B006 v. Canada (Citizenship and Immigration)

B006 v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2013-10-11
Neutral citation
2013 FC 1033
File numbers
IMM-7523-12
Notes
A correction was made on November 26, 2014.
Reported Decision
Decision Content
Date: 20131011
Docket:
IMM-7523-12
Citation: 2013 FC 1033
Ottawa, Ontario, October 11, 2013
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
B006
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant, known as B006, seeks judicial review of two decisions of the Immigration Division of the Immigration and Refugee Board of Canada [the Board]. In its decision dated July 5, 2012, the Board issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling contrary to paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. In an earlier decision on three preliminary applications, dated November 30, 2011 the Board determined that the conduct of the Minister of Public Safety [the Minister] did not amount to an abuse of process and refused to stay the admissibility proceedings, and, alternatively, refused to exclude interview notes of a Canadian Border Services Agency [CBSA] officer from the admissibility hearing.
[2] The applicant filed an application for leave and judicial review of the preliminary decision of the Board and leave was granted. The applicant then brought a motion to stay the admissibility hearing until a decision was rendered on the judicial review of the preliminary decision. The Court refused to stay the admissibility hearing and it proceeded in April 2012.
Background
[3] B006 is a Tamil from Sri Lanka who arrived in Canada with his seven-year-old son on August 13, 2010 on the MV Sun Sea. The MV Sun Sea was an unregistered ship with 492 migrants on board, all of whom sought refugee protection upon arrival. Their journey from Thailand lasted approximately three months in deplorable conditions on the ship, which was barely sea worthy, dangerously over-crowded and inadequately stocked with food and water.
[4] The applicant was one of the first passengers to board the ship and, because of his past experience working on commercial vessels, was asked to work in the engine room until the Thai crew returned. The Thai crew did not return and the applicant continued to work in the engine room. Upon his arrival in Canada, he applied for refugee status alleging a fear of persecution by Sri Lankan authorities based on years of abuse, including extortion, arbitrary detention and torture.
[5] The applicant was held in detention for approximately 10 months and was interviewed and interrogated on several occasions by CBSA officers.
[6] The Minister initially alleged that the applicant was inadmissible to Canada for security reasons pursuant to paragraph 34(1)(f) of the Act. The CBSA officers repeatedly asserted that confidential informants had provided information about the applicant, including that he had worked on board the Omiros in the 1990s, a vessel owned by the Liberation Tigers of Tamil Eelam [LTTE], and that he was a member of the Sea Tigers, the naval wing of the LTTE.
[7] At each 30 day detention review hearing, the Minister alleged that the applicant was a member of the LTTE. At the June 2011 detention review hearing, the Minister abandoned the allegations of LTTE membership and focused on the applicant’s inadmissibility due to people smuggling. Given the absence of any evidence to support the section 34 criteria, the Board scheduled a detention review hearing and released the applicant.
[8] The Minister also alleged that the applicant had engaged in people smuggling due to his role as a crew member on the MV Sun Sea and was inadmissible on grounds of organized criminality under paragraph 37(1)(b) of the Act, which provides:
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
[…]
b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.
37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
[…]
b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.
The Board’s decision regarding the abuse of process allegations
[9] The applicant alleged that his rights had been breached by the Minister for three reasons: the Minister relied on interviews from unnamed people; the Minister did not provide full disclosure of the interviews; and the Minister’s representative, CBSA Officer Lane, engaged in abusive interview tactics.
[10] The applicant brought three applications: (1) to exclude the declarations of two CBSA officers (Officers Puzeris and Gross) which included interview notes regarding the applicant’s role on the ship and interview notes with a confidential informant; (2) an Order to require the Minister to disclose the complete transcripts of all the interviews with the applicant, his wife and family members; and, (3) to exclude the interview notes between CBSA Officer Lane and the applicant and/or to grant a stay of proceedings.
[11] On June 17, 2011, before the hearing on the three applications commenced, the Minister provided the interview notes and audio recordings.
[12] On the second day of the hearing, June 23, 2011, the Minister advised the Board that he would not be pursuing the section 34 allegation that the applicant was inadmissible due to membership in the LTTE because there was insufficient information to support the allegation.
