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Supreme Court of Canada hears human smuggling case

February 16, 2015

The Indo-Canadian Voice has reported on the Supreme Court of Canada hearing in R. v. Appulonappa, a case in which several defendants were charged with human smuggling under the Immigration and Refugee Protection Act (IRPA). Section 117 of the IRPA makes it a crime for any person to assist anyone entering Canada without valid documentation. This includes humanitarian workers assisting refugees fleeing persecution.

As the Voice explains, the defendants argued that s. 117 is overbroad and therefore unconstitutional. Because it “criminalizes any person who knowingly assists any undocumented individual in coming to Canada … individuals the government did not intend to prosecute, such as those who provide support to migrants for humanitarian reasons, and individuals who provide support to migrants on the basis of close family ties” are also caught by the legislation. The defendants succeeded at trial.

At trial, the federal government described the purpose of s. 117 as “aimed at stopping human smuggling and protecting the victims of human smuggling in accordance with Canada’s international obligations.” On appeal, the government broadened its argument, claiming that the purpose of s. 117 was not just to stop human smuggling but also to “prevent individuals from arranging the unlawful entry of others into Canada, with additional secondary goals such as enforcing Canada’s sovereignty, maintaining the integrity of Canada’s immigration and refugee system, protecting public health and safety, and promoting international justice and security.” Although the argument had changed, the B.C. Court of Appeal allowed the appeal and reversed the lower court decision.

On appeal to the Supreme Court of Canada, the British Columbia Civil Liberties Association intervened to argue that the Court of Appeal ought not to have allowed the government to advance vague or imprecise definitions of legislative objectives. In its submission, this undermines the courts’ ability to “meaningfully review legislation for compliance with the Charter.”  The  BCCLA also maintained that the government’s broad characterization of the law’s objectives was unsupported by the legislative history of the provision.

You can read the article and the BCCLA’s factum here.


Daniel Sheppard

Practice Areas

Appeals & Judicial Review, Criminal Law