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File Number: 35685
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
Between: B306 Appellant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent
APPELLANT'S FACTUM
Raoul Boulakia Community Legal Services 3 I Prince Arthur A venue Ottawa Centre Toronto, Ontario I Nicholas Street M5R IB2 Suite 422 Ottawa, Ontario KIN 7B7
Tel.: (4I6) 963-4488 (ext. 135) Michael Bossin Fax: (4I6) 960-5456 Tel.: (613) 24I-7008 E-mail: raoul@,boulakia.ca Fax: (613) 24I-8680 E-mail: [email protected] Counsel for the Applicant, B306 Ottawa Agent for Counsel for the Applicant, B306
JUSTICE CANADA JUSTICE CANADA Marianne Zoric Civil Litigation Branch General Counsel 500-50 O'Connor Street, Room 557 Department of Justice Canada Ottawa, Ontario KIA OH8 Immigration Law Section Ontario Region Christopher M. Rupar Tel: (613) 670-6290 The Exchange Tower Fax: (613) 954-I920 130 King St. West E-mail: [email protected] Publication Ban Interdiction de publication
Suite 3044, Box 36 Toronto, Ontario Ottawa Agent for Counsel for the M5X 1K6 Respondent, the Minister of Public Tel.: (416) 952-9631/(416) 973-9520 Safety and Emergency Preparedness Fax: (416) 954-8982
Counsel for the Respondent, the Minister of Public Safety and Emergency Preparedness
Fran~ois Joyal Senior Counsel Department of Justice Canada Guy-Favreau Complex, East Tower 200 Rene-Levesque Blvd. West 12111 Floor Montreal, Quebec H2Z 1X4 Tel.: (514) 283-5880 Fax: (514) 496-7876
Counsel for the Respondent, the Minister of Public Safety and Emergency Preparedness Publication Ban Interdiction de publication
TABLE OF CONTENTS
DESCRIPTION PAGE
PART I-OVERVIEW AND FACTS 1
PART II - QUESTIONS IN ISSUE 5
PART III - ARGUMENTS 6
PART IV - SUBMISSION ON COSTS 40
PART V - ORDERS SOUGHT 40
PART VI - TABLE OF AUTHORITIES 41
PART VII - LEGISLATION AT ISSUE 43
Immigration and Refugee Protection Act 44
The Canadian Charter ofRights and Freedoms 51
APPENDIX-ORDER STATING CONSTITUTIONAL QUESTIONS 52 Publication Ban Interdiction de publication 1
PART I- OVERVIEW AND STATEMENT OF FACTS A. OVERVIEW
1) The Appellant is a refugee who has been found inadmissible to Canada on the basis of an interpretation of s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) which treats his assistance while aboard a boat of refugees travelling to Canada as making him culpable of "people smuggling". The consequence of that finding, unlike other findings of inadmissibility generally applied to refugees, is to bar him from having his refugee claim determined, and expose him to a risk of refoulement regardless of whether his status as a Convention refugee should have 10 been recognized. This is in direct contradiction to Canada's international law obligations to refugees. The rights to seek asylum and be secure from the threat of refoulement are human rights of fundamental legal importance. These basic human rights cannot be superseded by the competing interest of states in penalizing or discouraging unlawful travel.
2) The presumption in international law that it is the determination of Convention refugee status which will determine whether a person who has arrived unlawfully can be refouled is predicated on an understanding that the human impulse to survive is a natural and not morally blamew01ihy. This has a parallel to the defence of necessity. The Appellant's lack of moral culpability must be understood in the actual circumstances at the time he acted. This should also 20 inform whether the inadmissibility provision selected is even appropriate.
3) Abstraction and compaiimentalization of each element of factual and legal aimlysis has led to arbitrary results in this case. The statute, read as a whole, can only make sense if it is interpreted based on a harmonious understanding of basic principles in international human rights law, the Common Law and the Charter.
4) The effect of a determination that a refugee is found described in s. 3 7 (1 )(b) engages the rights to security of the person ins. 7 of the Charter. The fact that it can be read to include a refugee assisting in his own unlawful travel, or as part of a group, renders the section overbroad, 30 ai·bitrary and grossly disproportionate. Publication Ban Interdiction de publication 2
5) The complexity and inter-relatedness of the legal issues involved, and the gravity of the . rights at stake, require that a standard of correctness be applied, paiiicularly as the decision maker has no expertise in refugee law, criminal law or the Charter.
B. STATEMENT OF FACTS: The Inadmissibility hearing 6) The Appellant is a young Tamil male from northern Sri Lanka, who sought to come to Canada to claim refugee status, as he states that he fears torture and extra-judicial killing in Sri Lanka. He fled to Thailand, where a smuggler took away his passp01i and told him he must not 10 attempt to register with the UNHCR in Thailand, due to problems there. The smuggler also destroyed his passp01i, returning only one page. He was smuggled to Canada on the Sun Sea ship, along with other Tamil refugees. He had no role in planning or organizing the trip. His family paid for his travel, paying part of the money before he boarded, and the remainder after he arrived in Canada. He was detained on arrival and claimed refugee status. The CBSA confirmed while he was detained that his family had "put up their land" and "borrowed money" to pay the entire amount to the smugglers. 1
7) He admitted to the CBSA that while on board the ship he had agreed to cook meals for the crew and watch for other ships, in exchange for food. The CBSA argued that this made him prui of 2 0 the smuggling organization, however he was released from detention after a Member of the Iimnigration Division decided it was unreasonable to characterize him as such. He was then referred to an admissibility hearing before another Member of the Iimnigration Division, based on the same facts. He said he could not get food othe1wise since he was in a ship, not on land. 2
8) In the admissibility hearing he testified in greater detail about being hungry and in poor health when he boarded the ship. He stated that he had been vomiting and had a fever for about a month after he boarded the ship. While the evidence led in related cases (such as BOlO) shows there.was initially a Thai crew, which abandoned the ship, leaving it in the hai1ds of the Tamil
28 1 Appellant's record pp. 137, 141-147 2 Appellant's record, pp. 138-139, 151, 166, 168-169 Publication Ban Interdiction de publication 3
refugees, he was sick throughout that time period. He found the food he was being given was inadequate, especially as he was recovering from being sick. He learned that he would only be given extra food if he performed tasks a person he refeITed to as the Captain of the ship assigned him. He stated that he feared offending the Captain and having his food rations reduced, or "do something else and I don't have anybody else there" -refeITing to having no family or friends on the ship. He testified that like the other passengers he had to hide below deck if a ship was coming, as he was not part of the crew. His testimony was that he was a passenger, completely dependant on the passengers who had taken charge of the ship for his food, and that he only gave assistance to them to be given adequate food. 3 10 9) The Immigration Division Member ruled that he is inadmissible under s. 37(l)(b) of the IRPA, relying on s. 117(1) of the IRPA to define the term "people smuggling" ins. 37(l)(b). The Meniber relied on the Appellant's testimony at the hearing, accepting that he "testified in a straightforward manner" and that his testimony was "credible and trustworthy". The Member found that the Appellant was engaged in people smuggling because he aided and abetted the smugglers by helping the crew. "[The Appellant's] 'watch keeping duties' helped to prevent the potential interception of the ship as it proceeded to Canada. His work as a cook ensured that the crew had prepared food to eat at mealtime ... Consequently, [the Appellant] aided and abetted 20 the coming into Canada of person who were not in possession of proper visas."4
10) The Member found it was irrelevant whether the Appellant himself was a refugee claimant and was not regarded as a member of the crew. He found that "there is no distinction" between the "actual people smugglers" and people who aid them. He rejected any reliance on a principle of necessity as he found that the Appellant "would have arrived in Canada whether he or someone else did this work", and f otmd that being hung1y was not an "imminent peril or danger" that would justify his cooperation under a principle of necessity, and that there was no coercion in his work as he vohmteered. He rejected any reliance on the Charter, finding thats. 37(l)(b) it:
29 3 Appellant's record, pp. 140-171 4 Appellant's record, pp. 6-9 Publication Ban Interdiction de publication 4
"does not apply to anyone who merely co-operates with people smugglers in order to travel to Canada." Because the Appellant volunteered to cooperate. He therefore found that his rights under s. 7 of the Charter were not being violated. The Board Member agreed that his decision would "likely" bar the Appellant from having his refugee claim determined, but found this inelevant as the Appellant could apply for a Pre-Removal Risk Assessment or Ministerial Relief.5
The Federal Court's judgment 11) The Federal Court, per Gagne J., set aside the decision. Applying a standard of 10 reasonableness, the Court found the Member's decision applied an unreasonably large reading of s. 117(1), was unreasonable as it disregarded his lack of any authority or role in the organization of the smuggling operation, and that he had acted to protect himself against hunger and illness. Justice Gagne held that the Member ened as the Appellant's circumstances and reasons for helping the smugglers were relevant to whether he had the requisite mens rea to aid and abet in people smuggling. Gagne J. also held thats. 117 should not be read to include being an accessory after the fact, which is distinctly contemplated in s. 131 of the IRP A. The Court certified two questions, as to whether it was appropriate to rely on s. 117 to define the tenn "people smuggling", and whether a distinction should be made for "aiding and abetting the smugglers while within a vessel and in the course of being smuggled". Gagne, J. did not 20 specifically address the defence of necessity, though her analysis of mens rea effectively adopted elements of this defence. 6
The Federal Court of Appeal's judgment 12) The Appellant argued that the Federal Court's decision should be upheld, maldng detailed submissions on both certified questions. He also argued that the Member's interpretation of the law brought s. 37(l)(b) ands. 117 into conflict with Canada's intemational law obligations towards refugees, ands. 7 of the Charter, and relied on the recent decision of the British
27 s Appellant's record, pp. 7-11
6 Appellant's record, pp. 25-26 Publication Ban Interdiction de publication 5
Columbia Supreme Court in Appulonappa which found this with respect to s. 117, to argue that s. 37(l)(b) should be struck for overbreadth if it is interpreted in reliance on s. 117.7
13) The Court of Appeal rejected the idea that the Applicant's motive for helping the smugglers could be taken into account in judging whether he had the required mens rea to commit the offence. The Court of Appeal accepted that the defence of necessity could be raised in principle, but rejected it on the facts of the case, on the basis that the Appellant had not been in imminent danger when he boarded the ship, as he boarded it in Thailand rather than Sri Lanka. The Court of Appeal added a factual presumption, though there was no evidence to support this, 10 that his motivation to travel to Canada was "more than the fear of being returned to his country." It also held that his health condition and need for additional food while on board the ship was not an ilmninent peril. 8
14) The Federal Court of Appeal refused to answer the second question, finding inc01Tectly that the Appellant had not made any written or oral submissions about it. The Court rejected argument that the decision breached Canada's international law obligations to refugees, but found that it would be contrary to the purpose of the !RPA and international law if the provision were applied to "close family members who mutually assist themselves" in being smuggled to Canada to claim refugee status here. It found that the Charter is not engaged in an inadmisibility hearing, 20 but that if a "humanitarian worker" who smuggled a refugee were subject to such a hearing, the Member would have to consider "whether there are constitutional grounds that would preclude it from making an inadmissibility finding". It also decided not to comment as to whether s. 117 is unconstitutionally broad in a criminal law context.9
PART II - QUESTIONS IN ISSUE 25 7 Appellant's record, pp. 108-115, 126 R. v. Appulonappa, 2013 BCSC 31, ABOA tab 3
B Appellant's record p. 79
9 Appellant's record: p. 83 (paragraph 143), p. 65 (paragraph 91), p. 73 (paragraph 112), p. 38 (paragraph 116), p. 72 (paragraphs 111and109); pp. 108-115, 126 (Memorandum) Publication Ban Interdiction de publication 6
I Is the application of ss. 37 (1 )(b) of the IRPA against a refugee for his participation in being smuggled to Canada (whether as an individual or as part of a group) contrary to Canada's international law obligations to refugees?
II Does the defence of necessity excuse a refugee's participation in being smuggled whether as an individual or as part of a group?
III What is the meaning of"people smuggling" in section 37(l)(b) ofIRPA? 10 IV Does s. 37(1)(b) violate section 7 of the Charter of Rights and Freedoms in a manner which is not saved by section 1 of the Charter?
V What is the appropriate standard of judicial review?
PART III - STATEMENT OF ARGUMENT
I. Is the application of ss. 37(1)(b) of the IRPA against a refugee for his participation 20 in being smuggled to Canada (whether as an individual or as part of a group) contrary to Canada's international law obligations to refugees?
