Federal Court of Appeal Decisions

Date: 20001221

Docket: A-152-99

CORAM:      LÉTOURNEAU J.A.

         SEXTON J.A.         

         MALONE J.A.

BETWEEN:

     KWONG YAU YUEN

     Appellant

     (Applicant in the Trial Division)

                                                

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     (Respondent in the Trial Division)

Heard at Toronto, Ontario, on Wednesday, December 13, 2000.

Judgment delivered at Ottawa, Ontario, on Thursday, December 21, 2000.

REASONS FOR REASONS FOR JUDGMENT BY:      MALONE J.A.

CONCURRED IN BY:      LÉTOURNEAU J.A.

     SEXTON J.A.

    

Date: 200012221

Docket: A-152-99

CORAM:      LÉTOURNEAU J.A.

         SEXTON J.A.

         MALONE J.A.

BETWEEN:                                         

     KWONG YAU YUEN

     Appellant

     (Applicant in the Trial Division)

                                                

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     (Respondent in the Trial Division)

     REASONS FOR JUDGMENT

MALONE J.A.

This is an appeal by way of certified question from a decision of Cullen J. dated March 5, 1999 wherein he dismissed the appellant's application for judicial review. The certified question pursuant to ss. 83(1) of the Immigration Act is as follows:

Does paragraph 19(1)(c.2) of the Immigration Act in relation to a foreign national, infringe ss. 2(d) of the Charter and if so, is the infringement demonstrably justified in a free and democratic society under section 1 of the Charter?1

The Appellant is a citizen of Hong Kong who came to Canada as a visitor in 1982. His visitor status expired on October 22 of that year but he has remained in Canada since that time. He is married to a Canadian citizen and the couple have two Canadian born children.

In March, 1986 the Appellant was granted a Minister's permit that allowed him to remain in Canada. This permit was extended until January, 1994 and during that period the Appellant applied for permanent residence. That application was refused, and a section 27 inquiry was then conducted concluding that the Appellant was a person in Canada other than a Canadian citizen or permanent resident who was inadmissible under paragraph 19(1)(c.2) and 19(2)(a.1)(1) of the Act.

That inadmissibility arose from the Appellant being a member of the 14K triad gang while a teenager in Hong Kong. It is not disputed that while in Hong Kong the Appellant had been convicted of various offences: including membership in a triad society, possession of triad society writings, theft and possession of equipment to be used for stealing, and being carried in a vehicle taken without authority. He was also arrested in Canada along with an old friend from Hong Kong who came to visit. The charge was conspiracy to export and traffic in a narcotic as well actual trafficking. While the charges against the Appellant were stayed, his friend was imprisoned for fifteen years for possession of heroin for the purpose of trafficking.²

The learned Motions Judge dismissed the application for judicial review by deciding that paragraph 19(1)(C.2) of the Act in relation to a foreign national did not infringe subsection 2(d) of the Charter. This, says the Applicant, is an error of law. Further, it is argued by the Appellant that the infringement visited on subsection 2(d) is not saved by s. 1 of the Charter.

I am of the opinion that this appeal should be dismissed. In this proceeding, the Appellant bears the burden of establishing that his Charter rights have been infringed and that paragraph 19(1)(c.2) of the Immigration Act is unconstitutional.³ In determining whether the Charter is engaged, the courts must examine the principles and policies underlying the Immigration Act. A fundamental principle of that Act is that non-citizens do not have the unqualified right to enter or remain in Canada. The Canadian government through the Minister has a duty to keep out and to expel aliens if she considers it advisable to do so.⁴

The Appellant is neither a citizen nor a permanent resident of Canada but rather is a foreign national. The organization with which the Appellant wishes to associate or did associate is the 14K triad based in Hong Kong. That organization, according to the evidence, has as its sole objective the commission of crimes for financial gain.

In Reference re: Public Service Employee Relations Act, the Supreme Court of Canada noted that freedom of association existed before the Charter was adopted and was recognized as a basic right. It consisted of the liberty of two or more persons to associate together provided they did not infringe a specific rule of common law or statute by having either an unlawful object or by pursuing their object by unlawful means.⁵ The Supreme Court in the case of Professional Institute of Public Service of Canada also outlined the scope of the subsection 2(d) guarantee:⁶

First, that s. 2(d) protects freedom to establish, belong to, and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of the individuals.

