Demaria v. Canada (Citizenship and Immigration)

Demaria v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-04-18
Neutral citation
2019 FC 489
File numbers
IMM-2077-18
Notes
A correction was made on June 17, 2019.
Decision Content
Date: 20190418
Docket: IMM-2077-18
Citation: 2019 FC 489
Ottawa, Ontario, April 18, 2019
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
VINCENZO DEMARIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of a decision made by the Immigration Division of the Immigration and Refugee Board of Canada [ID or Member] dated April 17, 2018 wherein the ID determined that the Applicant is inadmissible on grounds of organized criminality and for having engaged in activities such as the laundering of money or other proceeds of crime, and issued a deportation order against him.
II. BACKGROUND
[2] The Applicant, Vincenzo DeMaria, was born in Siderno, Italy in 1954. He moved to Canada as a young child and has been a permanent resident ever since.
[3] The Applicant was convicted of second degree murder in 1982. A deportation order issued against him in relation to this conviction was stayed and later quashed by the Immigration Appeal Division of the Immigration and Refugee Board in 1996.
[4] The Applicant was granted day parole in 1989 and full parole with conditions in 1992. One of the conditions prohibited the Applicant from associating with anyone known, or reasonably believed, to have a criminal record. In June 2014, the National Parole Board revoked the Applicant’s full parole on the basis that the Applicant had associated with individuals known to be involved in criminal activities.
[5] On December 12, 2014, a s 44(1) report was prepared which alleged that the Applicant is inadmissible on grounds of organized criminality under s 37(1)(a) of the Act. On February 16, 2015, a second s 44(1) report was prepared which alleged that the Applicant is also inadmissible under s 37(1)(b) of the Act for engaging in transnational money laundering. The Minister’s delegate then signed two referrals for an admissibility hearing pursuant to s 44(2) of the Act.
[6] The Minister of Public Safety and Emergency Preparedness [Minister] made arguments at the ID hearings. In this application for judicial review, however, it is the Minister of Citizenship and Immigration who made submissions. I have referred to the Minister of Citizenship and Immigration as “the Respondent.” The Respondent argues that there are reasonable grounds to believe that the Applicant is, or was, a member of a criminal organization called ‘Ndrangheta. Additionally, the Respondent argues that there are reasonable grounds to believe that the Applicant has engaged in transnational money laundering.
[7] ‘Ndrangheta is an organized crime group which originated in the Calabria region of South-Western Italy. Since its formation, ‘Ndrangheta has expanded internationally and now has a presence across Europe, throughout the Americas, and in Australia. ‘Ndrangheta has a complex, hierarchical organizational structure. It engages in a litany of criminal activities which include, but are not limited to: drug trafficking; fraud; extortion; weapons trafficking; prostitution; and money laundering.
[8] With his family’s assistance, the Applicant has owned and operated several businesses in Canada. The Cash House, now controlled by the Applicant’s son, is relevant to this application for judicial review. The Cash House provides financial services such as the transfer of funds, cashing of cheques, and currency exchange. The Minister alleged that the Applicant has used The Cash House to engage in transnational money laundering.
III. DECISION UNDER REVIEW
[9] The ID held hearings on December 1, 2016, July 10-14, 2017 and November 23, 2017 in order to determine whether the Applicant is inadmissible on grounds of organized criminality and money laundering. The CBSA and the Applicant submitted documentary evidence, and a number of witnesses were called to testify. The CBSA called the Applicant and police officers Todd Moore (Peel Regional Police) and Sylvain Tessier (RCMP). The Applicant called his son, Carlo DeMaria, and a Detective Sergeant A. Almeida (York Regional Police).
[10] With the agreement of the parties, three witnesses were also qualified to appear as experts to provide testimony at the hearings. Professor Kent Roach was called by the Applicant to testify on matters of intelligence, evidence, and law and justice. A professional accountant was called by the Applicant and a professional accountant was also called by the CBSA.
[11] The Applicant did not dispute the existence or the nature of ‘Ndrangheta as an international criminal organization.
[12] The ID pointed out that the onus is on the Minister to demonstrate that there are reasonable grounds to believe that the Applicant is, or was, a member of ‘Ndrangheta, or that there are reasonable grounds to believe that he engages in, or has engaged in, a pattern of planned and organized criminal activities:
[2] The expression “reasonable grounds to believe” indicates more than a mere suspicion, but less than a balance of probabilities. It refers to a serious possibility based on credible and trustworthy evidence.
[13] The ID then set out the respective positions of the Minister and the Applicant.
A. Minister’s Position
[14] Based upon the evidence of experienced police officers and confidential and documentary sources, the Minister asserted that there are reasonable grounds to believe that the Applicant is, or was, a member of ‘Ndrangheta. Additionally, the Minister argued that there are reasonable grounds to believe that the Applicant has engaged in transnational money laundering. Specifically, the Minister alleges that The Cash House serves to conceal the criminal origin of funds by creating a legitimate explanation for the source of funds.
B. Applicant’s Position
[15] The Applicant asserted that there was insufficient evidence to establish reasonable grounds to believe that he is, or was, a member of ‘Ndrangheta, or that he has engaged in money laundering. The Applicant says that the Minister’s evidence does not meet the compelling and credible standard established by the Supreme Court of Canada in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40. The mere fact that the Applicant knows individuals who are suspected of having criminal backgrounds is insufficient to deem him a member of a criminal organization.
[16] The Applicant challenged the evidence relied upon by the Minister. The opinion evidence provided by three police officers is not based on objective evidence. Instead, this evidence is based on the opinions of other police officers and circumstantial evidence about the Applicant’s contact with individuals alleged to be members of ‘Ndrangheta. There is no direct evidence which proves that the Applicant is, or was, a member of ‘Ndrangheta. The circumstantial evidence is not compelling or credible. The evidence submitted from confidential sources is difficult to assess in terms of its reliability, credibility, and the intentions of the sources, and, the other documentary evidence is of little probative value.
[17] The Applicant noted that it was actually his son, Carlo DeMaria, who was in control of The Cash House during the relevant period. Furthermore, the assessment provided by the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC] is of little probative value for several reasons. First, the persons involved in the majority of the transactions reported by FINTRAC are not linked to the Applicant. Second, The Cash House actually reported most of the operations listed in the FINTRAC disclosure. Third, media coverage about the Applicant may have resulted in transactions being deemed suspicious merely due to their association with the Applicant rather than any indications of money laundering. Finally, false positives may have resulted from incomplete information.
[18] The Applicant challenged the usefulness of the report created by the Minister’s expert, Mr. Grenon. Knowledge and belief that the funds in question are the result of criminal activity is an essential element of the crime of money laundering. Mr. Grenon’s report does not discuss the alleged criminal origins of the funds. Accordingly, his report is of no use to determining whether the Applicant engaged in money laundering.
[19] The Applicant challenged each indicator of money laundering identified in Mr. Grenon’s report. The Cash House needed to use non-traditional banking institutions while becoming established as a business. The large number of small transactions is explained by the policies of banks that The Cash House does business with. The high volume of currency exchanges at The Cash House were primarily conducted by other money services businesses.
C. ID’s Analysis
[20] The ID began its analysis by explaining that the terms “member” and “organization” contained in s 37 of the Act are to be interpreted in a broad and liberal manner. The ID noted that ‘Ndrangheta clearly qualifies as a criminal organization and has a presence in Toronto. It is also clear that the criminal activities conducted by ‘Ndrangheta are often disguised as legitimate businesses. This allows ‘Ndrangheta to conceal and reinvest the proceeds of crime.
[21] The ID went on to assess whether there are reasonable grounds to believe that the Applicant is, or was, a member of ‘Ndrangheta and held that “there is no doubt in the panel’s mind that Mr. DeMaria is a member of the ‘Ndrangheta.” Electronic surveillance of ‘Ndrangheta revealed that senior members of the organization in Italy had referred to the Applicant by name. An Italian newspaper stated that the Applicant occupies a leadership role in ‘Ndrangheta in Toronto. Canadian media sources have also reported that the Applicant is one of the leaders of ‘Ndrangheta in Canada. A multitude of police forces in Canada believe that the Applicant is a member of ‘Ndrangheta. These forces include the Peel Regional Police, the RCMP, the York Regional Police, the Ontario Provincial Police, the Criminal Intelligence Service of Canada and others.
[22] The ID noted that the police reports produced for the hearing contain inaccuracies related to the identification of police informants. These inaccuracies were explained by the reluctance on the part of the police to jeopardize their confidential informants and by the internal secrecy of ‘Ndrangheta.
[23] The ID took into consideration the concepts of “tunnel vision” and “noble cause corruption” identified by Professor Roach. These concepts can result in individuals interpreting information in a manner that supports their hypothesis. This is especially the case when the individual in question feels that their cause is noble. The danger is that ambiguous or unsubstantiated evidence may be interpreted in a way that confirms a preconceived opinion.
