IMM-2041-12
2012 FC 1466
J.P. and G.J. (Applicants)
v.
The Minister of Public Safety and Emergency Preparedness (Respondent)
Indexed as: J.P. v. Canada (Public Safety and Emergency Preparedness)
Federal Court, Mosley J.—Toronto, October 10; Ottawa, December 12, 2012.
* Editor’s Note: This decision has been reversed on appeal (A-29-13, A-498-12, A-563-12, 2013 FCA 262). The reasons for judgment, handed down November 12, 2013, will be published in the Federal Courts Reports.
Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of decision by Immigration and Refugee Board, Immigration Division, determining that applicants inadmissible pursuant to Immigration and Refugee Protection Act (IRPA), ss. 37(1)(b), 42(b) — Applicant arriving in Canada on board MV Sun Sea — During voyage, applicant assisting operators of MV Sun Sea, benefitting from better conditions, rations — Board accepting that applicant participating in human smuggling based on elements of offence in IRPA, s. 117 — Whether Board failing to interpret “people smuggling” for purposes of s. 37(1)(b) in manner consistent with international instruments to which Canada signatory — Board erring in interpreting s. 37 term “people smuggling” — S. 117 not defining “people smuggling” — Line between penalizing human traffickers, protecting those being smuggled blurred by overly expansive interpretation of s. 37(1)(b) encompassing those not carrying out human smuggling — Not possible for Board to determine whether claimant falling within scope of s. 37(1)(b) by strict reliance on factual elements of s. 117 offence — Questions certified as to whether appropriate to define “people smuggling” by relying on s. 117; whether interpretation of s 37(1)(b), term “people smuggling” reviewable on standard of correctness or reasonableness — Application allowed.
This was an application for judicial review of a decision by the Immigration Division of the Immigration and Refugee Board, determining that the applicants were inadmissible pursuant to paragraphs 37(1)(b) and 42(b) of the Immigration and Refugee Protection Act (IRPA) due to their involvement in human smuggling.
The applicants claimed refugee status after arriving on board the MV Sun Sea. The allegations of human smuggling were based on the fact that the applicant J.P. had accepted to assist the operators of the vessel by serving as a lookout and navigator. He lived in the crew quarters and benefitted from better conditions and rations. The applicant G.J. was inadmissible as an accompanying family member. The Board accepted that the applicant J.P. was involved in people smuggling based on the elements of the offence of aiding and abetting entry in section 117 of IRPA, i.e. entering Canada without the required documents, aiding or abetting the entry, and knowing of the lack of required documents. The Board found that section 117 provided an appropriate definition of “people smuggling”, although it lacked the elements of “financial or other material benefit” or of a “secret or clandestine” manner set out in the United Nations Convention against Transnational Organized Crime (UNCATOC). The Board considered that the broader Canadian definition encompassed the more specific elements set out in the international instruments.
The main issue was whether the Board erred in law by failing to interpret “people smuggling” for the purposes of paragraph 37(1)(b) of the IRPA in a manner consistent with international instruments to which Canada is a signatory.
Held, the application should be allowed.
The Board erred in its interpretation of the term “people smuggling” in section 37 of the IRPA and the decision was unreasonable. Subsection 117(1) does not, strictly speaking, provide a definition of “people smuggling”, but sets out the elements of the offence of aiding and abetting illegal entry. The line between penalizing human traffickers and protecting those who are being smuggled may be blurred by an overly expansive interpretation of paragraph 37(1)(b) that encompasses those who did not plan or agree to carry out the scheme and have no prospect of a reward other than a modest improvement in their living conditions enroute. The question of whether it is a “modest improvement” or a share as a partner in the smugglers’ enterprise that may bring the claimant within the scope of paragraph 37(1)(b) is a question of fact for the Board to determine, but it cannot avoid that task by a strict reliance on the factual elements of the offence set out in subsection 117(1).
Questions were certified as to whether it is appropriate to define the term “people smuggling” by relying on section 117 rather than a definition contained in an international instrument to which Canada is signatory; and whether the interpretation of paragraph 37(1)(b), and in particular of the phrase “people smuggling” therein is reviewable on the standard of correctness or reasonableness.
