2012 FC 1533, 2012 FC 1533

IMM-3327-11 2012 FC 1533 Sukhchainpreet Singh Sidhu ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Sidhu v. Canada (Citizenship and Immigration) Federal Court, Mandamin J.—Toronto, February 7; Ottawa, December 20, 2012.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Immigration Appeal Division (IAD) decision granting respondent’s appeal of Immigration Division (ID) decision whereby IAD overturning ID’s finding that applicant not inadmissible for organized criminality, specifically transnational crime, pursuant to Immigration and Refugee Protection Act, s. 37(1) (b) — Applicant, Canadian permanent resident, entering U.S. from Canada — With individual’s help, successfully carrying marijuana across border to U.S., intending to deliver drugs for distribution — Applicant convicted in U.S. of importing controlled substance, sentenced — Found inadmissible to Canada for serious criminality under Act, s. 37(1)(b), becoming subject of inadmissibility report — IAD concluding ID erring in finding applicant not inadmissible thereunder, that Act, s. 37(1)(

b) applying in present case — Whether IAD erring in interpreting Act, s. 37(1)(b), specifically, as including in activities thereunder “organized criminality”, importing drugs; whether IAD engaging in incorrect criminal equivalency assessment — IAD interpreting Act, s. 37(1)(

b) correctly; activities making person inadmissible thereunder must take place in context of organized criminality (i.e. involving more than single individual) — IAD correctly noting that list of activities found in Act, s. 37(1)(

b) not exclusive; correctly determining that drug trafficking falling thereunder — No criminal equivalency analysis required in present case; IAD not engaging in such analysis, not erring thereon — IAD’s decision herein reasonable; not making reviewable error in present case — Application dismissed. This was an application for judicial review of the decision of the Immigration Appeal Division (IAD) granting the respondent’s appeal of an Immigration Division (ID) decision. The IAD overturned that decision, in which the ID found that the applicant was not inadmissible for organized criminality, specifically transnational crime, pursuant to paragraph 37(1) (

b) of the Immigration and Refugee Protection Act . The applicant, Indian, became a permanent resident of Canada. Several years later, he entered the U.S. from Canada where he rented a van, bought a cellular phone and contacted an individual. Following instructions received, he drove to the border between the U.S. and Canada and met the individual contacted and others who were in a vehicle on the Canadian side of the border. In the individual’s vehicle was 49 kg of marijuana which both the applicant and the individual carried across the border and placed into the rented van.

The applicant intended to deliver the marijuana to someone else in the U.S. for distribution. Later, the applicant was convicted in the U.S. of importation of a controlled substance and was sentenced. As a result of the conviction, he was found inadmissible to Canada for serious criminality and consequently became the subject of a subsection 44(1) report under the Act on the basis that he was also inadmissible to Canada for organized criminality pursuant to paragraph 37(1)(

b) of the Act, specifically transnational crime. The IAD disagreed with the ID’s decision that the applicant was not inadmissible under paragraph 37(1)(

b) of the Act. It stated that the question was whether the applicant had engaged, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. Noting that the ID had found that paragraph 37(1)(

b) does not include importation of drugs, it disagreed and found that, in the circumstances of this case, paragraph 37(1)(

b) did include the offence of transnational importation of drugs. The IAD then set out five elements required to be proven for paragraph 37(1)(

b) to apply. In particular, it noted that the list in paragraph 37(1)(

b) was not exclusive since the phrase “activities such as” indicated that the inclusion of other activities is contemplated. The IAD concluded that the ID had erred and that paragraph 37(1)(

b) applied in this case. The applicant was ordered deported. The applicant argued that the IAD made several reviewable errors, such as interpreting paragraph 37(1)(

b) as including “organized criminality”, by interpreting the

section as including importing drugs and by engaging in an incorrect criminal equivalency assessment. The issue was whether the IAD erred in its

interpretation of paragraph 37(1)(

b) of the Act, specifically whether it erred in interpreting paragraph 37(1)(

b) as including “organized criminality” and importing drugs and whether it engaged in an incorrect criminal equivalency assessment. Held , the application should be dismissed. The IAD interpreted paragraph 37(1)(

b) of the Act correctly. The applicant’s argument that it was incorrect to interpret the Act as requiring that the activities must have been generated in the context of an organization was rejected. Subsection 37(1) of the Act regards inadmissibility on grounds of organized criminality and, while paragraph (

b) makes no specific mention of being a member of an organization as it does in paragraph ( a ), the entirety of paragraph 37(1)(

