Roundtable: REPORT on the “Criminality in IRPA from an Academic and Practitioner’s Point of View (sections 36-37 of IRPA)”

May 24, 11-12:30, Session 4-1: Roundtable

 

Chair: Mr. Justice Robert Barnes of the Federal Court

Speakers: Greg Israelstam, Olive Sonnenschein, Marco Gaetani, Andrew Brouwer

 

Greg Israelstam, Adjunct Professor, Faculty of Law, Common Law Section, University of Ottawa

This part of the panel discussion dealt with section 36 of the Immigration and Refugee Protection Act (IRPA). This section was recently considered by the Supreme Court of Canada in the Tran case (2017 SCC 50). This judgment clarified two points for immigration practitioners who might be dealing with inadmissibility for serious criminality.  Tran was a permanent resident of Canada.  He was convicted in 2012 of the production of a controlled substance under the Controlled Drug and Substance Act; he was basically running a marijuana grow-op. At the time of the offence, the maximum penalty for this offence was 7 years.  A few months after the offence, however, amendments to the Controlled Drug and Substance Act increased the maximum penalty from 7 years to 12 years.  Mr. Tran was ultimately sentenced to a 12-month conditional sentence. A permanent resident of Canada can be found inadmissibility for serious criminality, pursuant to subsection 36(1) of the Immigration and Refugee Protection Act, if that permanent resident is convicted of an offence for which a term of imprisonment of 10 years or more could be imposed, or if an actual term of imprisonment of more than six months is imposed.  The consequences of being found inadmissible for serious criminality are that the permanent resident could lose their status as a permanent resident and be removed from Canada. 

The Supreme Court made two findings. First of all, for the purposes of determining length of possible sentence of an offence, one has to look at the possible sentence at the time the offence was committed and not at the time of either sentencing or the time of the admissibility decision. Secondly, a conditional sentence could not be counted as an actual sentence, which meant that a conditional sentence of 12 months was not a term of imprisonment of six months or more.

Another issue pertaining to serious criminality was argued before the Supreme Court in November of last year, in the Wong case involving a permanent resident of Canada. Mr. Wong had been convicted of trafficking in a controlled substance and after pleading guilty, he was sentenced to 9 months in jail, which made him inadmissible on the grounds of serious criminality.  Once Mr. Wong found out he was subject to being found inadmissible and removed from Canada and after he had finished his sentence he argued that he should be allowed to rescind his sentence on the ground that he did not understand the nature and consequences of the plea (which is one of the requirements found in subsection 606(1.1) of the Criminal Code; namely, that a court can only accept a guilty plea if it is satisfied that the accused made the plea voluntarily and that the accused understands the nature and consequences of the plea). The question before the Supreme Court in Wong was whether not being aware of the immigration consequences of a guilty plea could mean that the accused did not know the nature and consequences of the plea to an extent that the plea could be struck. 

The lower court, the British Columbia Court of Appeal, used two intermediate approaches to the problem.  The majority held that the lack of knowledge of immigration consequences matter enough to allow the accused to rescind the plea on the ground that he was not aware of the nature and consequences of the plea. The accused would have to show more than just that immigration consequences were important but also that he would have changed his plea.  The minority held that the threshold should be even higher.  In order for an accused to be able to rescind a guilty plea, the accused would have to show not only that knowledge of the consequences would have resulted in a changed plea, it would also have resulted in a different result.  In other words, the accused would have to show that they had a legitimate path to an acquittal in order to use failure to understand the consequences to justify negating the guilty plea.

The decision in the Supreme Court has been reserved, but, given the frequency of this situation, this is going to be a really important decision for immigration practitioners and probably more influential in the long term than Tran.

 

Olive Sonnenschein, Counsel, Department of Justice, Canadian Border Services Agency (CBSA), Legal Services

This presentation dealt with the legal parameters of section 37(1)(b) of IRPA, which states:

A permanent resident or a foreign national is inadmissible on grounds of organized criminality for: …

1. 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.

The focus of the presentation was people smuggling, which is distinct from people trafficking, although one (smuggling) can lead to the other (trafficking). Two relatively recent instances of people smuggling in Canada involved two ships, namely, the MV Ocean Lady, which arrived in Canada in October 2009 with 76 male passengers, between 17 and 45 years old, and the MV Sun Sea, which came to Canada in August 2010 with 492 passengers. Two notable issues included the fact that on the MV Sun Sea the passengers claimed that the people smugglers had abandoned the ship during their journey to Canada and that there had been people on board who were able to navigate it. Another issue was that people had claimed not to have been members of the LTTE, but, that they had wounds that looked to be from participating in an armed struggle.

