PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, Mr. Thanabalasingham, has appeared before this Court on numerous occasions. In this matter, he seeks judicial review of the decision of the Immigration Appeals Division (“the IAD”) rejecting his request for a stay for the removal order issued against him in 2002.
[2] In the reasons that follow, the Court finds that the IAD’s decision does not contain any reviewable errors that would justify setting it aside.
PROCEDURAL HISTORY AND BACKGROUND
[3] The applicant arrived in Canada in 1991 and was granted refugee status as a young Tamil from the north of Sri Lanka. He acquired permanent resident status in August of 1992. He now has a wife and young child.[1] He held jobs in the high tech sector after completing a degree in engineering at the University of Ottawa.
[4] The applicant has three criminal convictions for: i) a weapons offence; ii) failure to comply with a recognizance order; iii) conspiracy to commit assault. He served prison time in 1998 as a result of this last conviction. He was also held in detention from 2001 to 2004 as a result of a Toronto police initiative to crack down on Tamil gangs operating in that city. This initiative targeted, in particular, two rival gangs known as “A.K. Kannan” (“the AKK”) and “the VVT”. These gangs are described as having provided support and allegiances to younger groups of Tamils who formed what amounted to junior gangs such as the “Gilder Boys”, a group affiliated to the VVT. In the appeal, the respondent alleged that the applicant is a VVT member who played a leadership role in that gang and that he also supported members of the Gilder Boys.
[5] Prior to the hearing in this matter, Justice Robert L. Barnes issued an order dated March 24, 2006, in which he dismissed Mr. Thanabalasingham’s application to stay his removal to Sri Lanka up until such time as this application for judicial review was resolved.
[6] In the reasons which followed his order (Thanabalasingham v. Canada (Minister of Public Safety and Emergency Preparedness) 2006 FC 486, [2006] F.C.J. No. 610), Justice Barnes
provides a comprehensive description of the earlier proceedings involving the applicant that took place before this Court and before the Federal Court of Appeal. He writes:
4. I do not intend to belabour the background facts because that history is well documented in earlier decisions of this Court and in the Federal Court of Appeal in the following matters: Canada v. Thanabalasingham, [2002] F.C.J. No. 1619, 2002 FCT 1196 (where Justice John O'Keefe stayed an Order releasing the Applicant from immigration detention); in Canada v. Thanabalasingham, [2003] 4 F.C. 491, [2003] F.C.J. No. 503, 2003 FCT 354 (where Justice James Russell stayed an Order releasing the Applicant from immigration detention); in Canada v. Thanabalasingham, [2004] 3 F.C.R. 523, [2003] F.C.J. No. 1548, 2003 FC 1225 (where Justice Johanne Gauthier dismissed the Crown's judicial review application concerning his release from immigration detention); Canada v. Thanabalasingham, [2004] 3 F.C.R. 572, [2004] F.C.J. No. 15, 2004 FCA 4 (F.C.A.) (where the Federal Court of Appeal upheld the decision of Justice Gauthier); Thanabalasingham v. Canada, [2005] F.C.J. No. 185, 2005 FC 172 (where Justice J. François Lemieux set aside the Minister's danger assessment); and, finally, in Canada v. Thanabalasingham, [2006] F.C.J. No. 20, 2006 FCA 14 (F.C.A.) (where the Federal Court of Appeal set aside Justice Lemieux's decision on the grounds that the Applicant had an alternate remedy in the form of an appeal to the Immigration Appeal Division (IAD)).
[7] The applicant was deported from Canada on March 27, 2006, three days after Justice Barnes’ order.
OVERVIEW OF THE IAD DECISION
[8] The proceedings before the IAD were conducted pursuant to the provisions of the Immigration Act R.S.C. 1985, c. I‑2 (“the old Act”), particularly under paragraph 70(1)(b) of that statute. As the notice of appeal was filed before the coming into force of the Immigration and Refugee Protection Act S.C. 2001, c. 27(IRPA), his right of appeal to the IAD was not affected by the new legislation.
[9] Paragraph 70(1)(b) of the old Act specified the grounds on which an applicant could appeal. It provided the IAD with discretion to grant an appeal: “on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.”
[10] As mentioned, at issue before the IAD was whether the removal order issued after the applicant had been made the subject of a report under paragraph 27(1)(d) of the old Act, should be stayed. That paragraph applied to a person who “has been convicted of an offence under any Act of Parliament for which a term of imprisonment of more than six months has been imposed, or five years or more may be imposed”.
[11] The evidence before the IAD was voluminous especially because it included all the evidence filed at the numerous detention reviews held between 2001 and 2004. The hearing itself took more than a year and required a total of nine sittings. The IAD had to deal with a preliminary application in respect of evidence the respondent sought to adduce and to which the applicant objected. (Thanabalasingham v. Canada (MCI) [2003] I.A.D.D. No.603 (QL)). This comprised hearsay evidence including the so called KGB statements[2] made by four gang members as well as the more general issue of whether the IAD could consider evidence relating to the applicant’s alleged gang activities given that the respondent had already opted not to issue a section 27 report based on membership in a criminal gang.
