B010 v. Canada (Citizenship and Immigration)

B010 v. Canada (Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2015-11-27
Neutral citation
2015 SCC 58
Report
[2015] 3 SCR 704
Case number
35388, 35677, 35685, 35688
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Federal Court of Appeal
Notes
SCC Case Information: 35388, 35688, 35685, 35677
Decision Content
SUPREME COURT OF CANADA
Citation: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704
Date: 20151127
Docket: 35388, 35688, 35685, 35677
Between:
B010
Appellant
and
Minister of Citizenship and Immigration
Respondent
- and -
Attorney General of Ontario, Canadian Association of Refugee Lawyers,
Canadian Council for Refugees, Amnesty International (Canadian Section,
English Branch), David Asper Centre for Constitutional Rights and
United Nations High Commissioner for Refugees
Interveners
And Between:
J.P. and G.J.
Appellants
and
Minister of Public Safety and Emergency Preparedness
Respondent
- and -
Attorney General of Ontario, Canadian Association of Refugee Lawyers,
Canadian Council for Refugees, Amnesty International (Canadian Section,
English Branch), David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association
Interveners
And Between:
B306
Appellant
and
Minister of Public Safety and Emergency Preparedness
Respondent
- and -
Attorney General of Ontario, Canadian Association of Refugee Lawyers,
Canadian Council for Refugees, Amnesty International (Canadian Section,
English Branch), David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association
Interveners
And Between:
Jesus Rodriguez Hernandez
Appellant
and
Minister of Public Safety and Emergency Preparedness
Respondent
- and -
Attorney General of Ontario, Canadian Association of Refugee Lawyers,
Canadian Council for Refugees, Amnesty International (Canadian Section,
English Branch), David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 78)
McLachlin C.J. (Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704
B010 Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Attorney General of Ontario,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
Amnesty International (Canadian Section, English Branch),
David Asper Centre for Constitutional Rights and
United Nations High Commissioner for Refugees Interveners
‑ and ‑
J.P. and G.J. Appellants
v.
Minister of Public Safety and Emergency Preparedness Respondent
and
Attorney General of Ontario,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
Amnesty International (Canadian Section, English Branch),
David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association Interveners
‑ and ‑
B306 Appellant
v.
Minister of Public Safety and Emergency Preparedness Respondent
and
Attorney General of Ontario,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
Amnesty International (Canadian Section, English Branch),
David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association Interveners
‑ and ‑
Jesus Rodriguez Hernandez Appellant
v.
Minister of Public Safety and Emergency Preparedness Respondent
and
Attorney General of Ontario,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
Amnesty International (Canadian Section, English Branch),
David Asper Centre for Constitutional Rights,
United Nations High Commissioner for Refugees and
Canadian Civil Liberties Association Interveners
Indexed as: B010 v. Canada (Citizenship and Immigration)
2015 SCC 58
File Nos.: 35388, 35688, 35685, 35677.
2015: February 16; 2015: November 27.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the federal court of appeal
Immigration — Inadmissibility and removal — Organized criminality — People smuggling — Migrants aided illegal entry of asylum‑seekers to Canada in course of collective flight to safety — Migrants seeking refugee status in Canada but found inadmissible based on grounds of organized criminal people smuggling — What conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling? — Whether people smuggling engaged in, in context of transnational crime, confined to activities conducted, directly or indirectly, for financial or other material benefit — What limits may be inferred from provision rendering persons inadmissible on grounds of organized criminality? — What is effect of requirement that people smuggling be in context of transnational crime? — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 37(1) (b).
B010, J.P., G.J., B306 and H (the “migrants”) were all found inadmissible to Canada under s. 37(1) (b) of the Immigration and Refugee Protection Act (“IRPA ”) on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1) (b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits. The migrants all say they were simply helping fellow asylum‑seekers flee persecution, and were not engaged in people smuggling.
H is a native of Cuba who was accepted as a refugee by the United States. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of United States authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the United States, he came to Canada and claimed refugee protection.
B010, J.P., G.J., and B306 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum‑seekers on board to their own devices. Twelve of the migrants took over various duties during the three‑month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant. B010 worked two three‑hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment. J.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage. B306 volunteered to act as a cook and lookout. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.
