SUPREME COURT OF CANADA

 

Citation: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704

Date: 20151127 Docket: 35388, 35688, 35685, 35677

 

Between:

B010

Appellant

and

Minister of Citizenship and Immigration

Respondent

- and -

Attorney General of Ontario, Canadian Association of Refugee Lawyers,

Canadian Council for Refugees, Amnesty International (Canadian Section,

English Branch), David Asper Centre for Constitutional Rights and

United Nations High Commissioner for Refugees

Interveners

And Between:

J.P. and G.J.

Appellants

and

Minister of Public Safety and Emergency Preparedness

Respondent

- and -

Attorney General of Ontario, Canadian Association of Refugee Lawyers,

Canadian Council for Refugees, Amnesty International (Canadian Section,

English Branch), David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association

Interveners

And Between:

B306

Appellant

and

Minister of Public Safety and Emergency Preparedness

Respondent

- and -

Attorney General of Ontario, Canadian Association of Refugee Lawyers,

Canadian Council for Refugees, Amnesty International (Canadian Section,

English Branch), David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association

Interveners

And Between:

Jesus Rodriguez Hernandez

Appellant

and

Minister of Public Safety and Emergency Preparedness

Respondent

- and -

Attorney General of Ontario, Canadian Association of Refugee Lawyers,

Canadian Council for Refugees, Amnesty International (Canadian Section,

English Branch), David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association

Interveners

 

 

Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.

 

Reasons for Judgment: (paras. 1 to 78)

McLachlin C.J. (Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)

 

 

 

B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704

B010                                                                                                                 Appellant

v.

Minister of Citizenship and Immigration                                                  Respondent

and

Attorney General of Ontario,

Canadian Association of Refugee Lawyers,

Canadian Council for Refugees,

Amnesty International (Canadian Section, English Branch),

David Asper Centre for Constitutional Rights and

United Nations High Commissioner for Refugees                                    Interveners

‑ and ‑

J.P. and G.J.                                                                                                  Appellants

v.

Minister of Public Safety and Emergency Preparedness                        Respondent

and

Attorney General of Ontario,

Canadian Association of Refugee Lawyers,

Canadian Council for Refugees,

Amnesty International (Canadian Section, English Branch),

David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association                                                         Interveners

‑ and ‑

B306                                                                                                                 Appellant

v.

Minister of Public Safety and Emergency Preparedness                        Respondent

and

Attorney General of Ontario,

Canadian Association of Refugee Lawyers,

Canadian Council for Refugees,

Amnesty International (Canadian Section, English Branch),

David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association                                                         Interveners

‑ and ‑

Jesus Rodriguez Hernandez                                                                          Appellant

v.

Minister of Public Safety and Emergency Preparedness                        Respondent

and

Attorney General of Ontario,

Canadian Association of Refugee Lawyers,

Canadian Council for Refugees,

Amnesty International (Canadian Section, English Branch),

David Asper Centre for Constitutional Rights,

United Nations High Commissioner for Refugees and

Canadian Civil Liberties Association                                                         Interveners

Indexed as: B010 v. Canada (Citizenship and Immigration)

2015 SCC 58

File Nos.: 35388, 35688, 35685, 35677.

2015: February 16; 2015: November 27.

Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.

on appeal from the federal court of appeal

                    Immigration — Inadmissibility and removal — Organized criminality — People smuggling — Migrants aided illegal entry of asylum‑seekers to Canada in course of collective flight to safety — Migrants seeking refugee status in Canada but found inadmissible based on grounds of organized criminal people smuggling — What conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling? — Whether people smuggling engaged in, in context of transnational crime, confined to activities conducted, directly or indirectly, for financial or other material benefit — What limits may be inferred from provision rendering persons inadmissible on grounds of organized criminality? — What is effect of requirement that people smuggling be in context of transnational crime? — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 37(1)(b).

                    B010, J.P., G.J., B306 and H (the “migrants”) were all found inadmissible to Canada under s. 37(1)(b) of the Immigration and Refugee Protection Act (“IRPA”) on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1)(b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits. The migrants all say they were simply helping fellow asylum‑seekers flee persecution, and were not engaged in people smuggling.

