Chen v. Canada (Public Safety and Emergency Preparedness)

Chen v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2018-01-09
Neutral citation
2018 FC 13
File numbers
IMM-1710-17
Decision Content
Date: 20180109
Docket: IMM-1710-17
Citation: 2018 FC 13
Ottawa, Ontario, January 9, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
FANG CHEN
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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 the decision of the Immigration Division of the Immigration and Refugee Board of Canada [ID or Board], dated March 27, 2017 [Decision], which found the Applicant inadmissible to Canada on grounds of serious criminality and organized criminality.
II. BACKGROUND
[2] The Applicant is a citizen of China. She arrived in Canada as a permanent resident on June 2, 2007. The Applicant was sponsored by her former husband.
[3] After the Applicant’s first marriage broke down, she began residing with her current spouse in December of 2008. On June 17, 2009, police investigating a marijuana grow op ring raided the Applicant’s house. The police arrested the Applicant, her spouse, and two other people who were at the Applicant’s house.
[4] On January 15, 2010, the Applicant and her spouse pleaded guilty to the following offences:
conspiracy, Criminal Code, RSC 1985, c C-46 [Criminal Code], s 465(1)(c), to produce marijuana, a substance listed on Schedule II of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], contrary to s 7(1) of the CDSA;
possession for the purpose of trafficking, CDSA, s 5(2);
theft of energy exceeding five thousand dollars, Criminal Code, s 326(1)(a); and
theft of water exceeding five thousand dollars, Criminal Code, s 334.
[5] The Applicant was sentenced to time served for the 135 days she spent in pre-trial custody and a six-month conditional sentence.
[6] The Applicant now alleges that she only pleaded guilty because of her circumstances at the time. She says she was represented by ineffective counsel who was not independent from her husband. The Applicant sought to appeal her convictions in the Ontario Court of Appeal but after the hearing of this application it was brought to the Court’s attention that her appeal was dismissed.
[7] In 2015, the Canada Border Services Agency [CBSA] referred the Applicant to the ID for an admissibility hearing to determine whether she is a person described in either ss 36(1)(a) or 37(1)(a) of the Act.
III. DECISION UNDER REVIEW
[8] The ID begins by considering the allegation that the Applicant is a permanent resident who is inadmissible under s 36(1)(a) of the Act on grounds of serious criminality. After establishing the Applicant’s identity, the ID lists the Applicant’s criminal convictions and sentence. The ID finds that it is “clear and undisputed” that the Applicant was convicted of offences in Canada which carried a maximum term of imprisonment of at least ten years and that a term of imprisonment of more than six months was imposed. The ID therefore finds that the Applicant is inadmissible for serious criminality and makes a deportation order against her.
[9] The ID then considers whether the Applicant is inadmissible under s 37(1)(a) of the Act on grounds of organized criminality. The ID concludes that the Applicant is inadmissible for organized criminality and makes a deportation order against her.
[10] The ID acknowledges that the Applicant’s testimony recanted the admissions made before the criminal court in which she was convicted. But the ID finds that the Applicant’s testimony “is inconsistent with her other statements, which are implausible and inconsistent with the evidence as a whole and is therefore not credible.” The ID also finds that the Applicant’s argument that the Board may ignore the Applicant’s admissions and criminal convictions is an impermissible attempt to relitigate the Applicant’s convictions. The ID says that the Applicant’s claim that she was granted an extension of time to file an appeal of her convictions was not established in the evidence. The Decision states that the ID “is required to find that [the Applicant] committed the acts underlying her conviction and those admitted in her guilty plea.”
[11] The ID catalogues the factual findings upon which the ID bases its organized criminality finding. It finds that the Huang criminal organization began purchasing homes in eastern Ontario in January 2007, before the Applicant became a member. After receiving a money transfer from China on December 2, 2008, the Applicant purchased the house at 30 Amanda Drive in Toronto where she was later arrested. The house was found to contain parts of a dismantled grow op, and receipts and real estate documents related to the grow op. The Applicant also leased two vans used in the operation, one of which was parked at her home when she was arrested. Other members of the Huang criminal organization had property at the Applicant’s home when she was arrested and it was agreed, as part of her guilty plea, that the house was used as a base of operations by the organization.
