R. v. Appulonappa

R. v. Appulonappa
Collection
Supreme Court Judgments
Date
2015-11-27
Neutral citation
2015 SCC 59
Report
[2015] 3 SCR 754
Case number
35958
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35958
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754
Date: 20151127
Docket: 35958
Between:
Francis Anthonimuthu Appulonappa
Appellant
and
Her Majesty The Queen
Respondent
And between:
Hamalraj Handasamy
Appellant
and
Her Majesty The Queen
Respondent
And between:
Jeyachandran Kanagarajah
Appellant
and
Her Majesty The Queen
Respondent
And between:
Vignarajah Thevarajah
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario, Amnesty International (Canadian Section, English Branch), British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Canadian Council for Refugees and Canadian Association of Refugee Lawyers
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 86)
McLachlin C.J. (Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754
Francis Anthonimuthu Appulonappa Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Hamalraj Handasamy Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Jeyachandran Kanagarajah Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Vignarajah Thevarajah Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Amnesty International (Canadian Section, English Branch),
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association,
Canadian Council for Refugees and
Canadian Association of Refugee Lawyers Interveners
Indexed as: R. v. Appulonappa
2015 SCC 59
File No.: 35958.
2015: February 17; 2015: November 27.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Right to liberty — Fundamental justice — Overbreadth — People smuggling — Migrants seeking refugee status in Canada charged with offence of organizing, inducing, aiding or abetting persons coming into Canada without valid documentation — Trial judge finding that offence provision overbroad and therefore unconstitutional because it criminalizes not only organized people smuggling, but helping close family members to come to Canada and humanitarian assistance to refugees — Whether offence provision infringes s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — If no, what is appropriate remedy for constitutional infirmity — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 117 .
Immigration — Offences — People smuggling — Migrants seeking refugee status in Canada charged with offence of organizing, inducing, aiding or abetting persons coming into Canada without valid documentation — Whether offence provision unconstitutional — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 117 .
In 2009, a vessel was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy‑six people, among them A, H, K and T (the “migrants”) were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered. They asked for refugee status in Canada. None had the required legal documentation. The migrants are alleged to have been the point persons for a transnational for‑profit operation to smuggle undocumented migrants from Southeast Asia to Canada. The majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage. The migrants are said to have been responsible for organizing the asylum‑seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — H as captain, T as chief engineer, and K and A as key crew members.
The migrants were charged under s. 117 of the Immigration and Refugee Protection Act (“IRPA ”), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA . Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee. Before their trial, the migrants challenged the constitutionality of s. 117 of the IRPA , on the ground that it infringes the right to life, liberty and security of the person enshrined in s. 7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled the provision was unconstitutional. The Court of Appeal reversed that decision, found the provision to be constitutional and remitted the matter for trial. Section 117 as it was at the time of the alleged offences is no longer in force and the constitutionality of the current s. 117 is not before the Court.
Held: The appeals are allowed and the charges are remitted for trial. Section 117 is unconstitutional insofar as it permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum‑seekers or assistance to family members.
Participating in the unauthorized entry of other people into Canada may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117 of the IRPA . The migrants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. They say that s. 117 is therefore overbroad. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality.
Insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum‑seekers or assistance to family members, it is unconstitutional. The purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada. A broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament’s purpose as evinced by the text of s. 117 read together with Canada’s international commitments, s. 117 ’s role within the IRPA , the IRPA ’s objects, the history of s. 117 , and the parliamentary debates.
The scope of s. 117 is overbroad and interferes with conduct that bears no connection to its objective. The overbreadth problem cannot be avoided by interpreting s. 117(1) as not permitting prosecution of persons providing humanitarian, mutual or family assistance. Such an interpretation would require the Court to ignore the ordinary meaning of the words of s. 117(1), which unambiguously make it an offence to “organize, induce, aid or abet” the undocumented entry. To adopt this interpretation would violate the rule of statutory interpretation that the meaning of the words of the provision should be read in their grammatical and ordinary sense. It would also require statements from the legislative debate record suggesting Parliament knew in advance that the provision was overbroad to be ignored.
Parliament itself understood when it enacted s. 117 that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum‑seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General of Canada would not permit the prosecution of such people. Section 117(4), which requires the Attorney General to authorize prosecutions, does not cure the overbreadth problem created by s. 117(1). Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that s. 117(1) criminalizes conduct beyond Parliament’s object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an asylum‑seeker entering Canada faces a possibility of imprisonment.
Section 117 of the IRPA is overbroad and this overbreadth cannot be justified under s. 1 of the Charter . While the objective of s. 117 is clearly pressing and substantial and some applications of s. 117 are rationally connected to the legislative object, the provision fails the minimal impairment branch of the s. 1 analysis. It follows that s. 117 is of no force or effect to the extent of its inconsistency with the Charter . The extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum‑seekers, and (3) assistance to family entering without the required documents. In this case, the preferable remedy is to read down s. 117 of the IRPA , as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum‑seekers or to asylum‑seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter . This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place.
In view of the conclusion that s. 117 is overbroad, it is unnecessary to consider the argument that s. 117 offends s. 7 of the Charter by depriving persons of liberty in a manner that violates the principles of fundamental justice against gross disproportionality and vagueness.
Cases Cited
Referred to: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; R. v. Gladue, [1999] 1 S.C.R. 688; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Act to amend the Immigration Act, S.C. 1902, c. 14, s. 2.
Act to amend The Immigration Act, S.C. 1919, c. 25, s. 12(4).
Act to amend the Immigration Act and the Criminal Code in consequence thereof, R.S.C. 1985, c. 29 (4th Supp.), ss. 1 , 9 .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitution Act, 1982, s. 52 .
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 .
Foreign Extraterritorial Measures Act, R.S.C. 1985, c. F‑29 .
Freezing Assets of Corrupt Foreign Officials Act, S.C. 2011, c. 10 .
Geneva Conventions Act, R.S.C. 1985, c. G‑3 .
Immigration Act, R.S.C. 1906, c. 93, ss. 65, 66.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3 , 37(1) (b), Part 3, 117 [am. 2012, c. 17, s. 41], 118, 121, 133.
Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, s. 41(1) , (4) .
Special Economic Measures Act, S.C. 1992, c. 17 .
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), 6(1), (3), (4), 19(1).
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.
United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, arts. 1, 5, 34.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, p. 8002.
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C‑84: An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, No. 9, 2nd Sess., 33rd Parl., August 25, 1987, p. 24.
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?Language=E&Mode=1&Parl=37&Ses=1&DocId=1040838&File=0), 10:35.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEALS from a judgment of the British Columbia Court of Appeal (Neilson, Bennett and Hinkson JJ.A.), 2014 BCCA 163, 355 B.C.A.C. 98, 607 W.A.C. 98, 373 D.L.R. (4th) 1, 310 C.C.C. (3d) 193, 11 C.R. (7th) 154, 308 C.R.R. (2d) 293, 25 Imm. L.R. (4th) 1, [2014] B.C.J. No. 762 (QL), 2014 CarswellBC 1135 (WL Can.), setting aside the orders of Silverman J. and directing a new trial, 2013 BCSC 31, 358 D.L.R. (4th) 666, 275 C.R.R. (2d) 1, 99 C.R. (6th) 245, 13 Imm. L.R. (4th) 207, [2013] B.C.J. No. 35 (QL), 2013 CarswellBC 15 (WL Can.); and 2013 BCSC 198, [2013] B.C.J. No. 217 (QL), 2013 CarswellBC 299 (WL Can.). Appeals allowed and charges remitted for trial.
Fiona Begg and Maria Sokolova, for the appellant Francis Anthonimuthu Appulonappa.
Peter H. Edelmann and Jennifer Ellis, for the appellant Hamalraj Handasamy.
Micah B. Rankin and Phillip C. Rankin, for the appellant Jeyachandran Kanagarajah.
Gregory P. DelBigio, Q.C., and Lisa Sturgess, for the appellant Vignarajah Thevarajah.
W. Paul Riley, Q.C., and Banafsheh Sokhansanj, for the respondent.
Hart Schwartz and Padraic Ryan, for the intervener the Attorney General of Ontario.
Chantal Tie, Laïla Demirdache and Michael Bossin, for the intervener Amnesty International (Canadian Section, English Branch).
Marlys A. Edwardh and Daniel Sheppard, for the intervener the British Columbia Civil Liberties Association.
Andrew I. Nathanson and Gavin Cameron, for the intervener the Canadian Civil Liberties Association.
Angus Grant, Catherine Bruce, Laura Best and Fadi Yachoua, for the intervener the Canadian Council for Refugees.
Andrew J. Brouwer, Jennifer Bond and Erin Bobkin, for the intervener the Canadian Association of Refugee Lawyers.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] On October 17, 2009, a vessel called the Ocean Lady was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy-six people, among them the appellants, were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered in the aftermath of the civil war in that country. They asked for refugee status in Canada. None had the required legal documentation.
[2] The Crown claims that the four appellants — the captain and chief crew of the vessel — were the organizers of the venture. The Crown alleges that the majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage.
[3] The appellants were charged under s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA . Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee.
[4] Before their trial, the appellants challenged the constitutionality of s. 117 of the IRPA , on the ground that it infringes the right to life, liberty and security of the person enshrined in s. 7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled that the provision was unconstitutional because it criminalized not only organized people smuggling, but helping close family members to come to Canada and humanitarian assistance to refugees. The British Columbia Court of Appeal reversed that decision, and found the provision to be constitutional.
[5] For the reasons that follow, I conclude that, insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members, it is unconstitutional.
II. Facts and Judicial History
A. Facts
[6] Canadian authorities intercepted the freighter ship Ocean Lady offshore of Vancouver Island. They found 76 passengers aboard; all were Tamil asylum-seekers from Sri Lanka who had boarded the ship in Southeast Asia: 24 boarded the ship in Indonesia between June and August 2009, and 52 in Thailand in September 2009. None of the 76 migrants had the proper documentation to enter Canada. Most had agreed to pay a sum of between $30,000 and $40,000 to come to Canada. Typically, down payments of $5,000 were exacted prior to boarding, together with undertaking a debt of another $25,000 to $35,000 to be paid subsequent to arrival in Canada.
[7] The four appellants, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah, are alleged to have been the point persons for a transnational for-profit operation to smuggle undocumented migrants from Southeast Asia to Canada. They are said to have been responsible for organizing the asylum-seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — Mr. Handasamy as captain, Mr. Thevarajah as chief engineer, and Mr. Kanagarajah and Mr. Appulonappa as key crew members.
[8] The appellants were charged with the offence of “Organizing entry into Canada” found in s. 117 of the IRPA , which, at the relevant time, provided:
117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.
[9] The IRPA was amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, ss. 41(1) and 41(4) , whereby s. 117(1) was replaced by a new subsection and two subsections were added, which came into force on December 15, 2012. Section 117 as it was at the time of the alleged offences of the appellants is therefore no longer in force. The constitutionality of the current s. 117 is not before us.
B. British Columbia Supreme Court, 2013 BCSC 31, 358 D.L.R. (4th) 666
[10] The appellants brought an application before Silverman J. on a voir dire for a declaration that s. 117 of the IRPA is unconstitutionally overbroad. They did not contend that s. 117 is unconstitutional as it applies to the allegations against them, which are that they were part of a for-profit smuggling operation. However, they argued that s. 117 is unconstitutional because it may lead to the conviction of humanitarian workers or family members assisting asylum-seekers for altruistic reasons. They argued that convicting people in these categories exceeds the legislative intent of s. 117 and infringes the guarantee of liberty contrary to the principle of fundamental justice against overbreadth. This violation of the liberty guarantee in s. 7 of the Charter was not justified under s. 1 of the Charter , they submitted.
[11] The Crown accepted that the purpose of s. 117 was not to convict persons helping close family members come to Canada or persons providing legitimate humanitarian aid to people coming to Canada. However, it argued that this did not render s. 117 overbroad because s. 117(4) of the IRPA required that the Attorney General of Canada authorize prosecution, which would allow him to screen out people in these categories.
[12] Silverman J. concluded that, as the Crown contended, the purpose of s. 117 does not extend to prosecution of genuine humanitarian aid workers or family members. Because s. 117 permits the prosecution of such persons, it violates the s. 7 guarantee of liberty in a way that is overbroad, and hence not in accord with the principles of fundamental justice. Silverman J. held that s. 117 could not be interpreted or “read down” to make it Charter compliant and that the prior consent to prosecution required by s. 117(4) does not save s. 117 from being unconstitutionally overbroad. Nor, in his view, was the overbreadth justified under s. 1 of the Charter . Silverman J. therefore declared s. 117 of the IRPA to be inconsistent with s. 7 of the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982 . He ordered that the indictments of the appellants be quashed: 2013 BCSC 198.
C. British Columbia Court of Appeal, 2014 BCCA 163, 355 B.C.A.C. 98
[13] Before the Court of Appeal, the Crown changed its submission on the purpose of s. 117 of the IRPA . It submitted that s. 117 was enacted to prevent all organizing or assisting of unlawful entry of others into Canada, including assistance to close family members and humanitarian assistance. This, the Crown said, was required to further Canada’s goals of (1) controlling who enters its territory; (2) protecting the health, safety, and security of Canadians; (3) preserving the integrity and efficacy of Canada’s lawful immigration and refugee claims regimes; and (4) promoting international justice and cooperation with other states on matters of security.
[14] The Court of Appeal accepted this revised submission as the purpose of s. 117 of the IRPA and on that basis held it to be constitutional. Neilson J.A. (Bennett and Hinkson JJ.A. concurring) concluded that Canadian laws criminalizing assistance to undocumented migrants have not historically allowed exceptions based on the offender’s motive or other characteristics. When the provision at issue was enacted in 1988, the question of whether humanitarian workers should be exempted received attention, but Parliament, concerned about “definitional difficulties” and “loopholes”, rejected creating an exception for these groups: para. 107. The purpose of s. 117 therefore aligned with its reach, and the provision was not overbroad.
[15] The court added that the s. 117(4) requirement of the Attorney General’s consent to prosecute would guard against improper prosecutions on humanitarian grounds, family grounds or other grounds. If the Attorney General were to authorize prosecution of people assisting close family members or providing humanitarian assistance, the vice would not be overbreadth of s. 117(1), but the improper exercise of ministerial discretion under s. 117(4) .
[16] In the result, the Court of Appeal allowed the appeal, overturned the declaration of invalidity, set aside the acquittals and remitted the matter for trial.
III. The Statutory Scheme
[17] The IRPA (relevant provisions set out in Appendix A) is a complex statute dealing with the entry into Canada of foreign nationals through two processes — the immigration process and the refugee protection process. We are here concerned primarily with the refugee protection process. The IRPA aims to establish “fair and efficient [refugee] 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”: s. 3(2)(e). Both goals are underpinned by Canada’s adhesion to international conventions and protocols, discussed more fully below.
[18] A significant concern for the integrity of Canada’s refugee protection system is the threat posed to it by the entry to Canada of unauthorized persons outside the lawful refugee regime. As part of combating this threat, the IRPA contains two provisions which sanction individuals for helping others to enter Canada without the documents required by border authorities.
[19] Section 37(1) (b) of the IRPA renders a person inadmissible to Canada where the person has “engag[ed], in the context of transnational crime”, in people smuggling, and, in effect, prevents that person’s refugee claim from being determined on its merits. Section 117 , under the marginal note “Organizing entry into Canada”, creates an offence. At the relevant time, it read:
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.[1]
[20] Sections 117(2) and 117(3) provide penalties of imprisonment and fines. At the time of the charges at issue in this case, s. 121(1) (c) of the IRPA under the marginal note “Aggravating factors”, stipulated that committing the offence for profit was a fact to be considered in sentencing under s. 117 .[2]
[21] Subsection (4) provides a screening mechanism for instituting proceedings under s. 117 — prosecutions can proceed only with the consent of the Attorney General.
[22] In summary, participating in the unauthorized entry of other people into Canada may have two consequences under the IRPA . First, it may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117 . Second, it may render a person who engages in certain proscribed activities inadmissible to Canada under s. 37(1) (b). The first consequence — prosecution under s. 117 — is the subject of this appeal. The second consequence — inadmissibility to Canada — is the subject of the companion appeals in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704.
IV. The Issues
[23] The Charter applies to foreign nationals entering Canada without the required documentation: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
As a penal provision with potential sentences up to life imprisonment, it is clear that s. 117 of the IRPA threatens liberty and hence engages s. 7 of the Charter : Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492.
[24] The main issue before us is whether s. 117 of the IRPA threatens liberty, protected by s. 7 of the Charter , in a manner contrary to the principles of fundamental justice. If the answer is yes, a second question arises: Is the infringement justified under s. 1 of the Charter ? If the answer to this second question is no, a final question arises: What is the appropriate remedy for the constitutional infirmity in s. 117 ?
[25] The appellants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. The appellants say that s. 117 is therefore overbroad, contrary to the principles of fundamental justice. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality.
V. Discussion
A. Does Section 117 of the IRPA Violate Section 7 of the Charter ?
(1) Overbreadth
[26] A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford, “[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.
[27] The first step in the overbreadth inquiry is to determine the object of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object. To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.
[28] The appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably foreseeable situations. It is indeed established that a court may consider “reasonable hypotheticals” to determine whether a law is consistent with the Charter : see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.
[29] The first scenario the appellants ask us to consider is the situation of a person assisting a close family member to flee to Canada. The appellants cite as examples a mother carrying her small child, or the father of a household taking his family dependants with him aboard a boat. This scenario could also encompass cases of mutual assistance among unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their collective flight to safety is not meaningfully different from family members assisting one another and, as showed by the companion case B010, is a reasonably foreseeable situation.
[30] The second scenario advanced by the appellants is the case of a person who, for humanitarian motives, helps people to flee from persecution. History is replete with examples of people who have aided others to flee persecution for humanitarian reasons. Sometimes the person is acting as an individual. Sometimes the person is a member of an organization devoted to helping people flee lands where they face threats and persecution. Church groups may help undocumented people find refugee protection in Canada: House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p. 8002 (Hon. Gerry Weiner, Minister of State (Immigration)). Humanitarian aid to fleeing people is not merely hypothetical; it is a past and current reality.
(a) The Object of Section 117 of the IRPA
[31] As discussed, overbreadth analysis turns on whether the reach of the law exceeds its object. The first step is therefore to determine the object of s. 117 .
[32] The Crown argues that the purpose of s. 117 is to catch all acts that in any way assist the entry of undocumented migrants. On this interpretation, s. 117 cannot be overbroad. The appellants, by contrast, submit that the offence of “human smuggling” has a narrower purpose than the Crown asserts, making it overbroad in catching all acts of assistance.
[33] As with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 879-82. Where legislation is enacted in the context of international commitments, international law may also be of assistance.
[34] For the reasons that follow, I agree with the appellants that the purpose of s. 117 is narrower than that asserted by the Crown. The text of s. 117 is admittedly broad. However, a narrow purpose emerges from (1) the international instruments to which Canada has subscribed; (2) the role of s. 117 in relation to the statute as a whole, in particular s. 37(1) ; (3) the IRPA ’s statements of legislative purpose; (4) the evolution of s. 117 ; and (5) the parliamentary debates. Considering these indicia of purpose, it becomes evident that the true purpose of s. 117 is to combat people smuggling. The meaning of “people smuggling”, a term found in s. 37(1) (b) of the IRPA , is the subject of the companion case B010, and excludes mere humanitarian conduct, mutual assistance or aid to family members. I conclude that s. 117 violates the Charter by catching these categories of conduct outside the provision’s purpose.
(i) The Text of the Provision
[35] At the relevant time, the text of s. 117 read as follows:
117. (1) [Organizing entry into Canada] 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) [Penalties — fewer than 10 persons] 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) [Penalty — 10 persons or more] 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 without consent] No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.
[36] All agree that the text of s. 117(1) is broad enough to catch assistance to close family members and humanitarian assistance. It may be argued that since Parliament used these words, that is what it intended. However, the doctrine of overbreadth recognizes that sometimes “the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective”: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 792; Bedford, at para. 101; Carter, at para. 85. The potential for “failures of instrumental rationality”, in which a given law is not a rational means to achieve a legislative objective, requires courts to go further than the text alone, and ask whether other considerations suggest Parliament’s purpose was narrower: Bedford, at para. 107.
[37] Before leaving the text, it may be noted that despite the broad wording of the subsection that provides the elements of the offence (s. 117(1)), other portions of the text of s. 117 support the view that Parliament’s purpose was not to criminalize family or humanitarian assistance. The marginal note of s. 117 , “Organizing entry into Canada”, read with the subheading “Human Smuggling and Trafficking”, while not to be accorded great weight (see Sullivan, at pp. 465-68), suggests that the provision is aimed at activity in connection with the smuggling of persons in the context of organized crime, as contrasted with providing humanitarian assistance or aiding close family members to enter a country without the required documents.[3]
[38] Sections 117(2) and 117(3) also support the view that Parliament’s intent was to catch smuggling activity in the context of organized crime, rather than humanitarian, mutual or family assistance. These subsections provide for significantly increased sanctions based on the number of persons brought in. This suggests a heightened focus on large-scale smuggling operations.
[39] Finally, the requirement in s. 117(4) that no prosecution occur without the Attorney General’s consent suggests that s. 117 was not intended to convict everyone who falls within s. 117(1)’s broad ambit, as discussed more fully below.
(ii) Canada’s International Obligations
[40] As a matter of statutory interpretation, legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations. Courts must also interpret legislation in a way that reflects the values and principles of customary and conventional international law: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34. Section 3 of the IRPA also requires that the IRPA be interpreted in a manner that complies with Canada’s international obligations, including “international human rights instruments to which Canada is signatory”: s. 3(3) (f); see also s. 3(2) (b). The relevant international instruments to which Canada has subscribed should therefore shed light on the parliamentary purpose behind s. 117 of the IRPA .
[41] The provisions of the IRPA relating to the fight against the assisting of unauthorized entry of persons to Canada respond to Canada’s international commitments related to these matters in the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (“Refugee Convention”), the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, the 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 (“Smuggling Protocol”), and the 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.
[42] The Refugee Convention reflects humanitarian concerns. It provides that states must not impose penalties for illegal entry on refugees who come directly from territories in which their lives or freedom are threatened and who are present on the territory of the foreign state without authorization, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”: art. 31(1).
[43] Consistent with this, s. 133 of the IRPA provides that foreign nationals who enter Canada without documents cannot be charged with illegal entry or presence while their refugee claims are pending. As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1) , a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.
[44] The Smuggling Protocol is concerned with stopping the organized crime of people smuggling. It seeks to prevent and combat the smuggling of migrants and to promote cooperation among states to this end, while protecting the rights of smuggled migrants: art. 2. Article 6(1)(a) requires signatory states to adopt measures to establish migrant smuggling as a criminal offence. The Smuggling Protocol includes as a minimum definition for this offence, procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3 (a). As I explain in B010, the Smuggling Protocol was not directed at family members or humanitarians: paras. 60 and 68. Furthermore, while the Smuggling Protocol permits subscribing states to enact national laws