[2016] 4 F.C.R. D-1
Citizenship and Immigration
Exclusion and Removal
Inadmissible Persons
Judicial review of Immigration and Refugee Board, Immigration Division decision finding applicant inadmissible under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 37(1)(a) — Applicant challenging in particular Board’s finding that applicant engaged in activity, which part of pattern of criminal activity planned, organized by several persons acting together in furtherance of commission of indictable offence — Applicant pleading guilty to offence under Criminal Code, R.S.C., 1985, c. C-46, s. 465(1)(d) involving conspiracy to commit summary offence, receiving conditional sentence therefor — Conspiracy in question involving scheme orchestrated by primary organizer whereby more than 300 Canadian permanent residents afforded addresses of convenience, other documentation to fraudulently establish Canadian residency — Based on evidence submitted, applicant’s involvement secondary to primary organizer’s; employment relationship not appearing to constitute criminal organization under Criminal Code — Nevertheless, Board finding that applicant’s activities falling within scope of “organized criminality” as reference used in Act, s. 37(1)(a) — Issues: appropriate standard of review in present matter; whether Board erring in finding that applicant inadmissible under Act, s. 37(1)(a) (II A, B) — Determinative issue in present case concerning interpretation of Act, s. 37(1)(a), in particular whether Board erring in concluding that applicant’s criminal conduct falling within scope of provision — Supreme Court of Canada decision in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 determining issues of statutory interpretation applying to facts of present case; thus, only task herein to determine whether Board’s interpretation of Act, s. 37 conforming to interpretation subsequently adopted by Supreme Court — Board erring in application of Act, s. 37(1)(a) to evidence bearing on applicant’s conduct — Although Board plainly considering some elements of s. 37(1)(a), clear consideration of structural features required for finding of organized criminality lacking from Board’s reasons — B010 decision determinative of issue in present application — Despite respondent’s argument to consider ss. 37(1)(a), (b) independently, both paragraphs subject to opening language of s. 37(1), which refers to inadmissibility “on grounds of organized criminality” — When read contextually, harmoniously, “organized criminality” infusing all of language that follows — No plausible interpretation of s. 37(1) would allow for different meaning of “ organized criminality” between ss. 37(1)(a), (b) — Accordingly, Supreme Court’s interpretation in B010 of words at issue in context of s. 37(1)(b) must also apply to s. 37(1)(a) — Necessarily following that Court’s views about meaning, range of “organized criminality” applying equally to ss. 37(1)(a),(b), including interpretive importation of Criminal Code definition of “criminal organization” requiring group of three or more persons — Although unrestricted, broad interpretation to be given to word “organization” as used in s. 37(1), provision still requiring existence of common organizational characteristics — Third parties who individually transact with criminal organization cannot reasonably be seen to be “members” or considered to be engaged in activity part of pattern of criminal activity planned, organized by number of persons acting in concert in furtherance of commission of indictable offence — Reviewable error Board making in decision arising from failure to apply principles noted to undisputed facts of applicant’s conduct — Requirement of “organized criminality” not established where pattern of criminal conduct carried out by only two persons — Requirement not overcome by peripheral involvement of third parties whose participation falling outside of underlying criminal conspiracy — Application allowed.
Saif v. Canada (Citizenship and Immigration) (IMM-7628-13, 2016 FC 437, Barnes J., judgment dated April 20, 2016, 11 pp.)