[13] The Board noted that this was a surprise given that the Minister had asserted that multiple confidential informants had said that B006 had been a member of the Sea Tigers and that the CBSA officers had repeatedly accused the applicant of lying about such membership, although he had consistently denied it. As noted above, following receipt of this information, the Board scheduled a detention review hearing and the applicant was released from detention on June 27, 2011.
[14] The Board also granted the application to exclude the declarations of Officer Puzeris and Gross which provided confidential informant evidence.
[15] The only issue remaining to be addressed by the Board was the allegation that Officer Lane’s interview tactics amounted to an abuse of process warranting a stay of proceedings or alternatively, that the interview notes should be excluded. The Board noted, however, that the applicant’s allegation remained that the Minister’s overall conduct constituted an abuse of process.
[16] The Board found that it had the jurisdiction to stay an admissibility hearing in rare cases but that a stay was not justified in this case.
[17] The Board referred to and considered the criteria established in Canada (Minister of Citizenship and Immigration) v Parekh, 2010 FC 692 at para 60, [2010] FCJ No 856 [Parekh], that: (1) prejudice caused by the abuse will be manifested, perpetuated or aggravated through the conduct of the trial (or proceeding) or its outcome, and (2) no other remedy is reasonably capable of removing that prejudice.
[18] With respect to the applicant’s request to have the evidence of the interviews excluded, the Board acknowledged that Officer Lane had overstated the strength of the information the CBSA had against the applicant, accused the applicant of lying 14-15 times during the interviews, and aggressively questioned the applicant. The Board also expressed concerns about omissions from the notes.
[19] The Board denied the application for exclusion on the basis that the notes would not prejudice the applicant at his admissibility hearing given that he remained consistent in his testimony and denied having been a member of the LTTE.
[20] The Board also noted that the applicant was represented by counsel at the time of Officer Lane’s interviews and that he never advised the Board that he felt threatened or intimidated by the Officer.
The Board’s decision regarding Admissibility
[21] The Board found reasonable grounds to believe that the applicant is a foreign national who engaged in people smuggling and was therefore inadmissible to Canada pursuant to paragraph 37(1)(b) of the Act.
[22] The Board considered the submissions of the parties regarding the appropriate definition of people smuggling. The applicant submitted that the definition should be guided by the definition of human smuggling in Article 3(a) of the UN Convention Against Transnational Organized Crime and the Protocol Against the Smuggling of Migrants by Land, Sea and Air [the Protocol] whereby an element of material or financial gain is required. The Minister argued that there was no element of material benefit or financial gain and that the definition should be guided by subsection 117(1) of the Act, which at that time provided:
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.
117. (1) Commet une infraction quiconque sciemment organise l’entrée au Canada d’une ou plusieurs personnes non munies des documents — passeport, visa ou autre — requis par la présente loi ou incite, aide ou encourage une telle personne à entrer au Canada.
[23] The applicant also submitted that he did not meet the definition in subsection 117(1) of the Act because he did not know that the passengers on board the MV Sun Sea were traveling without proper documentation and alternatively, his work on the ship, to the extent that it would be considered aiding persons to come into Canada, was performed under duress.
[24] The Board relied on the jurisprudence and concluded that the definition of people smuggling under paragraph 37(1)(b) of the Act is guided by section 117, which requires four elements to be met:
i) the person being smuggled did not have the required documentation to enter Canada;
ii) the person was coming into Canada;
iii) the person concerned (i.e., the applicant) was organizing, inducing, aiding or abetting the person to enter Canada; and
iv) the person concerned (i.e., the applicant) had knowledge of the lack of required documents.
[25] The Board found that at least 451 of the passengers did not have proper documentation. The Board also found that the route chosen by the MV Sun Sea was clearly intended for Canada and that the applicant himself testified that he knew the ship was destined for Canada.
[26] The Board acknowledged that there was no evidence that the applicant was involved in organizing the MV Sun Sea operation. The Board found, however, that whether or not he knew he would be a crew member before he boarded, by agreeing to work in the engine room, he aided the other passengers on the ship to come to Canada.
