B010 v. Canada (Citizenship and Immigration)

B010 v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-03-22
Neutral citation
2013 FCA 87
File numbers
A-194-12, A-195-12
Notes
Reported Decision
Decision Content
Date: 20130322
Dockets: A-195-12
A-194-12
Citation: 2013 FCA 87
CORAM: EVANS J.A.
DAWSON J.A.
STRATAS J.A.
Docket: A-195-12
BETWEEN:
B010
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
--------------------------------------------------------------
Docket: A-194-12
BETWEEN:
B072
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Vancouver, British Columbia, on February 7, 2013.
Judgment delivered at Ottawa, Ontario, on March 22, 2013.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: EVANS J.A.
STRATAS J.A.
Date: 20130322
Dockets: A-195-12
A-194-12
Citation: 2013 FCA 87
CORAM: EVANS J.A.
DAWSON J.A.
STRATAS J.A.
Docket: A-195-12
BETWEEN:
B010
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
---------------------------------------------------------------
Docket: A-194-12
BETWEEN:
B072
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] Individuals referred to in the proceedings below as B010 and B072 were each on board the MV Sun Sea when it arrived in Canadian waters on August 13, 2010, carrying 492 Sri Lankan migrants. After their arrival in Canada, B010 and B072 were reported to be inadmissible to Canada under paragraph 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[2] Paragraph 37(1)(b) of the Act defines a permanent resident or foreign national to be inadmissible to Canada on grounds of organized criminality for “engaging, in the context of transnational crime, in activities such as people smuggling […]”. B010 was reported to be inadmissible on the basis of his alleged role as a crew member of the MV Sun Sea. B072 was reported to be inadmissible as a result of his alleged involvement in the organization and preparation of the MV Sun Sea operation.
[3] On July 6, 2011, the Immigration Division of the Immigration and Refugee Board of Canada (Board) found B010 to be inadmissible as alleged. A similar finding of inadmissibility was reached by the Board on November 10, 2011, in respect of B072. In both decisions the Board concluded that the phrase “people smuggling”, as used in paragraph 37(1)(b) of the Act, was defined by subsection 117(1) of the Act. Subsection 117(1) creates an offence: it prohibits a person from knowingly organizing, inducing, aiding or abetting 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.
[4] Both B010 and B072 sought judicial review in the Federal Court of the Board’s decisions. In careful and thoughtful reasons, Justice S. Noël dismissed the application for judicial review brought by B010 (2012 FC 569, [2012] F.C.J. No. 594). Justice Noël stated and certified the following serious question of general importance:
For the purposes of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than a definition contained in an international instrument to which Canada is a signatory?
[5] In respect of B072’s application for judicial review, Justice Hughes of the Federal Court issued a brief endorsement in which he dismissed the application for the reasons given by Justice Noël in B010’s case. Justice Hughes briefly disposed of two additional arguments raised by B072, and certified the same question as that certified by Justice Noël.
[6] B010 and B072 now appeal to this Court. By an order made on consent, their appeals were heard together. A copy of these reasons will be placed on each court file.
[7] The principal issue raised on these appeals is whether the decisions below should be set aside on the ground that the term “people smuggling” in paragraph 37(1)(b) requires that an alleged smuggler receive some material benefit as a result of his or her role in the smuggling venture.
[8] For the reasons that follow, I have concluded that people smuggling does not require that a material benefit be conferred upon the alleged smuggler. I would dismiss each appeal and answer the certified question as follows:
Question: For the purposes of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than a definition contained in an international instrument to which Canada is a signatory?
Answer: 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.
FACTS
[9] The following brief summary of the facts will situate the circumstances of each appellant.
B010
[10] B010, a Tamil, testified before the Board that he lived in Sri Lanka in territory historically controlled by the Liberation Tigers of Tamil Eelam (LTTE). He worked as a driver, a mechanic and a fisherman. After the Sri Lankan Government gained control of the territory, the Sri Lankan Army, police and paramilitary forces detained B010 on several occasions. He decided to leave Sri Lanka when he was ordered to report to a camp from which, his wife’s relatives had told him, detainees did not return. He contacted his sister in Norway for assistance and was smuggled to Thailand.
