Date: 20040309
Docket: IMM-4621-02
Citation: 2004 FC 349
Ottawa, Ontario, this 9th day of March 2004
PRESENT: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SHARONE THANARATNAM
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Sharone Thanaratnam is a permanent resident of Canada and a citizen of Sri Lanka. He is 26 years old. There are two grounds on which the Minister bases his efforts to remove Mr. Thanaratnam from Canada. First, the Minister alleges that Mr. Thanaratnam has been convicted of an offence punishable by five or more years of imprisonment (Immigration Act, R.S.C. 1985, c. I-2, s. 27(1)(d); relevant enactments are set out in an Annex). He also alleges that there are reasonable grounds to believe Mr. Thanaratnam is a member of a criminal organization - namely, a Toronto Tamil gang (Immigration Act, R.S.C. 1985, c. I-2, ss. 27(1)(a), 19(1)(c.2)).
[2] A panel of the Immigration and Refugee Board found that the Minister had proved both allegations and that Mr. Thanaratnam should therefore be deported from Canada. Mr. Thanaratnam admits that he has been convicted of offences punishable by five or more years of imprisonment and, therefore, does not contest the Board's finding on that issue. However, he does argue that the Board made a serious error when it concluded that there were reasonable grounds to believe he was a member of a criminal organization. In his application for judicial review, he asks me to overturn that part of the Board's decision and refer the matter back to another panel of the Board.
[3] For the most part, I find that the Board's analysis was proper. However, I have concluded that the Board erred in its finding that Mr. Thanaratnam was a "member" of a gang. Therefore, I will grant this application for judicial review.
[4] The Immigration and Refugee Protection Act, S.C. 2001, c. 27, came into force while this matter was before the Board. For present purposes, there is no material difference between that statute and its predecessor, the Immigration Act. Throughout the remainder of these reasons, I will refer to the new Act, unless the context requires otherwise.
I. Issues
[5] Mr. Thanaratnam raised three issues:
1. Did the Board err when it relied, in part, on evidence other than Mr. Thanaratnam's criminal convictions?
2. Was the Board's definition of "organization" correct?
3. Was the Board wrong to conclude that Mr. Thanaratnam was a "member" of a criminal organization?
II. Analysis
A. Did the Board err when it relied, in part, on evidence other than Mr. Thanaratnam's criminal convictions?
(1) The Evidence
[6] Mr. Thanaratnam argues that the Board should not have relied to any significant degree on evidence of his conduct other than the crimes of which he had actually been convicted. The Board considered various police reports and the testimony of experienced police officers in arriving at its conclusion that Mr. Thanaratnam was a member of a criminal organization. According to these sources of information, Mr. Thanaratnam was believed to have been involved in a number of criminal matters but they either did not proceed to trial or he was acquitted. Further, some reports showed he was a victim of crimes rather than the alleged perpetrator.
[7] The Board is not bound by "any legal or technical rules of evidence". It may rely on any evidence it considers "credible or trustworthy in the circumstances" (Immigration and Refugee Protection Act, ss. 173(c),(d)). Mr. Thanaratnam acknowledges that the Board has a great deal of flexibility in terms of the evidence it may consider. However, he argues that any evidence that amounts to hearsay should be given little or no weight.
[8] The Board's approach was to receive all the evidence it considered credible and trustworthy and then assign it weight proportionate to its relevance and reliability. Accordingly, it considered all the evidence of Mr. Thanaratnam's various contacts with the police since 1985. That evidence reflected the belief of police authorities that he had been involved in several gang-related incidents along with other persons of Sri Lankan origin.
[9] On the whole, the Board found that the documentary evidence and the police officers' testimony were reliable. From that evidence, it concluded that Mr. Thanaratnam was indeed a member of a Tamil gang called the V.V.T.:
I believe the evidence places [Mr. Thanaratnam] on many occasions in the company of persons also alleged to be involved in criminal/gang activities. In my estimation a reasonable person viewing all the evidence put together at this hearing would conclude he was part of this gang activity. In the final analysis of the overall evidence therefore, I am satisfied that the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.
(b) The Board's Role
[10] The Board had to determine whether there were "reasonable grounds to believe" that Mr. Thanaratnam was a member of a criminal organization. (Immigration and Refugee Protection Act, s. 33). That standard, combined with the freedom to consider any "credible and trustworthy evidence", defines the role of the Board in this context.
[11] The words "reasonable grounds to believe" create a relatively low evidentiary threshold. It is a standard commonly used in the criminal law in relation to the issuance of warrants or other forms of legal process. Chief Justice Brian Dickson described it as an objective standard with the following important purpose:
The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at 167-8.)