STATUTES AND REGULATIONS CITED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 159.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 37, 42(b), 72(1), 117.
Immigration Division Rules, SOR/2002-229, r. 47.
TREATIES AND OTHER INSTRUMENTS CITED
Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2241 U.N.T.S. 507, art. 2, 3.
United Nations Convention Against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209, Art. 3(2).
CASES CITED
considered:
R. v. Alzehrani, 2008 CanLII 57164, 237 C.C.C. (3d) 471 (Ont. S.C.J.); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; B010 v. Canada (Citizenship and Immigration), 2012 FC 569, [2014] 1 F.C.R. 95; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Hernandez v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1417, 45 Admin. L.R. (5th) 267; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Torres Victoria v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1392, [2013] 3 F.C.R. 414; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; B072 v. Canada (Citizenship and Immigration), 2012 FC 899, 13 Imm. L.R. (4th) 281; B306 v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1282, [2014] 2 F.C.R. 128.
referred to:
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Canada (Citizenship and Immigration) v. Dhillon, 2012 FC 726, [2014] 1 F.C.R. 325; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404, (1999), 68 C.R.R. (2d) 48 (C.A.); Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Re Manitoba Language Rights, [1985] 1 S.C.R. 721, (1985), 19 D.L.R. (4th) 1; R. v. Li, 2001 BCSC 458, 14 Imm. L.R. (3d) 225; R. v. Heywood, [1994] 3 S.C.R. 761, (1994), 120 D.L.R. (4th) 348; Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, (2000), 195 D.L.R. (4th) 422 (C.A.); Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85, [2004] 4 F.C.R. 48.
AUTHORS CITED
House of Commons Debates, Vol. 137, 1st Sess., 37th Parl. (17 May 2001).
Le Petit Larousse Illustré. Paris: Larousse, 2003, “clandestin”, “secret”.
Merriam-Webster Dictionary. Springfield, Mass.: Merriam-Webster, 1997, “smuggle”.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, “smuggle”.
United Nations Office on Drugs and Crimes. Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants. New York: United Nations, 2010.
United Nations Office on Drugs and Crimes. Model Law Against Trafficking in Persons. Vienna: United Nations, 2009.
APPLICATION for judicial review of a decision by the Immigration Division of the Immigration and Refugee Board, determining that the applicants were inadmissible pursuant to paragraphs 37(1)(b) and 42(b) of the Immigration and Refugee Protection Act due to their involvement in human smuggling. Application allowed.
APPEARANCES
Lorne Waldman for applicants.
David Cranton and Christopher Ezrin for respondent.
SOLICITORS OF RECORD
Lorne Waldman & Associates, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1] Mosley J.: This is an application for judicial review under to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the February 17, 2012, decision by the Immigration and Refugee Board, Immigration Division, determining that the applicants were inadmissible to Canada pursuant to paragraphs 37(1)(b) and 42(b) of the IRPA due to the male applicant’s involvement in human smuggling.
BACKGROUND
[2] The applicants arrived in Canada aboard the MV Sun Sea in August 2010. Both made claims for refugee protection. The Minister alleged that J.P. was inadmissible to Canada under paragraph 37(1)(b) of the IRPA, and that G.J. was inadmissible as an accompanying family member. The factual basis for the allegation against J.P. is that, after a first refusal, he had accepted to assist the operators of the vessel by serving as a lookout and navigator. He then lived in the crew quarters and had the benefit of better conditions and rations.
DECISION UNDER REVIEW
[3] The Board member accepted that J.P. was involved in people smuggling based on the elements of the offence of aiding and abetting entry in section 117 of the IRPA identified by the Ontario Superior Court of Justice in R. v. Alzehrani, 2008 CanLII 57164, 237 C.C.C. (3d) 471: (1) entering Canada, (2) without the required documents, (3) aiding or abetting the entry, and (4) knowing of the lack of required documents. She found that J.P. had entered Canada. He had not had the required documents, having left his valid passport behind in Thailand where he was living as a registered refugee. His role as an assistant navigator made him one of the crew, thus a person aiding the entry. He knew that G.J. was also without documentation and the member believed that he was aware that many other persons on the ship were in similar circumstances.
