[2014] 1 F.C.R. 325
IMM-6888-11
2012 FC 726
The Minister of Citizenship and Immigration (Applicant)
v.
Rajinder Singh Dhillon (Respondent)
Indexed as: Canada (Citizenship and Immigration) v. Dhillon
Federal Court, Snider J.—Vancouver, May 3 and June 11, 2012.
Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of decision by Immigration and Refugee Board, Immigration Appeal Division (IAD) concluding that respondent not inadmissible under Immigration and Refugee Protection Act (IRPA), s. 37(1)(b) — Respondent, citizen of India, imprisoned in United States for conspiracy to import marijuana — Immigration Division concluding respondent inadmissible for serious criminality under IRPA, s. 36(1)(b), not inadmissible under s. 37(1)(b) — IAD dismissing appeal on ground drug smuggling not constituting crime included in s. 37(1)(b) — Whether IAD’s conclusion withstanding scrutiny on applicable standard of review — IAD not having regard to intention of Parliament to prioritize security, to interrelationship of drug smuggling, money laundering — Issue on application whether phrase “such as” in s. 37(1)(b) referring to drug smuggling — IAD failing to appreciate nature of drug trafficking or smuggling within context of international crime, treaty obligations — Drug trafficking, money laundering linked — Not logical for Parliament to exclude drug smuggling from s. 37(1)(b) — Conspiracy to import marijuana foundation for finding of inadmissibility under ss. 36(1)(b), 37(1)(b) — Question certified as to whether importation of narcotics into another state activity “such as people smuggling, trafficking in persons or money laundering” within meaning of IRPA, s. 37(1)(b) — Application allowed.
Construction of Statutes — Immigration and Refugee Board, Immigration Appeal Division (IAD) concluding that respondent not inadmissible under Immigration and Refugee Protection Act (IRPA), s. 37(1)(b) on ground drug smuggling not constituting crime thereunder — Whether phrase “such as” in s. 37(1)(b) referring to drug smuggling — “Such as” suggesting example, not limit — IAD’s requirement of “significant similarity” creating too high a standard — Term “activities” in s. 37(1)(b) preceding listed activities, suggesting those offences examples only — IRPA supporting expansive view of s. 37(1)(b) — IRPA having to be construed, applied in manner complying with international treaties — International treaties informing proper contextual interpretation of s. 37(1)(b) — Not logical for Parliament to exclude drug smuggling from s. 37(1)(b).
This was an application for judicial review of a decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board concluding that the respondent was not inadmissible to Canada under paragraph 37(1)(b) of the Immigration and Refugee Protection Act (IRPA).
The respondent, a citizen of India, was convicted and imprisoned in the United States for conspiracy to import marijuana from Canada. He was later deported to Canada where the Immigration Division concluded that he was inadmissible for serious criminality under paragraph 36(1)(b) of IRPA but not inadmissible under paragraph 37(1)(b). The IAD dismissed the applicant’s appeal on the ground that drug smuggling did not constitute a crime included in paragraph 37(1)(b).
At issue was whether the IAD’s conclusion could withstand scrutiny on the applicable standard of review.
Held, the application should be allowed.
The IAD failed to have regard to the intention of Parliament to prioritize security of Canadians, and to the interrelationship of drug smuggling and money laundering as reflected in international instruments. In addition, the IAD erred in concluding that the only similarity between the activities listed in paragraph 37(1)(b) and drug smuggling is that the offences are transnational.
At its narrowest, the issue on this application was whether the phrase “such as” in paragraph 37(1)(b) can refer to drug smuggling. The phrase “such as” does not require that there be significant similarity between the activity sought to be included and the listed offences. In its ordinary use, the phrase “such as” is illustrative and suggests an example rather than a limit. The IAD’s requirement of “significant similarity” creates too high a standard. This conclusion is supported by the principle that the limited class, or ejusdem generis, rule does not apply where general words precede rather than follow a specific enumeration. In this case, the general term “activities” precedes the listed activities, suggesting that those offences are examples only and that the provision does not establish a limited class. Because the listed activities are non-exhaustive examples, there is no room for the application of the implied exclusion rule either. Parliament highlighted “people smuggling, trafficking in persons or money laundering” for the purpose of removing any ambiguity as to whether these crimes are included in the category. The emphasis on security in IRPA supports an expansive view of paragraph 37(1)(b) that includes the crime of conspiracy to import marijuana. The IAD failed to appreciate the nature of the crime of drug trafficking or smuggling within the larger context of international crime and Canada’s international treaty obligations. Paragraph 3(1)(i) of IRPA directs that IRPA must be construed and applied in a manner that complies with the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Drugs Convention) and the United Nations Convention against Transnational Organized Crime (UNCTOC). At the very least, those international treaties should inform a proper contextual interpretation of paragraph 37(1)(b). Drug trafficking and money laundering are inextricably linked, as is apparent from the preamble to the Drugs Convention. In addition, the UNCTOC expanded the notion of serious organized transnational crime beyond an exclusive focus on drug crimes. In this context, it is not logical that Parliament would include money laundering as a transnational crime under paragraph 37(1)(b) and not drug smuggling. Conspiracy to import marijuana is the foundation for a finding of inadmissibility on grounds of both serious criminality under paragraph 36(1)(b) and organized criminality under paragraph 37(1)(b). A question was certified as to whether the importation of narcotics into another state is an activity “such as people smuggling, trafficking in persons or money laundering” within the meaning of paragraph 37(1)(b).
STATUTES AND REGULATIONS CITED
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(i),(3), 34, 35, 36 (as am. by S.C. 2008, c. 3, s. 3), 37, 63(3), 64, 67(1)(c).
TREATIES AND OTHER INSTRUMENTS CITED
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, [1990] Can. T.S. No. 42, preamble, Art. 3.1.
United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209.
CASES CITED
applied:
Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198, 272 D.L.R. (4th) 1, 54 Imm. L.R. (3d) 161; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1; Hadwani v. Canada (Citizenship and Immigration), 2011 FC 888, 394 F.T.R. 156, 2 Imm. L.R. (4th) 53; National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, (1990), 74 D.L.R. (4th) 197, 50 C.C.L.I. 1; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1; Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).
considered:
Sidhu v. Canada (Public Safety and Emergency Preparedness), 2011 CanLII 93851 (I.R.B.); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, 259 D.L.R. (4th) 193, [2005] 5 C.T.C. 215; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, 327 D.L.R. (4th) 513, 14 Admin. L.R. (5th) 1.
referred to:
Canada (Public Safety and Emergency Preparedness) v. X, 2009 CanLII 89329 (I.R.B.); Canada (Public Safety) v. Halls, 2010 ID 0003-A3-02628 (I.R.B.); United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, 346 A.R. 4, 236 D.L.R. (4th) 385; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, 262 D.L.R. (4th) 13, 42 Admin. L.R. (4th) 234; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d) 167, 318 N.R. 365; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, 80 Imm. L.R. (3d) 1, 391 N.R. 366.
AUTHORS CITED
Collins-Robert French-English, English-French Dictionary, 2nd ed. Toronto: Collins, 1987, “telle”, “telle que”.
Driedger, Elmer A. The Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
German, Peter M. Proceeds of Crime and Money Laundering: Includes Analysis of Civil Forfeiture and Terrorist Financing Legislation, loose-leaf, Toronto: Carswell, 1998.
Kemp, Gerhard “The United Nations Convention Against Transnational Organized Crime: A milestone in international criminal law” (2001) 2 SACJ 152.
APPLICATION for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (2011 CanLII 89265 (I.R.B.)) concluding that the respondent was not inadmissible to Canada under section 37(1)(b) of the Immigration and Refugee Protection Act. Application allowed.
APPEARANCES
Jennifer Dagsvik for applicant.
Mir Huculak for respondent.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for applicant.
Huculak Mir Law Office, Vancouver, for respondent.
The following are the reasons for judgment and judgment rendered in English by
Snider J.:
I. Introduction
[1] Mr. Dhillon, a citizen of India, is a permanent resident of Canada. In October 2003, Mr. Dhillon and another man carried four hockey bags filled with 78.55 kg of marijuana from Canada into the United States. In December 2003, Mr. Dhillon pleaded guilty in Washington State to conspiracy to import marijuana over 50 kg; he was convicted in March 2004 and sentenced to nine months imprisonment and three years supervised release. Upon completion of his sentence in the United Sates, he was deported to Canada, where he faced allegations that he was inadmissible to Canada.
[2] In a decision dated February 18, 2010 (the ID decision), a member of the Immigration and Refugee Board, Immigration Division (ID) concluded that Mr. Dhillon was inadmissible to Canada for serious criminality under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), but not inadmissible under paragraph 37(1)(b) of IRPA in respect of organized crime.
