SUPREME
COURT OF CANADA
Between:
Francis
Anthonimuthu Appulonappa
Appellant
and
Her
Majesty The Queen
Respondent
And between:
Hamalraj
Handasamy
Appellant
and
Her
Majesty The Queen
Respondent
And between:
Jeyachandran
Kanagarajah
Appellant
and
Her
Majesty The Queen
Respondent
And between:
Vignarajah
Thevarajah
Appellant
and
Her
Majesty The Queen
Respondent
- and -
Attorney
General of Ontario, Amnesty International (Canadian Section, English Branch),
British Columbia Civil Liberties Association, Canadian Civil Liberties
Association, Canadian Council for Refugees and Canadian Association of Refugee
Lawyers
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis,
Wagner and Gascon JJ.
Reasons
for Judgment:
(paras. 1 to 86)
|
McLachlin C.J. (Abella, Rothstein,
Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
|
R.
v. Appulonappa,
2015 SCC 59, [2015] 3 S.C.R. 754
Francis Anthonimuthu
Appulonappa Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Hamalraj Handasamy Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Jeyachandran Kanagarajah Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Vignarajah Thevarajah Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Amnesty International (Canadian Section,
English Branch),
British Columbia Civil Liberties
Association,
Canadian Civil Liberties Association,
Canadian Council for Refugees and
Canadian Association of
Refugee Lawyers Interveners
Indexed as: R. v. Appulonappa
2015 SCC 59
File No.: 35958.
2015: February 17; 2015: November 27.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver,
Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice —
Overbreadth — People smuggling — Migrants seeking refugee status in Canada
charged with offence of organizing, inducing, aiding or abetting persons coming
into Canada without valid documentation — Trial judge finding that offence
provision overbroad and therefore unconstitutional because it criminalizes not
only organized people smuggling, but helping close family members to come to
Canada and humanitarian assistance to refugees — Whether offence provision
infringes s. 7 of Canadian Charter of Rights and Freedoms — If so, whether
infringement justifiable under s. 1 of Charter — If no, what is
appropriate remedy for constitutional infirmity — Immigration and Refugee Protection
Act, S.C. 2001, c. 27, s. 117 .
Immigration — Offences — People
smuggling — Migrants seeking refugee status in Canada charged
with offence of organizing, inducing, aiding or abetting persons coming into
Canada without valid documentation — Whether offence
provision unconstitutional — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 117 .
In 2009, a vessel was apprehended
off the west coast of Vancouver Island, in British Columbia. Seventy‑six
people, among them A, H, K and T (the “migrants”) were aboard. All were Tamils
from Sri Lanka. They claimed to have fled Sri Lanka because their lives were
endangered. They asked for refugee status in Canada. None had the required
legal documentation. The migrants are alleged to have been the point persons
for a transnational for‑profit operation to smuggle undocumented migrants
from Southeast Asia to Canada. The majority of passengers each paid, or
promised to pay, $30,000 to $40,000 for the voyage. The migrants are said to
have been responsible for organizing the asylum‑seekers in Indonesia and
Thailand prior to boarding the freighter, and serving as the chief crew of the
ship on the voyage to Canada — H as captain, T as chief engineer, and K and A
as key crew members.
The migrants were charged under
s. 117 of the Immigration and Refugee Protection Act (“IRPA ”),
which makes it an offence to “organize, induce, aid or abet” the coming into
Canada of people in contravention of the IRPA . Consequences of
conviction could include lengthy imprisonment and disqualification from
consideration as a refugee. Before their trial, the migrants challenged the
constitutionality of s. 117 of the IRPA , on the ground that it
infringes the right to life, liberty and security of the person enshrined in
s. 7 of the Canadian Charter of Rights and Freedoms . The trial
judge ruled the provision was unconstitutional. The Court of Appeal reversed
that decision, found the provision to be constitutional and remitted the matter
for trial. Section 117 as it was at the time of the alleged offences is no
longer in force and the constitutionality of the current s. 117 is not
before the Court.
Held: The appeals are allowed and the charges
are remitted for trial. Section 117 is unconstitutional insofar as it permits
prosecution for humanitarian aid to undocumented entrants, mutual assistance
amongst asylum‑seekers or assistance to family members.
Participating in the unauthorized
entry of other people into Canada may result in prosecution and imprisonment
and/or substantial fines upon conviction under s. 117 of the IRPA . The
migrants contend that s. 117 violates s. 7 of the Charter
because the provision catches two categories of people outside its purpose —
people who assist close family members to come to Canada and humanitarians who
assist those fleeing persecution to come to Canada, in each case without
required documents. They say that s. 117 is therefore overbroad. They also
argue that s. 117 offends the principles of fundamental justice because
its impact on liberty is grossly disproportionate to the conduct it targets,
because it is unconstitutionally vague, and because it perpetuates inequality.
Insofar as s. 117 permits
prosecution for humanitarian aid to undocumented entrants, mutual assistance
amongst asylum‑seekers or assistance to family members, it is
unconstitutional. The purpose of s. 117 is to criminalize the smuggling of
people into Canada in the context of organized crime, and does not extend to
permitting prosecution for simply assisting family or providing humanitarian or
mutual aid to undocumented entrants to Canada. A broad punitive goal that would
prosecute persons with no connection to and no furtherance of organized crime
is not consistent with Parliament’s purpose as evinced by the text of s. 117
read together with Canada’s international commitments, s. 117 ’s role
within the IRPA , the IRPA ’s objects, the history of s. 117 ,
and the parliamentary debates.
The scope of s. 117 is
overbroad and interferes with conduct that bears no connection to its objective.
The overbreadth problem cannot be avoided by interpreting s. 117(1) as not
permitting prosecution of persons providing humanitarian, mutual or family
assistance. Such an interpretation would require the Court to ignore the ordinary
meaning of the words of s. 117(1), which unambiguously make it an offence
to “organize, induce, aid or abet” the undocumented entry. To adopt this
interpretation would violate the rule of statutory interpretation that the
meaning of the words of the provision should be read in their grammatical and
ordinary sense. It would also require statements from the legislative debate
record suggesting Parliament knew in advance that the provision was overbroad
to be ignored.
Parliament itself understood when
it enacted s. 117 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 of Canada would not permit the prosecution of such people.
Section 117(4), which requires the Attorney General to authorize prosecutions,
does not cure the overbreadth problem created by s. 117(1). 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.
Section 117 of the IRPA is
overbroad and this overbreadth cannot be justified under s. 1 of the Charter .
While the objective of s. 117 is clearly pressing and substantial and some
applications of s. 117 are rationally connected to the legislative object,
the provision fails the minimal impairment branch of the s. 1 analysis. It
follows that s. 117 is of no force or effect to the extent of its
inconsistency with the Charter . The extent of the inconsistency that has
been proven is the overbreadth of s. 117 in relation to three categories
of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual
aid amongst asylum‑seekers, and (3) assistance to family entering
without the required documents. In this case, the preferable remedy is to read
down s. 117 of the IRPA , as it was at the time of the alleged
offences, as not applying to persons providing humanitarian aid to asylum‑seekers
or to asylum‑seekers who provide each other mutual aid (including aid to
family members), to bring it in conformity with the Charter . This remedy
reconciles the former s. 117 with the requirements of the Charter
while leaving the prohibition on human smuggling for the relevant period in
place.
In view of the conclusion that s. 117
is overbroad, it is unnecessary to consider the argument that s. 117
offends s. 7 of the Charter by depriving persons of liberty in a
manner that violates the principles of fundamental justice against gross
disproportionality and vagueness.
Cases Cited
Referred
to: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58,
[2015] 3 S.C.R. 704; Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Canada (Attorney General) v. Bedford,
2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General),
2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R.
773; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Heywood,
[1994] 3 S.C.R. 761; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Németh v. Canada (Justice), 2010 SCC 56,
[2010] 3 S.C.R. 281; Febles v. Canada (Citizenship and Immigration),
2014 SCC 68, [2014] 3 S.C.R. 431; Application under s. 83.28 of
the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Global
Securities Corp. v. British Columbia (Securities Commission), 2000 SCC
21, [2000] 1 S.C.R. 494; R. v. Gladue, [1999] 1 S.C.R. 688; Reference
re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; R. v. Anderson,
2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Oakes, [1986] 1 S.C.R. 103; R.
v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Schachter v. Canada,
[1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Act to amend the Immigration Act, S.C.