The Immigration and Refugee Board (“Board”) found the migrants inadmissible to Canada, on the basis that s. 37(1) (b) of the IRPA covers all acts of assistance to illegal migrants and does not require a profit motive. On judicial review to the Federal Court, B010’s application was rejected while the applications of J.P., G.J., B306 and H were allowed. The Federal Court of Appeal rejected B010’s appeal and in the remaining cases, the court allowed the appeals and reinstated the Board’s decisions of inadmissibility.
Held: The appeals should be allowed and the cases remitted to the Board for reconsideration.
Section 37(1) (b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondent Ministers say that the term “people smuggling” in s. 37(1) (b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. The migrants argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.
Acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1) (b). The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1) (b) applies only to people who act to further illegal entry of asylum‑seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime.
A migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum‑seekers in their collective flight to safety is not inadmissible under s. 37(1) (b). Acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA . To justify a finding of inadmissibility on the grounds of people smuggling under s. 37(1) (b), the respondent Ministers must establish before the Board that the migrants are people smugglers in this sense. The migrants can escape inadmissibility under s. 37(1) (b) if they merely aided in the illegal entry of other refugees or asylum‑seekers in the course of their collective flight to safety.
The interpretation of s. 37(1) (b) of the IRPA taken by the Board was not within the range of reasonable interpretations. The migrants were found inadmissible on an erroneous interpretation of s. 37(1) (b) and are entitled to have their admissibility reconsidered on the basis of the interpretation here.
It is unnecessary to consider whether s. 37(1) (b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1) (b) is overbroad in catching migrants mutually aiding one another and humanitarian workers, as the migrants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1) (b). The argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1) .
Cases Cited
Referred to: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, aff’d 2014 SCC 68, [2014] 3 S.C.R. 431; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Zingre v. The Queen, [1981] 2 S.C.R. 392; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655.
Statutes and Regulations Cited
Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts , Bill C‑24, 1st Sess., 37th Parl., 2001 (assented to December 18, 2001), S.C. 2001, c. 32 .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1985, c. C‑46, s. 467.1(1) “criminal organization”.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3 , 11(1) , 20(1) , 34 , 35 , 36 , 37 , 41 , 42 , 44 , 99 , 101(1) (f), 112 , 113 , 114 , 117 , 118 , 121 , 124(1) (a), 133 .
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 6, 50, 228.
Treaties and Other International Instruments
Convention relating to the Status of Refugees, 189 U.N.T.S. 150, arts. 31(1), 33.
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480, arts. 2, 3(a) “smuggling of migrants”, 6, 11, 19.
Protocol relating to the Status of Refugees, 606 U.N.T.S. 267.
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319, art. 14(1).
United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, arts. 1, 2(a) “organized criminal group”, 3, 5, 34.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 14.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, p. 2954.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 2, 1st Sess., 37th Parl., March 1, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040558& Language=E&Mode=1&Parl=37&Ses=1), 9:30 to 9:35.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=599716& Language=E&Mode=1&Parl=37&Ses=1), 10:40.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 9, 1st Sess., 37th Parl., April 5, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040661& Language=E&Mode=1&Parl=37&Ses=1), 10:50.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040838& Language=E&Mode=1&Parl=37&Ses=1), 10:35 to 10:40.
Currie, Robert J., and Joseph Rikhof. International & Transnational Criminal Law, 2nd ed. Toronto: Irwin Law, 2013.
Gallagher, Anne T., and Fiona David. The International Law of Migrant Smuggling. New York: Cambridge University Press, 2014.
Goodwin‑Gill, Guy S., and Jane McAdam. The Refugee in International Law, 3rd ed. Oxford: Oxford University Press, 2007.
Hathaway, James C. The Rights of Refugees Under International Law. Cambridge: Cambridge University Press, 2005.
Nollkaemper, André. National Courts and the International Rule of Law. Oxford: Oxford University Press, 2011.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
United Nations. Office on Drugs and Crime. Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto. New York: United Nations, 2006.
APPEAL from a judgment of the Federal Court of Appeal (Evans, Dawson and Stratas JJ.A.), 2013 FCA 87, [2014] 4 F.C.R. 326, 443 N.R. 1, 359 D.L.R. (4th) 730, 16 Imm. L.R. (4th) 227, [2013] F.C.J. No. 322 (QL), 2013 CarswellNat 650 (WL Can.), affirming a decision of Noël J., 2012 FC 569, [2014] 1 F.C.R. 95, 412 F.T.R. 23, 13 Imm. L.R. (4th) 245, [2012] F.C.J. No. 594 (QL), 2012 CarswellNat 1560 (WL Can.). Appeal allowed.
