IONEL ION Applicant v. THE MINISTER OF CITIZENSHIP, 2015 FC 746

Date: 20150612 Docket: IMM-5146-14 Citation: 2015 FC 746 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, June 12, 2015 Present: The Honourable Mr. Justice Shore BETWEEN: IONEL ION Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS (judgment delivered from the bench) I.

Preliminary [ 1 ] The Immigration Division (ID) of the Immigration and Refugee Board of Canada found that the applicant’s conviction on the charges brought against him, with respect to the applicant was represented by counsel at the time of his guilty plea, is sufficient to conclude that the applicant engaged in activities linked to a criminal organization, according to the terms of paragraph 37(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 (IRPA). [ 2 ] The Federal Court has recognized that a guilty plea from an individual affiliated with a criminal organization following a modus operandi is the best proof possible of a criminal offence since it is recognition of the commission of an offence.

In this respect, the Court adopts the words of Justice Yvan Roy in Daia c Canada (Ministre de la Sécurité publique et de la Protection civile) , 2014 CF 198 at para 15 ( Daia ): [15] She pleaded guilty to five offences relating to her activities with this same group of people, which is the best proof possible. She acknowledged that she committed these offences, including having the required mens rea . These admissions cannot be reversed. Other charges weigh on her for similar activities in Ontario.

The applicant asks for leniency in the sentence that would have been imposed on her and claims that [translation] “the panel did not review the applicant’s testimony in its context and in light of all the evidence”. These allegations had nothing to do with the standard of reasonableness that was described in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, ( Dunsmuir ) at paragraph 47 . [ 3 ] The ID notes, in particular, that the applicant is a key player in the criminal operations for which he was accused and convicted.

The evidence shows that the applicant facilitated the commission of two robbery attempts as a driver and that his role was essential to the modus operandi of the organization, which required the motorized transportation of its members to businesses and financial institutions. The applicant’s role as a “facilitator” was also confirmed by the testimony of Ms.

Tremblay before the ID (Transcript of hearing, Tribunal Record, at p 477). [ 4 ] The Court finds that in light of the evidence and the facts that were available, it was reasonable for the ID to find that there were reasonable grounds to believe that this organization falls within paragraph 37(1) ( a ), thus, a criminal organization. II. Introduction [ 5 ] This is an application for judicial review under the IRPA of a deportation order issued by the ID against the applicant for organized criminality in accordance with paragraph 37(1) (

a) of the IRPA . III. Factual background [ 6 ] The applicant is a citizen of Romania. On July 12, 2005, the applicant became a permanent resident of Canada. [ 7 ] On February 8, 2012, following the applicant’s arrest in the police operation “Feinte 2” of the Service de police de la Ville de Montréal, the applicant pleaded guilty to three counts of attempted robbery of credit cards, including one count of complicity. The applicant received a suspended sentence and a probation order for a period of 18 months. [ 8 ] On October 31, 2012, the applicant was reported under subsection 44(1) and paragraph 37(1) (

a) of the IRPA . The report was then referred to the ID for an investigation.

[9] On March 13, 2013, proceedings were instituted by City of Quebec against the applicant in connection with allegations offraud in March 2013. [10] On June 13, 2014, after a hearing that lasted 15 days between November 21, 2012, and May 7, 2014, the ID found that therewere reasonable grounds to believe that the applicant engaged in activities related to a criminal organization under paragraph 37(1)(

a) ofthe IRPA and an exclusion order was issued against him. IV. Statutory provisions [11] Sections 33 and 37 of the IRPA are reproduced below: Rules of

interpretation Interprétation33. The facts that constitute inadmissibilityunder sections 34 to 37 include facts arisingfrom omissions and, unless otherwiseprovided, include facts for which there arereasonable grounds to believe that they haveoccurred, are occurring or may occur. 33. Les faits — actes ou omissions —mentionnés aux articles 34 à 37 sont, saufdisposition contraire, appréciés sur la base demotifs raisonnables de croire qu’ils sontsurvenus, surviennent ou peuvent survenir. Organized criminality Activités de criminalité organisée37.

(1) A permanent resident or a foreignnational is inadmissible on grounds oforganized criminality for 37.

(1) Emportent interdiction de territoirepour criminalité organisée les faits suivants : (

a) being a member of an organization that isbelieved on reasonable grounds to be or tohave been engaged in activity that is part of apattern of criminal activity planned andorganized by a number of persons acting inconcert in furtherance of the commission ofan offence punishable under

an Act ofParliament by way of indictment, or infurtherance of the commission of an offenceoutside Canada that, if committed in Canada,would constitute such an offence, or engagingin activity that is part of such a pattern; or

a) être membre d’une organisation dont il y ades motifs raisonnables de croire qu’elle selivre ou s’est livrée à des activités faisantpartie d’un plan d’activités criminellesorganisées par plusieurs personnes agissantde concert en vue de la perpétration d’uneinfraction à une loi fédérale punissable parmise en accusation ou de la perpétration, horsdu Canada, d’une infraction qui, commise auCanada, constituerait une telle infraction, ouse livrer à des activités faisant

partie d’un telplan;(

b) engaging, in the context of transnationalcrime, in activities such as people smuggling,trafficking in persons or laundering of moneyor other proceeds of crime.

b) se livrer, dans le cadre de la criminalitétransnationale, à des activités telles lepassage de clandestins, le trafic de personnesou le recyclage des produits de la criminalité.Application Application(2) Paragraph (1)(

a) does not lead to adetermination of inadmissibility by reasononly of the fact that the permanent resident orforeign national entered Canada with theassistance of a person who is involved inorganized criminal activity.

(2) Les faits visés à l’alinéa

(1) a) n’emportentpas interdiction de territoire pour la seuleraison que le résident permanent ou l’étrangerest entré au Canada en ayant recours à unepersonne qui se livre aux activités qui y sontvisées. V. Issues [12] Is the ID’s decision finding that the applicant falls under paragraph 37(1)(

a) of the IRPA reasonable? VI. Analysis [13] Case law established that the ID’s findings relating to the participation in activities linked to an organization referred to inparagraph 37(1)(

a) are subject to the standard of reasonableness. These determinations of fact and mixed fact and law fall within the ID’sexpertise and are entitled to a high level of deference from the Court (Sittampalam v Canada (Minister of Citizenship and Immigration),2006 FCA 326 , [2006] FCJ 1512 at para 53 (Sittampalam); Molares v Canada (Minister of Public Safety and EmergencyPreparedness), 2010 FC 768 at para 7). [14] The applicable standard of proof of “reasonable grounds to believe”, set out in

section 33 of the IRPA, requires “more thanmere suspicion” but nevertheless remains “less than the standard applicable in civil matters of proof on a balance of probabilities”(Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 , [2005] SCJ 39 at para 114). [15] Case law establishes that the expression “organization” provided at paragraph 37(1)(

a) of the IRPA must receive a broad,flexible and liberal

interpretation so that looseness and informality in the structure of a group do not thwart the purpose of the IRPA toensure public safety (Lennon v Canada (Minister of Public Safety and EmergencyPreparedness), 2012 FC 1122 at para 19; Sittampalam,above at para 35 and 36). [16] This principle is further stated in paragraphs 3(1)(

h) and (

i) of the IRPA, which set out that the purpose of the IRPA includes,among other things, protecting “public health and safety”, maintaining the “security of Canadian society”, and promoting “international

justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks” . [ 17 ] Moreover, since the structure of criminal organizations varies, the ID must have some latitude to assess all the evidence in light of the purpose of the IRPA ( Sittampalam , above at para 39 ). [ 18 ] In its reasons, the ID first conducts an analysis to determine whether there are reasonable grounds to believe that the organization with which the applicant is associated falls under paragraph 37(1) (

a) of the IRPA . [ 19 ] Following a review of the evidence, including the testimony of Ms. Tremblay and of the applicant, the ID first noted that the organization in question was not formed by accident for the immediate commission of a single offence. [ 20 ] The ID observed that the organization is composed of sub-cells of three to five persons, formed of individuals of Romanian origin with connection to family or friends, working together according to a modus operandi , i.e. committing robbery of debit and credit cards by distracting their victims.

The ID also noted that these individuals used the same residence, which was a starting point for committing offences. [ 21 ] Furthermore, the ID observed that the organization does not consist of a proper name or symbol, or a formal or organizational structure.

However, the ID found that [ translation ] “the members committed criminal offences according to a well-established modus operandi , specific to their organization” (ID’s decision, at para 44). [ 22 ] The Court finds that in light of the evidence and the facts before it, it was reasonable for the ID to conclude that there were reasonable grounds to believe that this organization falls within paragraph 37(1) ( a ), thus a criminal organization. [ 23 ] It should be noted that the Federal Court had come to this very conclusion in Daia , above, in which Justice Roy found that the organization in question, which was similar to that in this case, is a criminal organization within the meaning of paragraph 37(1) (

a) of the IRPA . [ 24 ] In addition, the ID considered whether there were “reasonable grounds to believe” that the applicant engaged in activities linked to this organization. [ 25 ] The ID notes, in particular, that the applicant is a key player in the criminal operations, for which he was charged and sentenced. The evidence shows that the applicant facilitated the commission of two attempted robberies as a driver and that his role was essential to the modus operandi of the organization, which required the motorized transportation of its members to businesses and financial institutions.

The applicant’s role as a [ translation ] “facilitator” was also confirmed by Ms. Tremblay’s testimony before the ID (Transcript of hearing, Tribunal Record, at p 477). [ 26 ] The ID found that the applicant’s criminal conviction regarding the charges brought against him, with respect to the fact that the applicant was represented by a lawyer when he pleaded guilty, is sufficient to conclude that the applicant engaged in activities linked to a criminal organization, under paragraph 37(1) (

a) of the IRPA . [ 27 ] The Federal Court has recognized that a guilty plea from an individual affiliated with a criminal organization following a modus operandi is the best proof possible of a criminal offence since it is recognition of the commission of an offence. In this respect, the Court adopts the words of Justice Roy in Daia , above at para 15 : [15] She pleaded guilty to five offences relating to her activities with this same group of people, which is the best proof possible. She acknowledged that she committed these offences, including having the required mens rea . These admissions cannot be reversed.

Other charges weigh on her for similar activities in Ontario. The applicant asks for leniency in the sentence that would have been imposed on her and claims that [translation] “the panel did not review the applicant’s testimony in its context and in light of all the evidence”. These allegations had nothing to do with the standard of reasonableness that was described in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, ( Dunsmuir ) at paragraph 47 . [ 28 ] With respect to the ID’s analysis, as set out in these reasons and the record as a whole, the Court considers that the ID’s decision is reasonable. VII.

Conclusion [ 29 ] It was reasonable for the ID to find that there are reasonable grounds to believe that the organization concerned referred to in paragraph 37(1)(

a) of the IRPA and that the applicant engaged in activities linked to this criminal organization. [ 30 ] The application for judicial review is dismissed. JUDGMENT THE COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed. There is no question of importance to certify. “Michel M.J. Shore” Judge

Certified true translation Catherine Jones, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5146-14 STYLE OF CAUSE: IONEL ION v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: junE 10, 2015 JUDGMENT AND REASONS: SHORE J. DATED: junE 12, 2015 APPEARANCES : Myriam Roy-L’Écuyer FOR THE APPLICANT Isabelle Brochu FOR THE RESPONDENT SOLICITORS OF RECORD : Law Office of Stewart Istvanffy Montréal, Quebec FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT