Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law

Meurrens LawInadmissibility, Refugees

The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“).  Section 117 theoretically prohibited human smuggling.  Its exact wording was:

117. (1) 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.

(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

(a) on conviction on indictment

(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

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

As the BCSC noted, it is legitimate, necessary, and laudable for the Canadian government to attack and criminalize what is commonly referred to as human smuggling.

The problem with the wording of s. 117 of IRPA though is that it was incredibly vague.  Did it make humanitarian workers who provided food to people who came to Canada without the proper documents criminals?  If a refugee claimant who used a smuggler to come to Canada visited a family member then was that family member a criminal?  What about lawyers who represented such individuals in court?

The Canadian government argued that such people were obviously not intended to be prosecuted by the legislation, and that they would never would initiate proceedings against them.  However, while the government’s expressed intention to not prosecute such people was clear, this intention was not written anywhere in Canadian immigration law.  As the BCSC stated:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPAand Article 31 of the Refugee Convention), why is it a crime to assist such a refugee to arrive?

It is clear that s. 117 makes no distinction for the persons involved or reasons behind the transport to and entrance into Canada, or whether or not the accused person has profited from the transportation of persons into Canada.  This is different from the definition in the Migrant Smuggling Protocol which indicates that smuggling is an activity which occurs in order to obtain “a financial or other material benefit”.

The Crown points to no valid objective for the section to be so wide that it captures such persons referred to in the hypotheticals.

The overbreadth of the section makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges under s. 117, despite Canada’s intention to the contrary.  One of the reasons for the rule against overbroad sections is that persons are entitled to prior notice as to what are the limits of proper behaviour, and what is criminal behaviour.

The BCSC accordingly found that s. 117 of IRPA was overbroad, and struck the law entirely.

The Crown is now appealing.

While it is certainly annoying to watch individuals “get away” with a crime because of poorly drafted legislation, I believe that the problem of overbroad legislation combined with complete prosecutorial discretion is far more serious, and warrants serious attention from the public.   Conservative writer David French recently wrote in the National Review on this issue that:

Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion? As many others have noted, the regulatory state makes ever-more conduct — even benign conduct — unlawful, while absolute discretion grants the prosecutor the right of the King’s pardon. Overlay that legal reality with a stark red/blue divide, and the situation is ripe for the most base forms of political and personal favoritism. Glenn Reynolds (Instapundit) has been all over this issue, and I love his phrasing: “Due process when everything is a crime.”

Glenn Reynolds, author of Instapundit, recently published a short article on this issue.  I encourage you to read it in its entirety.


Reynolds, Glenn Harlan, Ham Sandwich Nation: Due Process When Everything is a Crime (January 20, 2013). Available at SSRN: http://ssrn.com/abstract=2203713