[12] In other words, "reasonable grounds to believe" is more than mere suspicion. It connotes a degree of probability based on credible evidence. In other jurisprudence, the Supreme Court of Canada has described it as a "reasonable probability"or a "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at 1166. However, it is certainly less than a balance of probabilities, as has been made clear in immigration cases: Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.); Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.).
[13] It is also well-established in the criminal context that the standard of "reasonable grounds to believe" can be met by way of hearsay evidence and other forms of proof that would not normally be admissible at a trial, including evidence about a person's reputation or criminal record: Debot, above; R. v. Collins, [1987] 1. S.C.R. 265, at 279.
[14] However, Mr. Thanaratnam argues that the prevailing case law clearly instructs the Board not to rely on outstanding charges or other information about alleged criminal conduct - it must only consider actual convictions. True, Rouleau J., for example, has held that outstanding, unresolved criminal charges must not be considered by the Board when determining whether a person represents a danger to the Canadian public:
It must be emphasized that unresolved criminal charges are, until proven otherwise, nothing more than mere allegations against an accused. They are not indicative of guilt and obviously therefore, are not indicative of a propensity to re-offend either, until they have been proven beyond a reasonable doubt by the Crown in a court of law. Accordingly, they are inadmissible in the determination of whether an applicant constitutes a danger to the public. (Bakchiev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1881, at para. 12.)
[15] On the other hand, the Federal Court of Appeal held that the Board was entitled to rely on an indictment and a warrant issued in the United States in deciding whether there were reasonable grounds to believe a person had committed a crime outside Canada: Legault v. Canada (Secretary of State), [1997] F.C.J. No. 1272. Justice MacGuigan stated:
As the adjudicator stated, the indictment and the warrant "identify in detail the infractions and provide a detailed description of the procedure followed for the commission of the different infractions". He considered this evidence credible or trustworthy in the circumstances of the case, and in my opinion such a decision is entirely within his discretion. (At para. 10.)
[16] For four reasons, I find the approach in Legault more apt to the circumstances of this case than the analysis in Bakchiev. First, in Bakchiev, the issue was whether the person was actually a danger to the public, not whether there were reasonable grounds for believing that was the case. As explained above, the reasonable grounds standard, in itself, usually permits consideration of a broad range of information.
[17] Second, the question whether a person constitutes a danger to the public, the issue in Bakchiev, was specifically connected to actual convictions under the prevailing statute. The relevant provision of the Immigration Act, s. 53(1), applied to persons who there were reasonable grounds to believe had been convicted of serious criminal offences. It expressly referred to persons described in ss. 19(1)(c), 19(1)(c.1)(i), 27(1)(a.1)(i) and 27(1)(d) of the Act, all of which related to persons convicted of crimes. Accordingly, it was appropriate that a danger opinion be based solely on evidence of convictions, not mere allegations of wrongdoing, because of the clear ambit of the relevant provisions.
[18] Third, it is notable that s. 53(1) of the former Act did not refer to s. 19(1)(c.1)(ii), the provision that was in issue in Legault. The latter provision described a person who there were reasonable grounds to believe had committed a crime. It did not require that the person be convicted. In that context, understandably, the Federal Court of Appeal held that consideration of an outstanding charge and warrant was permissible.
[19] Fourth, the issue here is whether there are grounds for believing Mr. Thanaratnam is a member of a group involved in crime. The question is not whether he was personally responsible for a particular offence. Reasonable grounds for believing that a person is a member of a group dedicated to criminal activity does not require proof beyond a reasonable doubt that his or her involvement in that activity rose to the level of actual commission of offences or even culpable participation in them as a party. In other words, the fact that a person has been charged with a crime may be relevant to the issue of membership, even where there is an absence of proof that would satisfy the criminal standard of liability.
[20] It is possible, therefore, to reconcile the cases relied on by the applicant and the respondent: In situations where the law does not specifically require proof of a conviction, the Board may consider other credible and trustworthy evidence of involvement in criminal activities, especially where the standard of "reasonable grounds to believe" applies.