APPEALS from a judgment of the Federal Court of Appeal (Sharlow, Mainville and Near JJ.A.), 2013 FCA 262, [2014] 4 F.C.R. 371, 451 N.R. 278, 368 D.L.R. (4th) 524, 20 Imm. L.R. (4th) 199, 61 Admin. L.R. (5th) 1, [2013] F.C.J. No. 1236 (QL), 2013 CarswellNat 4158 (WL Can.), setting aside a decision of Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146, 423 F.T.R. 144, [2012] F.C.J. No. 1648 (QL), 2012 CarswellNat 5628 (WL Can.); a decision of Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128, 421 F.T.R. 52, 14 Imm. L.R. (4th) 212, [2012] F.C.J. No. 1424 (QL), 2012 CarswellNat 4444 (WL Can.); and a decision of Zinn J., 2012 FC 1417, 422 F.T.R. 159, 13 Imm. L.R. (4th) 175, 45 Admin. L.R. (5th) 267, [2012] F.C.J. No. 1531 (QL), 2012 CarswellNat 4784 (WL Can.). Appeals allowed.
Rod H. G. Holloway and Erica Olmstead, for the appellant B010.
Lorne Waldman, Tara McElroy and Clarisa Waldman, for the appellants J.P. and G.J.
Raoul Boulakia, for the appellant B306.
Ronald Poulton, for the appellant Jesus Rodriguez Hernandez.
Marianne Zoric and François Joyal, for the respondents.
Hart Schwartz and Padraic Ryan, for the intervener the Attorney General of Ontario.
Jennifer Bond, Andrew J. Brouwer and Erin Bobkin, for the intervener the Canadian Association of Refugee Lawyers.
Angus Grant, Catherine Bruce, Laura Best and Fadi Yachoua, for the intervener the Canadian Council for Refugees.
Chantal Tie, Laïla Demirdache and Michael Bossin, for the intervener Amnesty International (Canadian Section, English Branch).
Barbara Jackman and Audrey Macklin, for the intervener the David Asper Centre for Constitutional Rights.
John Terry, Rana R. Khan and Ryan Lax, for the intervener the United Nations High Commissioner for Refugees.
Andrew I. Nathanson and Gavin Cameron, for the intervener the Canadian Civil Liberties Association.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] The smuggling of human beings across international frontiers is a matter of increasing concern all over the world. Those who are smuggled pay large sums for what are frequently life-threatening journeys to countries for which they have no documentation or right of entry. Some of these migrants are refugees who have a well-founded fear of persecution in their home country and a right to protection under Canadian and international law. The smugglers, for their part, cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face. The smugglers’ activities are often controlled by extensive transnational criminal organizations which Canada and other states seek to combat through multilateral cooperation. Canada is a party to a number of international instruments aimed both at protecting refugees and combatting human smuggling. These commitments are reflected in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”), and elsewhere in Canadian law.
[2] These appeals concern s. 37(1) (b) of the IRPA , which renders a person inadmissible to Canada, and effectively denies that person access to refugee determination procedures, if he or she has engaged in, in the context of transnational crime, activities such as people smuggling, trafficking in persons or money laundering.
[3] The appellants were all found inadmissible to Canada under s. 37(1) (b) of the IRPA on the basis of an interpretation that did not require that the conduct leading to inadmissibility be for profit or be connected with an organized criminal operation. Their situations vary. However, all say they were simply helping fellow asylum-seekers flee persecution, and were not engaged in people smuggling.
[4] Three questions arise. First, is “people smuggling” in s. 37(1) (b) confined to activities conducted, “directly or indirectly”, for “a financial or other material benefit”? Second, what limits flow from s. 37(1) , which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1) (b) that the smuggling be “in the context of transnational crime”?
[5] I conclude that s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. In coming to this conclusion, I outline the type of conduct that may render a person inadmissible to Canada and disqualify the person from the refugee determination process on grounds of organized criminality. I find, consistently with my reasons in the companion appeal in R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, that acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA .
[6] I would return these matters to the Immigration and Refugee Board (“Board”) for a new hearing in accordance with these reasons.
