2020 FC 751, 2020 FC 751

IMM-3379-19 2020 FC 751 Adrian Edmond Pascal ( Applicant ) v. Minister of Citizenship and Immigration ( Respondent ) Indexed as: Pascal v. Canada (Citizenship and Immigration) Federal Court, McHaffie J.—Toronto, November 14, 2019; Ottawa, July 9, 2020.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Immigration and Refugee Board, Immigration Division (ID) decision concluding that there were reasonable grounds to believe that applicant member of “Galloway Boys,” Scarborough-based criminal organization — ID also finding there were reasonable grounds to believe that applicant’s activities part of pattern of planned, organized criminal activities — Therefore concluding that applicant inadmissible under Immigration and Refugee Protection Act, s. 37(1) (a) — ID’s organized criminality finding having serious consequences for applicant; preventing him from bringing appeal to Immigration Appeal Division (IAD) — Applicant arguing in particular that ID placing unreasonable reliance on some information (police reports, evidence of police officer, true crime book); that some of ID’s findings unreasonable — Whether ID erring (1) in its assessment of evidence by relying on truth of contents of police reports; relying on evidence of police officer called as lay witness; relying on “true crime” book, newspaper reports; relying on court judgments that referred to Galloway Boys; and/or discounting applicant’s evidence on grounds of credibility; (2) in concluding there were reasonable grounds to believe that Galloway Boys existed as criminal organization during relevant period; (3) in concluding there were reasonable grounds to believe that applicant member of Galloway Boys — While ID’s discussion and analysis of reasons for accepting police reports could have been more detailed in places, not so lacking as to make it unreasonable — Therefore ID’s conclusion that elements of police reports credible, trustworthy in circumstances, ID’s reliance on those reports reasonable — ID’s conclusion that police officer with Toronto Police Services who testified, made report was credible, trustworthy was based on ID’s findings that police officer’s evidence forthright, unembellished, non- contradictory — Thus, ID’s weighing of evidence not unreasonable — Regarding book Bad Seeds which ID finding to be credible, trustworthy evidence, inferences ID making in assessing existence, nature of Galloway Boys part of ID’s mandate of determining whether reasonable grounds to believe applicant member thereof — Not unreasonable for ID to use Bad Seeds book for this purpose — As for ID’s reliance on court judgments referring to Galloway Boys, nature of those proceedings, limited use ID making of them showing ID’s reliance on court decisions reasonable — Concerning applicant’s evidence, ID’s reliance on various sources of evidence, acceptance of that evidence over applicant’s evidence consistent with Court’s case law regarding such findings; ID acting reasonably in doing so — Applicant failing to establish that ID’s finding that Galloway Boys exist, are criminal organization falling within scope of Act, s. 37(1)(a), unreasonable — With respect to ID’s finding that applicant member of Galloway Boys, ID analyzing applicant’s conduct, activities — Drawing associations, making comparisons between applicant, organized crime in general or as member of gang, but this unreasonable — However, although comparisons unreasonable, not rendering ID’s conclusion on applicant’s membership in criminal organization unreasonable — ID also concluding that applicant engaged in activity that was part of pattern of organized criminality — Such finding constituting separate ground for inadmissibility under Act, s. 37(1)(

a) that did not depend on finding that applicant member of Galloway Boys — While areas existing in which ID’s reasons could have been more detailed, more than adequately meeting reasonableness requirements of transparency, justification, intelligibility — Application dismissed. This was an application for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board concluding that there were reasonable grounds to believe that the applicant is a member of the “Galloway Boys,” a Scarborough-based criminal organization.

The ID also found there were reasonable grounds to believe that the applicant’s activities were part of a pattern of planned and organized criminal activities, i.e., that he had engaged in organized criminality. It therefore concluded that the applicant was inadmissible under paragraph 37(1) (

a) of the Immigration and Refugee Protection Act . Although the applicant conceded that he was also inadmissible on the basis of the ID’s finding of serious criminality under paragraph 36(1)(

a) of the Act, the organized criminality finding had serious consequences for the applicant. In particular, it prevented him from bringing an appeal to the Immigration Appeal Division, which could otherwise have considered humanitarian and compassionate grounds under the Act.

The applicant argued that in reaching its organized criminality finding, the ID placed unreasonable reliance on certain sources of information, notably the contents of police reports, the evidence of a police officer who had no prior experience with him, and a “true crime” book by the Toronto Star reporter Betsy Powell entitled Bad Seeds: The True Story of Toronto’s Galloway Boys Street Gang [Bad Seeds]. He also asserted that the ID’s finding that the Galloway Boys are a criminal organization and its finding that the applicant was a member of that organization were unreasonable. Subsequent to the ID’s Act,

section 37 finding, the applicant applied for a pre-removal risk assessment (PRRA) but that application was rejected. On judicial review of the PRRA rejection decision, the application was dismissed.

The issues were (1) whether the ID erred in its assessment of the evidence by relying on truth of the contents of police reports; relying on the evidence of a police officer who was called as a lay witness; relying on a “true crime” book and newspaper reports; relying on court judgments that referred to the Galloway Boys; and/or discounting the applicant’s evidence on grounds of credibility; (2) whether the ID erred in concluding that there were reasonable grounds to believe that the Galloway Boys existed as a criminal organization during the

relevant period and; (3) whether the ID erred in concluding that there were reasonable grounds to believe that the applicant was a member of the Galloway Boys. Held , the application should be dismissed. In reaching its conclusions, the ID accepted as credible and relied on a number of sources of information. The ID’s conclusion of organized criminality was based in substantial part on findings relating to numerous instances of “interactions” between the applicant and the police. Some of these resulted in criminal convictions.

However, the ID also relied on many incidents that did not result in convictions or even criminal charges. With respect to these, the ID relied on the facts described in police reports that were filed in evidence. The applicant argued that the Court has held that police reports are not inherently reliable for the truth of their contents and referenced several decisions but the applicant overstated the conclusions of these cases and understated the ID’s analysis.

In the present case, the ID concluded that the police reports in question were credible and trustworthy “for the purpose of understanding what occurred at particular places and times.” It expressly confirmed that it was not relying on the criminal charges themselves and did not simply accept the police reports in their entirety without analysis. While the ID’s discussion and analysis of its reasons for accepting the police reports could have been more detailed in places, it was not so lacking as to make it unreasonable.

Therefore the ID’s conclusion that elements of the police reports were credible and trustworthy in the circumstances, and the ID’s reliance on the contents of those reports, was reasonable. The report that the police officer with the Toronto Police Service (TPS) was tasked to prepare about the applicant was filed with and relied on by the ID. It included background on the Galloway Boys, summaries of information contained in police databases involving the applicant and other information relating to indicia used by TPS to assess whether an individual is a gang member.

The report concluded with the constable in question giving his “opinion” that the applicant is a member of the Galloway Boys. The ID relied on the constable’s report and testimony, concluding that he was “a credible and trustworthy witness” and giving his testimony “significant weight” . The ID indicated that its findings regarding the Galloway Boys and the applicant were not based primarily on the constable’s beliefs or report and that they formed a small portion of the credible evidence. T he ID did not “merely repeat and adopt” the constable’s evidence as the applicant contended.

It gave detailed consideration of the nature of his report and the basis for it; his extent or lack of knowledge with respect to the Galloway area, the Galloway Boys and the applicant in particular. The ID’s conclusion that the constable in question was credible and trustworthy was based on its findings that his evidence was forthright, unembellished and non-contradictory. Thus, the ID’s weighing of the evidence was not unreasonable, and absent such unreasonableness, the Court was not to undertake its own reweighing on judicial review.

With respect to the book Bad Seeds, the ID found that book to be a source of credible and trustworthy evidence, giving it “full weight”. The ID did not adopt the Bad Seeds book without analysis but rather gave its reasons for its reliance on the facts set out in the book in its decision. The ID relied on the book in assessing the existence and nature of the Galloway Boys based on pre-trial and trial evidence and the author’s other sources. The ID concluded that the Galloway Boys had not ceased to exist just because police arrested 17 people believed to be linked to the group.

This type of factual inference based on the evidence was part of the ID’s mandate of determining whether there were reasonable grounds to believe. It was not unreasonable for the ID to use the Bad Seeds book for this purpose. The ID did not err in referring to conclusions from other court decisions that refer to the Galloway Boys. The case law does not create an absolute bar to referring to, or relying on, the facts as found in prior proceedings.

