Pascal v. Canada (Citizenship and Immigration)

Pascal v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-07-09
Neutral citation
2020 FC 751
File numbers
IMM-3379-19
Notes
A correction has been made on September 30, 2020.
Reported Decision
Decision Content
Date: 20200709
Docket: IMM-3379-19
Citation: 2020 FC 751
Ottawa, Ontario, July 9, 2020
PRESENT: Mr. Justice McHaffie
BETWEEN:
ADRIAN EDMOND PASCAL
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Immigration Division (ID) of the Immigration and Refugee Board concluded that there were reasonable grounds to believe that Adrian Pascal is a member of the “Galloway Boys,” a Scarborough-based criminal organization, and is therefore inadmissible for organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Although Mr. Pascal concedes that he is also inadmissible on the basis of the ID’s finding of serious criminality under paragraph 36(1)(a) of the IRPA, the organized criminality finding has serious consequences for Mr. Pascal. In particular, it prevented him from bringing an appeal to the Immigration Appeal Division (IAD), which could otherwise have considered humanitarian and compassionate grounds: IRPA, ss 64(1)–(2), 67(1)(c).
[2] Mr. Pascal argues that in reaching its organized criminality finding, the ID placed unreasonable reliance on certain sources of information, notably the contents of police reports, the evidence of a police officer who had no prior experience with Mr. Pascal, and a “true crime” book by the Toronto Star reporter Betsy Powell entitled Bad Seeds: The True Story of Toronto’s Galloway Boys Street Gang (Mississauga: Wiley, 2010). He also asserts that the ID’s finding that the Galloway Boys are a criminal organization, and its finding that Mr. Pascal is a member of that organization, were unreasonable, challenging a large number of the ID’s factual findings.
[3] I conclude that the ID’s decision was reasonable. The ID was entitled to rely on sources of information that might not be admissible evidence in a court proceeding, provided that it explained why the information was credible or trustworthy. The ID did so, setting out its explanation for accepting information such as the police reports, the officer’s evidence, and the information in Bad Seeds in a clear, understandable and rational manner. The ID’s factual determinations were similarly reasonable, and its resulting conclusions that there were reasonable grounds to believe that the Galloway Boys continued to be a criminal organization of which Mr. Pascal was a member, were justified on the evidence it identified as credible. While there is one aspect of the factual conclusions that I consider unreasonable, namely certain comparisons the ID drew between Mr. Pascal’s conduct and the Galloway Boys, this does not render the decision as a whole unreasonable. In any case, regardless of the membership determination, the ID also found Mr. Pascal to have engaged in organized criminal activity, which constitutes an independent ground for inadmissibility under paragraph 37(1)(a).
[4] This application for judicial review is therefore dismissed. Subsequent to the ID’s section 37 finding, Mr. Pascal applied for a Pre-Removal Risk Assessment [PRRA]. That PRRA application was rejected. Mr. Pascal’s application for judicial review of the PRRA decision was heard concurrently with this application. Separate reasons for dismissing that application are being released concurrently as 2020 FC 752.
II. Issues and Standard of Review
[5] Mr. Pascal raises the following issues on this application:
Did the ID err in its assessment of the evidence by:
(1) relying on truth of the contents of police reports;
(2) relying on the evidence of a police officer who was called as a lay witness;
(3) relying on a “true crime” book and newspaper reports;
(4) relying on court judgments that referred to the Galloway Boys; and/or
(5) discounting Mr. Pascal’s evidence on grounds of credibility?
Did the ID err in concluding that there were reasonable grounds to believe that the Galloway Boys existed as a criminal organization during the relevant period?
Did the ID err in concluding that there were reasonable grounds to believe that Mr. Pascal was a member of the Galloway Boys?
