Date: 20050207
Docket: IMM-10274-03
Citation: 2005 FC 152
Ottawa, Ontario, February 7, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JOSE ROBERTO HENRIQUEZ AGUILLAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2001, c.27 (Act) against a decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated December 8, 2003, wherein the Board determined that the applicant is inadmissible pursuant to paragraph 37(1)(a) of the Act and ordered his deportation.
ISSUE
[2] Was the applicant's right to a fair hearing violated by the non-disclosure of information and documents requested before and during the hearing?
[3] For the following reasons, I answer this question in the negative.
BACKGROUND
[4] The applicant is a 28-year-old citizen of El Salvador. He entered Canada at the age of 16 on March 17, 1992 as a permanent resident. Between 1993 and 2003, the applicant was convicted of a series of criminal offences.
[5] According to the documentary evidence (C-9) and his testimony, the applicant has a lengthy criminal record. Here is a list of some of his convictions:
March 3, 1993: in Montreal, he was convicted of possession of counterfeit money;
August 22, 1996: in Montreal, he was convicted of assault causing bodily harm;
November 8, 1997: in Montreal, he was convicted of obstruction;
December 19, 1997: in Toronto, he was convicted of possession of property obtained by crime;
July 6, 1999: in Ottawa, he was convicted of theft under $5,000 after stealing 5 to 7 shirts;
January 8, 2000: in Montreal, he pleaded guilty to theft under $5,000 after trying to steal a wallet in a restaurant;
January 13, 2000: in Montreal, he was convicted of theft under $5,000 and assault;
January 18, 2000: in Laval, he was convicted of theft under $5,000 and obstruction;
May 29, 2001: in Ottawa, he was convicted of assault causing bodily harm;
October 23, 2001: in Gatineau, he was convicted of obstructing a peace officer;
December 11, 2002: in Brampton, Ontario, he was convicted of charges of possession of controlled substances, possession of property obtained by crime and failure to comply with a recognizance;
April 29, 2003: in Ottawa, he pleaded guilty of possession of a weapon, failure to comply with a recognizance and failure to comply with a probation order.
[6] The applicant has been convicted 18 times since 1995 and seven times since he has first been ordered deported.
[7] The applicant has lived in the provinces of Quebec and Ontario at the following addresses:
From December 2002 until now: 4469 A Frégault, St-Léonard, Québec. He lives there with his fiancée, Myla Ventura. The lease is under his name.
From about July 2002 to Dec. 2002: 4850 Henri-Bourassa, apartment 105, Montreal, Québec. The lease was under his name.
From September 2001 until 999 Préfontaine, Longueuil, Québec, the lease being under
April 2002: the name of "Daner Zamorano", a long-time friend.
Prior to September 2001: he was living with his mother at 1727 Heatherington Road, in Ottawa, Ontario.
[8] Since 2001, the applicant has worked at Solution 3000 as a part-time salesperson on commission. He alleged that his earnings varied from $500 to $1,500 per month. He also worked for "Spanish Painting" in 2001 for a period of approximately eight months. He also mentioned doing paint jobs, on a cash basis on weekends. In 2002, he received social assistance for six to eight months.
[9] The applicant declared that he needed a car for his work. He spent $600 per month for vehicle leases.
[10] The applicant has a son, Bryan, from a previous union with Carla Ochoa, from whom he has been separated since 1996. During his testimony, the applicant mentioned paying $400 per month in child support and $500 monthly for his rent.