[3] Both Mr. Dhillon and the Minister of Citizenship and Immigration (Minister) appealed the ID decision to a panel of the Immigration and Refugee Board, Immigration Appeal Division (IAD). In a decision dated September 16, 2011 [Dhillon v. Canada (Public Safety and Emergency Preparedness), 2011 CanLII 89265] (the IAD decision), the IAD dismissed the appeal of the Minister from the ID decision. Stated differently, the IAD concluded that Mr. Dhillon was not inadmissible to Canada under paragraph 37(1)(b) of IRPA. The basis of the IAD decision was that drug smuggling did not constitute a crime included in paragraph 37(1)(b).
[4] In this application for judicial review, the Minister seeks to overturn the IAD decision.
II. Issues
[5] This application raises one issue. Specifically, can the IAD’s conclusion that Mr. Dhillon is not inadmissible under paragraph 37(1)(b) of IRPA for having been convicted of conspiracy to import marijuana into the United States withstand scrutiny on the applicable standard of review?
[6] A preliminary issue is for this Court to establish the applicable standard of review. Is the IAD’s interpretation of paragraph 37(1)(b) of IRPA reviewable on a standard of reasonableness or correctness?
III. Statutory Context
[7] I begin with an overview of the relevant statutory provisions.
[8] Sections 36 [as am. by S.C. 2008, c. 3, s. 3] and 37 of IRPA establish the two bases of inadmissibility that are relevant on this application. Section 36 describes the circumstances in which a permanent resident or a foreign national is inadmissible on grounds of serious criminality or criminality. In summary form relevant to this application, paragraph 36(1)(b) provides that a person is inadmissible on grounds of serious criminality for “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. There is no dispute that Mr. Dhillon falls under this provision.
[9] Section 37 establishes that an individual may also be found inadmissible on the basis of organized criminality. Of particular relevance to this application is paragraph 37(1)(b):
| Organized criminality |
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for … (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. |
[10] Once a foreign national or permanent resident in Canada is found to be inadmissible, the normal next step is the issuance of a removal order. In the case before me, Mr. Dhillon is currently subject to a removal order because of the finding of the ID, as affirmed by the IAD, that he is inadmissible to Canada for serious criminality under paragraph 36(1)(b).
[11] Most persons who are the subject of a removal order have an automatic right of appeal to the IAD (IRPA, above, at subsection 63(3)). Pursuant to paragraph 67(1)(c) of IRPA, an appeal may be allowed if:
| Appeal allowed |
67. … (c) … taking onto account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. |
[12] In other words, a person who is inadmissible may be permitted to remain if “special relief” is warranted on the basis of humanitarian and compassionate (H&C) considerations.
[13] However, Parliament determined that certain persons found to be inadmissible to Canada should not be permitted to appeal to the IAD on H&C grounds. Specifically, section 64 of IRPA prevents those found inadmissible under section 37 from appealing their removal order to the IAD:
| No appeal for inadmissibility |
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. [Emphasis added.] |
[14] For purposes of subsection 64(1), serious criminality includes only a crime that “was punished in Canada by a term of imprisonment of at least two years” (IRPA, above, at subsection 64(2)). Mr. Dhillon, does not meet this threshold as his crime was committed and punished in the United States.
[15] Simply stated, the result of this statutory scheme is the following:
1. if Mr. Dhillon is inadmissible for serious criminality under paragraph 36(1)(b), he has a right of appeal to the IAD where he may argue that sufficient H&C considerations warrant “special relief”; and
2. if Mr. Dhillon is inadmissible on grounds of organized criminality under paragraph 37(1)(b), he loses his right of appeal to the IAD.
IV. Standard of Review
[17] The [Federal] Court of Appeal, in Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 (Sittampalam), at paragraph 15, held that the assessment of the proper interpretation of the language in paragraph 37(1)(a) of IRPA was a question of law subject to review on a standard of correctness. Arguably, a statutory interpretation of the closely related paragraph 37(1)(b) should be subject to the same standard.
[18] However, I hesitate to rely wholly on Sittampalam. Since the [Federal] Court of Appeal’s determination of a correctness standard, the Supreme Court of Canada has held, in a number of decisions, that decisions of tribunals involving interpretation of their “home” legislation are entitled to deference. As instructed by the Supreme Court of Canada, unless the question is one of “general legal importance”, a tribunal’s decision will generally be reviewed on a reasonableness standard. For example, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (Mowat), at paragraph 24, the Supreme Court unanimously wrote:
In substance, if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference. [Emphasis added.]