[6] The first of these issues goes to the ID’s assessment of the evidence before it, the determination of whether and to what extent to rely on it, and the weight to be given to it. The latter two issues challenge the particular “reasonable grounds” findings of the ID that were central to the organized criminality determination. Each of these issues is reviewable on the reasonableness standard: Demaria v Canada (Citizenship and Immigration), 2019 FC 489 at paras 34–36. While the Supreme Court of Canada’s decision in Vavilov was decided after the hearing of this case, that decision simply confirms that the reasonableness standard applies: Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25.
[7] In conducting reasonableness review, the Court is to assess whether the decision is justified, transparent and intelligible, focusing on the decision that the tribunal made rather than the conclusion the court would have reached: Vavilov at paras 15, 82–87; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. It is not the role of the reviewing court to make its own determinations of fact, substitute its view of the evidence or the appropriate outcome, or reweigh the evidence. It is solely to assess whether the tribunal’s determinations and reasoning are reasonable: Khosa at paras 59, 61; Pajazitaj v Canada (Public Safety and Emergency Preparedness), 2019 FC 540 at para 26.
[8] Two of Mr. Pascal’s challenges raise fairness issues, namely the ID’s reliance on Bad Seeds and its reliance on facts associated with charges laid in 2018. Such questions are reviewed on a “fairness” standard akin to correctness, in which the Court determines whether the procedure was fair in all the circumstances: Khosa at para 43; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54.
III. Analysis
A. The Immigration Division’s Reliance on the Evidence was Reasonable
[9] The IRPA defines three important aspects of an organized criminality determination: what must be established, the standard to which it must be established, and the evidence that may establish it. What must be established is set out in paragraph 37(1)(a) of the IRPA:
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 engaging in activity that is part of such a pattern;
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 se livrer à des activités faisant partie d’un tel plan;
[Emphasis added.]
[Je souligne.]
[10] The expression “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 [indictable] offence” is abbreviated, in both the IRPA and the cases, to “organized criminal activity”: IRPA, s 37(2); Canada (Minister of Citizenship and Immigration) v Thanaratnam, 2005 FCA 122 at para 7; Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 47. The Federal Court of Appeal has confirmed that paragraph 37(1)(a) sets out two “discrete, but overlapping grounds” for inadmissibility. The first is “membership” in an organization believed on reasonable grounds to be or to have been engaged in organized criminal activity (i.e., a criminal organization). The second is engaging in organized criminal activity, which does not require “membership” in a criminal organization: Thanaratnam (FCA) at paras 5–8, 30.
[11] While the term “criminal organization” is used as a shorthand for an organization described in paragraph 37(1)(a), the IRPA does not use the term in this section, and adopts the Criminal Code definition of “criminal organization” only in respect of other IRPA provisions: IRPA, s 121.1(1); Criminal Code, RSC 1985, c C-46, ss 2 (“criminal organization”), 467.1(1). In Sittampalam, the Court of Appeal concluded that the decision not to adopt the Criminal Code definition suggests that criminal jurisprudence is not directly applicable in the immigration context: Sittampalam at para 40. Rather, an “unrestricted and broad” interpretation applies, consistent with the IRPA’s intent to prioritize the security of Canadians: Sittampalam at paras 36, 55.
[12] At the same time, the Supreme Court of Canada more recently noted that the apparent similarity between section 37 and the Criminal Code concept is “no coincidence” and supports a harmonious interpretation: B010 v Canada (Citizenship and Immigration), 2015 SCC 58 at paras 37, 41–46; Pajazitaj at paras 30–33. A “criminal organization” for section 37 purposes shares with the Criminal Code definition at least the fact that the “organization” must be organized in some fashion—i.e., have some form of organizational structure—but need not be formally organized: Sittampalam at paras 38–39, 55; Thanaratnam v Canada (Minister of Citizenship and Immigration), 2004 FC 349 at paras 29–31, rev’d on other grounds 2005 FCA 122.
