THE Supreme Court of Canada this week heard arguments in a series of cases concerning provisions in the Immigration and Refugee Protection Act (IRPA) relating to “human smuggling.” The B.C. Civil Liberties Association (BCCLA) was an intervener in R. v. Appulonappa, which considers the constitutionality of s. 117 of IRPA, which criminalizes “people smuggling.” The law currently makes it a crime for any person to assist anyone entering Canada without valid documentation, including humanitarian workers assisting refugees fleeing persecution.

The accused are four defendants who are charged with human smuggling under s. 117. The charges relate to the arrival of the MV Ocean Lady in 2009, which brought 76 Sri Lankan Tamils into Canadian waters. At trial, the accused argued that s. 117 is overbroad, as it criminalizes any person who knowingly assists any undocumented individual in coming to Canada. This includes individuals the government did not intend to prosecute, such as those who provide support to migrants for humanitarian reasons, and individuals who provide support to migrants on the basis of close family ties. The B.C. Supreme Court agreed, and found s. 117 to be unconstitutional.

On appeal, the Crown argued that the trial judge erred in accepting the Crown’s own original trial-level argument that s. 117 was aimed at stopping human smuggling and protecting the victims of human smuggling in accordance with Canada’s international obligations. The Crown shifted its argument on appeal, expanding its description of the law’s purpose to say that while combatting human smuggling is one objective of s. 117, the law’s primary purpose is to prevent individuals from arranging the unlawful entry of others into Canada, with additional secondary goals such as enforcing Canada’s sovereignty, maintaining the integrity of Canada’s immigration and refugee system, protecting public health and safety, and promoting international justice and security. The BC Court of Appeal accepted the Crown’s new argument and reversed the lower court’s decision.

At the Supreme Court of Canada, the BCCLA argued that vague or imprecise definitions of legislative objectives are inappropriate because they undermine the ability for courts to meaningfully review legislation for compliance with the Charter. In addition, the Crown’s broad characterization of the law’s objectives is unsupported by the legislative history of the provision, and accepting this characterization would skew the analysis of the provision’s constitutionality.

The BCCLA was represented by Marlys Edwardh and Daniel Sheppard of Sack Goldblatt Mitchell LLP.

The BCCLA’s argument in this case is available here.