[21] Still, there is an important balance to be struck. On the one hand, Parliament has established a fairly low evidentiary threshold in this area and has given the decision-maker a good deal of freedom to receive any evidence it considers reliable, whether or not it would normally be admissible in a court. Clearly, Parliament wanted the Board to have a maximum amount of flexibility. Further, it did not want to impose a burdensome evidentiary threshold on the Minister. Yet, the other side of this equation must be emphasized. The reasonable grounds standard operates as a protection against arbitrary, capricious or ill-founded state action. As Dickson C.J. points out, it is this standard that must be satisfied before the state can interfere with an individual's right to be left alone. It is an important and meaningful threshold. It requires an objective assessment and can be satisfied only where it is supported by credible evidence.
[22] Here, the Board found the evidence, both oral and documentary, relating to Mr. Thanaratnam's various interactions with the police to be credible. It also considered Mr. Thanaratnam's five actual criminal convictions. In my view, it was entitled to consider the various forms of evidence before it and assign it a weight corresponding to its reliability. However, as will be seen below, I find that the Board's ultimate conclusion that Mr. Thanaratnam was a member of a criminal organization is unsupported by that evidence.
B. Was the Board's definition of "organization" correct?
[23] The Board found that the Tamil gangs with which Mr. Thanaratnam was allegedly associated were "organizations" within the meaning of that term in s. 37(1)(a) of the Immigration and Refugee Protection Act. The Board stated:
a) The groups or "gangs" known as V.V.T. and A.K. Kannan are organizations that exist, and that operate primarily in the Toronto area.
b) There are reasonable grounds to believe that these two groups are engaged in criminal activity including assaults, drug offences, kidnappings, weapons offences etc. This activity is contrary to either the Criminal Code or the Controlled Drugs and Substances Act.
c) The criminal activity is planned and organized by a number of persons acting in concert - planned in particular by the group leaders primarily and put into effect by the members.
[24] The Board concluded that there were reasonable grounds for believing that two Toronto Tamil gangs called the V.V.T. and A.K. Kannan are organizations "engaged in criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of offences under an Act of Parliament".
[25] As mentioned, the Board's conclusion on this issue derived, in part, from the oral testimony of Toronto police officers who described their working definition of a "gang" and their knowledge of the activities of certain Tamil groups in Toronto. Detective Constable Fernandes, an expert on Tamil gangs, said that a gang was a group of people who "work together towards a criminal and antisocial behaviour, primarily to a defined area where they create intimidation and fear in that community".
[26] The officers described A.K. Kannan and V.V.T. as having a "loose hierarchical organizational structure". There were no specific job titles within the groups, but "there are leaders and followers". The groups had subsidiary subgroups and offshoots made up mainly of younger persons. The younger groups acted on their own and committed less serious crimes, but still took some direction from the core leadership especially in respect of more serious matters. Detective Constable Fernandes described several serious crimes which he believed to be the product of Tamil gang activity.
[27] According to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, a person is inadmissible to Canada if he or she is a member of an organization believed on reasonable grounds to be involved in a pattern of criminal activity planned and organized by a number of persons acting in concert. Clearly, there was evidence before the Board indicating that the two Tamil groups were involved in various criminal activities and that those activities were carried out by a number of persons together as directed by the groups' leaders. The question that remains is whether those groups could be described as "organizations".
[28] The Board did not analyze this issue in any detail. But it did take into account evidence that the Tamil groups had a form of leadership, had loose structural arrangements, subgroups and affiliations, and had distinct identities. As such, there were features of the two Tamil groups that supported the Board's conclusion that they met the definition of an organization.
[29] No guidance is given in the Immigration Act or the Immigration and Refugee Protection Act as to what an "organization" is. By contrast, the Criminal Code, R.S.C. 1985, c. 46, s. 467.1(1) defines a "criminal organization" in some detail. It states that a criminal organization is a group, "however organized", that is made up of three or more persons and "has as one of its main purposes or activities" the commission of serious criminal offences that would likely yield some kind of benefit to the members of the group. Specifically, a criminal organization under the Code does not include "a group of persons that forms randomly for the immediate commission of a single offence".
[30] The Criminal Code's definition does not apply directly to the immigration setting. However, I believe it is noteworthy that the Code does not require any particular formalities or decision-making arrangements. Presumably, to meet the definition, a group must have some form of organizational structure. The words "however organized" suggest that it must be organized in some fashion, but there are no minimum or mandatory attributes that the group must have.
[31] Here, the two Tamil groups described by the police had some characteristics of an organization - identity, leadership, a loose hierarchy and a basic organizational structure - and I can therefore find no error in the Board's conclusion that they fell within the terms of s. 37(1)(a) of the Immigration and Refugee Protection Act.