[24] The ID specifically considered the report and testimony of Detective Moore and noted that it contained “clerical errors, inaccuracies and vagueness.” Detective Moore’s testimony, however, explained the inaccuracies and vagueness. The ID found that Detective Moore’s testimony was “relevant, credible and trustworthy” and was supported by his knowledge gained through years of investigation. Detective Moore had explained in a clear manner what convinced him of the Applicant’s membership in ‘Ndrangheta.
[25] The ID also considered the report and testimony of Sergeant Tessier. The ID assigned greater weight to Sergeant Tessier’s testimony than to his report. The ID found that “not all of the information compiled by Sergeant Tessier arose from his personal knowledge, with much of it having been reported to him by police officers under his supervision.” Additionally, the ID was unable to analyze the confidential sources involved. Nevertheless, Sergeant Tessier’s testimony was found to be credible and was supported by years of investigative expertise. Sergeant Tessier testified that he had viewed photographs of the Applicant with known members of ‘Ndrangheta.
[26] The ID then assessed the report and testimony of Detective Sergeant Almeida. This report describes direct observations of the Applicant with members of ‘Ndrangheta and the Hells Angels biker gang. Furthermore, the ID found Detective Sergeant Almeida’s testimony to be credible and trustworthy.
[27] The ID found that the testimonies given by the police officers constituted evidence from experienced sources rather than mere opinion. Furthermore, the ID stated that all available evidence must be considered together. When this is done, the ID concluded that the police information, together with the judicial and journalistic evidence from Italy, Europe, and Canada, were sufficient to guard against tunnel vision and noble cause corruption.
[28] The ID also examined the Applicant’s life history and found that it is consistent with membership in ‘Ndrangheta. The Applicant was born in the heartland of ‘Ndrangheta, moved to Canada while ‘Ndrangheta was expanding internationally, and developed affiliations that correspond with the internal structure of ‘Ndrangheta. The Applicant was convicted of an execution-style murder which accords with the practices of ‘Ndrangheta. Furthermore, there have been a large number of investigations, charges, and convictions against individuals affiliated with the Applicant. Finally, the ID noted a brief telephone conversation between the Applicant and a convicted murderer, as well as a number of telephone conversations between the Applicant and the co-accused in the same case.
[29] The ID then went on to examine the allegation that there are reasonable grounds to believe that the Applicant has engaged in transnational money laundering. The ID noted that FINTRAC had conducted a thorough investigation of The Cash House and determined that there are reasonable grounds to believe that many of the transactions are relevant to money laundering.
[30] The ID then considered the testimonies of two experts as well as the Applicant and his son, Carlo DeMaria. Mr. Grenon, a witness called by the CBSA, was unable to conclusively find that money laundering had taken place, but noted several indicators of money laundering. The witness for the Applicant, Mr. Froese, was found to have experience in relation to money laundering conducted by biker gangs, but not by Italian criminal organizations. The ID found that Mr. Froese was unable to explain the indicators of money laundering identified by Mr. Grenon. Additionally, Mr. Froese was unable to explain the links between the Applicant and The Cash House. Finally, Mr. Froese testified that an accounting audit is insufficient to determine an absence of money laundering or that money laundering likely did occur at The Cash House. The ID assessed the testimonies of the Applicant and Carlo DeMaria and found that they had not sufficiently explained irregular and suspicious transactions at The Cash House.
[31] The ID considered the Applicant’s high rank in ‘Ndrangheta to be relevant to the issue of money laundering. Furthermore, the money laundering techniques of ‘Ndrangheta were taken into consideration. The ID noted the presence of irregular transfers to a company established by Carlo DeMaria’s cousin.
[32] The ID concluded that there are reasonable grounds to believe that the Applicant is a member of ‘Ndrangheta. Consequently, the ID found that there are reasonable grounds to believe that the Applicant and The Cash House are involved in money laundering. The ID rendered its Decision on April 17, 2018 wherein it determined that the Applicant is inadmissible on grounds of organized criminality and for having engaged in international money laundering, and issued a deportation order against him.
IV. ISSUES
[33] The issues to be determined in the present matter are the following:
What is the standard of review?
Was the Decision reasonable?
V. STANDARD OF REVIEW
[34] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[35] A standard of reasonableness applies to an inadmissibility decision of the ID on grounds of organized criminality (Uthman v Canada (Citizenship and Immigration), 2018 FC 583 at para 36 [Uthman]; Toor v Canada (Public Safety and Emergency Preparedness), 2018 FC 68 at paras 10-11).
