B010 v Canada (Citizenship and Immigration)  3 SCR 704 (27 November 2015)
R v Appulonappa  3 SCR 754 (27 November 2015)
The Supreme Court of Canada has handed down twin rulings narrowing the interpretation of people smuggling laws in relation to both the offence of people smuggling, and the inadmissibility of migrants alleged to have been involved in people smuggling. McLachlin CJ delivered the leading judgment in both cases, with whom all judges unanimously agreed. The separate but related proceedings of B010 v Canada and R v Appulonappa considered two key people smuggling provisions in the Immigration and Refugee Protection Act (IRPA) – B010 v Canada considered the inadmissibility of people smugglers, while R v Appulonappa considered the prosecution of people smugglers.
In the case of B010 v Canada, the Court held that only those people smugglers who act to further the illegal entry of asylum seekers in order to obtain a financial or material benefit, in the context of transnational organised crime, would be inadmissible to Canada under section 37(1)(b) of IRPA.
Separately, the Court held in R v Appulonappa, that section 117 of IRPA was unconstitutional to the extent that it permitted the prosecution for people smuggling offences of those involved in providing humanitarian aid to undocumented migrants, assisting family members, or mutual assistance among asylum seekers.
In the case of B010 v Canada, B010 and three other appellants claimed refugee protection in Canada, having arrived in Canada from Thailand by boat. The organisers of the voyage promised to transport the asylum seekers to Canada for a fee, however shortly after departure, the crew abandoned the ship. Twelve migrants, including B010 and three other appellants took on various duties during the trip to Canada. Separately, a fifth appellant in this case was a refugee accepted by the United States, who was deported to Canada after he later smuggled 48 Cubans to the United States.
While all appellants claimed that they were providing assistance to fellow asylum seekers without receiving any financial or material benefit, they were nevertheless found by the Immigration and Refugee Board to be inadmissible to Canada under section 37(1)(b) of IRPA. This was on the ground that they had been found to have engaged in organised criminal smuggling. The appellants were thereby excluded from Canada without consideration of the merits of their refugee claims.
In the case of R v Appulonappa, the four appellants arrived in Canada, claiming refugee protection. They were alleged to have been the point persons for a transnational for-profit operation to smuggle migrants from Southeast Asia to Canada. They were alleged to have been responsible for organising the asylum seekers in Indonesia and Thailand, prior to boarding their vessel, as well as serving as the chief crew of the ship to Canada. They were each charged under section 117 of the IRPA, which makes it an offence to 'organize, induce, aid or abet' the coming into Canada of people in contravention of the IRPA. Prior to their trial, the appellants challenged the constitutionality of section 117 on the ground that it infringes the right to life, liberty and security of the person, enshrined in section 7 of the Canadian Charter of Rights and Freedoms.
Inadmissibility for people smuggling – B010 v Canada
Section 37(1)(b) of the IRPA renders a person inadmissible to Canada if they have been 'engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.' Under section 101(1)(f) of IRPA, claimants who have, inter alia, been declared inadmissible under section 37(1)(b) are excluded from Canada without consideration of their refugee claims.
The key question for the Court was whether section 37(1)(b) requires the conduct leading to inadmissibility to have been done for a financial or other material benefit, and to decide what is the effect of the requirement that the smuggling be 'in the context of transnational crime'.
McLachlin CJ, with whom all judges concurred, described section 37(1)(b) as performing a 'gatekeeping function' – that is, those who fall within its parameters cannot have their refugee claims determined, regardless of the merits. The Court considered that this provision was enacted in anticipation of Canada's obligations under the United Nations Convention against Transnational Organized Crime and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling Protocol). The Court further stated that in Canada, international law forms part of the context within which Canadian laws are enacted, especially if the provision was enacted with a view to implementing international obligations. The Court held that section 37(1)(b) was implemented principally to reflect Canada's obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (together, Refugees Convention), as well as the Smuggling Protocol.
