Stables v Canada (Citizenship and Immigration), 2011 FC 1319 (2011)

Facts: The Applicant, Mark Alistair Stables, is a permanent resident in Canada. He arrived to Canada from Scotland at age of seven (7) and has been residing in Canada for over 40 years. In 2000 he joined the Hells Angels motorcycle group and has been a member of this group for 9 years. He held the position of treasurer. His membership was terminated in 2009.

On November 7, 2006 he was interviewed by Immigration officials upon his arrival at the Vancouver Airport. He was found carrying some Hells Angels paraphernalia and related phone numbers. The Immigration officer proceeded with a report of inadmissibility pursuant to the s 44 of IRPA.

In October 2010, following the inadmissibility hearing, Stables was found inadmissible to Canada due to his membership in a criminal organization under s 37(1)(a) of IRPA. Stables applied for ministerial relief under s 37(2) of IRPA but have not yet received an answer.

This is a decision regarding Mr. Stables’ application for judicial review of the decision rendered in October 2010 when the Applicant was found inadmissible to Canada under s 37(1)(a) of IRPA. The applicant challenges the constitutionality of s 37(1) of IRPA. The Respondent is of the opinion that the challenge has no merit and was not brought in a timely manner.

Rules:

Immigration and Refugee Protection Act, ss 37(1), 34, 35, 162(1).

The Canadian Charter of Rights and Freedoms, ss 2(b), 2(d), 7.

Issues:

a)      Should the Applicant be permitted to proceed with his constitutional challenge, given his failure to raise these issues in the first instance before the tribunal?

b)      Does the legislative scheme of s 37 violate the Applicant’s Charter of rights of freedom of expression and freedom of association?

c)       Does s 37 of IRPA deprive the Applicant of his right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice?

Analysis:

First, the Court took a look at the factual findings of the Immigration Division pursuant to s 37(1)(a). The section reads:

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.

The Immigration Division assessed the nature and quality of the Applicant’s involvement with the Hells Angels organization, including the manner of recruitment and his length of involvement with the organization. The Division noted that at the time of his inadmissibility hearing the Applicant had not terminated his membership with the organization. Based on the evidence the Immigration Division concluded that the Applicant was fully integrated into the Hells Angels organization.

The Immigration division has also found the Hells Angels to be an “organization” as is contemplated by the s 37(1): it has formal structures like corporations and Chapters; it is governed by bylaws and constitutions; each Chapter has an executive; as well as the organization has a distinct identity, name and logo. The Immigration Division noted the following evidence in support that the Hells Angels is also a criminal organization: its primary line of business is criminal activity, according to police information the organization commits crime for money, and in essence the organization exists for and benefits its members from the continuing criminal activity of its members.

With the regards to the criminal activity that forms part of a pattern the Immigration Division concluded that the Hells Angels organization is engaged in concerted criminal activity, primary the drug business. This criminal activity shows a pattern of similarity both inside and outside of Canada. The activities that the organization is involved in are all punishable offences under the Criminal Code of Canada.

The Applicant admits that he was a member of the Hells Angels and held the position of treasurer. However, he claims that he has never been involved in any criminal activity.

Since the Applicant did not challenge the findings of the Immigration Division, the Court proceeded to review the constitutional challenges brought by the Applicant.

The inadmissibility provisions of IRPA, namely ss 34, 35 and 37 all have a subsection (2) that provides an exemption through the “ministerial relief”. In other words, the person found to be inadmissible under one of these provisions can apply to the Minister for relief of that inadmissibility. The subsection (2) of these provisions states that the relief is to be granted where the Minister is satisfied that the person’s presence in Canada would not be detrimental to national security.

The Applicant claims that the courts have upheld the constitutionality of these provisions despite of the broad definitions of such concepts as “member” and “criminal organization” as found in 37(1) because of the existence of the ministerial relief in subsection 2.  However, he claims, in the past five (5) years the ministerial relief became practically unavailable and thus the inadmissibility provisions ceased to be in compliance with the Charter.

The Court addressed separately the three constitutional questions raised by the Applicant.

a)      Should the Applicant be permitted to proceed with his constitutional challenge, given his failure to raise these issues in the first instance before the tribunal?

The Respondent contends that the Applicant is prevented from raising the constitutional challenge due to his failure to raise it before the Immigration Division.

There’s a line of juristic decisions (Cuddy Chicks v Ontario, Nova Scotia (Worker’s Compensation Board) v Martin, Douglas/Kwantlen Faculty Assn v Douglas College, Tétreault-Gadoury v Canada (Employment and Immigration Commission)) that establishes that the administrative tribunals with the power to decide questions of law have the authority to resolve constitutional questions linked to the matters before them. The Court emphasized that it is beyond dispute that the Immigration Division has both the jurisdiction to determine the Charter issues as well as the authority to grant relief for a Charter breach.

The Court rejected the Applicant’s justification for not raising the said constitutional questions at the initial hearing because he thought it was premature to do so. The Court noted that there was no need for the Applicant to wait until he was declared inadmissible under s 37(1) and that is was not the precondition for the Applicant to apply for ministerial relief before he could challenge the constitutionality of the inadmissibility scheme. Thus, the Applicant should be precluded from advancing his challenges at this Court.

b)      Does the legislative scheme of s 37 violate the Applicant’s Charter of rights if freedom of expression and freedom of association?

Freedom of expression does not protect expressive activity that takes form of violence. Freedom of association, as stated in Suresh  encompasses only lawful activities and cannot protect a person who chooses to belong to a criminal organization. The Court found, based on the existent jurisprudence, that s 37 withstands the constitutional scrutiny of the subsection 2(b) or (d)

The Applicant submits that the Charter should protect persons who are not threats to national interest and that his freedom of association should encompass his joining the Hells Angels, as this organization also pursues laudable objectives. The Court dismissed the argument stating that s 37 of IRPA, when read in its entirety, makes it clear that so-called “innocent” members of criminal organizations are not inadmissible.  As stated in Suresh the availability of ministerial relief is aimed at those persons who may unwittingly become members of a criminal organization without any knowledge of the organization’s criminal activity or who have been coerced to become a member of such organization. According to the evidence, which the Applicant did not challenge, the Court found that the Applicant cannot be considered an innocent member of organization as he held a position of trust and power within the organization and it is not likely that he was unaware of the nature of the organization.

With regards to the argument that the Hells Angels pursues a number of activities, some of which are not criminal in nature the Court found that this argument is not supported by the evidence provided by the Immigration Division.

c)       Does s 37 of IRPA deprive the Applicant of his right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice (“PFJ”)?

The Applicants submits that the terms “member”, “organized criminality” and “organization” are too vague and overbroad and, thus, are contrary to the principles of fundamental justice (“PFJ”) as required by s 7 of the Charter. The Court notes that the PFJ are not independent self-standing notions and the Applicant first has to show that he is being deprived of the right to life, liberty and security of the person.

Inadmissibility by itself does not engage s 7.  This case seems contrary to the Suresh decision where the court found that a deportation to a country where a person could face torture engages the rights protected under s 7. However, in the case at bar the Applicant did not raise any arguments to his life, liberty and security of the person being in danger if he is deported to Scotland. The Court relies of the ruling in Blencoe affirming that only serious psychological incursions and not only the stress resulting from state interference would qualify as a violation of security of the person.

Even if this was the case that infringed the person’s s 7 rights, the onus would be still on the Applicant to show that the violation is inconsistent with the PFJ. The Applicant submits that because of the vague and broad interpretations of the terms “organization”, “member” and “criminal organization” there is no way to distinguish between members who join an organization to commit crimes or for any other alternative purposes. The Court notes that previous courts have often upheld a very broad application of subsection 37(1) on the basis of it being with accordance with the Parliamentary intent. The Court admits that most of the existent case-law on the matter deals with s 34.  However, the Court does not differentiate between the provisions 34, 35 and 37 for the purposes of interpreting.

Regarding the word “organization”, the Court notes that the same “unrestricted and broad” interpretation espoused in the context of terrorism (Sittampalam) should govern the subsection 37 (1). In order to establish that the terms “member” and “criminal organization” are vague, the Applicant has to satisfy a very high threshold, as defined in R v Nova Scotia Pharmaceutical Society that reads that law will only be found unconstitutionally vague if it lacks in precision as not to give sufficient guidance for legal debate. The courts in the past have been successful in defining the meaning of the terms “member”, “organization” and “criminal organization”, which demonstrates that the terms give sufficient guidance for legal debate.  Furthermore, the recent decision in Toronto Coalition to Stop the War v Canada made it clear that the term “membership” is capable of being clearly ascertained in the immigration law context.

The Court concludes that the sections by themselves are not unconstitutional and, relying on the existing case-law, it is clear that an effective and speedy ministerial relief system is not an essential requirement to the constitutional validity of the inadmissibility provisions. The ministerial relief is simply a proof that the Parliament did not intend innocent persons to be caught in the inadmissibility provisions. Moreover, the process of inadmissibility hearing and its consequent enforcement was found by the Court to be consistent with the PFJ, as this is not the case of maladministration of the legislature (Little Sisters Book and Art Emporium v Canada).

The statistical data concerning ministerial relief brought forward by the Applicant do not bear the claim that the relief is practically non-existent. While the evidence provided shows that out of 11 applications for ministerial relief none have been granted at the time of the hearing, it can only point to the fact that there are long delays in the processing requests and it shows that ministerial relief is granted only in truly exceptional cases as defined in Agraira.

Decision: The application for judicial review dismissed.