[13] Being a “member” in a criminal organization is also a matter of “unrestricted and broad” interpretation: Canada (Minister of Citizenship and Immigration) v Singh, 1998 CanLII 8281, 44 Imm LR (2d) 309 (FC) at para 52; Sittampalam at para 35. Membership can include “belonging to” an organization, and need not require formalities: Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at paras 27–32; Chiau v Canada (Minister of Citizenship and Immigration), [1998] 2 FC 642 at para 34, aff’d [2001] 2 FC 297 (CA) at paras 55–57.
[14] The Minister bears the onus of establishing these elements: Demaria at para 65. The standard to which they must be established is described in section 33 of the IRPA. That section states that the facts that constitute inadmissibility for organized criminality include facts “for which there are reasonable grounds to believe that they have occurred” [emphasis added]. This “reasonable grounds” standard has been described as establishing a standard of proof that is “more than a flimsy suspicion but less than the civil test of balance of probabilities. […] It is a bona fide belief in a serious possibility based on credible evidence”: Chiau (FC) at para 27, aff’d Chiau (FCA) at para 60; Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. To similar effect, the Supreme Court of Canada has said that reasonable grounds exist where there is “an objective basis for the belief which is based on compelling and credible information”: Mugesera at para 114.
[15] The need for “credible” information raises the third relevant question: what evidence may establish the elements of organized criminality. Section 173 of the IRPA states that the ID is “not bound by any legal or technical rules of evidence,” but rather “may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.” This evidentiary flexibility allows the ID to consider evidence from sources that may not be acceptable in a court. It also expressly leaves to the ID the discretion to make determinations of credibility and trustworthiness: it is what “it considers” credible in the circumstances that matters. Nonetheless, this discretion is not “unbridled.” As with any statutory discretion, it must be exercised reasonably: Demaria at para 121.
[16] Although it predates Mugesera and Sittampalam, I agree with Mr. Pascal that Justice O’Reilly’s statement at paragraph 21 of Thanaratnam (FC) remains a relevant description of the standard and evidentiary threshold applicable under section 37:
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. […] It is an important and meaningful threshold. It requires an objective assessment and can be satisfied only where it is supported by credible evidence.
[Emphasis added.]
[17] The ID set out the foregoing principles in its reasons, which are reported as Pascal v Canada (Citizenship and Immigration), 2019 CanLII 90444 (CA IRB) at paragraphs 7–12, 15–19, 22–29, 68–73. Mr. Pascal takes no issue with the ID’s statement of the law on these general principles. Rather, his challenge is to the manner in which they were applied in his particular case to the evidence that was before the ID.
[18] The ID concluded that there were reasonable grounds to believe the Galloway Boys were a criminal organization within the meaning of section 37, that they continued to exist, and that Mr. Pascal was and is a member of the Galloway Boys: Pascal at paras 12, 67, 90, 163, 165, 171, 182–184. The ID also found there were reasonable grounds to believe that Mr. Pascal’s activities were part of a pattern of planned and organized criminal activities, i.e., that he had engaged in organized criminality: Pascal at paras 114, 185. It therefore concluded that Mr. Pascal was inadmissible under paragraph 37(1)(a).
[19] In reaching these conclusions, the ID accepted as credible and relied on a number of sources of information. Mr. Pascal argues that the ID erred in determining what constituted “credible and trustworthy evidence,” even within the broader approach to evidence set out in section 173 of the IRPA. For the reasons set out below, I conclude that the ID’s reliance on this information was reasonable.
(1) The Immigration Division’s reliance on police reports
[20] The ID’s conclusion of organized criminality was based in substantial part on findings related to numerous instances of “interactions” between Mr. Pascal and the police. Some of these resulted in criminal convictions. These included a robbery conviction when Mr. Pascal was a minor, later convictions for uttering death threats, and the 2014 conviction for assault with a weapon that resulted in the serious criminality finding under section 36 of the IRPA: Pascal at paras 5, 127, 155, 158, 161, 164. However, the ID also relied on many incidents that did not result in convictions or even criminal charges. With respect to these, the ID relied on the facts described in police reports that were filed in evidence.
