People Smuggling, Refugees, and Material Benefit: B010 v Canada
On February 16, 2015, the Supreme Court of Canada (“SCC”) will begin hearing oral arguments in the appeal of B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 [B010].
The Court will determine whether “people smuggling” under s. 37(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], requires the party accused of people smuggling receive material benefit. The SCC will also consider whether the principle of non-refoulement requires a definition of “people smuggling” that ensures a refugee’s access to the country’s refugee determination procedure.
B010 and B072 came to Canada on the MV Sun Sea and were deemed to be inadmissible to Canada pursuant to s. 37(1)(b) of the IRPA by the Immigration Division of the Immigration and Refugee Board of Canada (“IRB”). Section 37(1)(b) states that a permanent resident or foreign national who engages in activities such as people smuggling is inadmissible to Canada.
B010 and B072’s inadmissibility is a result of their alleged roles as crewmembers on the MV Sun Sea.
B010 is a Tamil who fled Sri Lanka after he was told to report to a camp from which he did not think he would return. He was smuggled to Thailand and later arranged to come to Canada aboard the MV Sun Sea. At his admissibility hearing, B010 said that he was asked to serve as a crewmember because of his knowledge of engines. He worked for 6 hours a day on the ship, but denied that he received any compensation or better accommodation because of his efforts.
B072 is also a Tamil. He told the IRB that, in an attempt to avoid being drafted by the Liberation Tigers of Tamil Eelam, B072 fled to Thailand, where he and his wife stayed for about two years. His wife’s family financed his trip to Canada. B072 admitted to proposing the name of the corporation that bought the MV Sun Sea, signing the incorporating documents, and loading food and equipment for the ship. He claimed that he was instructed to do this by the smugglers and had no role on the ship during its trip to Canada.
The IRB and Federal Court Decisions
In applying s. 37(1)(b) of the IRPA, the IRB used the definition of “people smuggling” in s. 117 of the IRPA, which does not explicitly include profit as an element of the offence.
The IRB was not convinced by B010’s assertion that he knew he was going to be a crewmember when he boarded the ship—he had spent time with the captain and other crewmembers in Thailand—and did not see any credible evidence that B072 had to pay a smuggler to come to Canada on the MV Sun Sea.
The Federal Court upheld the IRB’s decisions, rejecting the submissions that the term “people smuggling” in s. 37(1)(b) is distinct from the term “human smuggling” in s. 117 and that a finding of criminality is required for inadmissibility.
The Federal Court of Appeal Decision
The main issue that the Federal Court of Appeal considered is whether it was appropriate for the IRB to define the term “people smuggling” in s. 37(1)(b) of the IRPA by relying on s. 117 rather than on a definition contained in an international instrument to which Canada is a signatory.
Justice Dawson recognized that Canada has certain obligations under the United Nations Convention relating to the Status of Refugees (“Convention”), July 28, 1951,  Can TS No 6, and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267, Can TS 1969 No 29 (“Protocol”). For example, Article 2 of the Protocol requires the adoption of laws making it a criminal offence to smuggle migrants intentionally and for financial or other material benefit.
These obligations, however, do not require that signatory countries enact legislation that exactly mirrors the language of those international instruments. As Justice Dawson argues, signatory states are entitled to create laws that criminalize a broader range of conduct.
Broader Context: Common Sense and Appulonappa
The interplay between the provisions in the IPRA regarding people or human smuggling and the international instruments of the Convention and the Protocol is also at issue in the upcoming SCC appeal of R v Appulonappa, 2014 BCCA 163. In Appulonappa, the SCC will have to decide whether s. 117 of the IPRA should be interpreted in such a way that those who assist refugees for altruistic reasons face the possibility of criminal sanctions.
B010 and Appulonappa also deal with the role of administrative discretion. In Appulonappa, the British Columbia Court of Appeal argued that s. 117’s requirement of the Attorney General’s consent would limit prosecution to appropriate cases.
In B010, Justice Dawson notes that, pursuant to s. 44(1) and (2) of the IRPA, inadmissibility proceedings are initiated through the decision of an officer to prepare a report, and the Minister’s decision to refer the report to the IRB. She states that common sense should prevail in cases where family members assist other family members in fleeing persecution to Canada or in instances involving those helping refugees for humanitarian reasons.
However, Justice Dawson’s view of ministerial discretion protecting those undeserving of prosecution is problematized by the position the Crown put forward in Appulonappa that those that aid in smuggling migrants for family or humanitarian reasons should not be exempted from criminal sanctions because of domestic concerns about border control.
Furthermore, Justice Dawson states that inadmissible persons can still apply for relief on humanitarian and compassionate grounds, under s. 37(2)(a) of the IRPA, or apply for a pre-removal risk assessment. While technically true, she does not engage in a fulsome analysis of how likely one could actually obtain ministerial relief through these measures.
B010 and Appulonappa underline the complexities that arise when interpreting domestic laws enacted in compliance with international instruments to which Canada is a signatory and the need for clarity in this area of law. The SCC’s upcoming decisions in these cases will hopefully clarify the role these instruments play in interpreting legislation such as ss. 37(1)(b) and 117 of the IRPA.