Can Human/People Smuggling Be Qualified As A Humanitarian Act? - A Question Revisited

Roughly two years ago, I published a post entitled "Can Human/People Smuggling Be Qualified As A Humanitarian Act" Close to a year and a half later, in November 2015, the Supreme Court rendered a decision concerning whether those engaged in people smuggling for humanitarian reasons were inadmissible for refugee status under Canadian law.  In B010 v Canada (Citizenship and Immigration), the Court flatly rejected the notion that asylum-seekers who provided humanitarian and mutual assistance to others seeking refuge were deemed inadmissible under the Immigration and Refugee Protection Act (IRPA).

In B010, the Court was called upon to interpret Section 37(1)(b) of the IRPA and specifically "people smuggling". The provision states: "A permanent resident or a foreign national is inadmissible on grounds of organized criminality for...engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering." 

Before continuing, it's worth addressing the factual context of the judgment. Although indexed as B010 v Canada (Citizenship and Immigration), the decision concerned four separate appeals. One applicant (Jesus Rodriguez Hernandez) was a Cuban asylum-seeker who previously co-purchased a boat to smuggle 48 other Cubans into the United States. He was subsequently convicted of alien smuggling by the United States Government and served time before having fled to Canada to seek asylum. The majority of the other applicants (B010, J.P., G.J., and B306)  discussed in the B010 decision were Tamil asylum-seekers fleeing Sri Lanka and who landed in Canada aboard the Sun Sea, a cargo ship. Shortly after departing Thailand, the Sun Sea's crew members abandoned ship. The passengers were left to their own devices in reaching Canada over a period of 3 months with limited food supplies. In helping to bring the ship to Canada, the applicants were deemed inadmissible by the Immigration and Refugee Board (IRB) for having engaged in "people smuggling" in connection with the other passengers who were asylum-seekers too. 

The IRB's rather capacious interpretation of "people smuggling" was supported by the federal court of appeal, but ultimately rejected, and unanimously so by a 7-justice panel of the Supreme Court of Canada.

Written by the Chief Justice, the Court first undertook a textual analysis. It determined that the words "people smuggling" read alone could include conduct motivated by humanitarian concerns. However, when "people smuggling" intersects with transnational organized criminality under s.37(1)(b) of the IRPA, the Court asserted that "people smuggling" cannot be read to include non-organized individual criminality. 

A substantial portion of the Court's attention was devoted to a contextual analysis of s.37(1)(b) within the framework of the overall statutory scheme. First, the Court observed that the overall focus of s.37 concerns organized criminal activity. Second, in interpreting what constituted organized criminal activity, the Court examined the concept of "criminal organization" as defined in the Criminal Code. With respect to a "criminal organization", the Code expressly requires that those involved in such entities pursue a financial or other material benefit. While acknowledging that "organized criminality" in the IRPA and "criminal organization" in the Criminal Code are not identical terms, the Court concluded, nevertheless, that there was a sufficient nexus to justify a consistent interpretation between the two statutory terms. 

The Court then turned its attention to the legislative history which indicated that "organized criminality" (in the IRPA) and "criminal organization" (in the Criminal Code) were both framed to account for international agreements regarding transnational organized crime to which Canada was a party. These international instruments included the United Nations Convention against Transnational Organized Crime and the Protocol against the Smuggling of Migrants by Land, Sea and Air [Smuggling Protocol]. Of particular significance to s.37(1)(b) is the portion of article 6 of the Smuggling Protocol which is directed at the prohibition of smuggling “in order to obtain, directly or indirectly, a financial or other material benefit”. 

The Court also assessed that an interpretation of "people smuggling" that was limited to instances motivated by securing financial gain or other material benefit was consistent with article 31 of the 1951 Refugee Convention which expressly prohibits the imposition of penalties on refugees on account of their illegal entry or presence.

As part of the final stage of the Court's analysis, it examined Parliament's purpose in passing the provision. Drawing from the various sources mentioned above and in other portions of the decision, the Court concluded that it was not Parliament's intent to "render refugees inadmissible under s. 37(1)(b) solely for providing mutual assistance to others in the course of their own illegal entry."