b) must be given effect. To not do so would lead to results that are not intended by Parliament in enacting subsection 37(1). Thus, the activities which make a person inadmissible thereunder must have been generated in the context of organized criminality, that is, involving more than a single individual in an organized criminal activity. While the importation or trafficking of drugs is not listed as one of the activities under paragraph 37(1)(

b) of the Act that leads to a finding of inadmissibility for organized criminality, the IAD correctly noted that the words “activities such as” indicate that the list of activities found in paragraph 37(1)( b ), namely people smuggling, trafficking in persons and money laundering, is not exclusive and that Parliament intended that other crimes could also be included. The IAD’s abbreviated analysis on this point led to a finding that the common elements of the listed activities include attributes of organized criminality and movement across international borders. Paragraph 37(1)(

b) employs the phrase “such as”, indicating that the list of activities stated is not a closed set. The IAD correctly determined that trafficking in drugs falls under paragraph 37(1)( b ). The importation of drugs, which the applicant was convicted of, meets the two elements the IAD found were shared by those crimes listed under that paragraph.

No criminal equivalency analysis was required in this case. Contrary to the applicant’s claims, the IAD did not engage in a criminalequivalency analysis; it described what offence the applicant might have been charged with in similar circumstances in Canada. This wasnot done in the context of a criminal equivalency analysis but rather done to demonstrate the seriousness of the offence committed by theapplicant for the purposes of explaining that importing drugs was a serious activity on par with those activities listed under paragraph37(1)(

b) of the Act. The IAD made no error on that point. The IAD’s decision was reasonable. The IAD considered that the applicant had engaged in an activity (drug smuggling) in the context oftransnational crime. It applied the test that it had set out to the facts of the case at bar and, while there was redundancy in the wording ofthe test , the

interpretation and application of paragraph 37(1)(

b) were not in error in the respondent’s decision. Given that the IAD correctly interpreted paragraph 37(1)(

b) of the Act to include “drug smuggling” as one of the activities leading to afinding of inadmissibility and given that it reasonably considered the law as it applies to the facts in this case, the IAD made noreviewable error. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 37, 44(1). CASES CITED applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Dhillon, 2012 FC 726, [2014]1 F.C.R. 325. referred to: Patel v. Canada (Citizenship and Immigration), 2011 FCA 187, [2013] 1 F.C.R. 340.

APPLICATION for judicial review of a decision of the Immigration Appeal Division granting the respondent’s appeal of an ImmigrationDivision decision ( (I.R.B.)) finding that the applicant was not inadmissible for organized criminality, specificallytransnational crime, pursuant to paragraph 37(1)(

b) of the Immigration and Refugee Protection Act. Application dismissed. APPEARANCES Hilete Stein and Felix Hau for applicant. Martin Anderson and Leila Jawando for respondent. SOLICITORS OF RECORD Green and Spiegel LLP, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [1] Mandamin J.: This is an application for judicial review of the decision made by a member of the Immigration Appeal Division(IAD) [Sidhu v.

Canada (Public Safety and Emergency Preparedness), ] which granted the Minister’s appeal of anImmigration Division (ID) decision. The IAD overturned an ID decision which had found that the applicant was not inadmissible fororganized criminality, specifically, transnational crime, pursuant to paragraph 37(1)(

b) of the Immigration and Refugee Protection Act,S.C. 2001, c. 27 (IRPA). Background [2] The applicant, Sukhchainpreet Singh Sidhu, is a citizen of India and became a permanent resident of Canada in 2000. [3] On January 29, 2008, the applicant entered the U.S.A. from Canada, arriving in Blaine, Washington. The applicant rented a vanand bought a cellular phone from a convenience store. He called a Mr. Kulwant Singh Brar and checked into a motel. He then received acall with instructions to drive to the border between the U.S.A. and Canada. The applicant parked the van on the U.S. side of the border,and then met Mr.

Brar and others, who were in a vehicle on the Canadian side of the border. In Mr. Brar’s vehicle was 49 kg ofmarijuana. Mr. Brar and the applicant carried the marijuana across the border and placed them into the rental van. The applicant intendedto deliver the marijuana to another individual in the U.S. for distribution. [4] On August 8, 2008, the applicant was convicted in the U.S.A. of importation of a controlled substance. His sentence was 12months and one-day incarceration, and 2 years of supervised release. [5] As a result of this conviction, he was found inadmissible to Canada for serious criminality.