A. Section 37Cl)Cb) must be applied in a manner consistent with Canada's international human rights obligations
15) IRPA s. 3(3)(f) provides that the Act is to be "construed and applied in a mam1er that. .. complies with international human rights instruments to which Canada is a signatory". This complements the other relevant objectives as set out at IRPA ss. 3(2)(a), (b), (c) and (d), which 30 express the need to "recognize that the refugee program is in the first instance about saving lives" and "fulfil Canada's legal obligations with respect to refugees", grant them "fair consideration", and offer them "safe haven". 10
16) The effect of as. 37(1)(b) finding of inadmissibility is profound for a refugee claimant: he becomes ineligible to make a refugee claim, 11 and his deportation order is therefore enforceable. While he may apply for protection against removal under s. 112, that applicable legislation expressly
36 10 Immigration and Refugee Protection Act S.C. 2001c.27, ss. 3(2), 3(3)(f) 11 S. 1Ol(l)f) IRP A Publication Ban Interdiction de publication 7
precludes reliance on the risk of persecution as defined in the Convention, 12 and the protection offered even if the application is successful falls well short of that required by the Convention. 13
B. Canada's Obligations in respect ofrefugees
17) The right to seek and enjoy asylum is a basic human right, assured not only by the Convention, but also by Article 14 of the Universal Declaration of Human Rights, and it is not displaced by the act of aiding another refugee to seek refugee protection though an in·egular arrival.
10 18) Indeed, the Migrant Smuggling Protocol, which is a lesser instrnment relative to the Convention, expressly provides at Article 19(1) that
"Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein."14
19) Convention refugee status is inherent and declaratory, rather than constitutive. The UNHCR 20 Handbook states, at paragraph 28, that a refugee "does not become a refugee because of recognition, but is recognized because he is a refugee". This principle that refugee status is declarative was recognized by this Comi in Nemeth. 15
20) The corollary of the declaratory nature of refugee status is the prohibition against presumptive refoulement-pursuant to which states may not subject those who seek refugee protection to refoulement until their claim to refugee status has been properly adjudicated. 16 As the European Court of Human Rights held, in R. U c. Grece:
27 12 S. 112(3) and 113(d) IRPA. 13 S. 114 IRPA. 14 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, UN General Assembly, November 15, 2000, ABOA tab 45
1s Nemeth v. Canada (Justice), 2010 SCC 56, para. 50 ABOA tab 22
16 See See Sir Elihu Lauterpacht QC and Daniel Bethlehem, ''Non-Refoulement (Article 33 of the 1951 Convention)" in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in International Law, UNHCR 's Global Consultations on International Protection, (Cambridge: Cambridge Publication Ban Interdiction de publication 8
La Cour note qu' il res sort du droit international et national, a savoir les articles 31-3 3 de la Convention de Geneve de 1951 relative au statut des refugies [ ... ] que !'expulsion d'une personne ayant soumis une demande d'asile n'est pas perrnise jusqu'au traitement definitif de ladite demande. 17 The Court's finding was that Articles 31 to 33 require determination of the Convention refugee claim and prohibit removal without that. The !RPA's limitation to determination of risk under s. 97 is clearly contrary to the Convention. . J
C. The interpretation of s. 37(1)(b) by the Comi below results in a violation of Canada's obligations 10 in respect ofrefugees
21) , The fact that a refugee has arrived unlawfully by boat as part of a group, even if he assisted in their voyage, is not a valid rationale for barring access to Convention refugee dete1mination and status.
22) Aliicle 1 of the Convention both defines a refugee and provides fill exhaustive list of those who are excluded from the definition of a refugee. Miele 42 of the Convention allows no reservations to Article 1. 18 Convention refugee status is a core right of the refugee and its determination is a responsibility of the host state. 20 23) A refugee claimfil1t' s act of aiding in the bringing of another refugee into Canada is not fill act that would meet any of the criteria for exclusion from the definition of a refugee. 19
24) Therefore, to deny refugee status to such an individual 1s inconsistent with Canada's obligations U11der the Convention. 25 University Press, 2003) at I I5-I I9, especially paras IOO-I02 and A/RES/52/103, 9 Feb. I998, at para. 5. ABOA tab 4I
17 R.U. c. Grece, European Court of Human Rights petition no. 2237/08, June 7, 20II, at para. 94, 114, ABOA tab 30, Art I) ABOA tab 37 18 Article I D, E, and F of the Refugee Convention (ABOA tab 37) provide the sole grounds for exclusion from the definition of a refugee, and are exhaustive: See UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article IF of the 1951 Convention relating to the Status ofRefugee, . HCR/GIP/03/05, 4 September 2003, at para. 3; and its accompanying, Background Note, at para. 7. A'BOA tab 44 19 It is not an act which falls within the ambit of Article IF, and Articles ID and E and are not relevant in this context. Article 42 allows no reservations to Article 1. ABOA tab 3 7 Publication Ban Interdiction de publication 9
25) The rights flowing from Convention refugee status extend beyond recognition of status and non-refoulement, but also include positive rights related to integration, such as rights to a travel document and non-discrimination in public assistance. States are also expected "to make every effort to expedite naturalization proceedings".20 These rights are inevitably denied if there will be no detennination of Convention refugee status. A refugee cannot simply be received by a state and left indete1minately without detennination of his status, nor can he be baiTed from recognition if he is not excluded within the meaning of the Convention. The right of access to "fair and efficient procedures for the detennination of refugee status" has repeatedly been reiterated by the UNHCR's 10 Executive Committee, which confirms that access to asylum is a fundamental human right. 21
26) The UNHCR has expressly addressed the concern with migrant smuggling in Executive Committee Conclusion 97, which states that asylum-seekers should not become liable to prosecution for conduct described in the Migrant Smuggling Protocol, should not incur any penalty, be denied access to international protection, or denied protection against a threat to their life or freedom on account of a Convention ground. The UNHCR Conclusion states that their refugee claims should not only to be detennined, but they should have access to durable solutions. Access to Convention refugee detennination takes priority over the concern with migrant smuggling and is the primary purpose of the Convention. It is required to ensure fair treatment of the refugee. Any interpretation 2 0 of the Convention seeking to avoid this is fundamentally contrary to its purpose. This explicitly addresses the Migrant Smuggling Protocol and makes it clear that it cannot be relied on to deny Convention refugee status determination.22
23 20 1951 Convention Relating to the Status ofRefugees, Articles 23, 28, and 34, ABOA tab 37 21 Handbook on Procedures and Criteria for Determining Refugee Status, Geneva: Office of the United Nations High Commisssioner for Refugees, 1979, paragraph 28, ABOA tab 39 UNHCR Executive Committee Resolutions No. 71, 1993; No. 74, 1994; No. 82, 1997; No. 85, 1998; No. 87, 1999; No. 82, 2004, cited in A Thematic Compilation of Executive Committee Conclusions, UNHCR, June 2011, ABOA tab 42 Universal Declaration ofHuman Rights, Article 14 22 UNHCR Executive Committee Conclusion No. 97, 2003, ABOA tab 43 Publication Ban Interdiction de publication 10
27) As such, the application of Article 37(1)(b) to a refugee claimant who has aided the iITegular entry of other refugee claiinants contravenes Canada's obligations under the Convention because the result of such an application is the denial of access to refugee status.
28) Further, as argued in detail below, aiding the irregular arrival of a fellow refugee claiinant is not an act that justifies an exemption from the protection against refoulement provided at Aliicle 23 33(1) of the Convention • As such, applyiI1g Aliicle 37(1)(b) in the cfrcmnstances at bar is inconsistent with Canada's obligations under the Convention because the effect of its application is precisely the denial of protection against refoulement. 10 29) Moreover, as discussed fiuiher below, applying s. 37(1)(b) in the cfrcumstances at bar also amounts to a violation of Aliicle 31 of the Convention, the prohibition against iinposing penalties for the illegal entry or presence of refugees.
1. Unlawful Violation of the Prohibitions Against Refoulement
30) As stated above, refugees (including refugees who have not yet had thefr status determined), may not be returned to a country in which they face persecution.24
20 31) As the European Court of Human Rights noted and relied on in Hirsi Jamaa, the UNHCR has explained that the principle of non-refoulement set out in Article 33 is: "... a cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States." 25
32) Aliicle 33(1) bars expulsion or return of a refugee to his country "in any manner whatsoever". It is expressly stated in such absolute terms to ensure there is no technical avoidance of the duty. Aliicle 33(2) provides two narrow exceptions to this prohibition, which are
29 23 Convention Art 33(1) ABOA tab 37 24 Convention Art 33(1) ABOA tab 37; Nemeth, supra, para 50 ABOA tab 22 25 Hirsi Jamaa v. Italy, European Court of Human Rights, Application no. 27765/09, February 23, 2012 at para. 23 (citing UNHCR Note on International Protection of 13 September 2001 A/AC.96/951, para. 16), ABOA tab 14 Publication Ban Interdiction de publication 11
inapplicable in the circumstances at bar: person who are a danger to the security of the host country or who have been convicted of a "particularly serious crime" and pose "a danger to the community of that country".
33) This Court has clarified in Suresh, that a threat to the security of Canada must be of 26 substantial harm • No such substantial harm flows from the conduct at issue in this appeal.
34) As for the other exception, the conjunction of the requirement that the crime be "particularly serious" and that the person constitute a danger to the host community makes it evident that it is not 10 only necessary that the crime be of a nature which could imply a level of dangerousness to people in the host community, but that the person must also be reasonably found to present a danger.27 Neither criterion is fulfilled in the circumstances at bar.
35) The UNHCR has expressed its concern that migrants arriving by boat be given access to the refugee status determination and the protections inherent therein. As the European Court of Human Rights noted at para. 193 of Hirsi Jamaa v. Italy:
UNHCR stated that the principle of non-refoulement involved procedural obligations for States. Furthermore, the right of access to an effective asylum procedure conducted by a 20 competent authority was all the more vital when it involved "mixed" migratory flows, in the framework of which fotential asylum-seekers must be singled out and distinguished from the other migrants.2 There is always a likelihood that at least some refugees who arrive by boat will have, in some way, aided or abetted in their voyage. Textually, it could even be argued that all refugees who are smuggled have aided and abetted the group's smuggling in some way. The UNHCR's consistent position is that refugees must have access to Convention refugee determination, regardless, as the right to refugee determination is a basic human right.
2. Violation of Article 31 (1): penalizing refugees for their illegal entry 30
30 26 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para. 90, ABOA tab 33 27 Nagalingam v. Canada (MCI) 2008 FCA 153, para. 69-71, 78, ABOA tab 21 28 Hirsi Jamaa v. Italy, supra at para. 193, 197 ABOA tab 14 Publication Ban Interdiction de publication 12
3 6) Article 31 prohibits the imposition of penalties on refugees on account of their illegal arrival in a country of asylum. Indeed, s. 133 of the IRP A reflects this very obligation by prohibiting prosecution for unlawful entry while a refugee claim is pending or after refugee status is confeITed.
3 7) Whether a refugee is atTiving by himself, or along with others that he has assisted, he cannot be penalized for this.
38) As Professor James Hathaway has explained: "Because the essential purpose of Art. 31 is to insulate refugees from penalties for the act of 10 crossing a border without authorization, a refugee may not lawfully be denied access to ordinary legal entitlements to a complete refugee status inquily simply because he or she has ... contr·avened migration contr·ol laws."
Applyi11g s. 37(1)(b) IRPA to a refugee claimant violates Canada's obligations under Article 31(1) of the Convention as it penalizes the refugee for aiding in his own ent1y to Canada. The penalties imposed are both an order of deportation and a prohibition against Convention refugee detennination. 29
39) The Court of Appeal's interpretation of s. 37(1)(b), however, results i11 a cleru· violation of 20 this obligation.
40) The Court below brnshed aside the protections provided by Article 31 for untenable reasons. The Court of Appeal sought to distinguish Hathaway's commentaiy on Article 31 by finding that: "[83] In any event, Dawson J.A. properly relied (at para. 85 of the BOJO Appeal Decision) on the work of James C. Hathaway, The Rights of Refitgees Under International Law (Cambridge: Cambridge University Press, 2005) at 412-413, to conclude that Article 31 of the Refugee Convention does not prevent Canada from expelling refugees who illegally enter its teITitory." 30 I
30 29 "The Rights of Refugees under International Law", James Hathaway, Cambridge University Press, 2005 at p. 408-412, ABOA tab 40. The BC Supreme Court has found that, in the circumstances at bar, a prosecution under s. 117 IRPA breaches Article 31: R. v. Appulonappa 2013 BCSC 31, ABOA tab 3, overturned in R. v. Appulonappa 2014 BCCA 163, ABOA tab 4, pending leave to SCC. Publication Ban Interdiction de publication 13
This conclusion is, however, wholly inconsistent with Professor Hathaway's commentary, and ignores the broader context thereof.
