Last updated on June 1st, 2021
Last Updated on June 1, 2021 by Steven Meurrens
Section 37 of 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.
(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.
In Canada (Minister of Citizenship and Immigration) v Thanaratnam, 2005 FCA 122, Canada’s Federal Court of Appeal has confirmed that paragraph 37(1)(a) sets out two
“discrete, but overlapping grounds” for inadmissibility. The first is
“membership” in an organization believed on reasonable grounds to be or to have been engaged in organized criminal activity (i.e., a criminal organization). The second is engaging in organized criminal activity, which does not require
“membership” in a criminal organization.
2010 Department Summary
Immigration, Refugees and Citizenship Canada (“IRCC“) 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.
Standard of Proof
Pursuant to s. 33 of the IRPA, the facts that constitute inadmissibility for organized crime include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
In Uthman v. Canada (Citizenship and Immigration), 2018 FC 583, Justice Mandamin stated that the standard of proof for the facts necessary to make out inadmissibility under paragraph 37(1)(a) is reasonable grounds to believe, not proof beyond a reasonable doubt. All that is needed is sufficient evidence to show that there are reasonable grounds to believe a person is a member of a criminal organization. He went on to note that:
Reasonable grounds to believe is not just lower than proof beyond a reasonable doubt, the criminal standard, but also lower than proof on a balance of probabilities, the civil standard. This is clearly outlined by the Supreme Court of Canada in the case below:
114 The first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be “reasonable grounds to believe” that a person has committed a crime against humanity. The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities [citations omitted]
Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114.
Moreover, s. 173 of the IRPA states that the Immigration Division is not bound by any legal or technical rules of evidence and can base its conclusions upon what it considers credible or trustworthy.
However, as Justice Russell stated in Demaria v. Canada (Citizenship and Immigration), 2019 FC 489:
This latitude in evidentiary matters, however, does not mean that the ID has complete discretion over what will support inadmissibility. There must be “facts” and these facts must give rise to more than a “mere suspicion.”
The Organization Must be Criminal
Amaya v. Canada (Public Safety and Emergency Preparedness), 2007 FC 549 is a frequently cited decision which analyzes what the requirements of “organization” are in the organized crime context.
Madam Justice Tremblay-Lamer wrote (citations removed for ease of reading):
The scope of organization as defined must be narrowed to the smallest component where the organizations are factionalized. Thus, it is the MS-13 clique in Usulutan that must be defined as an organization. See Bedoya v. Canada (M.C.I.), Justice O’Reilly provided a comprehensive overview of what constitutes an organization for the purposes of section 37 in Thanaratnam v. Canada (M.C.I.).
No guidance is given in the Immigration Act or the Immigration and Refugee Protection Act as to what an “organization” is. By contrast, the Criminal Code, R.S.C. 1985, c. 46, s. 467.1(1) defines a “criminal organization” in some detail. It states that a criminal organization is a group, “however organized”, that is made up of three or more persons and “has as one of its main purposes or activities” the commission of serious criminal offences that would likely yield some kind of benefit to the members of the group. Specifically, a criminal organization under the Code does not include “a group of persons that forms randomly for the immediate commission of a single offence”.
The Criminal Code’s definition does not apply directly to the immigration setting. However, I believe it is noteworthy that the Code does not require any particular formalities or decision-making arrangements. Presumably, to meet the definition, a group must have some form of organizational structure. The words “however organized” suggest that it must be organized in some fashion, but there are no minimum or mandatory attributes that the group must have.
Here, the two Tamil groups described by the police had some characteristics of an organization – identity, leadership, a loose hierarchy and a basic organizational structure – and I can therefore find no error in the Board’s conclusion that they fell within the terms of s. 37(1)(a) of the Immigration and Refugee Protection Act.
The Criminal Code Definition of Organized Crime
There has been some uncertainty as to whether the Criminal Code definition of “criminal organization” applies in the immigration context.
In Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326, the Federal Court of Appeal stated:
With respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.
In 2015, the Supreme Court of Canada (the “Supreme Court“) rendered its decision in B010 v. Canada (Citizenship and Immigration),  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.
In light of the Supreme Court of Canada’s decision in B010, some Federal Court of Canada decisions have narrowed what constitutes organized crime for the purpose of inadmissibility under s. 37 of IRPA in some circumstances. 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, under this approach, 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.
The Department’s response to Saif can be found in Operational Bulletin 645 – Application of Paragraph 37(1)(b) of the IRPA, which states:Org Crime Bulletin
In Chin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 13, Justice Russell stated, however:
The Applicant submits that the Supreme Court of Canada’s decision in B010 changed the law applicable to s 37(1)(a) of the Act. In Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 40 [Sittampalam], the Federal Court of Appeal rejected the value of international instruments and criminal jurisprudence when interpreting the meaning of “organization” in s 37(1)(a) of the Act. Considering the immigration context, the Court concluded that a broad and unrestricted approach to the definition better suited the Act’s purpose. The Applicant submits that B010 held that s 37(1)(b) should be interpreted harmoniously with the Criminal Code and the UNCTOC because the purposes of the provisions are directed at transnational crime. The Applicant says that this is now the law for s 37(1)(a), and that proving membership in a criminal organization “should now follow criminal law standards.” The Applicant maintains, however, that her membership in a criminal organization has not been proven under any standard.
[ . . . ]
The Respondent says that should the Court wish to consider the Applicant’s submissions regarding the application of B010 to the interpretation of s 37(1)(a) of the Act, the narrow and technical interpretation offered by the Applicant should be rejected. In Sittampalam, above, at para 36, the Federal Court of Appeal held that the definition of organization in s 37(1)(a) of the Act should be given an “unrestricted and broad” interpretation, consistent with the Act’s intention to “prioritize the security of Canadians.” The Court noted Parliament had not adopted the Criminal Code definition of criminal organization in s 37(1)(a) of the Act: Sittampalam, above, at para 40. The Respondent points out that in s 121.1 of the Act, Parliament adopted the Criminal Code definition for other provisions of the Act. In these circumstances, the Respondent submits that had the Supreme Court of Canada intended to overturn Sittampalam, and change the meaning of s 37(1)(a) in a decision about s 37(1)(b), it could have done so expressly. Therefore, Sittampalam remains good law and the Applicant’s interpretation should be rejected.
[ . . . ]
I agree with the Respondent that the Applicant’s submissions regarding the application of the Supreme Court of Canada’s decision in B010, above, do not apply to the facts of this case.
The Supreme Court of Canada’s analysis in B010 involves s 37(1)(b) of the Act and the Court’s reading in of the phrase “transnational organized crime.”
Criminal Prosecution Not Required
There is no requirement that criminal charges be laid in order for a person to be inadmissible for orgnaized crime. In Toor v Canada (Public Safety and Emergency Preparedness), 2018 FC 68, Justice Barnes stated that:
[i]t is the nature of the conduct that is relevant for Canadian immigration purposes, not the basis of how it was treated or prosecuted in the foreign jurisdiction. Indeed, even in a situation where no prosecution was undertaken, an inadmissibility finding can still be made in Canada.
This principle was affirmed in Wang v. Canada (Public Safety and Emergency Preparedness), 2021 FC 226.
However, as the Federal Court affirmed in Stojkova v. Canada (Citizenship and Immigration), 2021 FC 368, evidence of withdrawn or dismissed charges cannot be used, in and of themselves, as evidence of an individual’s criminality. The evidence underlying a withdrawn or dismissed charged can only be accepted if the decision maker determines that the evidence is credible and trustworthy.
The following are sample Immigration and Refugee Board decisions involving inadmissibility for organized crime.
In this case, a person admitted to being part of a “quick change scam.” Because more than two people were involved, it constituted organized crime. Several Immigration and Refugee Board decisions, however, show that there is a fine line between organized crime and family members who occassionaly steal when they go out, does not meet the definition of organized crime.A37-1
Similarly, participation in a group that sends e-mails to individuals in an effort to collect their credit card information as part of fraudulent lottery schemes constitues participation in organized crime.Nigerian
Here, a person who became a permanent resident when they were 8 months old and as an adult joined the Hell’s Angels for one year was issued a Deportation Order for having been a member of organized crime, even though he was never charged with any crime. However, being a member of a biking club will not always result in a finding of organized crime. In the second case below, the Immigration and Refugee Board found that there was insufficient evidence that the Ridge Runners were sufficiently connected to the Hell’s Angels to constitute a criminal organization.A-37-2
It is not a requirement that a criminal organization have a name. As well, it can be exceptionally difficult for people who live in a house where organized crime was occuring to claim ignorance.A-37Han
However, the group must be organized, and some degree of form of structure and degree of continuity is required. In this case, the Immigration and Refugee Board, found that stripped of features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for material benefit. The increased penalties and stigma associated with organized crime distinguish it from these offences. A person who is a repeat offender will not be involved in organized crime simply if they are seen in the presence of others.A37Dean
Where, however, there is credible evidence of ongoing planned endeavours, with formations of three or more individuals committing indictable offences together, such as drug traccking, with the same men being involved in more than one crime, there is evidence of organized crime.
The case below was judicially reviewed. Pascal v. Canada (Public Safety and Emergency Preparedness), 2020 FC 751, is a useful decision summarizing both the test for organized crime as well the evidentiary standard. Of note is that the Court determined that the Immigration Division may rely on news articles in appropriate cases even though they may not be admissible in a court proceeding.A-37pascal
As a further example of how flexible the rules of evidence, and conjecture, can be, in this case rapping about being in a gang served as evidence of that membership.
The onus is on the Canada Border Services Agency to establish that someone has been involved in organized crime. Where a CBSA officer provides a sworn testimony that is incomplete, their statement will be given little weight. As well, and as may be obvious, where it is unclear that the person at an admissibility hearing is in fact the same person that is alleged to be involved in organized crime, then there can be no finding of inadmissibility.A37notcarlin
In this case, an individual was alleged to have been a member in an advanced fee lottery scheme. The person, Ms. Obuseli, was the girlfriend of an individual involved with such a scheme. At one point, he directed her to receive funds into her account. She was suspicious of the matter, and it was clear that she was involved in defrauding at least one individual. However, that appeared to be her only involvement, on the periphery, in the organization.
The IRB found that Ms. Obuseli either knew or was wilfully blind to the fact that her boyfriend was involved in some sort of fraudulent activity, and that at one point she either knew or was wilfully blind to getting involved. However, the IRB found that she did not know that these directions were the result of his involvement in a criminal organization.
The IRB also found that, pursuant to the Federal Court in Amaya v. Canada, 2017 FC 568, that while knowledge of a gang’s criminal activities would provide for the mens rea of a membership finding, that the word “gang” means more than one person. Similarily, in Sinnaiah v. Canada, 2004 FC 1576, the Court held that “to establish membership in an organization, there must be at least evidence of an “institutional link” with, or “knowing participation” in, the group’s activities.
The Member further found that A37(1)(a) does not apply to people who engage in criminal activity with one additional person, as otherwise the section would read “planned and organized by a pair of persons” instead of “a number of persons.”Obeseli A37
Similarly, a person who lives with someone who is part of an organized gang will not be inadmissible for organized criminality simply for knowing about the gang if they were not actually a member of it.McPhalen - not inadmissible
As well, a person will not be inadmisisble of they left an organization before it became criminal, as was the case with this New Can employee.New Can
Past statements about membership in an organization may also be insufficient to establish membership if the person is found to be completely lacking credibility.A37-bahamas-one