Bruzzese v. Canada (Public Safety and Emergency Preparedness)

Bruzzese v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2014-03-07
Neutral citation
2014 FC 230
File numbers
IMM-549-14, IMM-6541-13, IMM-7176-13, IMM-8249-13, IMM-934-14
Notes
Reported Decision
Decision Content
Date: 20140307
Docket: IMM-7176-13
IMM-6541-13
IMM-8249-13
IMM-549-14
IMM-934-14
Citation: 2014 FC 230
Ottawa, Ontario, March 7, 2014
PRESENT: The Honourable Mr Justice de Montigny
BETWEEN:
CARMELO BRUZZESE
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] These are applications for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) of two decisions to continue the detention of Mr Carmelo Bruzzese (the “Applicant” or “Mr Bruzzese”) made by the Immigration Division (“ID”) Member Ronald Stratigopoulos on October 4, 2013 (file IMM-6541-13) and by ID Member Mary Lou Funston on November 1, 2013 (file IMM 7176-13). Both of these decisions rely upon the initial decision made to continue Mr Bruzzese’s detention by ID Member Iris Kohler on September 16, 2013.
[2] In light of the revolving nature of these detention reviews, and because each of these decisions build upon the previous ones, the Court also decided to take up the following three applications filed by the Applicant whereby he challenges the decisions to further continue his detention made by ID Member Ama Beecham on December 10, 2013 (IMM-8249-13), ID Member Lori Del Duca on January 14, 2014 (IMM-549-14) and ID Member David Young on February 7, 2014 (IMM-934-14).
1. Facts
[3] Mr Carmelo Bruzzese is an Italian citizen and a permanent resident in Canada. He first immigrated to Canada on May 3, 1974. He returned to Italy in 1977, and travelled back and forth to Canada many times since then. He came back to Canada on December 12, 2009 with the intention to settle here. His wife, Carla Calabro, is a Canadian citizen. He has five adult children, some residing in Canada and others in Italy.
[4] In 2008, Mr Bruzzese was charged and faced a trial in Italy on the allegation that he was associated with the Rizzuto criminal organization. He was acquitted of this charge. At the hearing, the presiding judge noted however that Mr Bruzzese is definitely associated with the Calabrian mafia, the ‘Ndrangheta. Charges were later laid against Mr Bruzzese on the basis of his association with the ‘Ndrangheta. On September 2010, a warrant was issued for his arrest by the Italian authorities pursuant to article 416-bis of the Italian Criminal Code, which deals with mafia-type association crime.
[5] According to an Europol paper (‘NDRANGHETA – Criminal Structure of the Calabrese Mafia, Application Record in IMM-7176-13, p 294), the ‘Ndrangheta is a powerful criminal organization deeply involved in drug trafficking, money laundering, corrupt tendering, extortion, loan sharking, weapons trafficking and prostitution. The ‘Ndrangheta uses intimidation to exercise power, threatening the person’s health, property or economic interests, and does not refrain from killing those who do not cooperate. It has established many “locali” across the globe, and it is believed that it operates a number of different locali in Canada, most of them in the Greater Toronto Area.
[6] On August 21, 2013, a section 44 IRPA report was written alleging that Mr Bruzzese is inadmissible under paragraph 37(1)(a) of the IRPA for membership in the ‘Ndrangheta, a criminal organization. The report was referred to the Immigration Division. On August 22, 2013, a warrant was issued for Mr Bruzzese’s arrest and on August 23, 2013, Mr Bruzzese was arrested and detained by the immigration authorities on the allegation of being unlikely to appear and of being a danger to the public. As previously mentioned, Mr Bruzzese has had six detention reviews so far.
2. Decisions under review
[7] As indicated above, the Applicant’s judicial reviews at bar concern the decisions on the 7-day and 30-day detention reviews. To the extent that these decisions heavily rely on the first review, the 48-hour detention review, it is relevant to summarize that decision as well. A word will also be said about the last three detention reviews.