It is clear from the language of the Charter that subsection 2(d) only protects the exercise of association for lawful pursuits or objectives. A restriction on the collective exercise of an unlawful activity cannot be an attack on freedom of association, as the freedom of association guarantee does not protect the right to associate for unlawful purposes.⁷ As long as the restriction imposed by the legislation is not aimed at and does not affect the establishment or existence of the association, the provision does not violate subsection 2(d).⁸         

Where, as here, the organization has but one single brutal purpose, mere membership is sufficient to bring the Appellant within the provisions of paragraph 19(1)(c.2) of the Act.⁹ As was stated by Linden, J.A. in Sivakumar:¹⁰

"To sum up, association with a person or organization responsible for international crimes may constitute complicity if there is, personal and knowing participation or tolerance of the crimes.... Mere membership in a group responsible for international crimes, unless it is an organization that has a limited brutal purpose, is not enough."

That principle was again enunciated by this Court in the case of Hussein Ali Sumaida¹¹ earlier this year. Writing for the unanimous panel and following Sivakumar, Létourneau J.A. put the issue as follows:

Our Court never required . . . that a claimant be linked to specific crimes as the actual perpetrator or that the crimes against humanity committed by an organization be necessarily and directly attributable to specific acts or omissions of a claimant. Indeed, short of that kind of direct involvement and of evidence supporting it, our Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez (see pages 438 of the Sivakumar decision) as well as complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors (see pages 439-440 of the Sivakumar decision).

In my view the Motions Judge also correctly distinguished this case from the case of Al Yamani.¹² There the court was concerned with a different provision of the Immigration Act other than paragraph19(1)(c.2). It was the vagueness of the description of the organization in paragraph 19(1)(g), i.e. one likely to engage in acts of violence, that led the Court in that case to the finding that the paragraph infringed subsection 2(d) of the Charter.

In addition, the organization here, contrary to that in Yamani, has no legitimate objectives. Moreover, the activities prohibited by paragraph 19(1)(c.2) are better detailed than in Yamani. Here these activities are limited to offenses falling under the Criminal Code or the Controlled Drugs and Substances Act. Where the prohibited activities are committed outside of Canada, there is a requirement of equivalency and dual criminality before paragraph 19(1)(c.2) comes into play. Finally, even if a crime is committed, it remains possible for the person who falls within the scope of application of the provision to be admitted to Canada if the admission would not be detrimental to national interest.

In light of my conclusion that the Learned Motions Judge correctly decided that subsection 2(d) of the Charter was not infringed I need not deal with the section 1 argument. I would answer the certified question in the negative and dismiss the appeal with costs.

     (B. Malone)

     J.A.

I agree

Gilles Létourneau

J.A.

I agree

J. Edgar Sexton

J.A.

__________________

¹Yuen v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 167 (F.C.C.).

²Appeal Book, pp. 77 - 98.

³R. v. Collins, (1987) 56 S.C.R. (3d) 193 at 205 (S.C.C.); Delisle v. Canada, [1999] 2 S.C.R. 989 (S.C.C.).

⁴Chiarelli v. M.C.I., (1992) 1 S.C.R. 711 at p. 733; Dehghani v. Canada (M.E.I.), (1993) 1 S.C.R. 1053 at p. 1070.

⁵Reference re: Public Service Employee Relations Act (A.L.T.A.) (1987) 38 D.L.R. (4^th) 161 at p. 217.

⁶Professional Institute of Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 at 402-403.

⁷Professional Institute for the Public Service of Canada, supra, pp. 379; Reference re: Public Service Employee Relations Act (A.L.T.A.) supra, at 227-229.

⁸Professional Institute of the Public Service of Canada, supra, pp. 379.

⁹ Paragraph 19(1)(c.2) provides:

s. 19(1) no person shall be granted admission who is a member of the following classes:

s. 19.(1) Les personnes suivante appartiennent à une catégorie non admissible:

(c.2) persons, who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity, planned and organized by number of persons acting in concert in the furtherance of the omission of any offense under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside of Canada of an act or omission that if committed in Canada would constitute such an offence except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.

c.2) celles dont il y a des motifs raisonnables de croire qu'elles sont ou ont été membres 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 au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l'étranger un fait -- acte ou omission -- qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;

¹⁰Sivakumar v. M.E.I.(1994) 1 F.C. 433 at p. 442.

¹¹Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66.

¹²Al Yamani v. Canada (Attorney General) et al., (1995) 129 D.L.R. (4^th) 226.