ANALYSIS
[11] The allegation against the applicant is pursuant to paragraph 37(1)(a) of the Act:
| Organized criminality
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; |
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Activités de criminalité organisée
37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : a) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d'une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d'un tel plan; |
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[12] Once the Minister is satisfied that a permanent resident is inadmissible, he may refer the applicant's case to the Immigration Division for an admissibility hearing (subsections 44(1) and (2) of the Act). Admissibility is determined on the basis of reasonable grounds pursuant to section 33 of the Act.
| Rules of interpretation
33. The facts that constitute inadmissibility under sections 34 to 37 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. |
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Interprétation
33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir. |
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[13] The terms "reasonable grounds to believe" were recently defined by Justice O'Reilly in Thanaratham v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301, 2004 FC 349 at paragraphs 12 and 13:
In other words, "reasonable grounds to believe" is more than mere suspicion. It connotes a degree of probability based on credible evidence. In other jurisprudence, the Supreme Court of Canada has described it as a "reasonable probability"or a "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at page 1166.However, it is certainly less than a balance of probabilities, as has been made clear in immigration cases: Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349 (T.D.) ; Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.).
It is also well established in the criminal context that the standard of "reasonable grounds to believe" can be met by way of hearsay evidence and other forms of proof that would not normally be admissible at a trial, including evidence about a person's reputation or criminal record: Debot, above; R. v. Collins, [1987] 1 S.C.R. 265, at page 279. (My emphasis)
[14] At the conclusion of the admissibility hearing, the Immigration Division can order a removal order against the foreign national if it is satisfied that he is inadmissible (paragraph 45(d) of the Act).
| LOSS OF STATUS AND REMOVAL
Report on Inadmissibility
Preparation of report
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
Conditions
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
Admissibility Hearing by the Immigration Division
Decision
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible. |
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PERTE DE STATUT ET RENVOI
Constat de l'interdiction de territoire
Rapport d'interdiction de territoire
44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
Suivi
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
Conditions
(3) L'agent ou la Section de l'immigration peut imposer les conditions qu'il estime nécessaires, notamment la remise d'une garantie d'exécution, au résident permanent ou à l'étranger qui fait l'objet d'un rapport ou d'une enquête ou, étant au Canada, d'une mesure de renvoi.
Enquête par la Section de l'immigration
Décision
45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes :
a) reconnaître le droit d'entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
b) octroyer à l'étranger le statut de résident permanent ou temporaire sur preuve qu'il se conforme à la présente loi;
c) autoriser le résident permanent ou l'étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire. |
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[15] The respondent, relying on the testimony of Officer Boucher from the Montreal Police, argues that the applicant is a member of a Peruvian criminal organization operating in different cities in Canada such as Montreal, Ottawa, Toronto and Vancouver. Therefore, it alleges that since the applicant is not a Canadian citizen, he does not have a fundamental right to remain in Canada and should be deported according to paragraphs 37(1)(a) and 45(d) of the Act.
[16] Officer Boucher, a qualified expert witness, confirmed the applicant's involvement and activities with this criminal organization. She explained that he has been identified as a person who is associated with known members of a Peruvian organization and that he was convicted of different crimes related to that organization. The respondent contends that the applicant's income is not sufficient to cover all of his expenses and that he certainly lived from the profit he made from his criminal activities. Moreover, it points out that the applicant's lifestyle coincided with the modus operandi of the Peruvian organization.
[17] Since Officer Boucher was qualified as an expert witness without any objection from the applicant's counsel, I will not spend much time debating the validity of such determination. However, in order to put her testimony in perspective, here is a brief summary of how she acquired her knowledge in relation with this case. Officer Boucher has been working for the Montreal Police for the last 17 years. For the last four years, she has been assigned to the unit in charge of investigating organized crime, more precisely, as an analyst on the Peruvian organization.
[18] Officer Boucher testified that the Peruvian organization has been active in Canada for the last four years. The group is composed of approximately 100 persons, mostly Peruvian and from other Latin American countries. She explained that this organization specializes in theft and that they operate in groups. They always use rented vehicles, paid for in cash, for their travels between Ottawa, Montreal and Toronto.
[19] Officer Boucher became aware of the applicant from coded sources (informers) and from contacts with the Ottawa Police Department. She explained that following a series of thefts, the RCMP, Immigration Canada, Social Services and the Montreal Police conducted a joint operation on December 19, 2002 whereby 13 searches warrants were obtained.