[27] The Board noted the applicant’s testimony that he did not think there was any way he could leave the ship because he had no passport and no authorization to be in Thailand and he feared what would happen to him and his son there and also feared that if he returned to Sri Lanka he would be tortured.
[28] The Board rejected the applicant’s submission that he acted under duress. The Board referred to and relied on the three elements of the defence of necessity or duress established in R v Perka, [1984] 2 SCR 232, 13 DLR (4th) 1 [Perka]: (1) a threat of immediate peril or danger; (2) no legal alternative to the course of action taken; and (3) proportionality between the harm inflicted and the harm avoided.
[29] The Board found that there was no evidence of threats of immediate harm. The Board also found that the ship had remained close to shore in Thailand for three months and while the applicant may have speculated what would happen to him if he returned to Thailand without a passport, this does not constitute evidence of imminent danger. The applicant still owed $30,000 to his agent and the Board found the applicant’s evidence that he could not get in touch with his agent in Thailand, who had his passport, to not be credible.
[30] The Board rejected the applicant’s assertion that he did not know that the passengers did not have valid travel documents. The Board found that the applicant’s own experience working on a commercial ship would have caused him to know that a passport was needed to enter a country legally. The applicant had given his passport to his agent. The Board did not accept his excuse that his agent told him that he did not need a passport to make a refugee claim in Canada. The Board further found that it would have been obvious to the applicant when he promised to pay his agent $30,000 and when he saw the condition of the MV Sun Sea that he was not coming to Canada by legal means. He knew he could not travel to Canada commercially without a passport or visa whether to claim refugee status or not. The Board, therefore, found it implausible that he was not aware that other passengers were in the same situation without documentation.
[31] The Board found that all four elements of the definition of people smuggling had been met, and concluded that there were reasonable grounds to believe that the applicant is a foreign national who engaged, in the context of transnational crime, in people smuggling.
The issues
[32] The two broad issues are whether the Board erred in finding that a stay of proceedings is not justified and whether the Board’s finding that the applicant is inadmissible pursuant to paragraph 37(1)(b) is reasonable. The applicant raised several specific issues which will be addressed in responding to the broader issues.
Standard of review
[33] The applicant submits that the standard of correctness applies to the articulation of the test for abuse of process and that the Board did not apply the correct test because it found that actual prejudice was a precondition for a finding of abuse of process.
[34] The applicant agrees that questions of mixed fact and law would be reviewable on the reasonableness standard and the Board’s application of the correct test to the facts would be reviewed accordingly.
[35] I agree that the standard of correctness applies to the articulation of the legal test for abuse of process. However, I do not agree that the Board misstated the test. The Board acknowledged the case law that has established the test and how that test had been applied to different fact situations. The Board captured the key aspects of the correct test and adapted it to the circumstances before it and applied it appropriately.
[36] The standard of review for both the Board’s determination that there was no abuse of process and the Board’s determination that the applicant was inadmissible pursuant to paragraph 37(1)(b) is that of reasonableness.
[37] The Federal Court of Appeal, in B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 at paras 60-72, [2013] FCJ No 322 [B010],confirmed that the standard of review to be applied to the Board’s interpretation of people smuggling in paragraph 37(1)(b) is that of reasonableness and that deference is owed.
[38] The role of the Court is, therefore, to determine whether the decision under review “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190). Several outcomes may be reasonable and “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339).
Abuse of Process
Did the Board err in law by failing to consider the misconduct complained of on a cumulative basis?
Did the Board err in ignoring specific egregious conduct by the Minister?
[39] The applicant submits that the conduct of the Minister, through his representatives, CBSA Officers, must be considered cumulatively to determine whether a stay of proceedings is justified.
[40] The applicant alleged the following misconduct by the Minister’s representatives: reliance on confidential informant information; failure to disclose all the relevant material to the applicant and to the Board; reliance on an altered (i.e., incomplete) transcript of interviews; misleading submissions on the strength of the case against the applicant which contributed to his prolonged detention; abusive interrogations by Officer Lane, which included threats, lies, and trickery; breach of the applicant’s right to counsel by Officer Lane; and, offering false inducements, for example, that if the applicant told the truth it would be helpful to any Ministerial relief application.
