Supreme Court


Charter of Rights

Fundamental justice

Section 117 of Immigration and Refugee Protection Act (Can.) declared overbroad

Accused charged with human smuggling under s. 117 of Immigration and Refugee Protection Act. Section 117 prohibits organizing, inducing, aiding, or abetting persons to illegally enter Canada. Attorney General must authorize prosecutions pursuant to s. 117(4). Trial judge found that section was unconstitutionally overbroad. Court of Appeal allowed Crown’s appeal and found section constitutionally compliant. Appeal allowed. Section is overbroad in permitting prosecution of persons aiding family members or providing humanitarian aid. Ministerial discretion not to prosecute did not cure overbreadth. Crown had not shown that overbreadth was demonstrably justified. Appropriate remedy was to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance.

R. v. Appulonappa (Nov. 27, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35958) Decision at 113 W.C.B. (2d) 108 was reversed. 128 W.C.B. (2d) 236.

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