[4] The member considered paragraph 3(3)(f) of the IRPA, which requires the statute to be construed and applied in a manner consistent with international human rights instruments to which Canada is a signatory. She examined the definition of “transnational crime” at subsection 3(2) of the United Nations Convention Against Transnational Organized Crime [15 November 2000, 2225 U.N.T.S. 209] (UNCATOC) and found that an offence was transnational if it was committed in more than one state, or prepared in one state but committed in another, or committed in one state but caused substantial effects in another. In this case, the travel arrangements were made in Thailand and the end result took place in Canada, and the member was satisfied that this met the definition of transnational crime.
[5] Counsel for J.P. argued that section 37 was over-broad, as it punished those being smuggled along with the smugglers. The member agreed with the Minister that the requirements at rule 47 of the Immigration Division Rules, SOR/2002-229 (the Rules), for a constitutional challenge had not been met, and declined to rule on that aspect of the applicant’s submissions.
[6] G.J. was also found to be inadmissible on the grounds of being an accompanying family member of J.P., an inadmissible person.
ISSUES
[7] The issues raised by this application are:
1. Did the Board err in law by declining to address the applicants’ constitutional arguments because they had failed to file a notice of constitutional question?
2. Did the Board err in law by failing to interpret “people smuggling” for the purposes of paragraph 37(1)(b) of the IRPA in a manner consistent with international instruments to which Canada is a signatory?
ANALYSIS
Standard of Review
[8] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at paragraph 57, the Supreme Court established that a standard of review analysis is not required when existing jurisprudence identifies the proper standard.
[9] In a case arising from the same events and a similar determination, Justice Simon Noël found that the appropriate standard applicable to the Board’s interpretation of paragraph 37(1)(b) of the IRPA was reasonableness based on recent Supreme Court jurisprudence: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (Alberta Teachers’), at paragraph 30; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 (Alliance Pipeline), at paragraphs 37–39.
[10] Justice Noël declined to certify a question in response to a request from the applicant in that proceeding in relation to the standard in light of his conclusion that the Supreme Court jurisprudence was clear on this point: B010 v. Canada (Citizenship and Immigration), 2012 FC 569, [2014] 1 F.C.R. 95 (B010), at paragraph 76.
[11] Dunsmuir, at paragraph 53, establishes that “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically … the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.” At paragraph 60, the Court laid down the standard of correctness for questions of law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.
[12] In Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (Khosa), at paragraph 44, the Supreme Court reaffirmed that “[e]rrors of law are generally governed by a correctness standard” and added that:
Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness. Dunsmuir (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision-maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law. [Emphasis in original.]
[13] In this case, the issue of whether the Board should have ruled on the constitutional argument is one which falls within the normal scope of an expert adjudicator’s interpretation of her home statute (in this case the Rules) and is therefore governed by the standard of reasonableness. However, the issue of the interpretation of “people smuggling” in section 37 of the IRPA appears to me to be a question of law which is both beyond the adjudicator’s expertise and a matter of central importance to the legal system requiring the correctness standard. A similar conclusion was recently reached by Justice Snider in Canada (Citizenship and Immigration) v. Dhillon, 2012 FC 726, [2014] 1 F.C.R. 325 and by Justice Zinn in Hernandez v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1417, 45 Admin. L.R. (5th) 267 (Hernandez). Given that he had reached a different conclusion on the question of the standard from that of Justice Noël in B010, Justice Zinn found it appropriate to certify a question on that issue.
Did the Board err in law by declining to address the applicants’ constitutional arguments because they had failed to file a notice of constitutional question?
[14] Subsection 47(1) of the Rules requires a party who wants to challenge the constitutional validity of a provision to complete a notice of constitutional question. Although the Board is a “court of competent jurisdiction” for the purpose of considering Charter issues [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], it does not have the jurisdiction to strike down legislation unlike the Federal Court: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paragraph 24; Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.), at paragraph 6.