[11] B010 further testified that he stayed in Thailand for two months. While there, he met a smuggler, Piraba, who arranged for B010 to come to Canada. B010 was among the first to board the MV Sun Sea. According to B010, when he boarded the vessel there were several Thai crew members on board. The Thai crew members later left, leaving the ship without a crew. B010 said that he was then asked to serve as a crew member because of his expertise with engines. He agreed and worked for 6 hours a day: serving 3 hours during the day and 3 hours each night. B010 was responsible for checking the engine temperature, water and oil levels. B010 denied that he received remuneration or better accommodation or food during his voyage in exchange for his work in the engine room. He testified that he secured his accommodation because he boarded first and had his choice of accommodations. In statements to members of the Canada Border Services Agency (CBSA), B010 denied any knowledge that his food rations were superior to those of other passengers.
B072
[12] B072, also a Tamil, did not testify before the Board. His statements about his participation in the operation and his experience in Sri Lanka changed over multiple interviews with representatives of the CBSA. According to B072, he worked as an auto mechanic in Sri Lanka in LTTE-controlled territories. He did not want to join the LTTE, and married in 2008 partly to avoid being drafted into the LTTE. He left LTTE territory two months after his marriage, eventually making his way to Colombo, Sri Lanka and then Bangkok, Thailand. His wife arrived in Bangkok some time later. B072 claimed that he stayed in Bangkok for two years. His departure for Canada was financed by his wife’s parents. The smuggler Piraba facilitated his entire journey.
[13] B072 admitted that he proposed the name for the corporation that bought the MV Sun Sea and that he signed the incorporating documents for the corporation, because, he said, the smugglers told him to do these things. He also claimed that the smugglers instructed him to sign a cashier’s cheque in the approximate amount of $150,000 USD which was immediately cashed. B072 also admitted to assisting the smugglers by loading food and other equipment bound for the MV Sun Sea. As they were preparing to load the materials into a van, he and others were caught and arrested by the Thai police. B072 claimed that when he was arrested a member of the smuggling operation instructed him to tell the police that he bought the goods in the company’s name. B072 claimed that he had no active role on board the MV Sun Sea during its voyage to Canada.
APPLICABLE LEGISLATION AND INTERNATIONAL INSTRUMENTS
The Immigration and Refugee Protection Act
[14] Subsection 3(1) sets out the objectives of the Act with respect to immigration:
3. (1) The objectives of this Act with respect to immigration are
[…]
(h) to protect public health and safety and to maintain the security of Canadian society;
(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks;
3. (1) En matière d’immigration, la présente loi a pour objet :
. . .
h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne;
i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité;
[15] Subsection 3(2) sets out the objectives of the Act in relation to refugees:
3. (2) The objectives of this Act with respect to refugees are
(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;
(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;
[…]
(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment;
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;
[…]
(g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.
3. (2) S’agissant des réfugiés, la présente loi a pour objet :
a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution;
b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller;
. . .
d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités;
e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain;
. . .
g) de protéger la santé des Canadiens et de garantir leur sécurité;
h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.
[16] Subsection 3(3) deals with the proper construction of the Act:
3. (3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
[…]
(f) complies with international human rights instruments to which Canada is signatory.
3. (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
a) de promouvoir les intérêts du Canada sur les plans intérieur et international;
. . .
f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire.
[17] Paragraph 37(1)(b) deems individuals who engage in people smuggling to be inadmissible:
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.
[18] Section 33 sets out the “reasonable grounds to believe” as the appropriate standard of proof when considering inadmissibility:
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
[19] An exception from a finding of inadmissibility under subsection 37(1) is contained in paragraph 37(2)(a) of the Act, and a saving provision is found in paragraph 37(2)(b):
37. (2) The following provisions govern subsection (1):
(a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and
(b) paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
37. (2) Les dispositions suivantes régissent l’application du paragraphe (1) :
a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national;
b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.
[20] Under the heading “Human Smuggling and Trafficking”, section 117 makes it an offence to engage in human smuggling:
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.
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.