[12] The ID finds implausible the Applicant’s explanation that her husband and a friend of his who resided at her home as a tenant were involved in the operation without her knowledge. Materials related to the criminal conspiracy were found throughout the house, some of which were in bedrooms containing the Applicant’s identification, and some were openly displayed in the kitchen. Because the materials were widely distributed, the ID finds that the Applicant knew or was wilfully blind to the criminal activity in her house. The ID concludes that if the Applicant had not been trusted by the Huang organization then material would not have been left in the open in her house. The ID notes the Applicant’s claim made to a CBSA officer that she had been “dragged into” the conspiracy by her husband and that she had no knowledge of it.
[13] The ID finds that facts admitted as part of the Applicant’s guilty plea and conviction contradict her testimony. The inconsistencies between the Applicant’s testimony, her prior statements, and the evidence as a whole reduce her credibility. The ID notes that, when first questioned, the Applicant provided different names for the tenants who resided at her house other than the friend of her husband. But she testified at the hearing that she never knew the names of the other tenants. The ID points out that tenants who lived at the Applicant’s house were not arrested but that persons who were present during the police raid were. The ID concludes that the persons arrested were at the Applicant’s house because she made it available as a base of operations for the Huang organization.
[14] The ID clarifies that a van leased by the Applicant was observed visiting two of the active grow op sites. The vehicle was not for the Applicant’s personal use, as she already owned a sedan. A second van was registered in the name of her husband and also visited active grow ops. The ID finds that the Applicant’s testimony at the hearing was inconsistent with her statements to police about the vans in 2009, and this further lessened her credibility.
[15] After recounting details of the police investigation into the grow op ring, the ID makes more detailed findings about materials found in the Applicant’s house on the day of her arrest. The ID mentions that officers discovered real estate documents located in a locked bag in the Applicant’s locked closet along with her identification, but that the officers’ notes do not specify which properties the documents related to. During her testimony, the Applicant claimed that the documents she placed in the bag were only related to her Toronto home and a condominium she purchased. But the ID finds that she acknowledged that other real estate documents were placed in the bag without her knowledge. When arrested, the Applicant was in possession of two cell phones and four more were located in her bedroom, though she denied that they were hers. Police located a wallet in the Applicant’s bedroom that contained over $2,300 in cash. The ID notes that the receipt for a storage unit found on the kitchen table in the Applicant’s house led to the police finding equipment for a grow op stored at the unit. Video surveillance showed the Applicant’s husband renting the unit. The ID finds that the evidence as a whole leads to the conclusion that the Applicant’s house “played a central role in executing the organization[’s] operations.” The Applicant’s claim that she was not aware of this is not plausible because of the open display of materials and because some of the documents were found in a locked bag in the Applicant’s locked closet.
[16] The ID notes that the Huang organization continued its activities even after the Applicant’s initial arrest. A subsequent police investigation revealed that she was a director of a numbered company that had purchased rural property east of Kingston. This property did not contain an active grow op. The Applicant had made no mention of this purchase during her testimony. But other active grow ops were discovered at properties purchased by members of the organization through other numbered companies. The Applicant was arrested again for violating her surety after being observed residing at her house instead of with her surety.
[17] The ID recognizes that the Applicant and her husband were represented by the same counsel when they pleaded guilty on January 15, 2010. The Applicant had remained in custody for 135 days following her second arrest. As part of the Applicant’s guilty plea, she agreed that her home served as a base of operations for the group, that receipts for building materials associated with the grow ops were found in her bedroom closet, and that the van she leased was used in the criminal operation. She accepted that properties in Belleville, Kingston, and Brighton were used by the Huang organization and that she was responsible for the theft of hydro and water. The ID finds that the Applicant did not appeal her conviction or her counsel’s conduct at the time and continued her relationship with her husband upon her release.
