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Supreme Court finds human smuggling law overbroad

November 27, 2015

Provision of Immigration and Refugee Protection Act is unconstitutional, Court holds

The Supreme Court of Canada has determined that s. 117 of the Immigration and Refugee Protection Act, which criminalizes human smuggling activities, is unconstitutionally overbroad.


On October 17, 2009, the MV Ocean Lady was apprehended off of the west coast of Vancouver carrying 76 Tamils fleeing the aftermath of the Sri Lankan civil war. Four of the individuals – whom the Crown alleged were the captain and crew of the ship – were charged with “Organizing entry into Canada” under s. 117 of the Immigration and Refugee Protection Act. That section provides:

117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

The accused challenged the constitutionality of a. 117(1) as violating s. 7 of the Canadian Charter of Rights and Freedoms due to its overbreadth. They argued that the provision criminalized any act of assistance to individuals entering Canada, without regard for the actor’s intentions. While the provision might capture organized criminals who smuggle refugees for profit, it could also be applied against family members helping relatives enter Canada, humanitarians, and even refugee claimants themselves who travel in groups as they flee persecution and violence.

The British Columbia Supreme Court held that the law was overbroad, but the British Columbia Court of Appeal reversed that decision and upheld the constitutionality of the law. An accused appealed to the Supreme Court of Canada.

The Supreme Court of Canada’s Decision

In a unanimous judgment, the Supreme Court held that s. 117 of the IRPA is unconstitutionally overbroad insofar as it applies to humanitarians, close family members, and refugee claimants providing mutual assistance to each other.

The Court described the extreme breadth of the provision, noting that it criminalizes not only organized criminals, but also “a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel”. Relying on the broader context of the IRPA, Canada’s international obligations towards refugees and the fight against human smuggling, and the legislative history of the provision, the Court rejected the Crown’s argument that Parliament had in fact intended to cover all such conduct.

Instead, the Court recognized that Parliament never intended to criminalize humanitarian, family members, or refugees providing mutual support to one another. Because the law was not intended to apply to such persons, but was drafted so broadly that they could face the risk of prosecution, s. 117 was unconstitutionally overboard. In the result, the Court read down s. 117 to not apply to these categories of individuals.

The British Columbia Civil Liberties Association intervened in the case to argue about the proper approach to defining legislative objectives for the purpose of s. 7 of the Charter. The BCCLA’s interpretive approach was adopted by the Supreme Court in R. v. Moriarty – a decision released a week earlier – and applied in substance in Appulonappa.

Read the BCCLA’s factum.

The BCCLA was represented in the Supreme Court of Canada by Marlys Edwardh and Daniel Sheppard.


Daniel Sheppard

Practice Areas

Criminal Law