[15] The Board stated that it would not rule on the validity of section 37 because the required notice had not been given. The applicants argue that they were not challenging the validity of the provision, but the interpretation of paragraph 37(1)(b) by which “people smuggling” was defined overly broadly. They did not contend that the section should be struck down but that it should be interpreted correctly, in a manner consistent with the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter), and with Charter values. They submit that the interpretation given to the provision by the member is in breach of Charter values.
[16] In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh), the Court found the disputed section of the IRPA to be constitutional but held that the Minister had to exercise his discretion in a manner consistent with the Charter and Charter values (at paragraph 77, “[t]he Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution…. the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter.”).
[17] The respondent disagrees with the assertion that the applicants never challenged the constitutionality of section 37 and merely demanded that it should be interpreted in a manner consistent with the Charter. Reference is made to the applicants’ written submissions to the Board which noted that a law can be struck down for overbreadth if it uses means that go further than necessary to accomplish the law’s purpose. The respondent submits that the applicants were incorrect in asserting that the Board did not have the jurisdiction to strike down section 37, citing Torres Victoria v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1392, [2013] 3 F.C.R. 414, at paragraph 38, in which Justice de Montigny concluded that the Immigration Division is clearly empowered to resolve constitutional questions that are inextricably linked to matters properly before it.
[18] The respondent then notes that a tribunal is not always required to interpret enactments in accordance with Charter values when there is no constitutional challenge or genuine ambiguity: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (Bell ExpressVu), at paragraph 62. In the absence of a challenge, the Board had no obligation to consider Charter values, and, in any event, its decision was consistent with Charter values, the respondent submits.
[19] In my view, applicants’ counsel’s lengthy written submissions to the Board focussed on the interpretation of the enactment with reference to the Charter but did not ask that the provision be struck down. Reference to the Supreme Court’s holding that a law can be struck down for overbreadth is one step (at paragraph 65 of a section running from paragraph 63 to paragraph 74) in 12 paragraphs of argumentation about the definition, which closes not with a proposal to strike the section, but with the following:
74. In sum, [J.P.] submits that section 37 must be interpreted in a manner consistent with the objectives of the IRPA, the ordinary meaning of the English and French words, and the international instruments which Canada has signed. The term smuggling must be interpreted to require evidence of financial profit or material benefit, and evidence that the conduct involved the illegal entry of people into Canada. Such an interpretation would allow for a finding of inadmissibility against the person who planned the operation and profited from it, but would preclude its application against the victims of people smuggling, who sought only a safe country in which to make a refugee claim.
[20] This is also borne out by the transcript of the oral argument at the hearing. The Minister’s counsel stated in submissions at the hearing that paragraphs 65 to 74 (above) of the applicants’ written submission “amount to a constitutional challenge”. Counsel continues on to say that the panel must first decide on the question of statutory interpretation, and if the result of that is that paragraph 37(1)(b) has the breadth to be applicable, then the panel has the jurisdiction to entertain a constitutional challenge, but that in this case such a challenge cannot be heard because the rules for it have not been followed. Counsel then returns to discussing the definition.
[21] I do not read Torres Victoria, above, as suggesting that the Board has the jurisdiction to strike a legislative provision, as the respondent conceded at the hearing of this application. At best, as a tribunal of competent jurisdiction, it could decline to apply the enactment if it concluded that it infringed the Charter: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504. As an administrative decision maker it was required to act consistently with the values underlying the grant of discretion, including Charter values: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paragraph 24: Conway, above, at paragraph 78. Bell ExpressVu, above, does not preclude application of the Charter to prevent an overbroad interpretation, but limits reliance on Charter values in the interpretation of legislation to cases where there is a genuine constitutional challenge or ambiguity.
[22] I conclude, therefore, that the Board misinterpreted the thrust of the applicants’ submissions and erred in declining to consider their Charter arguments notwithstanding the lack of notice. This was an unreasonable decision in the sense that it was not justified and was outside the range of appropriate outcomes.
Did the Board err in law by failing to interpret “people smuggling” for the purposes of paragraph 37(1)(b) of the IRPA in a manner consistent with international instruments to which Canada is a signatory?