[18] The ID notes that the Applicant eventually filed a notice of appeal of her conviction on February 17, 2016, after the CBSA had referred the Applicant to the ID for an admissibility hearing. The ID finds that “[e]ven if the Appeal were granted the evidence would still establish the allegation.”
[19] The ID then reviews the evidence related to the existence of the Huang crime organization and find that facts about the organization are not fundamentally in dispute. A real estate agent, Mr. Huang, was found to have played a significant leadership role but other trusted members of the organization carried out operations necessary to produce marijuana and maintain the operations. The ID concludes that the Applicant’s specific role was to provide financial support, transportation, and a base of operations for the organization and that she knowingly provided her home for that purpose. The Applicant’s home was unique in that it was more directly related to supporting marijuana production than other locations where police found documents related to the organization. The ID finds that this supports the conclusion that the house was the organization’s operational base. Since the ID accepts that the Applicant knowingly provided her house to facilitate these operations, it finds that she was a trusted member of the Huang organization. Regardless of how the Applicant initially purchased the property, the ID points out that the court ordered the house seized as it had likely been used in committing the offences.
[20] The ID accepts that no evidence shows that the Applicant attended the actual locations of the grow ops but, like her house, finds that she provided the vans she leased to the organization to facilitate its operations. The ID finds this a significant role indicating a significant level of mutual trust between the Applicant and other members of the organization.
[21] The ID considers the Applicant’s submission that the Supreme Court of Canada’s decision in B010 v Canada (Citizenship and Immigration), 2015 SCC 58 [B010], altered the interpretation of s 37(1)(a) of the Act. But the ID concludes that the Applicant is described in s 37(1)(a) by either party’s reading of the Act. Adopting either the definition of “criminal organization” from the Criminal Code, s 467.1(1), or the definition of “organized criminal group” from the United Nations Convention against Transnational Organized Crime, 2225 UNTS 209, art 2(a) [UNCTOC], still results in membership in the Huang organization falling within s 37(1)(a).
[22] Though the ID states that it is not necessary to resolve the interpretative issue around s 37(1)(a), it proceeds to give a detailed analysis. The ID concludes that extending the Supreme Court of Canada’s remarks about transnational organized crime to s 37(1)(a) overextends the Court’s remarks and takes them out of the context of the B010 decision. The ID points out that the Supreme Court did not analyze the term “membership” in B010, which the Applicant submits is the live issue in the current application. Regardless, the ID proceeds to provide an exhaustive application of its interpretation of s 37(1)(a) to the facts of this case and finds that the Applicant “was a member of the organization and engaged in activity that was part of the pattern of activity engaged in by the organization.” The ID further finds that the Applicant “knowingly engaged in the activities of the organization in a fashion that advanced the purpose of the organization.”
[23] The ID therefore concludes that the Applicant is inadmissible under both ss 36(1)(a) and 37 (1)(a) of the Act.
IV. ISSUES
[24] The Applicant submits that the following are at issue in this application:
Is the ID’s consideration of the evidence unreasonable?
Is the ID’s wilful blindness analysis and conclusion unreasonable?
Does the ID substitute the Applicant’s guilty plea for an admission of membership in organized criminality?
Does the ID breach the duty of fairness by making a negative credibility finding about the Applicant without allowing her to respond?
Is the ID’s analysis and application of s 37 of the Act unreasonable when considering the Supreme Court of Canada’s decision in B010?
[25] The Respondent prefers to categorize the Applicant’s first and second issues both as questions about the Decision’s reasonableness, and the third and fourth issues both as questions of procedural fairness.
V. STANDARD OF REVIEW
[26] 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.
[27] The standard of review generally applicable to the Board’s inadmissibility findings is reasonableness. See Suresh v Canada (Public Safety and Emergency Preparedness), 2017 FC 28 at para 43 [Suresh]. The first, second, and fifth issues raised by the Applicant will therefore be reviewed under a reasonableness standard.