[19] Does the question of whether drug smuggling is a transnational crime within the meaning of paragraph 37(1)(b) raise an issue of general legal importance? I think that the better legal view is that it does.
[20] The question of inadmissibility of foreign nationals or permanent residents to Canada transcends an IAD determination of whether a person is able to access the H&C provisions in an appeal to the IAD. A finding of inadmissibility due to serious criminality or organized crime has implications for and application to a number of other processes involved in the immigration context. For example, a visa officer in an overseas post must take into account the admissibility of a person applying for permanent resident status. An immigration officer may conclude that a claim is not eligible to be referred to the Refugee Protection Division of the Immigration and Refugee Board because of inadmissibility. In sum, there are many tribunals or decision makers who must consider and apply paragraph 37(1)(b) in their daily jobs. In this sense, the question before me is one of general legal importance. I would apply a standard of review of correctness.
[21] However, if I am wrong on this question of standard of review, I will also determine whether the interpretation found by the IAD was reasonable. When applied to a question of statutory interpretation, it appears to me that a decision that does not accord with the well-established principles of statutory interpretation will be unreasonable. As stated in Mowat, above, at paragraph 33:
The question is one of statutory interpretation and the object is to seek the intent of Parliament by reading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21).
[22] In Mowat, the Supreme Court concluded that, when a full contextual and purposive analysis of the provisions was undertaken, it became clear that no reasonable interpretation supported the conclusion reached by the Tribunal (Mowat, above, at paragraph 34).
V. IAD Decision
[23] It was not disputed before the IAD that the respondent had engaged in activity “in the context of transnational crime”. The only issue was whether the importation of marijuana constituted an activity “such as people smuggling, trafficking in persons or money laundering”.
[24] In determining which other activities might be covered by paragraph 37(1)(b), the IAD considered the relationship between the listed activities; interpreted the provision in light of subsection 3(3) of IRPA; and considered the cases cited by the parties.
[25] First, the IAD noted that there was a relationship between people smuggling and trafficking in persons, and, while less obvious, between people smuggling and money laundering, as the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209 (entered into force 29 September 2003, ratified by Canada 13 May 2002) (the Convention, or UNCTOC) references both money laundering and trafficking in persons. Noting that corruption and obstruction of justice are also referenced in the Convention, the IAD reasoned that an argument could be made that they also fall within paragraph 37(1)(b). The IAD also held [at paragraph 7] that “the enumerated activities in paragraph 37(1)(b) do not all necessarily have to be connected, as Parliament could have been providing two different types of activities and indicating that activities such as either of those two different activities would fall under paragraph 37(1)(b)” (emphasis in original). As will be seen, however, the IAD went on [at paragraph 19] to require that there be “an articulable similarity between the subject offence and either human trafficking (people smuggling/trafficking in persons) or money laundering” as well as a “significant similarity” between the unlisted activity and those two activities.
[26] Second, the IAD considered the interpretation of paragraph 37(1)(b) in light of paragraphs 3(3)(a), (b), (c) and (f) of IRPA. Those provisions, which describe the application of IRPA, are set out here for ease of reference:
| 3. … |
|
| Application |
(3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs; (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations; … (f) complies with international human rights instruments to which Canada is signatory. |
[27] With respect to paragraph 3(3)(a), the IAD reasoned that it was not clear how reading drug trafficking into paragraph 37(1)(b) of IRPA would further Canada’s domestic and international interests, as the loss of the right to appeal a removal order on humanitarian and compassionate grounds could also hinder those interests. The IAD noted that “[t]he evidence and argument on that point simply are not before me”. The IAD then reasoned that [at paragraph 10]:
If inclusion of all transnational crimes was the intention of Parliament, then Parliament would likely have used other wording, to clearly define that and given that drug trafficking is a common transnational crime, I find it unlikely that Parliament overlooked listing it within the enumerated offences in paragraph 37(1)(b). I must conclude that Parliament carefully chose the language and list of enumerated offences and I am bound to interpret the specific wording chosen by Parliament in my analysis. I note that paragraph 37(1)(a) already removes the right of appeal for persons who meet the definition in that paragraph, of organized criminality.
[28] Regarding paragraph 3(3)(b), the IAD stated that excluding drug trafficking from paragraph 37(1)(b) would not remove accountability for that offence, as it continues to have serious criminal sanctions as well as serious consequences under IRPA, including the issuance of a removal order with the right of appeal on humanitarian and compassionate grounds or possibly removal under paragraph 37(1)(a). In addition, the IAD reasoned [at paragraph 11] that “‘importing’ drug trafficking into the enumerated list in paragraph 37(1)(b) is anything but transparent”.