[23] The Board member acknowledged that paragraph 3(3)(f) of the IRPA requires that the legislation be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. The member found, however, that section 117 of the IRPA provided an appropriate definition of “people smuggling”, although it lacked the elements of “financial or other material benefit” or of a “secret or clandestine” manner set out in the UNCATOC and the supplementing Protocol Against the Smuggling of Migrants by Land, Sea and Air [supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2241 U.N.T.S. 507]. She considered that the broader Canadian definition encompassed the more specific elements set out in the international instruments.
[24] The applicants submit that this was an error of law, as the broader definition would capture many people who would not be included under the definition in the UNCATOC and the supplementing Protocol. The applicants note that the Protocol provides two definitions at Article 3, while its Article 2 emphasizes that any efforts to combat smuggling must protect the rights of the victims of smuggling. The applicants argue that the definitions suggest that “smuggling” means procuring illegal entry into a country, for financial or material benefits. Similarly, the United Nations Model Law Against Trafficking in Persons, UNODC [United Nations Office on Drugs and Crime] 2009 and Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants, UNODC, 2010 emphasize the element of financial or material reward in the definition of people smuggling and need to protect the rights of smuggled migrants.
[25] The applicants say that the modern approach to statutory interpretation, as cited by the Supreme Court in Bell ExpressVu, at paragraphs 26 and 27, requires that the ordinary meaning of the words of the statute be considered first. This is done by reference to dictionaries. Both the Oxford English Dictionary and the Merriam-Webster Dictionary provide definitions of “smuggle” which emphasize the element of secret, clandestine, or surreptitious behaviour.
[26] The French and the English versions of a bilingually enacted statute have equal status: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at page 774. The French version of paragraph 37(1)(b) refers to “le passage de clandestins”. The Larousse dictionary indicates a connotation of secrecy for the word “clandestin”. The applicants argue that this language was meant to catch economic migrants who enter Canada clandestinely with no intention of reporting at a port of entry to make refugee claims: R. v. Li, 2001 BCSC 458, 14 Imm. L.R. (3d) 225, at paragraph 5.
[27] The applicants provided the Board with an excerpt from Hansard, House of Commons Debates (17 May 2001) (Hansard), of the proceedings of the Standing Committee on Citizenship and Immigration in which the provisions then being proposed for the IRPA were discussed. One of those was the proposed section 117 which would make organizing entry into Canada an offence. Members of Parliament were concerned that those assisting on a humanitarian basis would be caught by the provision and were repeatedly assured that this would not be the case due to the safeguard provision at subsection 117(4). The applicants note that “the government representatives clearly stated that it is here where the Attorney General would weigh the motives of the individual, as well as humanitarian considerations”. No such safeguard is included in paragraph 37(1)(b), which they contend has the effect of penalizing those who assist refugees. The applicants argue that the wording in section 117 can not merely be adapted for use in paragraph 37(1)(b) without its accompanying safeguards.
[28] Further, the applicants submit, the words of paragraph 37(1)(b) must be interpreted in light of the objectives of IRPA. These include national security, the protection of refugees and other victims, and respecting and promoting Canada’s domestic and international human rights commitments. As noted at paragraph 23 above, the IRPA should be applied and construed in a manner which complies with the international human rights instruments to which Canada is a signatory: de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 (de Guzman), at paragraphs 82, 83 and 87. At paragraph 83 of de Guzman, the Federal Court of Appeal stated:
On its face, the directive contained in paragraph 3(3)(f) that the IRPA “is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”, is quite clear: the IRPA must be interpreted and applied consistently with an instrument to which paragraph 3(3)(f) applies, unless, on the modern approach to statutory interpretation, this is impossible.
[29] Together, the ordinary meaning of the words, the objectives of the Act, and the objectives and definitions in UNCATOC and Protocol all suggest that “smuggling” involves clandestine entry for reward, the applicants submit. The Board member’s finding that for the purposes of paragraph 37(1)(b) “people smuggling” did not require clandestine or illegal entry, and did not require payment or reward was an error in statutory interpretation. Defining smuggling solely in reference to section 117 would result in a definition which was unconstitutionally broad and which would violate the applicants’ rights.