The Supreme Court of Canada examined section 37(1)(b) in the case of B010 v. Canada (MCI), 2015 SCC 58. The facts of the case were:

• the SCC B010 decision was based on five cases that were collectively heard by the SCC;
• one of the case was Hernandez, a Cuban national, who was accepted as a refugee in the US; he had been convicted in the US of alien smuggling and was issued a deportation order; he came to Canada and claimed refugee protection;
• B010, J.P., G.J. and B306 were among a group of 492 Tamils from Sri Lanka who were on the MV Sun Sea, which had departed from Thailand; the organizers had promised transport to Canada for $20,000 – $30,000 per person; B010 worked in the engine room; J.P. travelled with his wife G.J. while standing as look-out and reading the GPS and radar; B306 volunteered as the cook and stood as lookout as well.

The SCC decision in B010 confirmed that a person is inadmissible for “people smuggling” under s. 37(1)(b) if:

• the foreign national or permanent resident acts to procure or further the illegal entry of asylum-seekers;
• obtains a financial or other material benefit; and
• the activity occurs in the context of transnational organized crime.

In addition, the SCC decision in B010 removed the following activities from the definition of human smuggling under s. 37(1)(b):                   

• humanitarian aid to undocumented entrants;
• mutual assistance amongst asylum-seekers in the course of their collective flights to safety (including assistance to family members).

Three other cases have provided further clarification since B010 with respect  to the notion of people smuggling, namely, Appulonappar v. Canada (MCI), 2016 FC 914; Handasamy v Canada (PSEP), 2016 FC 1389; and, Bagri v. Canada (MCI), 2018 FC 197.

The background and findings in the cases were as follows:

• Appulonappar had been in Thailand, was granted third country resettlement by UNHCR, he worked as crew member for $5,000 discount on the $35,000 fee to be smuggled to Canada;
• the IRB found that Appulonappar knowingly and voluntarily joined the crew and “significantly aided” the smugglers;
• the discounted fare amounted to a material benefit;
• those who act in knowing furtherance of a criminal aim of criminal organizations, or who aid and abet serious crimes involving such organizations, will be inadmissible.
• there was no evidence Appulonappar was at risk in Thailand or had any prospects of removal to Sri Lanka; therefore, Appulonappar was not merely aiding and abetting the illegal entry of other refugees in their collective flight to safety.

With respect to the Handasamy case, the background was that he had been in Malaysia for two years, after which he went to Indonesia where he boarded the MV Ocean Lady and where he agreed to pay a reduced amount for the journey to Canada in exchange for working as crew member. The court distinguished the Handasamy case from Appulonappar, as in Handasamy, the IRB did not make an explicit finding of material benefit even though both cases involved reduced smuggling fees.

The last case, Bagri, involved a person who had been arrested in the US for smuggling five Indian citizens into the US from Canada. The court was of the view that it is not necessary to be a member of a criminal organization to fall within the parameters of section 37(1)(b) and that persons may only escape section 37(1)(b) inadmissibility if they had been “solely” or “merely” motivated by humanitarian motives. Inadmissibility may still result if the individual had humanitarian motives and financial motives.

 

Marco Gaetani, Counsel, Legal Services, Immigration and Refugee Board of Canada (IRB)

This presentation addressed section 37(1)(a) of IRPA, which states:

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.

There is no definition of the notion of criminal organization in IRPA. Before the B010 case the term was given a broad and unrestricted meaning while the following factors were helpful but not individually decisive:

• identity, a specificand identifying name or symbol
• leadership, loose hierarchy, basic organizational structure
• occupied territory and chosen meeting locations

(see Thanaratnam, 2004 FC 349; Sittampalam, 2006 FCA 326.)

Since the B010 decision, it has been said that the case had the effect of incorporating the definition of criminal organization in subsection 467.1(1) of the Criminal Code into section 37(1)(a) and 37(1)(b) of IRPA (Saif, 2016 FC 437) and that the ID had to determine whether there were reasonable grounds to believe that there was a criminal organization within the meaning of the Criminal Code (Odosashvili, 2017 FC 958). A more recent case indicated that either reading could support a finding of inadmissibility (Chen, 2018 FC 13).

The following have been examples in the jurisprudence of criminal organizations:

• Hells Angels
• Ndrangheta (Calabrian Organization)
• Hong Kong triads
• Street gangs (foreign and Canadian)
• Loosely structured (“no name”) groups (e.g., marijuana grow-ops; robbery of debit and credit card ring, B&E’s)

Being a member has been defined in a number of ways, such as:

• where someone admits to belonging to a criminal organization, even if the person did not engage in criminal activities, if he had knowledge of the activities, it would appear that he meets the requirements of membership (Amaya, 2007 FC 549);
• even if someone denies any knowledge of the organization’s criminal activity, that knowledge may be imputed if the person was willfully blind to it (Stables, 2011 FC 1319; Chung, 2014 FC 16.)