- The 48-hour detention review (September 16, 2013)
[8] Member Kohler ordered the Applicant’s continued detention on the basis that he is a danger to the public and that he was unlikely to appear for removal. With respect to danger, the member accepted, on a balance of probabilities, that the ‘Ndrangheta is a criminal organization pursuant to section 467.1 of the Criminal Code, RSC 1985, c C-46. She also found that Mr Bruzzese has an association with that organization, on the basis of a number of factors: he is facing charges in Italy for his association with a mafia organization, a warrant was issued for his arrest, his son was convicted of mafia association and his daughter is married to a man believed to be a high ranking official in the ‘Ndrangheta, an Italian judge had found strong evidence that Bruzzese was deeply involved in the ‘Ndrangheta, and Mr Bruzzese had been caught on surveillance and wiretaps associating with known members of the ‘Ndrangheta.
[9] Member Kohler also observed that the circumstances of Mr Bruzzese’s life in Canada indicated an association with a criminal organization: he admitted under oath that he had his children physically bring large sums of cash from Italy on a regular basis instead of using bank wire transfers or electronic transfers, he also acknowledged during his testimony that he drove a BMW registered in another person’s name whose last name he did not know, he claimed medications prescribed to another person as his own, he bought a $600,000 home in Canada with one of his sons despite stating in the hearing that he did not earn enough money in Canada to file a tax return, and there was a news article quoting the Italian judge describing a sophisticated hiding place in Mr Bruzzese’s Italian home. Member Kohler found that, on a balance of probabilities, all that evidence indicated that Mr Bruzzese was associated with a criminal organization.
[10] Member Kohler also found that the Applicant was likely to appear for his admissibility hearing but unlikely to appear for a removal order if one is issued. Mr Bruzzese has an arrest warrant issued against him in Italy. As there is no Canadian equivalent for the charge of association with a mafia-like organization (article 416-bis of the Italian Criminal Code), Canada would not extradite him. Therefore, the only thing standing between Mr Bruzzese and the Italian justice system is an admissibility hearing; as noted by Member Kohler, the stakes are high but the benefit is priceless, and he will therefore likely appear for his admissibility hearing. That being said, Mr Bruzzese could be considered a fugitive from justice as he would likely have known from the Italian Judge’s findings on his previous prosecution that the authorities would investigate him further, and he knew of the criminal charges subsequently laid against him in Italy, yet he chose not to return to Italy to address them. Member Kohler was of the view that subsection 245(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”) is broad enough to cover a person who fled when aware of an ongoing investigation that could implicate him in criminal conduct. It is on that basis that Member Kohler found on a balance of probabilities that Mr Bruzzese is unlikely to appear for removal.
[11] The ID Member also found that Mr Bruzzese misled Canadian officials about his criminal charges in Italy, as well as the location of his passport. On his application to change the conditions of or extend his stay in Canada, Mr Bruzzese did not disclose the criminal charges in Italy. The fact that he surrendered his passport on the first day of that hearing was given little weight, given that it expires on November 4, 2013, that he does not require a passport if he goes underground, and that an individual associated with a criminal organization can easily obtain a fraudulent one.
[12] Member Kohler also found that Mr Bruzzese ought to be detained immediately to ensure his availability for removal should that be required. She was of the view that by the time the admissibility hearing decision is rendered, Mr Bruzzese would already have made preparations and gone underground in anticipation of an unfavourable decision. Being associated with a criminal organization, he would have tremendous resources to avail himself of, to repay breached bonds and to assist with eluding the authorities.
[13] The proposed bondspersons were rejected. Mr Savarino, who is Mr Bruzzese’s great-nephew, was willing to post $50,000 in cash and $40,000 conditional. He has never spoken to Mr Bruzzese by phone prior to his detention and only sees him on random Sundays at his grandmother’s house. He was not sure where Mr Bruzzese lived and had only a vague understanding of his legal problems in Italy. While Mr Savarino claimed to be close to Mr Bruzzese’s son Carlo, he was unsure whether Carlo faced charges or had been convicted of a crime in Italy. Mr Savarino’s plan to supervise Mr Bruzzese consisted of calling the house and taking him to lunch on occasion, hoping that he would notice a break in Bruzzese’s routine and then act thereon. Member Kohler did not accept Mr Savarino as a suitable bondsperson. He did not have a sufficiently close relationship with Mr Bruzzese for the purposes of a release order. Mr Savarino demonstrated little concerns for the seriousness of the allegations against Mr Bruzzese, and no ability to effectively supervise Mr Bruzzese. His respect for his great-uncle as an elder did not give confidence that he could ensure Mr Bruzzese’s compliance.