(2) L’auteur de l’infraction visant moins de dix personnes est passible, sur déclaration de culpabilité :
a) par mise en accusation :
(i) pour une première infraction, d’une amende maximale de cinq cent mille dollars et d’un emprisonnement maximal de dix ans, ou de l’une de ces peines,
(ii) en cas de récidive, d’une amende maximale de un million de dollars et d’un emprisonnement maximal de quatorze ans, ou de l’une de ces peines;
b) par procédure sommaire, d’une amende maximale de cent mille dollars et d’un emprisonnement maximal de deux ans, ou de l’une de ces peines.
(3) L’auteur de l’infraction visant un groupe de dix personnes et plus est passible, sur déclaration de culpabilité par mise en accusation, d’une amende maximale de un million de dollars et de l’emprisonnement à perpétuité, ou de l’une de ces peines.
(4) Il n’est engagé aucune poursuite pour une infraction prévue au présent article sans le consentement du procureur général du Canada.
[21] Paragraph 121(1)(c) of the Act evidences Parliament’s intent that profit is not an element of the offence created by section 117 of the Act. Rather, the element of profit is an aggravating factor when determining penalty:
121. (1) The court, in determining the penalty to be imposed under section 120, shall take into account whether
[…]
(c) the commission of the offence was for profit, whether or not any profit was realized; and
121. (1) Le tribunal tient compte, dans l’infliction de la peine visée à l’article 120, des circonstances suivantes :
. . .
c) l’infraction a été commise en vue de tirer un profit, que celui-ci ait été ou non réalisé;
United Nations Convention against Transnational Organized Crime
[22] Article 2 of the United Nations General Assembly resolution 55/25 adopted the United Nations Convention against Transnational Organized Crime (Convention) and also the Protocol against the Smuggling of Migrants by Land, Sea and Air (Protocol).
[23] Section 2 of Article 3 of the Convention provides a definition of a transnational offence:
2. For the purpose of paragraph 1 of this article, an offence is transnational in nature if:
(a) It is committed in more than one State;
(b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;
(c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or
(d) It is committed in one State but has substantial effects in another State.
2. Aux fins du paragraphe 1 du présent article, une infraction est de nature transnationale si:
a) Elle est commise dans plus d’un État;
b) Elle est commise dans un État mais qu’une partie substantielle de sa préparation, de sa planification, de sa conduite ou de son contrôle a lieu dans un autre État;
c) Elle est commise dans un État mais implique un groupe criminel organize qui se livre à des activités criminelles dans plus d’un État; ou
d) Elle est commise dans un État mais a des effets substantiels dans un autre État.
Protocol against the Smuggling of Migrants by Land, Sea and Air
[24] The purpose of the Protocol is stated, in Article 2, to include preventing the smuggling of migrants while protecting the rights of smuggled migrants.
[25] Article 3(a) of the Protocol defines “smuggling of migrants” as :
For the purposes of this Protocol:
(a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;
Aux fins du présent Protocole:
a) L’expression “trafic illicite de migrants” désigne le fait d’assurer, afin d’en tirer, directement ou indirectement, un avantage financier ou un autre avantage matériel, l’entrée illégale dans un État Partie d’une personne qui n’est ni un ressortissant ni un résident permanent de cet État;
[26] Article 6 of the Protocol requires all states to establish criminal offences in circumstances when the smuggling of migrants is committed to obtain, directly or indirectly, a financial or other material benefit:
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:
(a) The smuggling of migrants;
1. Chaque État Partie adopte les mesures législatives et autres nécessaires pour conférer le caractère d’infraction pénale, lorsque les actes ont été commis intentionnellement et pour en tirer, directement ou indirectement, un avantage financier ou autre avantage matériel:
a) Au trafic illicite de migrants;
[27] Section 4 of Article 6 of the Protocol preserves certain rights of signatory states:
4. Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law.
4. Aucune disposition du présent Protocole n’empêche un État Partie de prendre des mesures contre une personne dont les actes constituent, dans son droit interne, une infraction.
[28] Article 5 of the Procotol provides that migrants should not be subject to prosecution on the ground that they were smuggled:
Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.
