Smuggling of migrants

Offences

• Enabling illegal entry
• Financial or other material benefit (to smuggler)

Mode

• sea

R. v. Appulonapa [2015] SCC 59 (27 November 2015)

UNODC No.:
CANh001

Fact Summary

Date(s) of offending: 17 October 2009 
The MV Ocean lady is a marine vessel that was apprehended on October 17, 2009 off the west coast of Vancouver Island, in British Columbia. It was carrying seventy-six Sri Lankan (Tamil) migrants who boarded the ship in Southeast Asia (Indonesia and Thailand) and who were seeking asylum (refugee status) in Canada claiming their lives were endangered in Sri Lanka following the civil war. None of the passengers had obtained the required legal documentation for entry into Canada (Para. 1, R. v. Appulonappa, 2015 SCC). The four appellants, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah, and Vignarahaj Thevarajah, were alleged by Crown to be the point persons involved in a transnational for-profit smuggling operation by organizing the migrants in Indonesia and Thailand before boarding the freighter and then serving as chief crew, including as the captain and chief engineer, on the journey to Canada (Para. 2). The four appellants, were charged under s. 117(1) of the Immigration and Refugee Protection Act (“IRPA”), which defines the transnational offence of “organizing, inducing, aiding or abetting” the entry into Canada of persons without valid documentation in contravention of the Act (Para 3). A conviction for this offence may result in a lengthy sentence of (potentially life) imprisonment, a substantial fine, or both and/or disqualification from being considered for refugee status.

Commentary and Significant Features

Among other reasons, the SCC R v. Appulonappa unanimous decision is a landmark decision in view of its narrow rather than broad ruling of s. 117 of the IRPA transnational offence of organizing (unlawful) entry into Canada requiring ‘human smug­gling’ operations to have an organized crime and profit dimension.  The landmark ruling provided a middle-ground approach to not striking down the s. 117 offence in its entirety, but reading down the section only insofar as it excludes the prosecution of three categories of conduct including humanitarian, mutual and fam­ily aid from prosecution. The judgment is also important in terms of its use of hypotheticals and in relation to Canada’s international legal obligations, including the Refugee Convention, and the stated objectives of our national laws given statements by the Chief Justice of the SCC that a balance must be struck between Canada’s national security concerns and its humanitarian obligations.
Author:
ICCLR

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Sri Lanka

International Cooperation

Measures

• International law enforcement cooperation (including INTERPOL)

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Supreme Court
 
Proceeding #1:
  • Stage:
    other
  • Details:
    The case arose during criminal proceedings with the four accused as the “voir dire” (trial within trial).
  • Official Case Reference:
    R. V. Appulonappa, 2013 BCSC 31
  • Decision Date:
    11 January 2013

    Court

    Court Title:
    The Supreme Court of British Columbia
     

    Location

  • City/Town:
    Vancouver
  • Province:
    British Columbia
  • Description:

    The central matter before the court was the Section 117 of the Immigration and Refugee Protection Act and its compatibility with the Section 7 of the Canadian Charter of the Rights and Freedom (part of Constitution). These provisions read as follows:

    Section 117 of the Immigration and Refugee Protection Act (IRPA), as it existed at the time of the alleged offence in this matter:

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

    (2) 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) 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 for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

    Section 7 of the Charter of Rights and Freedoms:

    7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

    The Defense’s Argument

    The defendants argued that s. 117 of the IRPA was unconstitutionally overbroad in contrary to s. 7 of the Charter of Rights and Freedoms. They held that it captured a broader range of conduct and people than what was essential to achieve the government’s objective. In accordance with the over-breadth doctrine, a law can be found invalid if it punishes constitutionally protected conduct or speech as well as unprotected conduct or speech without sufficient justification. The defendants argued that s. 117 was overbroad and therefore unconstitutional because the provision captures two hypothetical categories of people outside its stated purpose: specifically, that it may lead to the prosecution and conviction of family members or humanitarian workers assisting asylum-seekers to come to Canada for altruistic reasons (Para 38, R. v. Appulonappa, 2013 BCSC 31).

    The (prosecution) Crown’s Argument

    The Crown argued that s. 117 was not overbroad or vague as it was consistent with Canada’s goals and international obligation to strive towards combatting the offence of human smuggling (Para 39, 2013 BCSC 31). Although the government had chosen a broader definition than that provided in the Smuggling of Migrants Protocol, it was consistent with the Protocol and not over broad in the context of the government’s objective in combatting human smuggling. A broad definition of human smuggling is necessary to more effectively combat the crime (Para 114, 2013 BCSC 31). The Crown accepted that the intent of s.117 was not to prosecute those providing humanitarian assistance to undocumented entrants for altruistic reasons (Para 10, 2015 SCC 59). However, the Crown argued that s. 117(4) did not save s. 117 from being unconstitutionally overbroad because s. 117 of the IRPA required the Attorney General to authorize prosecution, which would allow him to screen out people in the categories of humanitarian aid or family members helping asylum-seekers.