[36] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[37] The following provisions of the Act are relevant to this application for judicial review:
Rules of interpretation
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.
Interprétation
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.
…
…
Organized Criminality
Activités de criminalité organisée
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
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) 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.
…
…
Preparation of report
Rapport d’interdiction de territoire
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
44 (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
Referral or removal order
Suivi
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(2) S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la Section de l’immigration pour enquête, sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances visées par les règlements, d’un étranger; il peut alors prendre une mesure de renvoi.
Decision
45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
Décision
45 Après avoir procédé à une enquête, la Section de l’immigration rend telle des décisions suivantes :
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
a) reconnaître le droit d’entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
b) octroyer à l’étranger le statut de résident permanent ou temporaire sur preuve qu’il se conforme à la présente loi;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
c) autoriser le résident permanent ou l’étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
d) prendre la mesure de renvoi applicable contre l’étranger non autorisé à entrer au Canada et dont il n’est pas prouvé qu’il n’est pas interdit de territoire, ou contre l’étranger autorisé à y entrer ou le résident permanent sur preuve qu’il est interdit de territoire.
VII. ARGUMENT
A. Applicant
[38] The Applicant submits that the Decision was unreasonable. The ID arrived at the conclusion that the Applicant is inadmissible for organized criminality on the basis of “nothing more than unsubstantiated police opinions and newspaper reports” (Applicant’s Memorandum at para 2). The ID failed to assess the reliability and credibility of the documentary evidence.
[39] The Applicant argues that it was incumbent upon the ID to reasonably assess the underlying evidence provided by the police officers who testified at the hearing. The ID failed to do this and strongly relied upon an alleged relationship between the Applicant and an individual named Carmelo Bruzzese who is believed to be a member of ‘Ndrangheta. The ID cited two police reports in support of its finding that the Applicant has a relationship with Mr. Bruzzese. These reports, however, do not actually demonstrate that such a relationship exists. The Applicant was not challenged or cross-examined in relation to his assertion that he does not know Mr. Bruzzese. Quite apart from this serious error, the ID failed to reasonably assess the evidence underlying the police testimony.
[40] The Applicant also says that it was unreasonable for the ID to rely heavily on a transcript of a phone conversation between two alleged members of ‘Ndrangheta in Italy. The ID found that the Applicant was mentioned by name in this conversation between high-ranking members of ‘Ndrangheta. However, none of the witnesses testified to having read the transcript of the conversation. Accordingly, the ID must have arrived at its view of the evidence based on its own analysis. The individuals whose phone conversation was recorded were simply referring to media reports about the revocation of the Applicant’s parole. There was no discussion about a relationship with the Applicant, or the Applicant’s being a member of ‘Ndrangheta. The ID arrived at an unreasonable conclusion by failing to properly assess this evidence.
[41] The Applicant also argues that the ID misconstrued observations of the York Regional Police. The ID stated that this evidence is “related to direct observations of Mr. DeMaria in the company of known members of the ‘Ndrangheta and of the Hells Angels criminalized biker gang.” In fact, this evidence only shows that the Applicant was observed at a party with an individual named Rocco Remo Commisso in 2004. Although Rocco Remo Commisso is alleged to be a member of ‘Ndrangheta in the Minister’s disclosure materials, there is no evidence to support this allegation. The evidence also indicates that the Applicant attended his nephew’s wedding, which was also attended by Rocco Remo Commisso and Cosimo Commisso. The Applicant was not, however, observed associating with either individual at the wedding. The Applicant testified that he had met Rocco Remo Commisso and Cosimo Commisso while in custody, but that he had no current relationship with either individual. Moreover, Toronto Coalition to Stop the War v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 957 confirms (at para 118) that mere contact with a member of a criminal organization is insufficient to demonstrate membership in a criminal organization. The ID unreasonably assessed the evidence in relation to the Applicant’s contact with Rocco Remo Commisso and Cosimo Commisso.
[42] The Applicant further argues that the ID unreasonably considered the Applicant’s second degree murder conviction as evidence of membership in ‘Ndrangheta. The ID noted that the killing was characterized by the judge who heard the case as an “execution” and that execution-style killings are a trademark of ‘Ndrangheta. This is unreasonable because the ID failed to consider the lack of any evidence demonstrating that the Applicant was a member of ‘Ndrangheta when the murder took place. The ID failed to consider whether the style of the murder has nothing to do with membership in ‘Ndrangheta. Finally, it was unreasonable for the ID to examine the conviction because it is irrelevant to the allegation of organized criminality.
