35958  R. v. Appulonappa

Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — People smuggling

On appeal from a judgment of the British Columbia Court of Appeal (2014 BCCA 163)

In 2009, a vessel was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy‑six people, among them A, H, K and T (the “migrants”) were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered. They asked for refugee status in Canada. None had the required legal documentation. The migrants are alleged to have been the point persons for a transnational for‑profit operation to smuggle undocumented migrants from Southeast Asia to Canada. The majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage. The migrants are said to have been responsible for organizing the asylum‑seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — H as captain, T as chief engineer, and K and A as key crew members.

The migrants were charged under s. 117 of the Immigration and Refugee Protection Act (IRPA), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA. Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee. Before their trial, the migrants challenged the constitutionality of s. 117 of the IRPA, on the ground that it infringes the right to life, liberty and security of person enshrined in s. 7 of the Charter. The trial judge ruled the provision was unconstitutional. The Court of Appeal reversed that decision, found the provision to be constitutional and remitted the matter for trial. Section 117 as it was at the time of the alleged offences is no longer in force and the constitutionality of the current s. 117 is not before the Court. 

Held (7:0): The appeals are allowed and the charges are remitted for trial. Section 117 is unconstitutional insofar as it permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum‑seekers or assistance to family members.

Participating in the unauthorized entry of other people into Canada may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117 of the IRPA. The migrants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. They say that s. 117 is therefore overbroad. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality.

Insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum‑seekers or assistance to family members, it is unconstitutional. The purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada. A broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament’s purpose as evinced by the text of s. 117 read together with Canada’s international commitments, s. 117’s role within the IRPA, the IRPA’s objects, the history of s. 117, and the parliamentary debates.

The scope of s. 117 is overbroad and interferes with conduct that bears no connection to its objective. The overbreadth problem cannot be avoided by interpreting s. 117(1) as not permitting prosecution of persons providing humanitarian, mutual or family assistance. Such an interpretation would require the Court to ignore the ordinary meaning of the words of s. 117(1), which unambiguously make it an offence to “organize, induce, aid or abet” the undocumented entry. To adopt this interpretation would violate the rule of statutory interpretation that the meaning of the words of the provision should be read in their grammatical and ordinary sense. It would also require statements from the legislative debate record suggesting Parliament knew in advance that the provision was overbroad to be ignored.

Parliament itself understood when it enacted s. 117 that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum‑seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people. Section 117(4), which requires the Attorney General to authorize prosecutions, does not cure the overbreadth problem created by s. 117(1). Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that s. 117(1) criminalizes conduct beyond Parliament’s object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an asylum‑seeker entering Canada faces a possibility of imprisonment.

Section 117 of the IRPA is overbroad and this overbreadth cannot be justified under s. 1 of theCharter. While the objective of s. 117 is clearly pressing and substantial and some applications of s. 117 are rationally connected to the legislative object, the provision fails the minimal impairment branch of the s. 1 analysis. It follows that s. 117 is of no force or effect to the extent of its inconsistency with the Charter. The extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum‑seekers, and (3) assistance to family entering without the required documents. In this case, the preferable remedy is to read down s. 117 of the IRPA, as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum‑seekers or to asylum‑seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place.

In view of the conclusion that s. 117 is overbroad, it is unnecessary to consider the argument that s. 117 offends s. 7 of the Charter by depriving persons of liberty in a manner that violates the principles of fundamental justice against gross disproportionality and vagueness.

Reasons for decision by the Chief Justice.

Neutral Citation: 2015 SCC 59  Docket No. 35958

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15648/index.do

35388  B010 v. Canada (Citizenship and Immigration)

35688

35685

35677

Immigration law — Inadmissibility and removal — Organized criminality — People smuggling

On appeal from a judgment of the Federal Court of Appeal (2013 FCA 87), affirming a decision of Noël J. (2012 FC 569).

B010, J.P., G.J., B306 and H (the “migrants”) were all found inadmissible to Canada under s. 37(1)(b) of the Immigration and Refugee Protection Act (“IRPA”) on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1)(b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits. The migrants all say they were simply helping fellow asylum‑seekers flee persecution, and were not engaged in people smuggling.

H is a native of Cuba who was accepted as a refugee by the United States. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of United States authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the United States, he came to Canada and claimed refugee protection.

B010, J.P., G.J., and B306 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum‑seekers on board to their own devices. Twelve of the migrants took over various duties during the three‑month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant. B010 worked two three‑hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment. J.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage. B306 volunteered to act as a cook and lookout. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.

The Immigration and Refugee Board (“Board”) found the migrants inadmissible to Canada, on the basis that s. 37(1)(b) of the IRPA covers all acts of assistance to illegal migrants and does not require a profit motive. On judicial review to the Federal Court, B010’s application was rejected while the applications of J.P., G.J., B306 and H were allowed. The Federal Court of Appeal rejected B010’s appeal and in the remaining cases, the court allowed the appeals and reinstated the Board’s decisions of inadmissibility.

Held (7:0): The appeals should be allowed and the cases remitted to the Board for reconsideration.

Section 37(1)(b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondent Ministers say that the term “people smuggling” in s. 37(1)(b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. The migrants argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.

Acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b). The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum‑seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime.

A migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum‑seekers in their collective flight to safety is not inadmissible under s. 37(1)(b). Acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA. To justify a finding of inadmissibility on the grounds of people smuggling under s. 37(1)(b), the respondent Ministers must establish before the Board that the migrants are people smugglers in this sense. The migrants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum‑seekers in the course of their collective flight to safety.

The interpretation of s. 37(1)(b) of the IRPA taken by the Board was not within the range of reasonable interpretations. The migrants were found inadmissible on an erroneous interpretation of s. 37(1)(b) and are entitled to have their admissibility reconsidered on the basis of the interpretation here.

It is unnecessary to consider whether s. 37(1)(b) of the IRPA unconstitutionally violates s. 7 of theCharter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers, as the migrants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). The argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1).

Reasons for decision by the Chief Justice.

Neutral Citation: 2015 SCC 58.  Docket Nos. 35388, 35688, 35685, 35677

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15647/index.do