[28] Regarding the third issue, the Applicant submits that the ID breached the duty of fairness by putting undue emphasis on the Applicant’s guilty plea. The Respondent also categorizes the third issue as a question of fairness. With respect, I cannot understand how the weight placed on the Applicant’s guilty plea and its interpretation by the ID can be classified as an issue of procedural fairness. The Applicant’s guilty plea was evidence before the ID. The weight placed on evidence is a matter within the ID’s expertise that attracts a great deal of deference under the reasonableness standard of review. See Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 38 [Mugesera]. In reality, the third issue raised by the Applicant is an attempt to reframe the evidentiary value of the Applicant’s guilty plea as a question of procedural fairness. To the extent that the question is separable from the first issue, it is reviewable on a reasonableness standard.
[29] The fourth issue raised by the Applicant is, however, a question of procedural fairness. The Supreme Court of Canada has stated that questions of procedural fairness are reviewed under a correctness standard. See Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Mission Institution v Khela, 2014 SCC 24 at para 79 [Khela]. After Khela, however, the Federal Court of Appeal described the standard of review to be applied to questions of procedural fairness as “unsettled”: Bergeron v Canada (Attorney General), 2015 FCA 160 at paras 67-71. This Court has on occasion accepted that the Board is owed deference where its determination of procedural issues is largely factual or evidentiary. See Suresh, above, at para 38-42; B095 v Canada (Minister of Citizenship and Immigration), 2016 FC 962 at paras 9-12. How to reconcile these lines of authority is a question best left for the future. Here, the question of whether the Applicant was provided with a meaningful opportunity to respond to the Board’s credibility concerns is a classic issue of fairness reviewable under the correctness standard.
[30] 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 Khosa, above, 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
[31] The following provisions of the Act are relevant in this proceeding:
Rules of interpretation
Interprétation
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.
…
…
Serious criminality
Grande criminalité
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
…
…
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.
VII. ARGUMENT
A. Applicant
[32] As a preliminary matter, the Applicant emphasizes that she concedes the issue of serious criminality and does not challenge the ID’s finding on that point in this application. The issue before the Board was whether she is inadmissible on grounds of organized criminality under s 37 of the Act. However, the Applicant has appealed the convictions that underlie the ID’s serious criminality finding under s 36(1)(a) to the Ontario Court of Appeal. At the time of the hearing of this application, the results of that appeal were not known.
(1) Unreasonable Evidentiary Conclusions
[33] The Applicant submits that the ID makes numerous findings not supported by the evidence that render the Decision unreasonable. Specifically, the Applicant disputes the ID’s conclusions: that the Applicant was a member or leader of the Huang criminal organization; that documents found in the Applicant’s home related to the grow op ring belong to the Applicant personally; that the Applicant’s house was purchased with the proceeds of crime or used for criminal purposes; that tenants at the Applicant’s house were not arrested and charged in relation to the grow ops; that the Applicant leased two vehicles for use by the criminal organization; and that the Applicant admitted being a member of the Huang organization. The Applicant submits that these conclusions are repeated throughout the Decision and form the basis for the ID’s finding that the Applicant was a trusted member of the organization.
[34] The Applicant submits that the ID’s conclusions contradict the Member’s assessments and statements during the hearing. The Applicant points to a portion of the hearing transcript to show that the ID questioned the Respondent’s submission that the Applicant admitted being part of a criminal organization during an interview with immigration officials. Notes from the interview record the Applicant stating that she was “dragged into this case” by her husband. The Applicant suggests that the common sense interpretation of this phrase is that it refers to being dragged into her legal predicament, not membership in the criminal organization. Given the concerns the Member expressed, there was no need for the Applicant to respond.
[35] Further portions of the transcript which the Applicant says contradict the ID’s conclusions include the Member questioning whether there was evidence beyond the Applicant’s guilty plea that attributed the Huang organization’s criminal activities to the Applicant and the Respondent’s counsel agreeing that the Applicant bought her house with money from China. The Applicant says that the house was forfeited because it was bought with the proceeds of crime, not because it was used as a hub for criminal activity. The Applicant also says that an email in the record makes it clear that the Applicant’s house was not used for criminal purposes.