Informed by the context of Canada's international obligations, and with consideration of the intention of Parliament and the wording of the provision, the Court held that section 37(1)(b) applied only to acts of 'illegally bringing people into Canada, if that act is connected to transnational organized criminal activity'. This covers only those acts that are done in order to obtain a financial or other material benefit, in the context of transnational organised crime. Acts by those who are not members of criminal organisations, who do not act in furtherance of a criminal aim of such organisations, or those who do not organise or counsel serious crimes involving such organisations are not captured by section 37(1)(b). As such, the Court held that acts of humanitarian and mutual aid, including aid between family members, do not constitute people smuggling for the purposes of section 37(1)(b) of the IRPA.
Offence of people smuggling – R v Appulonappa
Section 117 of the IRPA makes it an offence to 'knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act'. This section differs to section 37(1)(b) in that section 117 creates an offence but does not automatically render a person inadmissible to Canada. Section 117(4) requires the Attorney-General to authorise any prosecutions under this section. The intention of the drafters was to ensure that the Attorney-General could screen out from prosecution persons who were helping close family members or providing legitimate humanitarian aid.
The appellants brought an application for a declaration that section 117 was unconstitutional, on the basis that it may lead to the conviction of humanitarian workers or family members assisting asylum seekers without financial or material benefit, despite section 117(4). This claim did not apply to the appellants themselves, who were alleged to have been part of a for-profit smuggling operation, but the appellants sought the striking out of section 117 in its entirety. The appellants' argument was that section 117 violates section 7 of the Charter, which provides that '[E]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice'.
The Court held that due to the broad wording of section 117 – wording which was broad enough to cover assistance provided to close family members and humanitarian assistance – it must be read down. McLachlin CJ again had recourse to Canada's international obligations, in particular to the Refugees Convention and the Smuggling Protocol, on the basis that legislation is presumed to comply with those obligations. The Court also considered the wording and context of the provision, the historical development of the offence of people smuggling, and the intention of the drafters, with the conclusion that the purpose of section 117 is to criminalise people smuggling into Canada in the context of organised crime. This must exclude criminalising conduct that amounts solely to humanitarian aid or family or mutual assistance.
Given this interpretation of the purpose of section 117, the Court found that the way in which section 117 was drafted was 'overbroad'. This is not negated by the fact that section 117(4) requires the Attorney-General's authorisation of prosecutions, given that there would be nothing in the provision to prevent the Attorney-General from deciding to prosecute contrary to the purpose.
Having decided that section 117 was overbroad, the Court then turned to the issue of whether the inconsistency with section 7 of the Charter could be justified under section 1 of the Charter. Section 1 provides that:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Court held that while combating people smuggling was a pressing and substantial objective, section 117 did not satisfy the requirement that it 'minimally impair' the Charter rights. As such, the Court held that section 117 was to be read down so as not to apply to persons who give humanitarian, mutual or family assistance.
The effect of both of these decisions is to limit the criminalisation and punishment of 'people smugglers' to those who are engaging in the activity in the context of organised crime, and not to punish those merely providing humanitarian assistance or family or mutual aid. In the context of an increased focus by governments around the world to tackle organised criminal people smuggling, the twin Canadian decisions are important in affirming and applying the limits to the criminalisation of people smuggling under international law. The Supreme Court's decisions also recall the importance of ensuring domestic legislation is read in light of the state's international obligations, especially where domestic legislation is intended to reflect international obligations.
Australia has taken a similarly strict approach to prosecuting alleged people smugglers. As of October 2015, there were 23 people smuggling-related cases before the courts. Part 2, Division 12, Subdivision A of the Migration Act 1958 (Cth) contains the provisions most commonly used for prosecution of people smuggling offences. Section 233A creates the offence of people smuggling, but states that the offence is committed if a person 'organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person' who has no lawful right to come to Australia. There are aggravating offences including section 233C, which applies where the smuggled group consists of at least five non-Australian citizens. These offences do not contain any requirement for there to be financial or other material benefits received, and provide no exception for family assistance. The only exception to criminalisation is if the person accused is also a member of the smuggled group. Australia's position is therefore arguably inconsistent with the Smuggling Protocol and is worth reconsideration in light of the Canadian approach.
The full decisions can be found online here:
Chadwick Wong is a Lawyer at Allens.