[12] In a well reasoned decision, the IAD explained how and why it can consider hearsay evidence or any other type of evidence that cannot be tested by cross examination. At paragraph 32 of its 2003 decision, the IAD summarizes the principles governing the admissibility of evidence in the appeal as they arose from the old Act (paragraph 69.4 (3) (c)) and the case law as follows:
(1) The IAD is not bound by legal or technical rules of evidence and may receive and base a decision on evidence that it considers credible or trustworthy in the circumstances:
(a) The IAD cannot refuse to admit credible evidence simply because it is hearsay, not sworn, not given orally or not subject to cross-examination;
(b) The admissibility of evidence is not to be confused with the weight to be given to the evidence after it has been tested;
(c) The credibility or trustworthiness of the evidence and the inferences to be drawn from are all questions of fact within the IAD's jurisdiction to determine;
(d) Although the IAD is not bound by legal rules of evidence it may employ a legal rule of evidence if it assists in determining whether a document or other evidence is credible or trustworthy.
(2) Evidence that is not relevant to an issue to be decided by the IAD is inadmissible.
(3) Caution must be exercised in rejecting evidence as irrelevant. When in doubt take the objection under advisement and decide later.
(4) All relevant evidence is admissible, unless there are good reasons to exclude particular evidence, including but not limited to:
(a) where it is proffered for an impermissible purpose, such as to establish guilt in relation to outstanding or dismissed charges in order to augment the criminal record of the appellant, and
(b) where its probative value is outweighed by its prejudicial effect.
(5) The admissibility of evidence that refers to or suggests criminal wrongdoing depends on the circumstances of the case, particularly the purpose for which the evidence is tendered;
(a) it is not admissible for the purpose of augmenting the appellant's criminal record:
(b) it must relate to an important, as opposed to a peripheral issue.
(c) Its prejudicial effect must not outweigh its probative value.
[13] It then concludes that the evidence put forward by the respondent is admissible and may be relied upon to substantiate the allegation of gang membership and activities; however, it notes that such facts would only be relevant to the assessment of i) the seriousness of the offence leading to the removal order (it places the applicant’s criminal history in context) ii) the possibility of rehabilitation. It was also said to have “implications for the maintenance of the safety and good order of Canadian society, an objective under the former Act”. (para. 36 of Thanabalasingham 2003 cited above at 11).
[14] The IAD also noted that Constable Furlong would be available to testify and be cross-examined generally in relation to the KGB statements and the police investigation. It then concluded that “although the KGB statements have apparent frailties”, it could not “conclude that their prejudicial effect outweighs their probative value. They may be corroborated by other evidence. The KGB statement and other investigative materials will be accorded the weight they deserve after the panel hearing the merits of the appeal hears all the evidence and submissions of the parties” (para. 38 of the Thanabalasingham 2003 cited above at 11).
[15] In its 35 page decision, the IAD focuses on a prescribed series of factors referred to as the “Ribic factors” (discussed further below). After an overview of the applicant’s background, the bulk of the IAD’s decision is given to weighing those factors. In the course of these deliberations, the IAD made numerous factual findings relating to a variety of issues such as: the applicant’s credibility; the nature of his association with various gang members as well as his role per se in the VVT; whether he stopped associating with gang members after his last conviction in 1997; whether the criminal offences for which he was convicted were gang related.
[16] It is important to note that the applicant committed perjury on numerous occasions prior to the hearing before the IAD. Particularly, in respect of his knowledge of Tamil gang activities and the circumstances of his offences, he admitted lying because he thought that the person presiding over his first detention review was biased in favor of the Crown. He also said he lied at later detention reviews in order to increase his chances of gaining release.
[17] In respect of his testimony during the appeal, the IAD found that the applicant was generally not credible when he testified as to the extent of his association with the members of the VVT and the Gilder Boys. It states that: “While the appellant was more forthcoming about his gang ties in this appeal, he was not completely truthful”.
[18] According to the IAD, Mr. Thanabalasingham continued to minimize his ties and his own activities with the gangs, including the extent of his relationship with admitted gang members who
provided KGB statements to the police. Furthermore, his testimony about his own activities was found to be evasive and, when asked to clarify certain matters, he often claimed that he did not remember. This was found particularly significant when the matter in question related to incidents that could not have been easily forgotten.
[19] Although the IAD concluded that the applicant was a member of the VVT gang and one of its leaders, it noted that, “even stripped of the gang connections, the weapon-related offences are serious not simply because they involved weapons, but also because of the manner in which they were used or planned to be used”. Among other things, the applicant admitted having struck an unarmed victim with a machete after the said victim and one of the applicant’s friends pushed each other. The IAD found that this was an act of gratuitous violence.
[20] The IAD also found that the applicant had not established that he had abandoned his gang ties after 1997 and prior to his arrest. This was based on a number of factual findings: that he invited several gang members to his wedding; that he visited a gang leader in jail as late as 2001 (allegedly for purely humanitarian reasons such as to provide the said leader with canteen money) as well as four other gang members; he attended court proceedings involving gang members and met with their lawyers; he was observed meeting with gang members. Finally, he was identified by various police informants after 1997 as being involved in running guns for the gang.