1902, c. 14, s. 2.
Act to amend The Immigration Act, S.C.
1919, c. 25, s. 12(4).
Act to amend the Immigration Act and the Criminal Code in
consequence thereof, R.S.C. 1985, c. 29 (4th
Supp.), ss. 1 , 9 .
Canadian Charter of Rights and Freedoms,
ss. 1 , 7 .
Constitution Act, 1982, s. 52 .
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 .
Foreign Extraterritorial Measures Act,
R.S.C. 1985, c. F‑29 .
Freezing Assets of Corrupt Foreign Officials Act, S.C. 2011, c. 10 .
Geneva Conventions Act, R.S.C. 1985,
c. G‑3 .
Immigration Act, R.S.C. 1906, c. 93,
ss. 65, 66.
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, ss. 3 , 37(1) (b), Part 3, 117 [am. 2012,
c. 17, s. 41], 118, 121, 133.
Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, s. 41(1) , (4) .
Special Economic Measures Act, S.C.
1992, c. 17 .
Treaties and Other International Instruments
Convention relating to the Status of Refugees, 189 U.N.T.S. 150, arts. 31(1), 33.
Protocol against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational Organized
Crime, 2241 U.N.T.S. 480, arts. 2, 3(a), 6(1),
(3), (4), 19(1).
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime, 2237
U.N.T.S. 319.
United
Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209,
arts. 1, 5, 34.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. VII,
2nd Sess., 33rd Parl., August 12, 1987, p. 8002.
Canada. House of Commons. Minutes of Proceedings and Evidence of
the Legislative Committee on Bill C‑84: An Act to amend the Immigration
Act, 1976 and the Criminal Code in consequence thereof, No. 9, 2nd
Sess., 33rd Parl., August 25, 1987, p. 24.
Canada. House of Commons. Standing Committee on Citizenship and
Immigration. Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001
(online:
http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=37&Ses=1&DocId=1040838&File=0),
10:35.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th
ed. Markham, Ont.: LexisNexis, 2014.
APPEALS
from a judgment of the British Columbia Court of Appeal (Neilson, Bennett and
Hinkson JJ.A.), 2014 BCCA 163, 355 B.C.A.C. 98, 607 W.A.C. 98, 373 D.L.R. (4th)
1, 310 C.C.C. (3d) 193, 11 C.R. (7th) 154, 308 C.R.R. (2d) 293, 25 Imm. L.R.
(4th) 1, [2014] B.C.J. No. 762 (QL), 2014 CarswellBC 1135 (WL Can.),
setting aside the orders of Silverman J. and directing a new trial, 2013 BCSC
31, 358 D.L.R. (4th) 666, 275 C.R.R. (2d) 1, 99 C.R. (6th) 245, 13 Imm. L.R.
(4th) 207, [2013] B.C.J. No. 35 (QL), 2013 CarswellBC 15 (WL Can.); and 2013
BCSC 198, [2013] B.C.J. No. 217 (QL), 2013 CarswellBC 299 (WL Can.). Appeals
allowed and charges remitted for trial.
Fiona Begg and Maria Sokolova, for the appellant Francis Anthonimuthu
Appulonappa.
Peter H. Edelmann and Jennifer Ellis, for the appellant Hamalraj
Handasamy.
Micah B. Rankin and Phillip C. Rankin, for the appellant Jeyachandran Kanagarajah.
Gregory P. DelBigio, Q.C., and Lisa
Sturgess,
for the appellant Vignarajah Thevarajah.
W. Paul Riley, Q.C., and Banafsheh Sokhansanj, for the respondent.
Hart Schwartz and Padraic
Ryan, for
the intervener the Attorney General of Ontario.
Chantal Tie, Laïla
Demirdache
and Michael
Bossin, for the intervener Amnesty
International (Canadian Section, English Branch).
Marlys A. Edwardh and Daniel Sheppard, for the intervener the British
Columbia Civil Liberties Association.
Andrew I. Nathanson and Gavin Cameron, for the intervener the Canadian
Civil Liberties Association.
Angus Grant, Catherine
Bruce, Laura Best and Fadi Yachoua, for the intervener the Canadian
Council for Refugees.
Andrew J. Brouwer, Jennifer Bond and Erin Bobkin, for the intervener the Canadian Association of Refugee Lawyers.
The judgment
of the Court was delivered by
The
Chief Justice —
I.
Introduction
[1]
On October 17, 2009, a vessel called the Ocean
Lady was apprehended off the west coast of Vancouver Island, in British
Columbia. Seventy-six people, among them the appellants, were aboard. All
were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their
lives were endangered in the aftermath of the civil war in that country. They
asked for refugee status in Canada. None had the required legal documentation.
[2]
The Crown claims that the four appellants — the
captain and chief crew of the vessel — were the organizers of the venture. The
Crown alleges that the majority of passengers each paid, or promised to pay,
$30,000 to $40,000 for the voyage.
[3]
The appellants were charged under s. 117 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”), which
makes it an offence to “organize, induce, aid or abet” the coming into Canada
of people in contravention of the IRPA . Consequences of conviction
could include lengthy imprisonment and disqualification from consideration as a
refugee.
[4]
Before their trial, the appellants challenged
the constitutionality of s. 117 of the IRPA , on the ground that it
infringes the right to life, liberty and security of the person enshrined in s.
7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled
that the provision was unconstitutional because it criminalized not only
organized people smuggling, but helping close family members to come to Canada
and humanitarian assistance to refugees. The British Columbia Court of Appeal
reversed that decision, and found the provision to be constitutional.
[5]
For the reasons that follow, I conclude that,
insofar as s. 117 permits prosecution for humanitarian aid to undocumented
entrants, mutual assistance amongst asylum-seekers or assistance to family
members, it is unconstitutional.
II.
Facts and Judicial History
A.
Facts
[6]
Canadian authorities intercepted the freighter
ship Ocean Lady offshore of Vancouver Island. They found 76 passengers
aboard; all were Tamil asylum-seekers from Sri Lanka who had boarded the ship
in Southeast Asia: 24 boarded the ship in Indonesia between June and August
2009, and 52 in Thailand in September 2009. None of the 76 migrants had the
proper documentation to enter Canada. Most had agreed to pay a sum of between
$30,000 and $40,000 to come to Canada. Typically, down payments of $5,000 were
exacted prior to boarding, together with undertaking a debt of another $25,000
to $35,000 to be paid subsequent to arrival in Canada.
[7]
The four appellants, Francis Anthonimuthu
Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah
Thevarajah, are alleged to have been the point persons for a transnational
for-profit operation to smuggle undocumented migrants from Southeast Asia to
Canada. They are said to have been responsible for organizing the
asylum-seekers in Indonesia and Thailand prior to boarding the freighter, and
serving as the chief crew of the ship on the voyage to Canada — Mr. Handasamy
as captain, Mr. Thevarajah as chief engineer, and Mr. Kanagarajah and Mr.
Appulonappa as key crew members.
[8]
The appellants were charged with the offence of
“Organizing entry into Canada” found in s. 117 of the IRPA , which, at
the relevant time, provided:
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.
[9]
The IRPA was amended by the Protecting
Canada’s Immigration System Act, S.C. 2012, c. 17, ss. 41(1) and 41(4) ,
whereby s. 117(1) was replaced by a new subsection and two subsections were
added, which came into force on December 15, 2012. Section 117 as it was at the
time of the alleged offences of the appellants is therefore no longer in force.
The constitutionality of the current s. 117 is not before us.
B.
British Columbia Supreme Court, 2013 BCSC 31,
358 D.L.R. (4th) 666
[10]
The appellants brought an application before
Silverman J. on a voir dire for a declaration that s. 117 of the IRPA
is unconstitutionally overbroad. They did not contend that s. 117 is
unconstitutional as it applies to the allegations against them, which are that
they were part of a for-profit smuggling operation. However, they argued that
s. 117 is unconstitutional because it may lead to the conviction of
humanitarian workers or family members assisting asylum-seekers for altruistic
reasons. They argued that convicting people in these categories exceeds the
legislative intent of s. 117 and infringes the guarantee of liberty contrary to
the principle of fundamental justice against overbreadth. This violation of the
liberty guarantee in s. 7 of the Charter was not justified under s. 1 of
the Charter , they submitted.
[11]
The Crown accepted that the purpose of s. 117
was not to convict persons helping close family members come to Canada or
persons providing legitimate humanitarian aid to people coming to Canada.
