The smuggling of human beings across international borders is a matter of increasing concern around the world. People smuggling can be viewed in starkly contrasting ways, either as inherently immoral and posing a potential threat to border security or it could be seen as helping to protect those who use a smuggler’s service as a means to reach safety in Canada.
Viewing all people smugglers as evil is an oversimplification that removes the focus from understanding their goals and reasons why asylum seekers might choose to engage a smuggler’s service.
The top court resolved that s. 37(1)(b) targets procuring “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.”
Consequently, the acts of humanitarian and mutual aid, which includes aid between family members, do not constitute people smuggling.
Here’s a truncated version of the cases’ facts. In Hernandez, the United States accepted Hernandez, a native of Cuba, as a refugee in 2001. Two years later, he purchased a boat and used it to transport 48 Cubans to the United States and was convicted of alien smuggling. He received a deportation order. He then entered Canada and claimed refugee protection.
In B010, J.P., G.J. and B036, the individuals were among a group of 492 Tamils from Sri Lanka who boarded a ship. The organizers of the voyage promised to transport them to Canada for sums ranging up to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum seekers on board. Twelve migrants took over various duties during their voyage across. B010 worked shifts in the engine room, J.P. and his wife G.J. stood lookout, while B306 acted as a cook.
The Canada Border Services Agency investigated and found that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada.
The Immigration Division of the Immigration and Refugee Board found B010, J.P., G.J. and B036 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 element.
In Hernandez’s case, the board found he was inadmissible because of serious criminality under s. 36(1)(b) of the IRPA, due to his U.S. conviction.
On judicial review of the board’s various decisions, federal court judges took different views of the scope of s. 37(1)(b). B010’s application was rejected, while J.P.’s., G.J.’s, B306’s and Hernandez’s applications were allowed, on the basis that people smuggling does not pertain to individuals who are not motivated by financial gain or material benefit. These findings 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, but in the remaining cases the FCA allowed the appeals and reinstated the board’s decision of inadmissibility, because it was of the view that s. 37(1)(b) does not require a profit element.
On appeal to the SCC, the main issue was the range of conduct that makes a person inadmissible to apply for refugee status for having engaged in people smuggling under s. 37(1)(b).
The government argued that the section’s wording catches any and all assistance of undocumented migrants to Canada. In its view, to hold that people smuggling requires a profit motive fails to capture smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism.The appellants successfully contended that the prohibited range of conduct is much narrower and confined to activities directed at a financial or other material benefit.
At first, the SCC was unable to find a profit motive on the ordinary and grammatical meaning of the words alone. Then it considered the focus of s. 37(1)(b), which is “organized criminal activity.” The court found that the phrase “organized criminality” under IRPA should be given a consistent interpretation to the Criminal Code’s definition of “criminal organization,” which expressly requires a financial or other material benefit.
The SCC concluded 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.”
The SCC clarified that the words “transnational crime” cannot be read as including non-organized, individual criminality. Consequently, s. 37(1)(b) applies to acts of illegally bringing people into Canada, only “if that act is connected to transnational organized criminal activity.”
In the midst of the Syrian refugee crisis, the B010 decision is timely and welcome. It provides much needed clarity to the murky area of the immigration law. It shields from prosecution those who altruistically seek to aid in the illegal entry of asylum seekers to Canada.
Nikolay Chsherbinin is employment and immigration lawyer at Chsherbinin Litigation and author of The Law of Inducement in Canadian Employment Law published by Carswell, a Thomson Reuters Business. He can be reached at 416-907-2587, firstname.lastname@example.org, or by visiting nclaw.ca.