Remedying Hypothetical Charter Breaches: Lessons from R v Appulonappa
The newest member in the illustrious “class of section seven” Charter jurisprudence is R v Appulonappa, 2015 SCC 59 [Appulonappa], a recent Supreme Court of Canada (“SCC”) ruling on the constitutionality of a federal human smuggling offence. The decision is not only noteworthy for its political significance (stemming from a refugee controversy taking place several years ago), but also because of the SCC’s use of reasonably foreseeable hypotheticals in assessing the effect of the legislation. Below, I seek to analyze and question the application of the “reasonable hypothetical” doctrine in section seven (and twelve) litigation. I also explore the remedial difficulties the doctrine poses for decision-makers.
The Unconstitutionality of Canada’s Human Smuggling Laws:
Many Canadians will remember the disembarkment of over seventy-five Sri-Lankan Tamils from the Ocean Lady—a vessel travelling from Southeast Asia to Canada that was apprehended by authorities just off the coast of Vancouver in 2009. Attempting to flee persecution from back home, the Sri-Lankans were asylum-seekers that paid up to $40,000 to a human smuggling organization in an effort to enter Canada by illegal means. Among those arrested by authorities were the four appellants, believed to have been the ring-leaders of the operation. They were charged with “Organizing entry into Canada” contrary to section 117(1) of the Immigration and Refugee Protection Act, SO 2001, c 27 [IRPA], which provides the following:
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.
On a voir dire before the British Columbia Supreme Court (2013 BCSC 31), the accused sought a declaration of the provision’s unconstitutionality. By that point in time, section 117 had already been replaced by the Protecting Canada’s Immigration System Act, SC 2012, c 17, and was therefore no longer in force. However, the retrospective constitutionality of the law remained at issue between the parties. While the appellants did not posit that the provision was overbroad in relation to their human smuggling operations, they did argue that the provision extended far beyond its purposes by capturing conduct of individuals of minimal blameworthiness; those “humanitarian workers or family members assisting asylum-seekers for altruistic reasons” (Appulonappa, para 10). By interfering with the liberty interests of these hypothetical individuals in an overbroad manner, the appellants claimed that section 117(1) of the IRPA violated section seven of the Charter, which reads as follows:
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.
Justice Silverman agreed with the appellant’s contention, and declared the impugned provision inconsistent with the Charter, and therefore invalid pursuant to section 52(1) of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. This holding was overturned on appeal by the British Columbia Court of Appeal (2014 BCCA 163), after a unanimous bench re-characterized the purpose of the legislation. The decision was further appealed to the SCC, where a unanimous bench reversed the BCCA’s decision, restoring the declaration of invalidity. In her reasons, Chief Justice McLachlin characterized the purpose of section 117 as the criminalization of human smuggling into Canada through illicit channels. She found that section 117’s purpose “does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada” (Appulonappa, para 70). Punishing those who act for purposes unrelated to criminal human smuggling (and sometimes even for compassionate reasons) evidently engages their liberty interest under section seven.
Once it determined section 7 was engaged, the SCC needed to consider whether the limitations section 117 placed on liberty were in accordance with the principles of fundamental justice. Charter jurisprudence has affirmed that a law that “goes too far and interferes with some conduct that bears no connection to its objective” violates the overbreadth principle, which is a principle of fundamental justice under section seven of the Charter (Bedford v Canada (Attorney General),  3 SCR 1101, para 101). Section 117(1) of the IRPA was found to do just that, by criminalizing behaviour that lacks a sufficient connection to its purpose. Accordingly, it violated the right to liberty in an overbroad manner, inconsistent with the principles of fundamental justice. The violation could not be saved by section one, as it failed the minimal impairment portion of the Oakes test.
Reasonable Hypotheticals; Appulonappa, Nur, and Heywood:
Although few would dispute the unconstitutionality of overbroad laws that overreach in their effect, it may seem curious that the appellants in Appulonappa challenged the overbreadth of section 117, given that they formed part of those criminal organizations properly targeted by the law. Indeed, the appellants successfully argued that the impugned law was unconstitutionally overbroad as it may apply to a “reasonable hypothetical” offender, despite the fact that their criminal misdeeds appear to fall within its ambit without resulting in a Charter breach. This “reasonable hypothetical” doctrine allows courts to transcend the individual facts of the case, and look to reasonably foreseeable situations to identify and address constitutional issues. (For a fantastic overview of reasonable hypothetical in Charter litigation, see Michael Plaxton’s three-part analysis in Policy Options here, here, and here).
Although controversial, Appulonappa is not the first time the SCC has relied on the reasonable hypothetical doctrine. The recent decision in R v Nur,  1 SCR 773 [Nur], struck down the mandatory minimum sentences for possession of a prohibited firearm because they violated section 12 of the Charter “in reasonably foreseeable application to other offenders, but not the specific appellant in question” (para 78). The SCC also relied on reasonable hypotheticals to strike down other mandatory minimum sentences in R v Smith,  1 SCR 1045 [Smith]; R v Goltz,  3 SCR 485; and R v Morrissey,  2 SCR 90. Indeed, by recognizing this doctrine in Appulonappa simply with reference to the Nur holding (and without any further debate, question, or explanation), the SCC appears to have sanctioned the use of reasonable hypotheticals in deciding the constitutionality of legislation.