41) The point being made in the passage cited is that expulsions are permitted under the terms of Article 32; but this does not sanction refoulement under the tenns of Article 33. The core distinction between Article 32 and 33 is that the former concerns the rights of states to expel refugees who are unlawfully in their territory in general, whereas Article 33 concerns the prohibition against returning any refugee to a country where they face persecution (and by extension, to a country where they face refoulement to persecution). 10 42) The same passage cited by the Court of Appeal expounds on precisely this distinction, at p. 413, explaining that: "Whatever right governments have to expel refugees is constrained by Art. 33's duty of non-refoulement. Any expulsion of a refugee must therefore not expose the refugee, directly or indirectly, to a risk of being persecuted"
The facts of this case are illustrative of the importance of this distinction. The Appellant has been ordered deported to Sri Lanka, which is the only country in which he has legal status. Even if he were being deported to a third country which would in turn disregard the Convention, this would 20 likewise be a violation of Article 33. Expulsion under Article 32 could only be to a country which will ensure protection of his rights under the Convention, not to the very country he fears persecution in. 30
43) Furthermore Hathaway's entire analysis of Articles 1, 31, 32 and 33 makes it clear that a refugee can neither be excluded from recognition as a Convention refugee nor refouled for taking part in smuggling of himself and other refugees. 31
44) Article 31 is also discussed by Goodwin-Gill, in the UNHCR's 2003 edition of "Refugee Protection in International Law". It sets out clearly that it is essential to dete1mine a refugee 30 claimant's claim to Convention refugee status "before" he can be subject to any proceedings are 30 30 Art. 32, 33 ABOA tab 37 31 The Rights of Refugees under International Law", James Hathaway, Cambridge University Press, 2005 at pp. 405-413 ABOA tab 40. The Appellant will be bringing a motion to adduce new evidence pursuant to Supreme Court Rule 92.1, seeking to put the legal opinion of Professor Hathaway before the Court. Publication Ban Interdiction de publication 14
begun in relation to his illegal entry, to ensure both that he is not penalized for illegal entry if he is a Convention refugee and to ensure there is no risk of refoulement. 32
45) The Court of Appeal's comment, at para. 82, that this "aiiicle does not address in any depth the issue of migrant smuggling, and I have found it to be of marginal pertinence" artificially compartmentalizes the issue, as if experts on refugee law were unaware that refugees routinely aiTive reliant on smugglers. The concept of illegal entry necessai·ily includes reliance one's smugglers and refugees will often find themselves in a position where they provide assistance to the eff01i to smuggle the group with which they travel. Furthermore, as set out above, the 10 UNHCR has expressly addressed this in Executive Committee Conclusion 97, and the Migrant Smuggling Protocol itself expressly precludes its reliance against a refugee. There is no reason why, in explaining a core human rights instrument, it would be necessary to comment on a lesser instrument which explicitly acknowledges the primacy of the Convention.
46) The second rationale provided by the Court below for discounting the protection offered by Aliicle 31 of the Convention is that is inapplicable to those who assist others in entering Caimda unlawfully.
4 7) The Court of Appeal considered Silvennan J.' s findings in Appulonappa that penalizing 20 hummlitaiiai1 aid workers assisting refugees or family members assisting refugees would breach Article 31, but incoITectly presumed he had not considered refugees fleeing jointly. Although the hypothetical scenaifos he considered in his conclusions were hmnanitariai1 workers ai1d fainily members, his reasoning make it evident he accepted the defendant's position that: "not providing an exception for genuine asylum seekers, engaging in joint efforts to escape persecution and travel to Canada ... runs contrary to Canada's international, and domestic commitments to protect the rights of refugees. "33
The Court of Appeal (at para. 107-113) adopted the concern with hmnanitarian workers and fainily members, accepting that reliance on s. 37(1)(b) against them could rely on the Chaiier (in the case of 30 htunailitarian workers) and paradoxically accepting that fanlily members could rely on Canada's 30 32 Article 31 of the Convention Relating to the Status of Refi1gees: non-penalization, detention, and protection, Guy Goodwin-Gill, in Refugee Protection in International Law, Cambridge University Press, 2003 (Feller et al), pp. 185-253, at pp. 187, 193, 195, 196, and. 217. ABOA tab 38 33 R. v. Appulonappa, supra para. 99, 144, ABOA tab 3 Publication Ban Interdiction de publication 15
international law obligations to refugees, which is not superseded by the Migrant Smuggling Protocol.
48) The BC Court of Appeal relied on the Federal Court of Appeal's analysis, and also asserted that: I discern no ambiguity in Article 31 (1) of the Convention. It clearly provides immunity from prosecution for refugee claimants with respect to offences related only to their own illegal entry. There is nothing in its words or context that can be interpreted as 10 extending this immunity to refugee claimants who provide assistance to each other m entering the ten-itory of a state party illegally. 34
However this distinction is groundless. The Article refers to "refugees" and is not limited to a refugee travelling by himself. It is disingenuous to argue that while the actions of a refugee to secure his own access to asylum may not lead to prosecution, they would if he has incidentally advantaged other refugee claimants.
49) The historic context of the Convention, following the Holocaust, was evidently informed by large groups of refugees travelling to countries of asylum. In the modern context the 20 European Court of Human Rights has held in Hirsi Jamaa v. Italy3 5 that refugees have a right to seek asylum in the context of mass arrivals by boat. A refugee cannot be penalized because he and other refugees travelled together unlawfully on a boat, even if it is objectively likely that at least some refugees travelling in a boat will have somehow aided one another in their voyage.36
50) The Appellant is being penalized for his illegal entry, in violation of Article 31 of the Convention, and the interpretation of s. 37 (1 )(b) that leads to that result is therefore untenable.
51) Section 3(3)(f) of the IR.PA only refers to "international human rights instruments" - which the Convention Relating to the Status of Refitgees is, but the Convention against
29 34 R. v. Appulonappa 2014 BCCA 163 at para. 137, ABOA tab 4
35 Hirsi Jamaa v. Italy, supra, para 134, ABOA tab 14 36 The Appellant agrees with the analysis of Silverman J in R. v. Appulonappa, supra, at paras. 103-106, 140-141, 144. Silverman J.'s reference to A1ticle 31 included refugees fleeing jointly. ABOA tab 3 Publication Ban Interdiction de publication 16
Transnational Crime and its Migrant Smuggling Protocol are not. The interpretation of "people smuggling" cannot be so aggressive that it captures a refugee cooperating with his smugglers, or with other refugees navigating the boat he is in. 37
52) The Refugee Convention is a core human rights instrument. Construing and applying the !RPA so as to violate the Convention by denying a refugee claimant a hearing into his claim for aiding in his unlawful entry into Canada contradicts s. 3(3)(£) and ss. 3(2)(a), (b), (c) and (d) - which express the need to "recognize that the refugee program is in the first instance about saving lives" and "fulfil Canada's legal obligations with respect to refugees", grant them "fair 10 consideration", and offer them "safe haven". 38
3. The possibility of Ministerial relief does not alleviate the violations
53) The possibility of Ministerial relief under s. 42.1 of the IRPA does not make inadmissibility under s. 37 ( 1)(b) compliant with the Convention.
54) It is only a discretionary prerogative of the Minister and not a right to Convention refugee determination and status.
20 55) It is also decided based on criteria unrelated to whether the person is a Convention refugee: "if they satisfy the Minister that it is not contrary to the national interest".39
56) The Court's recent decision in Agraira also points to the practical limitations on judicial review of a Cabinet Minister's discretionary decision with respect to how he defines and applies "national interest". 40
25 37 See UNHCR Executive Committee Conclusion No. 97, 2003: "nor should any intercepted person incur any penalty for illegal entry or presence in a State in cases where the terms of Article 31 of the 1951 Convention are met". 38 Immigration and Refugee Protection Act S.C. 2001 c. 27, ss. 3(2), 3(3)(f), 37(1 )(b) 39 Immigration and Refi1gee Protection Act S.C. 2001 c. 27, s. 42.1
40 Agraira v. Canada (MPSEP) 2013 SCC 36, para 59-64 ABOA tab 1 Publication Ban Interdiction de publication 17
II Does the defence of necessity excuse a refugee's participation in being smuggled whether as an individual or as part of a group
A The judgments below
57) As set out above, the Member rejected the defence of necessity as he found the Appellant's assistance was not necessary since he "would have arrived in Canada whether he or someone else did this work", and that being hungry was not an "imminent peril or danger". The 10 Court of Appeal found he had not been in imminent danger when he boarded the ship, as he boarded it in Thailand rather than Sri Lanka and presumed his motivation to travel to Canada was "more than the fear of being returned to his country." It also upheld the conclusion that his health condition and need for additional food while on board the ship was not an imminent peril.41
B The principle of necessity in the immigration law context 58) The criminal law recognizes that people cannot be fairly expected to fully comply with the law in all situations. The defence of necessity and its close juristic cousin the defence of duress both serve to excuse otherwise criminal conduct in exceptional circumstances where the 2 0 defendant has no real choice but to commit a crime in order to avoid some apprehended harm of sufficient gravity that it would cause most ordinary people to succumb to the human instinct for self-preservation. These defences have been identified by this Court as specific aspects of a more general s. 7 Charter principle of fundamental justice prohibiting the imposition of punishment for "morally involuntary" actions.42 Writing for the unanimous Court in Ruzic, LeBel J. stated: A person acts in a morally involuntary fashion when, faced with perilous circumstances, she is deprived of a realistic choice whether to break the law.43
He explained further that "[d]epriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice "44
29 41 Appellant's Record pp. 7-10 42 R. v. Ruzic, [2001] 1 S.C.R. 687 at para. 48, ABOA tab 31 43 Ruzic, at para. 29, ABOA tab 31 Publication Ban Interdiction de publication 18
59) As set out above, international law recognizes this fundamental value this in the context ofrefugees. People who have well-founded fears of persecution in their country of origin frequently have no real choice but to break the law in order to seek asylum. It is a basic principle of refugee law, reflected in Article 31 of the UN Convention, that refugee claimants cannot be being punished for breaching the laws governing admission to the country where they have sought refuge. This recognizes that people who fear persecution cannot realistically be expected to set aside the basic human instinct to protect themselves, and that the harm their breaches of immigration laws cause are generally outweighed by the more serious harms they fear in their 10 country of origin.
60) This basic principle finds partial expression ins. 133 of !RPA, which prevents refugee claimants from being charged with certain listed offences under the Act or the Criminal Code "in relation to the coming into Canada of the person". However, this provision does not exhaust the principle. A refugee claimant who is charged with committing an unlisted offence - including the offence in s. 117 of !RPA - is still entitled to invoke the common law defences of necessity and duress, which are general defences applicable to all penal statutes.
61) Moreover, as discussed below, there appears to be a tacit consensus that neither s. 20 37(1)(b) nor s. 117 can properly be invoked to, punish a refugee who participates solely as the object of the scheme - that is, as the person being smuggled- whether or nots. 117 is so limited.
62) The availability of the defence of necessity in an inadmissibility proceeding was accepted by the Court of Appeal. This is consistent with the principle in Li that a person should not be found inadmissible for an offence committed abroad if he would have had a valid defence available had he been tried for it in Canada.45
63) Whiles. 37(1)(b) of IRPA does not directly create a penal offence, the Appellant's position is thats. 37(1)(b)'s triggering condition-namely, that the person "engag[ed], in the 29 44 Ruzic, at para. 47, ABOA tab 31 45 Liv. Canada (MCI) [1997] 1F.C.235 (C.A.) para 25, 28 ABOA tab 18 Publication Ban Interdiction de publication 19
context of transnational crime, in activities such as people smuggling [or] trafficking in persons" - must nevertheless be understood as not capturing refugee claimants whose involvement in a people smuggling scheme can properly be seen in the circumstances as "morally involuntary".