[41] The applicant submits that in addition to ignoring some of the specific misconduct, in particular the breach of the applicant’s right to counsel and the offer of false inducements to the applicant and the applicant’s wife, the Board failed to consider the totality of the other misconduct, including that which it provided remedies for.
[42] The applicant argues that in the course of an interview, Officer Lane told the applicant that he would be writing a section 44 report, but continued to question the applicant after the applicant indicated he wanted to consult counsel.
[43] The respondent submits that the Board considered all the misconduct alleged individually and cumulatively.
[44] The respondent submits that the Minister was entitled to attempt to introduce confidential informant testimony and any deficiencies in that evidence would have been taken into account in attributing the appropriate weight. Moreover, the applicant suffered no prejudice since the Board excluded the evidence.
[45] The respondent notes that it disclosed what it considered to be relevant in accordance with the Act. Moreover, the Minister later agreed to provide the requested material. Therefore this can not be considered abusive or misconduct.
[46] The respondent appears to agree that the interview notes should have indicated that they were a summary, but regardless, the omissions do not amount to abuse, nor does the error with respect to the duration of the interview with the applicant’s wife.
[47] The respondent notes that information was evolving in the investigation regarding the MV Sun Sea and the fact that the information from the informants was later found not to be reliable does not mean that relying on it at the earlier detention reviews was abusive. The Officers had reason to believe the applicant was linked to the LTTE and/or Sea Tigers given that his brother was a member of the LTTE, the applicant had worked on the LTTE ship, the Omiros, in the 1990s and the applicant had lied about both of these facts in early interviews.
[48] The respondent submits that Officer Lane’s interviewing techniques were not abusive. Given the scope and complexity of the MV Sun Sea investigation, the belief that the applicant was linked to the LTTE and his earlier misrepresentations, the style of accusatory questioning was not excessive. The respondent also submits that the Officer did not offer any inducement by advising the applicant and his wife that telling the truth would serve the applicant well in any Ministerial relief application.
[49] In looking at the conduct individually and cumulatively, the respondent submits that it does not come close to being one of the “clearest of cases” to justify a stay of proceedings.
The Board considered the conduct individually and cumulatively
[50] Reading the reasons as a whole I find that the Board did consider all the allegations of misconduct individually and cumulatively. Although the only issue that remained to be addressed by the Board was the abusive interrogation tactics of Officer Lane, the Board was aware of and considered the broader circumstances, including the late disclosure and the section 34 allegations. The Board specifically addressed the allegations that the applicant had been denied his right to counsel, but as noted by the respondent, the applicant had indicated that he would speak with his counsel the next day and did not assert that he could not continue with the questioning.
[51] The Board made several critical comments about the interrogation or interview tactics as a whole but did not conclude that these tactics amounted to an abuse of process.
[52] For example, the Board observed that Officer Lane’s methods of questioning were “unlike anything” it had “previously observed from a CBSA officer” and that he had “proceeded in a far more aggressive manner than I have so far observed being taken in interviews of refugee claimants”.
Did the Board err in law in its articulation of the test for abuse of process?
Did the Board reasonably conclude that the test for abuse of process warranting a stay of proceedings was not met?
[53] The applicant submits that the Board erred in law in finding that actual prejudice was a precondition for a finding of abuse of process.
[54] The respondent submits that the Board applied the correct test; it considered whether the administration of justice would be brought into disrepute and whether the community’s sense of fair play would be offended by continuing with the proceedings. However, the applicant simply did not establish that the misconduct alleged would prejudice the integrity of the justice system. To rise to the level of abuse of process, the conduct must cause actual prejudice to the fairness of the proceedings or to the public’s confidence in the integrity of the justice system and this conduct did not reach that threshold.
The Board applied the correct test and reached a reasonable conclusion
[55] As noted above, I do not agree that the Board erred in articulating the test for abuse of process nor do I agree that the Board found that prejudice was a precondition to a determination that an abuse of process had occurred.
[56] The case law, including R v Nixon, 2011 SCC 34, [2011] 2 SCR 566 [Nixon], establishes that prejudice to the accused (in a criminal prosecution) is not determinative of abuse of process, but is relevant.
[57] In Nixon, the Supreme Court of Canada noted at para 41:
Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in most cases the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases, is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice….
[58] The Court went on to note that a balancing was required.
[59] And at para 42, the Court noted:
The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused's fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be appropriate when: "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice" (Regan, at para. 54, citing O'Connor, at para. 75). [My emphasis]
[60] In Parekh, Justice Tremblay-Lamer considered whether an abuse of process resulted from a lengthy delay in processing of a citizenship application, and characterized the test for abuse of process, at para 24:
24 Generally speaking, a court will find that an attempt to apply or enforce legislation has become an abuse of process when the public interest in the enforcement of legislation is outweighed by the public interest in the fairness of administrative or legal proceedings; see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 120, where the test is set out as follows:
In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” [Donald JM Brown & John M Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback, 1998 (loose-leaf) at p 9-68]. According to L'Heureux-Dubé J. in [R v Power, [1994] 1 SCR 601, 89 CCC (3d) 1 [Power]], at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive.
[61] The Board did not find that actual prejudice to the applicant was a condition precedent to abuse of process, but the Board did consider whether he would suffer prejudice, as prejudice is a relevant factor which would inform the fairness of the admissibility hearing and would inform whether remedies short of a stay are appropriate. As noted in Power (cited by Justice Tremblay-Lamer in Parekh), a stay of proceedings is a last resort to be relied on only in the clearest of cases.
[62] The Board referred to the case law that establishes the test for abuse of process in the administrative law context. The Board noted specifically the cases that dealt with delay, including Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 [Blencoe], Beltran v Canada (Minister of Citizenship and Immigration), 2011 FC 516, [2011] FCJ No 633, and Parekh, which noted the need to consider whether the Minister’s actions would bring the “administration of justice into disrepute’’ or “ offend the community’s sense of fair play” if the proceedings continued.
[63] The Board stated that it applied the test which was set out in Blencoe and the criteria set out in Parekh: (1) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice.
[64] The Board considered both criteria and determined that although B006 may have suffered distress in the interview process, that distress would not be manifested, perpetuated or aggravated by proceeding with the admissibility hearing. In addition, the interview notes would not prejudice B006 because he consistently denied his involvement with the LTTE.
[65] The applicant argues that the Board only assessed prejudice from the perspective of the applicant and did not analyze the harm that would result to the integrity of the justice system or to the community’s notion of decency.
[66] The Board addressed the conduct which it found to be bordering on abusive and provided specific remedies. The Board then addressed the remaining allegations within the broader context of what the applicant had experienced, including his detention and the abandonment of the allegations pursuant to section 34.
[67] The tests for abuse of process considered by the Board were developed to address different scenarios, primarily in criminal proceedings. None of the tests that the applicant submitted to the Board were the perfect fit for the applicant’s allegations of abuse. However, the Board considered the legal tests, adapted them and applied them to the allegations of misconduct in the admissibility proceedings. In concluding that the remedy of a stay was not warranted, it is apparent that the Board considered the bigger picture including the integrity of the justice system.
[68] The Board applied the correct test and reasonably concluded that the remedy of a stay of proceedings was not justified. Similarly, the Board reasonably concluded that the notes of the four interviews in question should not be excluded. The Board noted the interview tactics were aggressive and intimidating but did not produce any evidence that would be prejudicial to the applicant.
[69] It must be kept in mind that 492 persons arrived on the MV Sun Sea. The applicant was a member of the crew. The Minister had reasonable grounds to believe that the applicant was a member of the LTTE. The lengthy, repetitive and badgering questioning was clearly stressful and emotionally draining for the applicant, but this cannot, on its own, meet the test for abuse of process in an investigation as complex and large as this one.
Should the Court Find Abuse of Process and direct the Board to Stay the Proceedings?