[21] With respect to the possibility of rehabilitation, the IAD noted that the applicant had already tried to take a clever approach to circumventing a five year prohibition against the use and possession of firearms imposed after his first weapons conviction. Also, he had failed to completely disassociate from the gangs when he had an opportunity to do so in 1997. Furthermore, “his lack of candour with the appeal panel does not augur well with his rehabilitation.” It was also noted that from 1997 until 2001 when he was detained by immigration authorities, the applicant had ignored his family’s advice to avoid gang activities and that in previous proceedings, his family had been prepared to do his bidding by denying his gang ties and activities.
[22] In respect of the applicant’s behavior after his release from immigration detention, the IAD found that although there was little evidence about any gang activity on his part, his insincere approach to judicial conditions and his earlier reluctance to break gang ties made it too early to conclude that the appellant had mended his ways. It also noted that given his effort to harm leaders of the AKK, he remained at risk from the AKK and needed protection through self defense, his gang connections or the police. The IAD found that the appellant had not produced any viable plan as to how he would deal with likely reprisal from the rival gang or how he would avoid further being engaged in gang affairs.
[23] The panel then discussed the other Ribic factors including a detailed review of the potential foreign hardship the applicant may face in Sri Lanka.
[24] In deciding that a stay should not be granted, the IAD concluded its decision as follows:
In conclusion, the appellant has not established that in all the circumstances of the case he should not be removed from Canada. The panel gave considerable weight to the seriousness of the offences, the context in which they occurred, the likelihood that the applicant would re-offend, and the need to protect Canadian society. While the panel weighted the length of the appellant’s residence in Canada and his ties to his family in Canada, as well as the best interests of his child in the appellant’s favour, these positive factors are clearly outweighed by the negative factors in this case. In light of the negative conclusions, particularly the need to protect Canadian society and the appellant’s circumvention of a firearm prohibition in the past, this is not an appropriate case for a stay of the execution of the removal order.
ISSUES
[25] Based on the submissions (written and oral) the primary issues in this case can be summarized as follows:
i.) Was the decision of the IAD perverse insofar as it made selective credibility findings about the applicant, especially in regard to defining “close friendship”?
ii.) Did the IAD err in its assessment of the evidence, either by relying on unreliable police evidence or by making conclusions about the applicant’s gang association and activities that amounted to speculation and conjecture?
iii.) Did the IAD rely on its allegedly faulty conclusions to diminish the applicant’s prospects for rehabilitation while also failing to give adequate consideration to positive factors related to the applicant?
iv.) Did the IAD fail to properly assess the risk to the applicant in Sri Lanka and, in particular, did it fail to take account of his expert evidence?
v.) Did the IAD breach procedural fairness by failing to provide cogent reasons as to its findings regarding the applicant’s credibility, the weight given to the “KGB statements” and other hearsay evidence and the alleged risk of re-offending?
THE STANDARD OF REVIEW
[26] While the Court acknowledges that the jurisprudence has typically applied a standard of patent unreasonableness when assessing the discretionary decisions of the IAD to grant a stay, it must take account of the recent Federal Court of Appeal decision, Khosa v. Canada, (2007 FCA 24, [2007] F.C.J. No. 139).
[27] In that ruling, a majority of that Court found that the appropriate standard to apply when the Ribic factors are considered is reasonableness. The reasoning followed by the Court of Appeal is very much in line with the one proposed by the applicant at the hearing.
[28] The respondent relies on the dissent of Justice Alice Desjardins. It takes the position that the decision of the majority was wrongly decided and is the subject of an application for leave to the Supreme Court. Be it as it may, the Court is bound by it. In any event, this issue will not be determinative of the present case given my ultimate findings. For now, it is enough to state that the Court agrees with the applicant that it is appropriate to apply the standard of reasonableness. This standard does appear to be the appropriate one given that the issues and considerations at stake in such decisions are analogous to those described in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[29] As explained in Law Society of New Brunswick v. Ryan [2003] 1 SCR 247, the reasonableness standard requires that:
55. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
56. This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[Emphasis added]
[30] However as acknowledged by the applicant at the hearing, the Court must give the customary high level of deference to the factual findings[3] of the IAD which include credibility findings (Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732, (1993) 160 N.R. 315 (F.C.A.), Mugesera v. Canada (Minister of Citizenship and Immigration, [2005] 2 S.C.R 100 at para. 38). More specifically, the Court will not interfere with such findings of fact unless they are patently unreasonable.
[31] Finally, the issue of sufficiency of reasons is one of procedural fairness for which there is no need to proceed to a pragmatic and functional analysis. It is well established that this Court will review issues of procedural fairness on a standard of correctness and will intervene if a breach has occurred: Canada (AG) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 (QL); Sketchley 2005 FCA 404, [2005] F.C.J. No. 2056 (QL).
LEGAL PRINCIPLES
[32] The specific factors the IAD was to consider are well established and recognized by both parties. These so-called “Ribic factors”[4] grew out of the IAD’s own practice and experience and came to be affirmed by the Supreme Court in Chieu v. Canada (MCI), 2002 SCC 3, [2002] 1 S.C.R. 84. At section 40 of Chieu, Justice Iacobucci wrote:
... In Ribic, supra, at pp. 4-5, the IAD summarized the relevant factors to be considered under its discretionary jurisdiction pursuant to what is now s. 70(1)(b) of the Act:
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the
appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.
