Human Smuggling – A Very Broad Offence [Updated – December 3, 2015]

A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation.

A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent.

When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada it was unclear until November 2015 if the offence of “human smuggling” encompassed the above two scenarios, when the Supreme Court of Canada issued its decision in R v. Appulonappa, 2015 SCC 59.

Background to Appulonappa

Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states:

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.

No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

IRPA s. 117 is very broad, and consists of the following four elements:

  1. The person being smuggled did not have the required documents to enter Canada;
  2. The person was coming into Canada;
  3. The accused organized, induced, aided, or abetted the person to enter Canada; and
  4. The accused knew the person lacked the required documents for entry.

Prior to their trial, the accused brought an application before the British Columbia Supreme Court (“BCSC”) for an order declaring that IRPA s. 117 infringed s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”), which states:

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.

Generally, legislation that is overbroad will not be in accordance with the principles of fundamental justice, and breach s. 7 of the Charter. Overbroad legislation is that which interferes with conduct that bears no connection with the legitimate state objective that necessitated the creation of the offence. As the Supreme Court of Canada stated in Canada (Attorney General) v. Bedford, 2013 SCC 72:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

The accused in Appulonappa argued that the objective of IRPA s. 117 was to deter and penalize only those who engage in international human smuggling for material gain, but that the offence was overbroad as it criminalized the actions of individuals including humanitarian workers or family members who, for altruistic reasons, assist refugee claimants in entering Canada illegally. The BCSC agreed.

The BCCA Appulonappa Decision

The BCCA overturned the BCSC’s decision. It is interesting to note that during the appeal the Crown changed its position on why IRPA s. 117 is not overbroad.

At the BCSC, the Crown argued that IRPA s. 117 was enacted to stopping human smuggling, and that the offence would not result in humanitarians and family members being charged with human smuggling because the Attorney General would exercise his discretion to preclude such prosecutions. In essence, the Crown was arguing that the scenarios mentioned at the start of this blog post did not constitute human smuggling.

At the BCCA hearing, however, the Crown reversed its position, and argued that IRPA s. 117 applies universally without regard to the motive of those who provide assistance in entering Canada to undocumented refugee claimants.

The BCCA agreed, and affirmed that motive is not a constituent element of human smuggling. Rather, the motivation of an individual convicted of human smuggling is rather relevant only as an aggravating factor for the purpose of sentencing. It also affirmed that IRPA s. 117 criminalizes the actions of anyone who provides assistance to persons entering Canada illegally without the required entry documents. It explicitly found that a person whose motive is to assist a family member, or whose motive is for altruistic purposes, is encompassed by IRPA s. 117. Indeed, as the BCCA noted at para. 108 of its decision:

An examination of the terms “humanitarian” or “altruistic” demonstrates the legitimacy of these concerns. Such words are inherently subjective and imprecise, and rest on motive alone. Can one be a self-declared humanitarian? Will membership in any non-governmental organization, church, or a registered charity suffice? Is it enough that one does not profit from providing assistance? A question of purity of motive arises as well. I note those addressing this issue, including the parties and the trial judge, tend to preface the word “humanitarian” with descriptive terms such as “genuine”, “legitimate”, or “bona fide”, which suggests there exists a class of less reputable humanitarians who should not be exempt from charges. Hypotheticals can be portrayed from both sides that demonstrate the multiple factors at play. For example, should a humanitarian motive forestall charges in situations that compromise the integrity and efficiency of Canada’s refugee procedures? What of a person who, though well-intentioned, repeatedly, and after warnings, persists in assisting large numbers of refugee claimants to enter Canada illegally? What if those assisted, having jumped the queue, are routinely found to be illegal aliens rather than “genuine” refugees?

The Supreme Court of Canada Decision

The Supreme Court of Canada allowed the appeal, and read down Canada’s human smuggling laws so that they do not encompass persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members).  It found that IRPA s. 117 is aimed at activity in connection with the smuggling of persons in the context of organized crime, as contrasted with providing humanitarian assistance or aiding close family members to enter a country without the required documents.

It stated:

While the security goals of the IRPA  and the amendment that became s. 117  are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected.   This is accomplished by interpreting s. 117  as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid.  Under the Crown’s interpretation of s. 117 , a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA  and the amendment that became s. 117 .


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