Because of this, he became thesubject of a subsection 44(1) IRPA report on the basis that he was also inadmissible to Canada for organized criminality pursuant toparagraph 37(1)(

b) IRPA, specifically transnational crime. Decisions Under Review [6] The ID decided that the applicant was not inadmissible under paragraph 37(1)(b). The Minister appealed to the IAD, whichallowed the appeal, holding that the decision of the ID was wrong in law. The IAD’s decision is the subject of this application.

[ 7 ] The IAD set out paragraph 37(1) ( b ). It stated that the question in this case was whether the applicant engaged, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering—the three listed as examples of crimes coming under paragraph 37(1) ( b ). The IAD noted that the ID found, essentially, that paragraph 37(1) (

b) does not include importation of drugs. The IAD disagreed and found that, in the circumstances of this case, paragraph 37(1) (

b) did include the offence of transnational importation of drugs. [ 8 ] The IAD [at paragraph 11] then set out five elements which it believed were required to be proven in order for paragraph 37(1) (

b) to apply: (

a) the person must have engaged in something; (

b) this engaging or engagement must have been in the context of transnational crime; (

c) the engaging or engagement in must have been in an activity; (

d) the activities must have been generated in the context of an organisation; and (

e) the activity must have been something such as people smuggling, trafficking in persons or money laundering. [ 9 ] The IAD [at paragraph 12] held the crucial language of the

section was, “activities such as people smuggling, trafficking in persons or money laundering.” The IAD noted it did not mention drugs, or importation of drugs, and therefore, the question was whether the phrase “activities such as” allows the decision maker to find that the

section covers importation of drugs. The IAD held it did. [ 10 ] The IAD noted that the list in paragraph 37(1) (

b) was not exclusive as the phrase “activities such as” indicated that the inclusion of other activities is contemplated. The IAD also noted the phrase “such as” indicated that, while there must be some similarity between the listed activities and the unlisted activities, they are not expected or required to be the same.

The IAD held the task was to identify any common elements between the listed activities which would also be present in any proposed unlisted activities. [ 11 ] The IAD held that the common elements of the three listed activities include attributes of organized criminality and movement across international borders. The IAD viewed the smuggling of drugs, an activity which could be carried out by criminal organizations and across international borders, is an obvious, although unlisted, activity to associate with the listed activities in paragraph 37(1) ( b ).

The IAD held that this was based on a plain reading of the section, put in its obvious context and purpose. [ 12 ] The IAD noted that the words of a statute are to be read in context, and having regard to the purpose of the legislation and the intention of Parliament. [ 13 ] The IAD stated that Canada intends to combat cross-border drug trade and cited statements and conventions Canada has made to eliminate the trafficking of drugs. [ 14 ] The IAD discussed whether the elements to the section, which the IAD set out above, had been proven.

The IAD held that the applicant had been engaged in activities which took place in the context of transnational crime in that he was involved with moving large amounts of drugs across the border from Canada to the U.S. The IAD also held that these activities the applicant was engaged in were generated in the context of an organization. The IAD specifically noted that there were other individuals besides the applicant involved in these activities and that each carried out specific roles and tasks.

The IAD then found that the trafficking of drugs across the border was an activity such as people smuggling, trafficking in person, and money laundering. [ 15 ] The IAD also discussed submissions made by the applicant’s counsel. The IAD stated that the applicant’s attorney in the U.S., as well as his counsel at the inadmissibility hearing, characterized his role in these events as minor, not so complicated, and of a stupid, minor character. The IAD made two comments regarding this point. First, the IAD noted that for the purposes of paragraph 37(1) (

b) it was irrelevant whether one was a minor or major player. Second, the IAD held that the applicant was not a minor player, but one of the people at the center of the operation. [ 16 ] The IAD then discussed what offence the applicant might have been charged with in similar circumstances in Canada. The IAD noted that the applicant could have been charged with an offence that would have made him liable for incarceration up to 14 years.

The IAD stated that this indicated that these activities were regarded very seriously by Parliament. [ 17 ] Finally, the IAD noted there were attempts on the part of the applicant’s attorney in the U.S. and his counsel here in Canada, to portray him as a sympathetic character who was at heart honest and law abiding, who had certain family problems and who would never get involved in this type of thing again. The IAD held that these types of considerations are not relevant to the determination under paragraph 37(1) ( b ). [ 18 ] The IAD concluded by finding that the ID erred and that paragraph 37(1) (

b) did apply in this case. The IAD allowed the appeal and made a deportation order against the applicant. Legislation [ 19 ] Immigration and Refugee Protection Act , S.C. 2001, c. 27: 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; or (