[43] The Applicant says that the ID also unreasonably assessed a phone conversation between the Applicant and a convicted murderer named Charles Gagne. The ID further misconstrued phone conversations between the Applicant and Mike DaSilva, the co-accused of Mr. Gagne. The ID found these conversations “troubling.” A closer examination of the evidence, however, demonstrates that this conclusion is unreasonable. The Applicant received a call from Mr. Gagne who explained that he was facing charges for murder. The Applicant told Mr. Gagne that he was unable to assist him and hung up the phone. Mr. DaSilva, who was acquitted, spoke with the Applicant about financial dealings. The ID’s conclusions based upon this evidence were unreasonable.
[44] The Applicant submits that the ID erred significantly by relying on the “opinions” of police officers. It was an error for the ID to conflate these opinions with proven facts. The ID failed to assess the credibility and reliability of any underlying evidence supporting this opinion evidence. The Federal Court decision in Veerasingam v Canada (Minister of Citizenship and Immigration), 2004 FC 1661 [Veerasingam] distinguishes between reliance on a charge and reliance on the evidence underlying a charge. Furthermore, Veerasingam requires the reliability and credibility of the underlying evidence to be assessed. The evidence underlying the police opinions in this case was not sufficient to ground a charge against the Applicant. The ID failed to assess the reliability and credibility of that evidence.
[45] The Applicant also challenges the ID’s statement that “the panel does not view the testimony of police officers Moore, Tessier and Almeida as opinions on Mr. DeMaria’s membership in the ‘Ndrangheta, but rather as evidence reported by experienced police officers who testified to the best of their knowledge.” The ID, in fact, abdicated its responsibility by placing heavy reliance on opinion evidence and failing to examine its reliability and credibility.
[46] The Applicant argues that the ID unreasonably considered the report and testimony of Detective Moore. The ID acknowledged that “the poorly drafted report includes clerical errors, inaccuracies and vagueness that diminish its probative value,” but held that Detective Moore’s testimony explained these issues. The ID failed, however, to reasonably assess the evidence underlying Detective Moore’s opinion evidence and failed to assess Detective Moore’s credibility. While it is possible that clerical errors and vagueness could be clarified through testimony, the inaccuracies in the report cannot be explained away in this manner. For example, Detective Moore testified that he did not include exculpatory evidence in the report. Additionally, Detective Moore testified that he lacked evidence to support key aspects of his report. Accordingly, it was unreasonable for the ID to simply rely on Detective Moore’s opinion.
[47] It was also unreasonable for the ID to find that the decision of the Peel Regional Police not to comply with the subpoena of evidence bolstered the credibility of Detective Moore.
[48] The Applicant also challenges the ID’s treatment of the evidence provided by Sergeant Tessier. Sergeant Tessier did not actually view pictures or videos showing the Applicant with Mr. Bruzzese. The ID misconstrued the evidence in this regard. Furthermore, Sergeant Tessier’s opinion was primarily based on the investigations of other officers. Sergeant Tessier also directly contradicted information provided by Detective Moore about the ownership of a website called Xtremepics.com. Finally, information is included in Sergeant Tessier’s report that is uncorroborated and that does not make logical sense. All of this demonstrates that the ID did not adequately assess the underlying evidence in relation to Sergeant Tessier’s report and testimony.
[49] The Applicant argues that the ID overstated the meagre evidence underlying the report and testimony of Detective Sergeant Almeida. The only evidence of contact between the Applicant and members of criminal organizations are photos at a stag party in 2004 and a wedding in 2012. There is no indication that Detective Sergeant Almeida actually investigated the Applicant. The ID failed to adequately assess the underlying evidence in relation to Detective Sergeant Almeida’s report and testimony.
[50] The Applicant also challenges the ID’s reliance on newspaper articles as evidence. One of the articles relied upon by the ID has an unknown author and unknown sources for the information it contains. Furthermore, the known authors were not called as witnesses and no witnesses testified as to the accuracy of the articles. It was unreasonable for the ID to rely on these newspaper articles. Moreover, the ID should have considered the evidence, if any, underlying these articles.