     

    The Court's Decision

    Justice Silverman ruled that s. 117 of IRPA violates s. 7 of the Charter in a way that is overbroad and that it could not be interpreted or “read down” to make it compliant with the Charter. The intention for s. 117 is to be broad enough to ‘appropriately stop and prosecute those human smugglers who exploit migrants for profit, or who seek to import terrorism to Canada’ (Para 146, 2013 BCSC 31). But, this purpose was never intended to be so broad that it was capable of prosecuting against legitimate family members and humanitarian workers. The section creates too wide of a net and therefore is inconsistent with the principles and purposes of Canada’s obligations to international Conventions and Protocols.

    Contrary to the Crown’s argument, prior consent to prosecution required by s. 117(4) did not save s. 117 from being unconstitutionally overbroad, and nor could the overbreadth be justified under s. 1 of the Charter. Silverman J. declared s. 117 of the IRPA to be of no force or effect under s. 52 of the Constitutional Act, 1982 and quashed the indictments against the four appellants.

     

    Outcome

  • Verdict:
    Other
  • Other Outcome:
    The Supreme Court found that the provision in the Canadian national law criminalizing the smuggling of migrants (Section 117 (1)) was of no force or effect. Considered to be overly broad, the provision was found by the Court to be "different from the definition in the Smuggling of Migrants Protocol which indicated that the smuggling of migrants was an activity which occurred in order to obtain a financial or other material benefit."
     
    Proceeding #2:
  • Stage:
    appeal
  • Official Case Reference:
    R. v. Appulonappa, 2014 BCCA 163
  • Decision Date:
    30 April 2014

    Court

    Court Title:
    Court of Appeal for British Columbia
     

    Location

  • City/Town:
    Vancouver
  • Province:
    British Columbia
  • Description:

    The appeal concerns the constitutionality of section 117 of the Immigration and Refugee Protection Act, 2001 S.C., c. 27, and whether it violates section 7 of the Canadian Charter of Rights and Freedoms. If a violation exists, it must be determined whether the violation is demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter.

    The Crown’s Argument

    The Crown appealed the decision to the British Columbia Court of Appeal (BCCA). On appeal, the Crown revised its arguments stating that s.117 was enacted to prevent any and all acts of assisting or organizing the unlawful entry into Canada of undocumented migrants. The crown said that this was required to further Canada’s goals of: (1) controlling entry into its territory; (2) protecting the health, safety, and security of Canadians; (3) maintaining the integrity of Canada’s lawful immigration and refugee claims regimes; and (4) furthering the development of international justice and cooperation. ‘The Crown said the trial judge erred in misunderstanding the effect of the country’s international obligations, which “in turn tainted his approach to the hypothetical scenarios presented by the respondents to demonstrate overbreadth” (Para. 5, Appulonappa BCCA 2014).

    The Respondents’ Argument

    The respondents argued that the Crown should not be allowed to put fourth an fundamentally different position on a central issue on appeal. They also submit that the trial judge did not make any error in finding s. 117 of IRPA overbroad and of no force or effect.

    The Court’s Decision 

    The BCCA accepted the revised Crown submission on the purpose of s. 117 finding the provision to be constitutional on this basis; that Canadian laws criminalizing assistance to undocumented migrants do not allow for any exceptions based on the offender’s motive. The BCCA added that the s. 117(4) requirement for the Attorney General’s consent to prosecute as a screening device would protect against improper prosecutions on humanitarian, family or other grounds and that should such a prosecution proceed it could be constitutionally challenged as an ‘improper exercise of ministerial discretion’. The BCCA allowed the appeal, overturned the constitutional invalidity and the acquittals, and remitted the matter for trial (Para. 14-16).

     

    Outcome

    Other Outcome:
    The BCCA allowed the appeal, and set aside the trial judge’s order stating that s. 117 of IRPA was to be found inconsistent with the s. 7 of the Charter and of no force or effect. In addition, the acquittals of the appellants were set aside and the matter was directed for a new trial.
     
    Proceeding #3:
  • Stage:
    other
  • Details:
    Application under s 7 of the Canadian Charter of Rights and Freedoms
  • Official Case Reference:
    R. v. Appulonappa, 2015 SCC 59; Ref.35958
  • Decision Date:
    27 November 2015

    Court

    Court Title:
    Supreme Court of Canada/Cour Suprême du Canada
     

    Location

  • City/Town:
    Ottawa
  • Province:
    Ontario
  • • Criminal
    Description:

    The four appellants appealed the decision of the BCCA to the Supreme Court of Canada (SCC). The main issue before the SCC was whether s. 117 of IRPA threatens liberty protected by s. 7 of the Charter in a manner contrary to the principles of fundamental justice and, if so, whether such an infringement could be justified under s. 1. If an infringement was not justified by s. 1, then the Court needed to apply an appropriate remedy for the infringement (Para. 1, 24, R. v. Appulonappa, SCC 2015).