Les migrants ne deviennent pas passibles de poursuites pénales en vertu du présent Protocole du fait qu’ils ont été l’objet des actes énoncés à son article 6.
[29] Article 19 of the Protocol preserves certain state obligations under international law: [emphasis added]
1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.
1. Aucune disposition du présent Protocole n’a d’incidences sur les autres droits, obligations et responsabilités des États et des particuliers en vertu du droit international, y compris du droit international humanitaire et du droit international relatif aux droits de l’homme et en particulier, lorsqu’ils s’appliquent, de la Convention de 1951 et du Protocole de 1967 relatifs au statut des réfugiés ainsi que du principe de non-refoulement qui y est énoncé.
1951 Convention Relating to the Status of Refugees
[30] Article 31 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) constrains signatories from imposing penalties on refugees as a result of their illegal entry:
a. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article I, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
b. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
[31] Article 32 of the Refuge Convention constrains a state’s ability to expel refugees:
a. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
b. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
c. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
[32] Article 33 of the Refugee Convention sets out the principle of non-refoulement:
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
THE DECISIONS BELOW
The Decision of the Board in respect of B010
[33] Member McPhalen began his analysis by noting the applicable standard of proof was the “reasonable grounds to believe” standard contained in section 33 of the Act. He then turned to the meaning of “transnational crime”, noting the term was not defined in the Act. At the urging of counsel, he adopted the definition contained in the Convention. He concluded that there was a transnational element to the MV Sun Sea operation because people were brought from Thailand to Canada. B010 was a foreign national and thus was subject to a determination of inadmissibility.
[34] The Board member then turned to the meaning of “people smuggling” in paragraph 37(1)(b). He noted that the Convention and Protocol require signatories to make people smuggling a criminal offence and that Canada has done so in section 117 of the Act. He concluded that because Canada had defined people smuggling in section 117 there was no need to consult the Convention or Protocol to find the definition of people smuggling. While the definition contained in section 117 was broader than the definition set out in the Protocol (because it does not require the smuggler to act for a financial or other material benefit), the Convention and the Protocol set minimum standards. The fact section 117 caught a broader range of conduct did not make it non-compliant with the Convention or the Protocol.
[35] Thus, the Board member found the elements imported from subsection 117(1) of the Act that were required to prove people smuggling for the purpose of paragraph 37(1)(b) of the Act were:
(i) the person being smuggled did not have the required documents to enter Canada;
(ii) the person was coming into Canada;
(iii) the smuggler was organizing, inducing, aiding or abetting the person to enter Canada; and
(iv) the smuggler had knowledge of the lack of required documents.
These requirements were in addition to those that the alleged smuggler be a permanent resident or a foreign national, and that the activity take place in the context of transnational crime.
[36] The member then reviewed B010’s evidence. B010 claimed that he did not know when he first boarded the MV Sun Sea that he was going to be a member of the crew. The member rejected this claim and was satisfied that there were reasonable grounds to believe B010 boarded the ship knowing that he would be a crew member. In reaching this conclusion, the member considered that B010 had spent time in Thailand with the captain and two other crew members, as evidenced by photographs taken of the men together in Thailand. Further, B010 was one of the first persons to board the ship, had at least somewhat better accommodation than the majority of passengers and was “deliberately evasive” when asked about the functions performed by certain alleged crew members. In any event, the member reasoned that even if B010 did not know when he boarded the ship that he would be a crew member, he worked two 3 hour shifts a day from shortly after the ship left Thailand until it reached Canada. B010 admitted that as a result of his contribution and the contribution of the other people who worked in the engine room, the MV Sun Sea was able to cross the ocean to Canada.
[37] The Board member then noted B010’s admissions that he knew the other people on the ship were Tamils, were refugees and that the ship would be taking them to Canada.
[38] With respect to the elements required by subsection 117(1) of the Act, the Board member concluded as follows:
42. [B010] is not a Canadian citizen or permanent resident. Therefore he is a foreign national.
43. The MV Sun Sea left Thailand bound for Canada with 492 people on board. The passengers intended to come to Canada to make refugee claims against Sri Lanka. This ship arrived in Canada on August 13, 2010. The Minister has established that the people were coming to Canada as required by (ii) of the section 117 test.