[29] As for paragraph 3(3)(c), the IAD found that it was impossible, in the absence of clearer language indicating Parliament’s intention, to conclude which interpretation would facilitate cooperation. The IAD thus reasoned [at paragraph 12] that it was only possible to “construe the provisions of paragraph 37(1)(b) according to the language utilized by Parliament”.
[30] The IAD then considered paragraph 3(3)(f), and found [at paragraph 14] that he had “not been directed to any international obligation that mandates the removal of appeal rights, based on humanitarian and compassionate grounds, for persons convicted of serious drug charges”.
[31] The third step of the IAD’s reasoning included a consideration of three cases cited by the Minister: Canada (Public Safety and Emergency Preparedness) v. X, 2009 CanLII 89329 (I.R.B.); Canada (Public Safety) v. Halls (2010), ID 0003-A3-02628 (I.R.B.); and Sidhu v. Canada (Public Safety and Emergency Preparedness), 2011 CanLII 93851 (I.R.B.) (Sidhu). The IAD found that the first two cases were unhelpful and that, while relevant, the decision in Sidhu was unsupportable. In particular, the IAD explained that he understood the panel in Sidhu to have held that very little similarity is required between the activities listed in paragraph 37(1)(b) and “unlisted” activities caught by that provision. In contrast, the IAD stated [at paragraph 18] that he believed “significant similarity is required to satisfy the description, ‘such as’”. The IAD thus disagreed with the conclusion of the panel in Sidhu that the “common elements” of organized criminality and movement across international borders linked unlisted activities to the listed activities, and thus made drug smuggling an “obvious, although unlisted, activity to associate with the listed activities in paragraph 37(1)(b)” (see Sidhu, above, at paragraph 16). According to the IAD, organized criminality is an unhelpful “attribute” because, although “a generalized ‘organized criminality’” applies to both paragraphs 37(1)(a) and (b), “[t]here must be a purpose for Parliament to have utilized these two sections, one specifying the components of organized criminality and the other specifying ‘activities such as…’ the enumerated list”. The IAD further held that movement across international borders is not a “true common factor” that can help identify unlisted activities, because it applies to all transnational crimes, and paragraph 37(1)(b) is clearly narrower.
[32] The IAD then proceeded to articulate its view that a significantly higher level of similarity is required for an unlisted activity to be caught by paragraph 37(1)(b) [at paragraph 19]:
The consequence of a paragraph 37(1)(b) determination is extremely serious, being the elimination of any right to appeal. Inclusion of a category of offences under that provision, therefore, ought not to be made without a clear and rational association having been established. I conclude that in order for an activity to meet the test of being “such as” the enumerated activities, there must be an articulable similarity between the subject offence and either human trafficking (people smuggling/trafficking in persons) or money laundering and the activity must have significant similarity to those two activities. If the only similarity is that the offences are transnational, as submitted by the Minister, then this similarity has not been made out. [Emphasis added.]
[33] The IAD accordingly dismissed the Minister’s appeal, noting that the respondent remained subject to a deportation order under paragraph 36(1)(a), although he had a right of appeal to seek humanitarian and compassionate relief.
VI. Analysis
A. The principles
[34] As noted at paragraph 16, above, the only question before the IAD was one of pure statutory interpretation: Does paragraph 37(1)(b) include conspiracy to import marijuana into the United States?
[35] In this question of statutory interpretation, I am guided by much jurisprudence. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer A. Driedger in The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[36] The remarks of Chief Justice McLachlin and Justice Major in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paragraph 10, are also helpful:
It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. [Emphasis added.]
[37] In undertaking the task of interpreting a statute, the Court should not ignore the words used. The Supreme Court of Canada recently confirmed that statutory interpretation “involves a consideration of the ordinary meaning of the words used and the statutory context in which they are found” (Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, at paragraph 21). The Court further explained that “[t]he words, if clear, will dominate; if not, they yield to an interpretation that best meets the overriding purpose of the statute” (Celgene, above, at paragraph 21).
[38] From this brief synopsis of the jurisprudence, I learn that, where there are conflicting but not unreasonable interpretations available, the contextual framework of the legislation becomes even more important.