Engaging in activity has not been defined as such, but, some parameters have been established such as that membership in a gang and engaging in gang-related activities are discrete but overlapping grounds while Parliament intended it to extend to types of involvement with gangs that are not included (or not clearly included) within “membership” (Thanaratnam, 2005 FCA 122). An example of this reasoning can be found in the Thompson case (2015 FC 370) involving a drug dealer in a territory in Toronto claimed by the Bloods street gang; there was insufficient evidence to find membership but sufficient evidence to find that he engaged in activity that is part of a pattern of criminal activity similar to that of the Bloods.

 

Andrew Brouwer, Senior Counsel in Refugee Law, Legal Aid Ontario

This presentation focused on the impact of the criminal inadmissibility regime on long-term residents. While there have been some important improvements in the case law in recent years, the immigration inadmissibility regime continues to perpetrate very real injustices, frequently, to particularly vulnerable members of the community. Despite the obvious fact that deportation for criminal inadmissibility following the completion of a sentence amounts to a second punishment for an offense, the jurisprudence is very clear that at least as a matter of law, deportation is not to be conceived of as a penal consequence (see, for instance, MEI v. Chiarelli, [1992] 1 S.C.R. 711). Nevertheless, under IRPA, deportation becomes the very real, and in some cases, unavoidable consequence of a criminal conviction for those who do not have the security of Canadian citizenship, even if they have lived in Canada for almost their entire lives.

There are a number of examples of this, the first one of which is Abdoulkader Abdi. He came to Canada as a refugee as the age of six, spend the rest of his childhood in foster care and, predictably, given his childhood, he entered into criminal behavior, resulting in 2014, at age 20, in convictions for a number of assaults. However, during a statutory release hearing it was determined that his crimes, while concerning, did not constitute serious harm and there were no reasonable grounds to believe he would commit a significant criminal offence while serving the remainder of his sentence in the community. Because he was not a Canadian citizen, in which case only the criminal process would have continued, he was transferred into immigration custody and deportation proceedings were launched against him for committing a serious crime under section 36(1). He is currently before the Federal Court challenging the constitutionality of the decision to refer him to the Immigration Division of the IRB for an admissibility decision.

Another example is the case of Massimo Moretto, who was born in Italy in 1969 and came to Canada with his family at nine months of age; he has lived here his entire life, only returning to Italy once for a visit when he was a child. He obtained his permanent resident status but never became a citizen. He has a crack cocaine addiction, is bipolar and has a history of problems with the law, including, a conviction for break and enter and robbery, resulting after a lengthy immigration process, removal to a country to which he has no connection apart from birth, some 52 years ago. He is now before the Federal Court of Appeal challenging the constitutionality of his deportation by arguing that his deportation interferes with his rights to liberty and security of the person in a manner that is grossly disproportionate and arbitrary. His appeal will be heard alongside that of David Revell, another long-term resident of Canada who was found inadmissible for serious and organized criminality.

Mr. Revell, like Mr. Moretti and Mr. Abdi, grew up in Canada from a young age; he came here from England in 1974 at the age of 10 and all his family and social ties are in Canada. He has no ties or connections in England.  While Moretto is challenging a particular section in IRPA, Revell is going after the deportation scheme as a whole as it applies to long term residents, arguing that the serious consequences for him of deportation, as a long-term resident of Canada, are grossly disproportionate to the objectives of the Act. He also argues that his deportation constitutes cruel and unusual treatment contrary to section 12 of the Charter (see Moretto v. MCI, 2018 FC71; Revell v. MCI, 2017 FC 905). 

These individuals find important support for their position in international law, and specifically another criminal inadmissibility case originating in Canada; that case is (Jama Warsame v. Canada (CCPR/C/102/D/1959/2010, UN Human Rights Committee (HRC), 1 September 2011). He came to Canada in 1988, at the age of four, became a permanent resident and in his early 20s he was convicted of robbery, resulting in a removal order issued for serious criminality. In 2011 the UN Human Rights Committee determined that Canada had violated arts 6, 7, 12(4), 17 and 23(1) of the Covenant on Civil and Political Rights. Of particular relevance is their finding that Canada was violating art. 12(4), the right not to be arbitrarily deprived of the right to enter his own country. As well, the Committee interpreted the notion of “own country” as broader than nationality and said it should include considerations such as long-standing residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere; the Committee determined that Canada was his own country within the meaning of article 12, paragraph 4, of the Covenant.

In conclusion, while litigation, like that being brought by Abdi, Moretto and Revell, is certainly in order to bring Charter protection for non-citizens in line with international law and modern constitutional principles, there also needs to be a policy response, such that no deportation orders can be issued against Permanent Residents who arrived in Canada before the age of 18 and who have not committed a serious crime, as defined by s. 36(1), for the first 10 years since landing.