[20] On that day, Officer Boucher, along with other officers, went to 4850 Henri-Bourassa in Montreal, and arrested three persons in apartment 105. Two of them were Peruvian citizens illegally in Canada, and the third was a Canadien citizen, Ms. Mélanie Charron, also known as Bambie Leblanc. Ms. Charron knows the applicant as she was a passenger in the car driven by him when he had a major accident in 2002. While the apartment was being searched, the applicant tried to leave the premises and was arrested by a police officer. The applicant was still receiving social assistance at that address even though he had apparently sublet the apartment to the two Peruvians without his landlord's approval.
[21] When the applicant was arrested, he was in possession of a list of telephone numbers. The expert testified that some of the names and telephone numbers on that list were known members of the Peruvian organization.
[22] Officer Boucher also testified about a previous event when the applicant was arrested at the Fairview Shopping Centre following a complaint that he was walking around cars in the parking lot with an object in his hand. After arresting the applicant, the police officer found a crow bar in the applicant's rented car. At that time, the applicant was with Jose Julio Luna Guarraya, who had been found guilty of theft over $5,000 in relation to stealing jewellery in Winnipeg. Among those arrested was Ms. Charron. They had rented a vehicle in Montreal at the same place where the applicant rented his cars. The address on the leasing contract was 4850 Henri-Bourassa, apartment 105 (applicant's apartment).
[23] In January 2003, the Montreal Police arrested another individual of Latin American origin in relation to a jewellery theft. He admitted being a member of the Peruvian organization and identified the applicant as the person responsible for renting the vehicles used by the organization. Two other informers confirmed such information.
[24] The applicant's counsel submits that his client is a petty criminal but not a member of any criminal organization.
Legal scheme
[25] The right to be heard is without any doubt an important element of fundamental justice. However, the requirements of procedural fairness vary with the circumstances.
[26] Under subsection 86(1) (admissibility hearing), the Minister may make an application of non-disclosure of information. The determination is made in accordance with section 78. The application will be allowed if the information is injurious to national security or to the safety of any person.
[27] In Sogi v. Canada (Minister of Citizenship and Immigration), 2004 FCA 212 at paragraphs 43 to 50, the Federal Court of Appeal stated that the standard of review in such a case is correctness:
Of the four factors which the Supreme Court has held must be considered in determining the appropriate standard of review (see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226), three point to a less deferential standard. The first factor is the presence or absence of a privative clause. Here, there is no applicable privative clause; instead, sections 72 to 75 expressly recognize that inadmissibility decisions are subject to judicial review once leave is obtained.
The second factor is whether the decision is polycentric or one in which the state is the singular adversary of the individual. Section 86 requires balancing the right of the Minister to confidentiality against the right of the appellant to know the case he has to meet. This is not a polycentric issue but one between the state and the individual to which less deference should be shown.
The third factor is the relative expertise of the Court and the tribunal. Federal Court judges are experts in assessing the advisability of disclosing security intelligence information. In section 40.1 of the former Act, sections 77 and 78 of IRPA, sections 38 to 38.15 of the Canada Evidence Act, sections 83.05 and 83.06 of the Criminal Code, section 52 of the Access to Information Act, R.S.C. 1985, c. A-1, and section 51 of the Privacy Act, R.S.C. 1985, c. P-21, Parliament has given the task of deciding how much security intelligence information can be disclosed without unduly endangering national security to the Chief Justice of the Federal Court and other Federal Court judges designated by the Chief Justice (see Appendix B). Parliament has precluded not only administrative tribunal members but even judges of provincial superior courts from this task. It appears that, in a number of legislative contexts, Parliament considers Federal Court judges best-suited to determine the appropriateness of disclosing information that could be injurious to national security.
While the enactment of section 86 of IRPA indicates that Parliament now considers Immigration Division members to have sufficient expertise to consider non-disclosure applications, the wider range of legislation in which Parliament has given the task of assessing the proper level of disclosure to Federal Court judges suggests that Parliament considers Federal Court judges to have greater relative expertise. As well, the question of whether an affected individual should be denied the opportunity to fully know the case against him on national security grounds raises issues of fairness, an area which has traditionally been the domain of the courts. Expertise considerations therefore favour less deference.