However, it argued that this did not render s. 117 overbroad because s. 117(4)
of the IRPA required that the Attorney General of Canada authorize
prosecution, which would allow him to screen out people in these categories.
[12]
Silverman J. concluded that, as the Crown
contended, the purpose of s. 117 does not extend to prosecution of genuine
humanitarian aid workers or family members. Because s. 117 permits the
prosecution of such persons, it violates the s. 7 guarantee of liberty in a way
that is overbroad, and hence not in accord with the principles of fundamental
justice. Silverman J. held that s. 117 could not be interpreted or “read down”
to make it Charter compliant and that the prior consent to prosecution
required by s. 117(4) does not save s. 117 from being unconstitutionally
overbroad. Nor, in his view, was the overbreadth justified under s. 1 of the Charter .
Silverman J. therefore declared s. 117 of the IRPA to be inconsistent
with s. 7 of the Charter and hence of no force or effect under s. 52 of
the Constitution Act, 1982 . He ordered that the indictments of the
appellants be quashed: 2013 BCSC 198.
C.
British Columbia Court of Appeal, 2014 BCCA 163,
355 B.C.A.C. 98
[13]
Before the Court of Appeal, the Crown changed
its submission on the purpose of s. 117 of the IRPA . It submitted that
s. 117 was enacted to prevent all organizing or assisting of unlawful entry of
others into Canada, including assistance to close family members and
humanitarian assistance. This, the Crown said, was required to further Canada’s
goals of (1) controlling who enters its territory; (2) protecting the health,
safety, and security of Canadians; (3) preserving the integrity and efficacy of
Canada’s lawful immigration and refugee claims regimes; and (4) promoting
international justice and cooperation with other states on matters of security.
[14]
The Court of Appeal accepted this revised
submission as the purpose of s. 117 of the IRPA and on that basis held
it to be constitutional. Neilson J.A. (Bennett and Hinkson JJ.A. concurring)
concluded that Canadian laws criminalizing assistance to undocumented migrants
have not historically allowed exceptions based on the offender’s motive or
other characteristics. When the provision at issue was enacted in 1988, the
question of whether humanitarian workers should be exempted received attention,
but Parliament, concerned about “definitional difficulties” and “loopholes”,
rejected creating an exception for these groups: para. 107. The purpose of s.
117 therefore aligned with its reach, and the provision was not overbroad.
[15]
The court added that the s. 117(4) requirement
of the Attorney General’s consent to prosecute would guard against improper
prosecutions on humanitarian grounds, family grounds or other grounds. If the
Attorney General were to authorize prosecution of people assisting close family
members or providing humanitarian assistance, the vice would not be overbreadth
of s. 117(1), but the improper exercise of ministerial discretion under s.
117(4) .
[16]
In the result, the Court of Appeal allowed the
appeal, overturned the declaration of invalidity, set aside the acquittals and
remitted the matter for trial.
III.
The Statutory Scheme
[17]
The IRPA (relevant provisions set out in
Appendix A) is a complex statute dealing with the entry into Canada of foreign
nationals through two processes — the immigration process and the refugee
protection process. We are here concerned primarily with the refugee
protection process. The IRPA aims to establish “fair and efficient
[refugee] procedures that will maintain the integrity of the Canadian refugee
protection system, while upholding Canada’s respect for the human rights and
fundamental freedoms of all human beings”: s. 3(2)(e). Both goals are
underpinned by Canada’s adhesion to international conventions and protocols,
discussed more fully below.
[18]
A significant concern for the integrity of
Canada’s refugee protection system is the threat posed to it by the entry to
Canada of unauthorized persons outside the lawful refugee regime. As part of
combating this threat, the IRPA contains two provisions which sanction
individuals for helping others to enter Canada without the documents required
by border authorities.
[19]
Section 37(1) (b) of the IRPA
renders a person inadmissible to Canada where the person has “engag[ed], in the
context of transnational crime”, in people smuggling, and, in effect, prevents
that person’s refugee claim from being determined on its merits. Section 117 ,
under the marginal note “Organizing entry into Canada”, creates an offence. At
the relevant time, it read:
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.
[20]
Sections 117(2) and 117(3) provide penalties of
imprisonment and fines. At the time of the charges at issue in this case, s.
121(1) (c) of the IRPA under the marginal note “Aggravating
factors”, stipulated that committing the offence for profit was a fact to be
considered in sentencing under s. 117 .
[21]
Subsection (4) provides a screening mechanism
for instituting proceedings under s. 117 — prosecutions can proceed only with
the consent of the Attorney General.
[22]
In summary, participating in the unauthorized
entry of other people into Canada may have two consequences under the IRPA .
First, it may result in prosecution and imprisonment and/or substantial fines
upon conviction under s. 117 . Second, it may render a person who engages in
certain proscribed activities inadmissible to Canada under s. 37(1) (b).
The first consequence — prosecution under s. 117 — is the subject of this
appeal. The second consequence — inadmissibility to Canada — is the
subject of the companion appeals in B010 v. Canada (Citizenship and
Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704.
IV.
The Issues
[23]
The Charter applies to foreign nationals
entering Canada without the required documentation: Singh v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177. Section 7 of the Charter
provides:
7. Everyone 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.
As a penal provision with
potential sentences up to life imprisonment, it is clear that s. 117 of the IRPA
threatens liberty and hence engages s. 7 of the Charter : Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492.
[24]
The main issue before us is whether s. 117 of
the IRPA threatens liberty, protected by s. 7 of the Charter , in
a manner contrary to the principles of fundamental justice. If the answer is
yes, a second question arises: Is the infringement justified under s. 1 of the
Charter ? If the answer to this second question is no, a final
question arises: What is the appropriate remedy for the constitutional
infirmity in s. 117 ?
[25]
The appellants contend that s. 117 violates s. 7
of the Charter because the provision catches two categories of people
outside its purpose — people who assist close family members to come to Canada
and humanitarians who assist those fleeing persecution to come to Canada, in
each case without required documents. The appellants say that s. 117 is
therefore overbroad, contrary to the principles of fundamental justice. They
also argue that s. 117 offends the principles of fundamental justice because
its impact on liberty is grossly disproportionate to the conduct it targets,
because it is unconstitutionally vague, and because it perpetuates inequality.
V.
Discussion
A.
Does Section 117 of the IRPA Violate Section 7
of the Charter ?
(1)
Overbreadth
[26]
A law is said to violate our basic values by
being overbroad when “the law goes too far and interferes with some conduct
that bears no connection to its objective”: Canada (Attorney General) v.
Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford,
“[o]verbreadth allows courts to recognize that the law is rational in some
cases, but that it overreaches in its effect in others”: para. 113; see also Carter
v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at
para. 85.
[27]
The first step in the overbreadth inquiry is to
determine the object of the impugned law. The second step is to determine
whether the law deprives individuals of life, liberty or security of the person
in cases that do not further that object. To the extent the law does this, it
deprives people of s. 7 rights in a manner that infringes the principles of
fundamental justice.
[28]
The appellants argue that s. 117 is
overbroad, not as it applies to the conduct alleged against them, but as it
applies to other reasonably foreseeable situations. It is indeed established
that a court may consider “reasonable hypotheticals” to determine whether a law
is consistent with the Charter : see R. v. Nur, 2015 SCC
15, [2015] 1 S.C.R. 773.
[29]
The first scenario the appellants ask us to
consider is the situation of a person assisting a close family member to flee
to Canada. The appellants cite as examples a mother carrying her small child,
or the father of a household taking his family dependants with him aboard a
boat. This scenario could also encompass cases of mutual assistance among
unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their
collective flight to safety is not meaningfully different from family members
assisting one another and, as showed by the companion case B010, is a
reasonably foreseeable situation.
[30]
The second scenario advanced by the appellants
is the case of a person who, for humanitarian motives, helps people to flee
from persecution. History is replete with examples of people who have aided
others to flee persecution for humanitarian reasons. Sometimes the person is
acting as an individual. Sometimes the person is a member of an organization
devoted to helping people flee lands where they face threats and persecution.
Church groups may help undocumented people find refugee protection in Canada: House
of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p.
8002 (Hon. Gerry Weiner, Minister of State (Immigration)). Humanitarian aid to
fleeing people is not merely hypothetical; it is a past and current reality.
(a)
The Object of Section 117 of the IRPA
[31]
As discussed, overbreadth analysis turns on whether
the reach of the law exceeds its object. The first step is therefore to
determine the object of s. 117 .
[32]
The Crown argues that the purpose of s. 117 is
to catch all acts that in any way assist the entry of undocumented migrants.
On this interpretation, s. 117 cannot be overbroad. The appellants, by
contrast, submit that the offence of “human smuggling” has a narrower purpose
than the Crown asserts, making it overbroad in catching all acts of assistance.
[33]
As with statutory interpretation, determining
legislative purpose requires us to consider statements of legislative purpose
together with the words of the provision, the legislative context, and other
relevant factors: R. Sullivan, Sullivan on the Construction of
Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2
S.C.R. 864, at pp. 879-82. Where legislation is enacted in the
context of international commitments, international law may also be of
assistance.
[34]
For the reasons that follow, I agree with the
appellants that the purpose of s. 117 is narrower than that asserted by the
Crown. The text of s. 117 is admittedly broad. However, a narrow purpose
emerges from (1) the international instruments to which Canada has subscribed;
(2) the role of s. 117 in relation to the statute as a whole, in particular s.
37(1) ; (3) the IRPA ’s statements of legislative purpose; (4) the
evolution of s. 117 ; and (5) the parliamentary debates. Considering these
indicia of purpose, it becomes evident that the true purpose of s. 117 is to
combat people smuggling. The meaning of “people smuggling”, a term found in s.
37(1) (b) of the IRPA , is the subject of the companion case B010,
and excludes mere humanitarian conduct, mutual assistance or aid to family
members. I conclude that s. 117 violates the Charter by catching these
categories of conduct outside the provision’s purpose.
(i)
The Text of the Provision
[35]
At the relevant time, the text of s. 117 read as
follows:
117. (1) [Organizing entry into Canada] 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.
(2) [Penalties — fewer
than 10 persons] A person who contravenes subsection (1) with respect to fewer
than 10 persons is guilty of an offence and liable
(a)
on conviction on indictment
(i)
for a first offence, to a fine of not more than $500,000 or to a term of
imprisonment of not more than 10 years, or to both, or
(ii)
for a subsequent offence, to a fine of not more than $1,000,000 or to a term of
imprisonment of not more than 14 years, or to both; and
(b)
on summary conviction, to a fine of not more than $100,000 or to a term of
imprisonment of not more than two years, or to both.
(3) [Penalty — 10
persons or more] A person who contravenes subsection (1) with respect to a
group of 10 persons or more is guilty of an offence and liable on conviction by
way of indictment to a fine of not more than $1,000,000 or to life
imprisonment, or to both.
(4)
[No proceedings without consent] No proceedings for an offence under this
section may be instituted except by or with the consent of the Attorney General
of Canada.
[36]
All agree that the text of s. 117(1) is broad
enough to catch assistance to close family members and humanitarian
assistance. It may be argued that since Parliament used these words, that is
what it intended. However, the doctrine of overbreadth recognizes that
sometimes “the State, in pursuing a legitimate objective, uses means which are
broader than is necessary to accomplish that objective”: R. v. Heywood,
[1994] 3 S.C.R. 761, at p. 792; Bedford, at para. 101; Carter, at
para. 85. The potential for “failures of instrumental rationality”, in which a
given law is not a rational means to achieve a legislative objective, requires
courts to go further than the text alone, and ask whether other considerations
suggest Parliament’s purpose was narrower: Bedford, at para. 107.
[37]
Before leaving the text, it may be noted that despite
the broad wording of the subsection that provides the elements of the offence
(s. 117(1)), other portions of the text of s. 117 support the view that
Parliament’s purpose was not to criminalize family or humanitarian
assistance. The marginal note of s. 117 , “Organizing entry into Canada”, read
with the subheading “Human Smuggling and Trafficking”, while not to be accorded
great weight (see Sullivan, at pp. 465-68), suggests that the provision is
aimed at activity in connection with the smuggling of persons in the context of
organized crime, as contrasted with providing humanitarian assistance or aiding
close family members to enter a country without the required documents.
[38]
Sections 117(2) and 117(3) also support the view
that Parliament’s intent was to catch smuggling activity in the context of organized
crime, rather than humanitarian, mutual or family assistance. These
subsections provide for significantly increased sanctions based on the number
of persons brought in. This suggests a heightened focus on large-scale
smuggling operations.
[39]
Finally, the requirement in s. 117(4) that no
prosecution occur without the Attorney General’s consent suggests that s. 117
was not intended to convict everyone who falls within s. 117(1)’s broad ambit,
as discussed more fully below.
(ii)
Canada’s International Obligations
[40]
As a matter of statutory interpretation,
legislation is presumed to comply with Canada’s international obligations, and
courts should avoid interpretations that would violate those obligations.
Courts must also interpret legislation in a way that reflects the values and
principles of customary and conventional international law: R. v. Hape,
2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice),
2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34. Section 3 of the IRPA
also requires that the IRPA be interpreted in a manner that complies
with Canada’s international obligations, including “international human rights
instruments to which Canada is signatory”: s. 3(3) (f); see also s.
3(2) (b). The relevant international instruments to which Canada has
subscribed should therefore shed light on the parliamentary purpose behind s.
117 of the IRPA .
[41]
The provisions of the IRPA relating to
the fight against the assisting of unauthorized entry of persons to Canada
respond to Canada’s international commitments related to these matters in the Convention
relating to the Status of Refugees, 189 U.N.T.S. 150 (“Refugee
Convention”), the United Nations Convention against Transnational
Organized Crime, 2225 U.N.T.S. 209, the Protocol against the
Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organized Crime, 2241 U.N.T.S. 480 (“Smuggling
Protocol”), and the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime, 2237 U.N.T.S.
319.
[42]
The Refugee Convention reflects
humanitarian concerns. It provides that states must not impose penalties for
illegal entry on refugees who come directly from territories in which their
lives or freedom are threatened and who are present on the territory of the
foreign state without authorization, “provided they present themselves without
delay to the authorities and show good cause for their illegal entry or
presence”: art. 31(1).
[43]
Consistent with this, s. 133 of the IRPA
provides that foreign nationals who enter Canada without documents cannot be
charged with illegal entry or presence while their refugee claims are pending.
As I explain in B010, art. 31(1) of the Refugee Convention seeks
to provide immunity for genuine refugees who enter illegally in order to seek
refuge. For that protection to be effective, the law must recognize that
persons often seek refuge in groups and work together to enter a country
illegally. To comply with art. 31(1) , a state cannot impose a criminal sanction
on refugees solely because they have aided others to enter illegally in their
collective flight to safety.
[44]
The Smuggling Protocol is concerned with
stopping the organized crime of people smuggling. It seeks to prevent and
combat the smuggling of migrants and to promote cooperation among states to this
end, while protecting the rights of smuggled migrants: art. 2. Article
6(1)(a) requires signatory states to adopt measures to establish migrant
smuggling as a criminal offence. The Smuggling Protocol includes as a
minimum definition for this offence, procuring illegal entry of a person into a
state of which the person is not a national or a permanent resident, “in order
to obtain, directly or indirectly, a financial or other material benefit”:
art. 3 (a). As I explain in B010, the Smuggling Protocol was not
directed at family members or humanitarians: paras. 60 and 68. Furthermore,
while the Smuggling Protocol permits subscribing states to enact
national laws criminalizing migration-related offences, it includes a “saving
clause” that provides that nothing in the Smuggling Protocol “shall
affect the other rights, obligations and responsibilities of States and
individuals under international law, including international humanitarian law
and international human rights law”: art. 19(1). It would depart from the
balance struck in the Smuggling Protocol to allow prosecution for mutual
assistance among refugees, family support and reunification, and humanitarian
aid. This suggests that the Crown’s broad interpretation of s. 117 ’s purpose is
inconsistent with the Smuggling Protocol’s object of protecting the
rights of smuggled migrants.
[45]
In dealing with conflicting statements of the
legislative objects of a statute, the way forward lies in an interpretation
which harmonizes obligations in the international instruments to which Canada
is a party in a way that avoids conflict and gives expression to each of the
various commitments. I conclude that read together in this way, Canada’s
international commitments support the view that the purpose of s. 117 is to permit
the robust fight against people smuggling in the context of organized crime.
This excludes criminalizing conduct that amounts solely to humanitarian, mutual
or family aid.