C. Did the Board err on the issue of Mr. Thanaratnam's membership in a criminal organization?
[32] The Board devoted much of its decision to the issue whether there were reasonable grounds to believe Mr. Thanaratnam was a member of an organization involved in criminal activities. Here again, it relied on the evidence of experienced police officers. It also considered the criteria used by the police to decide whether a person was involved in activities that could be characterized as gang-related. To repeat, in respect of Mr. Thanaratnam, the Board concluded:
I believe the evidence places him on many occasions in the company of persons also alleged to be involved in criminal/gang activities. In my estimation a reasonable person viewing all the evidence put together at this hearing would conclude he was part of this gang activity. In the final analysis of the overall evidence therefore, I am satisfied that the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.
[33] Mr. Thanaratnam argues that the Board erred in arriving at this finding. In particular, he suggests that the Board's conclusion was the product of speculation and stereotyping. He claims there was no evidence that he was personally involved in planning any gang activity or took orders from the gang leadership. Rather, he says, the Board simply assumed that his association with other persons with the same background combined with spontaneous criminal acts amounted to proof of membership in a gang.
[34] The Board referred to the following evidence:
· Mr. Thanaratnam was a suspect in respect of numerous criminal acts;
· On those occasions, he was usually in the company of other persons of Sri Lankan origin;
· Numerous charges against him were withdrawn or not proved;
· Mr. Thanaratnam was seen in a group of arguing V.V.T. and A.K. Kannan members;
· He was the victim of beatings or shootings on four occasions, always in the company of other persons; the attackers were usually of Sri Lankan origin;
· Three of the attacks on him involved attempts on his life. In one of them, a companion was killed.
· After he was assaulted by members of a gang, Mr. Thanaratnam was arrested as a suspect in an attempted murder, believed by police to be retaliatory. He admitted lying to police about the original assault. Charges against him were withdrawn after forensic tests showed that his car had not been involved in the attempted murder.
· Mr. Thanaratnam had five criminal convictions: failure to comply with a recognizance, mischief, impaired driving, uttering threats, and assault causing bodily harm. On the assault charge, Mr. Thanaratnam was sentenced to five months' imprisonment.
[35] In addition, the Board did not find Mr. Thanaratnam's testimony credible. He told the Board that he was unfamiliar with Tamil gangs and did not knowingly associate with their members.
[36] Based on this evidence, the Board found that there were reasonable grounds to believe that Mr. Thanaratnam was a gang member and, therefore, a member of an organization devoted to criminal activities. I can only intervene if this finding is patently unreasonable, in the sense that it is at odds with the evidence before the Board.
[37] As the Board put it, Mr. Thanaratnam was certainly "in the middle of things". But what was the evidence showing actual membership in a gang?
[38] The Board heard evidence to the effect that Mr. Thanaratnam was linked to gang-related activity. But this is not, as the police witnesses themselves readily acknowledged before the Board, sufficient evidence from which to draw an inference that a person is a gang member. According to criteria used by police, other factors must be taken into account before one can draw an inference that a person may be a gang member. The Board set out those criteria in its reasons:
· involvement directly or indirectly in a gang-related crime or incident;
· acknowledges gang membership or gang association;
· identified as a gang member or gang associate by physical evidence;
· identified as a gang member or gang associate by reliable source information;
· police information provided or received as the result of directly observed association with other known gang members or gang associates;
· common or symbolic gang identifier(s) or paraphernalia;
· previous court findings including, but not limited to sworn testimonials that the person is a gang member or gang associate.
[39] Police would consider a person to be a gang member only if the first of these criteria was met, along with at least two others. The Board rightly noted that it was not bound by these criteria. At the same time, however, the Board relied heavily on the testimony and documentary evidence tendered by police witnesses to conclude that there were reasonable grounds for believing Mr. Thanaratnam was a gang member. Yet, as I read the evidence, the criteria used by the police themselves did not appear to be met. As mentioned, there was some evidence that Mr. Thanaratnam was involved in gang-related events and that he was occasionally seen associating with gang members. However, I cannot find in the evidence anything that would satisfy any of the other police criteria for determining gang membership or, indeed, would otherwise indicate that Mr. Thanaratnam actually belonged to a gang.