     

    The Appellants’ Argument

     

    The appellants argued that s. 117 violates s. 7 of the Charter because the provision captures two categories of people outside its purpose. Specifically, the two categories refer to people, without the required documents, who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada. They also contended that s. 117 is overbroad and offends the principles of fundamental justice because: its impact on liberty is grossly disproportionate to the conduct it targets, it is unconstitutionally vague, and it perpetuates inequality (Para. 25).

     

    The Crown’s Argument

     

    The Crown argues that’s the purpose of s. 117 is to catch all acts that in any way assist the entry of undocumented migrants. They declared that even though s. 117 is overbroad, it is minimally impairing (Para. 82).

     

    The Court’s Decision

     

    In a unanimous decision, the Supreme Court found s. 117 to be inconsistent with s. 7 of the Charter as being overbroad in relation to permitting the potential prosecution, conviction and imprisonment of three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family enter­ing without the required documents. In her reasons for the decision, Chief Justice McLachlin recognized that the purpose of s. 117 of the IRPA is to criminalize the smuggling of people into Canada in the context of organized crime only and a punitive goal of prosecuting persons with no connection to and no furtherance of organized crime was inconsistent with Parliament’s stated purpose of s. 117 and Canada’s international commitments because it criminalized conduct beyond the stated legislative objective. The Court found it unnecessary to consider the other legal arguments (s. 7 liberty argument on disproportionality) because they had already ruled s. 117 as being overbroad and inconsistent with s. 7 and that the inconsistency could not be saved by s. 1 (Crown did not meet the burden of providing a ‘demonstrable justification for inconsistencies with the Charter’). In allowing the appeal and seeking an appropriate remedy, the SCC read down  s. 117 of the IRPA, as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid, including aid to family members, to bring it in conformity with the Charter. On this basis, the charges were remitted for trial (Paras 70-85).

     

    Outcome

  • Verdict:
    Other
  • Other Outcome:

    The Supreme Court ruled to “allow allow the appeals and read down s. 117 of the IRPA, as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter” (Para 86, R. v. Appulonappa SCC 2015). The matter is now remitted for trial on this basis.

     

    The case is of interest also to jurisdictions that did not include the “for profit” motive in their definition of the offence of migrant smuggling.

     

    Migrants

    Migrant:
    76 Smuggled Migrants
    Gender:
    Male
    Nationality:
    Sri Lankan

    Defendants / Respondents in the first instance

    Defendant:
    Hamalraj Handasamy
    Gender:
    Male
    Nationality:
    Sri Lankan
    Age:
    39
    Role of accused: Mr Handasamy was one of four men accused of being involved in the organizing of the Ocean Lady venture during its journey to Canada. The four men were arrested on 14 June 2011 and remanded in custody.
    Defendant:
    Jeyachandran Kanagarajah
    Gender:
    Male
    Nationality:
    Sri Lankan
    Age:
    32
    Mr Kanagarajah was one of four men accused of being involved in the organizing of the Ocean Lady venture during its journey to Canada. The four men were arrested on 14 June 2011 and remanded in custody.
    Defendant:
    Francis Anthonimuthu Appulonappa
    Gender:
    Male
    Nationality:
    Sri Lankan
    Age:
    33
    Role of accused: Mr. Appulonappa was one of four men accused of being an ‘active leader’ in organizing of the Ocean Lady venture and for being 'active leaders' on the vessel during its journey to Canada. The four men were arrested on 14 June 2011 and were remanded in custody.
    Defendant:
    Vignarahaj Thevarajah
    Gender:
    Male
    Nationality:
    Sri Lankan
    Age:
    33
    Role of accused: Mr. Thevarajah was one of four men accused of being involved in the organizing of the Ocean Lady venture during its journey to Canada. The four men were arrested on 14 June 2011 and remanded in custody.

    Charges / Claims / Decisions

    Defendant:
    Hamalraj Handasamy
    Statute:
    Immigration and Refugee Protection Act, SC 2001, c 27 117 Organizing entry into Canada
    Charge / Claim:
    Organizing entry into Canada
    Defendant:
    Jeyachandran Kanagarajah
    Statute:
    Immigration and Refugee Protection Act, SC 2001, c 27 117 Organizing entry into Canada
    Charge / Claim:
    Organizing entry into Canada
    Defendant:
    Francis Anthonimuthu Appulonappa
    Statute:
    Immigration and Refugee Protection Act, SC 2001, c 27 117 Organizing entry into Canada
    Charge / Claim:
    Organizing entry into Canada
    Defendant:
    Vignarahaj Thevarajah
    Statute:
    Immigration and Refugee Protection Act, SC 2001, c 27 117 Organizing entry into Canada
    Charge / Claim:
    Organizing entry into Canada
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