Date: 20121204
Docket:
IMM-2409-12
Citation: 2012
FC 1417
Ottawa, Ontario,
December 4, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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JESUS RODRIGUEZ HERNANDEZ
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Is
it “people smuggling” when not done for financial or other material benefit,
but for humanitarian reasons? That is the issue raised in this application.
[2]
The
applicant submits that the Immigration Division of the Immigration and Refugee
Board [the ID] erred in its interpretation of “people smuggling” in paragraph
37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] by failing to include the requirement that the smuggler obtain,
“directly or indirectly, a financial or other material benefit” [the Profit
Element] as is required in the Protocol Against the Smuggling of Migrants by
Land, Sea and Air, Supplementing the United Nations Convention against
Transnational Organized Crime [the Protocol].
[3]
This
very issue was recently considered by this Court in B010 v Canada (Minister of Citizenship and Immigration, 2012 FC 569 [B010] and B072 v Canada (Minister of Citizenship and Immigration), 2012 FC 899 [B072]. In those
decisions, the Court found reasonable the ID’s finding that “people smuggling”
is to be interpreted in a manner consistent with the offence of "Human
Smuggling" in subsection 117(1) of the Act which does not require the
Profit Element.[1]
[4]
The
applicant submits that these prior judgments should not be followed because
they did not consider De Guzman v Canada (Minister of Citizenship and
Immigration), 2005 FCA 436 [De Guzman], on the application of
paragraph 3(3)(f) of the Act and the “incorporation of international human
rights instruments into Canadian immigration law.” The applicant further
submits that the proper standard of review of the ID's interpretation of
paragraph 37(1)(b) of the Act is correctness and not reasonableness, as held in
those judgments, and that the correct interpretation of “people smuggling” in
paragraph 37(1)(b) includes the Profit Element.
Background
[5]
The
applicant is a citizen of Cuba who says that he was persecuted and imprisoned
for speaking out against its government and in joining others who opposed it.
In 2001, he fled Cuba for Florida where he was granted refugee status. While
in Florida, he continued to speak publicly against the Cuban government.
[6]
In
November 2003, he and two others took a small boat from Florida to Cuba to retrieve family members they left in Cuba and transport them to the United States. It was not done for any profit motive – it was arguably a humanitarian
mission. They, and the 48 members of their extended families on board, were
intercepted and detained by the US Coast Guard on their return trip. The
applicant was charged with three counts of Alien Smuggling pursuant to Title
USC §1324(a)(2)(A) which defines that crime as follows:
(2) Any person who, knowing or in
reckless disregard of the fact that an alien has not received prior official
authorization to come to, enter, or reside in the United States, brings to or
attempts to bring to the United States in any manner whatsoever, such alien,
regardless of any official action which may later be taken with respect to such
alien shall, for each alien in respect to whom a violation of this paragraph
occurs—
(A) be fined in accordance with
title 18 or imprisoned not more than one year, or both; or
(B) in the case of—
(i) an offense committed with the
intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by
imprisonment for more than 1 year,
(ii) an offense done for the purpose
of commercial advantage or private financial gain, or
(iii) an offense in which the alien is
not upon arrival immediately brought and presented to an appropriate
immigration officer at a designated port of entry,
be
fined under title 18 and shall be imprisoned, in the case of a first or second
violation of subparagraph (B)(iii), not more than 10 years, in the case of a
first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3
nor more than 10 years, and for any other violation, not less than 5 nor more
than 15 years.
[7]
The
applicant pled guilty and was sentenced to a term of imprisonment of twelve
months and one day. As a consequence, he lost his refugee status in the USA and was subject to deportation to Cuba. Rather than return to Cuba, where he claims he faces
persecution, he came to Canada and sought Convention refugee status. His claim
for protection was suspended pending a determination of his admissibility to Canada.
[8]
On
January 19, 2010, an immigration officer wrote a report under subsection 44(1)
of the Act expressing the opinion that the applicant was inadmissible pursuant
to paragraph 36(1)(b) of the Act on grounds of serious criminality for “having
been convicted of an offence outside Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years.” The officer found that the conviction
for Alien Smuggling equates to the offence of Human Smuggling in subsection
117(1) of the Act which reads as follows:
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117(1) No person shall 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.
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117(1) Commet une
infraction quiconque sciemment organise l’entrée au Canada d’une ou plusieurs
personnes non munies des documents — passeport, visa ou autre — requis par la
présente loi ou incite, aide ou encourage une telle personne à entrer au
Canada.
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It is not disputed that the Profit
Element is not a necessary element of the offence of Human Smuggling and there
is no issue in this proceeding that Alien Smuggling equates to the offence of
Human Smuggling in subsection 117(1) of the Act.
[9]
On
March 31, 2011, an immigration officer wrote a second report under subsection
44(1) of the Act expressing the opinion that the applicant was inadmissible
pursuant to paragraph 37(1)(b) of the Act on grounds of organized criminality
because “he engaged in the activity of people smuggling” given the acts to which
he admitted that led to his conviction in the USA for Alien Smuggling.
[10]
Paragraph
37(1)(b) of the Act provides that a foreign national who has engaged in people
smuggling is inadmissible on the grounds of organized criminality unless he
satisfies the Minister of Public Safety and Emergency Preparedness that his
presence in Canada would not be detrimental to the national interest. The
relevant provision reads as follows:
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37(1)
A permanent resident or a foreign national is inadmissible on grounds of
organized criminality for
…
(b)
engaging, in the context of transnational crime, in activities such as people
smuggling, trafficking in persons or money laundering.
(2)
The following provisions govern subsection (1):
(a)
subsection (1) does not apply in the case of a permanent resident or a
foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; …
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37(1) Emportent interdiction de
territoire pour criminalité organisée les faits suivants:
…
(b) se livrer, dans le cadre de la
criminalité transnationale, à des activités telles le passage de clandestins,
le trafic de personnes ou le recyclage des produits de la criminalité.
(2) Les dispositions suivantes
régissent l’application du paragraphe (1):
(a) les faits visés n’emportent
pas interdiction de territoire pour le résident permanent ou l’étranger qui
convainc le ministre que sa présence au Canada ne serait nullement
préjudiciable à l’intérêt national; …
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[11]
The
ID conducted an admissibility hearing and in its decision of January 27, 2012,
it made two findings. First, the ID found that there were reasonable grounds
to believe that the offence for which the applicant had been convicted in the USA (Alien Smuggling) would constitute an offence in Canada punishable by a term of imprisonment of
at least 10 years, i.e. the offence of Human Smuggling set out in subsection
117(1) of the Act. Accordingly, he was found inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Act. The applicant
takes no issue with that finding in this proceeding. Second, notwithstanding
that the Profit Element was absent from the applicant's smuggling activity, the
ID found that there were reasonable grounds to believe that he is inadmissible
to Canada on grounds of organized criminality for engaging in the transnational
crime of “people smuggling” pursuant to paragraph 37(1)(b) of the Act.
[12]
As
a consequence of these findings, a deportation order was issued against Mr.
Rodriguez Hernandez pursuant to paragraph 45(d) of the Act and paragraph
229(1)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227.
Standard of Review
[13]
Is
the ID’s interpretation of paragraph 37(1)(b) of the Act reviewable on the
standard of reasonableness, as the respondent submits, or correctness, as the
applicant submits? There are two very recent decisions of this Court on this
question, and they reach different conclusions.
[14]
Justice
Noël in B010 held at para 33 of his Reasons that the ID’s interpretation
of paragraph 37(1)(b) of the Act is reviewable on the standard of
reasonableness.
With
regard to the ID's interpretation of the IRPA, the Supreme Court has
consistently spoken of the need for deference when a tribunal is interpreting
its own statute (Alberta (Information and Privacy Commissioner) v Alberta
Teachers' Association, 2011 SCC 61 at para 30, [2011] SCJ 61 [Alberta
Teachers']; Smith v Alliance Pipeline Ltd, 2011 SCC 7 at paras 37-39
[Alliance Pipeline], [2011] 1 S.C.R. 160; Khosa, above, at para 44; Dunsmuir
v New Brunswick, 2008 SCC 9 at para 54, [2008] 1 S.C.R. 190 [Dunsmuir]).
Accordingly, this Court will apply the standard of reasonableness to the ID's
interpretation of para 37(1)(b) of the IRPA, ensuring that there was
justification, transparency, and intelligibility within the decision-making
process and that the ID's interpretation fell within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir,
above, at para 47).
[15]
Justice
Snider in Canada (Minister of Citizenship and Immigration) v Singh
Dhillon, 2012 FC 726 [Singh Dhillon], held at para 20 of her Reasons
that the ID’s interpretation of paragraph 37(1)(b) of the Act is reviewable on
the standard of correctness. In reaching her conclusion, Justice Snider refers
to the instructions of the Supreme Court of Canada in decisions that include
those referenced by Justice Noël, but notes that mere interpretation of a
tribunal’s own statute does not automatically result in the standard of review
being reasonableness. She cites Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53 [Mowat], at
para 24, wherein a unanimous Supreme Court wrote the following:
In
substance, if the issue relates to the interpretation and application of its
own statute, is within its expertise and does not raise issues of general
legal importance, the standard of reasonableness will generally
apply and the Tribunal will be entitled to deference. [emphasis added]
[16]
Justice
Snider held that the ID’s interpretation of paragraph 37(1)(b) of the Act
should be interpreted on the standard of correctness because, although that
provision was found in its home statute, the issue was “one of general legal
importance.”
[17]
In
light of these conflicting decisions, the applicable standard of review has not
been “determined in a satisfactory manner” by prior cases and thus it is an
open question in this application which standard of review should apply to the
ID’s interpretation of paragraph 37(1)(b) of the Act: Dunsmuir v New
Brunswick, 2008 SCC 9, at para 62 [Dunsmuir].
[18]
In
Dunsmuir, the Supreme Court held that a decision-maker’s
interpretation of its home statute will “usually” attract the reasonableness
standard. The Supreme Court also reaffirmed in Dunsmuir at paras 55,
and 58-61, that “a question of law of ‘central importance to the legal system …
and outside the … specialized area of expertise’ of the administrative decision
maker will always attract a correctness standard,” as will
constitutional questions and “true” questions of jurisdiction or vires
[emphasis added]. These exceptions to the home statute presumption were not
said to be exhaustive. Indeed, the Supreme Court went on to say at para 55
that “[o]n the other hand, a question of law that does not rise to [the level
of central importance] may be compatible with a reasonableness standard
where [there is a privative clause and a discrete and special administrative
regime]” [emphasis added]. Accordingly, Dunsmuir left the door open for
the correctness standard to apply to a question of law that was both inside a
decision-maker’s home statute and was not of “central importance” to the legal
system nor truly jurisdictional in nature. However, no test as to when the
home statute presumption would otherwise be rebutted was articulated.
[19]
In
Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC 12
[Khosa], the Supreme Court first considered the application of Dunsmuir
to the Federal Courts Act and, regarding questions of law, it held at
para 44 that they are generally reviewable by this Court on the correctness
standard:
Judicial
intervention is authorized [pursuant to paragraph 18.1(4)(c) of the Federal
Courts Act] where a federal board, commission or other tribunal
(c)
erred in law in making a decision or an order, whether or not the error appears
on the face of the record;
Errors
of law are generally governed by a correctness standard. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100
(S.C.C.), at para. 37, for example, held that the general questions of
international law and criminal law at issue in that case had to be decided on a
standard of correctness. Dunsmuir (at para. 54), says that if the
interpretation of the home statute or a closely related statute by an expert
decision maker is reasonable, there is no error of law justifying
intervention. Accordingly, para. (c) provides a ground of intervention, but
the common law will stay the hand of the judge(s) in certain cases if the
interpretation is by an expert adjudicator interpreting his or her home statute
or a closely related statute. This nuance does not appear on the face of para.
(c), but it is the common law principle on which the discretion provided in s.
18.1(4) is to be exercised. Once again, the open textured language of the Federal
Courts Act is supplemented by the common law.
[20]
The
issue in Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40 [Mugesera], cited by the Supreme Court in Khosa, was
whether the Appeal Division of the Immigration and Refugee Board [the IAD] had
properly found Mr. Mugesera inadmissible pursuant to provisions of the
since-replaced Immigration Act, RSC 1985, c I-2. Those provisions
required the IAD to determine whether Mr. Mugesera had committed an act or
omission constituting an offence in the place in which the act or omission was
committed and which would constitute a criminal offence in Canada. That exercise necessarily involved the interpretation – although not the direct
application – of both domestic and foreign criminal law. The correctness
standard of review was applied.
[21]
Khosa was decided
after Dunsmuir and supports the proposition that decisions by the ID
that involve the interpretation of criminal or international law, even if not
in the context of applying it – are owed no deference by a reviewing court.
[22]
Two
years after Khosa, in Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [ATA],
Justice Rothstein, at para 30, was thought by some to have strengthened the
home statute presumption:
There
is authority that “[d]eference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity” (Dunsmuir, at para. 54; Alliance
Pipeline Ltd. v. Smith, 2011 SCC 7, [2011] 1 S.C.R. 160 (S.C.C.), at para.
28, per Fish J.). This principle applies unless the interpretation of the
home statute falls into one of the categories of questions to which the
correctness standard continues to apply, i.e., "constitutional questions,
questions of law that are of central importance to the legal system as a whole
and that are outside the adjudicator's expertise, ... questions regarding the
jurisdictional lines between two or more competing specialized tribunals [and]
true questions of jurisdiction or vires" (Canada (Attorney
General) v. Mowat, 2011 SCC 53 (S.C.C.), at para. 18, per LeBel and
Cromwell JJ., citing Dunsmuir, at paras. 58, 60-61). [emphasis added]
[23]
Justice
Cromwell, although concurring in the result, dissented at para 99 from Justice
Rothstein’s reasons on the home statute presumption:
The
point is this. The proposition that provisions of a "home statute"
are generally reviewable on a reasonableness standard does not trump a more
thorough examination of legislative intent when a plausible argument is
advanced that a tribunal must interpret a particular provision correctly. In
other words, saying that such provisions in “home” statutes are “exceptional”
is not an answer to a plausible argument that a particular provision falls
outside the “presumption” of reasonableness review and into the “exceptional”
category of correctness review. Nor does it assist in determining by what
means the “presumption” may be rebutted.
[24]
Six
months later, in Rogers Communications Inc v Society of Composers, Authors
and Music Publishers of Canada, 2012 SCC 35, Justice Rothstein for the
majority clarified the holding in ATA at para 16, as follows:
I
must also respectfully disagree with Abella J.'s characterization, at para. 5,
of the holding in ATA as meaning that the “exceptions to the presumption
of home statute deference are ... constitutional questions and questions of law
of central importance to the legal system and outside the adjudicator's
specialized expertise”. Dunsmuir had recognized that questions which
fall within the categories of constitutional questions and questions of general
law that are both of central importance to the legal system as a whole and
outside the adjudicator's specialized area of expertise were to be reviewed on
a correctness standard (Dunsmuir, at paras. 58 and 60). ATA
simply reinforced the direction in Dunsmuir that issues that fall
under the category of interpretation of the home statute or closely related
statutes normally attract a deferential standard of review (ATA,
at para. 39; Dunsmuir, at para. 54). My colleague's approach would in effect
mean that the reasonableness standard applies to all interpretations of home
statutes. Yet, ATA and Dunsmuir allow for the exceptional
other case to rebut the presumption of reasonableness review for questions
involving the interpretation of the home statute. [emphasis added]
[25]
As
a result, the current state of the law is this: the home statute presumption
applies unless (1) it is a constitutional question, (2) a question of general
law of central importance to the legal system and outside the decision-maker's
specialized expertise, (3) a true question of jurisdiction or of the
jurisdictional lines between two or more competing specialized tribunals, or
(4) “an exceptional other case.”
[26]
As
to what may fall into the “exceptional other case” one looks first to previous
decisions “determined in a satisfactory manner” that applied the correctness
standard: Dunsmuir at para 62.
[27]
As
discussed above, the Supreme Court in Khosa held that decisions of the
ID that involve the interpretation of criminal or international law rightly
attract the correctness standard. That was held to be so even where the decision-maker
was directed to interpret (and not even apply) that law by its home statute, as
was the case in Mugesera, and where, like the present case, such
interpretation was necessary in order to determine an individual’s
inadmissibility for criminality. The Federal Court of Appeal has also recently
held that the implication of international law is a factor favouring the
correctness standard of review: See Idahosa v Canada (Minister of Public
Safety & Emergency Preparedness), 2008 FCA 418, at para 17. That
approach is consistent with that the Court of Appeal took in De Guzman which
also involved an examination of international law.
[28]
In
this case, the issue is whether the ID correctly interpreted the expression
“people smuggling” in paragraph 37(1)(b) of the Act in order to determine
whether the applicant was inadmissible for “organized criminality.” In its
reasons, the ID’s interpretation of that expression was based, among other
things, on section 117 of the Act, which is undoubtedly criminal law; on the
judgment of the Ontario Superior Court of Justice in R v Alzehrani,
[2008] OJ 4422, applying that criminal offence; and on definitions contained in
the Protocol and the United Nations Convention against Transnational
Organized Crime, UNTS vol 2225, p 209 [Organized Crime Convention], i.e.
international law. Indeed, the ID by its own conclusion is effectively
interpreting criminal law by concluding that “people smuggling” for the
purposes of paragraph 37(1)(b) is the same as the criminal offence of Human Smuggling
created by section 117 of the Act.
[29]
The
present case is therefore perfectly described in Khosa at para 44, as an
example where the correctness standard applies.
[30]
In
addition, although it is not necessary for the conclusion I have reached, I am also
of the view that the question of who is or is not admissible to Canada is a question of “central importance to the legal system.” A finding on
admissibility dictates the right of a non-citizen to enter into and remain in Canada, either as an immigrant or as a protected person. The right of a non-citizen to
remain in Canada and the protection, if any, he or she is entitled to receive
prior to removal, are fundamental to the Canadian legal system. Therefore, it
is the correct interpretation, and not merely a reasonable interpretation of
the relevant statutory provisions, that is required.
[31]
I
therefore find that correctness is the appropriate standard of review for the
issue involved in this application: the interpretation of “people smuggling” in
paragraph 37(1)(b) of the Act.
International Human Rights Instruments
and the Interpretation of the Act
[32]
I
turn to consider whether the ID erred in law by interpreting the phrase “people
smuggling” in paragraph 37(1)(b) of the Act synonymously with the crime of
Human Smuggling in section 117 of the Act. As discussed above, what is at
issue, specifically, is whether “people smuggling” for the purposes of
paragraph 37(1)(b) requires the Profit Element.
[33]
The
applicant’s argument in a nutshell is this. Paragraph 3(3)(f) of the Act
requires that the other provisions of the Act “be construed and applied in a
manner that … complies with international human rights instruments to which
Canada is signatory.” De Guzman is authoritative and held at para 83
that “IRPA must be interpreted and applied consistently with an
instrument to which paragraph 3(3)(f ) applies, unless, on the modern
approach to statutory interpretation, this is impossible [emphasis
added].”
[34]
More
recently, the Supreme Court in Németh v Canada (Minister of Justice),
2010 SCC 56, held at para 34 that “where possible, statutes should be
interpreted in a way which makes their provisions consistent with Canada's
international treaty obligations and principles of international law.”
However, “the presumption that legislation implements Canada's international obligations is rebuttable. If the provisions are unambiguous, they
must be given effect:” at para 35.
[35]
Importantly,
De Guzman teaches that one must examine the “impugned provision in the
context of the entire legislative scheme,” and not in isolation. As a result,
one cannot simply “adopt” the Protocol’s definition without examining both how
that definition fits into the legislative scheme as a whole and how that whole
then coexists with relevant international human rights instruments.
[36]
To
summarize, the effect of these authorities is that the legislative scheme of
the Act as a whole must be interpreted and applied consistently with
international human rights instruments described in paragraph 3(3)(f) of the
Act, unless, on the modern approach to statutory interpretation, this is
impossible.
The Scheme of the Act as a Whole and the
Applicant
[37]
The
applicant made an in-Canada claim for refugee protection to an officer, which
he was entitled to do as he was not subject to a removal order: subsection
99(3). The officer was then required to determine whether the applicant’s
claim for protection was eligible to be referred to the Refugee Protection
Division of the Immigration and Refugee Board [the RPD]: subsection 100(1).
The officer was of the opinion that the applicant was inadmissible to Canada (first for serious criminality and latter for organized crime) and accordingly,
prepared a report setting out the relevant facts and transmitted it to the Minister:
subsection 44(1). The Minister, satisfied that the report was “well-founded,”
referred the report to the ID for an admissibility hearing: subsection 44(2).
When the report was referred to the ID for determination, the officer suspended
consideration of the applicant’s claim for protection: subsection 100(2).
[38]
The
result of the applicant's admissibility hearing was a finding that he was
inadmissible to Canada both on the grounds of serious criminality (paragraph
36(1)(b)) and on the grounds of organized criminality (paragraph 37(1)(b)) as a
consequence of his actions and his conviction in the United States for Alien
Smuggling. Mr. Hernandez was ordered deported, pursuant to paragraph 45(d) of
the Act, on account of each finding.
[39]
Pursuant
to paragraphs 37(2)(a) and 4(2)(d) of the Act, the applicant may negate the
finding of inadmissibility for organized criminality if he “satisfies the
Minister [of Public Safety and Emergency Preparedness] that [his] presence in Canada would not be detrimental to the national interest.” Based on the record before me,
it appears Mr. Hernandez has not yet attempted to so satisfy that Minister.
[40]
If
the applicant is unsuccessful at satisfying the Minister that his presence is
not detrimental to the national interest, or if he does not try to do so, then,
pursuant to paragraph 101(1)(f) of the Act, the finding of organized
criminality will bar him from making a refugee claim. The finding of serious
criminality, on the other hand, which is not contested in this application,
only bars the applicant from making a refugee claim if the “Minister [of
Citizenship and Immigration] is of the opinion that he is a danger to the
public in Canada:” paragraph 101(2)(b). There is also no evidence that such a
danger opinion has been issued by that Minister.
[41]
Individuals
inadmissible for having engaged in either serious criminality (as described in
paragraph 112(3)(b)) or organized criminality and who are subject to a
deportation order, such as the applicant, may apply for a Pre-Removal Risk
Assessment (PRRA) under the Act, albeit in a limited manner. In particular,
paragraph 113(d) provides that those, like the applicant, who are inadmissible
on grounds of organized criminality, shall have their risk assessed “on the
basis of the factors set out in section 97, i.e. “a danger … of torture,” or “a
risk to their life or to a risk of cruel and unusual treatment or punishment.”
They are not entitled to have their risk assessed on the basis of the factors
set out in section 96, i.e. “a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion.”
[42]
In
summary, if the ID’s finding that the applicant is inadmissible on grounds of
organized criminality stands, then he has the following options available to
challenge his removal to Cuba:
a. He can attempt
to satisfy the Minister of Public Safety and Emergency Preparedness that his
presence is not detrimental to Canada’s national interest; if he succeeds, then
his inadmissibility status is waived and he can advance a claim for refugee
protection.
b. If he is unable
to change his inadmissibility status, then he is entitled to a PRRA only as to
whether he is at risk of torture, or there is a risk to his life or a risk of
cruel and unusual treatment and punishment if he is removed from Canada; not whether he is at risk of persecution.
Relevant International Human Rights
Instruments
[43]
I
turn now to consider the relevant international human rights instruments to
which Canada is a signatory.
[44]
As
described above, the applicant submits that removing the Profit Element from
“people smuggling” is inconsistent with the Protocol. In particular, he says
that by including the Profit Element in the definition of the “smuggling of
migrants,” the Protocol focused on those criminals who, for profit, prey on the
poor and disadvantaged, and made it clear that family members, friends, and
non-governmental organizations that assist others to effect illegal entry were
not intended to be captured. Support for the latter assertion comes from the
following passage in the UNHCR Summary Position on the Protocol against the
Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the UN Convention against Transnational Organized Crime:
The
Protocol against Smuggling is also clear in that it does not aim at punishing
persons for the mere fact of having been smuggled or at penalizing
organizations which assist such persons for purely humanitarian reasons.
[45]
I
cannot accept the applicant’s submission that removing the Profit Element in
paragraph 37(1)(b) of the Act is inconsistent with the Protocol for the
following reasons.
[46]
The
Organized Crime Convention concerns the criminalization of certain
transnational conduct. Article 3, paragraph 1 states:
This
Convention shall apply, except as otherwise stated herein, to the prevention,
investigation and prosecution of:
(a)
The offences
established in accordance with articles 5, 6, 8 and 23 of this Convention; and
(b)
Serious crime as defined in article 2 of this
Convention;
where
the offence is transnational in nature and involves an organized criminal
group. [emphasis added]
[47]
Moreover,
paragraph 1(a) of Article 6 of the Protocol, annexed to the Organized Crime
Convention, is clearly intended to criminalize the specific transnational crime
of “smuggling of migrants:”
1.
Each State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed
intentionally and in order to obtain, directly or indirectly, a financial or
other material benefit:
(a)
The smuggling of
migrants; …[emphasis added]
[48]
Unlike
the Protocol, which establishes crimes, paragraph 37(1)(b) of the Act is an
inadmissibility provision with consequences to a foreign national's ability to
claim protection, and a permanent resident's or foreign national's ability to
remain in Canada.
[49]
Canada’s international
commitment to criminalize the smuggling of migrants when engaged in
transnationally, has no bearing on when it must permit persons to seek
Convention refugee protection or when the exceptions to the principle of
non-refoulement will be met. There is another international human rights
instrument to which Canada is a signatory that bears more directly on these
issues: The Convention Relating to the Status of Refugees and the Protocol
Relating to the Status of Refugees [collectively the Refugee Convention].
[50]
Article
33 of the Refugee Convention “embodies in refugee law the principle of
non-refoulement which has been described as the cornerstone of the
international refugee protection regime:” Németh, para 18. It provides
as follows:
Article
33. - Prohibition of expulsion or return ("refoulement")
1.
No Contracting State shall expel or return (" refouler ") a refugee
in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
2.
The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of
the country in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community
of that country. [emphasis added]
[51]
Standing
alone, paragraph 1 of Article 33 of the Refugee Convention would prevent Canada from returning the applicant to Cuba without having made an assessment of the
well-foundedness of his fear of persecution or torture under both sections 96
and 97 of the Act. However, paragraph 2 provides that the non-refoulement
principle does not extend to those who, by virtue of “having been convicted by
a final judgment of a particularly serious crime, [constitute] a danger to the
community of that country.”
[52]
Paragraph
3(3)(f) of the Act dictates that these provisions of the Act, relating to
persons such as this applicant, must be examined for consistency with this
international human rights instrument.
[53]
What
are the consequences of this applicant being found inadmissible due to
organized criminality? If the applicant is inadmissible under paragraph
37(1)(b) of the Act for organized criminality, he will not get a refugee
hearing (paragraph 101(1)(f) of the Act) and he will be returned without any
examination of his claims of persecution, because the PRRA will not capture
persecution factors under section 96.
[54]
However,
this is not necessarily inconsistent with the Refugee Convention because of the
danger-related ‘safety-valve’ in paragraph 37(2)(a) of the Act. That mechanism
prevents the just-mentioned consequences from befalling people smugglers who
satisfy the Minister that their presence in Canada is not detrimental to the
"national interest." The Court of Appeal in Agraira v Canada
(Minister of Public Safety and Emergency Preparedness), 2011 FCA 103,
affirmed that “Parliament has placed the consideration of national interest
within the context of national security and public safety” and that, as a
result, “the principal, if not the only, consideration in the processing of
applications for ministerial relief [regarding the “national interest”] is
national security and public safety, subject only to the Minister’s obligation
to act in accordance with the law and the Constitution:” at paras 39 and 50.
Persons who are detrimental to the national interest of Canada are persons who are “a danger to the community of that country” within the meaning
of the Refugee Convention and thus, disentitled from protection from
persecution according to the Refugee Convention.
[55]
As
a result, I am satisfied that the scheme of the Act as a whole, relevant to the
applicant, is not truly inconsistent with either the Protocol or the Refugee
Convention.
[56]
However,
the fact that the ID’s interpretation is not truly inconsistent with
international law does not end the matter. What remains to be done is to
ascertain the correct legal interpretation of "people smuggling" in
paragraph 37(1)(b) of the Act.
What Does “People Smuggling” in the Act
Mean?
[57]
Justice
Noël in B010 was examining, as he put it at para 33, whether “the ID’s
interpretation [of paragraph 37(1)(b)] fell within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above, at para 47).” A reasonable interpretation of a statutory provision may
not be the correct one. In fact, in this case there appear to be two equally
reasonable but competing interpretations of “people smuggling.” On the
reasonableness standard of review, Justice Noël’s task was not to determine the
correct interpretation. At para 36 he said: “I must stress that in applying
the reasonableness standard of review, this Court’s task is not to assess the
applicant’s proposed definition, but only to determine whether the ID’s chosen
interpretation falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir, above, at paras 47
and 54).” Accordingly, and although I take guidance from the reasoning of
Justice Noël, neither comity nor precedent requires that I follow it. My task,
based on the correctness standard of review, is to determine the one correct
interpretation of paragraph 37(1)(b) of the Act.
[58]
For
the following reasons, I conclude that the crime of Human Smuggling in
subsection 117(1) does not dictate the proper meaning of the activity of
“people smuggling” in paragraph 37(1)(b) of the Act. Properly construed,
“people smuggling” includes the Profit Element.
[59]
My
first reason for concluding that “people smuggling” in paragraph 37(1)(b)
includes the Profit Element is that Parliament used different terms in
paragraph 37(1)(b) and in section 117 – people smuggling versus human smuggling.
I agree with Justice Noël that the different words themselves hardly clarify
matters; however, it remains a canon of interpretation that different words
appearing in the same statute should be given a different meaning: See Ruth
Sullivan, Sullivan on the Construction of Statutes, 5d ed (Toronto:
LexisNexis Canada, 2008) [Sullivan on Construction] at 216-218. This principle
was expressed by Justice Malone in Peach Hill Management Ltd v Canada, [2000] FCJ 894 (CA), at para 12, as follows:
When
an Act uses different words in relation to the same subject such a choice by
Parliament must be considered intentional and indicative of a change in meaning
or a different meaning.
[60]
In
my view, this observation from the Court of Appeal is all the more applicable
and determinative when, as here, the two phrases came into the Act at the same
time with the passage of Bill C-11 in 2001, which brought the Act into
existence. The possibility of an oversight or drafting error is less likely in
that circumstance than when legislation is amended piece-meal over time.
[61]
What
we have in the Act are two different phrases that appear to relate to the same
subject matter: the bringing of persons into a country contrary to that
country’s laws. In Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) [Sullivan on Interpretation] at 185, the author directs what is
to be done when faced with different terms relating to the same subject in the
same statute:
[t]he next step in the analysis
[is] to identify a plausible reason for distinguishing between the two groups.
This may be done by noting how the two groups are treated differently under the
Act, and then suggesting historical or desirable reasons for this difference in
treatment
[62]
Justice
Noël did consider, at paragraph 44 of in his Reasons, how the two separate
concepts (people smuggling and Human Smuggling) would be treated under the Act,
and concluded that it made no sense that someone convicted of Human Smuggling
would not be inadmissible to Canada:
This then raises a second
important point. If the provisions of the IRPA are to be read in such a
manner, how can we adopt an interpretation of the IRPA in which two sections
hold different meanings when they employ such strikingly similar terms and
appear to address the same conduct? One would be hard pressed to explain why
an individual convicted of ‘organizing entry into Canada’ pursuant to section
117 could remain admissible to Canada despite para 37(1)(b).
Indeed, when the offence set out in section 117 is located under the heading
‘human smuggling and trafficking’ and may result in both a fine of up to
$1,000,000 and life imprisonment for any individual that smuggles a group of 10
or more persons, how can an individual convicted of this offence not be found
to have engaged in ‘people smuggling’ under para 37(1)(b)? It strikes
me as improbable that differing interpretations given to the terms ‘people
smuggling’ and ‘human smuggling’ could justify such a contradiction. Hence,
for the sake of coherence and consistency, unless the contrary is clearly
indicated by the context, this is another indication that para 37(1)(b)
should be interpreted in conformity with section 117 so that it may be given “a
meaning that is harmonious with the Act as a whole” (Canada Trustco,
above, at para 10). [emphasis added]
[63]
The
underlined passage asks why someone convicted of Human Smuggling in Canada under section 117 could remain admissible to Canada. The short answer is that such a
person’s inadmissibility does not solely depend on section 37 of the Act.
Section 36 of the Act also provides for inadmissibility – inadmissibility for
“serious criminality.”
[64]
It
is true that if “people smuggling” requires the Profit Element then a
humanitarian smuggler convicted under section 117 would not be inadmissible by
virtue of paragraph 37(1)(b); however, that individual would nonetheless be
inadmissible for “serious criminality” through the straightforward application
of subsection 36(1), and would be subjected to the attendant consequences of
such a designation. In other words, notwithstanding paragraph 37(1)(b), the
humanitarian people smuggler is already inadmissible in the same manner as
others convicted of serious crimes.
[65]
I
therefore see no “contradiction” of the kind described in B010 if the
Profit Element is a requirement of “people smuggling” even though it is not a
requirement for the crime of Human Smuggling. The humanitarian smuggler
remains inadmissible and is grouped, for the purposes of the Act, with
murderers, rapists, and other serious criminals, which entails that if the
Minister believes the smuggler is a danger to the public in Canada, he will not
have the benefit of a refugee determination (paragraph 101(1)(f)), and he may
be refouled to persecution (subparagraph 113(d)(i)). It is simply that certain
additional and exceptional drawbacks caused by a finding of “organized
criminality” would not apply to the humanitarian smuggler. But, as I have
said, even on the narrow interpretation of “people smuggling" humanitarian
smugglers are accorded the same inadmissibility status as murderers, rapists,
and others convicted of serious offences. Thus, the scheme of the Act is in no
way thrown into discord merely because of that interpretation.
[66]
Moreover,
in Sullivan’s words, I find there is a “plausible reason for distinguishing
between the two groups.” Individuals who smuggle people for profit arguably
should be afforded fewer protections than those who do not. Indeed, Parliament
listed the profit motive as an aggravating factor to be considered at the
sentencing stage for the offence of Human Smuggling in section 117: See
paragraph 121(1)(c). Parliament therefore obviously intended that the
smuggling of people for profit is to be met with harsher treatment than
humanitarian smuggling. Including the Profit Element as a requirement of
people smuggling in paragraph 37(1)(b) accords with that intention.
[67]
My
second reason for concluding that “people smuggling” in paragraph 37(1)(b)
includes the Profit Element is that Parliament placed the phrase "people
smuggling" in paragraph 37(1)(b) as a part of a longer phrase and these
words and phrases must be interpreted in context. “This includes the immediate
context, the Act as a whole and the statute book as a whole:” Sullivan on Construction
at 354.
[68]
In
my view, the immediate context of the phrase “people smuggling” is very
relevant to its proper interpretation. It is found within the following phrase
“is inadmissible on grounds of organized criminality for engaging, in the
context of transnational crime, in activities such as people smuggling,
trafficking in persons or money laundering” [emphasis added].
[69]
First,
the paragraph renders one inadmissible not for the crimes of people
smuggling, trafficking in persons or money laundering, but for engaging in
those or similar activities “in the context of transnational crime.” If
“people smuggling” and “Human Smuggling” both referred to crimes or both
referred to activities, then it might be more natural to say that they both
refer to the same thing. However, where they have different referents - one a
crime and the other an activity - it is less obvious that one should import the
meaning of one into the other, in the absence of a clearly stated intention
that they share a common meaning.
[70]
Second,
the associated words rule (noscitur a sociis) should be used to
interpret the operative phrase: “activities such as people smuggling,
trafficking in persons or money laundering.” Under the rule “the interpreter
looks for a pattern or a common theme in the words or phrases, which may be
relied on to resolve ambiguity or to fix the scope of the provision:” Sullivan
on Interpretation 175. As Justice Martin said in R v Goulis (1981), 33
OR (2d) 55 at para 61 (CA), the words “take their colour from each other.”
[71]
Trafficking
in persons and money laundering are done for profit. They are not activities
done with no expectation of profit or for humanitarian reasons. This suggests
that people smuggling, as found within that phrase, has similar colour or
meaning. Alone, the phrase is ambiguous as it may refer to either a
profit-motivated smuggling activity (as in the Protocol) or the smuggling
activity regardless of the gain the smuggler expects to realize. However, when
one examines the phrase in the context of the others, and taking colour from
them, their common feature must be that they are engaged in as for-profit
activities. Indeed, I am otherwise hard-pressed to see any other truly common
feature among these activities, other than that they occur in the context of
transnational crime. On the contrary, in Singh Dhillon it made sense
that the offence of drug trafficking was held to be included in paragraph
37(1)(b), because “money laundering overlaps substantially with drug
trafficking:” See para 64. Humanitarian people smuggling has no such overlap
with trafficking in persons and money laundering or drug trafficking.
[72]
Third,
paragraph 37(1)(b) speaks to the activity of people smuggling “in the context
of transnational crime.” The ID, both here and in B010, looked to
Article 3, paragraph 2 of the Convention, to interpret the word
“transnational.” In such a circumstance, unless the domestic legislation
provides a definition of an activity that it lists as falling within the scope
of “transnational crime” and the Act does not, why would we not also look to
the same Convention and its protocols for guidance as to the meanings of these
activities? Admittedly, the Convention does not use the phrase “people
smuggling;” it uses the phrase “smuggling of migrants.” However, the
Convention does specifically use the two other phrases that are also said to be
activities that fall within the concept of a transnational crime; namely,
“money laundering” (Articles 6 and 7 of the Convention) and “trafficking in persons”
(in the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime). In my view, the clear coincidence
between the three activities listed in paragraph 37(1)(b) and those in the
Convention and its protocols provides yet another reason why the Profit Element
is to be included in the definition of “people smuggling.”
Conclusion
[73]
For
the foregoing reasons, I conclude that “people smuggling” in paragraph 37(1)(b)
includes the Profit Element, and the ID erred in its decision, which is set
aside. A differently constituted panel of the ID is to re-determine, in
accordance with these reasons, whether the applicant is inadmissible for engaging,
in the context of transnational crime, in the activity of people smuggling.
[74]
Both
parties asked that the Court certify a question similar to that certified in B010
and B072. It is appropriate to do so. In light of these reasons, the
question as framed in those decisions is amended; however, the issue remains
the same.
[75]
The
applicant also asked that the Court certify a question relating to the
appropriate standard of review. A similar request was refused in B010
because the judge said that he had relied “on clear jurisprudence from the
Supreme Court of Canada to conclude that the issue called for reasonableness.”
In this case, also relying on clear jurisprudence from the Supreme Court of
Canada, an opposite result was reached. Accordingly, I find that the standard
of review is an appropriate question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the
application is allowed, the decision is set aside, a differently constituted
panel of the ID is to re-determine, in accordance with these reasons, whether
the applicant is inadmissible for engaging, in the context of transnational
crime, in the activity of people smuggling, and the following questions are
certified:
a.
Is
the interpretation of paragraph 37(1)(b) of the Immigration and Refugee Protection
Act, SC 2001, c 27, and in particular of the phrase “people smuggling”
therein, by the Immigration and Refugee Board, Immigration Division, reviewable
on the standard of correctness or reasonableness?
b.
Does
the phrase “people smuggling” in paragraph 37(1)(b) of the Immigration and
Refugee Protection Act, SC 2001, c 27, require that it be done by the
smuggler in order to obtain, “directly or indirectly, a financial or other
material benefit” as is required in the Protocol Against the Smuggling of Migrants
by Land, Sea and Air, Supplementing the United Nations Convention against
Transnational Organized Crime?
"Russel W. Zinn"
[1] After
this application was heard, judgment issued in B306 v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 1282 [B306],
which also involved an applicant aboard the MV Sun Sea alleged to have
been involved in people smuggling. However, that case turned on the
interpretation of “aiding and abetting” in subsection 117(1) of the Act; it is
not helpful on the issue before this Court.
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