Date:
20121212
Docket:
IMM-2041-12
Citation:
2012 FC 1466
Ottawa, Ontario,
December 12, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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J.P. AND G.J.
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Applicants
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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]
This
is an application for judicial review under to s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (“IRPA”) of the February 17,
2012, decision by the Immigration and Refugee Board, Immigration Division, determining
that the applicants were inadmissible to Canada pursuant to ss 37(1)(b)
and 42(b) of the IRPA due to the male applicant’s involvement in human
smuggling.
BACKGROUND:
[2]
The
applicants arrived in Canada aboard the MV Sun Sea in August 2010. Both made
claims for refugee protection. The Minister alleged that J.P. was inadmissible
to Canada under s 37(1)(b) of the IRPA, and that G.J. was inadmissible
as an accompanying family member. The factual basis for the allegation against J.P.
is that, after a first refusal, he had accepted to assist the operators of the
vessel by serving as a lookout and navigator. He then lived in the crew
quarters and had the benefit of better conditions and rations.
DECISION UNDER
REVIEW
[3]
The
Board Member accepted that J.P. was involved in people smuggling based on the elements
of the offence of aiding and abetting entry in s 117 of the IRPA identified by
the Ontario Superior Court of Justice in R v Alzehrani,
[2008] OJ No 4422 (QL), 79 WCB (2d) 848 (SCJ): (1) entering Canada, (2) without
the required documents, (3) aiding or abetting the entry, and (4) knowing of the
lack of required documents. She found that J.P. had entered Canada. He had not had the required documents, having left his valid passport behind in Thailand where he was living as a registered refugee. His role as an assistant navigator
made him one of the crew, thus a person aiding the entry. He knew that G.J. was
also without documentation and the Member believed that he was aware that many
other persons on the ship were in similar circumstances.
[4]
The
Member considered s 3(3)(f) of the IRPA, which requires the statute to
be construed and applied in a manner consistent with international human rights
instruments to which Canada is a signatory. She examined the definition of
“transnational” crime at s 3(2) of the United Nations Convention Against
Transnational Organized Crime (“UNCATOC”) and found that an
offence was transnational if it was committed in more than one state, or prepared
in one state but committed in another, or committed in one state but caused substantial
effects in another. In this case, the travel arrangements were made in Thailand and the end result took place in Canada, and the Member was satisfied that this met the
definition of transnational crime.
[5]
Counsel
for J.P. argued that s 37 was over-broad, as it punished those being smuggled
along with the smugglers. The Member agreed with the Minister that the
requirements at s 47 of the Immigration Division Rules, SOR/2002-229
(the “Rules”), for a constitutional challenge had not been met, and declined to
rule on that aspect of the applicant’s submissions.
[6]
G.J.
was also found to be inadmissible on the grounds of being an accompanying
family member of J.P., an inadmissible person.
ISSUES:
[7]
The
issues raised by this application are:
- Did
the Board err in law by declining to address the applicants’
constitutional arguments because they had failed to file a notice of
constitutional question?
- Did
the Board err in law by failing to interpret “people smuggling” for the
purposes of s 37(1)(b) of IRPA in a manner consistent with
international instruments to which Canada is a signatory?
ANALYSIS:
Standard of Review;
[8]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
at para 57, the Supreme Court established that a standard of review analysis is
not required when existing jurisprudence identifies the proper standard.
[9]
In
a case arising from the same events and a similar determination, Justice Simon Noël
found that the appropriate standard applicable to the Board’s interpretation of
para 37(1)(b) of the IRPA was reasonableness based on recent Supreme
Court jurisprudence: Alberta (Information and Privacy Commissioner) v
Alberta Teachers' Association, 2011 SCC 61 at para 30, [2011] SCJ No 61
(QL) [Alberta Teachers']; Smith v Alliance Pipeline Ltd, 2011 SCC 7,
[2011] SCJ No 7 (QL) at paras 37-39 [Alliance Pipeline],.
[10]
Justice
Noël declined to certify a question in response to a request from
the applicant in that proceeding in relation to the standard in light of his
conclusion that the Supreme Court jurisprudence was clear on this point: B010
v Canada (Minister of Citizenship and Immigration), 2012 FC 569 [B010]
at para 76.
[11]
Dunsmuir at para 53 establishes that “Where the question is one of fact,
discretion or policy, deference will usually apply automatically . . . the same
standard must apply to the review of questions where the legal and factual
issues are intertwined with and cannot be readily separated.” At
paragraph 60, the Court laid down the standard of correctness for questions of
law that are both of central importance to the legal system as a whole and
outside the adjudicator’s specialized area of expertise.
[12]
In
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 [Khosa] at paragraph 44, the Supreme Court reaffirmed
that “[e]rrors of law are generally governed by a correctness standard” and
added that:
.
. . Mugesera v. Canada (Minister of Citizenship and Immigration), 2005
SCC 40, [2005] 2 S.C.R. 100, 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.
[13]
In
this case, the issue of whether the Board should have ruled on the
constitutional argument is one which falls within the normal scope of an
expert adjudicator’s interpretation of her home statute (in this case the Rules)
and is therefore governed by the standard of reasonableness. However, the issue
of the interpretation of “people smuggling” in s 37 of the IRPA appears to me
to be a question of law which is both beyond the adjudicator’s expertise and a
matter of central importance to the legal system requiring the correctness
standard. A similar conclusion was recently reached by Justice Snider in Canada
(Minister of Citizenship and Immigration) v Singh Dhillon,
2012 FC 726 and by Justice Zinn in Hernandez v Canada (Minister of Public
Safety and Emergency Preparedness) 2012 FC 1417 [Hernandez]. Given
that he had reached a different conclusion on the question of the standard from
that of Justice Noël in B010, Justice Zinn found it appropriate to
certify a question on that issue.
Did
the Board err in law by declining to address the applicants’ constitutional
arguments because they had failed to file a notice of constitutional question?
[14]
S
47(1) of the Rules requires a party who wants to challenge the
constitutional validity of a provision to complete a notice of constitutional
question. Although
the Board is a “court of competent jurisdiction” for the purpose of considering
Charter issues, it does
not have the jurisdiction to strike down legislation unlike the Federal Court: R
v Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 24; Gwala v Canada (Minister of Citizenship and Immigration) Canada, [1999] 3 FC 404 at para 6 (FCA).
[15]
The
Board stated that it would not rule on the validity of s 37 because the required
notice had not been given. The applicants argue that they were not challenging
the validity of the provision, but the interpretation of s 37(1)(b) by
which “people smuggling” was defined overly broadly. They did not contend that
the section should be struck down but that it should be interpreted correctly,
in a manner consistent with the Canadian Charter of Rights and Freedoms,
part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), c 11 [Charter], and with Charter values. They
submit that the interpretation given to the provision by the Member is in
breach of Charter values.
[16]
In Suresh v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR
3 [Suresh], the Court found the disputed section of the IRPA to be
constitutional but held that the Minister had to exercise his discretion in a
manner consistent with the Charter and Charter values (at para
77, “The Minister is obliged to exercise the discretion conferred upon her by
the Immigration Act in accordance with the Constitution. . . . the balance
struck by the Minister must conform to the principles of fundamental justice
under s. 7 of the Charter.”).
[17]
The
respondent disagrees with the assertion that the applicants never challenged
the constitutionality of s 37 and merely demanded that it should be interpreted
in a manner consistent with the Charter. Reference is
made to the applicants’ written submissions to the Board which noted that a law
can be struck down for overbreadth if it uses means that go further than
necessary to accomplish the law’s purpose. The respondent submits that the
applicants were incorrect in asserting that the Board did not have the
jurisdiction to strike down s 37, citing Torres Victoria v Canada (Minister
of Public Safety and Emergency Preparedness), 2011 FC 1392 at para 38, in
which Justice de Montigny concluded that the Immigration Division is clearly
empowered to resolve constitutional questions that are inextricably linked to
matters properly before it.
[18]
The
respondent then notes that a tribunal is not always required to interpret
enactments in accordance with Charter values when there is no
constitutional challenge or genuine ambiguity: Bell ExpressVu Limited
Partnership v Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 [Bell ExpressVu] at para
62. In the absence of a challenge, the Board had no obligation to consider Charter
values, and, in any event, its decision was consistent with Charter
values, the respondent submits.
[19]
In
my view, applicants’ counsel’s lengthy written submissions to the Board
focussed on the interpretation of the enactment with reference to the Charter
but did not ask that the provision be struck down. Reference to the Supreme
Court’s holding that
a law can be struck down for overbreadth is one step (at para 65 of a section
running from para 63 to para 74) in twelve paragraphs of argumentation about
the definition, which closes not with a proposal to strike the section, but
with the following:
74. In sum, [J.P.] submits that
section 37 must be interpreted in a manner consistent with the objectives of
the IRPA, the ordinary meaning of the English and French words, and the
international instruments which Canada has signed. The term smuggling must be
interpreted to require evidence of financial profit or material benefit, and
evidence that the conduct involved the illegal entry of people into Canada. Such an interpretation would allow for a finding of inadmissibility against the
person who planned the operation and profited from it, but would preclude its
application against the victims of people smuggling, who sought only a safe
country in which to make a refugee claim.
[20]
This
is also borne out by the transcript of the oral argument at the hearing. The
Minister’s counsel stated in submissions at the hearing that paragraphs 65 to
74 (above) of the applicants’ written submission “amount to a constitutional
challenge.” Counsel continues on to say that the panel must first decide on the
question of statutory interpretation, and if the result of that is that s 37(1)(b)
has the breadth to be applicable, then the panel has the jurisdiction to
entertain a constitutional challenge, but that in this case such a challenge
cannot be heard because the rules for it have not been followed. Counsel then
returns to discussing the definition.
[21]
I
do not read Torres Victoria, above, as suggesting that the Board has the
jurisdiction to strike a legislative provision, as the respondent conceded at
the hearing of this application. At best, as a tribunal of competent
jurisdiction, it could decline to apply the enactment if it concluded that it
infringed the Charter: Nova Scotia (Workers’
Compensation Board) v Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. As an
administrative decision maker it was required to act consistently with the
values underlying the grant of discretion, including Charter values: Doré
v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at para 24: Conway, above, at para 78. Bell ExpressVu, above, does not preclude application of
the Charter to prevent an
overbroad interpretation, but limits reliance on Charter values in the
interpretation of legislation to cases where there is a genuine constitutional
challenge or ambiguity.
[22]
I
conclude, therefore, that the Board misinterpreted the thrust of the
applicants’ submissions and erred in declining to consider their Charter arguments
notwithstanding the lack of notice. This was an unreasonable decision in the
sense that it was not justified and was outside the range of appropriate
outcomes.
Did
the Board err in law by failing to interpret “people smuggling” for the
purposes of s 37(1)(b) of IRPA in a manner consistent with international
instruments to which Canada is a signatory?
[23]
The Board Member
acknowledged that s 3(3)(f) of the IRPA requires that the legislation be
construed and applied in a manner that complies with international human rights
instruments to which Canada is a signatory. The Member found, however, that s
117 of the IRPA provided an appropriate definition of “people smuggling”,
although it lacked the elements of “financial or other material benefit” or of a
“secret or clandestine” manner set out in the UNCATOC and the supplementing Protocol
Against
the Smuggling of Migrants by Land, Sea and Air. She considered
that the broader Canadian definition encompassed the more specific elements set
out in the international instruments.
[24]
The
applicants submit that this was an error of law, as the broader definition
would capture many people who would not be included under the definition in the
UNCATOC and the supplementing Protocol. The applicants
note that the Protocol provides two definitions at Article 3, while its Article
2 emphasizes that any efforts to combat smuggling must protect the rights of
the victims of smuggling. The applicants argue that the definitions suggest
that “smuggling” means procuring illegal entry into a country, for financial or
material benefits. Similarly, the United Nations Model Law Against
Trafficking in Persons, UNODC, 2009 and Basic Training Manual on
Investigating and Prosecuting the Smuggling of Migrants UNODC, 2010
emphasize the element of financial or material reward in the definition of
people smuggling and need to protect the rights of smuggled migrants.
[25]
The
applicants say that the modern approach to statutory interpretation, as cited
by the Supreme Court in Bell ExpressVu at paras 26-27, requires that the
ordinary meaning of the words of the statute be considered first. This is done
by reference to dictionaries. Both the Oxford English Dictionary and the
Merriam-Webster dictionary provide definitions of “smuggle” which emphasize the
element of secret, clandestine, or surreptitious behaviour.
[26]
The
French and the English versions of a bilingually enacted statute have equal
status: Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at para 125. The
French version of s 37(1)(b) refers to “le passage de clandestins”. The
Larousse dictionary indicates a connotation of secrecy for the word
“clandestin”. The applicants argue that this language was meant to catch
economic migrants who enter Canada clandestinely with no intention of reporting
at a port of entry to make refugee claims: R v Li, 2001 BCSC 458 at para
5.
[27]
The
applicants provided the Board with an excerpt from Hansard, House of
Commons Debates, (17 May 2001) [Hansard] of the proceedings of the
Standing Committee on Citizenship and Immigration in which the provisions then
being proposed for the IRPA were discussed. One of those was the proposed s 117
which would make organizing entry into Canada an offence. Members of Parliament
were concerned that those assisting on a humanitarian basis would be caught by
the provision and were repeatedly assured that this would not be the case due
to the safeguard provision at s 117(4). The applicants note that “the
government representatives clearly stated that it is here where the Attorney
General would weigh the motives of the individual, as well as humanitarian
considerations”. No such safeguard is included in s 37(1)(b), which they
contend has the effect of penalizing those who assist refugees. The applicants
argue that the wording in s 117 can not merely be adapted for use in s 37(1)(b)
without its accompanying safeguards.
[28]
Further,
the applicants submit, the words of s 37(1)(b) must be interpreted in light
of the objectives of IRPA. These include national security, the protection of
refugees and other victims, and respecting and promoting Canada’s domestic and international human rights commitments. As noted at para 23 above, the IRPA
should be applied and construed in a manner which complies with the
international human rights instruments to which Canada is a signatory: De
Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA 436 [De
Guzman] at paras 82-83 and 87. At para 83 of De Guzman, the Federal
Court of Appeal stated:
[83] On its face, the directive
contained in paragraph 3(3) (f) that IRPA "is to be
construed and applied in a manner that complies with international human rights
instruments to which Canada is signatory", is quite clear: 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.
[29]
Together,
the ordinary meaning of the words, the objectives of the Act, and the
objectives and definitions in UNCATOC and Protocol all suggest that “smuggling”
involves clandestine entry for reward, the applicants submit. The Board
Member’s finding that for the purposes of s 37(1)(b), “people smuggling”
did not require clandestine or illegal entry, and did not require payment or
reward was an error in statutory interpretation. Defining smuggling solely in
reference to s 117 would result in a definition which was unconstitutionally
broad and which would violate the applicants’ rights.
[30]
The
applicants argue that the Minister’s approach of requiring only four elements
to be defined as a people smuggler – a person without the required documents,
entry to Canada by that person, assistance by the accused, and the accused’s
knowledge of the lack of documents - is overbroad, as the overbreadth principle
is explained in R v Heywood, [1994] 3 S.C.R. 761,
[1994] SCJ No 101 (QL) at paras 49-53. This
interpretation of s 37 covers any action by migrants being smuggled that may
have assisted in the smuggling operation. It would capture individuals who are
clearly not smugglers, including relatives, refugee advocates, settlement
service workers, and human rights organizations. This is not necessary to
achieve the purpose of anti-smuggling legislation. The provision should be
targeted only at those engaged in the illegal activity of exploiting vulnerable
migrants for profit.