64) This is justified for at least four reasons. First, ordinary principles of statutory interpretation require ambiguous statutory language to be construed having regard to the "scheme and object" of the legislation. One of IRPA's purposes is to maintain Canada's compliance with its international obligations regarding the treatment of refugees, which includes the principle that refugee claimants not be punished for violating immigration laws when they had no real choice 10 but to break these laws to escape persecution. Second, as discussed below, the Appellant's position thats. 37(1)(b) engages s. 7 of the Charter, and accordingly must be construed if possible to comply with the principles of fundamental justice, including the principle against punishing morally involuntary punishment. Third, the Court of Appeal treated s. 37(1)(b) as heavily informed by the terms of s. 117, which allows necessity to be raised as a defence. It would be nonsensical to interprets. 37(1)(b) to capture refugees who had no real choice but to participate in a "people smuggling" scheme and who would thus not be prosecutable under s. 117, either because the offence is interpreted to exclude them or because they can raise a free standing necessity defence. Fourth, even ifs. 37(1)(b) were relied on in and of itself, the inadmissibility provision does not preclude reliance on Common Law defences going to 20 culpability.
1. The defence of necessity 65) The legal and constitutional principles underpinning the closely-related defences of necessity and duress have been examined and developed by this Court in a number of cases, 46 including R. v. Perka; R. v. Hibbert and R. v. Ruzic . In Perka, this Court held that the common law defence of necessity is available where the accused's actions were morally or normatively involuntary, in the sense that they were compelled by normal human instincts. In Hibbert, this Court concluded that the defence of duress shares the same juristic basis.47 While factual circumstances giving rise to claims of necessity or duress can sometimes also bear on the 29 46 R. v. Hibbert, [1995] 2 S.C.R. 973, ABOA tab 13; R. v. Perka [1984] 2 S.C.R. 232, ABOA 27; R. v. Ruzic [2001] 1 S.C.R. 6,, ABOA tab 31 47 R. v. Hibbert, supra at para 49-60, ABOA tab 13. Publication Ban Interdiction de publication 20
existence of the essential mental element of the charged offence, both defences generally operate as excuses rather than by negating mens rea.48 In Ruzic, this Court recognized the underlying juristic principle as a principle of fundamental justice. As LeBel J. explained: Although moral involuntariness does not negate the actus reus or mens rea of an ·offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct - behaviour that is the product of a free will and controlled body, un11indered by external constraints should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma 10 of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringes. 7 of the Charter.49 The !RPA does not purport to bar defendants charged with offences under the Act from invoking the common law defences of necessity or duress. After Ruzic, Parliament's ability to statutorily eliminate or significantly curtail these defences is now significantly constrained by s. 7 of the Charter. 50 '
66) As articulated by this Court in Perka, supra and expanded on in R. v. Latimer, infra, the 20 common law defence of necessity has three key requirements: i) The person claiming the defence must have committed the charged offence in response to a situation of "imminent peril";
ii) He or she must have no reasonable legal alternative to committing the offence in the circumstances;
iii) The harm flowing from the offence must be proportional to the harm the defendant apprehended he or she would otherwise suffer.
67) The first and second of these criteria - the existence of an imminent peril and the unavailability of reasonable alternative courses of action - must both be assessed using the
28 . 48 See, e.g., Hibbert, at para 18-45, ABOA tab 13; Ruzic, at para 47 49 R. v. Ruzic at para 4 7, ABOA tab 31 50 In Ruzic, this Court struck down key elements of the Criminal Code's codification of the law of duress, s. 17, on the grounds that they "ha[d] the potential of convicting persons who have not acted voluntarily" and thus violated s. 7 of the Charter (at para 90). LeBel J. noted further that "violations of s. 7 are not easily saved bys. 1" (at para 92), ABOA tab 31 Publication Ban Interdiction de publication 21
"modified objective test" adopted by this Court in Hibbert and Latimer, which "takes into account the situation and characteristics of the particular accused person."51 Courts have applied this in varied circumstances, including circumstances where an individual's perspective was influenced by depression or distress. 52 This has a parallel in refugee law, where the assessment of a refugee's conduct must reasonably consider his circumstances and perspective.
68) While the first branch requires the defendant's "peril" to be "imminent'', in the sense of being "direct" and "immediate", the extent of the peril that is required is determined by the proportionality analysis. As Lamer C.J.C. noted in Latimer, supra, "the harm avoided must be 10 either comparable to, or clearly greater than, the harm inflicted". In Perka and Latimer, this Court observed that this branch of the test prevents necessity from being invoked by "the person who blows up a city to avoid breaking a finger". At the same time, however, the defence of necessity is not restricted to situations where the defendant fears imminent death or grievous bodily harm: apprehension of a comparatively minor injury such as a broken finger might well serve to excuse the commission of a wide range of less serious offences that do not cause anyone else to suffer physical harm. In this regard, Professor Fletcher's famous and oft-cited example of the "lost alpinist who, on the point of freezing to death, breaks into a remote mountain cabin" to take shelter sets the bar much higher than required: since the offence causes such minimal harm, the alpinist is not obliged to wait until he or she is about to die but may act to avoid lesser 20 apprehended harms or discomforts, provided he or she has no reasonable alternatives. As this Court noted in Ruzic, the defences of necessity and duress are "concessions to human frailty" that recognize that "[t]he law is designed for the common man, not for a community of saints or heroes". 53
23 s1 R. v. Latimer, supra at para. 32, ABOA tab 17 52 R. v. Latimer, supra at para. 32-34 ABOA tab 17; R. v. Ruzic, supra at para. 88, ABOA tab 31 R. v. Desrosiers 2007 ONCJ 225 at para. 26-31, ABOA tab 10 R. v. Synergy Group of Canada Inc,. 2006 ABPC 196, para. 41-46, 78 ABOA tab 34. In Synergy, the Com1 accepted necessity as a defence for a breach of the law committed out of concern for the health of others, where the harm inflicted was minimal relative to the harm feared, a principle which would apply to necessity as a defence for helping refugees avoid persecution. R. v. McCain [2003] 0.J. No. 1762 (C.J.), para 29-39ABOA tab 19 1 R. v. Lalonde (1995) 37 C.R. (4 h) 97 (Ont. Ct. Gen. Div.), para 38, 41-42 ABOA tab 16
53 R. v. Ruzic supra at para. 40, ABOA tab 31 Publication Ban Interdiction de publication 22
2. Necessity in the refugee context 69) As noted above, it is a core principle of refugee law that refugees not be punished for breaking immigration laws in order to flee from persecution. Section 133 of !RPA gives partial effect to this principle by statutorily barring charges from being laid against refugee claimants for certain !RPA and Criminal Code offences. However, the list of excluded offences is incomplete. Among other things, s. 133 does not extend to charges under ss. 117 or 131 of IRPA. Section 117(1) makes it an offence for any person to: . . . 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 10 would be in contravention of this Act. Section 131 extends penal liability further to capture: Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117 ... or who counsels a person to do so. 54
70) In effect, s. 131 extends liability to persons who would in an ordinary criminal prosecution be considered a party to the offence under the Criminal Code's provisions. Since very few refugees have the practical ability to flee from their country of origin and enter Canada without receiving help from others, a literal reading of these sections would leave most refugee claimants who enter Canada illegally with assistance vulnerable to prosecution under either or 20 both sections. A refugee claimant who "organizes" his or her own unlawful entry would seem to be captured directly by s. 117, which does not expressly require the person "coming into Canada" to be someone else. More generally, most refugee claimants who enter Canada with unlawful assistance from third parties would seem to be liable under s. 131, on the basis that their seeking or accepting the assistance constitutes inducement, aiding, abetting or counselling of the s. 117 offence committed by the other person.
71) An analogous situation arises in criminal law in connection with drug trafficking. Under ordinary principles of party liability, the purchaser of illegal drugs would seem to be guilty of "drug trafficldng" as parties - aiders or abettors - to the seller's traf:ficldng offence. As Martin 30 J.A. observed in R. v. Meston, infra: 30
54 Immigration and Refugee Protection Act ss. 117, 131 Publication Ban Interdiction de publication 23
It would seem, therefore, on principle, that the conduct of a purchaser who encourages the sale of a substance which he knows it is illegal for the vendor to sell to him, falls within the ordinary meaning of the word "abets" ins. 21(1)(1)(c) of the Code, and hence, is a party to the offence of selling. Despite the seeming inevitability of this conclusion on purely textual grounds, this interpretation has been consistently rejected by Canadian courts (including this Court in Greyeyes) as inconsistent with Parliament's intention, which was plainly create a gradation of drug offences in which sellers and distributors were punished more severely than mere possessors.55
10 72) Comis that have considered the scope of ss. 117 and 131 of !RPA have taken a similar approach and concluded - albeit with little or no analysis - that these provisions do not impose penal liability on refugees who "aid or abet" human smuggling merely by participating in their own unlawful entry into Canada. For instance, R. v. Appulonappa, infra, where s. 11 7 was challenged as overbroad, the parties and justices at both levels of court appear to have assumed that refugees could not be prosecuted under !RPA solely for aiding their own illegal entry into Canada, and thus focused on hypotheticals in which a refugee was prosecuted for aiding the unlawful entry of some other person, such as a spouse, child or other relative.
73) Although this implied limit on the reach of ss. 117 and 131 has not been clearly judicially 20 aiiiculated, it accords with Parliament's intention of complying with Article 31(1) of the UN Convention. However, even under a broader construction of these provisions, most refugees who were prosecuted for aiding their own illegal entry into Canada would be able to raise and rely on the defence of necessity. Few refugees have any realistic alternative to relying on the assistance of organized smugglers, and the persecution they must apprehend in order to qualify as convention refugees is as a rule far more serious than any harm they cause by breaching immigration laws. As discussed above, the UN Convention rules prohibiting refugees from being punished for these breaches thus accords with the s. 7 Charter principle against the punishment of "morally involuntary" conduct.
30 3. The Board Member and Court of Appeal's errors 30 55 R. v. Greyeyes [1997] 2 S.C.R. 825, para 5, 7, 8, 11, ABOA tab 12 R. v. Meston (1975), 28 C.C.C. (3d) 497 at para 27 (Ont. C.A.), ABOA tab 20 Publication Ban Interdiction de publication 24
74) Section 37(1)(b) of IRPA does not create an offence, but deems a person inadmissible if they have "engag[ed], in the context of transnational crime, in activities such as people smuggling". Like the courts in Appulonappa, supra, the tribunals and courts in the case at bar assumed with little analysis that this provision cannot be brought to bear on a refugee claimant merely for participating in a "people smuggling" scheme as the object- that is, as the person who is being smuggled into Canada. Although a literal reading of s. 37(1)(b) would seemingly capture such persons, 56 that would fly in the face of Canada's treaty obligations and thus cannot sensibly be viewed as reflecting Parliament's true intent. Accordingly, the Board member and all the judges in the courts below approached the Appellant's case by tacitly assuming that he could 10 not properly be deemed inadmissible under s. 37(1)(b) merely for participating in the organized Sun Sea smuggling venture as a passenger. As discussed above, this narrow reading of s. 37(1)(b) can also be seen as demanded by s. 7 of the Charter and the principle against punishing morally involuntary conduct.
75) The Board Member and the justices of the Court of Appeal who upheld his decision accordingly found the Appellant inadmissible under s. 37(1)(b) on the basis that his actions during the Sun Sea's voyage had assisted the vessel's captain and crew to transport the other passengers to Canada. The Appellant admitted that in exchange for food he had cooked meals for the crew and sometimes acted as a lookout. The Board Member and the Court of Appeal found 20 that this made him inadmissible and rejected his arguments based on the principle of necessity.
76) At the outset, it is important to emphasize that under the Board Member and Court of Appeal's approach, the Appellant presumably would not have been found inadmissible ifhe had been the Sun Sea's only passenger and his actions in helping the crew had thus only aided his own unlawful entry into Canada. The UN Convention 's rule that refugees may not be punished for violating domestic immigration laws while fleeing from persecution is premised on the view that their offences should be seen as excusable in the circumstances. As discussed above, this accords withs. 7 Charter principles: the apprehended harms required to make a person a
28 56 In this regard, it should be noted that whiles. 37(2) expressly exempts people whose only link to organized crime is that they "entered into Canada with the assistance of a person who is involved in organized criminal activity", this exemption clause only applies to s. 37(1)(a) and not to s. 37(1)(b). Publication Ban
Interdiction de 25 publication
Convention refugee are as a rule much more serious than the harm flowing from the refugee's illegal entry into Canada.
77) However, once it is accepted that refugees must be excused from entering Canada illegally and cannot be punished or penalized for participating in a "people smuggling" venture, it makes no sense to distinguish between merely passive and more active participation in the scheme. In the case at bar, ifthe Appellant must be excused for joining the Sun Sea voyage in the first place, this excuse must necessarily extend to the relatively minor things he did to assist the crew during the voyage, even to the extent that he provided this assistance to ensure that he 10 successfully made it to Canada. It would make no sense to excuse his participation in the venture but then deem inexcusable anything he did once the ship was underway to help it arrive safely at its destination, as long as the harms flowing from his actions were not disproportionate to the harms he apprehended if he were returned to Sri Lanka.
78) The Board Member and the Court of Appeal appear not to have disputed these propositions. However, their analysis leads to the absurd result that the Appellant's actions, which would be deemed excusable if they benefitted himself alone, become inexcusable and grounds for inadmissibility if they also incidentally assist the illegal entry into Canada of the vessel's other passengers. It is submitted that they arrived at this conclusion by failing to 20 properly analyse the underlying principles of necessity that must be brought to bear under s. 37(1)(b).
79) The Board Member and the Court of Appeal made four principal errors. First, in relation to the Appellant's admission that he had cooked for the crew members in exchange for increased food rations, they significantly overstated the degree of "peril" the law of necessity requires. The Board Member, whose reasoning on this point was upheld by the Court of Appeal, accepted the Appellant's evidence that he wanted additional food because he was sick and hungry, but reasoned that even though "[b]eing sick and hungry is difficult to endure" there was "no evidence that [the Appellant] faced any sort of impending harm or injury". In so doing, he erroneously 30 added a threshold requirement to the law of necessity. As long as the other conditions for the defence of necessity are met, there is no reason in principle why the harm associated with "being Publication Ban Interdiction de publication 26
sick and hungry" during a long sea voyage cannot excuse the commission of at least some offences, provided the actions of the person claiming the defence do not cause disproportionate harm.
80) In the case at bar; the Board Member appears to have accepted that the Appellant's sickness and hunger were imminent, in that he was actually suffering their effects when he agreed to cook for the crew in exchange for food. It was undisputed that he was stuck on a boat had nowhere else to turn until the ship reached port. He could not leave the ship in the middle of the ocea.rl, nor could he order food to be delivered to him from shore. 10 ' t 81) On the critical issue of proportionality, the Appellant's actions in cooking for the crew had only negligible harmful effects. To the extent that it facilitated the illegal entry into Canada of the other passengers, it did so only tangentially and to a very minor degree. If the Appellant had not agreed to prepare the crew's meals, they would not have gone hungry; rather, this chore would presumably have been performed by the crew members themselves or other passengers. Its impact on the. success of the smuggling venture as a whole bordered on trivial. The Member also held that the Appellant's actions in keeping lookout had no particular effect on the voyage's prospects of success. On this point he confused the Appellant's necessity with whether the service was necessary for the successful commission of the offence. 20 82) Seconc;l, the Board Member erred by failing to consider the Appellant's response to the situation in which he found himself under the "modified objective test" this Court requires be used in relation to the first and second branches of the necessity analysis. The Board Member never adverted to this standard, and gave no indication in his reasons that he had properly applied it. The Court of Appeal likewise erred by upholding the Board Member's decision in the face of this clear error.
83) Third, the Board and the Court of Appeal erred by failing to properly analyse the critical principle of proportionality in light of their apparent agreement that the Appellant would not 30 become statutorily inadmissible merely for taking steps to facilitate his own illegal entry into Canada. Once he boarded the Sun Sea, anything he did to help his own cause in this regard by Publication Ban Interdiction de publication 27
facilitating the ship's safe arrival in Canada would necessarily but incidentally also assist his fellow passengers to gain illegal entry. While the harms associated with these potential immigration law breaches had to be factored into the proportionality analysis, their presence not automatically tip the scales against the Appellant's necessity claim, nor was it particularly likely that they would have this effect. If the Appellant's own illegal entry was excusable in view of the harms he anticipated suffering ifthe venture failed and he was returned to Sri Lanka, it is far from self-evident that adding the other passengers to the analysis changed this conclusion, bearing in mind (i) that the Appellant's actions in cooking for the crew and keeping lookout only marginally affected voyage's prospects of success, and (ii) that since at least some of his fellow 10 passengers had legitimate refugee claims, the harms they would suffer if they were returned to Sri Lanlca also had to be placed on the scales and weighed in the Appellant's favour. Neither the Board Member or the Court of Appeal turned their minds to the need for this analysis.
84) Fourth, the Court of Appeal made a further error not made by the Member in his original decision by treating the fact that the Appellant boarded the Sun Sea in Thailand as disqualifying him from raising necessity. The Court of Appeal concluded that the Appellant's decision to leave Thailand for Canada was "clearly ... motivated by more than the fear of being returned to his country".
20 85) The Court of Appeal disregarded the only relevant testimony on this point, which was that he had been warned by the smuggler who originally brought him to Thailand not to attempt registering with the UNHCR there, the smuggler destroyed his passport and advised him to travel to Canada. The massive flight of Tamils from Thailand expressed anxiety at Thailand's lack of a refugee determination system and disrespect for the principle of non-refoulement. This has been implicitly or directly accepted in decisions of the Refugee Protection Division recognizing 57 Tamils who arrived on the Sun Sea and Ocean Lady ships . Furthermore, even if it were not absurd to claim the Appellant would have been secure in Thailand, the Refugee Protection Division would be assessing his subjective belief based on what he was told by the smuggler.
28 57 Canada (MCI) v. A032 2013 FC 322, para 18, 19, 21, ABOA tab 5 Canada (MCI) v. B272 2013 FC 870, para 71-72 ABOA tab 6 Publication Ban Interdiction de publication 28
The Court of Appeal could not simply presume he did not hold this belief when he was found to be a credible witness.
86) In any event, the smuggler's advice was realistic and quite likely correct. As the Refugee Protection Division held in VB0-03263: The Minister also claimed that the principal claimant lacked a subjective fear of harm by not registering with the United Nations High Commission for Refugees (UNHCR) in Thailand. [ ... ] I find the Minister's concerns are misplaced. Filing with the UNHCR for asylum status in Thailand would not thwart Thailand from 10 deporting the claimants back to Sri Lanka. The status provided no protection whatsoever and Thailand was regularly deporting Tamils back to Sri Lanka.58
87) In Rahnema, the Federal Court held that the RPD could not presume a refugee would not 59 rely on the advice of a smuggler he. depended on, even if that advice proved incorrect . The Court found that the RPD had improperly projected its knowledge and experience on the refugee. In the instant case the Court of Appeal has more absurdly projected that the smuggler was wrong about Thailand, when not only many Tamils but many members of the RPD would say he was being realistic.
20 88) Even if the Appellant had not been afraid of potential refoulement in the country where he boarded the ship, his decision to assist -which is being treated as shifting him from a person who does not merit penalization to one who does- was made while he was at sea. The Appellant's necessity claim had to be assessed at the time he committed his allegedly disqualifying acts of assisting the crew.60 If the conditions that gave rise to his necessity claim arose only once the voyage was underway, it was irrelevant that he might have avoided them if he had not boarded the ship in the first place, since he could not at that point travel back in time or swim back to Thailand.
28 58 Re VB03263/VB0-03264, hnmigration and Refugee Board, Refugee Protection Division, December 13 2013, para 74, ABOA tab 36
59 Rahnema v. ME.I. 68 F.T.R. 298, para 20, ABOA tab 29 60 See, e.g., Ruzic, supra at para 73. Publication Ban Interdiction de 29 publication
89) In this regard, the Appellant's evidence that he only agreed to provide this assistance after the ship on the high seas was uncontradicted and unchallenged. Regardless of whether or not the he could have safely remained in Thailand, once the vessel was underway he had every reason to fear that he might be retuned to Sri Lanka if the ship was intercepted. A refugee on board a ship is at risk ofreturn to his only country of citizenship ifthe ship does not safely arrive at a country of asylum. It is irrelevant to say that the refugee boarded the ship voluntarily, when the decision to cooperate was made after the ship was at sea. Likewise, to the extent that the Appellant's cooperation was motivated by his sickness and hunger and the promise of food, these "perils" only arose after the ship was at sea. 10 90) Unlike the situation in R. v. Nelson, where the accused's hunger was the "foreseeable and 61 avoidable" consequence of his own decision to go live in the woods and fast for two months , the Appellant would not necessarily have foreseen that his health would deteriorate once he embarked on the voyage or that he and the other passengers would be poorly fed. At the very least, these were questions that required careful consideration they did not receive from the Court of Appeal.
91) In conclusion, although Gagne J. incorrectly treated the circumstances in which the Appellant agreed to help the crew as bearing on the issue of mens rea rather than as providing 20 him with an excuse-based defence, she nevertheless reached substantially the right result. Her analysis correctly avoided the absurdity that would arise if a refugee who, while already on board a ship, agrees to help the crew so that he can have adequate food and assists in his own safe passage is treated as indistinguishable from an actual organizer of the voyage merely because his actions have some incidental benefit to the other passengers. She was also correct to conclude that to the extent that the Appellant's conduct exposed him to potential prosecution for an !RPA offence (subject to his raising a defence), the proper charge on these facts would have been under s. 131 rather than s. 11 7, because the smuggling had already been organized before he offered to provide aid in response to changed circumstances.
29 61 R. v Nelson, 2007 BCCA 490 para 35-38, ABOA tab 23 Publication Ban Interdiction de 30 publication
92) Since the Appellant's primary intent was to enter Canada without a visa in order to claim refugee status and since the assistance he provided to the smugglers while on the ship were directed at furthering this goal and meeting his basic need for food, it would be appropriate, as in most refugee cases, to simply find him inadmissible under IRPA ss. 20(l)(a) and 41(a) for travelling to Canada without an appropriate visa or document. It is entirely inappropriate and inconsistent with the underlying international law principles to treat him as tantamount to an organized criminal rather than as a refugee entitled to Convention refugee recognition. This would effectively apply the principle in Greyeyes, that the offence selected should be appropriate to the true culpability of the offender. Just as this Court found in Greyeyes that the stigma of 10 being classified a trafficker is far greater than that of being a purchaser, the stigma of being labelled a "people smuggler" is categorically different from being considered a refugee. 62
93) Under the legislative scheme determination of Convention refugee status is decided by the Refugee Protection Division, which has expertise in refugee determination. It is that Division which has the expertise to determine if the refugee needed to travel to Canada to seek asylum, which in turn informs necessity. An interpretation of the legislative scheme which leaves that assessment to a non-expert is inherently flawed. Just as Article 31 of the Convention requires determination of the refugee claim, proper adjudication of the refugee claim would inherently resolve necessity. 20 III What is the meaning of "people smuggling" in section 37(1)(b) of IRPA?
94) The Appellant adopts the submissions of Jesus Rodriguez Hernandez in SCC file number
35677, and JP et al in SCC file number No. 35688 on this issue, and makes the following
supplementary submissions.
95) As set out above, ss. 3(2) and 3(3)(f) of the !RPA expressly provides that its provisions are to be interpreted and applied in keeping with Canada's international human rights obligations, "recognize that the refugee program is in the first instance about saving lives" and "fulfil
29 62 R. v. Greyeyes supra at para. 10, ABOA tab 12 Publication Ban Interdiction de 31 publication
Canada's legal obligations with respect to refugees", grant them "fair consideration", and offer 63 them "safe haven" . It is inconsistent to pretend that a reading of s. 3 7 (1 )(b) which treats the refugee's need for protection as incidental, and bars him from refugee determination meets those objectives. Although s. 133 only gives a pmiial listing of provisions which could theoretically apply to refugees, it expresses Parliament's intent that refugees not be subject to penalties. Combined with the general declarations at ss. 3(2) and 3(3)(f) Parliament could only have thought it was assured the statute's provisions would not be construed against refugees. An interpretation of "people smuggling" ins. 37(1)(b) which includes a refugee aiding in his own unlawful travel to Canada, even if this is in a group or characterized as smuggling, directly violates the Convention and is also 10 arbitrarily defines the Appellant as culpable of being a smuggler. Parliament clearly did not intend that refugees should be caught in the !RPA's anti-smuggling provisions.
96) When Parliament was told that: "Mr. Daniel Therrien: The protection against such prosecutions is in subclause 117(4), which provides that no prosecution under the smuggling provision can occur without the consent of the Attorney General, who, obviously, in deciding whether to prosecute, will weigh the motives of the people who have assisted others to come illegally into Canada." This did not imply that in practice s. 117 would be relied on through indirect means, in the refugee law context, without regm·d to motive.64 20 97) Any travel by a person to Canada to claim Convention refugee status is in some way a contravention of a provision of the !RPA. It is only truly "in contravention of the Act", read as a whole, for a person to travel to Canada without a visa or other document if the person is detennined not to be a Convention refugee. The general scheme of the Act, which is to refer the nominally inadmissible refugee for dete1mination of his status, resolves the superficial contradiction between the refugee's apparent inadmissibility and the Act's purposes under ss. 3(2) and 3(3)(f).65 As set out above, other inadmissibility provisions of the !RPA are more appropriate where the basic character of the person is that he is a refugee. Just as this Court held in Greyeyes that even if a textual reading of an offence could permit a purchaser to be called a trafficker, the offence selected should be 30 appropriate to his true nature. Rather than tal 30 63 Immigration and Refitgee Protection Act S.C. 2001 c. 27, ss. 3(2), 3(3)(f) 64 R. v. Appulonappa, supra, para. 159, ABOA tab 3 65 Immigration and Refugee Protection Act S.C. 2001 c. 27, ss. 3(2), 3(3)(f), 133 Publication Ban Interdiction de publication 32 has in preferring "humanitarian aid workers" but not Hernandez, or family members who are refugees, but not groups of unrelated refugees, the Court should, as it did in Greyeyes apply a principled approach which looks to the basic reality of what the individual is. 66 A refugee should not be transformed into an organized criminal through a purely semantic exercise. 98) The Court of Appeal's findings with respect to family members paradoxically accepted a statutory analysis requiring thats. 37(1)(b) not be interpreted as applying to refugees assisting one another in travel, based on these very principles. The Court of Appeal cited s. 3(2) and stated that s. 3 7(1 )(b) had to be interpreted in keeping with the principles set out therein. The Court of Appeal 10 incorrectly treated the Migrant Smuggling Protocol as a human rights instrument related to refugees, but noted that it could not be relied on against refugees due to its express provision against that. It sought to distinguish and limit family members as not being "foreign nationals who engage in people smuggling within the context of a transnational crime", as self-evident.67 99) In stating this, the Court of Appeal presumes the character of family members is so obviously different from transnational criminals that it would be an obvious injustice to characterize them as such. This points to the fact, treated as trivial throughout, that Parliament chose to use the distinct terms "people smuggling" in its "organized criminality" provisions and "human smuggling" in ss. 37(1)(b) and 117. The implication of including "people smuggling" in 20 a passage about organized criminality is that Parliament intended to capture professional smugglers. As submitted by Hernandez, s. 117 is a penal provision which could be relied on to sanction an individual's unlawful travel, whereas s. 37(1)(b) is stated in the context of targeting organized crime. An individual refugee, travelling once to Canada to seek refugee status, and somehow aiding the group of refugees he travels with or aiding smugglers, cannot reasonably be characterized as somehow equivalent to being a member of a criminal organization. His travel is ,~ simply to seek his own protection. 100) The fact that the IRP A distinctly provides for inadmissibility due to "serious criminality" at s. 36 or "organized criminality" implies thats. 37 was intended to capture people who truly are 29 66 R. v. Greyeyes supra para 5, 7, 8, 11, ABOA tab 12 67 Appellant's record pp. 73-7 4, Comt of Appeal reasons at para 112-115 Publication Ban Interdiction de publication 33 members of an organized crime group, as opposed to people who have taken pa:it in one offence. Where 3 7( 1)( d) refers to "engaging, in the context of transnational crime, in activities such as ... " the implication is that Parliament was trying to capture people believed to be part of a transnational criminal group, who have been apprehended committing an offence indicative of this. While commission of one offence might sometimes imply -in combination with other evidence- that a person is part of a broader organization, this cannot be said when the facts are not in dispute and the facts a:i·e simply that the Appellant is a refugee who gave minor assisstance while on board a ship. 101) The Court of Appeal's finding that its broad interpretation of s. 37(1)(b) is necessary to 10 ensure people who smuggle terrorists can be found inadmissible disregards that the IRP A directly targets terrorists ins. 34. The IRPA also achieves the same result through s. 36, as such conduct would also constitute serious criminality.68 IV Does s. 37{l)(b) violate section 7 of the Charter of Rights and Freedoms in a manner which is not saved by section 1 of the Charter? 102) The Appellant adopts the submissions of Jesus Rodriguez Hernandez in SCC file number 35677, and JP et al in SCC file number No. 35688 on this issue, and makes the following supplementary submissions. 20 A Section 7 is engaged 103) It bears emphasis that the body of case law upon with the Court below relied in finding that section 7 is not engaged has been effectively overruled by this Court's recent judgment in Bedford 69 104) According to the judgments relied upon by Mainville J.A., an inadmissibility finding (which results in ineligibility to seek refugee protection) does not engage section 7 because it is not "the equivalent of removal or refoulement''.70 In other words, because the inadmissibility 28 68 Immigration and Refugee Protection Act ss. 34(1)(t), 36 69 Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, ABOA tab 7 70 Appellant's record p. 76, FCA Jt, at para 123, emphasis added Publication Ban Interdiction de publication 34 finding is not the sole and immediate cause of the subject's refoulement, it does not engage section 7 of the Charter. 105) However, in Bedford, this Court rejected the "'active, foreseeable and direct' causal connection" test proposed by the Attorneys General in favour of a test of "sufficient causal connection" test, which "does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant".71 106) According to Bedford, any law which "aggravate[ s] the risk" of a violation of life, liberty 10 or security of the person engages section 7. 72 107) In the situation at bar, as fully explained in the Hernandez factum, an inadmissibility finding under s. 37(l)(b) results in a deportation order which must be executed both "as soon as possible"73 and regardless of the risk of persecution (as defined at to s. 96 IRP A). It enables a risk of refoulement to persecution and thus engages section 7. 108) Moreover, the state cannot rely on the risk assessment to be performed at the time of removal to shield itself from the ambit of section 7 because the effect of a s. 37(l)(b) 4 inadmissibility is precisely to remove s. 96 factors from the ambit of said assessment7 . 20 Furthermore, even if the refugee is found to be at risk under s. 97 this is subject to Minister's 75 discretion to allow deportation because of the "nature and severity" of his acts . 22 71 Bedford supra, para 77, ABOA tab 7, 72 Bedford, paras 87-88. The example given by the Court-a law which forbids cyclists from wearing a helmet is instructive in the case at bar. The combined effects of s. 37(1)(b), s. lOl(l)(f), s, 112(3) ands. l 13(d) is that refugee claims are not allowed to don the 'helmet' of protection against persecution. ABOA tab 7 73 IRPA SS. 48(2), lOl(l)(f) 74 Contrary to the premise underpinning the findings on this issue in Jekula v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 266 aff'd by 266 N.R. 355 (F.C.A.) (Canlii pp. 14-15) ABOA tab 15; Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696, 708-709 (Canlii pp. 8-11), ABOA tab 26; and Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at para 63 ABOA tab 28. 75 JRPA s. 113(d)(ii) Publication Ban Interdiction de publication 35 109) The Supreme Court of Canada held in Singh that refugee determination necessarily engages s. 7 of the Charter. Likewise an admissibility hearing which has as a consequence both an order of deportation against a refugee claimant and a bar on his claim being determined engages s. 7. It is respectfully submitted thats. 37(1)(b) violates the Appellant's rights under s. 7 of the Charter as it prohibits him from having determination of his refugee claim.76 110) The Supreme Court has also held in Charkaoui, at paragraph 18, that: "we must look at the interests at stake rather than the legal label attached to the impugned legislation ... the principles of fundamental justice apply in crimnal 10 proceedings not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings." ... the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security and that s. 7 of the Charter is engaged.". [emphasis added] It is respectfully submitted that in Charkaoui the Supreme Court clarified its findings in Medovarski, which had influenced decisions in the interim between Singh and Charkaoui. At paragraph 17 the Court held: "Medovarski thus does not stand for the proposition that proceedings related to depmiation in the immigration context are immune from s. 7 scrutiny ... some features associated with deportation, such as detention in the course of the ce1iificate process or the 20 prospect of depmiation to tmiure, may do so." The Appellant faces the prospect that he has been ordered deported due to his purpmied offence, and that he could be depmied to torture if the Appellant does not paradoxically declare that the nature of the offense does not warrant his deportation (after having vigorously litigated for his depmiation). 77 111) The Court has held in Application under s. 83.28 ofthe Criminal Code, at paragraph 79, that: In order to meet the s. 7 requirements, the procedural safeguards found in s. 83.28 must necessarily be extended to extradition and deportation proceedings. In Branch, supra, at para. 5, derivative use immunity was stated to apply both in subsequent proceedings where the witness is an accused subject to penal sanctions, and more generally to any proceeding 30 which engages s. 7 of the Charter, such as extradition and deportation hearings. The protective effect of s. 83.28(10) would be significantly undercut if information gathered under s. 83.28 was used at the state's discretion in subsequent extradition or deportation proceedings. Therefore, where there is the potential for such use by the state, the hearing judge must mal(e and, if necessary, vary the terms of an order to properly provide use and derivative use immunity in extradition or deportation proceedings. 35 76 Singh v. ME.I. [1985] 1 S.C.R. 177, para 47, 49, 56, ABOA tab 32 77 Charkaoui v. Canada (MCI) 2007 SCC9, para 17-18, ABOA tab 9 Publication Ban Interdiction de 36 publication However the inadmissibility finding directly results in a depmiation order, and is potentially relied on not only to bar the refugee claimant from having a hearing but also to retm11 him-at a Minister's discretion- to torture or death. 78 112) In Torres Victoria, an inadmissibility heai"ing allegations of inadmissibility under s. 34 proceeded based on confidential evidence, relying on the saine provisions applied in a security certificate proceeding, with Special Advocates assigned. The Immigration Division and Federal Court agreed that s. 7 of the Charter was engaged, though it was an inadmissibility hearing. It is 10 not the forum the hearing takes place in which determines the applicability of the Charter, and the possibility of discretionary relief from execution of a deportation order does not avoid engagement. 79 113) The labelling of the Appellant as a member of the Sun Sea smuggling operation may also elevate the risk of torture on his return. This is paiiicularly so where both the Sri Lai1kan and 80 Canadian governments allege the Sun Sea operation organized by the LTTE • As the Supreme Comi held in Charkaoui: "A ce1iificate may bring with it the accusation that one is a terrorist, which could cause irreparable harm to the individual, particulai·ly ifhe or she is eventually depmied to his or 20 her home country." In Charkaoui, 81 as in Singh the Appellants were under no immediate threat of removal from Canada. While the CBSA assigns codes to the Sun Sea migrants, a refugee caimot be expected to successfully lie and evade detection on return to his com1try, and this has been accepted by the Refugee Protection Division in decisions in Sun Sea cases. 114) It is submitted that ai1 approach to statutory interpretation which prioritizes the integrity of the interpretation of a statutory provision and its own compliance with the Charter, rather than 27 78 Application under s. 83.28 ofthe Criminal Code (Re), 2004 SCC 42, ABOA tab 2 79 Torres Victoria v. Canada (MPSEP) 2011FC1392, para 19 ABOA tab 35 80 Canada (MCI) v. B272 supra, para 71-72 ABOA tab 6; Re VB03263/VB0-03264, supra ABOA tab 36 para 108, 110-111 81 Charkaoui v. Canada 2007 SCC 9, para 14, ABOA tab 9 Publication Ban Interdiction de 37 publication predicating acceptance of breaches on the potential to get other remedies (which may be illusory or cancelled by the state) is preferable to permitting unfair decisions or "absurd" results. The impact of the decision is real, immediate and lasting. The ordeal of having been through prosecution, being labelled an "organized criminal", and having to engage in ongoing litigation to preserve one's life is harsh. The expectation of resources, ability and stamina to go through this crucible successfully is abstract and unrelated to the reality of individuals. He remains labelled an "organized criminal" whether or not this is just. An approach prioritizing integrity of the statutory provision, the Charter, international and Common Law ensures the legal label ascribed by an adjudicator is just. 10 115) It is submitted that leaving a person who fears persecution under the constant threat of deportation -as a deportation order has in fact been made against him and could ultimately be executed regardless of risk- violates the right to psychological security of the person recognized as incorporated in s. 7 of the Charter by the Supreme Court in New Brunswick v. G (J). At paragraphs 58 to 60 the Court held: This Court has held on a number of occasions that the right to security of the person protects "both the physical and psychological integrity of the individual" ( ... ) Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. Before addressing this issue, I will first make 20 some general comments about the nature of the protection of "psychological integrity" included in the right to security of the person. [ ... ] For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. 82 It is submitted that the anxiety a refugee required to live in such uncertainty is objectively subjected 30 to is greater than ordinary stress or anxiety. 116) The finding of inadmissibility under s. 37(10(b) has further implications for the Appellant's liberty. The Appellant is precluded from any of the liberties he would enjoy as a Convention refugee. Apart from the very recognition of status, he will not enjoy the right to a 34 82 New Brunswickv. G (J.). [1999] 3 S.C.R. 46, para 58-60, ABOA tab 24 Publication Ban Interdiction de 38 publication 1\'.~ travel doc~ent and the right of freedom of movement flowing from that. He will not enjoy any of the benefits of integration or fair processing towards naturalization associated with Convention refugee status. All these liberties, which he could lawfully be entitled to seek if he were determined a Convention refugee, are denied by the state's refusal to determine his Convention refugee status. 83 Even if he remains in Canada, he remains a person in a state of limbo, unable to return to his country out of fear but also unable to integrate in Canada. 117) It is further submitted, as set out above, that s. 7 must be considered because the Court of Appeal-has relied on s. 117 in the refugee law context. Its finding that it is irrelevant whether s. 10 117 is contrary to the Charter in the criminal law context, because the Appellant is being subjected to an immigration law proceeding, is untenable. B. Gross Disproportionality 118) ¥1 addition to arbitrariness and overbreadth, the Appellant relies on the principle of gross disproportionality". In Bedford, this Court recently held that: , 120] Gross disproportionality asks a different question from arbitrariness and ~ overbreadth. It targets the second fundamental evil: the law's effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot 20 rati~:mally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewallc The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society. [121] Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law. 84 28 83 1951 United Nations Convention Relating to the Status of the Refugees, Articles 1, 23, 28, 34 84 Bedford, supra, para 122. ABOA tab 7 Publication Ban Interdiction de 39 publication 119) The Appellant submits that the application of s. 37(1)(b) to him, and to other similarly situated individuals, is grossly disproportionate.85 To deny a refugee access to refugee status, the rights and liberties :flowing from that, and the protection against refoulement simply because he provided assistance to the effort to bring himself to a country of safety is "totally out of sync with the objective" of s. 37(1)(b) of the IRPA. 86 120) It is a severe sanction that is wholly unjustified by the objective of protecting the public and fighting organized crime. The negative effect on the Appellant is all the more disproportionate since he is not really a member of any organized criminal group, and the 10 assistance he gave to the refugees who had taken charge of the ship was characterized by the Member as incidental to the success of the voyage. V What is the appropriate standard of judicial review? 121) While the Court of Appeal finds that it decision would have been the same had it applied a c01Tectness standard, its criticisms of Gagne J. 's analysis, and acceptance that Silverman J.' s decision in Appulonappa could be entirely or partially c01Tect, while other interpretations of the law could be acceptable in the immigration law context, imply a standard of greater deference was applied. It is submitted that a standard of c01Tectness is the only one appropriate in a case involving 2 0 such legally complex decision of profound impact on an individual's rights, as opposed to administrative law decisions made in an ordinary civil litigation context. 122) The variance in interpretations between judges and courts, the Court of Appeal's refusal to resolve issues of law, and even the variant responses of members of the same tribunal to the same fact situation, illustrate why a correctness standard is preferable on issues of law far more complex than the ordinary application of a statutory provision. This becomes all the more imp01iant as govermnent increasingly shifts decision making away from people with sufficient expe1iise in law. An Immigration Division member need not be a lawyer, and need not have any familiarity with refugee law, criminal law, international law or -where they are judging cases 29 85 Bedford, supra, para 121. ABOA tab 7 86 Bedford, supra para 120. ABOA tab 7 Publication Ban Interdiction de 40 publication based on privileged evidence in national security cases- the complex and evolving law of national security and privilege. 123) In Dunsmuir and Newfoundland and Labrador Nurses' Union the context was judicial review of labour arbitration decisions. The Court set out in Newfoundland Nurses that in labour arbitration cases the parties intend for disputes within the term of a collective bargaining agreement to be resolved expediently and they retain the ability to renegotiate their collective bargaining agreement when it ends if they are unhappy with how such issues have been dealt with. In Canadian Human Rights Commissions v. Canada the issue was whether the tribunal could award legal fees. 10 None of these issues compare with a context where more critical rights are at stake and the decision requires an tmderstanding of law exceeding the decision-maker's area of expertise. 87 PART IV - SUBMISSION ON COSTS 124) The Appellant requests that the appeal be allowed with costs here and in the comis below. PART V - ORDERS REQUESTED 125) The Appellant requests an order allowing the appeal and returning the matter to the Immigration Division for redetermination in accordance with the reasons of this Comi. 20 126) The Appellant requests thats. 37(l)(b) be declared of no force and effect as it violates s. 7 of the Charter ofRights and Freedoms, or declared inapplicable to the Appellant. ALL OF WHICH IS RESPECTFUL Y SUBMITTED, THIS li11 DAY OF SEPTEMBER 2014. !(Ii,~ Raoul Boulakia Com1sel for the Appellant 29 87 Canada Human Rights Commission v. Canada 2011 SCC 53, para 23-24, ABOA tab 8 Dunsmuir v. New Brunswick 2008 SCC 9, para. 68-69, ABOA tab 11 Newfoundland and Labrador Nurses Union v. Nev.found/and and Labrador (Treasury Board) 2011 SCC 62, para 23-25, ABOA tab 25 Publication Ban Interdiction de 41 publication PART VI -TABLE OF AUTHORITIES PARA Agraira v. Canada (MPSEP) 2013 SCC 36 ...... 56 Application under s. 83.28 ofthe Criminal Code (Re), 2004 SCC 42 ...... 111 R. v. Appulonappa, 2013 BCSC 31 ...... 12, 47, 49, 72, 73, 96, 121 R. v. Appulonappa, 2014 BCCA 163 ...... 48, 72, 73 Canada (MCI) v. A032 2013 FC 322 ...... 85 Canada (MCI) v. B272 2013 FC 870 ...... 85 10 Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101...... 103, 105, 106, 118, 119 Canada Human Rights Commission v. Canada 2011 SCC 53 ...... 123 Charkaoui v. Canada 2007 SCC 9 ...... 110, 113 R. v. Desrosiers 2007 ONCJ 225 ...... 66 Dunsmuir v. New Brunswick 2008 SCC 9 ...... 123 R. v. Greyeyes [1997] 2 S.C.R. 825 ...... 71, 92, 97 R. v. Hibbert, [1995] 2 S.C.R. 973 ...... : ...... 65, 67 Hirsi Jamaa v. Italy, European Court of Human Rights, Application no. 27765/09, February 23, 2012 ...... 31, 35, 49 20 Jekula v. Canada (Minister ofCitizenship and Immigration), [1999] 1 F.C. 266 ...... 108 111 R. v. Lalonde (1995) 37 C.R. (4 ) 97 (Ont. Ct. Gen. Div.) ...... 67 R. v. Latimer [2001] 1 S.C.R. 3 ...... 66, 67, 68 Liv. Canada (MCI) [1997] 1 F.C. 235 (C.A.) ...... 62 R. v. McCain [2003] O.J. No. 1762 (CJ.) ...... 67 R. v. Meston (1975), 28 C.C.C. (3d) (Ont. C.A.) ...... 71 Nagalingam v. Canada (MCI) 2008 FCA 153 ...... 34 30 Nemeth v. Canada (Justice), 2010 SCC 56 ...... 19, 30 R. v Nelson, 2007 BCCA 490 ...... 90 New Brunswickv. G (J). [1999] 3 S.C.R. 46 ...... 115 Nevtifoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board) 2011SCC62 ...... 123 Publication Ban Interdiction de 42 publication Nguyen v. Canada (Minister ofEmployment and Immigration), [1993] 1 F.C. 696 ...... 109 R. v. Perka [1984] 2 S.C.R. 232 ...... 65, 66, 68 Poshteh v. Canada (Minister ofCitizenship and Immigration), 2005 FCA 85, [2005] ...... 109 Rahnema v. ME.I (FC) 68 F.T.R. 298 ...... 87 R. U c. Grece, European Court of Human Rights petition no. 2237/08, June 7, 2011 ...... 20 R. v. Ruzic, [2001] 1S.C.R.687 ...... 58, 65, 67, 68 Singh v. ME.I [1985] 1 S.C.R. 177 ...... 109, 110, 113 10 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 ...... 33 R. v. Synergy Group ofCanada Inc. 2006 ABPC 196 Torres Victoria v. Canada (MPSEP) 2011FC1392 ...... 112 Re VB03263/VB0-03264, Immigration and Refugee Board, Refugee Protection Division, December 13 2013 ...... 87, 113 CONVENTION AND COMMENTARY 1951 United Nations Convention Relating to the Status of the Refugees, Articles 1, 23, 28, 31, 32, 33, 34, 42 ...... 19, 25, 29, 30, 42 20 Article 31 ofthe Convention Relating to the Status ofRefitgees: non-penalization, detention, and protection, Guy Goodwin-Gill, in Refugee Protection in International Law, Cambridge University Press, 2003 (Feller et al) ...... 44 Handbook on Procedures and Criteria for Determining Refugee Status, Geneva: Office ofthe United Nations High Commisssioner for Refugees, 1979, paragraph 28 ...... 25 Hathaway, The Rights ofRefugees Under International Law (Cambridge: Cambridge University Press, 2005) ...... 38, 40, 41, 42, 43 30 Sir Elihu Lauterpacht QC and Daniel Bethlehem, "Non-Refoulement (Article 33 of the 1951 Convention)" in Erika Feller, Volker Turk and Frances Nicholson (eds), Refitgee Protection in International Law, UNHCR 's Global Consultations on International Protection, (Cambridge: Cambridge University Press, 2003) ...... 20 UNHCR Executive Committee Resolutions No. 71, 1993; No. 74, 1994; No. 82, 1997; No. 85, 1998; No. 87, 1999; No. 82, 2004, cited in A Thematic Compilation of Executive Committee Conclusions, UNHCR, June 2011 ...... 25 40 UNHCR Executive Committee Conclusion No. 97, 2003 ...... 26, 51 Publication Ban Interdiction de 43 publication UNHCR, Guidelines on International Protection: Application ofthe Exclusion Clauses: Article IF ofthe 1951 Convention relating to the Status ofRefugee, HCR/GIP/03/05, 4 September 2003 ...... 22 PART VII-LEGISLATION AT ISSUE Immigration and Refugee Protection Act S.C. 2001 c. 27, ss. 3(2), 3(3)(f), 37(1)(b), 37(2), 103(1), 112(3), 113(d)(ii), 115(2), 117, 131, 133 10 The Canadian Charter ofRights and Freedoms, s. 7 Publication Ban Interdiction de 44 publication Immigration and Refugee Protection Act S.C. 2001 c. 27, ss. 3(2), 3(3)(f), 37(l)(b), 37(2), 103(1), 112(3), 113(d), 115(2), 117(1), 131, 133 3(2) Objectives - refugees (2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; 10 (b) to fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement; (c) to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and 20 fundamental freedoms of all human beings; (/) to suppo1i the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and (h) to promote international justice and security by denying access to Canadian teITitory to persons, including refugee claimants, who are security risks or serious criminals. 3(3)(f) (3) This Act is to be construed and applied in a manner that [ ... ] 30 (/)complies with international human rights instruments to which Canada is signatory. Publication Ban Interdiction de 45 publication 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in fmiherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the conunission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or 10 (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. Application (2) Paragraph (1 )(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. 103. (1) Proceedings of the Refugee Protection Division in respect of a claim for refugee protection are suspended on notice by an officer that (a) the matter has been refeITed to the Immigration Division to determine whether the claimant is inadmissible on grounds of security, violating human or international rights, serious 20 criminality or organized criminality; or (b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that may be punished by a maximum tenn of imprisonment of at least 10 years. 112(3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grotmds of security, violating human or international rights or organized criminality; Publication Ban Interdiction de publication 46 ( b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisomnent of at least 10 years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). 