44. The Minister has established that the majority of the passengers were coming to Canada without passports or visas. Sri Lankan nationals are required to have passports and visas to come to Canada. The Minister has established that the passengers did not have the documents required to enter Canada as required in (i) of the section 117 test.
45. Whether [B010] boarded the ship intending to be a member of the crew from the outset or became a crew member by happenstance, he made a choice to work a regular shift from soon after the ship left Thailand until it arrived in Canada. He played a minor role as an engine room assistant, but his role was still vital in ensuring that the MV Sun Sea and its passengers reached Canada. He aided in their coming to Canada. This meets the requirement of (iii) of the section 117 test.
46. The final element of the section 117 test is whether the alleged smuggler had knowledge that the people being smuggled did not have the required documents. Counsel says that [B010’s] credible, uncontested evidence was that he had no knowledge of what documents his fellow travellers possessed until after the vessel arrived in Canada and he was placed in detention.
[…]
49. [B010] is from Sri Lanka, he knew that as a Sri Lankan he needed a visa to enter Canada and he travelled on the MV Sun Sea to try to circumvent the visa requirement. He spent more than three months on a ship with hundreds of other people from Sri Lanka. He has testified that he thought that the other people on board who were travelling on the MV Sun Sea were in similar circumstances to him. He had ample opportunity to find out if the passengers had to documents required for entry. I am satisfied that if he did not actually know that they did not have the required documents, it was because he deliberately chose not to obtain that knowledge. I am satisfied that at the very least he was wilfully blind as to whether the passengers had the required documents. Since wilful blindness is the equivalent of knowledge, the final element of the definition of people smuggling, that the person concerned knew that the people being smuggled did not have the require documents, is met.
[39] Finally, in the event he had erred in his interpretation of paragraph 37(1)(b), the Board member considered whether B010 received any material benefit. He found B010 did not receive any material benefit because the Minister did not establish that B010 received free passage in exchange for working during the voyage or that he was paid for his work. The member did not consider that the better accommodation B010 received constituted a material benefit.
The Decision of the Board in respect of B072
[40] Member King also found that “people smuggling” in paragraph 37(1)(b) of the Act should have the same meaning as the criminal provision for “human smuggling” defined at subsection 117(1) of the Act. In his view, there was no reason why paragraph 37(1)(b) should not be interpreted with reference to a criminal provision in section 117 of the Act since (1) the Protocol required signatory states to criminalize human smuggling and (2) reference is made to the relevant criminal provisions when considering inadmissibility for terrorism and money laundering. Consequently, the member found that the constituent elements of people smuggling within paragraph 37(1)(b) were the same as those found by Member McPhalen.
[41] With respect to B072’s circumstances, the Board member found that B072 was one of the lead organizers of the MV Sun Sea operation in Thailand. He found that B072 “generally lacks credibility” and had been untruthful with CBSA officers since arriving in Canada. The member found that B072 gave the CBSA a false name, misrepresented his arrest in Thailand, and gave an incoherent explanation about his actions in Thailand. Based on B072’s inconsistent statements, the member decided that there was no credible evidence that B072 had to pay a smuggler in order to travel on the MV Sun Sea. The member further found there are “reasonable grounds to believe that the activities performed by [B072] in Thailand were carried out with his knowledge that he was participating in purchasing the ship and organizing the voyage of the MV Sun Sea from Thailand to Canada by obtaining fuel and engine parts for the ship. He thereby knowingly organized and aided the coming into Canada of the passengers of the MV Sun Sea.”
[42] The member concluded that all four essential elements of people smuggling were made out.
[43] Before turning to consider the two decisions of the Federal Court under appeal, I note that neither B010 nor B072 contested in the Federal Court, or in these appeals, any of the findings of fact made by the Board.
The Decision of Justice S. Noël (B010 Federal Court Decision)
[44] Justice Noël upheld Member McPhalen’s decision.
[45] Justice Noël began his analysis by considering the appropriate standard of review to be applied to the Board’s interpretation of paragraph 37(1)(b) of the Act. In his view, recent decisions of the Supreme Court of Canada, including Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (Alberta Teachers’), required him to apply the standard of reasonableness.