The fourth factor is the nature of the question. Whether disclosure would be injurious to national security or to the safety of any person is a legal standard which must be applied to the facts as found by the member. The question is thus one of mixed fact and law which suggests a more deferential standard. However, in reviewing the decision of an administrative tribunal, the nature of the question is just one of the four factors to consider (Dr. Q at paragraph 33).
The Supreme Court has held that expertise is "the most important of the factors that a court must consider in settling on a standard of review" (Canada (Director of Investigations and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748 at paragraph 50). On balance, I am of the opinion that the proper standard of review on the question of whether relevant information should be disclosed to the affected individual is correctness.
As a result, a Federal Court judge conducting a judicial review of an Immigration Division member's decision to order non-disclosure of information to the affected individual will review the members decision on a correctness standard. To uphold the member's decision, the judge must agree with it. If he or she does not, the judicial review will be allowed.
In considering the correctness of the Immigration Division member's non-disclosure decision, the Federal Court judge will make his or her own assessment of whether disclosure of the confidential information would be injurious to national security or to the safety of any person. Doing so will require a review of the information which was the subject of the member's decision and any explanations of that information provided by witnesses who appeared ex parte before the member. (My emphasis)
[28] The applicant submits that on three occasions he was denied disclosure of information and argues that it is a breach to fundamental justice.
Information required by letter dated September 18, 2003
[29] The applicant requested: information regarding the offences he was convicted of; personal information about his accomplices; information on the police investigation.
[30] On the first element, he received everything that could possibly be provided. He was well informed of the case made against him. He was given the General Report (Exhibit C-5; tribunal record, pages 75 to 78). It contained all the evidence submitted by Officer Boucher during her testimony.
[31] He was provided with a memorandum written by Detective Jorge Mendonca following his arrest for stealing a wallet (Exhibit C-7; tribunal record, pages 80 and 81). In this document, Detective Mendonca states that the applicant voluntarily gave information regarding his association with the Latin-American group:
[...] Mr. Henriquez stated he had been involved with an organized Latin American group of thieves from Montreal. Mr. Henriquez's role was to rent the cars and drive his accomplices around the Ottawa area. Since Mr. Henriquez lived and knew the area, he would pick out the locations for the theft. His accomplices from Montreal would steal wallets. A female accomplice would then go with them to a near by store and purchase numerous items on the stolen card. The group would return to Montreal where they sold the stolen merchandise to a fence.
Mr. Henriquez had further stated that this group was affiliated through a Latin American Club in Montreal. Several of their members are have been deported (sic) from Canada in the past, however they return using fake Mexican passports.
[32] He was also given the CPIC documents (Canadian Police Information Centre database) in relation to all of the offences mentioned in Exhibit C-5.
[33] On the second element, the documents classified "PROTECTED B", concerning the applicant's accomplices were not provided for confidentiality reasons.
[34] The Privacy Act, R.S. 1985, c. P-21 states:
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PROTECTION OF PERSONAL INFORMATION
Use of personal information
7. Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or
(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2). |
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PROTECTION DES RENSEIGNEMENTS PERSONNELS
Usage des renseignements personnels
7. À défaut du consentement de l'individu concerné, les renseignements personnels relevant d'une institution fédérale ne peuvent servir à celle-ci :
a) qu'aux fins auxquelles ils ont été recueillis ou préparés par l'institution de même que pour les usages qui sont compatibles avec ces fins;
b) qu'aux fins auxquelles ils peuvent lui être communiqués en vertu du paragraphe 8(2). |
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[35] On the third element, he was refused because of the ongoing investigation. He was however informed that he would have the opportunity to ask the police officer every question he wanted at the hearing.
[36] Considering the fact that the information was not under the control of the respondent, I do not believe that it was unreasonable to decline such a demand. The applicant was provided with a summary of the investigation on the applicant's activities in relation to the Peruvian organization (Exhibit C-5). Therefore, I cannot conclude that the applicant was not aware of the case made against him.