II. Facts and Judicial History
A. Facts
[7] Mr. Hernandez is a native of Cuba who was accepted as a refugee by the United States in 2001. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of U.S. authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the U.S., he came to Canada and claimed refugee protection.
[8] B306, J.P., G.J. and B010 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices. Twelve of the migrants took over various duties during the three-month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant.
[9] B010 worked two three-hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment, without, he says, remuneration or benefit.
[10] J.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage, in return for which he and his wife lived in crew quarters and benefited from more humane conditions than most of the migrants. G.J. was initially ruled inadmissible for consideration as a refugee under s. 42 (a) of the IRPA , as an accompanying family member of a person ruled inadmissible. She has since been admitted as a refugee to Canada, rendering her appeal in this case moot. However, her husband has been declared inadmissible under s. 37(1) (b) because of his work on the ship, and faces potential deportation.
[11] B306 volunteered to act as a cook and lookout in order to receive better rations because, he asserts, he was hungry and in poor health. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.
[12] The IRPA contemplates two streams of refugee claimants — people who apply for refugee status from outside the country and obtain a visa to enter Canada (s. 99(2)); and people who apply from inside Canada (s. 99(3)). The majority of refugee claimants to Canada fall into the first stream. The Sun Sea passengers and Mr. Hernandez fell into the second stream.
[13] Migrants in the second stream face deportation under either of two provisions. First, they may be treated as inadmissible under s. 41 of the IRPA , and made subject to a conditional removal order pursuant to s. 44 . Second, they may be declared inadmissible under s. 37(1) (b) of the IRPA on grounds of organized criminal people smuggling.
[14] Most of the Sun Sea migrants — 451 of the 492 — were ruled inadmissible under s. 41 and issued conditional removal orders. The appellants, however, were dealt with under s. 37(1) (b), on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1) (b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits: s. 101(1) (f).
B. Judicial History
[15] The Board found the appellants inadmissible to Canada, on the basis that s. 37(1) (b) of the IRPA covers all acts of assistance to illegal migrants and, in particular, does not require a profit motive. It ruled that Mr. Hernandez was also inadmissible under s. 36(1) (b) (serious criminality) because of his prior conviction in the U.S. of alien smuggling.
[16] On judicial review to the Federal Court, different judges took different views on the scope of s. 37(1) (b). B010’s application was rejected (Noël J., 2012 FC 569, [2014] 1 F.C.R. 95), while the applications of J.P. and G.J., B306 and Mr. Hernandez were allowed (Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146; Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128; and Zinn J., 2012 FC 1417, 422 F.T.R. 159, respectively).
[17] The cases were appealed to the Federal Court of Appeal, which opted for a broad view of the activity caught by s. 37(1) (b). B010’s appeal was rejected (Evans, Dawson and Stratas JJ.A., 2013 FCA 87, [2014] 4 F.C.R. 326) on the ground that s. 37(1) (b) catches all acts of assistance to undocumented migrants, and in particular, does not require that the activity be conducted for financial or other material benefit. Taking the same broad view of s. 37(1) (b) in the remaining cases, the court (Sharlow, Mainville and Near JJ.A., 2013 FCA 262, [2014] 4 F.C.R. 371) allowed the appeals and reinstated the Board’s decisions of inadmissibility.
III. The Issues
[18] The main issue in these appeals is what conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling under s. 37(1) (b) of the IRPA . Is it any and all assistance to undocumented migrants to Canada, as the respondent Minister of Citizenship and Immigration and the respondent Minister of Public Safety and Emergency Preparedness (collectively referred to as “the Ministers”) contend? Or is the prohibited range of conduct narrower, as the appellants contend? If so, precisely what is the range of conduct caught by s. 37(1) (b)?
[19] The answer to this latter question depends on the answer to three more particular questions. First, is “people smuggling” in s. 37(1) (b) of the IRPA limited to activity that is done “in order to obtain, directly or indirectly, a financial or other material benefit”? Second, what limits may be inferred from s. 37(1) , which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1) (b) that the smuggling be “in the context of transnational crime”?
[20] If s. 37(1)(b) applies broadly to any assistance to undocumented migrants, as the Federal Court of Appeal held, a further issue arises: Does s. 37(1)(b) violate s. 7 of the Canadian Charter of Rights and Freedoms in a manner that is not justified under s. 1 , with the result that it is unconstitutional? Related to this is whether s. 7 of the Charter is properly engaged at the stage of determining admissibility as a refugee.