In the present case, there was no issue of either admissibility or of fairness given that the earlier decisions were filed on consent and the applicant had the opportunity to address them as necessary. Although the prior decisions did not involve the applicant, the nature of those proceedings and the limited use the ID made of them showed that the ID’s reliance on the decisions was reasonable. Concerning the applicant’s evidence, the ID gave a number of reasons for finding it not to be credible on various points.

This included internal inconsistencies, changed stories, misrepresentations to the court, and the applicant’s own self-interest, in addition to the convictions. These were reasonable grounds to consider in making a credibility determination. Moreover, there was no indication that the ID came to the matter with a closed mind. The fact that a witness is not believed does not mean that the decision maker was closed to their evidence or their credibility.

In conclusion, the ID’s reliance on the various sources of evidence, and its acceptance of that evidence over the applicant’s evidence, was consistent with the case law of the Court regarding such findings, and was reasonable. In concluding that the Galloway Boys are a criminal organization under paragraph 37(1)(

a) of the Act, the ID concluded that the evidence regarding the Galloway Boys would be assessed using a flexible approach, and that the definition of an organization and organized criminality would be considered in broad and unrestricted terms with the Criminal Code in mind. T he reliance of the ID on the applicant’s own criminal activities as part of its assessment of the ongoing existence of the Galloway Boys did not amount to circular reasoning as the applicant argued. Its reasoning was thus not unreasonable on this point.

Determinations of membership in a criminal organization may well overlap with determinations of the existence of a criminal organization, as the organization and its activities in essence consist of the cumulative activities of its members. Thus, the applicant did not establish that the ID’s finding that the Galloway Boys exists and is a criminal organization falling within the scope of paragraph 37(1)(

a) of the Act was unreasonable. With respect to the ID’s finding that the applicant was a member of the Galloway Boys, the ID made an analysis of the applicant’s actions. It noted that the applicant’s conduct and activities were indicative that the applicant was a member of a criminal organization and a member of the Galloway Boys in particular. The fact that both the applicant and the Galloway Boys engaged in certain activities could not alone establish reasonable grounds to believe that the applicant was a member of a criminal organization or of the Galloway Boys in particular.

However, given the rationale provided by the ID and its consideration of the evidence, it was reasonable for the ID to consider that ongoing involvement in such conduct in association with other people was a factor, among others, suggesting membership in a criminal organization. Similarly, the ID’s further connection of such conduct with the Galloway Boys, in particular, was reasonable in the context of the additional grounds for this conclusion cited by the ID.

Nevertheless, the ID went further in a number of places, noting that the use of nicknames was common practice among members of criminal gangs, including the Galloway Boys, and that the applicant’s denial of living off the avails of prostitution was “similar to a Galloway Boys member who also denied being his girlfriend’s pimp”. This wa s unreasonable. To draw any association at all between an individual and organized crime, either in general or as a member of a particular gang, based on the use of nicknames or the denial of a crime goes beyond acceptable reasoning.

Although these specific comparisons were unreasonable, they did not render the ID’s conclusion on the applicant’s membership in a criminal

organization unreasonable. These observations by the ID were not central to either the main conclusion that the applicant was a memberof the Galloway Boys or the principal facts for which they were referenced. Finally, in addition to finding that the applicant was amember of the Galloway Boys, the ID also concluded that the applicant engaged in activity that was part of a pattern of organizedcriminality. This finding constituted a separate ground for inadmissibility under paragraph 37(1)(

a) of the Act that did not depend on afinding that the applicant was a member of the Galloway Boys. In conclusion, the ID’s reasons were thorough, lengthy and detailed. The ID explained the legal and factual basis for its conclusions andthe reasons that it accepted or rejected the evidence. While there were areas in which the reasons could have been more detailed, theymore than adequately met the reasonableness requirements of transparency, justification and intelligibility. STATUTES AND REGULATIONS CITED Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 13. Criminal Code, R.S.C., 1985, c. C-46, ss. 2 “criminal organization”, 467.1(1). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 36, 37, 64(1),(2), 67(1)(c), 173, 175. CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1; Sittampalam v. Canada (Minister ofCitizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198; Thanaratnam v.

Canada (Minister of Citizenship and Immigration),2005 FCA 122, [2006] 1 F.C.R. 474, revg 2004 FC 349, [2004] 3 F.C.R. 301; Thuraisingam v. Canada (Minister of Citizenship andImmigration), 2004 FC 607, 40 Imm. L.R. (3d) 145; British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657. DISTINGUISHED: Ayele v. Canada (Citizenship and Immigration), 2007 FC 126, 60 Imm. L.R. (3d) 197; Kamtasingh v. Canada (Citizenship andImmigration), 2010 FC 45, 87 Imm. L.R. (3d) 118. CONSIDERED: Demaria v. Canada (Citizenship and Immigration), 2019 FC 489, 67 Imm.

L.R. (4th) 56; Canada (Minister of Citizenship andImmigration) v. Singh (1998), 44 Imm. L.R. (2d) 309, (F.C.T.D.); Chiau v Canada (Minister of Citizenship andImmigration), (FC), [1998] 2 F.C. 642, (1998), 141 F.T.R. 81 (T.D.), affd (FCA), [2001] 2 F.C.297, (2001) 195 D.L.R. (4th) 422 (C.A.); Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R.100; Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661; Rajagopal v. Canada (Public Safety andEmergency Preparedness), 2007 FC 523; Younis v. Canada (Citizenship and Immigration), 2008 FC 944, 74 Imm.

L.R. (3d) 115; Moffatv. Canada (Citizenship and Immigration), 2019 FC 896, [2019] 4 F.C.R. 331; Canada (Minister of Citizenship and Immigration) v.Thanabalasingham, 2003 FC 1225, [2004] 3 F.C.R. 523; Odulate v. Canada (Public Safety and Emergency Preparedness), (I.R.B.); R. v. Reeves, 2009 ONCJ 99; Bruzzese v. Canada (Public Safety and Emergency Preparedness), 2014 FC 230, [2015] 2F.C.R. 693; Smith v. Canada (Citizenship and Immigration), 2009 FC 1194, [2011] 1 F.C.R. 36; Pathmanathan v. Canada (Minister ofCitizenship and Immigration), 2009 FC 885, [2010] 3 F.C.R. 440; Shahzada v.

Canada (Minister of Citizenship and Immigration), 2005FC 1176; Badal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 311, 231 F.T.R. 26; Kovacs v. Canada (Minister ofCitizenship and Immigration), 2005 FC 1473, [2006] 2 F.C.R. 456; Pacificador v. Canada (Minister of Citizenship and Immigration),2003 FC 1462, 243 F.T.R. 126; Aissa v. Canada (Citizenship and Immigration), 2014 FC 1156; R. v. Riley (2009), 246 C.C.C. (3d) 552, (Ont. Sup. Ct.); R. v. Abbey (2011), 82 C.R. (6th) 385, 2011 ONSC 1260 ; Abdi v. Canada (Public Safetyand Emergency Preparedness), 2017 FC 950, [2018] 3 F.C.R. 328.

REFERRED TO: Pascal v. Canada (Citizenship and Immigration), 2020 FC 752; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1S.C.R. 339; Pajazitaj v. Canada (Public Safety and Emergency Preparedness), 2019 FC 540; Canadian Pacific Railway Company v.Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3S.C.R. 705; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487; Muneeswarakumar v.Canada (Citizenship and Immigration), 2013 FC 80, 425 F.T.R. 296; Balathavarajan v.

Canada (Minister of Citizenship andImmigration), 2006 FCA 340, 56 Imm. L.R. (3d) 1; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157F.T.R. 35, (F.C.T.D.); Huang v. Canada (Minister of Employment and Immigration) (1992), 166 N.R. 308, [1992]F.C.J. No. 472 (QL) (C.A.); Riley v. Canada (Attorney General), 2011 FC 1226, 403 F.T.R. 75; Walters v. Ontario, 2015 ONSC 4855; Burton v. Canada (Citizenship and Immigration), 2013 FC 549; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670,(1988), 28 B.C.L.R. (2d) 145; Orozco Tovar v. Canada (Citizenship and Immigration), 2009 FC 600, 80 Imm.

L.R. (3d) 266; Mkrtchytanv. Canada (Public Safety and Emergency Preparedness), 2011 FC 921; Communications, Energy and Paperworkers Union of Canada,Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; R. v. Munoz (2006), 86 O.R. (3d) 134, (Sup. Ct.). AUTHORS CITED “Critics say current ‘gangs’ younger, less organized”, CBS News (12 September 2012).

“Notorious Galloway Boys street gang undergoing renewal”, CBC News (11 September 2012). Powell, Betsy. Bad Seeds: The True Story of Toronto’s Galloway Boys Street Gang, Mississauga, Ont.: John Wiley & Sons Canada,2010. APPLICATION for judicial review of an Immigration and Refugee Board, Immigration Division decision ( )concluding that there were reasonable grounds to believe that the applicant is a member of the “Galloway Boys,” a Scarborough-basedcriminal organization. Application dismissed. APPEARANCES Daniel Kingwell for applicant. Gregory George and Daniel Engel for respondent.

SOLICITORS OF RECORD Mamann, Sandaluk and Kingwell LLP, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by McHaffie J.: I. Overview [1] The Immigration Division (ID) of the Immigration and Refugee Board concluded that there were reasonable grounds to believethat Adrian Pascal is a member of the “Galloway Boys,” a Scarborough-based criminal organization, and is therefore inadmissible fororganized criminality under paragraph 37(1)(

a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Although Mr.Pascal concedes that he is also inadmissible on the basis of the ID’s finding of serious criminality under paragraph 36(1)(

a) of the IRPA,the organized criminality finding has serious consequences for Mr. Pascal. In particular, it prevented him from bringing an appeal to theImmigration Appeal Division (IAD), which could otherwise have considered humanitarian and compassionate grounds: IRPA,subsections 64(1),(2), paragraph 67(1)(c). [2] Mr. Pascal argues that in reaching its organized criminality finding, the ID placed unreasonable reliance on certain sources ofinformation, notably the contents of police reports, the evidence of a police officer who had no prior experience with Mr.

Pascal, and a“true crime” book by the Toronto Star reporter Betsy Powell entitled Bad Seeds: The True Story of Toronto’s Galloway Boys StreetGang (Mississauga, Ont.: John Wiley & Sons Canada, 2010) [Bad Seeds]. He also asserts that the ID’s finding that the Galloway Boysare a criminal organization, and its finding that Mr. Pascal is a member of that organization, were unreasonable, challenging a largenumber of the ID’s factual findings. [3] I conclude that the ID’s decision was reasonable.

The ID was entitled to rely on sources of information that might not beadmissible evidence in a court proceeding, provided that it explained why the information was credible or trustworthy. The ID did so,setting out its explanation for accepting information such as the police reports, the officer’s evidence, and the information in Bad Seedsin a clear, understandable and rational manner. The ID’s factual determinations were similarly reasonable, and its resulting conclusionsthat there were reasonable grounds to believe that the Galloway Boys continued to be a criminal organization of which Mr.

Pascal was amember, were justified on the evidence it identified as credible. While there is one aspect of the factual conclusions that I considerunreasonable, namely certain comparisons the ID drew between Mr. Pascal’s conduct and the Galloway Boys, this does not render thedecision as a whole unreasonable. In any case, regardless of the membership determination, the ID also found Mr. Pascal to haveengaged in organized criminal activity, which constitutes an independent ground for inadmissibility under paragraph 37(1)(a). [4] This application for judicial review is therefore dismissed. Subsequent to the ID’s

section 37 finding, Mr. Pascal applied for apre-removal risk assessment (PRRA). That PRRA application was rejected. Mr. Pascal’s application for judicial review of the PRRAdecision was heard concurrently with this application. Separate reasons for dismissing that application are being released concurrently as2020 FC 752. II. Issues and Standard of Review [5] Mr. Pascal raises the following issues on this application: A.

Did the ID err in its assessment of the evidence by: (1) relying on truth of the contents of police reports; (2) relying on the evidence of a police officer who was called as a lay witness; (3) relying on a “true crime” book and newspaper reports; (4) relying on court judgments that referred to the Galloway Boys; and/or (5) discounting Mr. Pascal’s evidence on grounds of credibility? B. Did the ID err in concluding that there were reasonable grounds to believe that the Galloway Boys existed as a criminal organizationduring the relevant period?

C. Did the ID err in concluding that there were reasonable grounds to believe that Mr. Pascal was a member of the Galloway Boys? [6] The first of these issues goes to the ID’s assessment of the evidence before it, the determination of whether and to what extent torely on it, and the weight to be given to it. The latter two issues challenge the particular “reasonable grounds” findings of the ID thatwere central to the organized criminality determination. Each of these issues is reviewable on the reasonableness standard: Demaria v.Canada (Citizenship and Immigration), 2019 FC 489, 67 Imm.

L.R. (4th) 56, at paragraphs 34–36. While the Supreme Court ofCanada’s decision in Vavilov was decided after the hearing of this case, that decision simply confirms that the reasonableness standardapplies: Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paragraphs 16–17, 23–25. [7] In conducting reasonableness review, the Court is to assess whether the decision is justified, transparent and intelligible, focusingon the decision that the tribunal made rather than the conclusion the Court would have reached: Vavilov, at paragraphs 15, 82–87;Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 59. It is not the role of the reviewingcourt to make its own determinations of fact, substitute its view of the evidence or the appropriate outcome, or reweigh the evidence.

It issolely to assess whether the tribunal’s determinations and reasoning are reasonable: Khosa, at paragraphs 59, 61; Pajazitaj v. Canada(Public Safety and Emergency Preparedness), 2019 FC 540, at paragraph 26. [8] Two of Mr. Pascal’s challenges raise fairness issues, namely the ID’s reliance on Bad Seeds and its reliance on facts associatedwith charges laid in 2018. Such questions are reviewed on a “fairness” standard akin to correctness, in which the Court determineswhether the procedure was fair in all the circumstances: Khosa, at paragraph 43; Canadian Pacific Railway Company v.

Canada(Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121, at paragraph 54. III. Analysis A. The Immigration Division’s Reliance on the Evidence was Reasonable [9] The IRPA defines three important aspects of an organized criminality determination: what must be established, the standard towhich it must be established, and the evidence that may establish it. What must be established is set out in paragraph 37(1)(

a) of theIRPA: 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 apattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of anoffence punishable under

an Act of Parliament by way of indictment … or engaging in activity that is part of such a pattern; or [Emphasisadded.] [10] The expression “activity that is part of a pattern of criminal activity planned and organized by a number of persons acting inconcert in furtherance of the commission of an [indictable] offence” is abbreviated, in both the IRPA and the cases, to “organizedcriminal activity”: IRPA, subsection 37(2); Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2005 FCA 122, [2006] 1F.C.R. 474 [Thanaratnam (FCA)], at paragraph 7; Sittampalam v.

Canada (Minister of Citizenship and Immigration), 2006 FCA 326,[2007] 3 F.C.R. 198, at paragraph 47. The Federal Court of Appeal has confirmed that paragraph 37(1)(

a) sets out two “discrete, butoverlapping grounds” for inadmissibility. The first is “membership” in an organization believed on reasonable grounds to be or to havebeen engaged in organized criminal activity (i.e., a criminal organization).

The second is engaging in organized criminal activity, whichdoes not require “membership” in a criminal organization: Thanaratnam (FCA), at paragraphs 5–8, 30. [11] While the term “criminal organization” is used as a shorthand for an organization described in paragraph 37(1)(a), the IRPA doesnot use the term in this section, and adopts the Criminal Code definition of “criminal organization” only in respect of other IRPAprovisions: IRPA, subsection 121.1(1); Criminal Code, R.S.C., 1985, c. C-46,

section 2 (“criminal organization”), subsection 467.1(1).In Sittampalam, the [Federal] Court of Appeal concluded that the decision not to adopt the Criminal Code definition suggests thatcriminal jurisprudence is not directly applicable in the immigration context: Sittampalam, at paragraph 40. Rather, an “unrestricted andbroad”

interpretation applies, consistent with the IRPA’s intent to prioritize the security of Canadians: Sittampalam, at paragraphs 36, 55. [12] At the same time, the Supreme Court of Canada more recently noted that the apparent similarity between

section 37 [of theIRPA] and the Criminal Code concept is “no coincidence” and supports a harmonious

interpretation: B010 v. Canada (Citizenship andImmigration), 2015 SCC 58, [2015] 3 S.C.R. 705, at paragraphs 37, 41–46; Pajazitaj, at paragraphs 30–33. A “criminal organization” forsection 37 purposes shares with the Criminal Code definition at least the fact that the “organization” must be organized in some fashion—i.e., have some form of organizational structure—but need not be formally organized: Sittampalam, at paragraphs 38–39, 55;Thanaratnam v.

Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] 3 F.C.R. 301, at paragraphs 29–31, revd onother grounds 2005 FCA 122, [2006] 1 F.C.R. 474. [13] Being a “member” in a criminal organization is also a matter of “unrestricted and broad”

interpretation: Canada (Minister ofCitizenship and Immigration) v. Singh (1998), 44 Imm. L.R. (2d) 309, (F.C.T.D.), at paragraph 52; Sittampalam, atparagraph 35. Membership can include “belonging to” an organization, and need not require formalities: Poshteh v. Canada (Minister ofCitizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, at paragraphs 27–32; Chiau v.

Canada (Minister of Citizenship andImmigration), (FC), [1998] 2 F.C. 642, (1998), 141 F.T.R. 81 (T.D.) [Chiau (FC)], at paragraph 34, affd (FCA), [2001] 2 F.C. 297, (2001) 195 D.L.R. (4th) 422 (C.A.) [Chiau (FCA)], at paragraphs 55–57. [14] The Minister bears the onus of establishing these elements: Demaria, at paragraph 65. The standard to which they must beestablished is described in

section 33 of the IRPA. That

section states that the facts that constitute inadmissibility for organizedcriminality include facts “for which there are reasonable grounds to believe that they have occurred” (emphasis added). This“‘reasonable grounds’” standard has been described as establishing a standard of proof that is “more than a flimsy suspicion, but less thanthe civil test of balance of probabilities.… It is a bona fide belief in a serious possibility based on credible evidence” [footnote omitted]:

Chiau (FC), at paragraph 27, affd Chiau (FCA), at paragraph 60; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005SCC 40, [2005] 2 S.C.R. 100, at paragraph 114. To similar effect, the Supreme Court of Canada has said that reasonable grounds existwhere there is “an objective basis for the belief which is based on compelling and credible information”: Mugesera, at paragraph 114. [15] The need for “credible” information raises the third relevant question: what evidence may establish the elements of organizedcriminality.

Section 173 of the IRPA states that the ID is “not bound by any legal or technical rules of evidence” but rather “may receiveand base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.” Thisevidentiary flexibility allows the ID to consider evidence from sources that may not be acceptable in a court. It also expressly leaves tothe ID the discretion to make determinations of credibility and trustworthiness: it is what “it considers” credible in the circumstances thatmatters. Nonetheless, this discretion is not “unbridled”.

As with any statutory discretion, it must be exercised reasonably: Demaria, atparagraph 121. [16] Although it predates Mugesera and Sittampalam, I agree with Mr. Pascal that Justice O’Reilly’s statement at paragraph 21 ofThanaratnam (FC) remains a relevant description of the standard and evidentiary threshold applicable under

section 37: Still, there is an important balance to be struck. On the one hand, Parliament has established a fairly low evidentiary threshold in thisarea and has given the decision maker a good deal of freedom to receive any evidence it considers reliable, whether or not it wouldnormally be admissible in a court. Clearly, Parliament wanted the Board to have a maximum amount of flexibility. Further, it did notwant to impose a burdensome evidentiary threshold on the Minister. Yet, the other side of this equation must be emphasized.

Thereasonable grounds standard operates as a protection against arbitrary, capricious or ill-founded state action. … It is an important andmeaningful threshold. It requires an objective assessment and can be satisfied only where it is supported by credible evidence. [Emphasisadded.] [17] The ID set out the foregoing principles in its reasons, which are reported as Pascal v. Canada (Citizenship and Immigration), (I.R.B.), at paragraphs 7–12, 15–19, 22–29, 68–73. Mr. Pascal takes no issue with the ID’s statement of the law onthese general principles.

Rather, his challenge is to the manner in which they were applied in his particular case to the evidence that wasbefore the ID. [18] The ID concluded that there were reasonable grounds to believe the Galloway Boys were a criminal organization within themeaning of

section 37, that they continued to exist, and that Mr. Pascal was and is a member of the Galloway Boys: Pascal, atparagraphs 12, 67, 90, 163, 165, 171, 182–184. The ID also found there were reasonable grounds to believe that Mr. Pascal’s activitieswere part of a pattern of planned and organized criminal activities, i.e., that he had engaged in organized criminality: Pascal, atparagraphs 114, 185. It therefore concluded that Mr. Pascal was inadmissible under paragraph 37(1)(a). [19] In reaching these conclusions, the ID accepted as credible and relied on a number of sources of information. Mr.

Pascal arguesthat the ID erred in determining what constituted “credible and trustworthy evidence,” even within the broader approach to evidence setout in

section 173 of the IRPA. For the reasons set out below, I conclude that the ID’s reliance on this information was reasonable.

(1) The Immigration Division’s reliance on police reports [20] The ID’s conclusion of organized criminality was based in substantial part on findings related to numerous instances of“interactions” between Mr. Pascal and the police. Some of these resulted in criminal convictions. These included a robbery convictionwhen Mr. Pascal was a minor, later convictions for uttering death threats, and the 2014 conviction for assault with a weapon thatresulted in the serious criminality finding under

section 36 of the IRPA: Pascal, at paragraphs 5, 127, 155, 158, 161, 164. However, theID also relied on many incidents that did not result in convictions or even criminal charges. With respect to these, the ID relied on thefacts described in police reports that were filed in evidence. [21] The ID described the basis for relying on these facts at paragraph 84 of its reasons: I find the police reports and associated documents to be credible and trustworthy for the purpose of understanding what occurred atparticular places and times. The criminal charges themselves do not form the basis for my findings.

Rather, the underlying details (i.e.statements, observances, items seized) that I find credible or trustworthy have been considered, along with other credible evidence, on which I base my findings.66 [Footnote in original.] [22] The ID’s footnote in the above passage is to the decision of Thuraisingam v. Canada (Minister of Citizenship and Immigration),2004 FC 607, 40 Imm. L.R. (3d) 145.

In that case, Justice Mactavish, then of this Court, distinguished between relying on the fact thatsomeone has been charged with a criminal offence and reliance on the evidence that underlies the charge: Thuraisingam, at paragraph35. She noted that the charge “proves nothing”, but that the evidence underlying the charge “may indeed be sufficient to provide thefoundation for a good-faith opinion” regarding the allegations at issue. In Sittampalam, the [Federal] Court of Appeal adopted thisreasoning.

Referencing Thuraisingam, the Court noted that charges cannot be used “in and of themselves” as evidence of criminality, butthat “evidence surrounding withdrawn or dismissed charges can be taken into consideration”: Sittampalam, at paragraph 50. [23] Mr. Pascal argues that this Court has held that police reports are not inherently reliable for the truth of their contents, pointing tothe decisions in Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661; Rajagopal v. Canada (Public Safetyand Emergency Preparedness), 2007 FC 523; Younis v.

Canada (Citizenship and Immigration), 2008 FC 944, 74 Imm. L.R. (3d) 115;and Demaria. He further says that the ID’s reliance on the police reports (or the facts underlying them) amounted to a “credulous andwholesale acceptance of the reports for the truth of their contents, without analysis.” [24] In my view, Mr. Pascal overstates the conclusions of these cases, and understates the ID’s analysis. Each of the identified caseseffectively applied the approach described in Thuraisingam and Sittampalam.

That approach recognizes that the mere fact of a chargecannot be relied on, but that the evidence underlying it, which can include police reports, can be relied on if the reason for doing so isexplained. [25] In Veerasingam, for example, Justice Snider concluded that the police reports in that case could not be reasonably considered

reliable and credible evidence of a kidnapping event. However, she did not reach this conclusion simply because the evidence was in a police report or because the officer who prepared it did not testify. She reviewed the report itself and found it was based on an interview of a witness who was “far from certain” that the alleged victim was forced, and provided conflicting descriptions: Veerasingam , at paragraph 11 .

Notably, Justice Snider recognized that even in such circumstances, the IAD could have preferred the evidence of the police report to that of the applicant, if they had explained why and weighed the evidence. However, no such weighing was done: Veerasingam , at paragraph 12 . [ 26 ] The same concern was at the heart of Justice Mosley’s decision in Rajagopal . There, the IAD adopted the contents of a police report because the applicant had pled guilty to the charges in it.

Since the police report consisted of allegations as recorded upon investigation, not the findings of the court upon conviction, it was inappropriate to simply make that assumption: Rajagopal , at paragraphs 40–43 . Notably, Justice Mosley confirmed, as had Justice Snider, that it was open to the IAD to make the finding that it preferred the reports to the testimony of the applicant, but that it had not done so: Rajagopal , at paragraph 43 . [ 27 ] In Younis , Justice Russell referred to each of Thuraisingam , Rajagopal and Veerasingam .

He concluded that the IAD had fallen into error both for relying on the charge itself and for failing to assess the reliability and credibility of a report to Crown counsel. On the former, Justice Russell held that the IAD had “failed to make the necessary distinction between the fact that the proposed charges were mere allegations and that the Applicant had not been convicted of the offences” : Younis , at paragraph 55 .

On the latter, Justice Russell found that the IAD’s decision was “void of any discussion regarding the reliability and credibility” of the report, suggesting that the IAD had “failed to turn its mind” to that issue: Younis , at paragraph 56 . [ 28 ] Justice Russell’s conclusions in Younis are similar to his conclusions a decade later in Demaria .

In that case, the ID’s conclusion on organized criminality was tied to “personal convictions of the three police officers who provided reports and evidence,” and it failed to provide “any real analysis of the reliability of the evidence provided to support” those convictions: Demaria , at paragraph 149 .

Justice Russell also expressed concern that the ID had simply relied on the conclusions of the officers rather than assessing specific facts that related to membership in a criminal organization: Demaria , at paragraph 128 . [ 29 ] Thus the import of each of these cases is that the decision maker must assess and reach a conclusion that the contents of a police report are “credible or trustworthy,” rather than ignoring the question or simply making an assumption to that effect.

If such an assessment is made, this Court and the [Federal] Court of Appeal have accepted that it may be reasonable to rely on police reports, even where the facts described in them are not separately corroborated by testimony of officers or witnesses: Sittampalam , at paragraphs 52– 53 ; Veerasingam , at paragraph 12 ; Rajagopal , at paragraph 43 ; see also Muneeswarakumar v.

Canada (Citizenship and Immigration) , 2013 FC 80 , 425 F.T.R. 296, at paragraphs 20–26 . [ 30 ] In the present case, the ID concluded that the police reports were credible and trustworthy “for the purpose of understanding what occurred at particular places and times.” It expressly confirmed that it was not relying on the criminal charges themselves, which is consistent with Sittampalam . I do not agree with Mr. Pascal that the ID simply accepted the police reports in their entirety without analysis.

To the contrary, the ID stated that it was only relying on “the underlying details (i.e. statements, observances, items seized) that I find credible or trustworthy ” (emphasis added), which were considered together with other credible evidence: Pascal , at paragraph 84. I read this to mean that it was only those portions of the police reports that were found to be credible or trustworthy that were accepted, a view that is reinforced by the ID’s later reference to its assessment addressing “underlying evidence that I find to be credible or trustworthy” : Pascal, at paragraph 91.

Elsewhere, the ID made specific reference to information in those reports, and the reasons it was found credible and trustworthy: Pascal, at paragraphs 100, 140–141. It also referred to Mr. Pascal’s evidence in respect of the incidents described in the reports, noting points of difference and explaining why Mr. Pascal’s evidence was not accepted: Pascal , at paragraphs 102–108, 116, 118–128, 130–141, 151–154. [ 31 ] Veerasingam , Rajagopal , Younis and Demaria each describe circumstances in which there was effectively no consideration or analysis of whether police reports were credible or trustworthy.

Beyond these cases, there is little discussion in the jurisprudence of how much analysis is necessary to justify the acceptance of police reports as “credible or trustworthy.” At paragraph 53 of Sittampalam , the [Federal] Court of Appeal made the following observations without significant discussion of the extent of the ID’s analysis: 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.… [Emphasis added; citation omitted.] The [Federal] Court of Appeal’s conclusions at paragraphs 12 and 13 of Balathavarajan v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 340 , 56 Imm. L.R. (3d) 1, addressing the same language in

section 175 of the IRPA , are to similar effect. [ 32 ] Consistent with the language of

section 173 , the “circumstances” of a case will be relevant to whether a determination that evidence is credible or trustworthy is reasonable. However, provided that the decision maker has turned their mind to whether the evidence is “credible and trustworthy in all the circumstances,” and provides a determination on that issue that is reasonable and based in the evidence, i.e. that meets the requirements of justification, transparency and intelligibility, this Court ought not to intervene. [ 33 ] Notably, while Mr.

Pascal asserts that his evidence contradicted that in the police reports, this typically came in the form of explanations for the stated facts, rather than assertions that the reports did not accurately record statements, or that the identified facts did not occur. In some cases, Mr. Pascal’s evidence largely confirmed that in the police reports. For example, the police reports related to an incident that took place at a party in Aurora on July 1, 2016 indicated that people had been shot, that witnesses had observed Mr.

Pascal and others get into a white Porsche, that a “high risk take down of the vehicle was conducted,” that Mr. Pascal and four others were arrested, that shell casings were observed in the car and that various evidence was seized including various large sums of cash. Mr. Pascal’s testimony confirmed that shots were fired, and that he got into a white Porsche and they “took off down the highway, tried to get away,” but were pulled over and arrested.

While he also gave evidence that he only saw the others for the first time in the car, and that he hopped into the car because he could not find his uncle with whom he had arrived, none of this evidence contradicted the facts as set out in the police reports. Nor did Mr. Pascal state that anything in the police reports was incorrect.

[ 34 ] While the ID’s discussion and analysis of its reasons for accepting the police reports could have been more detailed in places, I cannot find that it was so lacking as to make it unreasonable. I therefore find that the ID’s conclusion that elements of the police reports were credible and trustworthy in the circumstances, and its reliance on the contents of those reports, was reasonable. [ 35 ] Mr. Pascal makes two further arguments regarding the ID’s treatment of the police reports.

He argues that the ID was “unconcerned with the disposition of charges,” and that this was unreasonable because the fact that the charges did not result in convictions is relevant. In my view, this is not a fair characterization of the ID’s decision. The passage Mr. Pascal points to is at the outset of a lengthy discussion of “Police Interaction and Indicia of Membership,” in which the ID reviews the evidence of Mr. Pascal’s interactions with the police in an effort to assess whether he was a member of a criminal organization: Pascal , at paragraph 89.

The ID stated the following: In my assessment of the evidence of Mr. Pascal’s interactions with police, I have not focused on the criminal charges laid or the courts’ dispositions . The police and the courts have their own particular criteria, evidentiary rules and legal standard when coming to their conclusions. They are different from how the Immigration Division assesses evidence under s. 37(1)(

a) of the Act. [Emphasis added.] [ 36 ] In my view, this statement is entirely consistent with the approach to the evidence and information underlying criminal charges that is described in cases such as Sittampalam . Deciding not to “focus on” the particular charges laid or the dispositions does not equate to a lack of concern or recognition that charges have not resulted in convictions. Indeed, the ID referred to the resolution, withdrawal or stay of charges on a number of occasions, and made no mistaken assumptions about Mr. Pascal being convicted.

Rather, the ID assessed the underlying facts in determining whether there were reasonable grounds to believe that Mr. Pascal was a member of a criminal organization. The [Federal] Court of Appeal has confirmed this is reasonable: Sittampalam , at paragraph 50 . [ 37 ] Mr. Pascal also takes issue with the ID’s statement that it found a police report related to a 2006 stabbing incident in London was “credible and trustworthy, as I have no credible evidence to view it otherwise” : Pascal , at paragraph 140.

He argues that this amounts to a finding that the reports themselves established an evidentiary burden to refute. I believe this argument takes a sentence out of context in an effort to ascribe to it an unreasonable

interpretation. The statement was part of a detailed consideration of the 2006 incident, that included references to Mr. Pascal’s own testimony, to the inconsistencies in his evidence, and to statements that were reported as having been made to the London police. The ID found Mr.

Pascal’s testimony not to be credible or trustworthy given the inconsistencies, and preferred the evidence as set out in the police report, noting also that there was “no evidence that London police viewed these three men any differently from other people in the city.” In other words, the ID did not conclude that the police report was credible simply because there was no credible evidence to the contrary. It considered the evidence and explained why it preferred the evidence in the police report over that of Mr. Pascal.

This is precisely the type of analysis that is described as reasonable in Veerasingam and Rajagopal .

(2) Evidence of Officer Petersen [ 38 ] The only witness put forward by the Minister before the ID was a constable with the Toronto Police Service (TPS), Kris Petersen. The Guns and Gangs Unit of TPS tasked Officer Petersen to prepare a report about Mr. Pascal, which is described as both a statement of his anticipated evidence and as a “Purposed Expert Report.” That report, filed with and relied on by the ID, includes background on the Galloway Boys, summaries of information contained in police databases involving Mr.

Pascal, and other information relating to indicia used by TPS to assess whether an individual is a gang member. The report concludes with Officer Petersen giving his “opinion” that Mr. Pascal is a member of the Galloway Boys (or Galloway Boyz). [ 39 ] Officer Petersen was not qualified as an expert witness.

He gave evidence as a lay witness regarding the contents of his report, including the indicia used by police to assess gang membership, and his conclusions. [ 40 ] The ID relied on Officer Petersen’s report and testimony, concluding that he was “a credible and trustworthy witness” and giving his testimony “significant weight” : Pascal , at paragraph 74. The ID indicated that its findings regarding the Galloway Boys and Mr. Pascal were “not based primarily on Officer Petersen’s beliefs or report” and that they “form a small portion of the credible evidence” : Pascal , at paragraph 83. Mr.

Pascal questions this characterization, noting the numerous references to Officer Petersen’s evidence to argue that the ID “relied heavily” on his evidence. While I do not believe it affects the outcome, I believe that a fair assessment falls between these two descriptions. The ID certainly refers to and relies on Officer Petersen’s evidence frequently in its reasons.

Overall the evidentiary references in the ID’s decision are drawn largely from a combination of Officer Petersen’s report (part of Exhibit AH-1) and his testimony; the Bad Seeds book (Exhibit AH-24); the police reports (Exhibits AH-3, AH-8, AH-15 and AH-17); news articles; and Mr. Pascal’s testimony. [ 41 ] Mr. Pascal argues that there are a number of reasons to question Officer Petersen’s reliability, essentially repeating his submissions to the ID on the issue. In my view, none of these issues renders the ID’s reliance on Officer Petersen’s evidence unreasonable. Rather, they amount to Mr.

Pascal asking this Court to substitute its assessment of credibility for that of the ID, which is not this Court’s role on judicial review. [ 42 ] As noted, Officer Petersen was not called or qualified as an expert witness. Mr. Pascal argues that this meant that the ID had to provide “detailed reasons” for accepting his lay evidence. Mr.

Pascal put forward no authority for the proposition that the ID was required to provide any greater or more detailed assessment of a police officer’s lay evidence than that of any other witness, other than Justice Annis’s recent discussion of the dangers of misusing expert evidence in the context of a psychological expert report: Moffat v. Canada (Citizenship and Immigration) , 2019 FC 896 , [2019] 4 F.C.R. 331 , at paragraphs 26–28 . [ 43 ] In any case, the ID did not “merely repeat and adopt” Officer Petersen’s evidence, as Mr. Pascal contends.

It gave detailed consideration of the nature of his report and the basis for it; his extent or lack of knowledge with respect to the Galloway area, the Galloway Boys and Mr. Pascal; and the criticisms of his evidence raised by Mr. Pascal. The ID’s conclusion that Officer Petersen was credible and trustworthy was based on its findings that his evidence was forthright, unembellished, non-contradictory, unchanged on cross-examination, unbiased, straightforward, neutral and professional: Pascal , at paragraphs 74–82.

The ID also noted that Officer Petersen had issued reports in the past that did not reach a conclusion of gang membership, and found that his lack of personal interactions with Mr. Pascal increased his objectivity and neutrality. It is difficult to see how this can be described as failing to assess

Officer Petersen’s credibility, trustworthiness or evidence or amounted to “adopting blindly” his assessment: Canada (Minister ofCitizenship and Immigration) v. Thanabalasingham, 2003 FC 1225, [2004] 3 F.C.R. 523, at paragraphs 105–107. [44] Mr. Pascal’s reference to the rejection of police evidence in Demaria, Thanabalasingham and Odulate v. Canada (Public Safetyand Emergency Preparedness), (I.R.B.) is of little assistance. In the first case, Justice Russell found the ID’s relianceon the police officers’ evidence unreasonable based on the nature of both the evidence and the ID’s reliance on it.

In the latter two cases,the ID decided not to accept the evidence of police officers based on its assessment of that evidence. Neither can nor should predeterminethe outcome of the ID’s assessment of Officer Petersen’s evidence in this case, nor does the rejection of evidence in other cases make theacceptance of it in this case unreasonable. This is so even if that evidence shares some of the qualities or limitations cited by otherdecision makers. [45] I also do not accept Mr.

Pascal’s argument that problems with Officer Petersen’s evidence were effectively adopted by the IDthrough its reference to his report, even though the ID did not rely on those aspects of the evidence. Mr. Pascal cites, for example, aconcern about the analytical framework for gang membership used by Officer Petersen, as well as reliance on three of the indicia used bythe police in that assessment. Mr.

Pascal notes that the expert he called at the hearing criticized that framework, and points to allegeddeficiencies in Officer Petersen’s analysis based on the framework. [46] However, the ID did not adopt Officer Petersen’s analysis on these points. To the contrary, the ID stated that the police criteriawere credible, but that it undertook an independent determination about whether Mr. Pascal’s interactions with police and his personalassociations met the

interpretation of “membership” under paragraph 37(1)(

a) set out by this Court: Pascal, at paragraph 87. The ID alsoreferred expressly to the expert report filed by Mr. Pascal in recognizing that there is no standard definition of a gang and no exhaustivelist of criteria of gang membership: Pascal, at paragraphs 79, 85. While Mr. Pascal criticizes Officer Petersen for relying on a cardwritten by a police officer as “physical evidence”, the ID did not rely on this, stating instead that “Mr. Pascal has not been found to havein his possession any physical indicia of the Galloway Boys”: Pascal, at paragraph 169.

The Court’s role is to review the reasonablenessof the ID’s decision, not the reasonableness of aspects of Officer Petersen’s evidence that were not relied on by the ID. Nor do I agreethat it was incumbent on the ID to refer to these issues in assessing Officer Petersen’s evidence. The ID was not obliged to refer to everypiece of evidence or every argument raised by Mr. Pascal: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)(1998), 157 F.T.R. 35, (F.C.T.D.), [[1999] 1 F.C. D-53 (Digest)], at paragraph 16. [47] I similarly do not intend to address each argument raised by Mr.

Pascal in criticism of Officer Petersen’s testimony, except tonote that I do not find them, individually or cumulatively, to demonstrate that Officer Petersen was “demonstrably unreliable” or that itwas unreasonable for the ID to rely on his evidence. I will, however, address two further arguments on which Mr. Pascal puts particularweight. [48] First, Mr. Pascal identifies what he says is a fundamental concern, namely that Officer Petersen did not know Mr. Pascal eitherprofessionally or personally. He was not involved in any of Mr.

Pascal’s interactions with police, had not prepared any of the policereports, and had never met him. I agree with Mr. Pascal that this means that Officer Petersen’s evidence, as it related to Mr. Pascal’sactions, was necessarily second hand. Rather, it was based on his review of reports that were either also filed with the ID, or in somecases had been reviewed by him separately.

Officer Petersen also indicated that his information with respect to the Galloway Boys camefrom both his own experience and from other sources, including other officers, intelligence reports, and information from wiretaps. [49] I agree that this absence of personal experience with Mr. Pascal is something that could, and should, be considered by the ID inits assessment of the officer’s evidence and whether it was reliable or trustworthy.

The ID did so, noting that in its view, it did notundermine the reliability, credibility or trustworthiness of Officer Petersen’s evidence, and in fact increased his objectivity: Pascal, atparagraph 81. This type of assessment is within the discretion of the ID and was reasonable. There is no requirement that a police officerhave had direct involvement in one or more arrests of an individual before their evidence is admitted and given weight in an immigrationproceeding. Such a requirement would be contrary to both

section 173 of the IRPA and the Federal Court of Appeal’s recognition that“credible [or] trustworthy [evidence]” can at times be “tenuous” and can include evidence from undisclosed police informants or evendouble hearsay: Balathavarajan, at paragraph 12; Huang v. Canada (Minister of Employment and Immigration) (1992), 166 N.R. 308,[1992] F.C.J. No. 472 (QL) (C.A.). [50] Second, Mr. Pascal points to the decision of the Ontario Court of Justice in R. v. Reeves, 2009 ONCJ 99.

In that criminal matter,the Court found Officer Petersen’s testimony to be “erroneous, exaggerated, inconsistent or patently contradicted” by other reliableevidence, and was left with “grave concerns” about his credibility. The Court found that Officer Petersen conducted an illegal search and“was prepared to conceal his illegal conduct by omitting crucial information from his notes and his evidence”: Reeves, at paragraphs 55–58, 81. These are serious findings that can be argued to undermine the credibility and trustworthiness of Officer Petersen’s evidence inother cases. Mr.

Pascal did make that argument, and it was considered but not accepted by the ID. The ID found that the Court’sfindings, in the context of 17 years of policing and testifying in court, did not negatively impact the credibility and trustworthiness ofOfficer Petersen’s report and his testimony: Pascal, at paragraph 82.

It is not this Court’s role to reassess that credibility determinationbased on how it might view the earlier findings, nor to substitute its own assessment on Officer Petersen’s credibility. [51] I also do not agree that the ID’s conclusions on this issue showed an unreasonable inconsistency in the ID’s approach tocredibility findings. Mr. Pascal argues that the ID was prepared to overlook the serious conclusions in Reeves while at the same timefinding Mr. Pascal not credible based on “minor concerns”, notably misrepresentations to the court at a sentencing hearing and hisbreaches of recognizance orders.

Again, I do not find this criticism justifies interfering with the ID’s credibility assessment. Credibilitydeterminations are necessarily context-dependent, and attempting to equate the reasons given for different credibility assessments risksstripping them of that context. In the present case, in addition to the grounds related to misrepresentations and breaches of court orders,the ID made other credibility findings with respect to Mr.

Pascal’s testimony, including as to his claim that he had not seen his friends ata party in Aurora before leaving the party, the reasons he gave for owning and using a bulletproof vest, his inconsistent evidence aboutthe London stabbing incident, and his self-serving evidence regarding an alleged assault of his girlfriend in 2010: Pascal, at paragraphs104–106, 120–124, 130–135, 154. These findings were open to the ID on the evidence. The fact that the ID made these findings whileaccepting Officer Petersen as credible notwithstanding the statements in Reeves does not make its decision unreasonable.

[ 52 ] Ultimately, Mr. Pascal concedes that Officer Petersen’s testimony was admissible. His argument is that it should not have been given weight, or as much weight, given identified concerns with his experience and history. The ID’s weighing of the evidence was not unreasonable, and absent such unreasonableness, this Court is not to undertake its own reweighing on judicial review.

(3) Reliance on Bad Seeds [ 53 ] Bad Seeds is a book about the arrest and conviction of three men for a murder and an attempted murder in 2004. One of those convictions was set aside on appeal, but the convictions of two other men, Tyshan Riley and Philip Atkins, remained in force at the time of the ID’s hearing. Bad Seeds was written as a “true crime” story by a Toronto Star journalist, Betsy Powell. The book covers the details of the arrest and trial, but also discusses more broadly the context of gangs in Toronto and the Galloway Boys in particular.

Riley was accused of being the leader of the Galloway Boys, and Atkins a senior gang member. Riley and Atkins were convicted of murder, attempted murder and commission of an offence for a criminal organization. [ 54 ] The ID found Bad Seeds to be a source of credible and trustworthy evidence, giving it “full weight” : Pascal , at paragraphs 31– 32. The ID made fairly extensive use of Bad Seeds, citing it some 38 times in footnotes in support of various factual conclusions. As Mr. Pascal notes, these references pertain to both the nature and existence of the “Galloway Boys”, and to conclusions that Mr.

Pascal’s conduct paralleled those of members described in the book. [ 55 ] Mr. Pascal criticizes the ID’s reliance on Bad Seeds for reasons similar to those raised in respect of the police reports, saying that it was adopted in its entirety, without analysis. He submits that this Court has criticized the adoption of news articles without explanation: Thuraisingam , at paragraph 39 ; Demaria , at paragraphs 143–145 . [ 56 ] This Court has recognized that the ID may rely on news articles in appropriate cases even though they may not be admissible in a court proceeding: Bruzzese v.

Canada (Public Safety and Emergency Preparedness) , 2014 FC 230 , [2015] 2 F.C.R. 693 , at paragraphs 57–58 . At paragraph 57 of Bruzzese , Justice de Montigny, then of this Court, recognized both the concerns associated with news articles and their admissibility in immigration proceedings: It is no doubt true that news articles could not be considered as evidence of specific facts about specific incidents in a court of law, that the author of an

article is not available for cross-examination, and that news reports are sometimes inaccurate, unreliable and based on hearsay . That being said, the

article of the Toronto Star is well documented and quotes from Italian authorities and Italian decisions . The applicant has not seen fit to refute the information reported and has not pointed to any factual error save on a tangential point. He was contacted by the journalist for an interview but declined to respond. In those circumstances, the ID members could reliably use this media

article to make a finding of association . [Emphasis added.] [ 57 ] Justice Russell cited this passage in Demaria , concluding that “[t]he weight that can be given to newspaper articles depends very much upon context and general indicia of reliability” : Demaria , at paragraphs 142–143 .

Justice Russell concluded in that case that the ID had not addressed what indicia of reliability it was relying on and, having reviewed the articles, concluded that they did not provide any factual basis to support reasonable grounds to believe: Demaria , at paragraphs 114, 144–145 . [ 58 ] Again, I disagree that the ID adopted the Bad Seeds book “without analysis”.

Rather, the ID gave the following reasons for its reliance on the facts set out in the book at paragraph 32 of its decision: While Bad Seeds is written in the style of a novel, the information is of the same quality found in the news articles and criminal court documents in evidence. The author is a veteran crime journalist who covered the preliminary hearing and murder trial of Tyshan Riley, Phillip Atkins and [the third individual]. The author sifted through hundreds of hours of evidence, from wiretaps to police interviews with suspects and witnesses.

The book is filled with quotes and information from researchers, community leaders, police, the criminal court, and Galloway Boys members themselves . I find this book was written using journalistic standards of checking sources, researching details and quoting accurately . The book provides a history of Toronto street gangs, as well as insight into a distinct group of people from southeast Scarborough. [Emphasis added; footnote omitted.] [ 59 ] In considering particular information contained within the book, the ID referred to additional indicia of credibility.

In referring to the evidence of a witness at the trial of Riley and Atkins, the ID noted that he was found to be a credible witness at the preliminary hearing and had extensive association with the accused: Pascal , at paragraph 45. The ID referred to this individual’s trial evidence, as reported in Bad Seeds, on a number of occasions: Pascal , at paragraphs 34, 36, 42, 45, 162. [ 60 ] In my view, these are reasonable grounds to assess the credibility and trustworthiness of the book as a source of information, and take the ID’s decision outside the circumstances described in Demaria .

It is also worth noting that, as in Bruzzese , Mr. Pascal does not point to any evidence contradicting the aspects of Bad Seeds on which the ID relied. [ 61 ] Mr. Pascal also argues that Bad Seeds was of limited relevance, since it only described events and the existence of the Galloway Boys leading up to 2004, when Riley, Atkins and many others identified as being Galloway Boys members were arrested. While this is largely true, it is consistent with the use the ID made of the book.

The ID relied on the book in assessing the existence and nature of the Galloway Boys based on pre-trial and trial evidence and the author’s other sources. It also considered the impact of the arrests and the evidence relating to the post-2004 time frame, referencing evidence that quoted both those who believed in the continued existence of the gang and those who believed that subsequent criminal activity was more individualistic than gang-related.

The ID concluded “I do not find that the Galloway Boys ceased to exist just because police arrested 17 people believed to be linked to the group” [footnote omitted] : Pascal , at paragraphs 59–62. This type of factual inference based on the evidence is part of the ID’s mandate of determining whether there are reasonable grounds to believe. I do not find it unreasonable for the ID to use the Bad Seeds book for this purpose. [ 62 ] Mr. Pascal also argues that it was unfair for the ID to place substantial reliance on Bad Seeds given the way in which the book was introduced into evidence.

The Minister initially disclosed excerpts from the book as part of its initial disclosure, filed on the first day of the hearing. In response, Mr. Pascal filed other excerpts from the book as part of his disclosure, also filed on the first day of the hearing. At the tail end of the hearing, the Minister filed the entirety of the book, without objection from Mr. Pascal, and referred to a number of passages in it in closing argument. In written closing submissions, Mr. Pascal noted that he had not had the opportunity to

respond to one aspect of the book, namely the significance of behaviour such as names wrapped in a vegetable in a refrigerator (to which the ID made no reference). However, he raised no argument regarding the fairness of admitting the book into evidence. Having consented to its admission into evidence, Mr. Pascal cannot argue that it was unfair for the ID to rely on the book to a greater degree than he expected. The ID was not limited in its ability to rely on those parts of the evidence it found reliable or trustworthy. While the extent of the ID’s reliance on this evidence may have surprised Mr.

Pascal, this does not render it unfair in the circumstances. [ 63 ] Finally, as with his arguments about Bad Seeds, Mr. Pascal criticizes the ID’s reliance on other news articles, again asserting that the ID provided no analysis of its reasons for finding the articles trustworthy. I cannot accept this argument. The ID’s reasons for relying on the news articles are certainly less clear than they were for Bad Seeds.

Indeed, the reference to the quality of information in the news articles found in the passage about Bad Seeds reproduced at paragraph 58 above is the only location in which the reliability of the articles is directly addressed. However, this is likely due to the fact that both parties filed a number of news articles with the ID, and Mr. Pascal did not argue that the news articles filed by either him or the Minister should not be relied upon. To the contrary, Mr. Pascal made arguments referring to and relying on the contents of the articles.

Indeed, the articles referenced by the ID in its reasons included those filed by Mr. Pascal. The result is that Mr. Pascal is now at least in part arguing that it was unreasonable for the ID to rely on the very evidence he put forward and argued should be relied on. In such circumstances, I cannot find the ID’s limited assessment of the reliability of the news articles unreasonable.

(4) Judgments that refer to the Galloway Boys [ 64 ] Mr. Pascal criticizes the ID’s reliance on other court judgments that refer to the Galloway Boys, arguing that it is an error to adopt factual findings of other courts, and that the judgments made no findings that the Galloway Boys were a criminal organization. Mr. Pascal refers to decisions of this Court that caution against lifting factual findings from other courts or tribunals: Smith v. Canada (Citizenship and Immigration) , 2009 FC 1194 , [2011] 1 F.C.R. 36 , at paragraph 61 ; Pathmanathan v.

Canada (Minister of Citizenship and Immigration) , 2009 FC 885 , [2010] 3 F.C.R. 440 , at paragraph 43 ; Shahzada v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1176 , at paragraph 6 . [ 65 ] I am not persuaded that the ID erred in referring to conclusions from other court decisions. The jurisprudence does not create an absolute bar to referring to, or relying on, the facts as found in prior proceedings.

I note that the decisions in Smith , Pathmanathan and Shahzada each pertained to evidence of “country conditions” in the refugee context, and in particular issues such as state protection and the risk of persecution: Smith , at paragraphs 54–61 ; Pathmanathan , at paragraphs 35–43 ; Shahzada , at paragraphs 5–6 .

As Justice de Montigny stated in Smith , “[i]t has been held time and again that it cannot be conclusively determined, on the basis of previous findings of state protection (or lack thereof) pertaining to a particular case, that state protection exists or does not exist in a particular country” : Smith , at paragraph 61 . Even in that context, though, the Court noted that a board can rely on the fact-finding of another panel to a certain extent, but such reliance must be “‘limited, careful and justified’” : Shahzada , at paragraph 6 , citing Badal v.

Canada (Minister of Citizenship and Immigration) , 2003 FCT 311 , 231 F.T.R. 26, at paragraph 25 . [ 66 ] A finding that a particular event occurred on a particular day, or that an organization exists, is of a different nature than a finding that, for example, state protection is available in a given country.

While still relevant, the cautions in Smith , Pathmanathan , Shahzada and Badal may not be as directly applicable in the context of specific factual findings referenced in other judgments. [ 67 ] The Minister pointed to other cases in which this Court has held that other court or tribunal decisions regarding the same individuals may be “relevant and important evidence” that should be considered, even if it is not binding: Kovacs v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1473 , [2006] 2 F.C.R. 456 , at paragraphs 9–10 ; Pacificador v.

Canada (Minister of Citizenship and Immigration) , 2003 FC 1462 , 243 F.T.R. 126, at paragraph 83 ; see also Aissa v. Canada (Citizenship and Immigration) , 2014 FC 1156 , at paragraph 73 . Those cases involve findings in prior court or tribunal decisions that relate to the applicants themselves, and are thus also not directly parallel to the current situation. [ 68 ] A prior decision involving the same party was also at issue in Malik , in which the Supreme Court of Canada considered use of earlier decisions more broadly: British Columbia (Attorney General) v. Malik , 2011 SCC 18 , [2011] 1 S.C.R. 657.

After considering principles of litigation efficiency and fairness, Justice Binnie for the Court concluded that whether a prior decision is admissible is not a matter of “rigid rules”, but will depend on the purpose for which it is put forward, and the use sought to be made of its findings and conclusions: Malik , at paragraphs 37, 44–46 .

The weight to be given to such findings will then “depend on the circumstances of each case”, considering matters such as the identity of the participants, the similarity of the issues, the nature of the earlier proceedings, and the opportunity given to the prejudiced party to contest it: Malik , at paragraphs 47–48 . [ 69 ] In my view, the Malik factors provide a useful framework for considering the ID’s reliance on prior decisions. The concern about litigation efficiency, the avoidance of “rigid rules”, and consideration of the “circumstances of the case” echo the principles reflected in

section 173 of the IRPA . The identity of the participants, the similarity of the issues, and the nature of the earlier proceedings are all relevant to the question of whether the information is credible and trustworthy. And in the administrative law context, the relevance of an opportunity to address the prior findings is an issue of procedural fairness, a concern raised in both Smith (paragraphs 57–60 ) and Pathmanathan (paragraphs 37–41 ). [ 70 ] In the present case, there was no issue of either admissibility or of fairness, as the earlier decisions were filed on consent and Mr.

Pascal had the opportunity to address them as necessary. In my view, although the prior decisions did not involve Mr. Pascal, the nature of those proceedings and the limited use the ID made of them lead to the conclusion that the ID’s reliance on the decisions was reasonable. [ 71 ] I agree with the Minister that Mr. Pascal overstates the case in saying that the ID “relied extensively on perceived findings in other court judgments.” The ID included a two paragraph

section entitled “Court Findings Re: the Galloway Boys” at the conclusion of a lengthy discussion of the evidence related to whether the Galloway Boys exist as a criminal organization: Pascal , at paragraphs 65–66. In those paragraphs, the ID referred to the 2009 convictions of Tyshan Riley and Philip Atkins for murder, attempted murder and commission of an offence for a criminal organization, namely the Galloway Boys; and to a guilty plea by the girlfriend of one of the men to conspiracy to intimidate a witness for the benefit of a criminal organization. The ID also referred to statements of Justice Dambrot—

who conducted the trial at which Riley and Atkins were convicted—in a pre-trial application to exclude evidence: R. v. Riley (2009), 246C.C.C. (3d) 552, (Ont. Sup. Ct.).

There, Justice Dambrot referred to evidence of a 2004 attempted robbery inPickering, which occurred after Riley and Atkins were arrested, as being “strong evidence” in support of the criminal organizationcharge: Riley, at paragraphs 161–162. [72] While the judgments of the Ontario Superior Court on those convictions were not in the record, information confirming theexistence of the convictions appeared in the Bad Seeds book, as well as in a decision of this Court, Riley v. Canada (Attorney General),2011 FC 1226, 403 F.T.R. 75, at paragraph 5.

In my view, the existence of the conviction of Riley and Atkins, including their convictionon criminal organization charges for being members of the Galloway Boys, is relevant to the issue of the existence of the GallowayBoys. It would be contrary to the intention shown in sections 33 and 173 of the IRPA to effectively require a retrial of this criminal casebefore it could be considered as part of the overall evidence regarding the existence of the Galloway Boys. There is no indication that theID relied on either the convictions or the information regarding th

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