[14] Mr Bruzzese’s wife, Ms Calabro, was willing to post $10,000 in cash. There was much she did not know about her husband’s activities. She could not remember whether she was on title for the family home in Canada. She did not know that Mr Bruzzese and his son Carlo had bought a house together. She did not know what credit cards her husband has, or how he pays the mortgage. She did not know the name of the person who owns the car that Mr Bruzzese drives or the names of the companies that he works for. Ms Calabro was inconsistent with her husband as to how much money their children would send them from Italy. She knew that Mr Bruzzese faced charges in Italy in 2008, but was unaware of the recent charges or the warrant for his arrest. Ms Calabro explained that she does not read the documents that she signs as she trusts her husband. Her plan to ensure that Mr Bruzzese didn’t flee included calling him on the phone to ask what time he was coming home and trying to contact him through relatives if he did not answer. Member Kohler determined that Ms Calabro was not an effective surety, as she has no ability to be an effective supervisor, let alone offset the issue of danger. While her husband said she shared in decision making, this was not apparent from her testimony. There was much she did not know about her husband’s activities. She cannot just change this relationship and become the boss of her husband to effect control over him. She would accept her husband’s decision to remain in Canada and not leave when required. She is clearly dedicated to Mr Bruzzese and the family, and would not call the police on Mr Bruzzese and help police locate him.
[15] The third bondsperson to testify before Member Kohler is Mr Giuseppe Bruzzese, Mr Bruzzese’s nephew. He was willing to post $50,000 in cash and $25,000 conditional. He had seen Mr Bruzzese only once in the past year, and had gone to Mr Bruzzese’s home once. He was not aware that Mr Bruzzese was facing any legal problems and that he was wanted in Italy until Mr Bruzzese’s lawyer in Canada told him. Member Kohler found that he could not be trusted, as he had failed to follow the simple direction not to discuss his evidence with any of the other proposed bond signers or anyone else.
- The second detention review (October 4, 2013)
[16] At the 7-day detention review, Member Stratigopoulos ordered the Applicant’s continuing detention on the grounds that he was a danger to the public and will be unlikely to appear for his removal order (see page 12 of the Oct 4 decision “Now having found that there are concerns as Member Kohler indicated, for danger and less so but still concerns about flight risk, …”). New evidence was presented by both sides in this detention review. There was a confirmation that Mr Bruzzese has no criminal record in Italy and no criminal proceedings are outstanding in the town of Locri, a town in the province of Reggio Calabria. The Minister presented a rebuttal that while there were no charges in Locri, there were outstanding charges or court proceedings in other places in Italy. The Minister also presented an audio recording (CD) of an Italian police officer’s interview outlining information that Mr Bruzzese is involved in the ‘Ndrangheta. Counsel for Mr Bruzzese noted that there were problems with the translation of the audio file. The panel indicated that the complaints about the translation were made by people who do not speak Italian, and decided to accept the CD.
[17] Member Stratigopoulos agreed with Member Kohler that Mr Bruzzese is likely to appear for his admissibility hearing. He noted that Mr Bruzzese has no history of eluding immigration authorities in Canada and did not appear to be in hiding when he was arrested. He did not accept that it was clear Mr Bruzzese is a fugitive, as it appears from the audio recording that the police officer in Italy was not clear that Mr Bruzzese was aware of the investigation and that he fled because of it. There were still concerns about flight risk but the panel believed that these could be addressed by the use of a GPS monitoring system, suggesting that this could be a possible alternative to detention. Having said that, the panel member concluded that there is less but still some concerns about flight risk.