[21] A final issue arises from B306’s assertion that his conduct is non-culpable because of duress and necessity.
IV. Discussion
A. Standard of Review
[22] The parties disagree as to the standard of review applicable to the Board’s decision.
[23] There are potentially two issues to which the standard of review may be relevant: (1) the statutory interpretation of s. 37(1) (b) of the IRPA ; and (2) the Board’s application of s. 37(1) (b). This case turns on the statutory interpretation of the provision, which is determinative.
[24] Recent decisions in the Federal Court of Appeal have taken different views on whether questions of statutory interpretation involving consideration of international instruments should attract review on the standard of correctness or of reasonableness. In Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, at paras. 22-25, the court applied a correctness standard; while in B010’s appeal, now before us, the court concluded that reasonableness was the appropriate standard.
[25] This being the home statute of the tribunal and Ministers, there is a presumption that the standard of review is reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34. The question is whether this presumption has been displaced in the appeals before us.
[26] We find it unnecessary to resolve this issue on these appeals. In our view, for the reasons discussed below, the interpretation of s. 37(1) (b) of the IRPA taken by the Board and supported by the Ministers was not within the range of reasonable interpretations.
B. The Conduct Captured by Section 37(1) (b)
[27] At the relevant time, s. 37(1) (b) provided as follows:
37. (1) [Organized criminality] 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.
In my view, there is no important difference between the English and French versions. (See relevant IRPA provisions set out in Appendix A.)
[28] Section 37(1) (b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondents say that the term “people smuggling” in s. 37(1) (b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. This would catch the appellants, who argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.
[29] The range of conduct captured by s. 37(1) (b) of the IRPA is a matter of statutory interpretation. The modern rule of statutory interpretation requires us to read “the words of an Act . . . in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
(1) The Words of Section 37(1) (b) Read in Their Ordinary and Grammatical Sense
[30] The starting point for the interpretation of s. 37(1) (b) is the ordinary and grammatical sense of the words used. At this point, the question is what the ordinary and grammatical sense of the words suggests on two questions: whether s. 37(1) (b) is confined to activity directed at “financial or other material benefit”; and what limits may be inferred from the phrases “on grounds of organized criminality” and “in the context of transnational crime”.
[31] Under the marginal note “Organized criminality”, s. 37(1) provides that “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”.
[32] The meaning of each of these phrases must be considered.
[33] I begin with the ordinary and grammatical meaning of “people smuggling”. The appellants argue that the ordinary meaning of this phrase involves a financial or other benefit to the smuggler. I do not agree. There is no express mention in s. 37(1)(b) of a profit motive and I cannot find a financial benefit requirement on the ordinary and grammatical meaning of the words alone.
[34] I turn next to the ordinary and grammatical meaning of “organized criminality”. While the phrase “organized crime” is generally understood as involving a profit motive, the phrase “organized criminality” is arguably broad enough to include organized criminal acts for non-pecuniary motives, such as terrorism or sexual exploitation.
[35] This leaves the ordinary and grammatical sense of the phrase “in the context of transnational crime”. The meaning of this phrase is arguably broader than that of “organized criminality”. First, the words “in the context of” suggest that a loose connection to transnational crime may suffice. Second, the phrase “transnational crime” is arguably broader than “transnational organized crime”. However, when the words “in the context of transnational crime” are read together with the words “organized criminality” with a view to finding a harmonious meaning for s. 37(1) (b) as a whole, it becomes clear that “transnational crime” in s. 37(1) (b), construed in its ordinary and grammatical sense, refers to organized transnational crime. Since the provision renders people inadmissible on grounds of “organized criminality”, the words “transnational crime” cannot be read as including non-organized individual criminality. In summary, the words of s. 37(1) (b), read in their ordinary and grammatical sense, suggest that the provision applies to acts of illegally bringing people into Canada, if that act is connected to transnational organized criminal activity.
(2) The Statutory Context of Section 37(1) (b)
[36] Reference to the ordinary grammatical sense of the words used is only the first step in the statutory interpretation of s. 37(1) (b). A statutory provision should be interpreted in its entire context and harmoniously with the scheme of the legislation. As we will see, the broader statutory context of s. 37(1) (b) suggests that the provision targets organized criminal activity in people smuggling for financial or other material benefit, and not asylum-seekers rendering each other mutual assistance.
[37] The first contextual consideration is the relationship between s. 37(1) (b) and the rest of s. 37(1). Subsection (1) introduces the concept of inadmissibility on grounds of organized criminality. Paragraphs (a) and (b) are instances of organized criminality. Section 37(1) (a) makes membership in criminal organizations one ground of inadmissibility, while s. 37(1) (b) makes “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” another. Read in the context of s. 37(1) as a whole, it is clear that the focus of s. 37(1) (b), like that of s. 37(1) (a), is organized criminal activity.
[38] The second consideration is the relationship between inadmissibility for people smuggling under s. 37(1)(b) and other grounds of inadmissibility under the IRPA . The respondents argue that interpreting “people smuggling” to require a financial or other material benefit requirement fails to catch smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism. Confining s. 37(1)(b) to financial or other material benefit will thus leave a gap in the statutory scheme, they argue. This contention overlooks other inadmissibility provisions in the IRPA . A person whose admission is not barred by s. 37(1) (b) may nevertheless be denied entry to Canada on grounds of national security (s. 34 ); human or international rights violations (s. 35 ); serious criminality (s. 36(1) ); and criminality simpliciter (s. 36(2) ).
[39] A third contextual consideration is the relationship between s. 37(1)(b) and the related offence provision in s. 117 . As I explain in Appulonappa (released concurrently), the language of s. 117 is broad enough to catch anyone who assists an undocumented person to enter Canada. The respondents in these appeals in effect suggest that the narrower language of s. 37(1)(b) should be “read up” to mirror the broad language of s. 117 , as was done by the Board and the Federal Court of Appeal.
[40] I cannot agree. In Appulonappa, I conclude that the broad scope of s. 117(1) exceeds Parliament’s purpose, rendering it overbroad and to this extent unconstitutional. A provision that is unconstitutionally overbroad cannot be used to widen a narrower provision. In any event, where Parliament has placed specific limits within a provision, these cannot be ignored on the ground that Parliament has cast a different provision more broadly.
[41] A fourth contextual consideration is the definition of “criminal organization” in s. 467.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 . The Criminal Code definition of “criminal organization” expressly requires a financial or other material benefit:
“criminal organization” means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
[42] While “organized criminality” and “criminal organization” are not identical phrases, they are logically and linguistically related and, absent countervailing considerations, should be given a consistent interpretation.
[43] The legislative history of s. 37(1) (b) of the IRPA and the Criminal Code ’s definition of “criminal organization” strongly support this conclusion. Both provisions were enacted in anticipation of Canada’s obligations under the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209 (generally known, and referred to here, as the “Palermo Convention”). As explained below, the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 480 (“Smuggling Protocol”), is one of three protocols under this convention. (See relevant provisions in Appendix B.)
[44] The Criminal Code definition of “criminal organization” was amended in 2001 by Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, S.C. 2001, c. 32. On second reading of the bill in the House of Commons, the Minister of Justice at the time, the Hon. Anne McLellan, explained that the new definition reflected Canada’s signature of the Palermo Convention (which was not then in force): House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, at p. 2954. See also R. J. Currie and J. Rikhof, International & Transnational Criminal Law (2nd ed. 2013), at pp. 345-46.
[45] Similarly, s. 37(1)(b) of the IRPA was enacted in 2001 to deal with organized criminality in people smuggling and related activities pursuant to Canada’s obligations under the Palermo Convention and the related Smuggling Protocol. As the Assistant Deputy Minister, Citizenship and Immigration, Joan Atkinson put it at the time, s. 37(1) introduced “new inadmissibility provisions specifically directed at that form of organized crime”: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40.
[46] Thus the apparent similarity between the IRPA concept of “organized criminality” and the Criminal Code concept of “criminal organization” is no coincidence. Both provisions were enacted to give effect to the same international regime for the suppression of transnational crimes such as people smuggling. Section 37(1) (b) should be interpreted harmoniously with the Criminal Code ’s definition of “criminal organization” as involving a material, including financial, benefit.
(3) The International Context of Section 37(1)(b)
(a) International Law as Context: General Relevance
[47] This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards impl