Last updated on April 27th, 2019

Last Updated on April 27, 2019 by Steven Meurrens

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 (“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.

37 - inadmissibility

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.”

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.

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