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

10th Jul 2014 Comments Off on 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;

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