[Emphasis in original]
This list is illustrative, and not exhaustive. The weight to be accorded to any particular factor will vary according to the particular circumstances of a case.
[33] In the appeal, the onus is on the applicant to establish that “having regard to all the circumstances” he should not be removed from Canada. This was made plain by the Supreme Court in Chieu (above) at para. 56:
Before turning to the Minister’s arguments with respect to s. 114(2), I wish to add some brief comments regarding the correct procedure to be followed during a s. 70(1)(b) appeal. First, the onus is on a permanent resident facing removal to establish the likely country of removal, on a balance of probabilities. (per Iacobucci J.)
[34] As the assessment of evidence is a central point of dispute in this case, it is also important to confirm that, as mentioned in Thanabalasingham 2003, the IAD is not bound by formal or technical rules. This is so under IRPA (section 175) and was the case under the old Act. In that respect paragraph 69.4(3)(c):
|
69.4 (3) The Appeal Division has, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record and, without limiting the
generality of the foregoing, may
(c) during a hearing, receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject-matter before it. |
69.4 (3) La section d'appel a, pour la comparution, la prestation de serment et l'interrogatoire des témoins, ainsi que pour la production et l'examen des pièces, l'exécution de ses ordonnances et toute autre question relevant de sa compétence, les attributions d'une cour supérieure d'archives. Elle peut notamment:
c) recevoir, en cours d'audition, les éléments de preuve supplémentaires qu'elle estime utiles, crédibles et dignes de foi. |
[35] As will be discussed later on, these provisions have been consistently applied by the Federal Courts to permit the consideration of evidence that would clearly not be admissible in criminal cases such as those cited and relied upon by the applicant.
ANALYSIS
[36] The applicant says that the IAD was perverse in its treatment of his testimony. Particularly, he submits that the IAD mischaracterized his evidence in respect of his relationship with various members of the VVT and the Gilder Boys. Furthermore, it went on to rely selectively on his evidence to support its own finding in respect of gang membership. For Mr. Thanabalasingham, it is patently unfair for the IAD to have said that he minimized his relationship with gang members while at the same time accepting all his evidence about the nature of his relationship with gang leaders such as Rasa and Suresh and about gang structure.
[37] The Court agrees with the applicant that the findings in respect of his lack of credibility are crucial to the overall decision. Thus, the Court reviewed carefully the transcripts.
[38] Also, as the applicant argues that the IAD did not provide sufficient or cogent reasons
for its finding, it is important to consider the applicant’s attack on this finding in the light of the various issues raised by the IAD in respect of his credibility.
[39] As noted, the IAD relies on :
i.) his past perjuries in respect of related issues (circumstances surrounding his offences and his personal knowledge of Tamil gangs )
ii.) the fact that his testimony was evasive . In that respect the IAD gives some examples (wiretap conversation about the “car” and his use of machete etc.).
iii.) the fact that his theory of part time socialization is not in line with the wiretap conversations in which he asked Rasa for a gun for the Gilder Boys and Rasa contemplated having him participate in a possible exchange involving $10,000.00 in return for evidence that the gang wanted to suppress.
iv.) the fact that he minimized his ties or relationship with members of the VVT and Gilder Boys other then Rasa and Suresh.
[40] In respect of point iv) above, the IAD notes that the applicant’s characterization of his relationship with people such as Vimal Mohanarajah is inconsistent because on the one hand he said that he simply hung out with him and other members of the VVT and the Gilder Boys but they were not really his friends, while later on he referred to Vimal as “my friend”. The IAD concluded that: “regardless of how the applicant wished to characterize his relationship with these individuals, the evidence was clear that they were close friends; they socialized and spent considerable time together.”
[41] The respondent says that there is ample evidence that the applicant indeed spent a considerable amount of his free time with gang members (in addition to time spent with its leaders) and that the sentence quoted above should be read in context to simply mean that the relationship was closer than acknowledged. The applicant does not dispute the amount of time
spent but he says that friendship is a subjective concept. He cannot be faulted for not considering these people his friends.
[42] It appears from the applicant’s testimony that the main difference between these people and his acknowledged friends was that they smoked and drank whereas Rasa, Suresh and himself did not. He also did not go to movies with them.
[43] It is evident that the strength of one’s friendship is somewhat subjective but the Court does not find it useful to get into the debate on semantics proposed by the applicant. The fact remains that there was an objective basis for the IAD’s finding . There was contradictory evidence in respect of Vimal (with whom he spent more time than with an acknowledged close friend) and the objective facts otherwise established did suggest a relationship stronger than the one acknowledged . In the circumstances and considering the nature of the explanations given by the applicant and the others issues already affecting his credibility, it was not unreasonable, let alone patently unreasonable, for the IAD to find that he was still minimizing his ties with gang members.