There are certainly some important policy reasons for adopting the reasonable hypothetical doctrine. First, foresight as to any potential unconstitutional effects of legislation may be worthwhile, given the possibility of preventing future Charter violations. In most cases, there is value in addressing constitutional shortfalls in legislation before they actually impact an individual, rather than waiting for the “right set of facts” to effectively deal with unconstitutional legislation. Additionally, counsel for the appellant in Nur explained the public nature of constitutional litigation in his oral submissions, suggesting that constitutional litigation transcends the individual appellant’s circumstances, and (to adopt the wording of TheCourt.Ca’s Jordan Casey) “allows us to determine who else would be affected by the unconstitutionality of a particular provision.”
However, there is a significant distinguishing feature between mandatory minimums and section 117(1) of the IRPA, which may undermines Nur’s applicability in Appulonappa. Striking down mandatory minimums increases the judge’s discretion upon sentencing, allowing him or her to better tailor the punishment to the crime and the perpetrator. But additional judicial discretion is irrelevant to those offenders who would have received sentences well above the mandatory minimum sentence regardless. For example, take Mr. Charles, a co-appellant in Nur with a “lengthy and serious criminal record,” including numerous prior convictions violent and firearm-related offences (para 29). Even with the mandatory minimum struck down as unconstitutional, a trial judge still retains the discretion to sentence Mr. Charles to a prison term of equal to or greater than the now-defunct minimum sentence. This, in short, allows justice to be served on those parties deserving of hefty punishment, while simultaneously removing grossly disproportionate sentences for defendants with significantly less moral culpability.
Contrast this with the “reasonable hypothetical” adopted in R v Heywood,  3 SCR 761, where the SCC struck down a law prohibiting a person convicted of certain sexual crimes from loitering near a school ground, playground, public park, or bathing area. In that case, the accused was arrested near a playground, photographing young girls with disarranged clothing—thereby engaging in the exact type of conduct the impugned criminal provision prohibited (para 6). When Heywood was heard before the SCC, Justice Cory (for a 5-4 majority) found that the provision was unconstitutionally overbroad. His reasons referenced a “reasonable hypothesis,” stating as follows:
The effect of the section is that it could be applied to a man convicted at age 18 of sexual assault of an adult woman who was known to him in a situation aggravated by his consumption of alcohol. Even if that man never committed another offence, and was not considered to be a danger to children, at the age of 65 he would still be banned from attending, for all but the shortest length of time, a public park anywhere in Canada. The limitation on liberty in s. 179(1)(b) is simply much broader than is necessary to accomplish its laudable objective of protecting children from becoming victims of sexual offences. (para 64)
On that basis, the narrow majority struck down the impugned provision, despite the fact that the accused in that case was engaging in the exact behaviour Parliament constitutionally sought to prohibit. Unlike in the case of Mr. Charles (who still may face a sentence greater than that of the now-defunct mandatory minimum), the reliance on a “reasonable hypotheses” in Heywood effectively (and quite shockingly) allowed the accused to get away with conduct for which he really ought to have been punished.
To What Effect? Constitutionally Remedying a Deficient Section 117(1):
In many ways, Appulonappa shares prominent similarities with Heywood; both involve accused parties challenging the constitutionality of offences on the basis of their overbreadth, not as they apply to themselves, but as they would apply to other hypothetical offenders. Indeed, the appellants in Appulonappa sought the same remedy as the one ordered in Heywood: a complete declaration of invalidity. This remedy was requested in all three of the appellants’ facta, with particularly persuasive arguments set out in Hamlraj Handasamy’s submissions.
Unlike the general approach to remedying unconstitutional legislation applied in Heywood, the court in Appulonappa opted against striking down the legislation in its entirety. Instead, the SCC preferred to read down the provision (in line with the approach taken in Schachter v Canada,  2 SCR 679) in a way that excludes “persons who give humanitarian, mutual or family assistance” (Appulonappa, para 85). The charges of the four appellants were accordingly remitted to trial.
In this way, the ultimate conclusion of this appeal is much more palatable than that of Heywood; despite section 117(1)’s new exceptions, those convicted of illicit human smuggling activities can still be brought to justice. Unlike Mr. Heywood, Mr. Appulonappa and co. were unsuccessful in using the reasonable hypothetical doctrine to evade punishment without a full trial, and in many ways, the unanimous bench (led by Chief Justice McLachlin) came to an effective remedy considering the peculiarities of the case. If nothing else, the satisfactory conclusion of the decision underscores the importance of effective constitutional remedies when dealing with reasonable hypothetical scenarios.