                    H is a native of Cuba who was accepted as a refugee by the United States. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of United States authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the United States, he came to Canada and claimed refugee protection.

                    B010, J.P., G.J., and B306 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum‑seekers on board to their own devices. Twelve of the migrants took over various duties during the three‑month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant. B010 worked two three‑hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment. J.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage. B306 volunteered to act as a cook and lookout. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.

                    The Immigration and Refugee Board (“Board”) found the migrants inadmissible to Canada, on the basis that s. 37(1)(b) of the IRPA covers all acts of assistance to illegal migrants and does not require a profit motive. On judicial review to the Federal Court, B010’s application was rejected while the applications of J.P., G.J., B306 and H were allowed. The Federal Court of Appeal rejected B010’s appeal and in the remaining cases, the court allowed the appeals and reinstated the Board’s decisions of inadmissibility.

                    Held: The appeals should be allowed and the cases remitted to the Board for reconsideration.

                    Section 37(1)(b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondent Ministers say that the term “people smuggling” in s. 37(1)(b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. The migrants argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.

                    Acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b). The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum‑seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime.

                    A migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum‑seekers in their collective flight to safety is not inadmissible under s. 37(1)(b). Acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA. To justify a finding of inadmissibility on the grounds of people smuggling under s. 37(1)(b), the respondent Ministers must establish before the Board that the migrants are people smugglers in this sense. The migrants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum‑seekers in the course of their collective flight to safety.

                    The interpretation of s. 37(1)(b) of the IRPA taken by the Board was not within the range of reasonable interpretations. The migrants were found inadmissible on an erroneous interpretation of s. 37(1)(b) and are entitled to have their admissibility reconsidered on the basis of the interpretation here.

                    It is unnecessary to consider whether s. 37(1)(b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers, as the migrants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). The argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1).

Cases Cited

                    Referred to: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, aff’d 2014 SCC 68, [2014] 3 S.C.R. 431; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324; Zingre v. The Queen, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392; Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655.

Statutes and Regulations Cited

Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, Bill C‑24, 1st Sess., 37th Parl., 2001 (assented to December 18, 2001), S.C. 2001, c. 32.

Canadian Charter of Rights and Freedoms, ss. 1, 7.

Constitution Act, 1982, s. 52(1).

Criminal Code, R.S.C. 1985, c. C‑46, s. 467.1(1) “criminal organization”.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 11(1), 20(1), 34, 35, 36, 37, 41, 42, 44, 99, 101(1)(f), 112, 113, 114, 117, 118, 121, 124(1)(a), 133.

Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 6, 50, 228.

Treaties and Other International Instruments

Convention relating to the Status of Refugees, 189 U.N.T.S. 150, arts. 31(1), 33.

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480, arts. 2, 3(a) “smuggling of migrants”, 6, 11, 19.

Protocol relating to the Status of Refugees, 606 U.N.T.S. 267.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319, art. 14(1).

United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, arts. 1, 2(a) “organized criminal group”, 3, 5, 34.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 14.

Authors Cited

Canada. House of Commons. House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, p. 2954.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 2, 1st Sess., 37th Parl., March 1, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040558& Language=E&Mode=1&Parl=37&Ses=1), 9:30 to 9:35.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=599716& Language=E&Mode=1&Parl=37&Ses=1), 10:40.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 9, 1st Sess., 37th Parl., April 5, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040661& Language=E&Mode=1&Parl=37&Ses=1), 10:50.

Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=1040838& Language=E&Mode=1&Parl=37&Ses=1), 10:35 to 10:40.

Currie, Robert J., and Joseph Rikhof. International & Transnational Criminal Law, 2nd ed. Toronto: Irwin Law, 2013.

Gallagher, Anne T., and Fiona David. The International Law of Migrant Smuggling. New York: Cambridge University Press, 2014.

Goodwin‑Gill, Guy S., and Jane McAdam. The Refugee in International Law, 3rd ed. Oxford: Oxford University Press, 2007.