[18] The panel concluded as well that the release proposal does not offset the concerns about danger to the public. The panel found that the CD provided ample evidence of the dangers of the ‘Ndrangheta and the fact that it operates in Canada. Even though there is no evidence that Mr Bruzzese had any convictions anywhere or that he was involved in violence offences, these were not a pre-requisite to a dangerousness finding. There was evidence from Italian authorities implicating the Applicant as a senior leader of the ‘Ndrangheta in Italy, there was evidence that he faces serious charges in Italy arising from his suspected involvement in the group, and there was information from surveillance and wiretaps records showing him discussing ‘Ndrangheta business with other ‘Ndrangheta members. Moreover, his son Carlo has been convicted, and his daughter is married to an alleged senior ‘Ndrangheta member. Member Stratigopoulos found that all of this supported the contention that Mr Bruzzese was associated with the ‘Ndrangheta. He also concluded that there was insufficient information on which to conclude that the alternative to detention that Mr Bruzzese proposed would attenuate the risks posed by his release.
- The third detention review (November 1, 2013)
[19] No new evidence was provided to Member Funston, who decided to continue Mr Bruzzese’s detention. The ID Member rejected the suggestion that the person needed a criminal record or a propensity to violence to be a danger to the public as dangerousness could be made on any of the factors listed in section 246 of the IRPR. The ‘Ndrangheta is a criminal organization operating in Canada, and it goes without saying that danger to the public is inherent in the activities of such a group.
[20] The evidence before Member Funston – Italian judicial decision and newspaper articles citing judicial and law enforcement authorities, documentation of the investigations conducted by the Italian police of the ‘Ndrangheta, and the warrant for Mr Bruzzese’s arrest for mafia association in Italy – was sufficient to establish the Applicant’s association with the ‘Ndrangheta. This evidence was challenged, but the panel was not presented with any evidence to challenge the fairness or the integrity of the Italian justice system. It was satisfied that Mr Bruzzese would not be subject to the current warrant pursuant to article 416-bis if there were no sufficient persuasive evidence of association with a criminal organization.
[21] Further indicia of Mr Bruzzese’s association with the ‘Ndrangheta existed in the finding of Judge Montoni in Italy in 2009 (that Bruzzese was involved in a criminal organization) as did the evidence of Mr Bruzzese’s personal circumstances – the source of his funds in Canada, driving a BMW registered in the name of another person, the use of medication prescribed to another, the fact that a hiding place has been found in his house in Italy and the connection of other family members to organized crime. All of this supports the conclusion on a balance of probabilities that Mr Bruzzese is likely to pose a present and future danger to the public.
[22] Member Funston adopted Member Kohler’s findings on the Applicant’s first three proposed bondspersons, noting that she had not heard anything at the thirty-day review that demonstrated that those bondspersons were otherwise suitable. The ID Member also disagreed with ID Member Stratigopoulos and agreed with ID Member Kohler in finding that Mr Bruzzese is a fugitive from justice. The serious charges that the Applicant faces in Italy were a strong incentive for him to remain in Canada and made it less likely that he would show up for removal. While Member Funston noted that GPS monitoring could serve as an alternative to detention, it did not do so here as the bondspersons proposed were not suitable bondspersons.
- The fourth detention review (December 10, 2013)
[23] No new evidence was presented, and Member Beecham directed that Mr Bruzzese’s detention be continued, finding that Mr Bruzzese was both a danger to the public and a flight risk. Member Beecham found that he was a flight risk because there is an active warrant for his arrest in Italy where he is wanted to face charges. This could very well impact Mr Bruzzese’s desire to present himself willingly for possible removal should an order be issued. She noted that Mr Bruzzese is alleged to be a high ranking member of a criminal organization that gives assistance to fugitives from justice and gives shelter to people who are fugitives, thus giving the ability to people within this organization to go off the radar.
[24] The panel member once again considered the sentencing of Mr Bruzzese’s son, his daughter’s marriage to a leader of the organization, and his access to significant amounts of money. Member Beecham also pointed to the Applicant’s lack of credibility, referring to the fact that he drives someone else’s car, takes his medications under someone else’s name, and provided inaccurate information when he applied for some status in Canada.
