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:
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.
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.