Hathaway, James C. The Rights of Refugees Under International Law. Cambridge: Cambridge University Press, 2005.

Nollkaemper, André. National Courts and the International Rule of Law. Oxford: Oxford University Press, 2011.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

United Nations. Office on Drugs and Crime. Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto. New York: United Nations, 2006.

                    APPEAL from a judgment of the Federal Court of Appeal (Evans, Dawson and Stratas JJ.A.), 2013 FCA 87, [2014] 4 F.C.R. 326, 443 N.R. 1, 359 D.L.R. (4th) 730, 16 Imm. L.R. (4th) 227, [2013] F.C.J. No. 322 (QL), 2013 CarswellNat 650 (WL Can.), affirming a decision of Noël J., 2012 FC 569, [2014] 1 F.C.R. 95, 412 F.T.R. 23, 13 Imm. L.R. (4th) 245, [2012] F.C.J. No. 594 (QL), 2012 CarswellNat 1560 (WL Can.). Appeal allowed.

                    APPEALS from a judgment of the Federal Court of Appeal (Sharlow, Mainville and Near JJ.A.), 2013 FCA 262, [2014] 4 F.C.R. 371, 451 N.R. 278, 368 D.L.R. (4th) 524, 20 Imm. L.R. (4th) 199, 61 Admin. L.R. (5th) 1, [2013] F.C.J. No. 1236 (QL), 2013 CarswellNat 4158 (WL Can.), setting aside a decision of Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146, 423 F.T.R. 144, [2012] F.C.J. No. 1648 (QL), 2012 CarswellNat 5628 (WL Can.); a decision of Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128, 421 F.T.R. 52, 14 Imm. L.R. (4th) 212, [2012] F.C.J. No. 1424 (QL), 2012 CarswellNat 4444 (WL Can.); and a decision of Zinn J., 2012 FC 1417, 422 F.T.R. 159, 13 Imm. L.R. (4th) 175, 45 Admin. L.R. (5th) 267, [2012] F.C.J. No. 1531 (QL), 2012 CarswellNat 4784 (WL Can.). Appeals allowed.

                    Rod H. G. Holloway and Erica Olmstead, for the appellant B010.

                    Lorne Waldman, Tara McElroy and Clarisa Waldman, for the appellants J.P. and G.J.

                    Raoul Boulakia, for the appellant B306.

                    Ronald Poulton, for the appellant Jesus Rodriguez Hernandez.

                    Marianne Zoric and François Joyal, for the respondents.

                    Hart Schwartz and Padraic Ryan, for the intervener the Attorney General of Ontario.

                    Jennifer Bond, Andrew J. Brouwer and Erin Bobkin, for the intervener the Canadian Association of Refugee Lawyers.

                    Angus Grant, Catherine Bruce, Laura Best and Fadi Yachoua, for the intervener the Canadian Council for Refugees.

                    Chantal Tie, Laïla Demirdache and Michael Bossin, for the intervener Amnesty International (Canadian Section, English Branch).

                    Barbara Jackman and Audrey Macklin, for the intervener the David Asper Centre for Constitutional Rights.

                    John Terry, Rana R. Khan and Ryan Lax, for the intervener the United Nations High Commissioner for Refugees.

                    Andrew I. Nathanson and Gavin Cameron, for the intervener the Canadian Civil Liberties Association.

                     The judgment of the Court was delivered by

                     The Chief Justice —

I.              Introduction

II.           Facts and Judicial History

A.           Facts

B.            Judicial History

III.        The Issues

IV.        Discussion

A.           Standard of Review

B.            The Conduct Captured by Section 37(1)(b)

     37. (1) [Organized criminality] A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

. . .

 

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

 

 

In my view, there is no important difference between the English and French versions. (See relevant IRPA provisions set out in Appendix A.)

(1)           The Words of Section 37(1)(b) Read in Their Ordinary and Grammatical Sense

 

(2)           The Statutory Context of Section 37(1)(b)

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

(3)           The International Context of Section 37(1)(b)

(a)           International Law as Context: General Relevance

(b)           The Palermo Convention and Its Protocols

        1. 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.