[44] The Court notes that, apart from the argument that it was perverse for the IAD to discuss in the same breath the issue of friendship and the part time socialization thesis put forward by the applicant, there were no real attacks on the other three elements described above (in paragraph 42). Thus, it is not unreasonable to conclude that were was a lack of credibility on the part of the applicant in respect of his association with the gang activities.
[45] At the hearing, the applicant’s counsel mentioned that there was absolutely no evidence in the wiretap investigation that contradicts the appellant’s part-time socialization thesis. The Court disagrees. As noted by the IAD, it is not so much the part time versus full time issue[5] that is contradicted in the conversations intercepted but more the nature of the association. Contrary to what the applicant had proposed, i.e. socialization (members were neighbors, same school, friendship with Rasa to gain respect in the community and be feared) these conversations clearly show participation in at least one gang related criminal activity for which he was indeed convicted.
[46] The applicant offered no support for his implied premise that credibility findings before the IAD are an all or nothing proposition. There is no reason why the IAD could not rely on admissions made by the Applicant and details given by him in respect of the gang structure . There is nothing perverse about it.
[47] Overall, the Court is also satisfied that the IAD gave sufficient reasons for its finding that Mr. Thanabalasingham’s testimony was not generally credible in respect of his ties and activities with the VVT. The Court had no difficulty understanding the reasoning process followed and the extensive representations of the applicant show that he did as well notwithstanding that he did not agree with it. Thus, the IAD’s reasons are not analogous to the flawed reasons discussed by the Court of Appeal in VIA Rail Canada v. National Transportation Agency [2001] 2 F.C. 25, [2000] F.C.J. No. 1685.
b) Police evidence
[48] The applicant also contests the findings of the IAD in respect of or based on the “police evidence” adduced by the respondent. This evidence includes among other things, surveillance notes, an unsigned copy of the affidavit of a police officer, police reports containing opinions based on information received from police informants, community sources as well as what is referred to as the KGB statements.
[49] Particularly, the applicant says that this evidence constitutes hearsay and often double hearsay. It is patently unreliable and the IAD erred in considering it given that he did not have an opportunity to cross-examine anybody except Constable Furlong.
[50] That witness although found to be credible, clearly based his own conclusion that Mr. Thanabalasingham was a member of the VVT and played a leadership role in that gang after 1997 not only on information he actually received from community sources including gang members but also on hearsay information contained in the affidavit of Detective Constable Malcolm filed in support of the application for a judicial warrant for the wiretap investigation of the gang activities in 1997 (it is in this respect that the IAD allegedly relied on double hearsay to make its findings). Moreover, the copy of the affidavit before the IAD not signed, and that affiant was never made available for cross examination either during the detention reviews or during the appeal. Constable Furlong also based himself on information received from informants by another policeman D.C. Clark who was also not presented for cross examination (this, once again, allegedly constitutes double hearsay).
[51] In the applicant’s view, the IAD purely speculated when it concluded that he was involved in the distribution and storage of guns. Finally, not only was the IAD wrong in considering and relying on police evidence but it failed to properly address his arguments in that respect in its decision.
[52] At the hearing the applicant focused his attack on the findings in paragraph 48 of the decision. There, the IAD notes that despite the frailties of the evidence from police informants, the panel was of the view that in this case the information was generally reliable because i) a number of different informants were involved ii) Constable Furlong, a credible witness, testified that he checked out the reliability of his informants to ensure the reliability of the information provided. Finally, the information received before the wiretap investigation (information in Detective Malcolm’s affidavit), during (seeking a gun for the Gilder Boys) and after ( in 1999) was generally consistent and pointed in the same direction : the applicant’s involvement in the distribution of guns.
[53] In considering the sufficiency of the reasons, the Court must obviously consider the reasons of the IAD in its 2003 decision in respect of the interim motion of the applicant and which deals specifically with the applicant’s argument in respect of the admissibility of this evidence and its right to cross examination.
[54] Also, as noted, in that decision (at para’s 30, 36 and 38), the panel made it clear that, consistent with the long established practice of the IAD of considering the potential involvement of an appellant in gang activities when assessing the seriousness of the offences, the chances of rehabilitation and the general need to protect the Canadian public, this evidence would only be admitted for such purposes. This means, for example, was the conspiracy to produce a firearm (an offence for which the applicant had actually been convicted) gang related or not or, as later argued by applicant, is his criminal record simply the result of “spontaneous and reactive wrong doing?”
[55] The applicant never attacked the IAD’s reasoning and the conclusion reached in that decision. On the contrary, he argued at the hearing that the IAD had failed to act in accordance with the findings in para. 38 of its decision.
[56] Upon reading the decision as a whole together with the 2003 reasons , the Court is satisfied that contrary to the applicant’s assertion, the IAD did not add to the list of offences for which he was convicted and on the basis of which the section 27 report was issued. The situation here is clearly distinguishable from the one before Justice Judith Snider in Veerasingam v. Canada (Minister of Citizenship and Immigration) 2004 FC 1661, [2004] F.C.J. No. 2014 where the IAD had made a disturbing number of references to a withdrawn charge and failed to distinguish between the evidence underlying that charge and the fact that the applicant had been charged. It never weighed or looked at the underlying evidence.