[31]
The
respondent points out that the Federal Court of Appeal has held that s 37
should be given an “unrestricted and broad” interpretation. The IRPA signifies
an intention to prioritize the security of Canada: Sittampalam v Canada (MCI), 2006 FCA 326 [Sittampalam] at para 21. Organized crime is a major
threat to that security: Chiau v Canada (MCI), [2001] 2 FC 297 at paras 46,
58). The availability of Ministerial relief alleviated any harshness or
inequity under s 37 and facilitated a broad and liberal interpretation of the
provision: Sittampalam, at para 28.
[32]
The
Board’s interpretation of “people smuggling” respected both the maxims of
statutory interpretation and the requirement for consistency with international
instruments, in the respondent’s submission. The Board considered the
definitions in UNCATOC and the Protocol and found that the definition in s
117(1) complied with their purpose of prohibiting the transport of migrants
without documentation. It concluded that the definition in s 117(1) was
appropriate for the s 37(1)(b) context because it encompassed the
Protocol definition and did not undermine it or omit any persons captured by
the Protocol definition. The Board was entitled to rely on that definition as
it was contained in the same statute, before turning to dictionaries: Canada (Minister of Citizenship and Immigration) v Medovarski, 2004 FCA 85 [Medovarski
FCA] at para 27.
[33]
The
respondent notes that the alternative meaning of “clandestin” provided by
Larousse (in addition to “secret”) is of “something done in contravention of
the laws and regulations.” The word is rarely translated as “clandestine” or
“secret” in the immigration context nor in other statutes such as the Customs
Act, RSC 1985, c 1 (2nd Supp) which at s 159 expressly excludes the notion
of clandestine from the offence of smuggling.
[34]
Turning
to the international instruments, the respondent argues that the definition of
“human smuggling” in s 117(1) of the IRPA is consistent with the definition of
“smuggling of migrants” in the UNCATOC Protocol, and that any person included
under the Protocol will also be included under s 117(1). The definition at 117(1)
therefore fulfills Canada’s international obligations. In the event that there
is a conflict with the international instruments, validly enacted domestic
legislation will prevail: B010, above, at para 48.
[35]
Alternatively,
the respondent submits, if financial profit or material gain was a necessary
element of the definition of a smuggler, the applicant had received a material
benefit in the form of better accommodation on board ship and therefore the
Board’s factual finding was reasonable.
[36]
Justice
Noël, in B010 at paras 51-53, held that the primary objective of IRPA is
to protect the security of Canadians:
53
As
mentioned in Medovarski, above, [2005 SCC 51] at
para 10, the objective of the IRPA set out in section 3 is to prioritize
security. With this objective in mind, when applying some of the
inadmissibility provisions in division 4 of the IRPA, our courts have given a
broad and unrestricted approach to such terms as "danger to the security
of Canada" and "member of an organization" found in section 34
(for example, see Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1 at para 90, [2002] 1 S.C.R. 3; Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FCA 85 at para 29, [2005] FCJ 381; Harkat
(Re), 2010 FC 1241 at paras 85-88, [2010] FCJ 1426; Charkaoui (Re),
2005 FC 248 at paras 35 and 36, [2005] 3 FCR 389).
[37]
Justice
Noël concluded in B010 that it was reasonable for the Immigration
Division to define “people smuggling” under s 37 by recourse to s 117. In his analysis
at paras 38-64, he found that both provisions were clearly meant to address the
same activity and that adopting two different definitions would create a
contradiction within the IRPA, permitting an individual to be convicted of
people smuggling under s 117 but not found inadmissible under s 37. While
noting that there were two competing interpretations of the legislation, the tribunal’s
interpretation, which excluded a profit element, fell within the range of
acceptable outcomes applying the reasonableness standard.
[38]
Justice
Hughes endorsed this view in B072 v Canada, 2012 FC 899 [B072], a
case turning on the same issue, on the basis of judicial comity and in full
agreement with the analysis in B010.
