Stojkova v. Canada (Citizenship and Immigration), 2021 FC 368 : Decision Set Aside After Immigration Division Relied on Unreliable Police Reports to Find Organized Criminality

The Federal Court reviewed an Immigration Division decision finding Zaneta Stojkova inadmissible to Canada for organized criminality under paragraph 37(1)(a) of IRPA and issuing a deportation order. The finding relied heavily on police occurrence reports involving charges that had been withdrawn and incidents in which Ms. Stojkova denied involvement. The Court granted judicial review because the ID failed to reasonably establish that the surveillance-based identifications contained in those reports were credible and trustworthy.

Key Principle

The Federal Court reaffirmed that withdrawn or dismissed criminal charges cannot, by themselves, establish criminality. The underlying evidence may still be considered, but the decision maker must independently determine whether it is credible and trustworthy. Under the “reasonable grounds to believe” standard, there must be an objective basis supported by compelling and credible information, not merely allegations or unsupported police conclusions.

Background

Ms. Stojkova, a Czech citizen of Romani ethnicity, entered Canada in 2014 and later claimed refugee protection.

CBSA alleged that she was inadmissible for organized criminality. The evidence included two theft convictions, her admission to two additional thefts committed alone, and twelve police occurrence reports. Most of the reports concerned charges that were later withdrawn.

The ID relied on several of those reports to conclude that Ms. Stojkova had participated with others in a pattern of organized theft. She was found inadmissible under paragraph 37(1)(a) and received a deportation order.

Ms. Stojkova argued that without the withdrawn-charge reports, the evidence showed mainly thefts committed alone and only one conviction involving others, which was insufficient to establish organized criminality.

Court Findings

• Withdrawn Charges Required Independent Assessment

The Court confirmed that evidence underlying withdrawn charges may be considered, but only after the decision maker independently determines its reliability. The ID could not simply assume the police reports were accurate because they referred to surveillance footage.

• Surveillance Identifications Were Not Shown to Be Reliable

The police reports stated that Ms. Stojkova had been identified through surveillance video, but the actual footage and still images were not provided. There were no sworn statements from police officers or witnesses explaining the identification. Ms. Stojkova denied involvement in the incidents.

• Reports Contained Serious Inconsistencies

The Court identified significant problems in the reports. In one incident, the video quality was described as too poor for a positive identification and the theft itself was not captured, yet Ms. Stojkova was later said to have been identified from the same surveillance. Another report contained inconsistencies about the number and gender of suspects. The ID did not reasonably explain these contradictions.

• Remaining Evidence Did Not Establish Organized Criminality

Without the unreliable occurrence reports, the evidence consisted mainly of three thefts committed by Ms. Stojkova alone and one conviction involving others. The Court found that this record could not reasonably support the conclusion that there were reasonable grounds to believe she was a member of an organization engaged in a pattern of criminal activity.

Outcome

The Federal Court granted judicial review, set aside the inadmissibility decision and deportation order, and returned the matter to a different Immigration Division panel for redetermination. No question of general importance was certified.

Case Citation:

Stojkova v. Canada (Citizenship and Immigration), 2021 FC 368