(See also art. 14(1) of the Human Trafficking Protocol.)

Clause 37 deals with organized criminality. I would point out paragraph 37(1)(b), which is new. That is organized criminality:

 

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

 

So those are new inadmissibility provisions specifically directed at that form of organized crime.

 

(Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40)

(c)           The Refugee Convention

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The import of this prohibition for domestic admissibility provisions is clear. As A. T. Gallagher and F. David put it, “an individual cannot be denied refugee status — or, most important, the opportunity to make a claim for such status through fair assessment procedures — solely because of the way in which that person sought or secured entry into the country of destination”: The International Law of Migrant Smuggling (2014), at p. 165. Obstructed or delayed access to the refugee process is a “penalty” within the meaning of art. 31(1) of the Refugee Convention: ibid., at pp. 163-64.

(d)         Financial or Other Material Benefit: Perspective From the International Instruments

The reference to “a financial or other material benefit” as an element of the offences set forth in paragraph 1 was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations.

(United Nations Office on Drugs and Crime, Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (2006), at p. 489)

As noted by Gallagher and David: “The relevant Interpretative Notes to the Protocol affirm that it was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or nongovernmental organizations” (p. 366). It thus “seems reasonably clear that certain benefits that may accrue from being involved in migrant smuggling, such as family reunification and safety, do not constitute ‘material’ benefits”: ibid.

(4)           Harmonious Reading With the Intention of Parliament

(5)         Conclusion on Section 37(1)(b) as Applied to These Cases

C.            The Defences of Duress and Necessity

D.           The Constitutionality of Section 37(1)(b) Under Section 7 of the Charter

V.           Conclusion

APPENDIX A

 

Immigration and Refugee Protection Act, S.C. 2001, c. 27 (version in force at time)

 

        3. (1) [Objectives — immigration] The objectives of this Act with respect to immigration are

 

(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;

 

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

 

(b.1) to support and assist the development of minority official languages communities in Canada;

 

(c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;

 

(d) to see that families are reunited in Canada;

 

(e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;

 

(f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;

 

(g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;

 

(h) to protect the health and safety of Canadians and to maintain the security of Canadian society;

 

(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and

 

(j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

 

        (2) [Objectives — refugees] 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;

 

(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 fundamental freedoms of all human beings;

 

(f) to support 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 territory to persons, including refugee claimants, who are security risks or serious criminals.

 

        (3) [Application] This Act is to be construed and applied in a manner that

 

(a) furthers the domestic and international interests of Canada;

 

(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

 

(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

 

(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

 

(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and

 

(f) complies with international human rights instruments to which Canada is signatory.

 

        11. (1) [Application before entering Canada] A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

 

. . .

 

        20. (1) [Obligation on entry] Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,

 

(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and

 

(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.

 

. . .

 

        36. (1) [Serious criminality] A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

 

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

 

(b) having been convicted of an offence outside Canada 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; or

 

(c) committing an act outside Canada that is an offence in the place where it was committed and 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.

 

. . .

 

        37. (1) [Organized criminality] 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 furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission 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

 

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

 

. . .

 

        41. [Non-compliance with Act] A person is inadmissible for failing to comply with this Act

 

(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; . . .

 

. . .

 

        42. [Inadmissible family member] A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

 

(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; . . .

 

. . .

 

        44. (1) [Preparation of report] An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

 

        (2) [Referral or removal order] If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

 

        (3) [Conditions] An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

 

 

Claim for Refugee Protection

 

        99. (1) [Claim] A claim for refugee protection may be made in or outside Canada.

 

        (2) [Claim outside Canada] A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.

 

        (3) [Claim inside Canada] A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.

 

Pre-removal Risk Assessment

 

Protection

 

        112. (1) [Application for protection] A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).

 

        (2) [Exception] Despite subsection (1), a person may not apply for protection if

 

(a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;

 

(b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;

 

(c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or

 

(d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.

 

        (3) [Restriction] Refugee protection may not result from an application for protection if the person

 

(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;

 

(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two 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).