[57] In the present instance, the IAD clearly focused on the evidence. As noted, it refers to the fact that the affidavit of Constable Malcolm indicates that Mr. Thanabalasingham was linked to the supply and transportation of guns even before the wiretap investigation. This was also one of the elements on which this affiant relied in order to seek a warrant.
[58] Later during the period covered by the wiretap investigation, conversations did confirm that Mr. Thanabalasingham had asked Rasa (then the leader of the VVT) for a gun on behalf of the Gilder Boys. The applicant admitted that much (he was, in fact, convicted for this incident).
[59] Then, again in 1999, the applicant was linked by at least one informant to the transfer of a sawed-off shot gun which was to be later stored at the residence of his cousin in Ottawa. Within minutes of receiving the information that a meeting between Mr. Thanabalasingham and gang members would take place at a certain location in respect of the transfer and use of that gun, Constable Furlong personally observed Mr. Thanabalasingham at the designated location, meeting with gang members (one of which had specifically been identified beforehand by the informant ). The evidence indicates that the applicant did not live in that area; he did not regularly hang out around that store. In fact, he testified that he was visiting his sister and had gone to get her husband a good deal on a cell phone (nothing was ever bought).
[60] He claims that he bumped into the gang members in the parking lot of the store by pure coincidence and confirmed that he had a cousin living in Ottawa. In the circumstances, is it patently unreasonable to find that the information received from this informant was indeed partially corroborated by the facts? The Court does not think so. The IAD was certainly not obliged to accept the more benign explanation provided by the applicant whose credibility had already found to be wanting. As noted by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Thanaratnam 2005 FCA 122, [2005] F.C.J. No. 587 at para. 37:
It is possible, of course, as his counsel said, that Mr. Thanaratnam merely "hung out" with V.V.T. members and was simply unlucky enough to be in the wrong place at the wrong time. However, as I have already indicated, the fact that a more benign explanation may exist does not render the opposite conclusion patently unreasonable, particularly when account is taken of the large number of "interactions" between the police and Mr. Thanaratnam before his detention in 2001.
[61] As mentioned, the IAD’s conclusion that the evidence shows the applicant playing a leadership role particularly in the distribution and storage of guns must be read in the context of the decision as a whole. Other community sources including gang members (other than KGB deponents) had identified him as a leader after 1997. Constable Furlong confirmed that from his personal observations it was clear that members of the gang looked up to the applicant.
[62] This conclusion was not, as argued by the applicant, a pure guess or conjecture on the part of the IAD. It was made by considering the facts referred to above and it could reasonably be inferred from them. It was certainly not patently unreasonable for the IAD to do so. The words of the Court of Appeal in Thanaratnam above at para. 34 are particularly apt:
A conclusion is not patently unreasonable merely because inferences different from the Board’s could reasonably be drawn from the evidence. While no single piece of evidence on this case may be determinative, when the evidence is considered cumulatively, it was, in my opinion, sufficient to ensure that the Board’s decision could not be characterized as patently unreasonable.
[63] Turning now to the alleged insufficiency of the reasons in respect of the weight of the evidence supplied by the informants and the failure to deal with the applicant’s objections in respect of the KGB statements and the other hearsay evidence, here again the Court has not been persuaded that the IAD breached its duty to provide cogent reasons.
[64] Apart from the testimony of the applicant which was found not to be credible on these particular issues, there was no evidence contradicting the evidence from the informants to which the IAD specifically refers. There was therefore no need for the IAD to say anything more than it did in respect of the actual weight given to such evidence. The IAD specifically discusses the standard of proof applicable to establishing gang association and the role of the applicant in its 2003 decision (at para. 33). There is no reason to believe that it departed from its finding in that respect.
[65] Insofar as the affidavit of Constable Malcolm is concerned, the applicant has not challenged that it is a complete copy of the affidavit used by the Ontario Court as its basis for the issuance of the warrant authorizing the wiretap investigation. The original was thus duly sworn by the affiant and there is no reason why the IAD should specifically deal with this document in its decision other than to explain the general principles applicable to such hearsay evidence.
[66] The Court is satisfied that the panel properly understood the general principles applicable to the admissibility and evaluation of the police evidence (including principles related to informants, hearsay and double hearsay – see paragraph 12 above).
[67] Recently, in two cases involving similar evidentiary records in relation to Tamil gang activities, the Federal Court of Appeal offered further insight. In Balathavarajan v. Canada (Minister of Citizenship and Immigration) 2006 FCA 340, [2006] F.C.J. No. 1550, it said:
[12] Section 175 of the IRPA permits the IAD to receive and base a decision on evidence adduced in immigration proceedings that it considers to be credible and trustworthy in the circumstances. The evidence can sometime be tenuous and may include evidence of informants: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 523 (T.D.), at para.107; aff’d, [2004] 3 F.C.R. 572 (C.A.). It is up to the IAD, not the Court to decide the weight to be given to the evidence.
[my emphasis].