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. Application

(2) The following provisions govern subsection (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (b) paragraph (1)(

a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. Issue [ 20 ] The issue arising in this case is whether the IAD erred in its

interpretation of IRPA paragraph 37(1)( b ). Standard of Review [ 21 ] The IAD’s

interpretation of paragraph 37(1)(

b) attracts a correctness standard: Patel v. Canada (Citizenship and Immigration) , 2011 FCA 187 , [2013] 1 F.C.R. 340, at paragraph 27 . [ 22 ] If the issue is answered in the negative, then this Court will examine whether the IAD’s decision was a reasonable one, in light of the facts and law: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paragraph 51 . Analysis [ 23 ] The applicant argues that the IAD made several reviewable errors. First, by interpreting IRPA paragraph 37(1)(

b) as including “organized criminality”. Second, by interpreting the

section as including importing drugs. Third, the IAD engaged in an incorrect criminal equivalency assessment. Did the IAD err in interpreting IRPA paragraph 37(1) (

b) as including “organized criminality”? [ 24 ] The applicant submits that the IAD misconstrued the test for determining inadmissibility under paragraph 37(1) ( b ). Indeed, the applicant correctly argued that the IAD set out its own unprecedented five-part test for paragraph 37(1) ( b ). The applicant argues that a plain reading of paragraph 37(1) (

b) requires only an assessment of whether (

a) an individual engaged in an activity; (

b) if so, whether the individual’s engagement in the activity occurred in the context of transnational crime; and (

c) whether the individual engaged in an activity such as people smuggling, trafficking in persons, or money laundering. The applicant argues the requirement for a finding that “the activities must have been generated in the context of an organisation” is an incorrect

interpretation of the IRPA , and thus is a reviewable error. [ 25 ] The respondent submits that paragraph 37(1)(

b) renders a person inadmissible where a foreign national (

i) has engaged; (ii) in transnational crime (i.e. crime crossing international borders; (iii) that is serious enough to be comparable to people smuggling, human trafficking, or money laundering. The respondent submits that these three basic elements were met. [ 26 ] I agree with the respondent. Further, I disagree with the applicant that to conclude “the activities or crime must have been generated in the context of an organization” is an error. The reason for this is that subsection 37(1) regards inadmissibility on grounds of organized criminality. While paragraph (

b) makes no specific mention of being a member of an organization as it does in paragraph ( a ), the entirety of paragraph 37(1) (

b) must be given effect. To not do so would lead to results that are not intended by Parliament in enacting subsection 37(1) . [ 27 ] In order to determine the correct

interpretation of paragraph 37(1)( b ), it is helpful to set out the relevant provision: Organized criminality 37.

(1) A permanent resident or foreign national is inadmissible on grounds of organized criminality for … (

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. [Emphasis added.] [ 28 ] Although I consider the elements (

a) and (

c) set out by the IAD and repeated below to be redundant: (

a) the person must have engaged in something; … (

c) the engaging or engagement in must have been in an activity; I nonetheless find that the IAD interpreted paragraph 37(1) (

b) correctly. In my opinion the activities which make a person inadmissible

under IRPA paragraph 37(1)(

b) must have been generated in the context of organized criminality, that is involving more than a single individual in an organized criminal activity. Did the IAD err in interpreting IRPA paragraph 37(1) (

b) as including importing drugs? [ 29 ] I begin with Justice Snider’s words in Canada (Citizenship and Immigration) v.

Dhillon , 2012 FC 726 , [2014] 1 F.C.R. 325, at paragraph 66 : “the words of paragraph 37(1) ( b ), when read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of IRPA , the object of IRPA, and the intention of Parliament include the activity of transnational drug smuggling.” [ 30 ] The applicant submits that the IAD failed to conduct an analysis of or explain how the activities in which the applicant engaged were similar to people smuggling, trafficking in persons, or money laundering.

In particular, the applicant submits the IAD failed to engage in any comparison between the nature and substance of the applicant’s offence and the listed offences. [ 31 ] The applicant submits that Parliament specifically chose to include the list in paragraph 37(1)(

b) to indicate that the

section is not meant to encompass all transnational crimes, but is instead meant to encompass only those transnational crimes that rise to the particularly egregious level of people smuggling, trafficking in persons, or money laundering. [ 32 ] It is true that the importation or trafficking of drugs is not listed as one of the activities under paragraph 37(1) (

b) that leads to a finding of inadmissibility for organized criminality. However, the IAD, correctly in my view, noted that the words “activities such as” indicate that the list of activities found in paragraph 37(1) ( b ), namely people smuggling, trafficking in persons and money laundering, is not exclusive and that Parliament intended that other crimes could also be included. [ 33 ] Although the IAD’s analysis on this point is abbreviated, it found that the common elements of the listed activities include attributes of organized criminality and movement across international borders.