Information required while the expert witness was on the stand
[37] The applicant alleges that the expert witness's testimony was based on information which had not been proven before the tribunal and which was obtained from coded sources. He argues that he was not given the opportunity to test the reliability of that evidence in any way since the sources were "unknown". In order to have a better understanding of the context, here is a part of the related transcript (tribunal record, page 218 and pages 222 to 223):
(p. 218)
PAR LE CONSEILLER (s'adressant au témoin)
Q. O.K. Alors, quand une voiture a été louée le 3 septembre 2003 à Montréal, on pourrait présumer que l'adresse qui apparaissait sur la documentation quand on a fait la location était le 4850 Henri-Bourassa?
R. On ne présume pas, c'est le...c'est l'adresse que le...le Latino a donnée quand il a loué l'auto.
Q. O.K. Selon votre expérience dans votre travail de police, quand quelqu'un loue une voiture...loue une voiture, il donne son permis de conduire et l'adresse qui y apparaît et apparaît sur... est transférée disons à la documentation?
R. Non, c'est pas...à Montréal, vous savez, c'est très facile de louer une auto. Moi je peux vous montrer mon permis de conduire et vous dire l'adresse qui est là, je viens juste de déménager, elle est pas bonne et donner une autre adresse.
Q. O.K. Est-ce que vous savez le nom auquel...de la personne à laquelle la voiture a été loué le 3 septembre 2003?
R. Oui je le sais.
Q. C'était qui?
R. Je m'excuse, c'est difficile pour moi de répondre à cette question-là parce qu'il y a une opération en...actuellement sur ces gens-là.
PAR LE COMMISSAIRE (s'adressant au conseiller)
- Donc c'est raisonnable de...dans les circonstances de ne pas divulguer le nom.
R. Um-hum.
[...]
(p.222 - 223)
PAR LE CONSEILLER (s'adressant au témoin)
[...]
Q. O.K. Maintenant, vos sources codifiées peuvent même ne pas être des...en bon français des insiders de l'organisation. N'est-ce pas?
R. Les sources codifiées ont un lien avec les gens, que ce soit dans l'organisation ou en dehors de l'organisation.
Q. Mais on... vous ne pouvez pas nous spécifier de quoi il s'agit?
R. Dans le but de protéger les sources, c'est assez impossible de donner plusieurs détails.
- Um-hum.
PAR LE COMMISSAIRE (s'adressant au témoin)
- Ce qui est raisonnable dans les circonstances.
PAR LE CONSEILLER (s'adressant au témoin)
- O.K. Je suis certain que vous êtes une personne bien honnête.
PAR LE TÉMOIN (s'adressant au conseiller)
Q. Est-ce que c'est une question?
R. C'est le commencement d'une question.
PAR LE CONSEILLER (s'adressant au témoin)
- Tout ce qu'on a ici pour nous baser...la seule chose sur laquelle on peut se baser ici c'est... c'est l'affirmation, c'est une bonne source, fais-moi confiance.
R. Non, pas du tout. Comme j'ai expliqué auparavant, une source pour qu'elle soit enregistrée, faut qu'ils aient...faut qu'elle donne des informations véridiques. Si une source nous raconte qu'il va y avoir un vol à telle place et que le...que le vol ne se produit pas, c'est pas une source fiable. Si une source nous avise que telle personne a un cellulaire avec tel numéro, ça va être vérifié par les compagnies de...téléphoniques. Donc, une source qui donne des informations....
- O.K. O.K. O.K.
R. Excusez, j'ai pas fini. Donc, une source qui donne des informations, c'est ...si elle est numérotée, c'est parce que ces informations sont fiables, sinon on la met non fiable.
[38] At page 218, the applicant's counsel required the disclosure of the name of a person currently under investigation. In order not to jeopardize the investigation, the police officer refused to provide the information. I believe that it was reasonable in those circumstances for the tribunal to exempt the police officer from answering. I believe that the same conclusion can be applied to the counsel's request made on page 222.
[39] In R. v. Durette, [1994] 1 S.C.R. 469, pages 543 to 545, the Supreme Court of Canada recognized the importance of police informers:
As I have indicated earlier, it is well recognized that the protection of police informers is crucial to the proper administration of justice. Police cannot operate, particularly in drug conspiracy and drug trafficking, without such informers. This principle has been recognized by our Court in Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494, where Martland J., speaking for the majority, said (at pp. 527, 535 and 536):
The law has recognized for many years the existence of a "police-informer" privilege. It was described by Lord Esher in the leading case of Marks v. Beyfus (1890), 25 Q.B.D. 494 [C.A.], at p. 498 as being a rule of public policy that is not a matter of discretion.[...]
These statements give clear recognition to the existence of an established rule of law, for the purpose of effective policing, which recognizes that sources of police information must be withheld from forensic investigation. [...]
In my opinion, the immunity from disclosure which is accorded in relation to information furnished to the police in the course of the performance of their duties is general in its scope. This has become recognized as a rule of law with only one recognized exception, namely [where upon the trial of defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence]. [My emphasis]
In Bisaillon v. Keable, supra, at pp. 88-98 (Beetz J.), to which I referred earlier, this Court reiterated the state's interest in protecting police informers. Such is also the case in the United States and generally in the common law world.
Cory J.A. discussed the rule in the case of drug-related crimes, in R. v. Hunter (1987), 34 C.C.C. (3d) 14 (Ont. C.A.), at p. 18:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed both for his or her own protection, and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed. [My emphasis]
I note that Cory J.A. not only referred to the name of the informer, but rather to its "identity", a broader concept. Speaking for the majority of this Court in R. v. Scott, [1990] 3 S.C.R. 979, Cory J. again stressed the importance of hiding the identity of informers (at p. 994):
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. It has been estimated that in the United Sates some ninety-five per cent of all federal narcotics cases involve the work of informers....
Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected.
The need to protect the identity of an informer has long been recognized by the courts of Canada and other jurisdictions. [My emphasis]
The following passage from Anderson J.'s reasons in Miller and Thomas, supra, at p. 292, is still very relevant today:
If the secret material were revealed to the general public, the following results might occur:
(1) The lives and safety of informers would be in jeopardy.
(2) The identity of "undercover" agents would be revealed. This would be so even if the names of the informants or the "undercover" agents were not made known, because the revealing of the information would, in most cases, in itself make known the identity of the informer or the "undercover" agent.
(3) The information relating to incomplete investigations would be revealed.
(4) The modus operandi of the police would be revealed.
(5) Information relating to innocent persons would be revealed. [My emphasis]
[40] After a thorough analysis of the evidence adduced before the tribunal, I am satisfied that no reviewable error has been made. The applicant had the necessary information to defend himself.
[41] The parties had the opportunity to submit questions for certification and declined to do so. However, after the hearing, the plaintiff's solicitor wrote to the Court and proposed the certification of the following questions:
In a proceeding before the IRB Immigration Division to determine if a permanent resident is described in section 37(1)(a) IRPA, as being a member of a criminal organisation, is the government held in the same disclosure requirements as those set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326, or is a lower standard applicable?
If a lower standard is applicable, what is that standard?
[42] The respondent objects to the certification of these questions on two grounds. First, the plaintiff's solicitor had already made up his mind in Court that no question for certification would be proposed. Second, the questions submitted have already been argued and decided by the Federal Court of Appeal in Ahani v. Canada (1996), 201 N.R. 233. I agree with the respondent. In Ahani, supra, the Court of Appeal established a difference between a criminal law and immigration law context at paragraph 4:
[...] The principles and policies underlining both contexts are obviously totally different, and the standards of procedural safeguards required to satisfy the Charter must necessarily differ. [...]
Therefore, there is no need to certify the proposed questions.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10274-03
STYLE OF CAUSE: JOSE ROBERTO HENRIQUEZ AGUILLAR v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 1, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: February 7, 2005
APPEARANCES:
William Sloan FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec