Date:
20130604
Docket:
IMM-6392-12
Citation:
2013 FC 491
Ottawa, Ontario,
June 4, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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S. C.
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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PUBLIC REASONS
FOR JUDGMENT AND JUDGMENT
(Identical to Confidential
Reasons for Judgment and Judgment Issued May 10, 2013)
I. Introduction
[1]
This
is an application for judicial of review of a decision by the Immigration
Appeal Division [IAD] of the Immigration and Refugee Board dated May 24, 2012,
finding that S. C. (the Applicant) is inadmissible to Canada on grounds of
engaging in the activity of people smuggling in the context of transnational
crime pursuant to paragraph 37(1)(b) of the Immigration and refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a citizen of Sri Lanka.
[4]
On
August 13, 2010, an unregistered ship bearing the name “MV Sun Sea” (the
“Ship”) carrying 492 migrants (the “Migrants") was intercepted by the Royal
Canadian Mounted Police [RCMP] in Canadian waters off the coast of British Columbia. The Ship left Thailand on July 5, 2010. None of the foreign nationals on
board had the requisite documents for lawful entry to Canada and all expressed an intention to remain in Canada permanently and file refugee claims. The
Applicant was one of the persons on board the Ship.
[5]
Following
an investigation, the Canada Border Services Agency [CBSA] prepared a report
entitled “Sun Sea Human Smuggling Operation” (the “Report”). The Report
concluded that the Ship was part of an organized human smuggling operation that
involved significant planning and preparation by numerous agents (approximately
45), based in several countries, who received payment from the Migrants to
board the Ship for passage to Canada. The majority of the Migrants interviewed
by the CBSA reported being charged any amount between $20 000,00 and
$35 000,00 Canadian for their passage. The agents reportedly took the
Migrants’ passports and identifying documents before they boarded the Ship. The
Migrants had to make an initial deposit ranging between 25 to 50% of their full
passage fee before boarding the ship and execute a written promise to pay the
remaining balance upon their arrival in Canada.
[6]
The
conditions for the passengers on the Ship were reported as poor due to food and
water shortages, overcrowded sleeping space and inadequate bathing and toilet
facilities. The passenger Migrants also reported abuse of power by crew members
via food and water.
[7]
The
CBSA investigation revealed that the Applicant was one of the Ship’s twelve
crew members who boarded first (i.e. before the passengers) to replace nine
Thai crew members that were already on the Ship. The details surrounding the
Applicant’s arrival in Thailand and his securing a position on the ship are not
clear. What is known is that the Applicant made his way to Thailand from Sri Lanka in 2008 and applied for refugee status with the Office of the United Nations
High Commissioner for Refugees [UNHCR] in Bangkok a day after his arrival. His
application was accepted and he therefore received a monthly settlement
allowance from the UNHCR. The Applicant testified at the IAD that he heard
about the Ship from word of mouth in Thailand and secured a position through
arrangements with different agents including the principal agent, Prabha. The
Applicant testified that he did not pay anything before boarding the Ship. He
had agreed to work as a cook on the Ship and had negotiated an agreement
whereby his father would pay a post-voyage fare that would be assessed based on
the value of his work. The Applicant cooked for the eleven other crew members
and assisted the Ship’s chief engineer in the engine room.
[8]
The
CBSA investigation further revealed that the Ship belonged to the Applicant’s
brother. His brother had purchased the Ship in March 2010, for $175 000,00,
through a company he controlled and was one of the smuggling venture’s organizers.
At the IAD hearing, the Applicant testified that he had no knowledge that his
brother was in Thailand until he happened to bump into him by chance at a
temple there. He also claimed to be unaware that his brother and sister-in-law
planned to board the Ship and suggested that it was just a coincidence. He
testified that he only discovered that his brother was going to board the Ship
when he saw him getting on board just before the Ship left Thailand. He further stated that he and his brother had little contact on board and only
exchanged pleasantries when they did see each other. The Applicant denied
having any knowledge of his brother’s involvement in the organization and
ownership of the Ship.
[9]
The
Applicant made a refugee claim soon after his arrival in Canada. On or around December 16, 2010, an immigration officer prepared a report under subsection
44(1) of the IRPA indicating that the Applicant was a foreign national
inadmissible to Canada under paragraph 37(1)(b) of the IRPA on
the grounds of engaging in people smuggling. The Minister found the report to
be well-founded and, pursuant to subsection 44(2) of the IRPA, referred
it to the Immigration Division [ID] for an admissibility hearing.
III. The
ID and IAD Decisions
[10]
The
ID decided that the Minister had failed to adduce sufficient evidence that the
Applicant engaged in people smuggling as described in paragraph 37(1)(b)
of the IRPA. The ID found that the four elements required to prove
people smuggling under paragraph 37(1)(b) were the same as those
required to establish a violation of subsection 117(1) of the IRPA,
namely, (i) the person being smuggled did not have the required documents to
enter Canada; (ii) the person was coming into Canada; (iii) the accused was
organizing, inducing, aiding or abetting the person to enter Canada; and (iv)
the accused had knowledge of the lack of required documents.
[11]
While
the ID found the Minister had established elements (ii) and (iii), he failed to
prove elements (i) and (iv). On the first element, the ID concluded that the
Minister failed to adduce evidence that the Migrants arrived without the
required documents. On the fourth element, the ID found that the Minister
omitted to either file evidence or make submissions that the Applicant knew or
was wilfully blind as to whether the Migrants had proper documentation. The ID
did not agree that profit was an additional element necessary to establish
people smuggling under paragraph 37(1)(b), but nevertheless found that
the Applicant had received one in engaging in the smuggling activity. The ID
reasoned that the Applicant aided in the Ship’s efforts in order to receive a
reduced fare and, thereby, received a material benefit.
[12]
The
Minister appealed the ID’s decision and, on May 24, 2012, the IAD decided to allow
the appeal, set aside the ID’s decision and make a deportation order against
the Applicant. The IAD found that the Minister had established all four
elements cited above, necessary to find the Applicant inadmissible under paragraph
37(1)(b) for people smuggling. The IAD noted that the Minister had filed
documentary evidence establishing that the Migrants came to Canada without the requisite documents. Regarding the Applicant’s knowledge of whether the
Migrants had proper documentation, the IAD found that:
“[T]here are reasonable grounds to believe that the
[Applicant] had such knowledge. The [Applicant] testified that he surrendered
his own passport to the agent prior to boarding the ship but testified
generally that he was not aware of whether others had done so and did not know
what documents they may have possessed or what would be needed. The
jurisprudence supports a ‘wilful blindness’ analysis rather than a need to find
‘actual knowledge’, and that analysis may include consideration of a failure to
make reasonable enquiries. I find that it would be reasonably apparent to an
observer, including the [Applicant] that a group of migrants who paid
handsomely for passage in the high risk venture of traveling on the MV Sun Sea
were not in a position to use lawful, cheaper and less life-threatening options
for entry to Canada. One could reasonably infer that the reason the migrants
did not simply buy airplane tickets to Canada for a fraction of the cost is
because they did not have the proper documentation to do so” (IAD reasons at para
35).
[13]
The
IAD confirmed the ID’s finding that a profit or financial benefit was not an
element necessary to establish people smuggling under paragraph 37(1)(b).
The IAD also made a number of credibility findings. The IAD found both the
Applicant’s claim that he had no knowledge of his brother’s involvement in the
venture and his explanation as to how or whether he paid for passage on the
Ship to be not credible.
IV. Legislation
[14]
The
applicable sections of the Immigration and refugee Protection Act, SC
2001, c 27, of the Protocol against the Smuggling of Migrants by Land, Sea
and Air and of the Convention Relating to the Status of Refugees, are appended
to this decision.
V. Issues
and standard of review
A. Issues
[15]
This
application raises the following issues:
1. Did
the IAD err in its interpretation of the term ‘people smuggling’ found in
paragraph 37(1)(b) of the IRPA?
2. Did
the IAD err in its understanding or application of the concept of wilful
blindness?
3.
Did the IAD err in its credibility
findings?
B. Standard
of review
[16]
What
is the appropriate standard of review for the IAD’s (or ID’s) interpretation of
paragraph 37(1)(b) of the IRPA? This question was recently
answered by the Federal Court of Appeal in B010 v Canada (Minister of
Citizenship and Immigration), 2013 FCA 87 at para 66 [B010 (FCA)].
The Court of Appeal restated the principle that reasonableness is the standard
of review when a tribunal is interpreting its home statute and found that none
of the exceptions to that principle were applicable to this question.
[66] Members of the Board function in a discrete
and special administrative regime. They have expertise with respect to the
interpretation and application of the Act. The nature of the question of law is
the interpretation of the phrase “people smuggling”. This question of statutory
interpretation of the Board’s home statute raises neither a constitutional
question, nor a question of law of general importance to the legal system as a
whole. Neither does it involve a question regarding jurisdictional lines
between competing specialized tribunals nor a true question of jurisdiction (to
the extent such questions continue to exist; see, Alberta Teachers’
at paragraphs 33 to 43).
[17]
The
Court will therefore apply the standard of reasonableness to this question.
[18]
Justice
Noël addressed the appropriate standard of review to be applied to the second
issue at paragraph 32 of B010 v Canada (Minister of Citizenship and
Immigration), 2012 FC 569 [B010 (FC)]:
[32] I agree that the issue the applicant has
raised with respect to the ID’s understanding of the concept of wilful
blindness and whether it failed to correctly address elements of the legal test
is a question of law that should be decided on the standard of correctness (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 44,
[2009] SCJ 12 [Khosa]; Mugesera, above, at para 37; Belalcazar
v Canada (Minister of Public Safety and Emergency Preparedness), , 2011 FC
1013 at para 14, [2011] FCJ 1332). However, the ID’s application of wilful
blindness to the facts remains subject to the reasonableness standard of review
(Onyenwe v Canada (Minister of Citizenship and Immigration), 2011 FC 604
at paras 9-10, [2011] FCJ 807).
[19]
The
Court agrees with Justice Noël’s analysis on this issue and will therefore
review the IAD’s understanding of the correct legal test for wilful blindness
on the correctness standard and assess its application of that concept on the
reasonableness standard.
[20]
Finally,
on the third issue, it is well established in the case law that credibility
finding is a question of fact that is reviewable on a reasonableness standard
(see Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC
558 at para 11).
VI. Parties’
positions
[21]
The
Applicant argues that the IAD incorrectly interpreted the meaning of the term
“people smuggling” in paragraph 37(1)(b) of the IRPA and
confounded the activity with the crime of “organizing entry into Canada” found under section 117 of the IRPA. The Applicant contends that when
applying the general principles of statutory interpretation and considering 1)
the plain meaning of the French version of section 37(1)(b) including
“smuggling” (and of the expression in the French version (i.e. “se livrer” “le
passage des clandestins”)); 2) the objectives of the IRPA; and 3)
Canada’s obligations under international law, the expression “people smuggling”
necessarily entails bringing illegal aliens into Canada clandestinely for
financial or material profit. Because the Applicant did not receive a profit or
material benefit and the Ship and its passengers did not enter Canada clandestinely, the IAD erred in finding him inadmissible for “people smuggling”
under paragraph 37(1)(b).
[22]
The
Respondent submits that the IAD correctly relied on the crime of “human
smuggling” under section 117 of the IRPA in determining the constituent
elements of “people smuggling” under paragraph 37(1)(b). A more narrow
definition of “people smuggling” would, according to the Respondent, lead to an
absurd result. The Respondent also claims that the ordinary and legal
definitions of “smuggling” do not require clandestine entry but insists that
even if they did, the facts in this case indicate that the Ship and the
Migrants entered Canada both illegally and clandestinely. On the profit or
material benefit element, the Respondent maintains that it is not a required
aspect of people smuggling but notes that even if it was, the Applicant himself
admitted to receiving a benefit, before the IAD, in the form of a reduction of
his passage fare on the Ship.
[23]
On
the second issue raised by this application, the Applicant insists the IAD
misunderstood the law of wilful blindness by equating it to a mere suspicion
rather than considering if he truly had knowledge of a need to make an enquiry
as to whether the other Migrants had proper documentation. The Applicant
insists that he had no reason to ask other Migrants about their documentation
because he did not see himself as affecting or aiding their voyage to Canada in any way.
[24]
The
Respondent submits that the IAD properly found that there were reasonable
grounds to believe the Applicant knew or was wilfully blind to the fact that
other Migrants lacked proper documentation. The Respondent notes the Applicant
testified knowing he needed at least a passport to enter Canada, and having given his up before boarding the Ship. The Applicant, according to the
Respondent, also acknowledged having chosen to come to Canada this way because he wasn’t able to enter lawfully. Given these circumstances, the
Respondent submits that:
“[I]t belies credulity for the Applicant now to
assert that it was unreasonable for the [IAD] to make a finding of fact that
the Applicant knew or ought to have known that, like the Applicant himself, the
other Migrants came to Canada by means of an expensive, surreptitious,
hazardous smuggling venture because they did not have the proper documentation
to come to Canada lawfully” (Respondent’s Memorandum of argument at para 55).
[25]
Finally,
on the third issue, the Applicant contends the IAD failed to provide the
details required to verify its credibility findings in its reasons. For
example, while the IAD claimed that the Applicant’s descriptions at the hearing
were inconsistent with the CBSA Report, it did not indicate what those
descriptions were. Similarly, while the IAD claimed information the Applicant
provided was inconsistent with his testimony, it failed to describe precisely
what that information was. The Applicant also claims that the IAD’s statement
that the Applicant’s testimony, at the hearing, was not more reliable than on
previous occasions, ignores the fact that the ID found the Applicant’s
testimony not to be unreliable. The Applicant concludes that no evidence was
adduced to directly link him in any way to his brother’s involvement with the
Ship.
[26]
The
Respondent insists that the IAD’s credibility findings were reasonable,
well-explained and supported by the evidence. Furthermore, the Applicant’s
claim that the ID found him to be credible is contrary to that tribunal’s
reasons. The only finding the ID made about the reliability of the Applicant’s
evidence in its reasons was that it was vague.
VII. Analysis
1. Did
the IAD err in its interpretation of the term ‘people smuggling’ found in
paragraph 37(1)(b) of the IRPA?
[27]
As
we have previously indicated, there is no definition of “people smuggling” in
the IRPA or any of its related regulations. Both the ID and IAD chose to
equate the term with the offence of “organizing entry into Canada” described at subsection 117(1) of the IRPA. The tribunals were undoubtedly influenced
by the term located in the heading above section 117, namely, “human
smuggling”. A close reading of section 117 makes it clear that “human
smuggling” refers to the offence described in subsection 117(1). The Court
finds the IAD’s conclusion that subsection 117(1) serves to criminalize the
activity that renders anyone who engaged in it inadmissible for ‘people
smuggling’ under para 37(1)(b) to be reasonable and in line with
principles of statutory interpretation. In attempting to interpret the meaning
of an expression, one should “turn up other provisions that may have some
significant relation to the provision to be interpreted. By reading related
provisions together, the court uncovers aspects of what the legislature
intended” (Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law Inc, 2007) at 132 [Statutory Interpretation]).
[28]
While
the terms “people smuggling” and “human smuggling” are not identical,, the
Court is conscious of the textual analysis technique under which different
words appearing in the same statute should be assigned different meanings, the
Court agrees with Justice Noël in B010 (FC) cited above, that there is
“no meaningful or plausible reason in this case to distinguish between the act
of ‘people smuggling’ and that of ‘human smuggling’” (B010 (FC) at para
40). Both terms obviously address the same criminal activity-the smuggling of
human beings.
[29]
The
Applicant argues that profit or material benefit is a necessary element of
people smuggling and that people engaged in humanitarian smuggling should not
be found inadmissible under paragraph 37(1)(b).
[30]
Paragraph
121(1)(c) of the IRPA makes it very clear that committing human
smuggling for profit is an aggravating factor rather than a required
element of the offence. Reading in the additional element of profit for people
smuggling would, therefore, create a situation where a person could be found
guilty of human smuggling (and liable for a fine of up to $1 000 000,00 and
life imprisonment for smuggling a group of 10 or more persons) but not be found
inadmissible under paragraph 37(1)(b). Justice Noël, in B010 (FC)
cited above, reasoned that such an absurd result was yet “another indication
that para 37(1)(b) should be interpreted in conformity with section 117”
(see B010 (FC) at para 44).
[31]
In
Hernandez v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1417 at para 64 [Hernandez], Justice Zinn
found that requiring a profit element for people smuggling would not
necessarily lead to an absurd result. While he acknowledged that a person found
guilty of people smuggling could nonetheless not be inadmissible under
paragraph 37(1)(b), they would, still, remain inadmissible to Canada under subsection 36(1) of the IRPA:
[64] It is true that if “people smuggling” requires
the Profit Element then a humanitarian smuggler convicted under section 117
would not be inadmissible by virtue of paragraph 37(1)(b); however, that
individual would nonetheless be inadmissible for “serious criminality” through
the straightforward application of subsection 36(1), and would be subjected to
the attendant consequences of such a designation. In other words,
notwithstanding paragraph 37(1)(b), the humanitarian people smuggler is already
inadmissible in the same manner as others convicted of serious crimes.
[32]
What
purpose is served by requiring a profit motive for people smuggling? According
to the Court in Hernandez, cited above, it is to further punish or create
further drawbacks for those who smuggle people for profit. Such an intent is,
in fact, consistent with Parliament listing a profit motive as an aggravating
factor for human smuggling according to paragraph 121(1)(c):
“Moreover, in Sullivan’s words, I find there is a
“plausible reason for distinguishing between the two groups.” Individuals who
smuggle people for profit arguably should be afforded fewer protections than
those who do not. Indeed, Parliament listed the profit motive as an
aggravating factor to be considered at the sentencing stage for the offence of
Human Smuggling in section 117: See paragraph 121(1)(c). Parliament therefore
obviously intended that the smuggling of people for profit is to be met with
harsher treatment than humanitarian smuggling. Including the Profit Element as
a requirement of people smuggling in paragraph 37(1)(b) accords with that
intention” (Hernandez at para 66).
[33]
The
Court disagrees with this line of reasoning. While the Court acknowledges that,
in listing profit as an aggravating factor, Parliament intended to treat those
who smuggled humans with that motive more harshly; it does not follow that it
intended to let not-for-profit smugglers go unpunished under paragraph 37(1)(b).
If Parliament intended to criminalize non-profit motive smuggling, then it
would not have assigned a lower standard of proof (i.e. “reasonable grounds to
believe” pursuant to section 33 of the IRPA). While a non-profit motive
smuggler could be found inadmissible under subsection 36(1), this would only
occur after he was found guilty beyond a reasonable doubt under subsection 117(1).
[34]
The
Court acknowledges the evidence adduced by the Applicant from the Parliamentary
committee hearings indicating that while it was Parliament’s intention to capture
humanitarian smugglers in subsection 117(1), it also intended for subsection 117(4)
(i.e. no proceedings for an offence under section 117 without the consent of
the Attorney General) to serve as a safety net preventing them from being
prosecuted. Parliament clearly intended to cast a broad net with subsection
117(1). It is only logical to impute the same intent with regards to people
smuggling under paragraph 37(1)(b). Interpreting people smuggling
broadly is consistent with Parliament’s precautionary method of combating the
smuggling of human beings at large. Furthermore, like 117(4), paragraph 37(2)(a)
also acts as a safety net and prevents those described in paragraph 37(1)(b)
from being found inadmissible if they can satisfy the Minister that their
presence in Canada would not be detrimental to the national interest.
[35]
The
Applicant also submits that interpreting people smuggling as not requiring a
profit motive would violate paragraph 3(3)(f) of the IRPA, which
requires its other provisions to “be construed and applied in a manner that . .
. complies with international human rights instruments to which Canada is
signatory”. Specifically, the Applicant argues that the Protocol Against
the Smuggling of Migrants by Land, Sea and Air, Supplementing the United
Nations Convention against Transnational Organized Crime (the “Protocol”)
requires at paragraph 1(a) of Article 6 that:
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; . . .
[36]
The
Court, in Hernandez, cited above, dealt with this very question and
found that paragraph 37(1)(b), without the element of profit, would not
be “truly inconsistent with either the Protocol or the [Convention Relating
to the Status of Refugees and the Protocol Relating to the Status of
Refugees [collectively the Refugee Convention]” (Hernandez, at para
55). Regarding the Protocol, the Court found:
[48] Unlike the Protocol, which establishes crimes,
paragraph 37(1)(b) of the Act is an inadmissibility provision with consequences
to a foreign national's ability to claim protection, and a permanent resident's
or foreign national's ability to remain in Canada.
[49] Canada’s international commitment to
criminalize the smuggling of migrants when engaged in transnationally, has no
bearing on when it must permit persons to seek Convention refugee protection or
when the exceptions to the principle of non-refoulement will be met . . . (Hernandez,
above at paras 48-49)
[37]
The
Court agrees. The obligation in the Protocol applies to criminal legislation
and should only inform the interpretation of section 117. Furthermore, the
Protocol creates a minimum that Canada must adhere to, it does not prevent Canada from applying a more stringent or rigorous sanction for an offence.
[38]
The
Applicant additionally argues that the IAD’s construal of “people smuggling”
would also violate the principle of non-refoulement of refugees. Article 33 of
the Refugee Convention provides as follows:
Article 33 - Prohibition of expulsion or return
("refoulement")
1. No Contracting State shall expel or return
(" refouler ") a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or
political opinion.
2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he is, or who,
having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.
[39]
The
Applicant argues that the IAD’s interpretation of “people smuggling” goes
against the principle of non-refoulement of refugees. The Court disagrees.
[40]
Paragraph
2 of article 33 is clear that refugees will not benefit from the principle of
non-refoulement if there are reasonable grounds for regarding them as a danger
to the security of the country they are in. Nonetheless, if a refugee who is
subject to the application of paragraphs 37(1)(b) and 37(2)(a)
will not be found inadmissible provided he satisfies the Minister of Public
Safety and Emergency Preparedness that his presence is not detrimental to
Canada’s national interest. The IAD’s interpretation of section 37 is not
inconsistent with Article 33 of the Refugee Convention. Furthermore the
principle of non refoulement must not be conflated with issues on
admissibility.
[41]
The
Court also rejects the Applicant’s argument based on Article 31 of the Refugee
Convention. That provision forbids penalizing a refugee for his own unlawful
entry and not for organizing, inducing, aiding or abetting refugees to enter
unlawfully. Paragraph 37(1)(b) is not inconsistent with the duty imposed
on Canada by Article 31. Furthermore, paragraph 37(2)(b) of the IRPA
specifically forbids “a determination of inadmissibility by reason only of the
fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity”.
[42]
Finally,
the Court underlines that the Applicant did receive a material benefit for his
work in aiding the Ship’s venture.
[43]
The
Applicant also alleges that the IAD erred in not finding that people smuggling
required clandestine entry. As the Respondent notes, this very issue was dealt
with in B010 (FC) cited above, and confirmed by Justice Hughes in B072
v Canada (Minister of Citizenship and Immigration), 2012 FC 899. In paragraph
61 of B010 (FC), cited above, Justice Noël answered this issue in the
following way:
[61] . . . While the applicant sought to include a “secret
or clandestine” element, the panel correctly pointed out that where a person
smuggled appeared at the port of entry to make a refugee claim, an individual
that had aided that person to enter Canada could still be found guilty of an
offence under section 117 (Godoy, above, at para 35 and Mossavat,
above, at paras 1-2). The Minister also rightfully submitted to this Court that
no such component can be derived from a reading of para 37(1)(b), of section
117, or even of the Protocol, and this in either French or English. The
Minister also referred this Court to section 159 of the Customs Act, RSC
1985, c 1 (2d Supp), which defines smuggling as follows: “Every person commits
an offence who smuggles or attempts to smuggle into Canada, whether
clandestinely or not, any goods subject to duties, or any goods the
importation of which is prohibited, controlled or regulated by or pursuant to
this or any other Act of Parliament [emphasis added].” I agree with the
Minister that subsections 37(1) and 117(1) do not require a “secret or
clandestine” component, but are instead concerned only with the ‘organizing of
entry into Canada,’ whether the person entering declares themselves at a port
of entry or not, when such a person is “not in possession of a visa,
passport or other document required by this Act” (subsection 117(1) of the
IRPA). Evidence submitted to the ID showed that the majority of the passengers
on board the MV Sun Sea were in fact not in possession of the visas and
passports required by the IRPA.
[44]
The
Court agrees with Justice Noël’s analysis on this issue and finds that it
provides a complete answer to the issues raised by the Applicant. The Court
also underlines that, as the Respondent correctly pointed out in his
submissions, the Ship did enter Canada clandestinely. After it “unlawfully left
the Gulf of Thailand and […] travelled surreptitiously, unregistered and
falsely labelled the “MV Sun Sea”, […] did not comply with international
reporting and safety regulations […]” and was intercepted in Canadian waters by
Canadian authorities (Respondent’s Memorandum of argument at para 42).
[45]
In
light of the reasons presented above, the Court finds that the IAD’s
interpretation of the activity of “people smuggling” in paragraph 37(1)(b)
of the IRPA was reasonable and falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
2. Did
the IAD err in its understanding or application of the concept of wilful
blindness?
[46]
Having
concluded that the constitutive elements of “human smuggling” under subsection
117(1) and “people smuggling” under paragraph 37(1)(b) are the same, the
IAD was asked to decide whether there were reasonable grounds to believe the Applicant
knowingly organized, induced, aided or abetted the coming into Canada of one or
more persons who are not in possession of a visa, passport or other document
required by the IRPA.
[47]
The
Applicant submits the IAD committed an error in concluding that the Applicant
knew the other Migrants he was aiding to enter Canada did not have proper
documentation. The IAD concluded that the Applicant either knew or was wilfully
blind to the fact that the Migrants did not have the required documents. The
Applicant argues that the IAD erred in its understanding of wilful blindness
“by equating it to mere suspicion and not considering whether the Applicant had
a [need] to inquire whether the other refugee claimants had the documents to
enter Canada” (Applicant’s Memorandum of fact and argument at para 68). The
Applicant also claims that there was no evidentiary basis for concluding that
he deliberately refrained from inquiring in order to avoid knowledge.
[48]
The
Applicant is correct in affirming that in order to establish that the he was
wilfully blind, the IAD had to determine that he knew that there was reason to
inquire. This requirement was described in R. v Sansregret, [1985] 1 SCR
570 at para 22, [1985] SCJ No 23:
22 Wilful blindness is distinct from recklessness
because […] [it] arises where a person who has become aware of the need for
some inquiry declines to make the inquiry because he does not wish to know the
truth. He would prefer to remain ignorant. The culpability […] in wilful
blindness […] is justified by the accused’s fault in deliberately failing to
inquire when he knows there is reason for inquiry. […]
[49]
The
Court notes that while the IAD did not explicitly mention this aspect of the
test, it did note that the Applicant testified to having given up his own
passport before boarding the Ship and to knowing that he needed to at least
have a passport to enter Canada lawfully. In that sense, the Applicant knew of
a reason to inquire. In the presence of a very similar argument and facts,
Justice Noël, found as follows:
“Regarding this first matter of mens rea, I
agree that the ID did not explicitly enunciate this component of the concept of
wilful blindness. However, the Supreme Court recently confirmed that “[a]
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 (CanLII), 2011 SCC 62 at para 16, [2011] SCJ 62). In
addition, I note the ID did make a finding that the applicant knew of a reason
for inquiry. Specifically, the ID determined at para 48 of its reasons that the
applicant knew that as a Sri Lankan, he needed a visa to enter Canada. This was sufficient for it to determine he had knowledge of a need for inquiry
under section 117 and shows that the panel’s understanding of the test for
wilful blindness was not deficient” (see B010 (FC) at para 67).
[50]
The
Applicant cannot argue that he did not know it was illegal to aid the Migrants
in entering Canada without proper documentation because “it is well established
that ignorance of the law is no defence” (R v Jorgensen, [1995] 4 S.C.R. 55
at para 97, [1995] SCJ No 92). Nor can the Applicant argue that he did not
perceive himself as “aiding” the Migrants in coming to Canada illegally by cooking for the crew and assisting the Ship’s engineer.
[51]
The
Court is aware that in B306 v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 1282 [B306], Justice Gagné found,
at paragraph 34, that:
[34] . . . it is an unreasonably large reading of
subsection 117(1) to suggest that any services performed in favour of smugglers
can be viewed as aiding and abetting the coming into Canada of illegal aliens.
In this sense, I agree with the applicant that the panel’s analysis was not
informed by the context of complete dependency, vulnerability and power
imbalance in which the applicant found himself during the three-month journey
to Canada.
[52]
However,
Justice Gagné distinguishes the case before her from the case at bar in the
very next paragraph where she stresses that:
[35] . . . the facts of this case should be
distinguished from those that were established in B010, above, where the
panel found that the applicant “had boarded the ship knowing that he would be a
crew member”. In that case the Minister had submitted three photographs that
showed the applicant posing with three members of the crew (including the
captain) while they were still in Bangkok. That applicant was part of the team
who voluntary replaced the crew who had resigned prior to departure . . . (B306,
above, at para 35).
[53]
It
is important to note that just as in B010 (FC), the Applicant was a
member of the Ship’s crew. The Applicant negotiated his passage by agreeing to
work for a reduced fare prior to boarding the Ship.
[54]
Finally,
the Applicant’s argument that he did not inquire as to whether the Migrants had
proper documentation because “his suspicions were not aroused” is untenable in
light of the facts of the case. The Applicant admitted to giving up his own
passport before boarding the Ship and that, alone, is a reasonable ground for
suspecting the other Migrants were not treated any differently. The IAD
correctly found that there were reasonable grounds to suspect “that a group of
migrants who paid handsomely for passage in the high risk venture of traveling
on the MV Sun Sea were not in a position to use lawful, cheaper and less
life-threatening options for entry to Canada” because they didn’t have the
proper documents to do so (IAD Reasons, at para 35).