[21] The ID described the basis for relying on these facts at paragraph 84 of its reasons:
I find the police reports and associated documents to be credible and trustworthy for the purpose of understanding what occurred at particular places and times. The criminal charges themselves do not form the basis for my findings. Rather, the underlying details (i.e. statements, observances, items seized) that I find credible or trustworthy have been considered, along with other credible evidence, on which I base my findings.66
[22] The ID’s footnote in the above passage is to the decision of Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607. In that case, Justice Mactavish, then of this Court, distinguished between relying on the fact that someone has been charged with a criminal offence and reliance on the evidence that underlies the charge: Thuraisingam at para 35. She noted that the charge “proves nothing,” but that the evidence underlying the charge “may indeed be sufficient to provide the foundation for a good-faith opinion” regarding the allegations at issue. In Sittampalam, the Court of Appeal adopted this reasoning. Referencing Thuraisingam, the Court noted that charges cannot be used “in and of themselves” as evidence of criminality, but that “evidence surrounding withdrawn or dismissed charges can be taken into consideration”: Sittampalam at para 50.
[23] Mr. Pascal argues that this Court has held that police reports are not inherently reliable for the truth of their contents, pointing to the decisions in Veerasingam v Canada (Minister of Citizenship and Immigration), 2004 FC 1661; Rajagopal v Canada (Public Safety and Emergency Preparedness), 2007 FC 523; Younis v Canada (Citizenship and Immigration), 2008 FC 944; and Demaria. He further says that the ID’s reliance on the police reports (or the facts underlying them) amounted to a “credulous and wholesale acceptance of the reports for the truth of their contents, without analysis.”
[24] In my view, Mr. Pascal overstates the conclusions of these cases, and understates the ID’s analysis. Each of the identified cases effectively applied the approach described in Thuraisingam and Sittampalam. That approach recognizes that the mere fact of a charge cannot be relied on, but that the evidence underlying it, which can include police reports, can be relied on if the reason for doing so is explained.
[25] In Veerasingam, for example, Justice Snider concluded that the police reports in that case could not be reasonably considered reliable and credible evidence of a kidnapping event. However, she did not reach this conclusion simply because the evidence was in a police report or because the officer who prepared it did not testify. She reviewed the report itself and found it was based on an interview of a witness who was “far from certain” that the alleged victim was forced, and provided conflicting descriptions: Veerasingam at para 11. Notably, Justice Snider recognized that even in such circumstances, the IAD could have preferred the evidence of the police report to that of the applicant, if they had explained why and weighed the evidence. However, no such weighing was done: Veerasingam at para 12.
[26] The same concern was at the heart of Justice Mosley’s decision in Rajagopal. There, the IAD adopted the contents of a police report because the applicant had pled guilty to the charges in it. Since the police report consisted of allegations as recorded upon investigation, not the findings of the court upon conviction, it was inappropriate to simply make that assumption: Rajagopal at paras 40–43. Notably, Justice Mosley confirmed, as had Justice Snider, that it was open to the IAD to make the finding that it preferred the reports to the testimony of the applicant, but that it had not done so: Rajagopal at para 43.
[27] In Younis, Justice Russell referred to each of Thuraisingam, Rajagopal and Veerasingam. He concluded that the IAD had fallen into error both for relying on the charge itself and for failing to assess the reliability and credibility of a report to Crown counsel. On the former, Justice Russell held that the IAD had “failed to make the necessary distinction between the fact that the proposed charges were mere allegations and that the Applicant had not been convicted of the offences”: Younis at para 55. On the latter, Justice Russell found that the IAD’s decision was “void of any discussion regarding the reliability and credibility” of the report, suggesting that the IAD had “failed to turn its mind” to that issue: Younis at para 56.
[28] Justice Russell’s conclusions in Younis are similar to his conclusions a decade later in Demaria. In that case, the ID’s conclusion on organized criminality was tied to “personal convictions of the three police officers who provided reports and evidence,” and it failed to provide “any real analysis of the reliability of the evidence provided to support” those convictions: Demaria at para 149. Justice Russell also expressed concern that the ID had simply relied on the conclusions of the officers rather than assessing specific facts that related to membership in a criminal organization: Demaria at para 128.
[29] Thus the import of each of these cases is that the decision maker must assess and reach a conclusion that the contents of a police report are “credible or trustworthy,” rather than ignoring the question or simply making an assumption to that effect. If such an assessment is made, this Court and the Court of Appeal have accepted that it may be reasonable to rely on police reports, even where the facts described in them are not separately corroborated by testimony of officers or witnesses: Sittampalam at paras 52–53; Veerasingam at para 12; Rajagopal at para 43; see also Muneeswarakumar v Canada (Citizenship and Immigration), 2013 FC 80 at paras 20–26.
[30] In the present case, the ID concluded that the police reports were credible and trustworthy “for the purpose of understanding what occurred at particular places and times.” It expressly confirmed that it was not relying on the criminal charges themselves, which is consistent with Sittampalam. I do not agree with Mr. Pascal that the ID simply accepted the police reports in their entirety without analysis. To the contrary, the ID stated that it was only relying on “the underlying details (i.e. statements, observances, items seized) that I find credible or trustworthy” [emphasis added], which were considered together with other credible evidence: Pascal at para 84. I read this to mean that it was only those portions of the police reports that were found to be credible or trustworthy that were accepted, a view that is reinforced by the ID’s later reference to its assessment addressing “underlying evidence that I find to be credible or trustworthy”: Pascal at para 91. Elsewhere, the ID made specific reference to information in those reports, and the reasons it was found credible and trustworthy: Pascal at paras 100, 140–141. It also referred to Mr. Pascal’s evidence in respect of the incidents described in the reports, noting points of difference and explaining why Mr. Pascal’s evidence was not accepted: Pascal at paras 102–108, 116, 118–128, 130–141, 151–154.
[31] Veerasingam, Rajagopal, Younis and Demaria each describe circumstances in which there was effectively no consideration or analysis of whether police reports were credible or trustworthy. Beyond these cases, there is little discussion in the jurisprudence of how much analysis is necessary to justify the acceptance of police reports as “credible or trustworthy.” At paragraph 53 of Sittampalam, the Court of Appeal made the following observations without significant discussion of the extent of the ID’s analysis:
In this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence[.]
[Emphasis added; citation omitted.]
The Court of Appeal’s conclusions at paragraphs 12 and 13 of Balathavarajan v Canada (Minister of Citizenship and Immigration), 2006 FCA 340, addressing the same language in section 175 of the IRPA, are to similar effect.
[32] Consistent with the language of section 173, the “circumstances” of a case will be relevant to whether a determination that evidence is credible or trustworthy is reasonable. However, provided that the decision maker has turned their mind to whether the evidence is “credible and trustworthy in all the circumstances,” and provides a determination on that issue that is reasonable and based in the evidence, i.e. that meets the requirements of justification, transparency and intelligibility, this Court ought not to intervene.
[33] Notably, while Mr. Pascal asserts that his evidence contradicted that in the police reports, this typically came in the form of explanations for the stated facts, rather than assertions that the reports did not accurately record statements, or that the identified facts did not occur. In some cases, Mr. Pascal’s evidence largely confirmed that in the police reports. For example, the police reports related to an incident that took place at a party in Aurora on July 1, 2016 indicated that people had been shot, that witnesses had observed Mr. Pascal and others get into a white Porsche, that a “high risk take down of the vehicle was conducted,” that Mr. Pascal and four others were arrested, that shell casings were observed in the car and that various evidence was seized including various large sums of cash. Mr. Pascal’s testimony confirmed that shots were fired, and that he got into a white Porsche and they “took off down the highway, tried to get away,” but were pulled over and arrested. While he also gave evidence that he only saw the others for the first time in the car, and that he hopped into the car because he could not find his uncle with whom he had arrived, none of this evidence contradicted the facts as set out in the police reports. Nor did Mr. Pascal state that anything in the police reports was incorrect.