B. The words used
[39] As taught by the jurisprudence, I begin by looking at the words of the provision in question. Paragraph 37(1)(b) states that:
| Organized criminality |
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for … (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. |
[40] The IAD correctly points out that Parliament chose not to expressly refer to drug smuggling in paragraph 37(1)(b). I agree that Parliament could have explicitly included drug trafficking in the list of transnational crimes that attract the severe consequences of being implicated in organized criminality. Does this omission mean that international drug smuggling is not caught by paragraph 37(1)(b)?
[41] At its narrowest, the issue on this application is whether the phrase “such as” can refer to drug smuggling.
[42] I note at the outset that the French version of paragraph 37(1)(b) uses the word “telles”. It is almost identical to the English phrase “such as”. According to the Collins-Robert French-English, English-French Dictionary, 2nd ed. (Toronto: Collins, 1987), “telle” translates as “such” or “like”, while “telle que” means “like” or “such as”. There is no conflict between the French and English versions of the provision in question.
[43] The IAD held that the phrase “such as” requires that there be “significant similarity” between the activity sought to be included and the listed offences. I do not agree.
[44] In my view, in its ordinary use, the phrase “such as” is illustrative and suggests an example rather than a limit. This interpretation is supported by this Court’s decision in Hadwani v. Canada (Citizenship and Immigration), 2011 FC 888, 394 F.T.R. 156 (Hadwani), at paragraph 9, where Justice Hughes held that the notation “i.e.” in a Canadian High Commission document check list denoted “such as”, thus “meaning a degree of flexibility is permissible”. In that case, Justice Hughes found that a designated immigration officer had erred in rejecting the hospital record of a birth, when the check list only stated that documents “such as” a birth certificate were required (Hadwani, above, at paragraph 10). In my opinion, the IAD’s requirement of “significant similarity” also creates too high a standard.
[45] This conclusion is further supported by the principle that the limited class, or ejusdem generis, rule does not apply where general words precede rather than follow a specific enumeration. As the Supreme Court explained in National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, at pages 1040 and 1041:
Whatever the particular document one is construing, when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it. But it would be illogical to proceed in the same manner when a general term precedes an enumeration of specific examples. In this situation, it is logical to infer that the purpose of providing specific examples from within a broad general category is to remove any ambiguity as to whether those examples are in fact included in the category. It would defeat the intention of the person drafting the document if one were to view the specific illustrations as an exhaustive definition of the larger category of which they form a part. [Emphasis added.]
[46] In this case, the general term “activities” precedes the listed activities, suggesting that those offences are examples only and that the provision does not establish a limited class. Because the listed activities are non-exhaustive examples, there is, as correctly argued by the Minister, no room for the application of the implied exclusion rule either (see United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at paragraph 14).
[47] Moreover, as is more apparent from the contextual review that follows, it appears likely that Parliament highlighted “people smuggling, trafficking in persons or money laundering” for the purpose of removing any ambiguity as to whether these crimes are included in the category.
[48] While the IAD appears to acknowledge that the examples in paragraph 37(1)(b) are not exhaustive, the words of the IAD, in its decision, show that the tribunal took an overly narrow view. For example, at paragraph 10 of its decision, the IAD states that “it is not clear on the evidence before me how Canada’s international interests would be furthered by adding drug trafficking to the list of offences in paragraph 37(1)(b)”. With respect, these words show that the IAD was indeed—and unreasonably—treating this as an exhaustive list.
[49] That is not to say that the IAD’s conclusion that paragraph 37(1)(b) does not include all transnational offences is incorrect. In the same way that the phrase “such as” is not entirely exclusive, it also cannot be wholly inclusive, otherwise, as Mr. Dhillon points out, that phrase would be redundant.
[50] Having reviewed the words of the provision, I am not persuaded that it is sufficiently (or at all) clear that international drug smuggling is either included or excluded from the “activities” caught by paragraph 37(1)(b). Thus, the next step of my analysis is to review the contextual framework of the legislation.
C. Contextual framework
[51] There are two key contextual matters that are relevant. The first is the context of paragraph 37(1)(b) within IRPA and the second is the notion of drug smuggling and transnational crime in the context of Canada’s international obligations.
(1) Prioritization of security for Canadians
[52] As noted above, the first aspect of the contextual framework is the overall statutory scheme of IRPA in addressing criminality and serious criminality. The provision in question does not sit in isolation in IRPA; rather, it is contained in the division of IRPA dealing with inadmissibility and must be read in context. In sections 34 to 37, in particular, IRPA addresses the inadmissibility of persons on a number of grounds: security (section 34), human or international rights violations (section 35), serious criminality (section 36) and organized criminality (section 37). Read together, these provisions clearly signal the intent of Parliament to address criminality seriously. For certain classes of persons, Parliament has stripped away the right to appeal to the IAD on H&C grounds, subject to subsection 64(2).