[51] The Applicant argues further that the ID unreasonably placed significant emphasis on the Applicant’s ancestry and family connections. Detective Moore admitted that there is no evidentiary basis to his opinion that the Applicant’s son-in-law is a link between the Applicant and ‘Ndrangheta. Furthermore, it was unreasonable of the ID to rely on unproven allegations against the Applicant’s family members.
[52] The Applicant also submits that the conclusion that he participated in money laundering is based on unreasonable findings. The Minister’s witness noted suspicious transactions, but did not identify any individual transactions as money laundering. Furthermore, neither the Applicant nor his son, Carlo DeMaria, has ever been charged with money laundering. Finally, the ID misconstrued the testimony of the Applicant’s witness. Mr. Froese stated that clients of most money services businesses launder money without the owner of the business knowing. The ID applied this testimony specifically to The Cash House in support of its finding that money laundering had taken place there. The Decision was unreasonable because the ID failed to assess the extent to which the Applicant was actually in control of The Cash House.
B. Respondent
[53] The Respondent says it was reasonable for the ID to find that there are reasonable grounds to believe the Applicant is a member of ‘Ndrangheta. The standard of proof in an admissibility hearing is “reasonable grounds to believe.” It is not the role of this Court to re-weigh the evidence already considered by the ID.
[54] The Respondent emphasizes that the ID is not bound by technical rules of evidence. Instead, the ID is able to consider and rely upon whatever evidence it considers credible or trustworthy. The police reports and testimonies were found by the ID to be credible and trustworthy. The reasonableness of this finding is supported by the Federal Court of Appeal’s decision in Sittampalam v Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 198 at para 53(FCA) where the Court held that it was within the board’s discretion to find the police sources credible and trustworthy. The Respondent submits that the Applicant’s reliance on Veerasingam is misplaced. In that case, Justice Snider held that it was open to the Immigration Appeal Division to rely on the evidence underlying a criminal charge.
[55] The Respondent also argues that the ID did not fail to assess the evidence underlying the police reports and testimonies. In fact, it is readily apparent that the ID did assess the underlying evidence. This is demonstrated by the ID diminishing the weight given to two of the police reports.
[56] The Respondent submits that it was reasonable for the ID to consider the Applicant’s family connections in arriving at its conclusion. The structure of ‘Ndrangheta is based on close blood and familial connections. Accordingly, the ID did not commit an error by examining family ties.
[57] The Respondent says that there is ample evidence demonstrating that the Applicant is a member of ‘Ndrangheta. The various media reports relied upon by the ID help establish reasonable grounds to believe that the Applicant is a member of ‘Ndrangheta. There is no requirement for the authors of the media reports to appear as witnesses. The relaxed evidentiary requirements mean that it is possible for the ID to consider media reports in its analysis.
[58] The Respondent also points out that the police officers who gave evidence are experienced and have considerable knowledge about organized crime. Each of them submitted evidence demonstrating reasons to believe that the Applicant is a member of ‘Ndrangheta. The Applicant’s testimony that he was unaware of the existence of ‘Ndrangheta until 2009 is inconsistent with the evidence on the record. The weight of that evidence supports the ID’s conclusion.
[59] The Respondent submits that the ID also arrived at a reasonable conclusion in relation to the allegation of money laundering. The evidence supports the finding that there are reasonable grounds to believe that the Applicant has engaged in money laundering.
VIII. ANALYSIS
A. Introduction
[60] The parties do not disagree about the governing law and the legal principles applicable in this case. The dispute is over whether the evidence (or lack thereof) relied upon by the Member can reasonably be said to satisfy the governing jurisprudence. The parties also agree that the standard of review for this application is reasonableness.
B. The Law
[61] The Member found that the Applicant was inadmissible under ss 37(1)(a) and 37(1)(b) of the Act:
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.
[62] Section 33 of the Act establishes the Rules of Interpretation that govern, inter alia, ss 37(1)(a) and (b) and states as follows:
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.
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.
[63] The important words here are “facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” The Applicant takes the view that there are no such facts to support the Decision in this case.
[64] As the Member points out in his Decision (para 2), the jurisprudence makes it clear that the expression “reasonable grounds to believe” means “more than a mere suspicion, but less than a balance of probabilities.” It means a serious possibility based on credible and trustworthy evidence. Justice Mandamin recently re-affirmed these basic principles in Uthman, above:
[66] I agree with the Respondent that the standard of proof for the facts necessary to make out inadmissibility under paragraph 37(1)(a) is reasonable grounds to believe, not proof beyond a reasonable doubt. All that is needed is sufficient evidence to show that there are reasonable grounds to believe a person i