 

        113. [Consideration of application] Consideration of an application for protection shall be as follows:

 

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

 

(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;

 

(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;

 

(d) in the case of an applicant described in subsection 112(3), 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.

 

        114. (1) [Effect of decision] A decision to allow the application for protection has

 

(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and

 

(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.

 

        (2) [Cancellation of stay] If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.

 

        (3) [Vacation of determination] If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter, the Minister may vacate the decision.

 

        (4) [Effect of vacation] If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.

 

PART 3

 

ENFORCEMENT

 

Human Smuggling and Trafficking

 

        117. (1) [Organizing entry into Canada] 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.

 

        (2) [Penalties — fewer than 10 persons] A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

 

(a) on conviction on indictment

 

(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

 

(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

 

(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

 

        (3) [Penalty — 10 persons or more] A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

 

        (4) [No proceedings without consent] No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

 

        118. (1) [Offence — trafficking in persons] No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

 

        (2) [Definition of “organize”] For the purpose of subsection (1), “organize”, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

 

        121. (1) [Aggravating factors] The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether

 

(a) bodily harm or death occurred during the commission of the offence;

 

(b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;

 

(c) the commission of the offence was for profit, whether or not any profit was realized; and

 

(d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

 

        (2) [Definition of “criminal organization”] For the purposes of paragraph (1)(b), “criminal organization” means 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 furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence.

 

General Offences

 

        124. (1) [Contravention of Act] Every person commits an offence who

 

(a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act;

 

. . .

 

Prosecution of Offences

 

        133. [Deferral] 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 under 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 protection is conferred.

 

 

Immigration and Refugee Protection Regulations, SOR/2002-227 (version in force at time)

 

        6. [Permanent resident] A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.

 

Documents Required

 

        50. (1) [Documents — permanent residents] In addition to the permanent resident visa required of a foreign national who is a member of a class referred to in subsection 70(2), a foreign national seeking to become a permanent resident must hold

 

(a) a passport, other than a diplomatic, official or similar passport, that was issued by the country of which the foreign national is a citizen or national;

 

(b) a travel document that was issued by the country of which the foreign national is a citizen or national;

 

(c) an identity or travel document that was issued by a country to non-national residents, refugees or stateless persons who are unable to obtain a passport or other travel document from their country of citizenship or nationality or who have no country of citizenship or nationality;

 

(d) a travel document that was issued by the International Committee of the Red Cross in Geneva, Switzerland, to enable and facilitate emigration;

 

(e) a passport or travel document that was issued by the Palestinian Authority;

 

(f) an exit visa that was issued by the Government of the Union of Soviet Socialist Republics to its citizens who were compelled to relinquish their Soviet nationality in order to emigrate from that country;

 

(g) a British National (Overseas) passport that was issued by the Government of the United Kingdom to persons born, naturalized or registered in Hong Kong; or

 

(h) a passport that was issued by the Government of Hong Kong Special Administrative Region of the People’s Republic of China.

 

        (2) [Exception — protected persons] Subsection (1) does not apply to a person who is a protected person within the meaning of subsection 95(2) of the Act and holds a permanent resident visa when it is not possible for the person to obtain a passport or an identity or travel document referred to in subsection (1).

 

        228. (1) [Subsection 44(2) of the Act — foreign nationals] For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

 

(a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;

 

(b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

 

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

 

(i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

 

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

 

(iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

 

(iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order, or

 

(v) failing to comply with subsection 29(2) of the Act to comply with any condition set out in section 184, an exclusion order; and

 

(d) if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member.

 

        (2) [Subsection 44(2) of the Act — permanent residents] For the purposes of subsection 44(2) of the Act, if a removal order is made against a permanent resident who fails to comply with the residency obligation under section 28 of the Act, the order shall be a departure order.

 

        (3) [Eligible claim for refugee protection] If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in any of subparagraphs (1)(c)(i) and (iii) to (v).

