Saif v. Canada (Citizenship and Immigration), 2016 FC 437 : Organized Criminality Finding Overturned Because Two Persons Alone Did Not Satisfy the Requirement of Organized Criminality

The Federal Court reviewed a finding that the applicant was inadmissible under paragraph 37(1)(a) of the IRPA for engaging in activity that formed part of a pattern of criminal activity organized by persons acting together.

The Court overturned the decision because the Board failed to properly apply the Supreme Court of Canada’s interpretation of “organized criminality” and incorrectly treated the applicant’s criminal activity with one other person as sufficient to establish organized criminality.

Key Principle

A finding of organized criminality under section 37(1) requires more than evidence that two people acted together in criminal activity.

The provision requires the existence of organized criminality, including organizational characteristics such as identity, leadership, a loose hierarchy, and a basic organizational structure. The involvement of third parties or customers in related unlawful conduct does not automatically make those individuals part of the criminal organization.

Background

The applicant pleaded guilty to participating in a scheme involving fraudulent Canadian residency addresses and documentation for hundreds of people. His role was secondary to that of the principal organizer. He allowed his address to be used, assisted with collecting mail and transporting clients, and received payment.

The Immigration Division found that his activities constituted organized criminality under paragraph 37(1)(a), relying on the large number of people involved, the length of the scheme, communications, planning, and cooperation.

The applicant challenged the finding, arguing that the evidence did not establish the organized criminality required by section 37(1)(a).

Court Findings

The Federal Court found that the Board had erred in its application of section 37(1)(a).

The Court held that the Supreme Court’s interpretation of “organized criminality” in B010 v. Canada applied to both paragraphs 37(1)(a) and (b). This required consideration of the organizational structure of the criminal activity.

Although the evidence showed that the applicant and Mr. El-Akhal had engaged in a long-standing criminal conspiracy, the Court found that two persons alone could not satisfy the requirement of organized criminality. The approximately 300 people who benefited from the scheme could not simply be counted as members of the criminal organization because they were third parties who participated in individual transactions.

The Court emphasized that an organization may have an informal structure, but there must still be organizational characteristics such as leadership, identity, hierarchy, and basic structure. The Board had failed to apply these principles to the evidence.

Outcome

The Federal Court allowed the application for judicial review, set aside the inadmissibility decision, and returned the matter to a different decision-maker for redetermination.

Case Citation:

Saif v. Canada (Citizenship and Immigration), 2016 FC 437 CanLII