[53] Mr. Dhillon, like the IAD, places significant weight on the fact that a finding that drug smuggling is captured by paragraph 37(1)(b) would result in the removal of the individual’s right to appeal on the basis of H&C grounds. This argument ignores the interest of Canada in maintaining the security of Canadians. The Federal Court of Appeal has endorsed a broad interpretation of paragraph 37(1)(a) on the basis that IRPA “signifies an intention, above all, to prioritize the security of Canadians” (Sittampalam, above, at paragraph 36). This priority was even more strongly expressed in the Supreme Court of Canada’s decision in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paragraphs 9 and 10, where the unanimous Court stated:
The IRPA enacted a series of provisions intended to facilitate the removal of permanent residents who have engaged in serious criminality. This intent is reflected in the objectives of the IRPA, the provisions of the IRPA governing permanent residents and the legislative hearings preceding the enactment of the IRPA.
The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g., see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
An interpretation which prioritizes a foreign national’s appeal rights is accordingly inconsistent with the broad intention of IRPA.
[54] In sum, this emphasis on security for Canadians supports an expansive view of paragraph 37(1)(b) that arguably includes the crime of “Conspiracy to Import Marijuana—over 50 kilograms” for which Mr. Dhillon was convicted.
(2) International treaties
[55] The second consideration is the notion of transnational crime and Canada’s interest in this subject through its international treaty obligations. One of the objectives of IRPA is the promotion of “international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks” (IRPA, above, at paragraph 3(1)(i)).
[56] Two of the more relevant international treaties are the following:
• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, [1990] Can. T.S. No. 42 (entered into force 11 November 1990, ratified by Canada 5 July 1990) (1988 Drugs Convention); and
• UNCTOC, above.
[57] Mr. Dhillon submits that drug smuggling is a “totally different offenc[e]” from people smuggling, human trafficking and money laundering. Similarly, and relying on the UNCTOC, the IAD appeared to find a link between money laundering and trafficking in persons but concluded that there was no “articulable similarity” between drug smuggling and either human trafficking or money laundering. I do not agree. The problem with this position is that both the IAD and Mr. Dhillon have failed to appreciate the nature of the crime of drug trafficking or smuggling within the larger context of international crime and Canada’s international treaty obligations.
[58] While neither the 1988 Drugs Convention nor the UNCTOC is incorporated into Canadian law, paragraph 3(1)(i) directs that IRPA must be construed and applied in a manner that complies with them (see de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paragraph 73). At the very least, a proper contextual interpretation of paragraph 37(1)(b) should be informed by those international treaties.
[59] A review of the background information provided by the Minister on this application is informative. As of the date of the 1988 Drugs Convention, the main focus of the state parties was on drug trafficking. However, it is clear that drug trafficking and money laundering are inextricably linked. This is apparent from the 1988 Drugs Convention, which establishes a connection between drug trafficking and money laundering. In particular, the preamble to that convention refers to the state parties’ desire:
… to conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances, [Emphasis added.]
[60] In addition to requiring that state parties criminalize, inter alia, the production, distribution, sale and purchase of narcotics, the 1988 Drugs Convention also requires criminalization of what is commonly referred to as money laundering. In particular, Article 3.1 states that:
Article 3
…
1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:
…
(b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions;
(ii) The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph (a) of this paragraph or from an act of participation in such an offence or offences;
[61] The inclusion of this provision in the 1988 Drugs Convention indicates that, since at least 1988, states have recognized that money laundering is an important aspect of international drug trafficking. The close relationship between money laundering and drug trafficking has been long recognized. As pointed out by Professor Gerhard Kemp in his article, “The United Nations Convention Against Transnational Organized Crime: A milestone in international criminal law” (2001) 2 SACJ 152, at page 157:
The provisions of the Convention criminalizing money laundering is clearly based on the provisions of the 1988 United Nations Drug Convention. However, under the 1988 Convention the crime of money laundering is restricted to laundering proceeds of drug offences.
[62] In 2000, Canada signed the UNCTOC. The foreword to the UNCTOC similarly refers to the relationship between the narcotics trade and other transnational crimes:
Arrayed against these constructive forces, however, in ever greater numbers and with ever stronger weapons, are the forces of what I call “uncivil society”. They are terrorists, criminals, drug dealers, traffickers in people and others who undo the good works of civil society. [Emphasis added.]