[40] One of the police witnesses, Detective Constable Smith, testified that he thought a third criterion was satisfied in Mr. Thanaratnam's case; namely, "previous court findings including, but not limited to sworn testimonials that the person is a gang member or gang associate". He believed that Mr. Thanaratnam's criminal record provided that evidence. However, there is nothing on the face of Mr. Thanaratnam's criminal record that would indicate that there had been court findings or even testimony to the effect that Mr. Thanaratnam was a member of a gang. Indeed, Detective Constable Smith himself did not go that far in his testimony before the Board. He was only able to say, based on the entire package of police information on Mr. Thanaratnam, that "all incidents, criminal convictions, arrests, associations, it's all part of a belief that a person is entrenched completely within a sub-culture . . . and take part in criminality. That, I believe, is supported in this package and taking it all into consideration that finding I think is obvious". He did not say that the evidence he had compiled, much of it hearsay in any case, would sustain an inference that Mr. Thanaratnam was a member of a gang.
[41] Accordingly, in my view, the Board's conclusion on this issue was out of keeping with the evidence before it. I see no basis for its finding that there were reasonable grounds to believe that Mr. Thanaratnam was a member of an organization devoted to criminal activities in the sense that he actually "belonged" to such a group: Chiau, above.
III. Conclusion
[42] The Board proceeded properly by hearing and relying on evidence it found credible and trustworthy. Its finding that the gang Mr. Thanaratnam was alleged to be part of was an "organization" for purposes of s. 37(1)(a) of the Immigration and Refugee Protection Act was consistent with the evidence before it. However, the Board's conclusion that Mr. Thanaratnam was a member of a gang was not supported by the evidence. Therefore, this application for judicial review is allowed and the matter is referred back to the Board for redetermination by a different panel. Since the only matter that is in doubt is whether Mr. Thanaratnam is a member of a criminal organization, the new hearing should be confined to that issue.
[43] Counsel requested an opportunity to propose questions of general importance for certification. Any such submissions shall be served and filed within ten (10) business days of this judgment.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed. The issue whether Mr. Thanaratnam is a member of a criminal organization is referred back to the Board for redetermination by a different panel;
2. Request by counsel for an opportunity to propose a question of general importance for certification is granted. Submissions should be filed within ten (10) business days following this judgment.
"James W. O'Reilly"
J.F.C.
Annex
| Immigration Act, R.S.C. 1985, c. I-2
Inadmissible persons 19. (1) No person shall be granted admission who is a member of any of the following classes: ... (c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;
(c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was 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 any offence under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
Reports on permanent residents
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);
(a.1) outside Canada,
(i) has been convicted of an offence that, if committed in Canada, constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed;
Prohibited removal
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1) (c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada;
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger; or
(c) the person is a person described in subparagraph 27(1) (a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. to the security of Canada.
Immigration and Refugee Protection Act, S.C. 2001, c. 27
INADMISSIBILITY
Rules of interpretation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Organized criminality 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern;
Proceedings 173. The Immigration Division, in any proceeding before it, ... (c) is not bound by any legal or technical rules of evidence; and (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. |
|
Loi sur l'Immigration,L.R.C. 1985, ch. I-2
Personnes non admissibles 19. (1) Les personnes suivantes appartiennent à une catégorie non admissible: [...] c) celles qui ont été déclarées coupables, au Canada, d'une infraction qui peut être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans;
c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger:
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction,
(ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait;
c.2) celles dont il y a des motifs raisonnables de croire qu'elles sont ou ont été membres 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 au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l'étranger un fait - acte ou omission - qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national; Rapports défavorables: résidentspermanents
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:
a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c.2), d), e), f), g), k) ou l);
a.1) est une personne qui a, à l'étranger:
(i) soit été déclarée coupable d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si la personne peut justifier auprès du ministre de sa réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine lui ayant été infligée pour l'infraction,
d) a été déclaré coupable d'une infraction prévue par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions :
Renvoi de réfugiés au sens de laConvention
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas:
a) elle appartient à l'une des catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1) c.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada; c) elle relève du cas visé au sous-alinéa 27(1)a.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada.
Loi sur l'immigration et la protection des réfugiés, S.C. 2001, ch. 27
INTERDICTIONS DE TERRITOIRE
Interprétation 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
Activités de criminalité organisée 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants_:
a) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d'une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d'un tel plan;
Fonctionnement 173. Dans toute affaire dont elle est saisie, la Section de l'immigration_: ... c) n'est pas liée par les règles légales ou techniques de présentation de la preuve; d) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4621-02
STYLE OF CAUSE: SHARONE THANARATNAM v.THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 3, 2003
REASONS FOR JUDGMENT
OR JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES BY:
Barbara Jackman FOR THE APPLICANT
Greg George FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARBARA JACKMAN
Toronto, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030903
Docket: IMM-4621-02
BETWEEN:
SHARONE THANARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER