Law Times

Page 8 December 14, 2015 • Law Times www.lawtimesnews.com Altruistic people smugglers catch a break Top court says refugee inadmissibility test includes profit motive he smuggling of human beings across interna- tional borders is a mat- ter of increasing concern around the world. People smug- gling can be viewed in starkly con- trasting 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 under- standing their goals and reasons why asylum seekers might choose to engage a smuggler's service. In B010 v. Canada (MPSEP), the Supreme Court of Canada heard four appeals, which dealt with the question of what range of conduct makes a person inad- missible to Canada for having en- gaged in people smuggling, under s. 37(1)(b) of the Immigration and Refugee Protection Act. e top court resolved that s. 37(1)(b) targets procuring "il- legal entry of asylum seekers in order to obtain, directly or indirectly, a finan- cial or other material benefit in the context of transnational orga- nized 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 Her- nandez, 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 deporta- tion order. He then entered Cana- da and claimed refugee protection. In B010, J.P., G.J. and B036, the indi- viduals were among a group of 492 Tamils from Sri Lanka who boarded a ship. e organizers of the voy- age promised to trans- port them to Canada for sums ranging up to $30,000 per per- son. Shortly aer de- parture, the ai crew abandoned the ship, leaving the asylum seekers on board. Twelve migrants took over various duties during their voyage across. B010 worked shis in the engine room, J.P. and his wife G.J. stood lookout, while B306 acted as a cook. e Canada Border Services Agency investigated and found that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada. e 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 re- quire a profit element. In Hernandez's case, the board found he was inadmissible be- cause 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. ese find- ings 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 con- duct that makes a person inadmis- sible to apply for refugee status for having engaged in people smug- gling under s. 37(1)(b). e government argued that the section's wording catches any and all assistance of undocu- mented migrants to Canada. In its view, to hold that people smug- gling requires a profit motive fails to capture smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism. e appellants successfully con- tended 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 ordi- nary and grammatical meaning of the words alone. en it con- sidered the focus of s. 37(1)(b), which is "organized criminal ac- tivity." e 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. e 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 fi- nancial or other material benefit in the context of transnational organized crime." e SCC clarified that the words "transnational crime" cannot be read as including non- organized, individual criminal- ity. Consequently, s. 37(1)(b) ap- plies 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 refu- gee 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 seek- ers to Canada. uNikolay Chsherbinin is em- ployment and immigration law- yer at Chsherbinin Litigation and author of The Law of Induce- ment in Canadian Employment Law published by Carswell, a Thomson Reuters Business. He can be reached at 416-907-2587, nc@nclaw.ca, or by visiting nclaw.ca. COMMENT Labour Pains Nikolay Chsherbinin T SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. For more information visit www.practicallaw.ca

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