[25] As for the danger to the public finding, the panel member was satisfied, based on her own assessment of the totality of the evidence, that the Applicant’s arguments fail to refute the prima facie case that was established by the Minister. She also pointed out that the Applicant’s arguments of November 28, 2013 are not new arguments and do not differ significantly from those made in prior reviews.
[26] Member Beecham maintained that subsection 246(b) of the IRPR is the factor to consider for determining whether or not the Applicant is a danger to the public as a result of being associated with a criminal organization. Therefore, it is important to determine whether or not the ‘Ndrangheta is a criminal organization. The panel member concluded that there is enough evidence before her to find that the ‘Ndrangheta is an organization or a group, composed of several persons, and engaged in economic and financial crimes, drug trafficking, money laundering, providing assistance to fugitives, etc. She also determined that subsection 246(b) of the IRPR does not require that a person be found complicit in order to be described as a danger to the public. Based on the evidence before her, Member Beecham concluded that Mr Bruzzese is an integral part of a criminal group and not only lightly associated with it.
[27] The panel member also addressed the alternative to detention, i.e. the four bondspersons along with the electronic monitoring and found that no additional information was provided that would make her deviate from the previous decisions. She highlighted that the ID should ensure that a bondsperson is a surety and a supervisor at the same time, otherwise the ID would abdicate its responsibility. None of the potential bondspersons were identified as such. She was also of the view that the GPS monitoring would not be efficient in preventing the Applicant to re-establish the contacts, the networks and the connections with the ‘Ndrangheta group.
[28] As for the length of detention, the panel member found that the Applicant had only been detained for three and half months, that the disclosure was understandably delayed because the Minister had to obtain and translate documents from Italy, and that persons detained benefit from faster admissibility hearings. As a result, length of detention was not an argument in favour of the release.
- Fifth detention review (January 14, 2014)
[29] The panel Member Lori Del Duca maintained the decisions of the previous members. Member Del Duca noted that there is no evidence of Mr Bruzzese having any convictions and any drug-related charges in or outside Canada. However, based on what Member Del Duca believed to be credible and trustworthy evidence before her and previous panel members, the panel found that Mr Bruzzese has an association with a criminal organization and continues to be a danger to the public under subsection 246(b) of the IRPR.
[30] The panel also concludes that Mr Bruzzese remains a flight risk. The panel relied on the previous findings that Mr Bruzzese is a fugitive and drew negative inferences from his lifestyle in Canada as did the previous members. Having been given no clear and compelling reasons to depart from the flight risk finding made and relied upon by other members, Member Del Duca was therefore satisfied on a balance of probabilities that if released Mr Bruzzese would be a flight risk.
[31] Member Del Duca then considered the additional bondspersons offered and the total amount of bonds provided and noted that the approximately $400,000 amount being offered is a very high amount in most circumstances; yet in this case the amount does not carry the significance it would normally have. The panel was influenced by the documentary evidence showing that the ‘Ndrangheta group provides money, shelter and respect to those on the run; viewed in this light, what appears at first sight to be a large amount is not so substantial. The panel also noted that the bondspersons lacked knowledge about Mr Bruzzese and could not effectively supervise him.
- The sixth detention review (February 7, 2014)
[32] After having heard counsel for both parties, Member Young decided to continue the detention. No new evidence was presented, but counsel for the Applicant put forward three arguments: 1) the reference to a “judge” by Board Member Kohler should have been to a “prosecuting judge”; 2) there is a two-year window from the time the warrant was issued to take action on it, and no action has been taken yet; and 3) there has been no supporting evidence regarding the wiretaps referred to in previous submissions by the Minister and as such, the weight to be given to this evidence should diminish over time and the onus on the Minister increase to present this supporting evidence.
[33] The panel found that the news article referencing to the “judge” rather than “prosecuting judge” was only one of a number of pieces of information which led to the findings that Mr Bruzzese is associated with a criminal organization. The distinction between a judge and a prosecuting judge is not sufficient to amount to compelling reasons to revisit the decision, and Judge Montoni’s statement was only one of many pieces of evidence on which the previous finding of association with a criminal organization was based. As for the warrant, the panel noted that this has been dealt with at great length by Member Beecham and that there is no reason to revisit her decision; the warrant still served as evidence of Mr Bruzzese’s association with the ‘Ndrangheta. With respect to the wiretaps, Member Young indicated that it would have been preferable if the wiretaps and the warrant had been translated, but concluded that it was not fatal as the Minister has provided information that supports the contention made about those wiretaps as time went by.
[34] Moving on to the matter of unlikely to appear, the ID Member noted that there was not much raised during that detention review. The fact that Mr Bruzzese stated that he will not flee does not counterbalance other findings regarding his previous absence of forthrightness with the authorities and the impressions created by his way of arranging his living in Canada. The panel was also convinced that the previous reviews were correct in concluding that the bondspersons were not sufficient as the proposed ones didn’t even have knowledge of Mr Bruzzese’s issues. This was a strong indication, for the panel member that they could not possibly be suitable to supervise the Applicant and to deal with the concerns for the security of the public.
[35] Finally, Member Young noted that the detention to date has not been lengthy as there have been a number of factors that contributed to the number of months that Mr Bruzzese has been detained, and the case is a complex one. He noted that counsel for the Applicant was not available for an earlier admissibility hearing, and that it has now been set for April 15, 2014.
3. Issues
[36] The question to be decided in this application for judicial review is whether the decisions of the Immigration Division are reasonable. That question can be subdivided into three separate issues: Did the various panel members err 1) in assessing that the Applicant poses a danger to the public? 2) in determining that he is unlikely to appear for removal? 3) in evaluating the other factors, namely the length of time in detention and the existence of alternatives to detention?
[37] Since all the decisions rely to a large extent on the decision made on the first detention review and rest more or less on the same reasoning, they will be reviewed collectively without referring to any particular one except when appropriate.
4. Legislative scheme for detention reviews
[38] Section 55 of the IRPA permits an enforcement officer to detain a permanent resident or a foreign national only when there is reasonable ground to believe that he or she is inadmissible, and is either a danger to the public or unlikely to appear for an examination, for an admissibility proceeding or for removal. Section 245 of the IRPR sets out the factors to be considered in determining whether a person facing removal from Canada is unlikely to appear for removal. They include whether the person could be considered a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament (subsection 245(a)), as well as whether they have a history of avoiding examination by Immigration authorities (subsection 245(e)).
[39] Section 246 of IRPR sets out the factors on which a danger to the public finding may be made. This includes whether a person has an association with a criminal organization (subsection 246(b)).
[40] As with all sections of the IRPA and the IRPR, these sections must be interpreted and applied in light of the stated objectives of the IRPA. As noted by the Supreme Court in Medovarski v Canada (MCI), 2005 SCC 51, (at para 10), these objectives “indicate an intent to prioritize security and, viewed collectively, communicate a strong desire to treat criminals and security threats less leniently than under the former Act”.
[41] The IRPA provides for an independent and impartial review of detention by the Immigration Division (section 54). Detention reviews occur at 48 hours, seven days and thirty days after removal, with continuing reviews every thirty days thereafter (subsections 57(1) and (2)). The Immigration Division must order release unless it is satisfied that the person is, inter alia, a danger to the public or unlikely to appear for examination, for an admissibility proceeding, or for removal (subsections 58(1) and (2)). In a detention review, the person may be represented by counsel (section 167), receive disclosure of the case against him or her, cross-examine the Minister’s witnesses, call his or her own witnesses, and challenge the case for detention (Immigration Division Rules, SOR/2002-229, Rules 26 and 32).
5. Standard of review
[42] 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. 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. If no standard of review has been established or where precedents appear to be inconsistent with new developments in the common law principles of judicial review, the reviewing court must undertake a consideration of the four factors comprising the standard of review analysis (Agraira v Canada (MPSEP), 2013 SCC 36, at para 48).