[70] I have found that the Board did not err in its application of the test for abuse of process and reasonably found that a stay of proceedings was not justified. Therefore, it is not necessary to address this issue.
Did the Board err in finding that section 7 is not engaged?
[71] The applicant submits that the Board erred in finding that section 7 of the Charter was not engaged. Although the applicant agrees that section 7 would not be dispositive of the abuse of process issues, he submits that section 7 applies to the breach of the applicant’s right to counsel during one interview and to the issue of the overbreadth of section 37, which, in the applicant’s submission, would capture the conduct of aid workers and others who assist refugees to flee.
[72] The respondent submits that section 7 is simply not engaged on an admissibility hearing and that the time to assess risk would be at the time of removal.
[73] The issue of overbreadth is addressed below. As noted above, the Board considered the applicant’s allegation that he was denied his right to counsel and reasonably concluded that he was not.
Admissibility
Did the Board err in interpreting paragraph 37(1)(b) of the Act by relying on section 117 of the Act, an overbroad provision which has been found to be unconstitutional?
[74] The Board did not err in relying on section 117 to guide the interpretation of people smuggling in paragraph 37(1)(b).
[75] In B010, the Federal Court of Appeal confirmed that people smuggling as contemplated in paragraph 37(1)(b), which provides that a person is inadmissible on grounds of organized criminality for “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” does not require that there be any financial or material benefit for the smuggler. The Court of Appeal answered a certified question as follows, at para 8:
Yes, it is reasonable to define inadmissibility under paragraph 37(1)(b) by relying upon subsection 117(1) of the Immigration and Refugee Protection Act, which makes it an offence to 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 the Act. To do so is not inconsistent with Canada’s international legal obligations.
[76] When relying on the elements of the section 117 offence as the conduct that will form the basis of a finding of inadmissibility under section 37, it is important to keep in mind that different standards of proof apply.
[77] The criminal standard of proof applies to section 117, which sets out the elements of a criminal offence, each of which would have to be proved beyond a reasonable doubt for a conviction. Section 37 sets out grounds upon which a person is inadmissible to Canada, which includes engaging in people smuggling in the context of transnational crime. The standard of proof is set out in section 33; the facts that constitute inadmissibility include facts for which there are reasonable grounds to believe have occurred, are occurring, or may occur. This standard of proof is greater than a mere suspicion but less than the civil standard of proof on a balance of probabilities and far less than the criminal standard of proof.
[78] Therefore, a person could be found inadmissible based on reasonable grounds to believe they have engaged in people smuggling, but not charged, or if charged, not convicted of the offence under section 117, due to the inability to prove each element beyond a reasonable doubt.
[79] With respect to the applicant’s submission that section 117 should not be relied on because it has been found unconstitutional due to overbreadth by the British Columbia Supreme Court in R v Appulonappa, 2013 BCSC 31, [2013] BCJ No 35 [Appulonappa], I remain guided by the Federal Court of Appeal in B010.
[80] The Court of Appeal noted at paras 88 and 90-91 that defining inadmissibility due to people smuggling with reference to section 117 would not place Canada in breach of the Refugee Convention because a finding of inadmissibility is not the same as removal from Canada. There are protections available for a person found inadmissible and, at the time of removal, any risk would be assessed. Therefore, concerns about overbreadth and, in particular, the applicant’s allegations that section 117 could capture aid workers or other family members who assist refugees, which do not apply in the present case, were addressed by the Federal Court of Appeal.
[81] The Court of Appeal also noted at para 93 that inadmissibility proceedings are initiated pursuant to section 44, which provides that an officer may prepare a report:
[93] The preparation of a report is permissive, that is, an officer “may” prepare a report. As well, the Minister’s delegate “may” refer the report to the Immigration Division. It is to be expected that common sense will prevail in situations such as when family members simply assist other family members in their flight to Canada, or when a person acting for humanitarian purposes advises a refugee claimant to come to Canada without documents. [My emphasis]
[82] In addition, as noted by the respondent, the Court of Appeal was aware of the decision of the British Columbia Supreme Court in Appulonappa and chose not to specifically refer to it. This may indicate that the Court did not consider it to be relevant to the issues before it. Regardless, the Court addressed the argument that section 117 cast the net too wide.
