Law Times

Law Times • march 7, 2016 Page 11 www.lawtimesnews.com Supreme Court rulings align Canada with world BY MICHAEL MCKIERNAN For Law Times T wo recent Supreme Court decisions that narrowed the scope of people smug- gling in the context of refugee law bring Canada back in line with international standards, according to refugee advocates. In R. v. Appulonappa, the nation's top court read down s. 117 of the Immigration and Refugee Protection Act, after finding it was unconstitution- ally overbroad for allowing the prosecution of refugees who helped fellow refugees or fam- ily members into the country illegally, as well as potentially criminalizing humanitarian aid to undocumented entrants. In a related decision, B010 v. Canada (Citizenship and Im- migration), the court also ruled individuals can only be declared inadmissible to Canada for peo- ple smuggling if they stood to profit from the act. "This pair of decisions is a hugely important rejection of an approach to asylum that crimi- nalizes refugees and those who assist them," says Andrew Brou- wer, the senior counsel in refu- gee law at Legal Aid Ontario. "It's a one-two punch to an ap- proach that was out of step with the basic guiding principles of refugee law," adds Brouwer, who appeared on behalf of the Ca- nadian Association of Refugee Lawyers, an intervenor in both cases before the Supreme Court. Angus Grant, another LAO lawyer, acted for the Canadian Council for Refugees in its in- tervention before the top court in both cases, and says he and his client were "very happy" with the results. "In my mind, the decisions really helped make sure Can- ada's law remained consistent and aligned with international law on people smuggling," Grant says. "It was also validating that the court recognized that people might, for legitimate reasons, want to assist refugees to assert their right to come into Canada to seek asylum. That's a large part of the CCR's purpose, so we wanted to make sure that the court recognized that what our constituents are doing is not un- lawful but is actually something that is contemplated by the law." In the criminal case, Francis Appulonappa and three oth- ers were charged under s. 117 of the IRPA because they were the chief crew members aboard the Ocean Lady, a ship that sparked a media firestorm when it was stopped off the coast of Vancou- ver Island in 2009 carrying 76 Sri Lankan Tamils, all of whom applied for refugee status. The section, which has since been amended, made it an offence to "organize, induce, aid or abet the coming into Canada" of people without visas, passports, or other documents required by the Act. The Crown alleged the four were key contacts for an inter- national for-profit organization that charged those on board be- tween $30,000 and $40,000 for passage to Canada from points of origin in Southeast Asia, but before the trial, they challenged the constitutionality of the sec- tion of the IRPA under which they were charged. A British Columbia Supreme Court judge sided with the men, finding the provision breached s. 7 of the Canadian Charter of Rights and Freedoms, because in addition to organized people smuggling, it also criminalized humanitar- ian and family assistance to ref- ugees. British Columbia's appeal court overturned that finding, but in its Nov. 27 decision, the Supreme Court of Canada again sided with the migrants. "I conclude that the prefera- ble remedy is to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place," wrote Chief Justice Beverley McLach- lin on behalf of the unanimous seven-judge panel. In B010, the five appellants were all found inadmissible to Canada under s. 37(1)(b) of the IRPA, which bars non-citizens from the country for engaging, "in the context of transnational crime, in activities such as peo- ple smuggling, trafficking in persons or money laundering." Four of the migrants were aboard the Sun Sea, which was intercepted off the coast of B.C. in another blaze of publicity in 2010, unloading more than 500 Sri Lankan Tamil asylum seek- ers. They took over various du- ties on board the dilapidated ship when the original Thai crew abandoned the vessel. A fifth, Jesus Hernandez from Cuba, was accepted as a refu- gee in the U.S. back in 2001, but he was later convicted of alien smuggling after using his boat to transfer 48 more Cubans to the U.S. without notifying au- thorities. He f led to Canada and claimed refugee protection here before he could be deported. All five were declared in- admissible by the Immigra- tion and Refugee Board, which found that s. 37(1)(b) covers any assistance to illegal migrants, without requiring a profit mo- tive. After varying levels of suc- cess on judicial review, the Fed- eral Court of Appeal reaffirmed the IRB's broad interpretation of the subsection and findings of inadmissibility. However, in its judgment, the Supreme Court found the IRB's interpretation unreasonable, and remitted the cases back to the board for re- consideration. "The tools of statutory in- terpretation — plain and gram- matical meaning of the words; statutory and international con- texts; and legislative intent — all point inexorably to the conclu- sion that s. 37(1)(b) applies only to people who act to further il- legal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refu- gees or asylum-seekers in their collective f light to safety is not inadmissible under s. 37(1)(b)," McLachlin wrote for the court. Ron Poulton, who acted for Hernandez at the Supreme Court, says the particular facts of his client's case were perfect to highlight the harshness of the IRB's interpretation of people smuggling. "I don't think people would have anticipated that there even were cases like his out there," Poulton says. "It was a glaring indication of how wrong the in- terpretation was, because it was clear from the start that he was just an innocent guy trying to get his family out of Cuba." Although the number of people affected by the new inter- pretation will be limited, Poul- ton says other elements of the Supreme Court decision could have further-reaching implica- tions. For example, the court's invocation of s. 3(3)(f ) of IRPA, which instructs courts to apply the act in a way that "complies with international human rights instruments to which Canada is signatory," was significant, ac- cording to Poulton. In her deci- sion, McLachlin concluded the section required her to consider the Palermo Convention on organized crime, as well as the United Nations' Refugee Con- vention when interpreting the inadmissibility provision at is- sue in B010. "Sometimes, it seems like lip service is paid to ensuring con- sistency with Canada's interna- tional human rights commit- ments, but this is a really pow- erful statement of how interna- tional law impacts on domestic legislation," Poulton says. Despite the success in both cases, Brouwer says he was dis- appointed with the Supreme Court's refusal to declare s. 37(1) (b) unconstitutional. The appel- lants in B010 argued the provi- sion violated the Charter for its overbreadth, but the unanimous panel ruled that the Charter is not engaged at the stage of deter- mining admissibility to Canada. "That is a lingering concern for CARL, because of the im- plications of an inadmissibility finding. Individuals get steered out of the refugee determina- tion stream into an alternative stream that we find inadequate," he says. LT FOCUS Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Gail J. Cohen, Editor in Chief, Canadian Lawyer/Law Times Dress: Business Attire Innovation. It's in our DN The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. innovatio-awards.com Untitled-1 1 2016-03-03 8:39 AM Ron Poulton says a case he acted in highlighted the harshness of the way people smuggling was interpreted in Canada.

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