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Refugee advocates see victory as smuggling laws read down

Chief Justice holds that material gain is key to offence
By Cristin Schmitz
December 11 2015 issue

The Supreme Court of Canada has sent a clear message that ‘you can’t go after refugees as criminals’ for simply trying to get into Canada, or helping others do so, without financial gain, says Andrew Brouwer of Legal Aid Ontario, seen above in Toronto. [Photo by Tim Fraser for The Lawyers Weekly]

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The Supreme Court’s recent twin rulings that individuals cannot be criminally punished — or denied refugee status — as “people smugglers” simply because they aided illegal entry to the country constitute a critical victory, refugee advocates say.

“The clear message here is that you can’t go after refugees as criminals,” said Andrew Brouwer, the senior refugee law counsel with Legal Aid Ontario, who was co-counsel on the separate test cases for the intervener Canadian Association of Refugee Lawyers (CARL).

“You can’t [characterize] what refugees…need to do, refugee flight, as a criminal activity, and those who help refugees for humanitarian motives are also not criminals,” Brouwer explained.

Legal Services Society lawyer Rod Holloway of Vancouver, co-counsel for appellant B010 who was among the Tamil and Cuban asylum seekers who persuaded the Supreme Court 7-0 to narrowly interpret the term “people smuggling,” said the court “accepted that Canada should be guided by its international obligations when there are treaty obligations in enacting laws and interpreting laws.”

He said the court accepted that people smuggling, as per the UN Protocol Against Smuggling, requires an aim to obtain financial or material gain from procuring a migrant’s illegal entry into Canada. It also accepted that “the denial of access to the refugee process was a form of ‘penalty.’”

On Nov. 27 the top court read down the scope of s. 117 of the Immigration and Refugee Protection Act (IRPA) which makes it a crime to “organize, induce, aid or abet” the coming into Canada of undocumented people, in contravention of the act, on pain of lengthy imprisonment and hefty fines: R v. Appulonappa, [2015] SCC 59.

Chief Justice Beverley McLachlin held that the 1988 offence of “organizing entry into Canada” (which was broadened further and made more punitive in 2012 by the addition of mandatory minimum penalties) is unconstitutionally overbroad to the extent that it permits prosecution of humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers, or assistance to family members.

In a companion judgment, the Supreme Court substantially narrowed the interpretive scope of s. 37(1)(b) IRPA which deems inadmissible to Canada those who engage, “in the context of transnational crime, in activities such as people smuggling, trafficking in persons, or money laundering”: B010 v. Canada (Citizenship and Immigration).

The top court held that the Immigration and Refugee Board (IRB) and Federal Court of Appeal below erred by interpreting too broadly “people smuggling” as applying to all acts to assist an undocumented person to enter Canada — even absent a financial or other material benefit.

“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,” the chief justice held.
“I conclude that 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).”

Brouwer opined that the court’s ratio, and remedial reading down, of the old s. 117 applies “with equal force” to the current section, which the Conservatives widened three years ago (the court did not address the new provision).

He also predicted there will be ripple effects in refugee law and other areas as a result of the court’s rejection of the federal Crown’s argument that s. 117’s overbreadth was cured by the s. 117(4) requirement that the attorney general of Canada must authorize all people smuggling prosecutions.

On that score, the chief justice observed “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.”

As a result, “if a law violates the Charter, the fact that the application of that law can be restricted by way of discretion…doesn’t cure the constitutional violation,” Brouwer said.

He suggested that other arguably overbroad IRPA sections — whose constitutionality the Federal Court of Appeal has previously upheld because of the existence of prosecutorial discretion — are again open to challenge.

In Appulonappa, the top court allowed the appeals of the captain and chief crew of the Ocean Lady, a ship apprehended in 2009 by Canadian authorities off the coast of Vancouver Island.

They were among 76 Tamils from Sri Lanka — most of whom, the Crown alleges, agreed to pay $30,000 to $40,000 to escape to Canada in the aftermath of civil war in their homeland.

The four men charged under s. 117 of the IRPA argued the offence breached the s. 7 Charter principles of fundamental justice by catching two categories of people outside the provision’s purpose: those who assist close family members without the requisite papers, such as visas or passports; and humanitarians who assist persons fleeing persecution, who do not have papers.

 In allowing the appeals, the Supreme Court ordered trials on the basis of s. 117, as narrowed by the court to conform with the objectives of the law.

In B010, the Supreme Court allowed the appeals of three Tamil men and one Cuban who were barred from obtaining refugee status on the basis of an overbroad interpretation of s. 37(1)(b).

The court ordered the IRB to reconsider their admissibility in accordance with the narrower interpretation. The three Tamils were among nearly 500 who boarded the cargo ship Sun Sea in Thailand on the promise of paying $20,000 to $30,000 for transport and entry to Canada. The Thai crew abandoned ship shortly after departure in 2010. The appellants were among a dozen migrants who took over running the ship in the ensuing three-month voyage across the Pacific Ocean. The fourth appellant, a Cuban native who had been accepted as a refugee by the U.S., was later deported as an “alien smuggler” by U.S. authorities for transporting 48 undocumented Cubans to America by boat.

He claimed refugee protection in Canada. All the appellants deemed inadmissible for organized criminal smuggling deny any wrongdoing and say they were simply helping fellow asylum-seekers flee persecution.

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