10 113( d) 113. Consideration of an application for protection shall be as follows: [ ... ] (d) in the case of an Applicant described in subsection 112(3)- other than one described in subparagraph (e)(i) or (ii) - consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an Applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other Applicant, whether the application should be refused because of the nature and severity of acts committed by the Applicant or because of the danger that the Applicant constitutes to the security of Canada 20 115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or crnel and unusual treatment or punishment. Exceptions (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of Publication Ban Interdiction de publication 47 the Minister, a danger to the public in Canada; or ( b) who is inadmissible on grotmds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. 117. ( 1) 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. 10 131. Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person. 133. A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or tmder section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee 2 0 protection is confened. Publication Ban Interdiction de 48 publication Loi sur ['immigration et la protection des rijugiis, L.C. 2001, c. 27, ss. 3(2), 3(3)(t), 37(l)(b), 37(2), 103(1), 112(3), 113(d), 115(2), 117(1), 131, 133 3 (2) S'agissant des refugies, la presente loi a pour objet: a) de reconna1tre que le programme pour les refugies vise avant tout a sauver des vies et a proteger les personnes de la persecution; b) de remplir les obligations en droit international du Canada relatives aux refugies et aux personnes deplacees et d'affirmer la volonte du Canada de participer aux efforts de la 10 communaute internationale pour venir en aide aux personnes qui doivent se reinstaller; c) de faire beneficier ceux qui fuient la persecution d'une procedure equitable refletant les ideaux humanitaires du Canada; d) d'of:frir l'asile a ceux qui craignent avec raison d'etre persecutes du fait de leur race, leur religion, leur nationalite, leurs opinions politiques, leur appartenance a un groupe social en particulier, ainsi qu'a ceux qui risquent la torture ou des traitements ou peines crnels et inusites; e) de mettre en place une procedure equitable et efficace qui soit respectueuse, d'une part, de l'integrite du processus canadien d'asile et, d'autre part, des droits et des libertes fondamentales reconnus a tout etre humain; f) d' encourager l' autonomie et le bien-etre socioeconomique des refugies en facilitant la 20 reunification de leurs familles au Canada; g) de proteger la sante des Canadiens et de garantir leur securite; h) de promouvoir, a l'echelle internationale, la securite et la justice par l'interdiction du teni.toire aux personnes et demandeurs d'asile qui sont de grands criminels ou constituent un danger pour la securite. 3 (3) L 'interpretation et la mise en oeuvre de la presente loi doivent avoir pour effet : Publication Ban Interdiction de 49 publication [ ... ] j) de se conformer aux instruments internationaux pmiant sur les droits de l'homme dont le Canada est signataire. 37. (1) Empmient interdiction de territoire pour criminalite organisee les faits suivants : a) etre membre d'une organisation dont il ya des motifs raisonnables de croire qu'elle se livre ou s'est livree a des activites faisant paiiie d'un plan d'activites criminelles organisees par plusieurs personnes agissant de conce1i en vue de la perpetration d'une infraction a tme loi federale punissable pai· mise en accusation ou de la perpetration, hors du Caimda, d'une 10 infraction qui, commise au Caimda, constituerait une telle infraction, ou se livrer a des activites faisant paiiie d'un tel plan; b) se livrer, clans le cadre de la criminalite trai1snationale, a des activites telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalite. Application (2) Les faits vises a l'alinea (l)a) n'empmient pas interdiction de teITitoire pour la seule raison que le resident permanent ou l' etranger est entre au Caimda en ayant recours a tme persom1e qui se livre aux activites qui y sont visees. 103. (1) La Section de la protection des refugies sursoit a l'etude de la demande d'asile sur avis de l' agent portant que : a) le cas a ete defere a la Section de l'immigration pour constat d'interdiction de tenitoire pour 20 raison de securite ou pour atteinte aux droits humains ou internationaux, grande criminalite ou criminalite organisee; b) il l'estime necessaire, afin qu'il soit statue sur une accusation pour infraction aune loi federale punissable d'un emprisonnement maximal d'au moins dix ans. 112(3) L' asile ne peut etre confere au demandeur dans les cas suivants : a) il est interdit de tenitoire pour raison de securite ou pour atteinte aux droits humains ou internationaux ou criminalite organisee; Publication Ban Interdiction de so publication b) il est interdit de territoire pour grande criminalite pour declaration de culpabilite au Canada pour une infraction aune loi federale punissable d'un emprisom1ement maximal d'au moins dix ans ou pour toute declarntion de culpabilite a l'exterieur du Canada pour une infraction qui, colTilnise au Canada, constituerait une infraction a une loi federale punissable d'un emprisonnement maximal d'au moins dix ans; c) il a ete deboute de sa demande d'asile au titre de la section F de !'article premier de la Convention sur les refugies; d) il est nolTilne au certificat vise au paragraphe 77(1). 10 113. II est dispose de la demande collline il suit: [ ... ] d) s'agissant du demandeur vise au paragraphe 112(3)- sauf celui vise au sous-alinea e)(i) ou (ii)-, Sur la base des elements mentionnes a !'article 97 et, d'autre part (i) soit du fait que le demandeur interdit de territoire pour grande criminalite constitue tm danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait etre rejetee en raison de la nature et de la gravite de ses actes passes ou du danger qu'il constitue pour la securite du Canada; 20 115. (1) Ne peut etre renvoyee dans un pays ou elle risque la persecution du fait de sa race, de sa religion, de sa nationalite, de son appartenance a un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusites, la personne protegee ou la personne dont il est statue que la qualite de refugie lui a ete reconnue par un autre pays vers lequel elle peut etre renvoyee. Exclusion (2) Le paragraphe (1) ne s'applique pas a l'interdit de territoire : Publication Ban Interdiction de 51 publication a) pour grande criminalite qui, selon le ministre, constitue un danger pour le public au Canada; b) pour raison de securite ou pour atteinte aux droits humains ou intemationaux ou criminalite organisee si, selon le ministre, il ne devrait pas etre present au Canada en raison soit de la nature et de la gravite de ses actes passes, soit du danger qu'il constitue pour la securite du Canada. 117. (1) Il est interdit a quiconque d'organiser l'entree au Canada d'une OU de plusieurs personnes ou de les inciter, aider ou encourager a y entrer en sachant que leur entree est ou serait en contravention avec la presente loi ou en ne se souciant pas de ce fait. 10 131. C01mnet une infraction quiconque, sciemment, incite, aide ou encourage ou tente d'inciter, d'aider ou d'encourager une personne a commettre toute infraction visee aux articles 117, 118, 119, 122, 124 ou 129 ou lui conseille de la commettre; l'auteur est passible, sur declaration de culpabilite, de la peine prevue a la disposition en cause. 133. L'auteur d'une demande d'asile ne peut, tant qu'il n'est statue sur sa demande, ni une fois que l'asile lui est confere, etre accuse d'une infraction visee a I' article 122, a l'alinea 124(1)a) OU a I' article 127 de la presente loi et a I' article 57, a l'alinea 340c) OU aux articles 354, 366, 368, 374 ou 403 du Code criminel, des lors qu'il est arrive directement ou indirectement au Canada du pays duquel il cherche a etre protege et a la condition que !'infraction ait ete c01mnise a l'egard 2 0 de son an-ivee au Canada. The Canadian Charter ofRiglzts and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (1982) (U.K.), 1982, c. 11 s. 7 s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Charte canadienne des droits et libertes, Partie I de la Loi constitutionelle de 1982 (R-7) 30 constituant l'annexe B de la Loi de 1982 sur le Canada (R-U), 1982, c. 11, s. 7 s. 7 Chacun a droit a la vie, a la liberte et a la securite de sa personne; il ne peut etre porte atteinte ace droit qu'en conformite avec les principes de justice fondamentale. Publication Ban Interdiction de 5 publication Columbia Supreme Court in Appulonappa which found this with respect to s. 117, to argue that s. 37(1)(b) should be strnck for overbreadth if it is interpreted in reliance on s. 117.7 13) The Court of Appeal rejected the idea that the Applicant's motive for helping the smugglers could be taken into account in judging whether he had the required mens rea to commit the offence. The Court of Appeal accepted that the defence of necessity could be raised in principle, but rejected it on the facts of the case, on the basis that the Appellant had not been in imminent danger when he boarded the ship, as he boarded it in Thailand rather than Sri Lanka. The Court of Appeal added a factual presumption, though there was no evidence to support this, 10 that his motivation to travel to Canada was "more than the fear of being returned to his country." It also held that his health condition and need for additional food while on board the ship was not an imminent peril. 8 14) The Federal Court of Appeal refused to answer the second question, finding incorrectly that the Appellant had not made any written or oral submissions about it. The Court rejected argument that the decision breached Canada's international law obligations to refugees, but found that it would be contrary to the purpose of the !RPA and international law if the provision were applied to "close family members who mutually assist themselves" in being smuggled to Canada to claim refugee status here. It found that the Charter is not engaged in an inadmisibility hearing, 20 but that if a "humanitarian worker" who smuggled a refugee were subject to such a hearing, the Member would have to consider "whether there are constitutional grounds that would preclude it from making an inadmissibility finding". It also decided not to comment as to whether s. 117 is unconstitutionally broad in a criminal law context.9 PART II - QUESTIONS IN ISSUE 25 7 Appellant's record, pp. 108-115, 126 R. v. Appulonappa, 2013 BCSC 31, ABOA tab 3 B Appellant's record p. 79 9 Appellant's record: p. 83 (paragraph 143), p. 65 (paragraph 91), p. 73 (paragraph 112), p. 38 (paragraph 116), p. 72 (paragraphs 111 and 109); pp. 108-115, 126 (Memorandum) Publication09/06 2014 Ban11:07 FAX 4169258122 law_offices 141000210003 Interdiction de 52- publication05/09/201~ 10:57 5139959138 REGISTRV-GREFFE PAGE 02/B3 .supreme Court of Canada Cour suprE'!me du Canada June 9, 2014 le 9 juin 2014 ORDER ORDONNANCE MOTION REOUli!TE B30£> v. MINISTER OF PUBLIC SAFETY .AND EMERGENCY PREPAREDNESS (F.C.A.) (356&5) THE CmEF JUSTICE: UPON APPLICATION by the a.ppella:nt for an order stating constitutional questions in. the aboye appeal; AND TIIE MA.l'ElUAL FILED having been read; IT IS HEREBY ORDERED THAT THE CONSTITUTlONA.L QtJ&STIONS BE STATED AS FOLLOWS: 1. Does s. 37(1)(b) of fue!mmlgration and R.efagee Protection.Act, S.C. 2001, c. 27, infringe s. 7 of the Canarltcm Charter ofRights and Freedoms? 2. If so~ is the infringement a reasonable lhn.it prescribed by law as can be demonstrably justified in a free and dexn.ocratic society under s. 1 of the Canadian Charter ofRtghts and Freedoms? · A:ny attorney general who intervenes pursuant to par. 61(4) of the ,Rules ofthe Supreme Court of Cam:ida shall pay the appellant and re$pondent the costs· of any additional disbursements they incur as a result of the intervention. IT IS HEREBY FURTHER ORDERED THAT: 1. The awellant and respondent shall serve and file their responses, if any, to the. motions for leave to interven~ on or before Ootober 7, 2014. 2. Replies to the responses, if any, to the r:notions for leave to intervene shall be served and filed on or before October 9, 2014. 3. A:n:y attorney general wishing to intervene pirrsuantto par. 61(4) of the Rules ofthe Supreme Court ofCanada shall serve and file their factum and book of authorities no later than Novemb~· 25, 2014. Publication Ban 09/06 2014 11:07 FAX 4169258122 law_offices [@0003/0003 Interdiction de 53 BS/09/2014 10:57 Sl.39959138 publication REGISTRY-GREFFE PAGE 133/03 2 A LA SUITE DE LA DEMANDE de l'appelant visant a obten.ir la formulation de questions cansti.tutioDOelles dans l'appel susmentionne; . ET A.PRES AVOIR LU la documentatlon d6pos6e:, LES QUESTIONS CONSTITUTIONNELLES SUIVANTES SONT FORMULEES : ·1. L'alinea 37(1)b) de la Loi sur !'immigration et la protection des refugies, L.C. 2001, ch. 27, porte-t-il atteinte a un droit garanti par l'ru:t. 7 de la Charte canadienne des droits et libertes? 2. Dans l'affirmative, s'agit-il d'une atteinte portee par. tllle regle de droit dans des !Unites qui sont raisonnables et dont la justification peut se demontre:r dans une societe Libre et democratique suivant l'articlepremier de la Charte ca.nadierme des droits et libertes? Tou.t proc-ureur general qui' intervie.o.dra en vertu du par. 61(4) des R~gles d~ la Cour supreme du Canada sera tenu de payer aux appelants et a l'inthne les d6peliS supplementaires resultant de so11 intervention.. · IL EST :EN OUTRE ORDONNE CE QUl SUIT : 1. Vappelant et l'intixnee signifieront et deposeront leurs reponses aux demandes d'autorisation d'intervenir, le cas echean~ au plus tard le 7 octobre 2014. 2. Les repliques, le cas ech6E!Il4 a;ux: reponses aux cle:mandes d' autoriseition d 1intervenir seront signifiees et deposees au plus'tard le 9 octobre 2014. 3. Tout procureur general qui in.terviend:ra en vertu du par. 61(4) des Regles de la Cour suprtme du Canada ·C!-evra signifier et deposer son m6moire et son recueil de sources au plus ta.rd-le 25 novembre'2014. ~ C.J.C, J.C.C.