[68] In Sittampalam v Canada (Minister of Citizenship and Immigration) [2006] FCA 326, [2006] FCJ No.1512, it stated the following:
52 The appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.
53 In this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4) (d).
[Emphasis added]
[69] This view is not new. As early as 1992, the Federal Court of Appeal when dealing with police evidence about Asian gang activities said:
Counsel has not persuaded us that the Appeal Division of the Immigration and Refugee Board committed any reviewable error of law or jurisdiction in receiving and relying on the evidence of Corporal Ditchfield. Even if parts of that evidence were, as described by counsel, “double hearsay”, the board was entitled to hear and act on it if it found it (to) be relevant, credible and trustworthy. (see s. 69.4 (3) (c)). [Emphasis added]
[70] Also, in respect of the admissibility of a telex referring to evidence from an unidentified member of the Sri Lankan community, the Court of Appeal in Mahendran v Canadna (Minister of Employment and Immigration) (1991) 134 N.R. 316, [1991] FCJ No.549 (QL) noted that in view of 68(3)[6] of the old Act, the Board had not made a reviewable error in admitting the evidence. It was for the decision maker to determine the weight that he would ascribe to such evidence. (see also in a different context Mugesera v Canada MCI 2001 FCT 460, [2001] F.C.J. No.724 at Par.46 to 49).
[71] It is also worth mentioning that, in this case, the applicant had taken steps to ensure that Constable Furlong would be available to be examined (see paragraph 38 of the 2003 decision). In the end, he did not have to summon Constable Furlong as the respondent decided to present him as its witness. There is no evidence before the Court (nor was there any before the IAD) that indicates that the applicant could not have summoned Detective Malcolm or D.C. Clark if he felt that doing so would bring further light on the reliability (or lack thereof) of the informant evidence referred to in Detective Malcolm’s affidavit or in the police reports.
[72] Finally, the Court finds that the applicant cannot complain that the IAD did not fully review its argument in respect of the KGB statements. In effect, in its decision, the IAD makes it clear that it did not base its decision on this evidence which were considered “surplusage”. There was therefore no need to address this issue further.
c) Rehabilitation and other positive factors
[73] There is no indication that the IAD failed to consider any fact put forward to support the applicant’s position that he would likely be successfully rehabilitated. As the decision maker says, it was simply not persuaded by Mr. Thanabalasingham’s claims that his prospects were good in that respect.
[74] The standard of reasonableness does not entitle the Court to simply reweigh the evidence. That is really what the applicant is asking the Court to do here.
[75] After a probing examination of the record, the Court is satisfied that most of the reasons given by the IAD (i.e. past attitude towards Court imposed conditions; clever approach to circumventing the five year prohibition against possession of firearms; failure to disassociate with gang members after 1997; lack of candour; the fact that the family ties and his high education were insufficient to prevent his behaviour in the past, particularly after 1997; family members’ lack of candour in previous proceedings) are tenable and support the IAD’s conclusion as to the prospect of rehabilitation.
[76] The applicant asserts that the IAD made a significant error by suggesting that his prospect for rehabilitation were harmed because he might be a target of gang reprisal and had not provided a viable plan in that respect.
[77] At the hearing, the applicant’s counsel acknowledged that she had not put forward any evidence to establish that Tamil gangs did not exist anymore but said that she knew this to be a fact. On this point, the applicant relies on Canada (Minister of Citizenship and Immigration) v. Sittampalam 2004 FC 1756, [2004] F.C.J. No.2152 at para. 25 where Justice Pierre Blais stated that a decision maker cannot take for granted that facts established at one time will stand indefinitely. The Court was referring in particular to the existence of Tamil gangs in Toronto.
[78] However, it should be mentioned that Justice Blais also found that the reviewing member erred by relying solely on information provided by counsel in her submissions instead of referring to the evidentiary record itself or to the fact that the information provided by the Minister (who had the burden of proof in that case) was stale.
[79] As mentioned, in the present matter, it was the applicant who had the burden to establish all the facts in his favour. During his testimony, Mr. Thanabalasingham said at page 3769 of the record:
A. I don’t want to come across the people who involved in
--alleged to be gang. So now, I’m avoiding all the events or programs, any Tamil movies or anything.
...
Q. Okay. So when you said you’re not going to that, you didn’t go to that event and--because you’re afraid you’d run into gang members; is that true for everything?
A. Yes, ma’am.
[80] In the absence of any proof that the gangs had ceased to exist, one could infer from this passage that Mr. Thanabalasingham and his counsel appear to have believed or assumed that Tamil gangs still existed.
[81] Also, the threat assessment prepared by the police on October 26, 2003, in anticipation of the hearing for this appeal, clearly discusses the possibility of retaliation by the AKK against Mr. Thanabalasingham. There is also a reference to a 2003 murder of a young Tamil male that seems to fit the pattern of gang activity. As suggested by the respondent, this may well have been what prompted the IAD’s comments in respect of retaliation.
[82] Be it as it may, the IAD clearly had the discretion to look at “all the circumstances”. This particular finding is clearly not one of its strongest. However, this does not mean that it was unreasonable for the IAD to have concluded that Mr. Thanabalasingham’s rehabilitation chances were not good. There were other tenable reasons supporting this finding.