(iii)
The Role of Section 117 Within the IRPA
[46]
Section 117 of the IRPA must also be read
harmoniously with other provisions of the statute.
[47]
Section 117 of the IRPA falls under Part
3 of the IRPA , entitled “Enforcement”. Section 117 of the IRPA
and the provisions that follow it fall under the subheading “Human Smuggling
and Trafficking”. Section 118 creates the offence of human trafficking,
leaving s. 117 , as noted, to constitute the offence of human smuggling. The
only other references in the IRPA to smuggling or trafficking are
contained in s. 37(1) (b), which renders inadmissible to Canada a person
who has engaged in smuggling or trafficking in persons.
[48]
As explained in B010, the conduct
captured by s. 37(1) (b) is that which is set out in the Smuggling
Protocol. In that context, people smuggling only occurs for “financial or
other material benefit” and “in the context of transnational crime”. Reading
the inadmissibility and enforcement provisions of the IRPA harmoniously
and as part of an integrated scheme therefore supports the view that the
purpose of s. 117 is to penalize organizing or abetting illegal entry to Canada
through acts knowingly connected to and furthering transnational organized
crimes or criminal aims, to obtain, directly or indirectly, a financial or
other material benefit. This excludes humanitarian, mutual or family assistance.
(iv)
Statements of Legislative Purpose
[49]
The first, “most direct and authoritative
evidence” of the legislative purpose of a provision is found in statements of
purpose in the legislation itself — whether at the beginning of a statute, in
the section in which a provision is found, or in sections providing
interpretive guidelines: Sullivan, at pp. 274-76.
[50]
In Febles v. Canada (Citizenship and
Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 29-30, this Court
held that the Refugee Convention has the broad general aim of providing
humanitarian refuge for those fleeing persecution while recognizing the need to
protect states’ borders.
[51]
As discussed in B010, the object
provisions of the IRPA establish that both of these broad goals are
important to the IRPA as well. It follows that s. 117 should be
interpreted in a balanced way that respects both the security concerns as well
as the humanitarian aims of the IRPA . An interpretation of s. 117
that catches all acts of assistance to undocumented migrants arguably allows
security concerns to trump the humanitarian aims of the IRPA .
[52]
The Crown’s view that the purpose of s. 117
is to catch all acts of assistance to undocumented migrants relies heavily on
the fact that among the purposes of the IRPA is to control Canada’s
borders to prevent migrants from entering the country illegally, for reasons of
security, health and safety. To be sure, this is an important goal of the IRPA .
It is reflected in the s. 3(2) (h) objective “to promote international
justice and security by denying access to Canadian territory to persons,
including refugee claimants, who are security risks or serious criminals”: see
also s. 3(1) (i). It is likewise evinced by the aim “to protect the
health and safety of Canadians and to maintain the security of Canadian
society”: s. 3(2) (g); see also s. 3(1) (h).
[53]
A concern with security is also reflected in the
specific legislative objects of An Act to amend the Immigration Act and the
Criminal Code in consequence thereof, R.S.C. 1985, c. 29 (4th Supp.), the
statute which enacted what later became s. 117 of the IRPA (the “1988
amendments”):
1. The Immigration Act is amended by adding
thereto, immediately after section 2 thereof, the following heading and
section:
Purposes of Amendments
2.1 . . .
(a)
to preserve for persons in genuine need of protection access to the procedures
for determining refugee claims;
(b)
to control widespread abuse of the procedures for determining refugee claims,
particularly in light of organized incidents involving large-scale introduction
of persons into Canada to take advantage of those procedures;
(c)
to deter those who assist in the illegal entry of persons into Canada and
thereby minimize the exploitation of and risks to persons seeking to come to
Canada; and
(d)
to respond to security concerns, including the fulfilment of Canada’s
obligations in respect of internationally protected persons.
[54]
The same statute, however, also recognized
humanitarian commitments, including a stated objective “to preserve for persons
in genuine need of protection access to the procedures for determining refugee
claims” and concern for “exploitation” and risks to persons wishing to come to
Canada: s. 1 , adding ss. 2.1(a) and 2.1(c).
[55]
The IRPA’s general objects further
illustrate the importance of its broad humanitarian aims. Section 3(2)(c)
speaks of “Canada’s humanitarian ideals”. The stated objects include “saving
lives and offering protection to the displaced and persecuted” and “safe haven
to persons with a well-founded fear of persecution”: ss. 3(2)(a) and
3(2)(d). Similarly, the objectives include striving to comply with
“international human rights instruments to which Canada is signatory”: s. 3(3)(f);
see also s. 3(2)(b).
[56]
The IRPA also reveals a commitment to
family, through stated objects of facilitating family reunification in Canada:
s. 3(2)(f).
[57]
In sum, while the security goals of the IRPA
and the amendment that became s. 117 are important, they do not supplant
Canada’s commitment to humanitarian aid and family unity. Both broad aims must
be respected. This is accomplished by interpreting s. 117 as targeting
organized smuggling operations having a criminal dimension, thereby excluding
humanitarian, mutual and family aid. Under the Crown’s interpretation of s.
117 , a father offering a blanket to a shivering child, or friends sharing food
aboard a migrant vessel, could be subject to prosecution. This is incompatible
with the refugee protection objects of the IRPA and the amendment that
became s. 117 .
(v)
The Legislative Evolution of Section 117
[58]
The legislative history of a provision may
assist in determining its purpose: Sullivan, at pp. 286-87.
[59]
Canada has had laws criminalizing the assisting
of undocumented migrants to enter the country since 1902. Early incarnations
of the offence were focused on organizing illegal arrival by rail or ship, with
little concern for the plight of the migrants, who were typically expelled: An
Act to amend the Immigration Act, S.C. 1902, c. 14, s. 2; Immigration
Act, R.S.C. 1906, c. 93, ss. 65 and 66.
[60]
In 1919, s. 12(4) of An Act to amend The
Immigration Act, S.C. 1919, c. 25, made it an offence to transport
into Canada, harbour or conceal the entry of prohibited immigrants. The
provision was a summary conviction offence, with a maximum penalty of six
months imprisonment and/or fines. Broadly similar offences were preserved in
the 1952 and 1976 iterations of the Immigration Act.
[61]
In 1988, “in light of organized incidents
involving large-scale introduction of persons into Canada”, amendments
introduced a new offence which, with minor changes, is the offence currently
found in s. 117 of the IRPA : s. 1 of the 1988 amendments, adding s. 2.1 (b).
It criminalized third party assistance to undocumented migrants. In so doing,
it established maximum penalties where the number of undocumented entrants was
small: six months’ imprisonment and/or $2,000 fines on summary conviction, and
five years’ imprisonment and/or $10,000 fines on indictment. By contrast,
where the undocumented entrants numbered 10 or more, proceedings were
exclusively by indictment, and the maximum penalty was 10 years’ imprisonment
and/or fines up to $500,000: s. 9 of the 1988 amendments, adding ss. 94.1 and
94.2 . Thus, at the inception of what would become s. 117 , greater culpability
already attached to large-scale breaches, reflecting greater organizational
activity on the part of the accused or others with whom the accused acted in
concert. The offence created in 1988 also included a new screening mechanism:
no proceedings could be instituted under ss. 94.1 or 94.2 without the consent
of the Attorney General (s. 9 of the 1988 amendments, adding s. 94.3 ).
[62]
The current s. 117 was part of a new
comprehensive statute dealing with immigration and refugee protection, the IRPA ,
enacted in 2001. The offence remained substantially the same as previously, preserving
the differing penalties based on scale, and the charge-screening mechanism.
However, maximum penalties were significantly increased, while another
provision was added to guide sentencing under the offence. Section 121 provided
that in determining the penalty to be imposed under s. 117 , the court was
to take into account (1) bodily harm or death to the migrant; (2) association
with a criminal organization; (3) profit from the operation; and (4) harm to or
degrading treatment of the migrants. These changes came on the heels of the
adoption of the Smuggling Protocol, which obliged state parties to
criminalize the smuggling of migrants done for financial or other material
benefit and to adopt legislative measures to establish aggravating circumstances
such as harm to and degrading treatment of migrants: arts. 6(1) and 6(3). The
second factor in s. 121 reflected a more significant link between the offensive
conduct and organized crime. The first and fourth factors recognized more
serious crime. The third factor may be an indicator of either or both.
[63]
From this brief survey of the historical
evolution of prohibitions on assisting the entry to Canada of undocumented
people, I draw the following conclusions: (a) the prohibitions have, for over a
century, focused on smuggling activity tied to organizing and furthering the
illegal entry, not aid merely incidental to it; (b) successive revisions to the
provision have coupled increased penalties with more precise targeting of
organized crime-related smuggling activity, and the 2001 revision in particular
followed in the footsteps of key developments in international law; and (c) s.
117 , from its inception in 1988 and as continued and revised by the IRPA
in 2001, provided a filter to screen out assistance not associated with
organized criminal smuggling, namely innocent humanitarian acts, mutual aid and
assistance to family members.
(vi)
The Parliamentary Debates
[64]
Statements made in the legislature leading up to
the enactment of a provision may supply evidence of its purpose: Sullivan, at
p. 277; Application under s. 83.28 of the Criminal Code (Re), 2004
SCC 42, [2004] 2 S.C.R. 248, at para. 37; Global Securities Corp. v. British
Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at
para. 25; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45; Reference
re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17.
[65]
The parliamentary debates establish that the
original enactment of the offence in 1988 was motivated by incidents of
organized large-scale smuggling of undocumented migrants by sea. Concerns were
expressed in the debates about protecting the health, safety and security of
Canadians and Canadian society, the integrity and efficacy of Canada’s lawful
immigration and refugee regimes, and Canada’s ability to control its borders
and the domestic and international interests tied to them. Concerns were also
expressed about the safety and protection of genuine refugees, and not
subjecting humanitarian groups to prosecution. Then-Minister Benoît Bouchard
summarized Parliament’s purpose as follows in the Committee meetings of August
25, 1987:
We are going to put a stop to
the large-scale trafficking of illegal migrants by smugglers. There has been
much discussion about amending these sections of the bill. We have all pressed
lawyers and legislative drafters to consider alternatives to the current
wording. We looked at phrases such as religious group, profit, reward, smuggle
and clandestine entry, but every possibility creates loopholes and undermines
our ability to prosecute the unscrupulous. We cannot let such individuals
escape sanction by adding phrases which create insurmountable problems of proof
and create gaps through which the unscrupulous would march.
(House of Commons, Minutes of Proceedings and Evidence of the
Legislative Committee on Bill C-84, No. 9, 2nd Sess., 33rd Parl., at p. 24)
[66]
It thus emerges from the 1987 debates that the
reason s. 117(1) of the IRPA permits prosecution of those providing
humanitarian assistance to fleeing refugees or assistance to close family
members is not because Parliament wanted to capture such persons, but because
of a drafting dilemma — it was feared that a categorical approach to exceptions
would inadequately respond to the multi-faceted and complex nature of real-life
smuggling cases. Parliament agreed that those offering humanitarian assistance
and mutual aid were not meant to be prosecuted under s. 117 of the IRPA .
However, instead of legislatively exempting such people from potential criminal
liability, it sought to screen them out at the prosecution stage by requiring
the Attorney General’s consent to prosecute.
[67]
The debates on the enactment of the IRPA
in 2001 echo these preoccupations. Again, members of Parliament expressed
concerns that s. 117 might criminalize people who assist family members to come
to Canada or people who provide humanitarian aid to asylum-seekers. The
government’s response was that these fears were misplaced because they focused
exclusively on s. 117(1) and overlooked s. 117(4) which was expected to
prevent these and other unintended prosecutions. The following excerpts from
the parliamentary debates summarize those discussions:
Mr. John McCallum: . . . we heard a fair amount of testimony in our hearings from
people doing humanitarian work, reverends and saintly people, if you will, and
the last people in the world we would want to prosecute. Yet, if you read that
literally, it looks like some of these people who are helping refugees could be
prosecuted. Or if my sister is in a bad country and I help her, it looks like I
can be prosecuted. How does that work?
Mr. Daniel Therrien
[General Counsel]: The protection against such
prosecutions is in subclause 117(4) , which provides that no prosecution under
the smuggling provision can occur without the consent of the Attorney General .
. . .
. . .
Ms. Joan Atkinson
[Assistant Deputy Minister]: . . . Subclause 117(4)
is what’s in the current act. . . . It is in place . . . in the current act,
and as Daniel has said, there has been no prosecution of anyone who was
involved in trying to help refugees come to Canada. That is the safeguard. All
the circumstances will be reviewed by the Attorney General to put in
humanitarian considerations without defining what that means [otherwise] you
don’t have the flexibility you need . . . to be able to consider all the
individual circumstances in a case before any decision is taken to prosecute.
(House of Commons, Standing Committee on Citizenship and
Immigration, Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001
(online), at 10:35)
[68]
These excerpts from the parliamentary debates
make it clear that Parliament understood that s. 117(1) criminalized assistance
to family members and humanitarian assistance, and was relying on ministerial
discretion to prevent prosecution. General Counsel Therrien and Assistant
Deputy Minister Atkinson did not deny that s. 117 caught these cases, but
defended this overreach far beyond any reasonable definition of the targeted
smuggling activity on the basis that the Attorney General’s permission under s.
117(4) would be an adequate “safeguard” against inappropriate prosecutions.
[69]
In sum, we may fairly infer the following from
the debate surrounding the adoption of s. 117 of the IRPA : From the
beginning, the government conceded that the words of s. 117(1) had been cast
broadly enough to catch family and humanitarian assistance to undocumented
migrants. At the same time, the government made it clear that s. 117 was not
intended to catch persons aiding family members or providing humanitarian or
mutual aid. The risk would be alleviated, or so the government asserted, by
the requirement that the Attorney General authorize prosecutions under s.
117(4) of the IRPA .
(vii) Conclusion on the Purpose of Section 117 of the IRPA
[70]
The foregoing considerations establish that the
purpose of s. 117 is to criminalize the smuggling of people into Canada in the
context of organized crime, and does not extend to permitting prosecution for
simply assisting family or providing humanitarian or mutual aid to undocumented
entrants to Canada. A broad punitive goal that would prosecute persons with no
connection to and no furtherance of organized crime is not consistent with
Parliament’s purpose as evinced by the text of s. 117 read together with
Canada’s international commitments, s. 117 ’s role within the IRPA , the IRPA ’s
objects, the history of s. 117 , and the parliamentary debates.
(b)
The Scope of Section 117 of the IRPA
[71]
I now turn to the scope of s. 117 of the IRPA
to see whether it “goes too far and interferes with some conduct that bears no
connection to its objective”: Bedford, at para. 101.
[72]
The scope of s. 117(1) is plain. The provision
admits of no ambiguity. Parliament itself understood when it enacted s. 117
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. We cannot avoid the
overbreadth problem by interpreting s. 117(1) as not permitting prosecution of
persons providing humanitarian, mutual or family assistance. Such an
interpretation would require the Court to ignore the ordinary meaning of the
words of s. 117(1), which unambiguously make it an offence to “organize,
induce, aid or abet” the undocumented entry. To adopt this suggestion would
violate the rule of statutory interpretation that the meaning of the words of
the provision should be read in their “grammatical and ordinary sense”:
Sullivan, at p. 28. It would also require us to ignore statements from the
legislative debate record suggesting Parliament knew in advance that the
provision was overbroad.
[73]
I conclude that s. 117(1) appears to criminalize
some conduct that bears no relation to its objective, raising the spectre that
s. 117 as a whole is overbroad. The remaining question is whether the
requirement under s. 117(4) that the Attorney General authorize prosecution
saves s. 117 from the charge or overbreadth by effectively narrowing the scope
of s. 117(1).
[74]
In my view, s. 117(4) does not cure the
overbreadth problem created by s. 117(1). 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. If the Attorney General were to authorize prosecution of such
an individual, despite s. 117 ’s limited purpose, nothing remains in the
provision to prevent conviction and imprisonment. This possibility alone
engages s. 7 of the Charter . Further, as this Court unanimously noted
in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 17, per
Moldaver J., “prosecutorial discretion provides no answer to the breach of a
constitutional duty”. See also Nur.
[75]
Implicit in the Court of Appeal’s position is
that the problem of humanitarian workers or family members prosecuted under s.
117 of the IRPA is a problem of administrative law, and that if a
constitutional attack is to be made, it should be made against improper
exercise of the Attorney General’s duty under s. 117(4) not to prosecute such
persons. I cannot agree. As noted, although the purpose of s. 117 of the IRPA
was not to capture such persons, nothing in the provision actually enacted
disallows it. As a result, an individual charged with an offence under s. 117
would have difficulty challenging the decision. Further, judicial review of
such discretion is not currently available, and there are good reasons why it
may not be desirable. As the Court observed in Anderson, judicial
oversight of Crown decisions whether to prosecute puts at risk the discrete
roles of different actors in our adversarial system:
There has been a long-standing and
deeply engrained reluctance to permit routine judicial review of the exercise
of [prosecutorial] discretion. . . . The imposition of a sweeping duty that
opens up for routine judicial review all of the aforementioned decisions is
contrary to our constitutional traditions. [para. 32]
[76]
It may also be noted that judicial review of the
Attorney General’s decision to authorize prosecution under s. 117(4) may have
undesirable consequences for other federal statutes in which a similar clause
is present: see e.g. Freezing Assets of Corrupt Foreign Officials Act,
S.C. 2011, c. 10 ; Foreign Extraterritorial Measures Act, R.S.C. 1985, c.
F-29 ; Special Economic Measures Act, S.C. 1992, c. 17 ; Crimes Against
Humanity and War Crimes Act, S.C. 2000, c. 24 ; Geneva Conventions Act,
R.S.C. 1985, c. G-3 . At this point, it suffices to note that judicial review
does not answer the constitutional non-conformity of s. 117(1) .
[77]
I conclude that s. 117 of the IRPA is
overbroad. The remaining issue is whether this overbreadth is justified under
s. 1 of the Charter as a reasonable measure in a free and democratic
society.
(2)
Gross Disproportionality, Vagueness and Equality
[78]
In addition to the overbreadth claim, some of
the appellants assert that s. 117 offends s. 7 by depriving persons of liberty
in a manner that violates the principles of fundamental justice against gross
disproportionality and vagueness. They also claim that equal treatment under
the law is a principle of fundamental justice within the meaning of s. 7 , and
that s. 117 violates it. In view of my conclusion that s. 117 is
overbroad, I find it unnecessary to consider these arguments.
B.
Is the Inconsistency With Section 7 Justified
Under Section 1 of the Charter ?
[79]
The test to determine whether infringement of a
right may be constitutionally justified under s. 1 of the Charter was
set out in R. v. Oakes, [1986] 1 S.C.R. 103. The first step of
the s. 1 analysis asks whether the Crown has demonstrated a pressing and
substantial objective: Oakes, at pp. 138-39. The broad purpose
of s. 117 of the IRPA is to combat organized crime-related people
smuggling, without criminalizing family assistance, mutual aid or humanitarian
aid to asylum-seekers coming to Canada. This objective is clearly pressing and
substantial.
[80]
The second step of the s. 1 analysis asks whether
the legislative objective is rationally connected to the limit the law imposes
on the right at issue. Not all applications of s. 117 are rationally connected
to the legislative object; notably, s. 117 of the IRPA , as discussed,
catches mutual and family as well as humanitarian aid which I earlier concluded
was not Parliament’s object to criminalize. However, since other applications
of s. 117 are rationally connected to the legislative object, this suffices to
satisfy the rational connection stage of the analysis: Heywood, at
p. 803. A rational connection, not a complete rational correspondence,
is all this branch of Oakes requires.
[81]
The third step of the s. 1 analysis asks whether
the offending law is tailored to its objective: R. v. Edwards Books and Art
Ltd., [1986] 2 S.C.R. 713. Evidently, where a law goes too far, it is a
challenge to satisfy minimal impairment. In Heywood, Cory J. concluded
(at p. 803) that “for the same reasons that [the law] is overly broad, it fails
the minimal impairment branch of the s. 1 analysis”. The record here shows
why that will not always necessarily be the case.
[82]
The Crown’s position appears to be that even
though the provision is overbroad, it is nevertheless minimally impairing,
because although imperfect, there was no better alternative. As discussed, the
government recognized in advance that the provision would catch conduct it did
not intend to criminalize. However, Parliament nevertheless enacted an
overbroad provision because it was concerned that wording exempting this
conduct would create unacceptable loopholes. Section 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: Oakes, at pp. 136-37. The Crown has not
satisfied its burden under s. 1 .
VI.
Remedy
[83]
Section 52(1) of the Constitution Act, 1982
provides:
52. (1) The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.
It follows that s. 117 is
of no force or effect to the extent of its inconsistency with the Charter .
[84]
The extent of the inconsistency that has been
proven is the overbreadth of s. 117 in relation to three categories of conduct:
(1) humanitarian aid to undocumented entrants, (2) mutual aid amongst
asylum-seekers, and (3) assistance to family entering without the required
documents.
[85]
The appellants ask the Court to strike s. 117
down in its entirety. Section 117 , as it was at the time of the alleged
offences, has been replaced. In the particular circumstances of this case, I
conclude that the preferable remedy is to read down s. 117 as not
applicable to persons who give humanitarian, mutual or family assistance. This
remedy reconciles the former s. 117 with the requirements of the Charter while
leaving the prohibition on human smuggling for the relevant period in place.
This remedy is consistent with the guidance this Court gave in Schachter v.
Canada, [1992] 2 S.C.R. 679.
VII. Conclusion
[86]
I would allow the appeals and read down s. 117
of the IRPA , as it was at the time of the alleged offences, as not
applying to persons providing humanitarian aid to asylum-seekers or to
asylum-seekers who provide each other mutual aid (including aid to family
members), to bring it in conformity with the Charter . The charges are
remitted for trial on this basis.
APPENDIX
A
Immigration
and Refugee Protection Act, S.C. 2001, c. 27
(version in force at time)
3. (1) [Objectives — immigration] The objectives of this Act with
respect to immigration are
(a) to
permit Canada to pursue the maximum social, cultural and economic benefits of
immigration;
(b) to
enrich and strengthen the social and cultural fabric of Canadian society, while
respecting the federal, bilingual and multicultural character of Canada;
(b.1) to
support and assist the development of minority official languages communities
in Canada;
(c) to
support the development of a strong and prosperous Canadian economy, in which
the benefits of immigration are shared across all regions of Canada;
(d) to see
that families are reunited in Canada;
(e) to
promote the successful integration of permanent residents into Canada, while
recognizing that integration involves mutual obligations for new immigrants and
Canadian society;
(f) to
support, by means of consistent standards and prompt processing, the attainment
of immigration goals established by the Government of Canada in consultation
with the provinces;
(g) to
facilitate the entry of visitors, students and temporary workers for purposes
such as trade, commerce, tourism, international understanding and cultural,
educational and scientific activities;
(h) to
protect the health and safety of Canadians and to maintain the security of
Canadian society;
(i) to
promote international justice and security by fostering respect for human
rights and by denying access to Canadian territory to persons who are criminals
or security risks; and
(j) to work in cooperation with the provinces to secure
better recognition of the foreign credentials of permanent residents and their
more rapid integration into society.
(2)
[Objectives — refugees] The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first
instance about saving lives and offering protection to the displaced and
persecuted;
(b) to fulfil Canada’s international legal obligations with
respect to refugees and affirm Canada’s commitment to international efforts to
provide assistance to those in need of resettlement;
(c) to grant, as a fundamental expression of Canada’s
humanitarian ideals, fair consideration to those who come to Canada claiming
persecution;
(d) to offer safe haven to persons with a well-founded fear
of persecution based on race, religion, nationality, political opinion or
membership in a particular social group, as well as those at risk of torture or
cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will
maintain the integrity of the Canadian refugee protection system, while
upholding Canada’s respect for the human rights and fundamental freedoms of all
human beings;
(f) to support the self-sufficiency and the social and
economic well-being of refugees by facilitating reunification with their family
members in Canada;
(g) to protect the health and safety of Canadians and to
maintain the security of Canadian society; and
(h) to promote international justice and security by denying
access to Canadian territory to persons, including refugee claimants, who are
security risks or serious criminals.
(3)
[Application] This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of
Canada;
(b) promotes accountability and transparency by enhancing
public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada,
provincial governments, foreign states, international organizations and
non-governmental organizations;
(d) ensures that decisions taken under this Act are
consistent with the Canadian Charter of Rights and Freedoms , including
its principles of equality and freedom from discrimination and of the equality
of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to
enhance the vitality of the English and French linguistic minority communities
in Canada; and
(f) complies with international human rights instruments to
which Canada is signatory.
37.
(1) [Organized criminality] A permanent resident or a foreign national is
inadmissible on grounds of organized criminality for
(a) being a member of an organization that is believed on
reasonable grounds to be or to have been engaged in activity that is part of a
pattern of criminal activity planned and organized by a number of persons
acting in concert in furtherance of the commission of an offence punishable
under an Act of Parliament by way of indictment, or in furtherance of the commission
of an offence outside Canada that, if committed in Canada, would constitute
such an offence, or engaging in activity that is part of such a pattern; or
(b) engaging, in the context of transnational crime, in
activities such as people smuggling, trafficking in persons or money
laundering.
. . .
PART
3
ENFORCEMENT
Human
Smuggling and Trafficking
117.
(1) [Organizing entry into Canada] 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.
(2)
[Penalties — fewer than 10 persons] A person who contravenes subsection (1)
with respect to fewer than 10 persons is guilty of an offence and liable
(a) on conviction on indictment
(i) for a first offence, to a fine of not more than $500,000 or to a
term of imprisonment of not more than 10 years, or to both, or
(ii) for a subsequent offence, to a fine of not more than $1,000,000
or to a term of imprisonment of not more than 14 years, or to both; and
(b) on summary conviction, to a fine of not more than
$100,000 or to a term of imprisonment of not more than two years, or to both.
(3)
[Penalty — 10 persons or more] A person who contravenes subsection (1) with
respect to a group of 10 persons or more is guilty of an offence and liable on
conviction by way of indictment to a fine of not more than $1,000,000 or to
life imprisonment, or to both.
(4) [No
proceedings without consent] No proceedings for an offence under this section
may be instituted except by or with the consent of the Attorney General of
Canada.
118.
(1) [Offence — trafficking in persons] No person shall knowingly organize the
coming into Canada of one or more persons by means of abduction, fraud,
deception or use or threat of force or coercion.
(2)
[Definition of “organize”] For the purpose of subsection (1), “organize”, with
respect to persons, includes their recruitment or transportation and, after
their entry into Canada, the receipt or harbouring of those persons.
121.
(1) [Aggravating factors] The court, in determining the penalty to be imposed
under subsection 117(2) or (3) or section 120, shall take into account whether
(a) bodily harm or death occurred during the commission of
the offence;
(b) the commission of the offence was for the benefit of, at
the direction of or in association with a criminal organization;
(c) the commission of the offence was for profit, whether or
not any profit was realized; and
(d) a person was subjected to humiliating or degrading
treatment, including with respect to work or health conditions or sexual
exploitation as a result of the commission of the offence.
(2)
[Definition of “criminal organization”] For the purposes of paragraph (1)(b),
“criminal organization” means an organization that is believed on reasonable
grounds to be or to have been engaged in activity that is part of a pattern of
criminal activity planned and organized by a number of persons acting in
concert in furtherance of the commission of an offence punishable under an Act
of Parliament by way of indictment or in furtherance of the commission of an offence
outside Canada that, if committed in Canada, would constitute such an offence.
133. [Deferral] A person who has claimed refugee protection, and who
came to Canada directly or indirectly from the country in respect of which the
claim is made, may not be charged with an offence under section 122, paragraph
124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c)
or section 354 , 366 , 368 , 374 or 403 of the Criminal Code , in relation
to the coming into Canada of the person, pending disposition of their claim for
refugee protection or if refugee protection is conferred.
APPENDIX
B
Convention
relating to the Status of Refugees, 189 U.N.T.S.
150
Article
31
refugees unlawfully in the country of refuge
1. The
Contracting States shall not impose penalties, on account of their illegal
entry or presence, on refugees who, coming directly from a territory where
their life or freedom was threatened in the sense of article 1 , enter or are
present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
. .
.
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.
United
Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209
Article
1 . Statement of purpose
The
purpose of this Convention is to promote cooperation to prevent and combat
transnational organized crime more effectively.
Article
5. Criminalization of participation in an organized criminal group
1. Each
State Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences, when committed intentionally:
(a)
Either or both of the following as criminal offences distinct from those
involving the attempt or completion of the criminal activity:
(i)
Agreeing with one or more other persons to commit a serious crime for a purpose
relating directly or indirectly to the obtaining of a financial or other
material benefit and, where required by domestic law, involving an act
undertaken by one of the participants in furtherance of the agreement or involving
an organized criminal group;
(ii)
Conduct by a person who, with knowledge of either the aim and general criminal
activity of an organized criminal group or its intention to commit the crimes
in question, takes an active part in:
a.
Criminal activities of the organized criminal group;
b. Other
activities of the organized criminal group in the knowledge that his or her
participation will contribute to the achievement of the above-described
criminal aim;
(b) Organizing, directing, aiding, abetting,
facilitating or counselling the commission of serious crime involving an
organized criminal group.
2. The knowledge, intent, aim, purpose or agreement referred to in
paragraph 1 of this article may be inferred from objective factual
circumstances.
3.
States Parties whose domestic law requires involvement of an organized criminal
group for purposes of the offences established in accordance with paragraph 1
(a) (i) of this article shall ensure that their domestic law covers all serious
crimes involving organized criminal groups. Such States Parties, as well as
States Parties whose domestic law requires an act in furtherance of the
agreement for purposes of the offences established in accordance with paragraph
1 (a) (i) of this article, shall so inform the Secretary-General of the United
Nations at the time of their signature or of deposit of their instrument of
ratification, acceptance or approval of or accession to this Convention.
Article
34. Implementation of the Convention
1. Each
State Party shall take the necessary measures, including legislative and
administrative measures, in accordance with fundamental principles of its
domestic law, to ensure the implementation of its obligations under this
Convention.
2. The
offences established in accordance with articles 5, 6, 8 and 23 of this
Convention shall be established in the domestic law of each State Party
independently of the transnational nature or the involvement of an organized
criminal group as described in article 3 , paragraph 1, of this Convention,
except to the extent that article 5 of this Convention would require the
involvement of an organized criminal group.
3. Each
State Party may adopt more strict or severe measures than those provided for by
this Convention for preventing and combating transnational organized crime.
Protocol
against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480
Article
2. Statement of purpose
The purpose of this Protocol is to prevent and
combat the smuggling of migrants, as well as to promote cooperation among
States Parties to that end, while protecting the rights of smuggled migrants.
Article
3 . Use of terms
For the purposes of this Protocol:
(a)
“Smuggling of migrants” shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal
entry of a person into a State
Party of which the person is not a national or a permanent resident;
. .
.
Article
6. Criminalization
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;
. .
.
3. Each
State Party shall adopt such legislative and other measures as may be necessary
to establish as aggravating circumstances to the offences established in
accordance with paragraph 1 (a), (b) (i) and (c) of this article and, subject
to the basic concepts of its legal system, to the offences established in
accordance with paragraph 2 (b) and (c) of this article, circumstances:
(a) That endanger, or are likely to endanger,
the lives or safety of the migrants concerned; or
(b) That
entail inhuman or degrading treatment, including for exploitation, of such migrants.
4. Nothing in this Protocol shall prevent a
State Party from taking measures against a person whose conduct constitutes an
offence under its domestic law.
Appeals
allowed.
Solicitors
for the appellant Francis Anthonimuthu
Appulonappa: Fiona Begg, Vancouver; Maria Sokolova, Vancouver.
Solicitors
for the appellant Hamalraj Handasamy: Edelmann
& Co. Law Offices, Vancouver.
Solicitors
for the appellant Jeyachandran Kanagarajah: Rankin & Bond, Vancouver.
Solicitors
for the appellant Vignarajah Thevarajah: Gregory P. DelBigio, Q.C., Vancouver;
Lisa Sturgess, Vancouver.
Solicitor
for the respondent: Public Prosecution Service of Canada, Vancouver.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.
Solicitors
for the intervener Amnesty International (Canadian Section, English
Branch): South Ottawa Community Legal Services, Ottawa; Community Legal
Services Ottawa Centre, Ottawa.
Solicitors
for the intervener the British Columbia Civil Liberties Association: Sack
Goldblatt Mitchell, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Fasken
Martineau DuMoulin, Vancouver.
Solicitors
for the intervener the Canadian Council for Refugees: Angus Grant,
Toronto; Refugee Law Office, Toronto; Laura Best & Fadi Yachoua, Vancouver.
Solicitors for the
intervener the Canadian Association of Refugee Lawyers: Refugee Law
Office, Toronto; University of Ottawa, Ottawa.