Refugees, Human Smuggling, and Third-Party Altruism: R v Appulonappa

On February 16, 2015, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of R v Appulonappa, 2014 BCCA 163, a case that will have a significant impact on immigration and refugee law. The SCC’s eventual decision in Appulonappa will deeply affect both refugee claimants and those who assist asylum seekers entering Canada.

The United Nations Convention relating to the Status of Refugees (the “Convention”), July 28, 1951, [1969] Can. T.S. No 6 and the Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, Can. T.S. 1969 No. 29 (the “Protocol”) set out Canada’s obligations with respect to asylum seekers. For example, the Convention precludes refugees from facing sanctions for entering an asylum country without the proper documentation.

At issue in Appulonappa, however, is the question of what, if any, obligations Canada has to those who help smuggle refugees for altruistic reasons.

Facts

On October 17, 2009, Canadian authorities intercepted a freight ship, the MV Ocean Lady. There were 76 Sri Lankan Tamil persons on board. These migrants were asylum seekers and did not have the proper documentation to enter Canada. They paid or were to pay $30,000 to $40,000 to the ship’s crew for transport to Canada.

The Crown charged four of the ship’s crew members pursuant to section 117 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). Section 117 prohibits the organization, inducement, aid, or abetment of one or more persons coming to Canada without proper documentation.

Counsel for the MV Ocean Lady’s crew argued that s. 117 contravened s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 in virtue of being overbroad. In counsel’s submission, the provision’s exposure of those who assist refugees for altruistic reasons to criminal sanctions was not necessary to advance the provision’s purpose of  punishing those engaged in human smuggling. The trial judge accepted this submission and declared s. 117 of the IRPA to be of no force or effect.

The Court of Appeal Decision

At the British Columbia Court of Appeal, the Crown significantly reframed its argument. At trial, the Crown argued that the scope of s. 117 was consistent with the Canadian Government’s international obligation to combat human smuggling. Moreover, it argued that the requirement under s. 117(4) of the IRPA that the Attorney General consent to any proceedings provided the Canadian Government with the flexibility needed to ensure that the provision was only used in appropriate cases.

On appeal, the Crown argued that the trial judge should not have accepted its previous submissions on the objective of s. 117 at the voir dire and, instead, should have found that the purpose of s. 117 was to prevent individuals from arranging the unlawful entry of migrants.

This re-framing of the legislative objective of s. 117 was the determinative issue in Justice Neilson’s decision to allow the Crown’s appeal.

If, as both the accused and the Crown submitted at trial, the legislative intent of s. 117 was to comply with Canada’s international obligations by curtailing human trafficking, s. 117 would be overbroad because those who facilitate the entry of refugees for humanitarian or family reasons could be exposed to prosecution.

If, as the Crown argued on appeal, the true intention behind s. 117 is properly construed as a broader attempt to prevent individuals from arranging the unlawful entry of others, then the motive of those who assist others in entering Canada without documentation is not relevant and the provision cannot be said to be overbroad.

Justice Neilson accepted the Crown’s new position. She noted that the legislative history suggests that s. 117 should be viewed as an evolution of previously existing offences regarding illegal entry rather than a new provision aimed at addressing human trafficking in light of Canada signing on to the Protocol and the Convention.

Justice Neilson also pointed out that neither the Protocol or the Convention explicitly stated that family members and humanitarians should be precluded from prosecution for the smuggling of migrants. She further held that a legislative exemption for those groups would not be feasible because of issues that would arise surrounding purity of motive.

Although criminalizing those who assist refugees because of family ties or humanitarian reasons undoubtedly makes it more difficult for refugees to come to Canada, Justice Neilson concluded that these concerns need to be balanced with legitimate domestic concerns about border control.

Looking Forward

Aside from those immediately affected by s. 117, Appulonappa has significant implications for individuals seeking asylum. Because of the very nature of refugee claims, coming to Canada through legal means may not be an option for many fleeing persecution. Criminalizing everyone who assists in smuggling refugees into Canada, not just those with nefarious motives, seems to send a message that contradicts the country’s offering of a safe haven to people that need refugee protection.

Furthermore, the supposed safety mechanism of s. 117(4), the requirement of the Attorney General’s consent, does little to assuage concerns about consistency and uncertainty.

Appulonappa highlights the difficulty of balancing international obligations with domestic concerns about border control. The SCC will provide the final word with respect to the issue of s. 117’s possible overbreadth and help determine how those who assist refugees enter the country for humanitarian reasons or family ties should be treated by our justice system.