[46] The Judge then went on to apply a textual, contextual and purposive interpretation of the relevant sections of the Act. The Judge rejected the submission that because paragraph 37(1)(b) uses the term “people smuggling” and the heading of section 117 uses the term “human smuggling”, Parliament intended the two phrases to have different meanings. The Judge found that Parliament intended both phrases to address the same activity.
[47] After noting that one of the purposes of the Act as it relates to refugees is to comply with international human rights instruments (including the Procotol), the Judge conducted an analysis to determine if section 117’s definition should be incorporated into paragraph 37(1)(b). The Judge went on to consider the guidance provided by paragraph 3(1)(i) of the Act with respect to the objectives of the Act, by paragraph 3(2)(h) of the Act with respect to security and criminality risks, and by paragraphs 3(3)(a) and (f) with respect to the need to further Canada’s interests while complying with human rights instruments which Canada has signed. The Judge concluded that the Board had correctly noted that section 117 of the Act is the provision that criminalizes the smuggling of human beings into Canada. In his view, the Board reasonably concluded that the fact section 117 defined smuggling more broadly than the Protocol’s definition did not place Canada in breach of the Protocol or the Convention. The Judge noted this Court’s decision in Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 where section 37 was said to require an “unrestricted and broad” interpretation. The ministerial exemption found in paragraph 37(3)(a) of the Act justified such a broad interpretation. Justice Noël concluded that, on the basis of the wording of subsection 117(1) of the Act, material gain is not an element of paragraph 37(1)(b).
[48] The Judge went on, however, to make an additional finding that, if material gain was an element of paragraph 37(1)(b), the Board had made an unreasonable decision in concluding on the evidence before it that B010 did not receive a material gain. In his view, because B010 received better accommodation and food as a result of his participation in the smuggling operation, it was unreasonable for the Board to find B010 did not receive a material benefit.
The Decision of Justice Hughes (B072 Federal Court Decision)
[49] Justice Hughes found that B072’s application was indistinguishable from B010’s application. He then considered two additional arguments raised by B072. He rejected the submission that B072 and others were “invited” into Canada because they were intercepted by the Canadian Navy on the high seas. In his view, being intercepted is not analogous to being invited. Justice Hughes also rejected the submission that a finding of criminality is required for a finding of inadmissibility. In his view, a plain reading of paragraph 37(1)(b) shows that a finding of criminality is not required before an inadmissibility determination. The first additional argument advanced by B072 before Justice Hughes was not pursued on appeal.
THE ISSUES
[50] In my view, the issues to be determined on these appeals are:
1. Did the Federal Court err by setting aside the Board’s finding that B010 did not receive a material benefit because of his work as a crew member?
2. What is the standard of review to be applied to the Board’s interpretation of the phrase people smuggling contained in paragraph 37(1)(b) of the Act?
3. Depending upon the appropriate standard of review, was the Board’s conclusion that paragraph 37(1)(b) does not require that a people smuggler receive any material benefit from his or her actions unreasonable or incorrect?
4. Did the Federal Court err by dismissing the applications for judicial review brought by B010 and B072?
CONSIDERATION OF THE ISSUES
1. Did the Federal Court err by setting aside the Board’s finding that B010 did not receive any material benefit because of his work as a crew member?
[51] As explained above, the nub of the dispute over the interpretation of paragraph 37(1)(b) is whether a person can engage in people smuggling if the person does not receive any material benefit as a result of his or her actions. The effect of the Federal Court’s additional finding that B010 did receive a material benefit is that the certified question is no longer dispositive of the appeal. It is for this reason that the first issue to be decided is whether the Federal Court erred in setting aside the Board’s finding that B010 did not receive any material benefit from his work as a crew member.
[52] In the Board’s view, the fact that B010 received better accommodation than the regular passengers did not amount to material benefit. This was a finding of mixed fact and law that was entitled to deference and could only be set aside if found to be unreasonable.
[53] On an appeal from a decision of the Federal Court rendered in an application for judicial review, the task of this Court is to determine whether the Federal Court selected the appropriate standard of review and