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The Shipping News: The Supreme Court Clarifies “Smuggling” in Immigration Law

On November 27, 2015, the Supreme Court released two companion cases clarifying the law on human smuggling. Both R v Appulonappa and B010 v Canada (MCI) involved refugee claimants who came to Canada from Sri Lanka on vessels that arrived off the coast of British Columbia.[1] In Appulonappa, four alleged chief crewmembers of the Ocean Lady, which arrived in 2009 containing 76 refugee claimants, were charged under section 117 of the Immigration and Refugee Protection Act (IRPA). The provision makes it an indictable offence to “organize, induce, aid or abet the coming into Canada” of individuals lacking proper authorization under Canada’s immigration laws. In B010, four individuals were found to be inadmissible to Canada under section 37(1)(b) of the IRPA for engaging in people smuggling. They arrived in Canada in 2010, as part of a group of about 500 Tamil migrants aboard the Sun Sea. They worked on the ship by cooking, keeping lookout, and tending to the engines. The finding rendered the four ineligible to make claims for refugee status, and therefore more vulnerable to deportation.

 

R v Appulonappa: Development of Section 7 and Overbreadth Jurisprudence

 

In R v Appulonappa, the Court accepted the argument of the accused that section 117 of the IRPA was a violation of the section 7 right to liberty and security of the person that was not in accordance with the principles of fundamental justice. Applying a reasonable hypothetical (as recently developed in R v Nur),[2] the Court concluded that section 117 could conceivably be used to charge individuals who aid or abet undocumented migrants merely out of humanitarian aims, or to help family members. Because the human smuggling provision does not speak to motive, there is no requirement that the persons who are aiding the asylum seeker must do so for profit. Therefore the provision, which is aimed at countering the organized crime of human smuggling, can also catch good Samaritans or family members seeking to help their loved ones. It consequently failed the overbreadth branch of the principles of fundamental justice test laid out in Bedford and Carter.[3]

 

The case represents an interesting example of how the overbreadth test plays out in practice. The trial judge initially struck down the provision because he concluded that the purpose of the provision was to prevent the targeting of vulnerable migrants by organized smugglers, and it went too far by also allowing for the prosecution of humanitarians and other well-intentioned individuals. The Court of Appeal judge reversed the decision, in large part because she allowed the Crown to put forward a new, broader purpose to the provision: that it was intended to prevent individuals from arranging the unlawful entry of others to Canada.[4] The Supreme Court affirmed the trial judge’s initial, narrower purpose behind the section, and consequently found that its scope was overreaching in seeking to achieve this purpose. Therefore, it appears that the overbreadth analysis has developed such that when the State wants to save a law as not being overbroad, it should argue it has a sweeping purpose (in order to fit the reach of the law within that purpose), while the party seeking to have the law struck down must argue that the purportedly overbroad law has a narrow purpose.

 

Reading Down Section 117

 

After concluding that section 117 was a violation of section 7, and that it was not saved by section 1, by way of remedy the Court read down the section so that it does not apply to those merely seeking to help asylum seekers without a profit motive, such as aid workers and family members. The decision is notable because the trial judge, in opting to strike down the section outright, wrote that, “it is impossible to read in or read down the section in a way which would not smack of a judicial intervention.”[5] The remedy represents the continuation of the Supreme Court’s practice of giving perfunctory lip service to the Schachter principle of respecting the role of Parliament, and then nevertheless providing remedies akin to legislative drafting.[6] The remedy is also likely frustrating for the accused, who will likely still be caught under the refined section 117 in their remitted trial (their smuggling operation was profit-driven).

 

There is one group for whom the decision in Appulonappa will likely be viewed as a clear vindication: members of the refugee bar and aid workers. These groups had expressed concern that they themselves would be subject to charges under section 117 for providing help to undocumented migrants. These fears were fueled by the arrest of Janet Hinshaw-Thomas, an American human-rights advocate (and granddaughter of John Foster Dulles, the US secretary of state in the Eisenhower administration) who was arrested in 2007 for helping undocumented Haitian asylum seekers cross the border into Canada.[7] The Court’s decision in Appulonappa will undoubtedly come as a relief to refugee lawyers and humanitarians workers that they do not have to fear similar treatment.[8]

 

B010: Statutory Interpretation for Narrow Reading

 

In B010, the Court declined to apply a section 7 analysis to the impugned section of the IRPA. It instead made use of statutory interpretation techniques to conclude that the intent of Parliament was that asylum seekers should only be found inadmissible where they obtained a material benefit for helping other undocumented migrants come to Canada. As a result, the individuals who assisted in the operation of the Sun Sea by cooking, keeping guard, etc. but who did not receive a material benefit for their work will have their claims reheard.

 

The decision will no doubt come as a relief to the appellants J.P. and G.J., and their young child (who notably and adorably began to cry during oral arguments, visibly distracting his parents’ lawyer, Lorne Waldman, during his statements before the Court).

 

The decision will likely be less welcome to the government, which has struggled to deal with the issue of large-scale illegal migration, particularly since the arrival of the Ocean Lady and Sun Sea off the coast of British Columbia. The narrower interpretation of section 37(1)(a) may make it more difficult for the government to discourage future attempts to discourage large-scale irregular migration. The government may also note with concern that since 2013, the Supreme Court has now accepted cases involving two of the three principal inadmissibility provisions in the IRPA: in addition to B010, the Court also narrowed the interpretation of section 35(1)(a) of the IRPA in Ezokola v Canada (MCI).[9] The government may wonder if the Court will also soon also turn its attention to the security provisions of the IRPA found at 34(1), which deal with terrorism, espionage, and subversion.

 

 

 

[1] R v Appulonappa, 2015 SCC 59; B010 v. Canada (MCI), 2015 SCC 58.

 

[2] R v Nur, 2015 SCC 15, [2015] 1 SCR 773.

 

[3] Bedford v Canada (AG), 2013 SCC 72, [2013] SCR 1101; Carter v Canada (AG), 2015 SCC 5, [2015] 1 SCR 331.

 

[4] R v Appulonappa, 2014 BCCA 163 at paras 41, 87, 143, 373 DLR (4th) 1.  

 

[5] R v Appulonappa, 2013 BCSC 31 at paras 174-175, 358 DLR (4th) 666.

 

[6] Schachter v Canada, [1992] 2 SCR 679 at paras 37-39, 93 DLR (4th) 1.

 

[7] Julia Preston, “Canada Arrests Worker Aiding Refugees,” The New York Times (29 September 2007), online: < http://www.nytimes.com/2007/09/29/us/29immig.html?_r=0>.

 

[8] Andrew Brouwer, Mitchell Goldberg, & Janet Dench, “Are We All Smugglers Now?”, The Globe and Mail (9 October 2007), online: < http://www.theglobeandmail.com/globe-debate/are-we-all-smugglers-now/article725754/>.

 

[9] Ezokola v Canada (MCI), 2013 SCC 40, [2013] 2 SCR 678.

 

About the Author

 

Jared Porter has a Bachelors degree in Humanities and Political Science from Carleton University and a Masters degree in Political Science from the University of Toronto. He is currently a JD candidate at the University of Ottawa.

 

Suggested Citation

 

Jared Porter, "The Shipping News: The Supreme Court Clarifies “Smuggling” in Immigration Law" (2016) eDiscoveries, online: <http://www.ediscoveries.org/single-post/2016/09/16/The-Shipping-News-The-Supreme-Court-Clarifies-%E2%80%9CSmuggling%E2%80%9D-in-Immigration-Law>.

 

 

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