In summarizing its analysis, the Court stated at paragraph 72:

The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.

This was undoubtedly an important development in the interpretation of s.37(1)(b). Yet, there are two aspects left unclear following this decision. First, while people smuggling requires that the smuggler be motivated by financial or other material gain, much of the focus appears to be on the circumstances of the Sun Sea applicants where they "merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety." Later, the Court states: "I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b)" (emphasis added). 

Yet what of the individual who is not a fellow passenger rendering mutual assistance, but rather someone who actively assists others - for humanitarian reasons - to illegally enter foreign territory and seek refugee status (as was the case with Hernandez mentioned above)? Furthermore, let us assume that such an individual does so more than once with goal of aiding others as opposed to doing so on one occasion. Should such conduct be captured within the term "people smuggling" and lead to inadmissibility? Drawing from the Court's analysis, one can reasonably argue that persons who engage in people smuggling for purely humanitarian reasons (but not for mutual assistance to other asylum-seekers) should be protected.

It is possible that the Court's focus on fellow asylum-seekers providing mutual assistance to unlawfully enter Canada arises from the particular factual circumstances of the Tamil applicants discussed in the decision. As part of the Court's analysis, it stated that "the words “transnational crime” cannot be read as including non-organized individual criminality." Furthermore, in drawing from the Criminal Code, a criminal organization consists of three or more persons engaged in criminal activity and "has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group."

Drawing from these passages, it stands to reason that the individual or individuals who engage in "humanitarian" smuggling on perhaps more than one occasion might still be able to elude inadmissibility under s.37(1)(b). Yet, it would have been helpful had the Court been more explicit on this point. Hernandez's case could have provided a good illustration of such humanitarian-based people smuggling. However, the Court observed that Hernandez was otherwise inadmissible under s.36 of the IRPA and as such did not address this larger point about strictly humanitarian but not mutual assistance in his case.    

A second and arguably persistent problem that the Court failed to address, as pointed out by Dr. Paul Daly, was the issue of the appropriate standard of review. The Court simply indicated that by virtue of the decision not falling within a reasonable range of outcomes, there was no need to undertake a standard of review analysis. In recent years, much of the analysis has focused on the nature of the question - here a question of law. On the face of it, the provision is contained within the IRB's home statute - the IRPA - and would typically fall within the Board's expertise to interpret it in accordance with the Court's jurisprudence. Furthermore, unlike the Refugee Convention which is expressly referred to in the IRPA, s.37(1) does not explicitly refer to the international instruments upon which it is based. This being said, it is clear from the B010 decision that s.37(1)(b) and other inadmissibility provisions apply to refugee applicants and thus impact on their right to protection under the Refugee Convention as implemented through s.96 of the IRPA. An argument could be made that an interpretation of s.37(1)(b) calls for consistency, and thus a correctness standard is warranted.

As I have expressed in an earlier post, issues concerning the standard of review in the context of refugee cases have remained unresolved. This is even where the provisions of Refugee Convention itself are in play. Though the Court has interpreted portions of articles 1F(a) and (b) in recent years (see here and here), it was reluctant to undertake a standard of review analysis let alone clearly state what standard of review it was applying. In those cases, it looked, arguably, as if the Court were applying a correctness standard. Ultimately, the Court is holding its cards close to its chest on this matter. Hopefully, the "right" case will come along where the Court will provide some illumination on this matter. 

The B010 decision was an important step in the right direction. But as argued above, there is room for greater clarity and hopefully subsequent decisions will provide this.  

Conceptualizing a Jus Cultura: A New Basis for Citizenship or Legal Residency?

Introduction

Imagine you are born in a country and live your whole life there believing that you are a citizen of that country. Then one day, many years later, you are informed that your status as a citizen has been called into a question by "your" government.[1] You are then advised that you are subject to deportation to your "real" country of citizenship. A country that you may have little or no connection to. Being a citizen of a country is an important and integral part of one's identity (or at least it is for most people). The sudden loss of that status and identity can be traumatic and devastating. Although such cases may seem relatively rare, they exist nonetheless. I discuss one such case below - that of Deepan Budlakoti.   

