The three individuals (the respondents) were charged under section 117 of the Immigration and Refugee Protection which prohibits organizing, inducing, aiding or abetting people to come into Canada. Notwithstanding the statutory language of the offence, in the 2015 decision of R v Appulonappa, the Supreme Court of Canada held, for constitutional reasons, that it did not apply to individuals in certain limited circumstances: (a) to those providing humanitarian aid to undocumented entrants; (b) to asylum seekers providing mutual aid to one another; and, (c) to those assisting family members to enter Canada without required documents.
This appeal allowed the Court to consider three issues:
(1) Whether section 36 of Canada’s Mutual Legal Assistance in Criminal Matters Act (MLACMA) violates the Charter of Rights and Freedoms because it allows for out of court statements (hearsay evidence) to be tendered for the truth of their contents;
(2) Whether the exceptions identified in Appulonappa amounted to new defences or whether they altered the essential elements of the offence?
(3) What is the precise scope and meaning of these three exceptions?
On the first issue concerning section 36 of the MLACMA, the Court concluded it was unconstitutional in so far as applies to criminal trials. The statutory provision specifies that affidavits and other types of evidence sent to the Minister of Justice by a State pursuant to a Canadian request is not inadmissible simply because it is hearsay or a statement of opinion. The Court’s decision on this point recognized that the provision impacted on an accused’s fair trial rights because the admission of such evidence means that the accused would be unable to test its truthfulness (because the party who made the statement is not in court).
On the second issue, the Court concluded that the exceptions described by the Supreme Court of Canada operate as defences and, thus, do not alter the elements of the offence. In practical terms, this means that it is for the defence to either lead evidence or point to evidence tendered by the Crown to put the defence at issue. If there is an “air of reality” to the defence, the Crown has the burden to disprove the elements of the defence beyond a reasonable doubt.
On the final issue, the Court noted that the contours of the defences are as follows:
(1) The Humanitarian Aid defence requires evidence that:
(a) The accused cannot have acted for the purpose of obtaining, directly or indirectly, a financial or other material benefit in the context of transnational organized crime;
(b) The aid was offered to safe the life or alleviate the suffering of an asylum seeker, seeking refuge in Canada;
(c) The aid must have been humanitarian and will be assessed against the principles of impartiality, neutrality and independence; and,
(d) The accused must have a reasonable belief that the person they assisted is an asylum seeker.
(2) The Mutual Aid defence requires evidence that:
(a) The accused acted with the purpose of providing aid to a fellow asylum seeker and cannot have acted for the purpose of obtaining, directly or indirectly, a financial or other material benefit in the context of transnational organized crime;
(b) The accused must be an asylum seeker;
(c) The accused must have a reasonable belief that they are assisting an asylum seeker; and,
(d) The accused and the asylum seeker they are aiding must have the common purpose of seeking refuge.
The Court does not articulate the elements of the Family Aid defence other than to say it would apply to an accused who is not an asylum seeker who is aiding a family member to enter the country.
In September 2019, the Attorney General of Canada sought leave to appeal the decision. In January 2020, the Supreme Court of Canada dismissed the leave to appeal. The effect of the Court’s decision means that the British Columbia Court of Appeal’s decision is good law. It is binding on all courts in the province of British Columbia and persuasive for courts in other provinces.