[30] The applicants argue that the Minister’s approach of requiring only four elements to be defined as a people smuggler—a person without the required documents, entry to Canada by that person, assistance by the accused, and the accused’s knowledge of the lack of documents—is overbroad, as the overbreadth principle is explained in R. v. Heywood, [1994] 3 S.C.R. 761, at pages 792–794. This interpretation of section 37 covers any action by migrants being smuggled that may have assisted in the smuggling operation. It would capture individuals who are clearly not smugglers, including relatives, refugee advocates, settlement service workers, and human rights organizations. This is not necessary to achieve the purpose of anti-smuggling legislation. The provision should be targeted only at those engaged in the illegal activity of exploiting vulnerable migrants for profit.
[31] The respondent points out that the Federal Court of Appeal has held that section 37 should be given an “unrestricted and broad” interpretation. The IRPA signifies an intention to prioritize the security of Canada: Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 (Sittampalam), at paragraph 21. Organized crime is a major threat to that security: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at paragraphs 46 and 58). The availability of Ministerial relief alleviated any harshness or inequity under section 37 and facilitated a broad and liberal interpretation of the provision: Sittampalam, at paragraph 28.
[32] The Board’s interpretation of “people smuggling” respected both the maxims of statutory interpretation and the requirement for consistency with international instruments, in the respondent’s submission. The Board considered the definitions in UNCATOC and the Protocol and found that the definition in subsection 117(1) complied with their purpose of prohibiting the transport of migrants without documentation. It concluded that the definition in subsection 117(1) was appropriate for the paragraph 37(1)(b) context because it encompassed the Protocol definition and did not undermine it or omit any persons captured by the Protocol definition. The Board was entitled to rely on that definition as it was contained in the same statute, before turning to dictionaries: Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85, [2004] 4 F.C.R. 48 (Medovarski FCA), at paragraph 27.
[33] The respondent notes that the alternative meaning of “clandestin” provided by Larousse (in addition to “secret”) is of [translation] “something done in contravention of the laws and regulations”. The word is rarely translated as “clandestine” or “secret” in the immigration context nor in other statutes such as the Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, which at section 159 expressly excludes the notion of clandestine from the offence of smuggling.
[34] Turning to the international instruments, the respondent argues that the definition of “human smuggling” in subsection 117(1) of the IRPA is consistent with the definition of “[s]muggling of migrants” in the UNCATOC Protocol, and that any person included under the Protocol will also be included under subsection 117(1). The definition at 117(1) therefore fulfills Canada’s international obligations. In the event that there is a conflict with the international instruments, validly enacted domestic legislation will prevail: B010, above, at paragraph 48.
[35] Alternatively, the respondent submits, if financial profit or material gain was a necessary element of the definition of a smuggler, the applicant had received a material benefit in the form of better accommodation on board ship and therefore the Board’s factual finding was reasonable.
[36] Justice Noël, in B010, at paragraphs 51–53, held that the primary objective of IRPA is to protect the security of Canadians:
As mentioned in Medovarski, above [2005 SCC 51], at paragraph 10, the objective of the IRPA set out in section 3 is to prioritize security. With this objective in mind, when applying some of the inadmissibility provisions in Division 4 of the IRPA, our courts have given a broad and unrestricted approach to such terms as “danger to the security of Canada” and “member of an organization” found in section 34 (for example, see Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paragraph 90; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, at paragraph 29; Harkat (Re), 2010 FC 1241, [2012] 3 F.C.R. 251, at paragraphs 85–88; Charkaoui (Re), 2005 FC 248, [2005] 3 F.C.R. 389, at paragraphs 35 and 36).
[37] Justice Noël concluded in B010 that it was reasonable for the Immigration Division to define “people smuggling” under section 37 by recourse to section 117. In his analysis at paragraphs 38–64, he found that both provisions were clearly meant to address the same activity and that adopting two different definitions would create a contradiction within the IRPA, permitting an individual to be convicted of people smuggling under section 117 but not found inadmissible under section 37. While noting that there were two competing interpretations of the legislation, the tribunal’s interpretation, which excluded a profit element, fell within the range of acceptable outcomes applying the reasonableness standard.
