A37 – Inadmissibility for Organized Crime

Section 37of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality.  It states:

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

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

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

Application

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Immigration, Refugees and Citizenship Canada in 2010 created a useful internal document summarizing the jurisprudence on the interpretation of this section, and I have reproduced it below.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

B010 v. Canada (Citizenship and Immigration)

In 2015, the Supreme Court of Canada (the “Supreme Court“) rendered its decision in B010 v. Canada (Citizenship and Immigration), [2015] 3 SCR 704, 2015 SCC 58. There, the Supreme Court ruled that:

The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.

In other words, the transnational crime provisions now in the smuggling context only apply to people who act to further illegal entry of asylum seekers in order to obtain, directly or indirectly a financial or other material benefit in the context of transnational organized crime.

Saif v. Canada (Citizenship and Immigration)

In light of the Supreme Court of Canada’s decision in B010, the Federal Court of Canada has narrowed what constitutes organized crime for the purpose of inadmissibility under s. 37 of IRPA. In Saif v. Canada (Citizenship and Immigration), 2016 FC 437, the Federal Court, citing B010, ruled that the definition of “criminal organization” in Canada’s Criminal Code should be imported into the analysis of what constitutes “organized criminality” for the purpose of IRPA s. 37 inadmissibility.  The Criminal Code defines “criminal organization” as:

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

As such, to constitute organized criminality, the organization needs to have three or more persons. As well, the Federal Court in Saif held that organized criminality requires the existence of common organizational characteristics such as “identity, leadership, a loose hierarchy and a basic organizational structure.” As well, the Court stated that:

Third parties who individually transact with a criminal organization cannot reasonably be seen to be “members” nor can they be considered to be “engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence”. By way of analogy, no one would consider a purchaser of narcotics, without further involvement, to be either a member of, or acting in concert with, a criminal organization established to sell the narcotics, even though both are engaged in common in a criminal transaction.


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