[36] At the hearing, the Member questioned whether receipts and real estate documents found in the Applicant’s home could be attributed to her. The Applicant says that particulars of the real estate documents found in the Applicant’s closet were not described. There were, therefore, no documents to support the finding that the Applicant was the organization’s financial organizer.
[37] The Applicant submits that the ID’s conduct amounts to a breach of the duty of fairness and due process because these portions of the transcript show awareness of shortcomings in the evidence that the Decision does not acknowledge.
[38] The Applicant says that the Decision also ignores her testimony that she did not like her husband’s friends but did not wish to cause problems in her relationship with her husband. The Decision ignores the cultural, personal, and historical context of the Applicant’s relationship with her husband. Contrary to the ID’s finding that members of the organization were convicted of crimes that took place over a long period, the Applicant points out that she had only been married to her husband for a matter of months. The Applicant says that she could not have become a trusted member of the organization in that short period of time.
(2) Wilful Blindness
[39] The Applicant submits that the ID did provide any analysis regarding its finding that the Applicant was at least wilfully blind to the activities taking place in her house. The Applicant says that there is no basis for this finding.
(3) Emphasis on the Applicant’s Guilty Plea
[40] The Applicant submits that the ID interprets the Applicant’s guilty plea as an admission of organized criminality. The Applicant notes that she did not plead guilty to a charge of membership in a criminal organization. In the Decision, the ID states that the Applicant agreed as part of her guilty plea that her home served as the organization’s base of operations and that through her plea she admitted that this was done with her knowledge. Though the Applicant recanted the admission of her knowledge, the ID did not find her credible. The Applicant says that the hearing before the ID was therefore “an exercise in futility” because the ID had already decided that her plea was determinative. The Applicant submits that this amounts to a breach of the duty of fairness.
(4) Opportunity to Respond to Credibility Concerns
[41] The Applicant submits that the ID breached the duty of fairness by not allowing her an opportunity at the hearing to respond to purported inconsistencies in her evidence. The Decision refers to the Applicant’s evidence as not credible on multiple occasions. The Applicant says that the Member never put the purported inconsistencies to her at the hearing for her response. The Applicant says that if the ID did not believe the Applicant’s testimony, it had a duty to identify the basis of its concerns and provide the Applicant with an opportunity to respond to those concerns at the hearing.
(5) B010
[42] The Applicant submits that the Supreme Court of Canada’s decision in B010 changed the law applicable to s 37(1)(a) of the Act. In Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 40 [Sittampalam], the Federal Court of Appeal rejected the value of international instruments and criminal jurisprudence when interpreting the meaning of “organization” in s 37(1)(a) of the Act. Considering the immigration context, the Court concluded that a broad and unrestricted approach to the definition better suited the Act’s purpose. The Applicant submits that B010 held that s 37(1)(b) should be interpreted harmoniously with the Criminal Code and the UNCTOC because the purposes of the provisions are directed at transnational crime. The Applicant says that this is now the law for s 37(1)(a), and that proving membership in a criminal organization “should now follow criminal law standards.” The Applicant maintains, however, that her membership in a criminal organization has not been proven under any standard.
[43] The Applicant therefore requests that the application for judicial review be allowed, that the Decision and deportation order be quashed, and that the matter be remitted back to the ID for redetermination.
B. Respondent
(1) Reasonableness
[44] The Respondent submits that the ID’s finding that the Applicant was a member of the Huang criminal organization is reasonable. The Applicant pled guilty to the offences of conspiracy, possession for the purpose of trafficking, and theft on the basis of an agreed statement of facts. The Respondent says that the Applicant’s guilt was therefore established beyond a reasonable doubt and that the ID had ample basis to find the Applicant inadmissible on the lower “reasonable grounds to believe” standard. The Respondent notes that the Applicant did not contest her convictions before the ID during her inadmissibility hearing under s 36 of the Act, nor did she file an application for judicial review of the s 36 inadmissibility finding. The Applicant’s guilty plea provided a reasonable basis for the ID’s conclusion that the Applicant was inadmissible on the grounds of serious criminality. See e.g. Burton v Canada (Public Safety and Emergency Preparedness), 2012 FC 727 at para 43.
[45] The Respondent says that the Applicant’s admission that she was involved in a criminal conspiracy with a criminal organization involving multiple co-accused is sufficient for a finding that the Applicant is inadmissible for organized criminality. The Respondent points to United States of America v Dynar, [1997] 2 SCR 462 at para 88, where the Supreme Court of Canada held that “[a] conspiracy must involve more than one person.”
[46] In addition to the Applicant’s conspiracy conviction, the Respondent points to further findings in the Decision that support the conclusion that the Applicant is inadmissible for organized criminality. Namely, the Applicant owned and lived in the house that was a centre of operations for the conspiracy. Police found materials related to the conspiracy throughout the house, including in two bedrooms where the Applicant’s identification was found. These materials included dismantled grow op equipment, bags of marijuana leaves, lists of chemicals, receipts for grow op equipment, and real estate documents related to grow op sites. The real estate documents were located inside a locked bag in a locked closet that also contained the Applicant’s identification. Members of the organization had other residences where they could have kept this material. The Applicant also leased two vans which organization members used to visit grow op sites and both vans were forfeited as offence-related property. And the Applicant was a director of a numbered company that purchased a rural property in the area of the organization’s other grow op sites. Considering these facts cumulatively, the ID found that the Applicant “was a member of the organization and engaged in activity” on behalf of the organization. The Respondent says that the Applicant admitted these relevant facts as part of her guilty plea.
[47] The ID found that the Huang criminal organization placed a significant degree of trust in the Applicant because her home was unique among the Toronto area properties searched. The materials located there were “more directly related to supporting the production of marijuana.” The open display of this material contributed to the ID’s conclusion that the organization trusted the Applicant. Also, the ID reasonably concluded that her role was to provide financial support, transportation, and an operational base for the organization. The Respondent submits that the Applicant’s disagreement with these findings and the inferences that they support does not establish reviewable error. See L’Écuyer v Canada, 2010 FCA 117 at paras 4-5.
(2) Procedural Fairness
[48] The Respondent says that the ID’s consideration of the facts relating to the Applicant’s criminality is not unfair. In proceedings before the Ontario Court of Justice, the Applicant was provided with a court-appointed interpreter and represented by counsel. She voluntarily entered a guilty plea and was referred to the ID based on her convictions. In Clare v Canada (Citizenship and Immigration), 2016 FC 545 at para 17, Justice O’Reilly held that an individual subject to an amended s 44 referral was treated fairly because he was put on notice of the substance of the allegation. Here, the Respondent says that the ID explained the process to the Applicant at the beginning of her hearing.
[49] Notwithstanding the Applicant’s attempt to appeal her criminal convictions, at the Applicant’s admissibility hearing the existence of her convictions was not contested. The Respondent says that there was nothing before the ID to indicate that the Applicant had raised concerns about her innocence with her criminal counsel. In the circumstances, there was no evidentiary basis for the ID to go behind the Applicant’s plea and conviction, or unfairness in relying on uncontested facts. The Respondent says that the Applicant also failed to advance any evidentiary basis for an allegation of incompetence against her former counsel.
(3) Section 37(1)(a) of the Act
[50] The Respondent submits that the Supreme Court of Canada’s comments on the meaning of “organization” in s 37(1)(b) of the Act in B010 have no application because the issue before the ID was the Applicant’s membership and role in the Huang organization. The existence and criminality of the organization was not contested before the Board. The Respondent also notes that the ID held that it was not necessary to resolve how B010 affected the interpretation of s 37(1)(a) on these facts as the ID found that the Applicant was described by s 37(1)(a) under either party’s reading of the Act.
[51] Regardless, the Respondent submits that the ID’s analysis of the effect of B010 on the application of s 37(1)(a) is reasonable. The decision in B010 interprets a different paragraph of the Act from the one at issue in the present application. Further, the Respondent says that B010 was about defining the meaning of “organized criminality” by reading in the existence of organization when the Supreme Court created the term “transnational organized crime” in s 37(1)(b).