[83] Turning now to the positive factors, the Court cannot accept the argument proposed by the applicant that on its face, the IAD failed to properly consider the positive factors as it devoted only three pages or so to its review of them. As the respondents noted at the hearing, there was not much more to be said about the positive factors favouring the applicant. The length and the details of the reasons depend on the circumstances of each case (see Via Rail at paragraph 21). The applicant has failed to persuade the Court that there was a breach of the IAD’s duty of fairness.
d) Risk in Sri Lanka
[84] The Court reviewed carefully all the pages of the record that, according to the applicant, support his allegation that the IAD failed to properly assess the evidence and ignored important portions of it particularly the fact that the situation in Sri Lanka was worsening at the relevant time.
[85] The Court is not satisfied that any such passages constitute evidence that should have been specifically referred to by the IAD in its decision on the principles established in Cepeda- Gutierrez v. MCI (1998) 157 F.T.R. 35, [1998] F.C.J. No.1425. In the circumstances, the Court is not willing to make any adverse inference and to put aside the presumption that the decision maker considered all of the evidence before it.
[86] The Court also notes that in its reasons the IAD specifically refers to “whether the current cease fire agreement holds or not”. It was clearly aware and focused on the applicant’s position.
[87] In respect of the evidence of Dr. Sheran, the expert retained by the applicant to file an affidavit on the risk he would likely face in Sri Lanka, it is clear that the IAD considered it. It refers to it on several occasions. It is also clear that it was found to be unhelpful because it basically consists of bold assertions not supported by any details or specific exhibits.
[88] The Court reviewed the evidence of Dr. Sheran, Mr. Schultz and Ms. Garcia[7] and is satisfied that the reasons given by the IAD are tenable. For example, the evidence clearly supports the IAD’s assertion that Dr. Sheran’s claim about the LTTE is sweeping and categorical but unsupported. In fact, the respondent’s witnesses in their cross examination provided direct evidence specifically contradicting most of Dr. Sheran’s views.
[89] The IAD understood, considered and rejected the applicant’s argument that his case is exceptional because of the media coverage and his high profile as an alleged leader of the VVT. The evidence provided in respect of the return of other Tamil gang members and other known criminals, as well as the evidence that any reprisal from the government or the LTTE against such person would have definitely been reported in the Sri Lankan media as well as by human rights organizations who were closely monitoring the situation at the time, support the reasoning described in the decision.
[90] There is simply no reviewable error in the IAD’s analysis.
e) The future risk of re-offending
[91] The applicant says that the use of the word “re-offend” in the IAD conclusion in paragraph 85 without any detailed reason in that respect constitutes a reviewable error. (see paragraph 24 above).
[92] When read in context, the Court understands the words “likelihood that he will re-offend” as referring to the chances of rehabilitation that were discussed in detail earlier in the IAD’s decision. There is simply no need to discuss this argument further, it is without merit.
[93] Finally, as suggested by the applicant, the Court reviewed the decision in light of the overall weaknesses or alleged errors identified by the applicant.
[94] The Court is satisfied that the IAD properly turned its mind to the application of the Ribic factors, that it reviewed all of the circumstances as mandated by the old Act and that tenable reasons support its conclusion. Thus, the decision stands up to a probing examination and it should not be disturbed.
[95] The parties indicated that the only question that might warrant certification was the standard of review applicable to the decision. The Court finds that in this particular case, this question is not determinative and thus does not warrant certification.
[96] This application is dismissed.
JUDGMENT
The Court adjudges that
[1] The application is dismissed.
"Johanne Gauthier"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-421-06
STYLE OF CAUSE: KAILESHAN THANABALASINGHAM
Applicant
and
THE MINISTER OF SAFETY & EMERGENCY PREPARDNESS
Respondent
DATE OF HEARING: January 25, 2007
APPEARANCES:
Barbara Jackman
Greg George
Vanita Goela
SOLICITORS OF RECORD:
JACKMAN & ASSOCIATES
Barristers & Solicitors
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
[1] His wife was pregnant during the hearing of the appeal.
[2] The name “KGB statements” is taken from the Supreme Court of Canada’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740. These statements are a procedure used by police in certain contexts so as to record the testimony of
reluctant or adverse witnesses. In the present case, they refer to statements by four gang members caught on video tape, three of which were later recanted after Mr. Thanabalasingham asked another gang member to contact them in that respect.
This includes factual inferences (Jessani v. Canada (Minister of Citizenship and Immigration, [2001] FCA 127 at paras. 16-20) also in an analogous context (Housen v.Nikolaisen, [2002] 2 S.C.R 235 at para. 25)
[4] Named for the earlier IAD decision, Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL)
[5] The applicant had testified that leaders of the gangs were devoting all their time to gang activities whereas he never did. He had a job and only hung out with some of the gang members part time.
[6] Sub-section 68(3) of the old Act set out the evidentiary principles for appeal hearings before the Convention Refugee Determination Division. This sub-section can be treated as largely analogous to the IAD evidence rules prescribed by
69.4(3)(c).
[7] Mr. Schultz and Ms. Garcia were two affiants of the respondent who were cross-examined by the applicant. The IAD found their evidence credible and that they had provided detailed and direct evidence that is supported by the documentary record on current Country conditions in Sri Lanka (paragraph 80).