[34] While the ID’s discussion and analysis of its reasons for accepting the police reports could have been more detailed in places, I cannot find that it was so lacking as to make it unreasonable. I therefore find that the ID’s conclusion that elements of the police reports were credible and trustworthy in the circumstances, and its reliance on the contents of those reports, was reasonable.
[35] Mr. Pascal makes two further arguments regarding the ID’s treatment of the police reports. He argues that the ID was “unconcerned with the disposition of charges,” and that this was unreasonable because the fact that the charges did not result in convictions is relevant. In my view, this is not a fair characterization of the ID’s decision. The passage Mr. Pascal points to is at the outset of a lengthy discussion of “Police Interaction and Indicia of Membership,” in which the ID reviews the evidence of Mr. Pascal’s interactions with the police in an effort to assess whether he was a member of a criminal organization: Pascal at para 89. The ID stated the following:
In my assessment of the evidence of Mr. Pascal’s interactions with police, I have not focused on the criminal charges laid or the courts’ dispositions. The police and the courts have their own particular criteria, evidentiary rules and legal standard when coming to their conclusions. They are different from how the Immigration Division assesses evidence under s. 37(1)(a) of the Act.
[Emphasis added.]
[36] In my view, this statement is entirely consistent with the approach to the evidence and information underlying criminal charges that is described in cases such as Sittampalam. Deciding not to “focus on” the particular charges laid or the dispositions does not equate to a lack of concern or recognition that charges have not resulted in convictions. Indeed, the ID referred to the resolution, withdrawal or stay of charges on a number of occasions, and made no mistaken assumptions about Mr. Pascal being convicted. Rather, the ID assessed the underlying facts in determining whether there were reasonable grounds to believe that Mr. Pascal was a member of a criminal organization. The Court of Appeal has confirmed this is reasonable: Sittampalam at para 50.
[37] Mr. Pascal also takes issue with the ID’s statement that it found a police report related to a 2006 stabbing incident in London was “credible and trustworthy, as I have no credible evidence to view it otherwise”: Pascal at para 140. He argues that this amounts to a finding that the reports themselves established an evidentiary burden to refute. I believe this argument takes a sentence out of context in an effort to ascribe to it an unreasonable interpretation. The statement was part of a detailed consideration of the 2006 incident, that included references to Mr. Pascal’s own testimony, to the inconsistencies in his evidence, and to statements that were reported as having been made to the London police. The ID found Mr. Pascal’s testimony not to be credible or trustworthy given the inconsistencies, and preferred the evidence as set out in the police report, noting also that there was “no evidence that London police viewed these three men any differently from other people in the city.” In other words, the ID did not conclude that the police report was credible simply because there was no credible evidence to the contrary. It considered the evidence and explained why it preferred the evidence in the police report over that of Mr. Pascal. This is precisely the type of analysis that is described as reasonable in Veerasingam and Rajagopal.
(2) Evidence of Officer Petersen
[38] The only witness put forward by the Minister before the ID was a constable with the Toronto Police Service (TPS), Kris Petersen. The Guns and Gangs Unit of TPS tasked Officer Petersen to prepare a report about Mr. Pascal, which is described as both a statement of his anticipated evidence and as a “Purposed Expert Report.” That report, filed with and relied on by the ID, includes background on the Galloway Boys, summaries of information contained in police databases involving Mr. Pascal, and other information relating to indicia used by TPS to assess whether an individual is a gang member. The report concludes with Officer Petersen giving his “opinion” that Mr. Pascal is a member of the Galloway Boys (or Galloway Boyz).
[39] Officer Petersen was not qualified as an expert witness. He gave evidence as a lay witness regarding the contents of his report, including the indicia used by police to assess gang membership, and his conclusions.