Citizenship law has been in the news a fair bit over the past couple of years. Amongst other issues, there has been much talk surrounding the deprivation of individuals of their citizenship and the general weakening of people's rights as citizens. Concerning these developments in Canada in particular, Professor Audrey Macklin has been an important voice (see her article in the Queen's Law Journal). Professor Macklin's work importantly focuses on legislation which permits the revocation of Canadian citizenship (which mirrors efforts in England). These are important and disconcerting developments. However, I want to draw attention in this post to those who are denied citizenship or even a right to legal residency despite evidence of extensive residency and substantial acculturation within a state and its population. 
     

In this post, I shall offer some preliminary thoughts about a concept that addresses the circumstances of such cases - a jus cultura. A jus cultura as I see it is a right to legal residency if not outright citizenship to those who have lived extensively within a national jurisdiction for a substantial portion of their lives, and who have become intimately integrated and acculturated in the socio-cultural (as well as economic and political) life of the country, but who do not hold citizenship or even legal residency due limitations imposed by current law and to extenuating circumstances that were beyond their control from an early age. While I focus on this one case, I am mindful that the ideas I express here may have applicability and resonance for many other less unique circumstances and phenomena.

These preliminary thoughts are part of a work-in-progress and as my ideas on this concept develop, this post may be subject to further revisions to account for feedback and research (a note will appear on the top of the post indicating the date of the last revision when revisions have been made).

This post is divided into three sections. I start first with the case of Deepan Budlakoti who though having been born in Canada and has lived his whole life in the country, has been denied his status as a citizen. In the second section, I speak in further detail about the jus cultura in view of Budlakoti's case. In the third section, I revisit the Budlakoti case and others whose citizenship or right to legal residency is imperiled but who may benefit from the jus cultura in considering current provisions of Canadian law.  

 

I. The Budlakoti Case

Deepan Budlakoti was born in Ottawa on October 17, 1989. He holds an Ontario birth certificate and has been issued at least two Canadian passports in his lifetime. S.3(1)(a) of the Citizenship Act indicates that a person is a citizen if they were born in Canada after February 4, 1977. On the face of it, Budlakoti would appear to be a Canadian citizen. However, the Canadian government nevertheless does not consider him today to be a citizen of Canada. Here are some reasons why.

When Budlakoti's parents arrived in Canada in the 1980s, they were Indian citizens. They were employed at the Indian High Commission in Ottawa. Near the end of the 1980s, they worked for the Indian High Commissioner at his official residence. Yet, there is some dispute as to whether his parents were employees of the Indian High Commissioner at the time of his birth. This matters a great deal because of the following provision in the Citizenship Act. S.3(2)(b) provides that s.3(1)(a) (noted above) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was an employee in the service of a diplomatic or consular officer or other representative or employee in Canada of a foreign government.

  

Budlakoti was convicted of weapons trafficking and drug importation in 2010. The government of Canada determined that he was not a citizen because one of his parents was employed for an Indian diplomatic officer per s.3(2)(b) of the Citizenship Act. Furthermore, it concluded that he was inadmissible to remain in Canada due to "criminality" as set out in the Immigration and Refugee Protection Act. The Immigration and Refugee Board (IRB) arrived at the same conclusion about Budlakoti's citizenship status after hearing evidence and accordingly issued a deportation order. The Federal Court affirmed the IRB's decision. Budlakoti was eventually released but handed over into the Canadian Border Security Agency's custody. He was subsequently released on the basis of a bond and conditions were imposed with respect to his release. Budlakoti subsequently initiated proceedings in Federal Court seeking a declaration that he is a citizen of Canada (notwithstanding the conclusions made in prior proceedings at the IRB and the Federal Court).

Justice Phelan heard Budlakoti's request for declaratory relief and dismissed the application based on several reasons. First, he doubted that the Court had the power to make such a  declaration unrelated to some other relief or proceedings. Typically, he observed, it is up to the Minister of Citizenship and Immigration or a Citizenship Judge to make such determinations about an individual's citizenship which could then be reviewed by the Federal Court. 

Second, the very issue in question, whether Budlakoti's was a Canadian citizen, was already the subject of earlier proceedings at the IRB and reviewed by the Federal Court - thus raising the question of issue estoppel. In other words, the issue that Budlakoti was seeking to litigate had already been decided on the merits and could not be revisited. In Justice Phelan's view, Budlakoti's application seeking declaratory relief was a collateral attack on a previously decided matter.

Third, even on the basis of the evidence presented, there was significant documentary evidence that at least one of Budlakoti's parents was employed for an Indian diplomatic officer in Canada at the time of their son's birth. Although Budlakoti brought forth affidavit evidence to indicate that this was not the case, the Federal Court determined that the information submitted was inconsistent and the evidence he mounted in support of his position regarding his parents' employment was based on recollections from over two decades ago. The evidence that the government relied on by contrast were documents dating back to the period and had a greater indicia of reliability. 

Fourth, the Court asserted that there was no deprivation of Canadian citizenship if Budlakoti was never a citizen in the first place. Also, according to Justice Phelan, there was no evidence (including expert evidence) that he was not indeed a citizen of India. However, given the fact that India has denied that Budlakoti is an Indian citizen, he is functionally stateless. Of course, it also works in his "favour" that India denies any argument to his being a citizen. If India refuses to allow him entry (and for that matter any other state given his criminal record), he may end up staying in Canada anyway. However, absent some legal recognition, he will not be eligible for health care or to obtain legitimate employment.

[Update (June 18, 2015): The Federal Court of Appeal affirmed Justice Phelan's decision. See Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139)]
 

II. Developing A Jus Cultura

Let us assume for the moment that Budlakoti is truly not a Canadian citizen (in the legal sense) as the IRB and Federal Court have concluded, and by implication, is an Indian citizen under these circumstances (even though as noted, India does not agree at this time to this status). Should the fact that such an individual is de facto Canadian by having lived his or her whole life in Canada and has been raised and acculturated as a Canadian be considered legally relevant in some way as a means to lawfully remain in Canada?[2] To be sure, key factors that go into a Canadian citizenship application include an individual's ability to speak one of Canada's two official languages and their physical presence through residency in the country. Certainly, an individual who was born in Canada (or brought to Canada at a young age in other cases), has lived in Canada (for most of) his/her whole life, and can speak one or both of Canada's official languages should count for something substantial. Should such circumstances give rise to a jus cultura - that is a right or perhaps equitable pathway to citizenship (or legal residency) based on substantial acculturation? It may be useful to understand how citizenship has been traditionally viewed.

Citizenship has been granted on a few bases. First, the jus soli was considered a basis for granting citizenship to an individual based on their his/her birth within a particular country. At present, Canada and the United States generally recognize this while many others have placed greater limits on this. Second, the jus sanguinis has been considered a basis for granting citizenship to someone who, while not born within the territory of the citizenship-granting state, is still entitled to citizenship on the basis that one or both parents held such status. Third, one can obtain citizenship by being "naturalized". This is a process whereby one obtains citizenship first through extensive residency (typically permanent residency) and after satisfying certain criteria (passing a citizenship test, demonstrating adequate knowledge of a national language). 

Distinguishable from the first two modes but more analogous to naturalization, the "jus cultura" should be available to those who are so intimately connected to a particular country and citizenry (or portion of the country and its citizenry) due to extensive residency in the country (possibly since birth), significant acculturation and identity as a de facto citizen of that country. The jus cultura should be available (at the very least) to those who were placed in this precarious condition for reasons substantially outside their control from a young age (i.e. that is being born in the country but ineligible for citizenship status due to limitations imposed by law - such as for Budlakoti - or having been illegally brought by parents or other persons at a young age). This is what distinguishes the jus cultura from naturalization, for in the latter case an individual is present legally, while in the case of the former, the person is not.

In some ways, the person who is a naturalized citizen or who falls within the scope of a jus cultura (as described here) may have more of a tangible connection to the country than some who hold citizenship by virtue of the jus soli or the jus sanguinis. For example, a person may be born in Canada or the United States and then be taken by his/her parents back to their country of origin. Technically, that person may remain a Canadian or United States citizen but have little connection to the country of their birth. Similarly, a person born to Canadian parents but who was born and lives in another country (let us use New Zealand as an example) can obtain and retain Canadian citizenship through the jus sanguinis (see s.3(1)(b) of the Citizenship Act). Let us assume that such a person has only mild or limited contacts to Canada (through an occasional visit), it would be difficult to say that they would have greater connection to Canada than the person who falls within the scope of a jus cultura one who likely has a much greater connection to Canada, but with none of the protections that come with it. 

 

III. The Budlakoti Case Revisited

How would one go about implementing a jus cultura under current Canadian law. Through the Citizenship Act and Immigration and Refugee Protection Act, there may be statutory provisions which could serve as a basis for obtaining citizenship or permanent residence, respectively, and rooted in a theory of jus cultura. For instance, s.5(4) of the Citizenship Act provides that: "Despite any other provision of this Act, the Minister may, in his or her discretion, grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada [emphasis added]." The language here is of course discretionary and meant to extend at least to those in cases of special and unusual hardship. Those for whom the jus cultura might apply, as discussed earlier, are inherently in conditions of a special and unusual hardship. That is, being forced to leave a country which one associates as their own, has extensive residency in, has been acculturated into and whose presence in that country and acculturation were outside their control. In Budlakoti's case specifically, he is functionally stateless and unable to obtain legitimate employment. This might constitute, in reasonable minds a case of special and unusual hardship - as would being sent to a country to which one has little or connection.

However, and this is particularly relevant to someone in Budlakoti's circumstances, the section is limited by s.22(2) of the Citizenship Act:

Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if,

(a) during the three year period immediately preceding the date of the person’s application, [...]

the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act [emphasis added].

What this provision suggests is that someone in Budlakoti's position would have to wait three years before applying under s.5(4). For most, this could be problematic if they were deported first. In Budlakoti's case, since India does not recognize him as a citizen (and is likely unwilling because of his criminal record), he may be able to remain in Canada while waiting for the three years to pass. However, it is also contingent on the Minister granting citizenship under his/her discretion after the requisite number of years passing. This may be challenging even without the criminal record for an indictable offence - with it, and with certain governments and their punitive positions on criminality, this may be next to impossible.  

As an alternative to citizenship, a foreign national may also seek to obtain permanent residence in Canada on the basis of humanitarian and compassionate grounds (s.25 of the Immigration and Refugee Protection Act) where they are otherwise deemed inadmissible. As above, this provision may provide an ample mechanism through which to implement a jus cultura. However, the provision does not permit the Minister to do so where the basis of inadmissibility falls within ss.34, 35 or 37. Assuming Budlakoti's crime does not fall under these provisions of the IRPA, there may be options for Budlakoti or someone similarly situated to obtain permanent residence. Of course, this requires a Minister (or government), as previously mentioned with respect to citizenship, who isn't governed by punitive considerations but a sense of humanitarian sensibilities and compassion.

The concept of a jus cultura can, I believe, find a place in Canadian citizenship and immigration law (as well as those of other jurisdictions where legislative language is broad enough to allow for its incorporation through interpretation). But, it also requires a mind or mindset that is open to the concept and understands the notion of equity, humanity and compassion in a purposive way as well as a sense of proportionality.   

 

Conclusion

The jus cultura as discussed here is hopefully a relevant way in which to view access to citizenship or legal residency (along with all the rights and privileges which such statuses include) on equitable or humanitarian grounds. It is relevant to more than those afflicted with circumstances specific to Budlakoti. Indeed, a jus cultura is also germane to individuals have been born in a state that does not recognize such persons as valid citizens (see here and here as examples). 

A jus cultura also applies to those who may have been brought to a new country at a very young age but their status was never normalized (or perhaps could not ever be due to current law). This would, for example, include many children brought from Central America to the United States illegally by their parents or other persons and raised there, but who face the continued danger of deportation due to their unlawful status. Such individuals, though not born in the United States, are essentially de facto Americans. They speak English, they have attended school, have lived in the United States for numerous years and intimately acculturated into American society. They are likely considered by many of their contemporaries as essentially American. 

It is important to remember the consequences of deportation. The United States Supreme Court has long observed the drastic nature of deporting someone as “the equivalent of banishment or exile.”[3] Absent a pathway to citizenship or legal residency, that may be the ultimate fate of many "citizens".      

 

NOTES

[1] This is distinct from citizenship stripping or revocation in the sense that revoking a person's citizenship indicates that the government acknowledges that an individual holds citizenship but is eligible for that status being revoked based on some conduct. In this article, I am concerned with instances where the person is deemed not to have held citizenship ab initio.

[2] I hasten to add that what it means to be acculturated as a Canadian should not been seen in a narrow or restrictive way.

[3] See Padilla v Kentucky, 559 US 356 (2010). See Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40:1 Queen’s LJ (forthcoming).    

Sources

Legislation and Jurisprudence 

 

Budlakoti v Canada (Citizenship and Immigration), 2014 FC 855, online: http://canlii.ca/t/gdq23.

Citizenship Act, RSC 1985, c C-29, online: http://canlii.ca/t/529x7.

Immigration and Refugee Protection Act, SC 2001, c 27, online: http://canlii.ca/t/529s2.

Padilla v Kentucky, 559 US 356 (2010).

 

Secondary Sources

Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40:1 Queen’s LJ 1.

Can Human/People Smuggling Be Qualified As A Humanitarian Act

Are all human smugglers cut from the same cloth? How should they be constructed and how does the law as well as those who formulate the law do so? As we shall see below, human smugglers tend to be constructed as being motivated by money and vultures feeding off the vulnerabilities of others. While many human smugglers do engage in their acts for profit, others may do so largely for humanitarian purposes. From a legal perspective, international law defines human smuggling differently from domestic jurisdictions such as, amongst others, Canada and Australia.

The Law

Under article 3(a) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the smuggling of migrants is defined as the "procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." By the Protocol's terms, unlawfully shepherding individuals facing persecution into another country for humanitarian purposes is not proscribed activity. Such recognition is important for it acknowledges that individuals fleeing persecution may need assistance to secure their migration to another jurisdiction even if illegally.[1]

States have however taken a different approach to human smuggling. Under Canadian law for example, it is defined much more broadly. Section 117(1) of the Immigration and Refugee Protection Act states the following: "No 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." The breadth of this provision suggests that even those who do so for humanitarian reasons are captured under these provisions. This is further confirmed by the fact that under s.121(1)(c) of the IRPA, the commission of acts committed under s.117 for "profit, whether or not any profit [is] realized" (amongst other reasons) is considered an aggravating factor.  The British Columbia Court of Appeal arrived at this very conclusion in R v Appulonappa. By contrast, engaging in human smuggling for humanitarian reasons might be considered a mitigating factor, but it is clear by the language that it will not relieve the smuggler of liability. 

In addition, engaging in "people" smuggling is grounds for inadmissibility into Canada, even where, as in s.117, such conduct is for humanitarian reasons. In Canada (Public Safety and Emergency Preparedness) v JP, Canada's Federal Court of Appeal concluded that people smuggling even for humanitarian grounds was a valid ground for inadmissibility (just as it is valid as basis for criminal liability under s.117 for human smuggling). As part of its decision, the Court of Appeal observed that in criminal cases, motives are usually irrelevant with respect to the elements of the crime. As such, whether or not someone engages in people smuggling with a humanitarian motive is irrelevant with respect to the intent to commit the prohibited act.

Rethinking Human Smugglers

To be sure, human/people smuggling for the purpose of financial gain should be appropriately outlawed. It exploits the vulnerabilities of those who may be fleeing on account of a well-founded fear of persecution. This is however clearly distinguishable from instances where a person assists another without seeking any financial gain. Furthermore, even where the smuggler receives some compensation which essentially covers the costs of the smuggling operation (i.e. food for the trip, fuel etc), one can hardly say that receipt of such compensation constitutes a "gain". Assisting other persons out of a desire to help does not necessitate that they become paupers or risk impoverishment. It is also useful to remember that not everyone is capable of undertaking an arduous journey without some assistance. If there is a right to seek asylum, it seems rather incongruous to deem as criminal behavior efforts to help asylum-seekers reach their destination (assuming again it is not undertaken for profit). The efforts of smugglers can assist many in obtaining refugee status. For example, it is worth noting that in the case of one human smuggler, Hadi Ahmadi, 886 of the 911 individuals he brought/smuggled into Australia received refugee status (this represents a 97% success rate).

This rather uncompromising approach which deems all human/people smuggling as criminal behavior is well represented in political discourse. Speaking as the Australian Prime Minister (as he then was) Kevin Rudd asserted that "People smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth." He added, ""People smugglers are the vilest form of human life. They trade on the tragedy of others and that's why they should rot in jail and in my own view, rot in hell."

In contrast to this rather stark image projected by Mr. Rudd, others have articulated a rival image - that of a humanitarian seeking to help others escape persecution. One such person is Ali Al Jenabi, an Iraqi citizen, who, along with his family, was persecuted by Saddam Hussein's regime. Mr. Al Jenabi managed to escape Iraq and reach Australia. He sought to bring his family and others into the country. However as Bruce Haigh explains, due to lack of money and dishonest operatives in the informal transport networks, Al Jenabi entered the people smuggling "business" and managed to bring members of his family and hundreds more into Australia. Refugees such as Al Jenabi are well acquainted with the perils of fleeing persecution and can operate to help assist and navigate others to safety. While some human smugglers may personify the type of individuals Mr. Rudd described, they do not represent the entirety of those who attempt to assist others to find safe harbour.

Current Canadian (and Australian) law has not responded well to the diversity that exists among human smugglers. Furthermore, current domestic law in these and other jurisdictions has failed to consider the humanitarian purposes of the Refugee Convention and the protection of those fleeing persecution. Politicians have blinded themselves to the challenges faced by asylum-seekers in getting to their destination through legitimate routes. Lawmakers must appreciate the need for nuance and distinctions between smugglers and should design a system that countenances these differences.

[1] It is perhaps worth noting that article 31(1) of the 1951 Convention Relating to the Status of Refugees provides that contracting states shall not impose penalties on refugees for their illegal entry or presence into the contracting state. The terms of the article are directed at the refugees themselves and not those who may smuggle them in. However, it nevertheless reflects an understanding that refugee's migration into a contracting state may have to take place through illegal means or entry. If a bona fide refugee's illegal entry should not be punished under the terms of the Convention, should those who smuggle them in (provided it is not for profit) also be exposed to penalties and legal sanctions? Imposing penalties on those who can assist a refugee's migration to a safe territory may deter those from engaging in such assistance. Professor Guy S. Goodwin-Gill has observed however that notwithstanding the terms of s.31, states have nevertheless imposed penalties on refugees themselves. See Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003), online: <http://www.refworld.org/docid/470a33b10.html>.

 

Sources

Primary Sources

B010 v Canada (Citizenship and Immigration), 2013 FCA 87, online: CanLII  <http://canlii.ca/t/fwmwt>.

Canada (Public Safety and Emergency Preparedness) v JP, 2013 FCA 262, online: CanLII <http://canlii.ca/t/g1t6s>.

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force22 April 1954). 

Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 December 2000, 40 ILM 384 (2001) (28 January 2004), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

R v Appulonappa, 2014 BCCA 163, online: CanLII <http://canlii.ca/t/g6pg1>.

United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

Secondary Sources

Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003).

Bruce Haigh, "People smuggler or the Schindler of Asia?" The Drum (7 May 2012), online: <http://www.abc.net.au/news/2012-05-07/haigh-people-smuggler-or-the-schindler-of-asia3f/3994310>.

Project Safecom, "The Case of Mr. Hadi Ahmadi" (undated), online: <http://www.safecom.org.au/ahmadi-case.htm>.

Refugee Action Coalition Sydney, "People Smuggling" (undated), online: <http://www.refugeeaction.org.au/?page_id=1809>.

Emma Rodgers, "Rudd wants people smugglers to 'rot in hell'" ABC News (17 April 2009), online: <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814>.

Andreas Schloenhardt & Connor Davies, "Smugglers and Samaritans: Defences to People Smuggling in Australia" (2013) 36(3) University of New South Wales Law Journal 954, online: <http://www.austlii.edu.au/au/journals/UNSWLJ/2013/36.html>.