Did the Board err in finding the applicant inadmissible under paragraph 37(1)(b) of the Act because the Board erred in finding that he was aware that the other passengers did not have the required documents?
[83] The applicant submits that there was no reason to doubt his credibility and his evidence that he knew that one passenger held his own passport but he did not know whether other passengers had passports. The applicant’s evidence was that he did not believe that a passport or visa was required to enter Canada as a refugee. This belief was based on what he had heard from his agent and his experience while he worked on a commercial ship and observed two crew members jumping overboard to seek refugee status in Italy.
[84] The applicant submits that the Board erred by asking itself the wrong question when assessing whether the applicant had knowledge that the passengers lacked documents to enter Canada legally rather than as refugees. The applicant argues that there is no requirement in the Act for a refugee to have a valid travel document or visa in order to claim refugee status and be admitted to Canada.
The Board did not err in finding that the applicant had the requisite knowledge
[85] Section 117 sets out the elements of the offence of aiding or abetting persons to enter Canada illegally, or as the marginal note describes “organizing entry into Canada”. That offence is to be distinguished from the offence of trafficking in persons in section 118, which addresses the conduct of those who bring persons into Canada against their will. As noted, where a person is charged with the offence under section 117 or 118, the Crown would have to prove each element of the offence beyond a reasonable doubt. The use of different terms in the same legislation with different standards of proof – “people smuggling” in section 37 and the heading of “human smuggling and trafficking” in Part 3 and the offence of “organizing entry into Canada” in section 117 and of “trafficking in persons” in section 118 – has resulted in countless legal arguments about how the provisions are to be interpreted and reconciled.
[86] The Federal Court of Appeal clarified a significant part of the debate in B010. To determine if a person is inadmissible under section 37 for engaging in people smuggling, the elements set out in section 117 will guide the determination of whether the person has been so engaged. However, as noted above, the standard of proof for a finding of inadmissibility is reasonable grounds to believe, which is far lower than the criminal standard of proof.
[87] The Board considered the four elements and found that there were reasonable grounds to believe that each element was satisfied: the vast majority of the passengers did not have documents; the ship was destined for Canada; the applicant worked in the engine room and in doing so, aided the passengers to come to Canada; and, the applicant knew the passengers did not have the required documents.
[88] The Board acknowledged that there was no evidence that the applicant was involved in organizing the MV Sun Sea operation, but by agreeing to continue to work in the engine room when the Thai crew did not return, he aided the ship coming into Canada.
[89] Although the applicant’s evidence overall may have been credible, the Board did not find the applicant’s evidence with respect to his awareness of the status of the other passengers to be credible.
[90] The Board reasonably found that the applicant’s own experience working on a commercial ship would have caused him to know that a passport was needed to enter a country legally. In addition, I agree with the Board that it should have been apparent to the applicant that the ship was not traveling to Canada legally.
[91] The applicant knew that, like him, other passengers had paid significant amounts of money to travel on the dilapidated boat which was obviously a poor alternative to commercial transportation; he knew a passport was needed to enter a country legally; he had handed over his own passport to his agent; and, he claimed that he could not get off the ship in Thailand because he had no passport. The applicant cannot, on the one hand, claim he feared what would happen to him without a passport and, on the other, claim that he did not know a passport was needed to travel to Canada.
[92] The Board reasonably found it implausible that the applicant would not be aware that other passengers were in the same situation as he was – without a passport.
[93] With respect to the applicant’s argument that no passport is needed to claim refugee status, the Federal Court of Appeal addressed this issue in B010 at para 98, finding that the clear wording of subsection 20(1) requires foreign nationals who seek to enter Canada to possess a visa or other document.
[94] The Court of Appeal noted, at para 99:
[99] While, pursuant principles of refugee law, refugee claimants may be excused from the consequences of arriving without proper documentation, this does not mean that there is no requirement to possess documentation. If the appellant’s submission on this point were accepted, no one could ever be found inadmissible for people smuggling if the p