The IAD also noted that Canada, through its international obligations, has committed to fight the illicit traffic in narcotic drugs and psychotropic drugs by agreeing to establish as criminal offences, among other things, the importation or exportation of any narcotic substance, including marijuana. [ 34 ] The respondent challenges the applicant’s proposed restricted definition of transnational crime as inconsistent with international law.

The respondent submits a restricted definition is inappropriate because it would exclude cross-border crimes such as weapons trafficking, illicit trade in nuclear materials, trade in biological weapons, proliferation of child pornography and others. I agree. [ 35 ] IRPA paragraph 37(1)(

b) employs the phrase “such as”. This indicates that the following list of activities is not a closed set. I find the IAD correctly determined that trafficking in drugs falls under paragraph 37(1) ( b ). The importation of drugs, with which the applicant was convicted of, meets the two elements the IAD found were shared by those crimes listed under paragraph 37(1) ( b ). I am unable to agree with the applicant that the illicit trafficking in drugs is not as egregious as money laundering. I agree with Justice Snider in Dhillon , above, that the activities listed in paragraph 37(1) (

b) include the activity of transnational drug smuggling. Criminal equivalency assessment [ 36 ] The applicant submits that where an equivalency assessment is done, and the wrong Canadian offence is put forward as being equivalent, the decision cannot stand. The applicant submits it is clear from the IAD’s analysis that it informed itself of the wrong Canadian equivalent. [ 37 ] The applicant argues that the IAD based its decision on an incorrect assessment of the nature of the offence with which the applicant was convicted.

The applicant argues that the IAD engaged in an incorrect equivalency assessment which should result in a review of the IAD’s decision. I disagree. [ 38 ] The respondent submits that there is no criminal equivalency analysis required for an inadmissibility finding under paragraph 37(1)( b ).

The respondent argues that as such, the IAD’s finding regarding equivalent Canadian offences is similarly superfluous and that if there are any errors therein, they would be immaterial and insufficient to disturb the IAD’s decision. [ 39 ] The respondent is correct that no criminal equivalency analysis was required in this case. Contrary to the claims of the applicant, I do not find that the IAD engaged in a criminal equivalency analysis. At paragraph 23, the IAD described what offence the applicant might have been charged with in similar circumstances in Canada.

In my view, this was not done in the context of a criminal equivalency analysis. Rather, it was done in order to demonstrate the seriousness of the offence committed by the applicant for the purposes of explaining that importing drugs was a serious activity on par with those activities listed under paragraph 37(1) ( b ); thus, the IAD described what offence the applicant might have been charged with in similar circumstances in Canada. The IAD made no error. Was the IAD’s decision reasonable? [ 40 ] Having determined that the IAD correctly interpreted paragraph 37(1) (

b) of the IRPA as including drug smuggling, I must now turn to the question of whether the IAD reasonably applied the law to the facts of this case. “Questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness” Dunsmuir , above, at paragraph 51 . [ 41 ] The IAD considered that the applicant had engaged in an activity (drug smuggling) in the context of transnational crime. At paragraph 21 of its decision, the IAD applied the test that it had set out to the facts of the case at bar. While I have noted, at paragraph 28, of this decision that I would change the wording of the test, the

interpretation and application of paragraph 37(1)(

b) are not in error in the respondent’s decision. [ 42 ] The IAD considered that the applicant had rented a vehicle, bought and used a cellular telephone, drove to the border, carried marijuana across the border, and placed the drugs into another vehicle, all with the intention of participating in drug smuggling. The IAD considered that these activities were carried out in the context of an organization. Indeed, other individuals who each had specific tasks for their involvement in the transnational criminal activity of drug smuggling.

[ 43 ] Judicial review “is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process” ( Dunsmuir , above, at paragraph 47 ). I am satisfied that the IAD’s decision fulfills these requirements. Conclusion [ 44 ] Since the IAD, in my opinion, correctly interpreted paragraph 37(1) (

b) of IRPA to include “drug smuggling” as one of the activities leading to a finding of inadmissibility, and since it reasonably considered the law as it applies to the facts in the case at bar, I find that the IAD made no reviewable error. The application is dismissed. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. No question of general importance is certified.