[38] Justice Hughes endorsed this view in B072 v. Canada (Citizenship and Immigration), 2012 FC 899, 13 Imm. L.R. (4th) 281 (B072), a case turning on the same issue, on the basis of judicial comity and in full agreement with the analysis in B010. Justice Zinn, in Hernandez, above, reached a different conclusion. He found that “people smuggling” in paragraph 37(1)(b) includes a profit element. Applying the correctness standard required that the tribunal’s decision be overturned.
[39] In B306 v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1282, [2014] 2 F.C.R. 128, Justice Gagné distinguished the facts of that case from those established in B010, above. The applicant in B306 had approached a crew member of the MV Sun Sea and asked to cook for the crew in exchange for extra food. He was also assigned a daily duty of watch keeping. This was in contrast to the facts in B010 where the panel had found that the applicant had boarded the ship knowing that he would be a crew member. Similarly, in the present matter the male applicant had not been a crew member at the outset of the voyage.
[40] Justice Gagné found that even if the “rather large interpretation that is being given to paragraph 37(1)(b) of the IRPA is owed deference from the Court” (at paragraph 25) the panel had reached an unreasonable conclusion in finding that the applicant had the necessary mens rea of a human smuggler. It was unreasonable for the panel to disregard the context of dependency and the lack of a role or authority of the applicant in the smuggling operation (at paragraphs 34 and 35). Mere knowledge of the fact that the fellow passengers were not in possession of the required documents to enter Canada could not justify a conclusion that the applicant had engaged in the activity of people smuggling as prescribed in paragraph 37(1)(b) (at paragraph 36).
[41] I note that subsection 117(1) does not, strictly speaking, provide a definition of “people smuggling”. It sets out the elements of the offence of aiding and abetting illegal entry. As Justice Gagné states, a successful prosecution would require proof of intent. For example, to convict the applicant J.P. on the facts of the present case would require that the criminal court be satisfied beyond a reasonable doubt that he intended to “aid and abet” the commission of the offence by the organizers.
[42] Canada agreed to enact strict measures to penalize human traffickers when it signed on to the UNCATOC and Protocol. It also undertook, at that time, to take steps to protect those who were being smuggled. The line between the two responsibilities may be blurred by an overly expansive interpretation of paragraph 37(1)(b) which encompasses those who did not plan or agree to carry out the scheme and have no prospect of a reward other than a modest improvement in their living conditions enroute. The question of whether it is a “modest improvement” or a share as a partner in the smugglers’ enterprise that may bring the claimant within the scope of paragraph 37(1)(b) is a question of fact for the Board to determine but it cannot avoid that task, in my view, by a strict reliance on the factual elements of the offence set out in subsection 117(1).
[43] I am satisfied that the Board erred in its interpretation of the term “people smuggling” in section 37 of the IRPA and that the decision, as a whole, was unreasonable. I will therefore send the matter back for reconsideration in accordance with these reasons.
[44] I accept the suggestion by the parties that I should certify as a serious question of general importance the question certified in common by my colleagues in B010, B072 and B306:
(1) For the purposes of paragraph 37(1)(b) of the IRPA is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than a definition contained in an international instrument to which Canada is signatory?
[45] I think it appropriate also to join Justice Zinn in certifying an additional question relating to the standard of review in light of the different views being expressed by the Court on this subject:
a. Is the interpretation of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, and in particular of the phrase “people smuggling” therein … reviewable on the standard of correctness or reasonableness?
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. the application for judicial review is allowed;
2. the February 17, 2012 decision by the Immigration and Refugee Board, Immigration Division, determining that the applicants were inadmissible to Canada is set aside and the matter is referred back to the Board for redetermination by a differently constituted panel in accordance with these reasons; and
3. the following questions are certified:
(a) For the purposes of paragraph 37(1)(b) of the IRPA is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than a definition contained in an international instrument to which Canada is signatory?
(b) Is the interpretation of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and in particular of the phrase “people smuggling” therein, reviewable on the standard of correctness or reasonableness?