Canada (Public Safety and Emergency Preparedness) v. J.P.

Canada (Public Safety and Emergency Preparedness) v. J.P.
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-11-12
Neutral citation
2013 FCA 262
File numbers
A-29-13, A-498-12, A-563-12
Notes
Reported Decision
Decision Content
Date: 20131112
Dockets: A-29-13
A-498-12
A-563-12
Citation: 2013 FCA 262
CORAM: SHARLOW J.A.
MAINVILLE J.A.
NEAR J.A.
Docket: A-29-13
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
J.P. AND G.J.
Respondents
Docket: A-498-12
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
B306
Respondent
Docket: A-563-12
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
JESUS RODRIGUEZ HERNANDEZ
Respondent
Heard at Toronto, Ontario, on October 2, 2013.
Judgment delivered at Ottawa, Ontario, on November 12, 2013.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY:
SHARLOW J.A.
NEAR J.A.
Date: 20131112
Dockets: A-29-13
A-498-12
A-563-12
Citation: 2013 FCA 262
CORAM: SHARLOW J.A.
MAINVILLE J.A.
NEAR J.A.
Docket: A-29-13
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
J.P. AND G.J.
Respondents
Docket: A-498-12
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
B306
Respondent
Docket: A-563-12
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellant
and
JESUS RODRIGUEZ HERNANDEZ
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] These are three appeals by the Minister of Public Safety and Emergency Preparedness which were heard concurrently. These reasons apply to all three appeals, and a copy thereof shall be filed in each appeal docket.
[2] All three appeals raise substantially the same issues relating to findings of inadmissibility pursuant to paragraph 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Under that paragraph, a foreign national is inadmissible to Canada for “engaging, in the context of transnational crime, in activities such as people smuggling”.
[3] The Minister, relying for this purpose on subsection 117(1) of IRPA, submits that paragraph 37(1)(b) does not require that the foreign national be engaged in people smuggling for a financial or other material benefit in order to be declared inadmissible to Canada.
[4] At the time periods pertinent to all three appeals, subsection 117(1) provided that “[n]o 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.” It is useful to note that subsection 117(1) has since been amended and replaced through subsection 41(1) of Protecting Canada’s Immigration System Act, S.C. 2012 c. 17. It now sets out that “[n]o person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.” These reasons address the subsection as it read prior to that amendment.
[5] The respondents in all three appeals, relying on paragraph 3(1)(f) of IRPA, on paragraph (a) of Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol), and on Article 31 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention), submit that “people smuggling” requires that the perpetrator carry out the smuggling for a financial or other material benefit in order to be captured by the inadmissibility provision set out in paragraph 37(1)(b) of the IRPA.
[6] The respondents add that if they are wrong in their interpretation of the scope of “people smuggling” under paragraph 37(1)(b), then the effect of that paragraph is to deny a determination of their Refugee Convention refugee claims by the Refugee Division of the Immigration and Refugee Board of Canada. The respondents submit that such a denial violates their rights under section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Charter).
[7] The Immigration and Refugee Board of Canada – Immigration Division (Board) has relied on subsection 117(1) of the IRPA to interpret paragraph 37(1)(b). It has consequently consistently found that a foreign national may be excluded under paragraph 37(1)(b) of the IRPA even if he or she did not expect or receive a financial or other material benefit when engaging in people smuggling. However, in various judicial review proceedings, the Federal Court has been sharply divided on the issue, with the judges of that Court expressing different and irreconcilable views on a number of related matters, such as the applicable standard of review: see notably B010 v. Canada (Citizenship and Immigration), 2012 FC 569; B072 v. Canada (Citizenship and Immigration), 2012 FC 899; B306 v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1282; Hernandez v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1417; J.P. v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1466; S. C. v. Canada (Public Safety and Emergency Preparedness), 2013 FC 491.
[8] A panel of our Court has recently dealt with this controversy in B010 v. Canada (Minister of Citizenship and Immigration), 2013 FCA 87, 359 D.L.R. (4th) 730 (B010 Appeal Decision). The panel in the B010 Appeal Decision found that it was reasonable for the Board to define people smuggling under paragraph 37(1)(b) of the IRPA by relying upon subsection 117(1). The Supreme Court of Canada dismissed the leave to appeal in the B010 Appeal Decision on October 3, 2013: SCC file 35388.
[9] The B010 Appeal Decision did not address the constitutional issues raised by the respondents in all three appeals which are before this Court, including the effect of the recent Supreme Court of British Columbia decision in R. v. Appulonappa, 2013 BCSC 31, 358 D.L.R. (4th) 666 (Appulonappa), which declared section 117 of the IRPA inconsistent with the provisions of the Constitution and therefore of no force or effect. That decision is currently under appeal before the British Columbia Court of Appeal. The declaration of constitutional inapplicability made in Appulonappa has been suspended pending the outcome of that appeal: unreported Order of the Supreme Court of British Columbia dated June 10, 2013 in SCBC file 25796.
[10] In two of the appeals before us, the respondents urge this panel not to follow the B010 Appeal Decision. The respondents in all appeals add that even if this panel finds that it is bound by that decision, numerous questions nevertheless remain unanswered and should be dealt with in the appeals before us. These questions may be formulated as follows:
(a) Does the interpretation of paragraph 37(1)(b) of the IRPA require that the foreign national have the mens rea to aid and abet in people smuggling in order to be captured by the inadmissibility provision? And if so, what is that mens rea requirement?
(b) If the definition of people smuggling under paragraph 37(1)(b) of the IRPA is to be determined with reference to subsection 117(1), is that definition constitutionally overbroad?
(c) Does paragraph 37(1)(b) of the IRPA engage section 7 of the Charter by precluding a refugee determination hearing for the foreign national captured by this inadmissibility provision?
(d) In the case of the respondent B306, did the Board err (i) by refusing to consider that his assistance to the people smuggling operation was the result of necessity or duress, or (ii) by failing to consider the findings of another Board member reached with respect to his release from detention?
THE LEGISLATIVE FRAMEWORK
[11] Pertinent provisions of the IRPA, of the United Nations Convention against Transnational Organized Crime (Transnational Organized Crime Convention), of the Smuggling of Migrants Protocol and of the Refugee Convention are reproduced in a Schedule to these reasons.
[12] The general framework of these instruments, as they pertain to the issues raised in these appeals, may be briefly set out as follows.
[13] The most fundamental principle of immigration law is that foreign nationals have no unqualified right to enter into or to remain in Canada: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at p. 733; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 at para. 46.
[14] Parliament may thus regulate and control the entry of foreigners into Canada, and has done so principally through the IRPA. A foreign national seeking to enter and remain in Canada is therefore required to apply from abroad to a Canadian officer for a visa or for any other document required by the regulations to ascertain whether he is not inadmissible and meets the requirements of the legislation: IRPA ss. 11(1).
[15] Certain individuals are inadmissible to Canada under the terms of the IRPA. These include, but are not limited to, those individuals for which there are serious grounds to believe that they:
(i) are a threat to security: IRPA s. 34;
(ii) have committed crimes against humanity, war crimes or other international rights violations: IRPA s. 35;
(iii) have committed a serious crime in Canada or abroad: IRPA s. 36;
(iv) have engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert: IRPA para. 37(1)(a);
(v) have engaged, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering: IRPA para. 37(1)(b);
(vi) have a health condition that is likely to be a danger to public health or safety, or which might reasonably be expected to cause excessive demand on health or social services: IRPA s. 38;
(vii) are unable or unwilling to support themselves or their dependents and for which no adequate arrangements for care and support have been made: IRPA s. 39;
(viii) have misrepresented or withheld material facts or failed to comply with the IRPA: IRPA s. 40 and s. 41; or
(ix) are accompanying a family member that is inadmissible: IRPA s. 42.
[16] Notwithstanding these provisions, the responsible Minister may, in certain circumstances, waive the inadmissibility and grant permanent resident status to a foreign national if he is of the opinion that it is justified by humanitarian and compassionate considerations or by public policy considerations: IRPA, ss. 25(1), ss. 25.1(1) and ss. 25.2(1).
[17] Canada is also a signatory to the Refugee Convention. That instrument was developed as a response by the international community to the horrors of the Second World War and the atrocities committed during that conflict. Articles 31 and 33 of the Refugee Convention are relevant for the purposes of these appeals:
(a) Article 31 provides that no penalties are to be imposed on refugees who “coming directly from a territory where their life or freedom was threatened in the sense of Article 1, 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) Article 33 sets out the principle of non-refoulement. It specifies that a refugee is not to be expelled or returned “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.” However, the benefit of non-refoulement may not 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.”
[18] Parliament has implemented Article 31 through the provisions of the IRPA. As a result, a distinction has been made between foreign nationals who seeks to enter and remain in Canada in the normal course of the application of the IRPA and those foreign nationals claiming Refugee Convention protection in Canada. While a foreign national who wishes to enter and remain in Canada must normally apply from abroad for the appropriate documents, in the case of a foreign national claiming Refugee Convention protection, the protection claim may be made in Canada: IRPA ss. 99(1). In the event the foreign national entered Canada without proper documents or with forged documents, he may not be charged with related offences while his Refugee Convention refugee claim is still pending or if refugee protection is eventually conferred to him: IRPA s. 133.
[19] Parliament has also implemented Article 33, and added additional protections for refugees, through subsection 115(1) of the IRPA. That subsection provides that a Refugee Convention refugee may not be removed from Canada to a country where he or she would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual punishment.
[20] That being said, the Refugee Convention provisions of the IRPA do not extend to certain categories of foreign nationals who assert a refugee claim in Canada and who are contemplated by certain (but not all) of the inadmissibility provisions described above. Specifically, the determination of a foreign national’s refugee claim is suspended where the foreign national is deemed to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality, or organized criminality (which includes engaging in people smuggling in the context of transnational crime): IRPA para. 100(2)(a) and para. 103(1)(a). If the inadmissibility of the foreign national is determined by the Immigration Division of the Board on one or another of these grounds, then the foreign national is ineligible to have his Refugee Convention refugee claim determined by the Refugee Division of the Board: IRPA para. 101(1)(f).
[21] Save exception, the inadmissibility determination does not necessarily entail that the concerned foreign national will be removed from Canada to a jurisdiction where he would personally be subject to a danger, believed on substantial grounds to exist, of torture or to a risk to his life or of cruel and unusual treatment or punishment, which I shall refer herein as “deportation to torture”. Indeed, in circumstances of a potential deportation to torture, the inadmissible foreign national may still seek the protection of Canada not as a Convention Refugee, but rather as a person in need of protection: IRPA ss. 97(1), para. 112(3)(a) and para. 114(1)(b). However, the mechanisms set out under the IRPA to extend such protection to inadmissible foreign nationals are somewhat discretionary and vary in accordance with the grounds under which the inadmissibility was determined.
[22] In the case of a foreign national found inadmissible to Canada on grounds of organized criminality which, as already noted, includes engaging in people smuggling in the context of transnational crime, the responsible Minister may waive the inadmissibility if he is satisfied that this would not be contrary to the national interest: IRPA s. 42.1 (formerly para. 37(2)(a)).
[23] A foreign national found inadmissible on such grounds may also apply for a pre-removal risk assessment: IRPA para. 112(1). However, in such circumstances the risk assessment will be restricted to consideration of the risk of deportation to torture, and it shall also include consideration of whether the application should be refused because of the nature and severity of the acts committed by the foreign national or because of the danger he poses to the security of Canada: IRPA subparagraph 113(d)(ii). If protection is extended, it does not confer refugee protection, but simply stays the removal order with respect to the country or place in respect of which the concerned foreign national was determined to be in need of protection: IRPA paras. 112(3)(a) and 114(1)(b). In any event, protection may be denied if, in the opinion of the Minister, the foreign national should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of the danger to the security of Canada: IRPA para. 115(2)(b).
[24] The Smuggling of Migrants Protocol supplements the Transnational Organized Crime Convention which defines a transnational offence, and it must be interpreted together with that Convention. The purpose of the Smuggling of Migrants Protocol, as set out in Article 2, is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States to that end, while protecting the rights of smuggled migrants. It requires under Article 6 that each State Party adopt legislative and other measures to establish as a criminal offence the smuggling of migrants, which is described as an act “committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit”. Article 5 however provides an exemption from prosecution for the migrants who have been the object of the smuggling operations.
[25] Section 4 to Article 6 of the Smuggling of Migrants Protocol however states that nothing in that Protocol “shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law.” Section 3 to Article 34 of the Transnational Organized Crime Convention also provides that “[e]ach State Party may adopt more strict or severe measures than those provided for in this Convention for preventing and combating transnational organized crime.”
THE DECISIONS BELOW
The cases of J.P. and G.J.
[26] In a blatant people smuggling operation, the MV Sun Sea arrived in Canadian waters after a long and secretive voyage from Thailand, carrying aboard 492 Sri Lankan foreign nationals seeking to enter Canada to make refuge protection claims. Among them were J.P. and G.J.
[27] After interviews and investigation, Canadian Border Services Agency officials concluded that J.P. had acted as one of the crew members of the MV Sun Sea and was thus engaging in people smuggling. As noted above, foreign nationals engaging in people smuggling are inadmissible to Canada pursuant to paragraph 37(1)(b) of the IRPA. Border Services officials also concluded that J.P.’s spouse, G.J., was inadmissible pursuant to section 42 of the IRPA as an accompanying family member of an inadmissible person. A report was consequently prepared pursuant to subsection 44(1) of the IRPA, thus suspending the determination of the refugee claims made by J.P. and G.J. The Minister was of the opinion that the report was well-founded, and therefore referred the matter to the Board for an admissibility hearing pursuant to subsection 44(2) of the IRPA.
[28] After holding a hearing and weighing the evidence, the Board concluded that J.P. had knowingly aided the coming into Canada of persons who were not in possession of a visa, passport or other document required by the IRPA, and thus engaged, in the context of a transnational crime, in people smuggling. The Board thus found J.P. inadmissible pursuant to paragraph 37(1)(b). It consequently also found G.J. inadmissible as an accompanying family member of an inadmissible person. The Board issued a deportation order against both of them pursuant to paragraph 45(d) of the IRPA and paragraph 229(1)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227.
[29] The Board found as a matter of fact that J.P. and his spouse G.J. first left Sri Lanka for Thailand using their personal passports. They spent some time in Thailand until they received word that they could board the ship which would bring them to Canada. They paid $30,000 each for the voyage to Canada. They did not board the ship at the public docks, but were tendered to somewhere in the ocean where they could not be seen, and they boarded separately one or two days apart.
[30] Some time after they boarded, the MV Sun Sea’s Thai crew left the ship. This was when J.P. was recruited to help operate the vessel. He originally declined, but shortly thereafter agreed to help. The Board found that his duties included chart plotting, reading GPS and radar and controlling the ship’s wheel. It also found that J.P. was an assistant navigator throughout most of the voyage.
[31] J.P. and G.J. submitted to the Board three grounds under which they should not be found inadmissible to Canada:
-First, because all the individuals aboard the MV Sun Sea had made refugee claims at a port of entry in Canada, there was no connection with people smuggling since no clandestine behaviour was at issue.
-Second, the concept of people smuggling set out in paragraph 37(1)(b) of the IRPA must be consistent with the international instruments to which Canada is a party, including the Smuggling of Migrants Protocol which defines the smuggling of migrants with reference to a “financial or other material benefit”.
-Third, paragraph 37(1)(b) is constitutionally overbroad and it violates the principles of fundamental justice and in the process restricts life, liberty or security of the person more than is necessary to accomplish its purpose.
[32] On the first submission, the Board concluded that secret or clandestine behaviour was not necessary to find that someone had engaged in people smuggling. Moreover, the Board did indeed find that even if clandestine activities were required, such activities occurred, in this case, taking into account all of the circumstances, including the stealthy manner in which the MV Sun Sea navigated and the secrecy surrounding the voyage. The Board concluded that “although the plan may have been to present themselves to the Canadian authorities, they [the passengers of the MV Sun Sea] were circumventing the border requirements and more than likely chose this route because they would not have made it to the Canadian border if they tried to board an airplane where there would be some pre-boarding screening of documents (and in these cases – missing documents)”: Board’s Decision at paragraph 36.
[33] With respect to the second submission, the Board found as a matter of law that people smuggling pursuant to paragraph 37(1)(b) of the IRPA does not require the element of “financial or other material benefit” referred to in the Smuggling of Migrants Protocol. The Board rather based its finding with respect to the scope of people smuggling under paragraph 37(1)(b) with reference to subsection 117(1) of the IRPA as it then read, which defined the offence of human smuggling more broadly than the Smuggling of Migrants Protocol and without any reference to a financial or material benefit. The Board consequently adopted the elements identified by the Ontario Court of Justice in R. v. Alzehrani, 237 C.C.C. (3d) 471, 75 Imm. L.R. (3d) 304 (Alzehrani) with respect to human smuggling under subsection 117(1), as it then read, to identify people smuggling under paragraph 37(1)(b).
[34] The Board refused to consider the third submission raising constitutional arguments on the ground that the formalities of section 47 of the Immigration Division Rules, SOR/2002-229 with respect to a notice of constitutional question had not been properly followed.
[35] J.P. and G.J. were granted leave to submit an application for judicial review of the Board’s decision, and in a judgment dated December 12, 2012 cited as 2012 FC 1466, Mosley J. allowed their application.
[36] Two issues were raised in the judicial review: (1) Did the Board err in law by declining to consider the third submission on the ground that proper notice had not been given? And (2) did it err in law by failing to interpret “people smuggling” in a manner consistent with the Smuggling of Migrants Protocol?
[37] Mosley J. applied a standard of reasonableness to the first issue. He found that in their submissions before the Board, J.P. and G.J. were not seeking to strike down paragraph 37(1)(b) of the IRPA on constitutional grounds, but rather seeking that this provision be interpreted in a manner consistent with the Constitution and international instruments. He thus concluded that the Board misinterpreted the thrust of the submissions and erred in declining to consider the Charter arguments notwithstanding the lack of notice. He found that this was an unreasonable decision in the sense that it was not justified and was outside the range of appropriate outcomes.
[38] With respect to the second issue, Mosley J. recognized that a controversy existed within the Federal Court as to the applicable standard to review the Board’s interpretation of paragraph 37(1)(b) of the IRPA, and that a question had been previously certified on this issue by another judge of the Federal Court. He nevertheless weighed into the controversy by opining (at para. 13 of his reasons) that the interpretation of paragraph 37(1)(b) was “a question of law which is beyond the adjudicator’s expertise and a matter of central importance to the legal system requiring the correctness standard.”
[39] He then reviewed the party’s submissions and the contradictory Federal Court decisions respecting the interpretation of paragraph 37(1)(b). He concluded (at para. 42 of his reasons) that Canada’s international commitments to both penalize smugglers and to protect those who are being smuggled “may be blurred by an overly expansive interpretation of 37(1)(b) which encompasses those who did not plan or agree to carry out the scheme and have no prospect of a reward other than a modest improvement in their living conditions enroute.” He added that it was consequently improper for the Board to interpret paragraph 37(1)(b) by strict reliance on the factual elements of the offence set out in subsection 117(1) as it then read.
[40] He then certified the following two questions pursuant to paragraph 74(d) of the IRPA:
(1) For the purposes of paragraph 37(1)(b) of the IRPA 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?
(2) Is the interpretation of paragraph 37(1)(b) of the IRPA, and in particular of the phrase “people smuggling” therein, reviewable on the standard of correctness or reasonableness?
The case of B306
[41] B306 was also aboard the MV Sun Sea and he also submitted a refugee claim when that ship arrived in Canada. A report pursuant to subsection 44(1) of the IRPA was also prepared in his case, thus suspending the determination of his refugee claim. The Minister was of the opinion that the report was well-founded, and referred the matter to the Board for an admissibility hearing pursuant to subsection 44(2) of the IRPA.
[42] The Board found that B306 had acted as a cook for the crew of the MV Sun Sea and also as a lookout to avoid the ship being detected. It notably found that B306’s watch-keeping duties helped to prevent the potential interception of the ship as it proceeded to Canada, and that his work aboard the ship meaningfully supported the people smuggling operation.
[43] As was done in the case of J.P., the Board defined the scope of “people smuggling” under paragraph 37(1)(b) of the IRPA with reference to paragraph 117(1) as it then read. As a result, the Board found that B306 had aided and abetted the coming into Canada of the foreign nationals aboard the MV Sun Sea.
[44] The Board also rejected B306’s submissions raising necessity and duress on its findings that he did not face any sort of impending peril nor was he subject to coercion.
[45] B306 had also served a notice of constitutional question on the Board alleging that it was contrary to section 7 of the Charter for a refugee claimant to be barred from having a refugee protection hearing based on an inadmissibility finding under paragraph 37(1)(b) of the IRPA. The Board rejected that submission on the ground that although B306 will likely be found ineligible to make a refugee claim, this did not mean that he would be returned to Sri Lanka since (a) he “has a statutory right to apply for the Pre-Removal Risk Assessment and he cannot be removed from Canada until that process is completed” and (b) he “may also make an application to the Minister under 37(2)(a) [now s. 42.1] of the Act so that an inadmissibility finding under 37(1)(b) would not apply to him”: Board’s decision at para. 41.
[46] The Board consequently found B306 inadmissible pursuant to paragraph 37(1)(b) of the IRPA and issued a deportation order against him.
[47] B306 was also granted leave to submit an application for judicial review of the Board’s decision, and in a judgment dated November 9, 2012 cited as 2012 FC 1282, Gagné J. allowed his application.
[48] With respect to the applicable standard of review, Gagné J. found that she was bound by the prior decision of Noël J. in B010 v. Canada (Citizenship and Immigration), 2012 FC 569 who had applied a reasonableness standard in reviewing the Board’s interpretation of paragraph 37(1)(b). Applying that standard to the case of B306, she found that the Board had reached an unreasonable conclusion.
[49] Gagné J. criticized the Board’s findings of fact as “not informed by the context of complete dependency, vulnerability and power imbalance in which the applicant found himself during the three-month journey to Canada”: Reasons at para. 34. She then substituted her own assessment of the evidence to that of the Board. This allowed her to conclude as follows, at para. 37 of her Reasons:
However, in order to establish mens rea the [Board] had to turn its mind to the reasons for which the applicant sought to help the smugglers and it erred in law by failing to do so. In other words, the applicant aided the smugglers in exchange for food; he did not aid 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.’ Nor did he induce or abet such actions. A distinction should be made between the offence of people smuggling contemplated in section 117 of the IRPA and the offence of conspiring with, being accomplice to, or being an accessory after the fact of the smugglers as contemplated in section 131 of the IRPA (reference is made to its French version). [Paragraph] 37(1)(b) refers to people smuggling, it does not refer to complicity or conspiracy.
[50] She then proceeded to certify the following two questions:
(1) For the purposes of paragraph 37(1)(b) of the IRPA, is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than on a definition contained in an international instrument to which Canada is a signatory?
(2) For the application of paragraph 37(1)(b) and section 117 of the IRPA, is there a distinction to be made between aiding and 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 IRPA, as opposed to aiding and abetting the smugglers while within a vessel and in the course of being smuggled? In other words, in what circumstances would the definition of people smuggling in paragraph 37(1)(b) of the IRPA extend to the offences referred to in section 131 of the IRPA?
The case of Mr. Hernandez
[51] Mr. Hernandez is a Cuban national who had left Cuba for the United States of America (U.S.). While in the U.S., he and two other individuals purchased a 34 foot boat and left Florida for Cuba purportedly to pick up family members. When they arrived in Cuba, the family members of his two friends were present, as well as some of his cousins; however, none of his close family members were there.
[52] In all, 48 Cuban nationals boarded the small vessel and made their way to the U.S. They were apprehended by the U.S. Coast Guard approximately 80 to 100 km from the U.S. coast. Though Mr. Hernandez was a principal organizer of the smuggling operation, he did not participate in it for financial gain.
[53] As a result of these smuggling activities, Mr. Hernandez was convicted in the U.S. of alien smuggling pursuant to Title 8 USC s. 1324(a)(2)(A). Because of this conviction, he was subject to deportation from the U.S. He came to Canada, where he made a refugee claim.
[54] Two reports were prepared under subsection 44(1) of the IRPA. In the first report, Mr. Hernandez was said to be inadmissible to Canada on grounds of serious criminality under paragraph 36(1)(b) of the IRPA for having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. The officer who prepared the report equated Mr. Hernandez’s alien smuggling conviction in the United States to the offence of human smuggling under section 117 of the IRPA as it then read.
[55] The second report under subsection 44(1) concluded that Mr. Hernandez was inadmissible pursuant to paragraph 37(1)(b) of the IRPA for engaging in people smuggling given the facts for which he had been convicted in the United States for alien smuggling.
[56] Both reports were referred by the Minister to the Board.
[57] With respect to the inadmissibility under paragraph 36(1)(b), the Board found, based on the evidence before it, “that the offence of alien smuggling pursuant to Title 8 of the United States Code section 1324(a)(2)(A) is equal in its elements to the Canadian offence of organizing entry into Canada pursuant to subsection 117(1) of IRPA and would constitute an indictable offence punishable under paragraph 117(2)(a)(i) of IRPA to a maximum term of not more than 10 years which is inclusive of the 10 years that are required for a finding under paragraph 36(1)(b)”: Board’s decision at para. 25.
[58] The Board accordingly found that there were reasonable grounds to believe that Mr. Hernandez was subject to paragraph 36(1)(b) of the IRPA and consequently inadmissible on grounds of serious criminality. It therefore made a deportation order against him on those grounds.
[59] With respect to inadmissibility under paragraph 37(1)(b), the Board followed its unvarying jurisprudence to the effect that section 117 of IRPA, as it then read, provided an appropriate interpretative guide for defining people smuggling and therefore “does not require the element of ‘financial or other material benefit’ which is found in the Protocol’s definition of smuggling of migrants”: Board’s decision at para. 39.
[60] It also found, based on the definition provided in subsection 117(1), as it then read, that “people smuggling” for the purposes of paragraph 37(1)(b) includes the elements of knowingly organizing, inducing, aiding or abetting the coming into a country of one or more persons who are not in possession of a visa, passport or other document required by that country. It finally noted that the elements which must be proved to sustain a claim of “people smuggling” are the same as those set out in Alzehrani for the offence of “human smuggling” under subsection 117(1) as it then read, albeit on a different standard of proof: Board’s decision at paras. 40 to 42.
[61] Reviewing the facts in light of these findings of law, the Board concluded that there were reasonable grounds to believe Mr. Hernandez was inadmissible under paragraph 37(1)(b) even though there was no evidence that he had engaged in people smuggling for financial gain or material benefit. Consequently, it also made a deportation order against him on that second ground.
[62] Mr. Hernandez was granted leave to submit an application for judicial review of the Board’s decision, and in a judgment dated December 12, 2012 cited as 2012 FC 1417, Zinn J. allowed his application.
[63] Mr. Hernandez did not challenge the Board’s inadmissibility finding under paragraph 36(1)(b) of the IRPA in judicial review. His application therefore only concerned the Board’s finding of inadmissibility under paragraph 37(1)(b) relating to people smuggling.
[64] Zinn J. recognized that there were conflicting findings within the Federal Court with respect to the applicable standard of review of a Board’s decision dealing with paragraph 37(1)(b) of the IRPA. He decided to carry out a full standard of review analysis. That analysis led him to conclude that the correctness standard applied since, in his view, the interpretation of paragraph 37(1)(b) involved matters of criminal law and of international law: Reasons at para. 28. He also opined that the question of who is or is not admissible to Canada was a question of central importance to the legal system: Reasons at para. 31.
[65] Zinn J. recognized that the crime of human smuggling set out in subsection 117(1) of the IRPA did not require a profit motive. However, applying a correctness standard of review to the interpretation of paragraph 37(1)(b), he found that the paragraph should not be interpreted in light of subsection 117(1), as it then read. In his view, “Canada’s international commitments to criminalize the smuggling of migrants […] has no bearing on when it must permit persons to seek Refugee Convention protection or when exceptions to the principle of non-refoulement will be met”: Reasons at para. 49.
[66] He found that, properly construed, the notion of “people smuggling” under paragraph 37(1)(b) includes a profit element. He reached that conclusion on three grounds: (1) “Parliament used different terms in paragraph 37(1)(b) and section 117 – people smuggling versus human smuggling”: Reasons at para. 59; (2) under the associated words rule of statutory interpretation (noscitur a sociis) people smuggling in paragraph 37(1)(a) should be interpreted with the terms “trafficking in persons” and “money laundering” set out in that paragraph, both of which include a profit motive: Reasons at paras. 70-71; and (3) the reference to “in the context of transnational crime” in paragraph 37(1)(b) should be understood as a reference to international instruments: Reasons at para. 72.
[67] Zinn J. then certified the following two questions:
(1) Is the interpretation of paragraph 37(1)(b) of the IRPA, and in particular the phrase “people smuggling” therein, by the Immigration and Refugee Protection Board, Immigration Division, reviewable on the standard of correctness or reasonableness?
(2) Does the phrase “people smuggling” in paragraph 37(1)(b) of the IRPA require that it be done by the smuggler in order to obtain, “directly or indirectly, a financial or other material benefit” as is required in the Smuggling of Migrants Protocol?
ANALYSIS
The B010 Appeal Decision
[68] The B010 Appeal Decision, released on March 22, 2013, dealt with many of the issues raised by these appeals.
[69] B010 and B072 were also aboard the MV Sun Sea, and both submitted refugee claims upon their arrival in Canada. After the Thai crew of the MV Sun Sea left, B010 became a crew member responsible for checking engine temperature, water and oil levels. B072 signed the incorporating documents for the corporation that bought the MV Sun Sea, cashed checks for the smuggling operation, and assisted in loading food and equipment on the ship. The Board found both B010 and B072 inadmissible to Canada pursuant to paragraph 37(1)(b) of the IRPA. In the respective judicial review proceedings challenging these findings, Noël J. and Hughes J. of the Federal Court both refused to set aside these decisions of the Board. Both certified the following question:
For the purposes of paragraph 37(1)(b) of the IRPA, 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?
[70] In thoughtful and well articulated reasons, Dawson