[55]
The
Court concludes that the IAD had reasonable grounds to suspect that the
Applicant either knew or was wilfully blind to the fact that the Migrants he
was aiding in coming to Canada did not possess proper documentation and was,
therefore, inadmissible on the basis of people smuggling pursuant to paragraph
37(1)(b) of the IRPA.
3. Did
the IAD err in its credibility findings?
[56]
The
IAD’s credibility findings were reasonable in this case. As the Respondent
submits, the IAD’s findings were “clear, well-explained and amply supported by
the evidence” (Respondent’s Memorandum of argument at para 62). The Applicant’s
testimony, at the hearing, regarding his contact with his brother during and
prior to the voyage, was quite rightly determined to lack credibility. The
Applicant’s story that he randomly bumped into his brother at a temple in
Bangkok, did not discuss the Ship and then, by coincidence, just happened to
discover that they were both taking part in the venture is so far “outside the
realm of what could reasonably be expected” (see Valtchev v Canada (Minister
of Citizenship and Immigration) (2001), 208 FTR 267 at para 7).
[57]
The
IAD’s conclusion that the Applicant’s “efforts to distance himself from
knowledge of and association with his brother lacked credibility and offers
reasonable grounds to believe that he is attempting to hide a greater
association between them” is reasonable and falls within the range of possible
outcomes (IAD Reasons, at para 31).
[58]
The
IAD also provided clear examples of contradictory testimony from the Applicant
regarding how he paid for the voyage. This is not a peripheral issue but one
that goes to the very heart of the Applicant’s involvement as being more than a
mere passenger on the Ship. During the ID hearing, the Applicant testified that
there was no agreement for a post-voyage payment by his father prior to
boarding the Ship. At the IAD hearing, on the other hand, the Applicant
testified that a post-voyage payment arrangement was made prior to boarding and
that the agent was confident in the father’s ability to pay.
[59]
In
sum, the Court dismisses this application because the IAD properly concluded
that the Applicant is a person described under paragraph 37(1)(b) of the
IRPA and is inadmissible to Canada on grounds of organized criminality
for engaging, in the context of transnational crime, in people smuggling.
VIII. Certification
[60]
Counsel
for the Applicant suggested that the Court certify the following questions: Did
the IAD Member err in her decision that adopted the definition of the crime of
“organizing entry into Canada” under s. 117(1) of the IRPA as the complete
definition of people smuggling under s. 37, because this definition lacks
the requirement of material gain laid down in the Convention and Protocol and
bans those so defined from refugee protection? Does this definition violates
(sic) Canada’s obligation not to penalize refugee claimants for illegally
entering a country and claiming asylum?
[61]
Counsel
for the Respondent objected on the grounds that this question contained a
statement rather than a true question and more importantly that in this case,
it is clear that there was material gain. Furthermore, the Supreme Court has
answered the second part of the question in Canada (Minister of
Employment and Immigration) v Chiarelli [1992] 1 S.C.R. 711 [Chiarelli].
[62]
The
Court will not certify either of the proposed questions because they have
already been answered by the Federal Court of Appeal in B010 (FCA) cited
above.
[63]
Furthermore,
the first question is not dispositive of the case and, therefore, fails to meet
the test set out in Canada (Minister of Citizenship and Immigration) v Lyanagamage,
[1994] FCJ No 1637; Zazai v Canada (Minister of Citizenship and
Immigration), 2004 FCA 89; and Varela v Canada (Minister of Citizenship
and Immigration), 2009 FCA 145 (CanLII), [2010] 1 FCR 129. In the case at
bar, the question of whether the term “people smuggling” in paragraph 37(1)(b)
requires a profit element is not dispositive of this case because the Court has
already determined that the Applicant did, in any event, receive a material
benefit from working on the Ship (i.e. a reduced fare).
[64]
As
for the second, conditional question, the Court is of the view that it is not
serious in the sense that it does not raise an issue of significant doubt. As
noted above, Article 31 of the Refugee Convention forbids penalizing a refugee
for his own unlawful entry and not for organizing, inducing, aiding or abetting
refugees to enter unlawfully. Furthermore, as the Respondent correctly
submitted, the Supreme Court, in Chiarelli, cited above, at para 31,
already determined that an inadmissibility finding is not imposed as a
punishment.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
"André F.J.
Scott"
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