 

        (4) [Reports in respect of certain foreign nationals] For the purposes of subsection (1), a report in respect of a foreign national does not include a report in respect of a foreign national who

 

(a) is under 18 years of age and not accompanied by a parent or an adult legally responsible for them; or

 

(b) is unable, in the opinion of the Minister, to appreciate the nature of the proceedings and is not accompanied by a parent or an adult legally responsible for them.

 

 

APPENDIX B

 

Convention relating to the Status of Refugees, 189 U.N.T.S. 150

 

Article 31

 

refugees unlawfully in the country of refugee

 

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

 

. . .

 

Article 33

 

prohibition of expulsion or return

(“refoulement”)

 

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

 

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

 

 

United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209

 

Article 1. Statement of purpose

 

        The purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively.

 

Article 2. Use of terms

 

        For the purposes of this Convention:

 

        (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

 

. . .

 

Article 3. Scope of application

 

        1. This Convention shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of:

 

        (a) The offences established in accordance with articles 5, 6, 8 and 23 of this Convention; and

 

        (b) Serious crime as defined in article 2 of this Convention;

 

        where the offence is transnational in nature and involves an organized criminal group.

 

        2. For the purpose of paragraph 1 of this article, an offence is transnational in nature if:

 

        (a) It is committed in more than one State;

 

        (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

 

        (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

 

        (d) It is committed in one State but has substantial effects in another State.

 

Article 5. Criminalization of participation in an organized criminal group

 

        1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

 

        (a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

 

        (i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

 

        (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

 

        a. Criminal activities of the organized criminal group;

 

        b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

 

        (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.

 

. . .

 

Article 34. Implementation of the Convention

 

        1. Each State Party shall take the necessary measures, including legislative and administrative measures, in accordance with fundamental principles of its domestic law, to ensure the implementation of its obligations under this Convention.

 

        2. The offences established in accordance with articles 5, 6, 8 and 23 of this Convention shall be established in the domestic law of each State Party independently of the transnational nature or the involvement of an organized criminal group as described in article 3, paragraph 1, of this Convention, except to the extent that article 5 of this Convention would require the involvement of an organized criminal group.

 

        3. Each State Party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating transnational organized crime.

 

 

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480

 

Article 2. Statement of purpose

 

        The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants.

 

Article 3. Use of terms

 

        For the purposes of this Protocol:

 

        (a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;

 

. . .

 

Article 6. Criminalization

 

        1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:

 

        (a) The smuggling of migrants;

 

. . .

 

        4. Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law.

 

Article 11. Border measures

 

        1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect the smuggling of migrants.

 

. . .

 

        5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol.

 

Article 19. Saving clause

 

        1. 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.

 

        2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are the object of conduct set forth in article 6 of this Protocol. The interpretation and application of those measures shall be consistent with internationally recognized principles of non-discrimination.

 

                    Appeals allowed with costs.

                    Solicitors for the appellant B010: Legal Services Society, Vancouver.

                    Solicitors for the appellants J.P and G.J.: Waldman & Associates, Toronto.

                    Solicitor for the appellant B306: Raoul Boulakia, Toronto.

                    Solicitors for the appellant Jesus Rodriguez Hernandez: Poulton Law Office, Toronto.

                    Solicitor for the respondents: Attorney General of Canada, Toronto.

                    Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

                    Solicitors for the intervener the Canadian Association of Refugee Lawyers: University of Ottawa, Ottawa; Refugee Law Office, Toronto.

                    Solicitors for the intervener the Canadian Council for Refugees: Angus Grant, Toronto; Refugee Law Office, Toronto; Laura Best & Fadi Yachoua, Vancouver.

                    Solicitors for the intervener Amnesty International (Canadian Section, English Branch): South Ottawa Community Legal Services, Ottawa; Community Legal Services Ottawa Centre, Ottawa.

                    Solicitors for the intervener the David Asper Centre for Constitutional Rights: Jackman Nazami & Associates, Toronto; University of Toronto, Toronto.

                    Solicitors for the intervener the United Nations High Commissioner for Refugees: Torys, Toronto; UNHCR, Toronto.

                    Solicitors for the intervener the Canadian Civil Liberties Association: Fasken Martineau DuMoulin, Vancouver.