[40] The ID relied on Officer Petersen’s report and testimony, concluding that he was “a credible and trustworthy witness” and giving his testimony “significant weight”: Pascal at para 74. The ID indicated that its findings regarding the Galloway Boys and Mr. Pascal were “not based primarily on Officer Petersen’s beliefs or report” and that they “form a small portion of the credible evidence”: Pascal at para 83. Mr. Pascal questions this characterization, noting the numerous references to Officer Petersen’s evidence to argue that the ID “relied heavily” on his evidence. While I do not believe it affects the outcome, I believe that a fair assessment falls between these two descriptions. The ID certainly refers to and relies on Officer Petersen’s evidence frequently in its reasons. Overall the evidentiary references in the ID’s decision are drawn largely from a combination of Officer Petersen’s report (part of Exhibit AH-1) and his testimony; the Bad Seeds book (Exhibit AH-24); the police reports (Exhibits AH-3, AH-8, AH-15 and AH-17); news articles; and Mr. Pascal’s testimony.
[41] Mr. Pascal argues that there are a number of reasons to question Officer Petersen’s reliability, essentially repeating his submissions to the ID on the issue. In my view, none of these issues renders the ID’s reliance on Officer Petersen’s evidence unreasonable. Rather, they amount to Mr. Pascal asking this Court to substitute its assessment of credibility for that of the ID, which is not this Court’s role on judicial review.
[42] As noted, Officer Petersen was not called or qualified as an expert witness. Mr. Pascal argues that this meant that the ID had to provide “detailed reasons” for accepting his lay evidence. Mr. Pascal put forward no authority for the proposition that the ID was required to provide any greater or more detailed assessment of a police officer’s lay evidence than that of any other witness, other than Justice Annis’s recent discussion of the dangers of misusing expert evidence in the context of a psychological expert report: Moffatt v Canada (Citizenship and Immigration), 2019 FC 896 at paras 26–28.
[43] In any case, the ID did not “merely repeat and adopt” Officer Petersen’s evidence, as Mr. Pascal contends. It gave detailed consideration of the nature of his report and the basis for it; his extent or lack of knowledge with respect to the Galloway area, the Galloway Boys and Mr. Pascal; and the criticisms of his evidence raised by Mr. Pascal. The ID’s conclusion that Officer Petersen was credible and trustworthy was based on its findings that his evidence was forthright, unembellished, non-contradictory, unchanged on cross-examination, unbiased, straightforward, neutral and professional: Pascal at paras 74–82. The ID also noted that Officer Petersen had issued reports in the past that did not reach a conclusion of gang membership, and found that his lack of personal interactions with Mr. Pascal increased his objectivity and neutrality. It is difficult to see how this can be described as failing to assess Officer Petersen’s credibility, trustworthiness or evidence or amounted to “adopting blindly” his assessment: Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2003 FC 1225 at paras 105–107.
[44] Mr. Pascal’s reference to the rejection of police evidence in Demaria, Thanabalasingham and Odulate v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 49129 (CA IRB) is of little assistance. In the first case, Justice Russell found the ID’s reliance on the police officers’ evidence unreasonable based on the nature of both the evidence and the ID’s reliance on it. In the latter two cases, the ID decided not to accept the evidence of police officers based on its assessment of that evidence. Neither can nor should predetermine the outcome of the ID’s assessment of Officer Petersen’s evidence in this case, nor does the rejection of evidence in other cases make the acceptance of it in this case unreasonable. This is so even if that evidence shares some of the qualities or limitations cited by other decision makers.
[45] I also do not accept Mr. Pascal’s argument that problems with Officer Petersen’s evidence were effectively adopted by the ID through its reference to his report, even though the ID did not rely on those aspects of the evidence. Mr. Pascal cites, for example, a concern about the analytical framework for gang membership used by Officer Petersen, as well as reliance on three of the indicia used by the police in that assessment. Mr. Pascal notes that the expert he called at the hearing criticized that framework, and points to alleged deficiencies in Officer Petersen’s analysis based on the framework.
