proof that they have been associated with or have been members of such organizations (Suresh at para. 110, cited in Agraira at para. 63). Relief under section 42.1 is not available to all non-citizens but only to foreign nationals. It may be granted either on application by the foreign national or on the Minister’s own initiative. Section 42.1 reads as follows:
Exception — application to Minister
Exception — demande au ministre
42.1 (1) The Minister may, on application by a foreign national, declare that the matters referred to in section 34, paragraphs 35(1)(b) and (c) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest.
42.1 (1) Le ministre peut, sur demande d’un étranger, déclarer que les faits visés à l’article 34, aux alinéas 35(1)b) ou c) ou au paragraphe 37(1) n’emportent pas interdiction de territoire à l’égard de l’étranger si celui-ci le convainc que cela ne serait pas contraire à l’intérêt national.
Exception — Minister’s own initiative
Exception — à l’initiative du ministre
(2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in section 34, paragraphs 35(1)(b) and (c) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest.
(2) Le ministre peut, de sa propre initiative, déclarer que les faits visés à l’article 34, aux alinéas 35(1)b) ou c) ou au paragraphe 37(1) n’emportent pas interdiction de territoire à l’égard de tout étranger s’il est convaincu que cela ne serait pas contraire à l’intérêt national.
Considerations
Considérations
(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.
(3) Pour décider s’il fait la déclaration, le ministre ne tient compte que de considérations relatives à la sécurité nationale et à la sécurité publique sans toutefois limiter son analyse au fait que l’étranger constitue ou non un danger pour le public ou la sécurité du Canada.
[45] Clearly, when one looks at the text of the relevant provisions, there is no express language limiting the Board’s jurisdiction in the manner proposed by the Minister. The broad language of subsection 162(1) of the Act rather suggests that the Board’s exclusive authority to consider “all questions of law and fact, including questions of jurisdiction” in proceedings brought before it, is not so constrained. Nor is there express language in the Act granting the Minister exclusive authority to consider criminal law defences in the context of inadmissibility.
[46] However, the Minister claims that when read, as it should be, in context and purposively, section 42.1 does have a limiting effect on the Board’s jurisdiction. He submits that the concept of “membership” in sections 34 and 37 of the Act, which is not defined in the Act, was intended to be broadly interpreted mainly because the Minister retained discretion, and still does under section 42.1 of the Act, to relieve innocent individuals caught by this broad interpretation from the consequences of inadmissibility, including those who can establish that their participation in a criminal or terrorist organization was coerced. The Minister therefore contends that it cannot have been Parliament’s intention to allow the Board to circumvent that broad interpretation through the consideration of criminal law defences aimed at excusing the conduct of such individuals, this task having been exclusively vested in him with a view that the availability of a relieving measure for coerced participation in the activities of such organizations be measured against the national interest and its two predominant features, national security and public safety.
[47] It is true that the term “member” in sections 34 and 37 is to receive a broad interpretation and that one of the contextual factors that allows for such an interpretation is the Minister’s authority, under section 42.1, to provide relief from the consequences of inadmissibility. That being said, I have some difficulty with the Minister’s contention that the interplay between those provisions deprives the Board of any authority to consider duress when determining membership in a terrorist or criminal organization. Put differently, I am not satisfied that, whatever the applicable standard of review is, the contrary view, which is reflected in the prevailing Federal Court jurisprudence, should be interfered with. This is so for a number of reasons.
[48] First, it strikes me that the Minister’s approach is at odds with a careful reading of Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487 (Poshteh), rendered a few years only after the coming into force of the Act and relied upon by the Minister in the present proceedings. Although Poshteh involved membership of a minor in a terrorist organization, it contains, in my view, pronouncements of persuasive value that are applicable to any membership case.
[49] Two issues were considered in Poshteh. The first was whether, irrespective of his age, there were reasonable grounds to believe that Mr. Poshteh had been a member of a terrorist organization, namely the Mujahedin-e-Khalq (the MEK). Mr. Poshteh’s involvement with the MEK had been limited to distributing propaganda leaflets for a little over two years and ended just a few weeks before Mr. Poshteh’s 18th birthday. The Court, after noting the absence of a definition of the term “member” in the Act and that the courts had not established a precise and exhaustive definition of that term, endorsed the Federal Court’s view that “member” was to be interpreted broadly. That view stemmed from three main considerations: the absence of a formal test for membership; the fact that section 34 deals with subversion and terrorism and thereby engages two prominent objectives of the Act, public safety and national security; and the possibility, in appropriate circumstances, of obtaining ministerial relief from the consequences of inadmissibility pursuant to former subsection 34(2) of the Act (Poshteh at paras. 27-29).
[50] Poshteh was the Court’s first opportunity to consider how the term “member” is to be interpreted under the Act’s amended inadmissibility regime, which in 2002 replaced the one that had been in place under the former Immigration Act, R.S.C. 1985, c. I-2.
[51] The Court rejected Mr. Poshteh’s contention that for there to be a finding of membership, evidence of a significant level of integration within an organization should be required. It found that such a test would be inconsistent with the broad interpretation to be given to the term “member” (Poshteh at para. 31). On the facts, the Court concluded that the Federal Court judge had committed no error in deferring to the Board’s decision, despite Mr. Poshteh’s claim of limited involvement in the MEK’s activities. In so concluding, the Court underscored the fact that the assessment of the factors supporting or pointing away from a finding a membership fell “within the expertise of the Immigration Division” (Poshteh at paras. 36-38).
[52] The second issue considered by this Court was whether Mr. Poshteh’s status as a minor was a relevant consideration under paragraph 34(1)(f) of the Act and if so, what factors were to be taken into account in determining membership. Mr. Poshteh’s primary argument was that in the case of a minor, the term “member” in paragraph 34(1)(f) ought to be interpreted narrowly so as to apply only to individuals directly involved in violence or holding leadership positions within a terrorist organization (Poshteh at para. 12).
[53] This argument proved unsuccessful, the Court holding that lesser involvement by a minor could result in a finding of membership (Poshteh at para. 53). The Court first noted in that regard that, contrary to paragraph 36(3)(e) of the Act, as it then read, there was no express exemption for minors in paragraph 34(1)(f). Because of that and because the Act expressly provides for individual assessments for admissibility, an exercise that involves “different considerations”, a person’s status as a minor is “simply a further consideration in the individual assessment made under paragraph 34(1)(f)” (Poshteh at paras. 40-45).
[54] Then, the Court examined what considerations w