[52] As noted, the Applicant has not disputed the Huang organization’s existence or that it was a criminal organization. Rather, the Applicant disputes her relationship with the organization. The Respondent notes that the Applicant’s position that she has no knowledge of the organization precludes her asserting that it had some other purpose. The Respondent also says that all the evidence supports the conclusion that the Huang organization was involved in criminality.
[53] The Respondent further submits that, even if the Applicant’s interpretation of s 37(1)(a) is correct, it is irrelevant to her inadmissibility under the section. The Applicant provided vehicles and a base of operations for the organization. The ID found that she was either a member of the organization or someone “engaged in activity that was part of the pattern of activity engaged in by the organization.”
[54] The Respondent says that should the Court wish to consider the Applicant’s submissions regarding the application of B010 to the interpretation of s 37(1)(a) of the Act, the narrow and technical interpretation offered by the Applicant should be rejected. In Sittampalam, above, at para 36, the Federal Court of Appeal held that the definition of organization in s 37(1)(a) of the Act should be given an “unrestricted and broad” interpretation, consistent with the Act’s intention to “prioritize the security of Canadians.” The Court noted Parliament had not adopted the Criminal Code definition of criminal organization in s 37(1)(a) of the Act: Sittampalam, above, at para 40. The Respondent points out that in s 121.1 of the Act, Parliament adopted the Criminal Code definition for other provisions of the Act. In these circumstances, the Respondent submits that had the Supreme Court of Canada intended to overturn Sittampalam, and change the meaning of s 37(1)(a) in a decision about s 37(1)(b), it could have done so expressly. Therefore, Sittampalam remains good law and the Applicant’s interpretation should be rejected.
[55] The Respondent therefore requests that the application for judicial review be dismissed.
VIII. ANALYSIS
[56] The ID’s conclusion that the Applicant is inadmissible for organized criminality under s 37(1)(a) of the Act is based upon “the convictions registered against the conspirators and the evidence as a whole which describes the activities of the organization in significant depth” (at para 31).
A. Unreasonableness
[57] The Applicant summarizes why the ID’s conclusions are unreasonable as follows:
7. The panel makes the following evidentiary conclusions that are not founded on the record before him:
- The panel concludes the Applicant was a member or leader of the criminal organization for a number of reasons, noted further below are not founded on the record.
- The panel relies on general statements and assertions to conclude that unidentified documents purportedly found in Applicant’s home related to grow operations, belonged to the Applicant personally and established her role with the organization which is not supported by the record and by the results of the police investigation.
- The panel concludes the Applicant either admitted her house was proceeds of crime or used for criminal purposes neither of which was founded on the evidence examined by the panel. The Minister conceded the issue and evidence also revealed, the Applicant purchased her house with her own savings brought by her from China.
- The Panel relies on a receipt found on the Applicant’s kitchen table for a storage in Belleville in which grow-op equipment [was] stored for its conclusion that the applicant played a leading role in the organization when it was already established the receipt did not belong to the Applicant. She had no knowledge of it and of storage and had never visited Belleville.
- The panel concludes the Applicant[’s] tenants were not charged and arrested in relation to the crimes, contrary to the evidence before it, thereby erroneously attributing any evidence of criminal activity found in the tenants’ apartment to the Applicant.
- The panel misapprehends the evidence with respect to a SUV/Van the Applicant had leased in her name but on behalf of and at the expanse of a friend/relative of her spouse under pressure. The panel at times appears to erroneous[ly] suggest she had leased two such vans and ignores the applicant’s testimony on her particular personal and cultural context in this regard.
- The panel concludes without a foundation that [the] Applicant admitted to having been a member of the criminal organization.
- The panel’s purported evidential conclusions are repeated throughout its reasons in different forms, which the panel then relies on to conclude that the Applicant was a trusted person in the organization, responsible for the group’s financial operations, again without any evidence directly attributable to the Applicant that would warrant occupying such a position for a newcomer such as the Applicant. However, acknowledging there is no evidence placing the Applicant with the criminal activities of the group the panel takes this as in fact supporting the role of a leader of the group. The panel attempts to draw a parallel between the App