[46] However, the ID did not adopt Officer Petersen’s analysis on these points. To the contrary, the ID stated that the police criteria were credible, but that it undertook an independent determination about whether Mr. Pascal’s interactions with police and his personal associations met the interpretation of “membership” under paragraph 37(1)(a) set out by this Court: Pascal at para 87. The ID also referred expressly to the expert report filed by Mr. Pascal in recognizing that there is no standard definition of a gang and no exhaustive list of criteria of gang membership: Pascal at paras 79, 85. While Mr. Pascal criticizes Officer Petersen for relying on a card written by a police officer as “physical evidence,” the ID did not rely on this, stating instead that “Mr. Pascal has not been found to have in his possession any physical indicia of the Galloway Boys”: Pascal at para 169. The Court’s role is to review the reasonableness of the ID’s decision, not the reasonableness of aspects of Officer Petersen’s evidence that were not relied on by the ID. Nor do I agree that it was incumbent on the ID to refer to these issues in assessing Officer Petersen’s evidence. The ID was not obliged to refer to every piece of evidence or every argument raised by Mr. Pascal: Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 53, 1998 CanLII 8667 at para 16.
[47] I similarly do not intend to address each argument raised by Mr. Pascal in criticism of Officer Petersen’s testimony, except to note that I do not find them, individually or cumulatively, to demonstrate that Officer Petersen was “demonstrably unreliable” or that it was unreasonable for the ID to rely on his evidence. I will, however, address two further arguments on which Mr. Pascal puts particular weight.
[48] First, Mr. Pascal identifies what he says is a fundamental concern, namely that Officer Petersen did not know Mr. Pascal either professionally or personally. He was not involved in any of Mr. Pascal’s interactions with police, had not prepared any of the police reports, and had never met him. I agree with Mr. Pascal that this means that Officer Petersen’s evidence, as it related to Mr. Pascal’s actions, was necessarily second hand. Rather, it was based on his review of reports that were either also filed with the ID, or in some cases had been reviewed by him separately. Officer Petersen also indicated that his information with respect to the Galloway Boys came from both his own experience and from other sources, including other officers, intelligence reports, and information from wiretaps.
[49] I agree that this absence of personal experience with Mr. Pascal is something that could, and should, be considered by the ID in its assessment of the officer’s evidence and whether it was reliable or trustworthy. The ID did so, noting that in its view, it did not undermine the reliability, credibility or trustworthiness of Officer Petersen’s evidence, and in fact increased his objectivity: Pascal at para 81. This type of assessment is within the discretion of the ID and was reasonable. There is no requirement that a police officer have had direct involvement in one or more arrests of an individual before their evidence is admitted and given weight in an immigration proceeding. Such a requirement would be contrary to both section 173 of the IRPA and the Federal Court of Appeal’s recognition that “credible or trustworthy evidence” can at times be “tenuous” and can include evidence from undisclosed police informants or even double hearsay: Balathavarajan at para 12; Huang v Canada (Minister of Employment and Immigration), [1992] FCJ No 472 (CA).
[50] Second, Mr. Pascal points to the decision of the Ontario Court of Justice in R v Reeves, 2009 ONCJ 99. In that criminal matter, the Court found Officer Petersen’s testimony to be “erroneous, exaggerated, inconsistent or patently contradicted” by other reliable evidence, and was left with “grave concerns” about his credibility. The Court found that Officer Petersen conducted an illegal search and “was prepared to conceal his illegal conduct by omitting crucial information from his notes and his evidence”: Reeves at paras 55–58, 81. These are serious findings that can be argued to undermine the credibility and trustworthiness of Officer Petersen’s evidence in other cases. Mr. Pascal did make that argument, and it was considered but not accepted by the ID. The ID found that the Court’s findings, in the context of seventeen years of policing and testifying in court, did not negatively impact the credibility and trustwo