The Scope of Smuggling

On Friday, the Supreme Court issued a pair of decisions clarifying the scope of the provisions of the Immigration and Refugee Protection Act (IRPA, among friends) relative to “people smuggling” ― the transportation to or across international borders of consenting individuals who lack the authorization to cross the borders in question. In  B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court held that a person is not inadmissible to Canada on grounds of organized criminality if he or she was not acting in order to obtain “a financial or other material benefit in the context of transnational organized crime.” [5] In R. v. Appulonappa, 2015 SCC 59, the Court held that the penal provision of IRPA relative to smuggling was unconstitutionally overbroad “insofar as [it] permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” [5]

While the legal issues on which the two decisions ultimately turn are different ― B010 is about statutory interpretation while Appulonappa is a Charter cases ― they are closely related. Both decisions are unanimous, with the Chief Justice writing for the Court. I will review them together.

* * *

In B010, the issue was the scope of IRPA‘s provision that made foreign nationals inadmissible to Canada “on the grounds of organized criminality” and thus, if they claim asylum, prevented their claims from being determined on the merits, for “engaging, in the context of transnational crime, in activities such as people smuggling.” In the opinion of the Chief Justice, the “ordinary sense” of that provision, and in particular of the phrases “people smuggling” and “organized criminality” did not necessarily suggest that the activities it is aimed had to have a profit motive.

However, the Chief Justice concluded that provision’s “broader statutory context … suggests that [it] targets organized criminal activity in people smuggling for financial or other material benefit.” These considerations included the other grounds of inadmissibility provided by IRPA, which suggest that the provision at issue was specifically intended to target money-making organized crime, as well as the scope of the penal provision at issue in Appulonappa, which the Court held also targeted those who sought to make a profit from people smuggling. Moreover, the definition of a “criminal organization” in the Criminal Code, enacted so as to bring Canada into compliance with an international treaty a protocol to which deals with people smuggling, also refers to the profit motive. The protocol in question and other international agreements provided an “international context” which unambiguously pointed towards an intention to specifically outlaw profit-motivated smuggling, while not penalizing humanitarians and family members helping refugees.

* * *

As for Appulonappa, the issue there was whether IRPA‘s provision that imposed severe penalties, including potentially lengthy terms of imprisonment, on those who “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” was overbroad, and thus inconsistent with the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. A law is unconstitutionally overbroad if it penalizes acts that are not inconsistent with its purpose. Here, the problem was said to be that the provision reached the actions of those who did not seek to derive a material benefit from helping would-be refugees come to Canada. While the government argued the provision aimed “to catch all acts that in any way assist the entry of undocumented migrants,” the Court concluded that its purpose was narrower than that.

While the text of the provision in question was “broad enough to catch assistance to close family members and humanitarian assistance,” [36] here too other factors were more revealing of its aims. These factors included, once again, the international law, as well as the statutory context ― notably, the inadmissibility provision interpreted in B010, and the purposes of IRPA as a whole, which balance humanitarian concerns with those related to security. Importantly, IRPA provided that no prosecution for smuggling could be initiated without the agreement of the Attorney General. This “filter” was intended, as records of Parliamentary debates confirmed, to prevent the prosecution of persons participating in activities that fall within the broad definition of smuggling but are motivated by humanitarian or family concerns.

As the Chief Justice pointed out, it was thus clear that

Parliament itself understood … 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.  [72]

In her view, reliance on the Attorney General exercising his discretion in this way was not enough to avoid the overbreadth problem. Whatever Parliament’s intentions, nothing stopped the Attorney General from authorizing a prosecution inconsistent with those intentions. Thus, so long as the provision remained on the books, “people whom Parliament did not intend to prosecute [were] at risk of prosecution, conviction and imprisonment.” [74]

By way of justification under section 1 of the Charter, the government seemed to argue that the provision could not have been less broadly than it was, and was therefore minimally impairing. The Chief Justice, however, observed that “[s]ection 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights” [82; emphasis in the original], and concluded that this justification was missing.

Ultimately, this may be of little help to the appellants who had challenged the constitutionality of the provision in question in Appulonappa. Instead of striking it down completely, as they had hoped, the Court read it down “as not applicable to persons who give humanitarian, mutual or family assistance,” [85] and order a trial based on this revised version. Because the appellants were not actually humanitarians at all, but the crew of a ship that brought dozens of refugees to Canada, they might not far any better as a result of their constitutional victory.

* * *

The Court’s reasoning in both decisions seems persuasive to me in both decisions, at least as to the specific questions the cases turn on. I am rather less impressed with the Court’s apparent endorsement of the policy of criminalizing profit-motivated people smuggling. In the introduction to B010, the Chief Justice claims that “[t]he smugglers … cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face.” Unfortunately, the Chief Justice pays no heed to the role that the criminalization of for-profit smuggling plays in making it the gruesome business it undoubtedly is. I have addressed this issue here and, quite recently, here. I might return to it again. For now, it is enough that, bad as they still are, our immigration laws are a little less bad now than they used to be.

One thought on “The Scope of Smuggling

  1. Pingback: Blessing Hypocrisy | Double Aspect

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s