[63] The UNCTOC thus expanded the notion of serious organized transnational crime beyond an exclusive focus on drug crimes.
[64] In a real sense, money laundering overlaps substantially with drug trafficking. Quite simply, drug smuggling and trafficking give rise to money laundering (see e.g. Peter M. German, Proceeds of Crime and Money Laundering: Includes Analysis of Civil Forfeiture and Terrorist Financing Legislation, loose-leaf (Toronto: Carswell, 1998), at page 1A-9). In this context and with this understanding of the nature of the crimes involved, it is not logical to me that Parliament would include money laundering as a transnational crime under paragraph 37(1)(b) and not drug smuggling.
[65] Certainly, it would have been clearer for Parliament to specifically list drug smuggling in the provision. However, we must appreciate that, in 2001 when this provision was implemented into our immigration law, the crimes of people smuggling, money laundering, and human trafficking were not as well known. Nations were searching for ways to control, not only drugs, but these transnational crimes as well. The fact that Parliament chose to highlight these three crimes can be seen as a direction that these three transnational crimes were included, even though a reader might not initially direct his mind to them. It does not mean, in my view, that Parliament intended to exclude the equally serious transnational crime of drug smuggling from paragraph 37(1)(b).
[66] It follows that the words of paragraph 37(1)(b), when read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of IRPA, the object of IRPA, and the intention of Parliament include the activity of transnational drug smuggling. Stated differently, the crime of “Conspiracy to Import Marijuana—over 50 kilograms” for which Mr. Dhillon was convicted is the foundation for a finding of inadmissibility on grounds of both serious criminality under paragraph 36(1)(b) of IRPA and organized criminality under paragraph 37(1)(b) of IRPA.
[67] In my view, the IAD failed to have regard to: (a) the intention of Parliament to prioritize security of Canadians; and (b) the interrelationship of drug smuggling and money laundering as reflected in the relevant international instruments. In addition, the IAD erred in concluding that the only similarity between the activities listed in paragraph 37(1)(b) and drug smuggling is that both offences are transnational.
[68] If the IAD decision is reviewable on a standard of correctness, the interpretation by the IAD is incorrect. On a standard of reasonableness, the interpretation was unreasonable; paraphrasing the words of the Supreme Court in Mowat, above, at paragraph 34, when a full contextual and purposive analysis of paragraph 37(1)(b) is undertaken, it becomes clear that no reasonable interpretation supports the conclusion reached by the IAD.
VII. Conclusion
[69] In summary, I conclude that:
(a) the use of the words “such as” does not limit the application of paragraph 37(1)(b) to the crimes of people smuggling, trafficking in persons and money laundering;
(b) the loss of Mr. Dhillon’s right to an appeal to the IAD on H&C grounds is consistent with the objective of Parliament to prioritize security for Canadians; and
(c) a textual, contextual and purposive analysis to find a meaning that is harmonious with IRPA as a whole results in a conclusion that the transnational crime of drug smuggling is included in paragraph 37(1)(b).
[70] Accordingly, this application for judicial review will be allowed.
[71] I wish to make it clear that I am not concluding that all transnational crimes will fall within the meaning of paragraph 37(1)(b). Clearly, there may be transnational crimes that do not fit within the definition. However, I am satisfied that the crime of drug smuggling of which Mr. Dhillon was convicted is included in the proper meaning of paragraph 37(1)(b). I express no views on any other transnational crimes or how “similar” such crimes would have to be to fall within that provision.
[72] The Minister proposes the following question for certification:
Is the importation of narcotics into another country a transnational crime for the purposes of the section 37(1)(b) inadmissibility provision?
[73] I agree that the question is one of general importance that should be certified. The question satisfies the requirements set out by the [Federal] Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, at paragraphs 4–6 (see also Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d) 167, at paragraphs 11 and 12; and Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, at paragraphs 22–29). Specifically, the question is a serious question of broad significance and it would be dispositive of the appeal. I would, however, rephrase the question as follows:
Is the importation of narcotics into another state an activity “such as people smuggling, trafficking in persons or money laundering” within the meaning of paragraph 37(1)(b) of IRPA?
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. the application for judicial review is allowed, the decision of the IAD is quashed and the matter remitted to the IAD for re-consideration by a different member of the IAD, in accordance with these reasons; and
2. the following question of general importance is certified:
Is the importation of narcotics into another state an activity “such as people smuggling, trafficking in persons or money laundering” within the meaning of paragraph 37(1)(b) of IRPA?