Justice Zinn, in Hernandez,
above, reached a different conclusion. He found that “people smuggling” in
paragraph 37(1)(b) includes a profit element. Applying the correctness
standard required that the tribunal’s decision be overturned.
[39]
In
B306 v Canada (Minister of Public Safety and Emergency Preparedness)
2012 FC 1282 Justice Gagné distinguished the facts of that case from those
established in B010, above. The applicant in B306 had approached
a crew member of the MV Sun Sea and asked to cook for the crew in exchange for
extra food. He was also assigned a daily duty of watch keeping. This was in
contrast to the facts in B010 where the panel had found that the
applicant had boarded the ship knowing that he would be a crew member. Similarly,
in the present matter the male applicant had not been a crew member at the outset
of the voyage.
[40]
Justice
Gagné found that even if the “rather large interpretation that is being given
to paragraph 37(1)(b) of the IRPA is owed deference from the Court” (at
para 25) the panel had reached an unreasonable conclusion in finding that the
applicant had the necessary mens rea of a human smuggler. It was
unreasonable for the panel to disregard the context of dependency and the lack
of a role or authority of the applicant in the smuggling operation (at paras
34-35). Mere knowledge of the fact that the fellow passengers were not in
possession of the required documents to enter Canada could not justify a
conclusion that the applicant had engaged in the activity of people smuggling
as prescribed in paragraph 37(1)(b) (at para 36).
[41]
I
note that s 117(1) does not, strictly speaking, provide a definition of “people
smuggling”. It sets out the elements of the offence of aiding and abetting
illegal entry. As Justice Gagné states, a successful prosecution would require
proof of intent. For example, to convict the applicant J.P. on the facts of the
present case would require that the criminal court be satisfied beyond a
reasonable doubt that he intended to “aid and abet” the commission of the
offence by the organizers.
[42]
Canada agreed to enact
strict measures to penalize human traffickers when it signed on to the UNCATOC
and Protocol. It also undertook, at that time, to take steps to protect those
who were being smuggled. The line between the two responsibilities may be blurred
by an overly expansive interpretation of 37(1)(b) which encompasses those
who did not plan or agree to carry out the scheme and have no prospect of a
reward other than a modest improvement in their living conditions enroute. The
question of whether it is a “modest improvement” or a share as a partner in the
smugglers’ enterprise that may bring the claimant within the scope of s 37(1)(b)
is a question of fact for the Board to determine but it cannot avoid that task,
in my view, by a strict reliance on the factual elements of the offence set out
in s 117(1).
[43]
I
am satisfied that the Board erred in its interpretation of the term “people
smuggling” in s 37 of the IRPA and that the decision, as a whole, was
unreasonable. I will therefore send the matter back for reconsideration in
accordance with these reasons.
[44]
I
accept the suggestion by the parties that I should certify as a serious
question of general importance the question certified in common by my
colleagues in B010, B072 and B306:
For the purposes of
para 37(1)(b) of the IRPA is it appropriate to define the term "people
smuggling" by relying on section 117 of the same statute rather than a
definition contained in an international instrument to which Canada is
signatory?"
[45]
I
think it appropriate also to join Justice Zinn in certifying an additional
question relating to the standard of review in light of the different views
being expressed by the Court on this subject:
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, reviewable on the standard of correctness or
reasonableness?
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application for judicial review is allowed;
2. the
February 17, 2012 decision by the Immigration and Refugee Board, Immigration
Division, determining that the applicants were inadmissible to Canada is set
aside and the matter is referred back to the Board for redetermination by a
differently constituted panel in accordance with these reasons; and
3. the
following questions are certified:
a) For the
purposes of para 37 (1)(b) of the IRPA is it appropriate to define the term
"people smuggling" by relying on section 117 of the same statute
rather than a definition contained in an international instrument to which
Canada is signatory?
b) 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, reviewable on the standard of correctness or
reasonableness?
“Richard G. Mosley”
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