[43] A number of cases have established that the ID’s detention review decisions are fact-based decisions which attract deference: see, Tursunbayev v Canada (MPSEP), 2012 FC 504 [Tursunbayev]; Canada (MCI) v B046, 2011 FC 877; Canada (MCI) v Li, 2008 FC 949, Canada (MCI) v Thanabalasingham, 2004 FCA 4 [Thanabalasingham]. The standard of review, therefore, is that of reasonableness. On such a standard, the ID panel’s decisions should stand unless the reasoning process was flawed and the resulting decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir, at para 47).
[44] Counsel for the Applicant tried to argue that the interpretation to be given to subsection 246(b) of the IRPR, and more particularly of what is required to be considered “associated” with a criminal organization, is a pure matter of law that must be reviewed on a standard of correctness. I disagree. When interpreting the relevant criteria governing the detention reviews, the ID members are clearly applying their home statute and regulations, and they are owed a significant degree of deference: Dunsmuir, at para 54; Smith v Alliance Pipeline Limited, 2011 SCC 7, at para 26. As for the application of this criterion to the particular situation of Mr Bruzzese, it is clearly a mixed question of fact and law also subject to the reasonableness standard.
[45] It is also clear from the jurisprudence that while each ID member must decide the matter afresh, the member must have compelling reasons to deviate from decisions of previous panel members. The Minister always bear the onus to demonstrate that continued detention is warranted, but this burden can quickly shift if previous decisions to continue the detention are found compelling by the ID Member presiding the review: Thanabalasingham at paras 9-10 and 16.
6. Analysis
a) Did the ID Members err in assessing that the Applicant poses a danger to the public?
[46] Counsel for the Applicant submitted that when determining whether or not Mr Bruzzese is a danger to the public, all members assessed the information about the ‘Ndrangheta and Mr Bruzzese’s association to that organization, but failed to consider whether or not Mr Bruzzese posed a danger to the public. In other words, all members assumed that Mr Bruzzese is a danger to the public because he was found to be associated with a criminal organization. Counsel argues that this is wrong: membership or association in a criminal organization is not a prima facie indication that the person is a danger to the public, but only one factor that must be considered in this determination pursuant to section 246 of the IRPR. The Applicant further contends that there is no definition in the legislation for “danger to the public”, and that the courts have recognized that it is an individual determination based on facts related to each case. Even if in some instances an association with a criminal organization may be sufficient to conclude that a person is a danger to the public, this cannot be automatic.
[47] I agree with the Respondent that each and every one of the factors listed in section 246 of the IRPR is a sufficient ground to find that a person is a danger to the public. The list of factors enumerated in that provision is quite detailed, and reflects the government’s commitment “to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks” (paragraph 3(1)(i) of the IRPA). As such, a person who is found to be associated with a criminal organization may be considered, on a balance of probabilities, a danger to the public without the need of any further assessment, just as would be the case, for example, for a person convicted in Canada of trafficking, importing and exporting, or producing a controlled drug. In any event, criminal organizations do pose an inherent danger to the public, as we have all witnessed when war broke out between criminal biker gangs in major cities of this country. Indeed, Member Kohler in her decision referred to some evidence showing that the ‘Ndrangheta infiltrates the business community and politics and avoids causing public disturbance, preferring to operate through threats and coercion. The fact that there is no evidence that Mr Bruzzese is personally engaged in violence in Canada is irrelevant; this is not the test. Neither section 244 nor section 246 of the IRPR provide engaging in violence as a prerequisite for detention on the basis of being a danger to the public; many of the activities listed in subsections 246(c) to (g) of the IRPR do not involve violence, and subsection 246(b) does not require the commission of a crime (as do subsections 246(d) to (g)). Directing others to commit crimes is no less dangerous than the perpetration of these crimes.
[48] The Applicant does not dispute that the ‘Ndrangheta is a criminal organization. The real issue was whether the evidence established that Mr Bruzzese has an association with the ‘Ndrangheta. Not only did the evidence before the ID Members support a finding that Mr Bruzzese has an association with the ‘Ndrangheta, it also suggested that he is one of the leaders of that organization.
[49] Counsel for the Applicant submitted that the information before the Immigration Division did not constitute evidence sufficient to support a finding that Mr Bruzzese is associated with a criminal group. The Italian warrant, for example, is disputed as a basis of his association with a criminal organization. Not only has the warrant never been actually produced before the ID members, but it had expired without steps ever having been taken to proceed to trial. Moreover, the test for a finding of association under Italian law is apparently that of “slight contribution”, whereas the test for complicity applied in Canada requires a “significant contribution”.
[50] I agree with the Applicant that it would have been preferable if the warrant itself had been produced in the early detention reviews. But it is trite law that the rules of evidence before the ID are not the same as those applying before a court of law. The Immigration and Refugee Protection Board is not bound by any legal or technical rules of evidence, and may therefore rely on direct and indirect evidence (Bailey v Canada (MCI), 2008 FC 938), on hearsay evidence (Temahagali v Canada (MCI), 2000 CanLII 16771), and generally speaking on evidence that is credible and trustworthy even if it might otherwise be inadmissible in civil or criminal proceedings (Re Jaballah, 2003 FCT 640).
[51] The existence of the warrant has been confirmed by a variety of sources, including a news article from the Toronto Star, an Italian police officer and Mr Bruzzese’s own lawyer in Italy, who produced a copy of it with translated excerpts. This warrant of arrest was issued by the Judge of Preliminary Investigations of the Court of Reggio Calabria for Mr Bruzzese in September 2010, for the offense of “association mafia-type criminal”, and calls for the application of the precautionary measure of custody in prison of a number of persons.
[52] The warrant could support a finding that Mr Bruzzese is associated with the ‘Ndrangheta. The fact that this warrant may have expired – an issue of foreign law upon which this Court is loath to make a finding in the absence of expert evidence – is not material. I note that Member Beecham found in her December 10, 2013 ruling that the Italian warrant continues to remain in force; indeed, the documentation sent by INTERPOL to the RCMP seems to confirm that there is still a criminal proceeding that is pending in the Reggio Calabria Court of Appeal against Mr Bruzzese. Be that as it may, I agree with the Respondent that the warrant can serve as indicia of Mr Bruzzese’s association with the ‘Ndrangheta. The fact that a warrant was issued shows, at the very least, that the Italian authorities believed that the nature of Mr Bruzzese’s involvement with the ‘Ndrangheta could support a charge under Italian law; it is not for the ID nor for this Court to speculate as to why charges have not yet been laid in this respect.
[53] As for the Applicant’s argument that the ID members erred in relying on the warrant as evidence of association with a criminal organization, given that slight contribution is all that is needed under Italian law to be found guilty of the mafia-type association, I find it totally misplaced. It is no doubt true that in Ezokola v Canada (MCI), 2013 SCC 40, the Supreme Court found that complicity under article 1F(a) of the Refugee Convention requires the voluntary significant and knowing contribution to the crimes or criminal purpose of a group. Such a heightened mens rea requirement does not apply, however, for membership in an organization pursuant to paragraph 37(1)(a) of IRPA. As Justice Russell wrote in Chung v Canada (MCI), 2014 FC 16, at para 84:
Under subsection 37(1)(a), the person concerned, as well as being a member in the criminal organization, only needs to have knowledge of the criminal nature of the organization. See Stables [Stables v Canada (MCI), 2011 FC 1319], at para 37. I see nothing in Ezokola, above, to suggest that the Supreme Court also intended its remarks to apply to subsection 37(1)(a) of the Act or to change the law that was identified and applied in this case. The Applicant is arguing that, in his view, Ezokola should be applied to the present situation, but I cannot accept that 1F(a) of the Refugee Convention can be equated with 37(1)(a) of the Act, because the two provisions use different language and it seems plain that the knowledge requirements are different.
[54] Even more importantly, this Court is not called upon to determine if the ID members erred in finding Mr Bruzzese inadmissible; the decisions challenged only dealt with the continued detention of Mr Bruzzese and whether he was a danger to the public and a flig