Amnesty International was represented in this case by Chantal Tie, Michael Bossin, and Laïla Demirdache.
WHAT IS THIS CASE ABOUT?
In August 2010, the MV Sun Sea, a cargo ship filled with over 500 refugees fleeing violence in Sri Lanka, arrived on the coast of British Columbia. Its passengers had endured a grueling three-month voyage from Thailand. This case concerns several individuals who were passengers on that overcrowded and dilapidated vessel, which was abandoned by its Thai crew soon after its departure. The individuals in question assisted in various duties to ensure the ship’s passage such as cooking for the other passengers, assisting in navigation, and monitoring the waters for approaching ships. When these refugees arrived in Canada, rather than being offered protection, they were accused of “people smuggling” under Canada’s Immigration and Refugee Protection Act (IRPA) and deemed inadmissible to Canada – and, in the case of Appulonappa, also charged with the crime of smuggling.
The Supreme Court had to determine whether refugees who mutually assist each other in fleeing persecution, or Good Samaritans or humanitarian organizations who assist refugees to reach safety, should be considered people smugglers and punished through inadmissibility or criminal procedures. In the case of inadmissibility, refugees are permanently barred from accessing protection under the Convention Relating to the Status of Refugees (Refugee Convention) and risk being returned to countries where they face violence and persecution.
AMNESTY INTERNATIONAL’S INTERVENTION
In our intervention before the Supreme Court of Canada, Amnesty International argued that “people smuggling” should be interpreted consistently with international law – in particular the Refugee Convention, the UN Convention against Transnational Crime, and the Protocol against the Smuggling of Migrants by Land, Sea and Air.
Under international law, people smugglers are individuals who assist others in crossing borders in order to gain a profit or other material gain. It is the exploitation involved that draws the correct distinction between criminal smugglers who prey off the suffering of refugees, and refugees and Good Samaritans who assist others in fleeing persecution for humanitarian or compassionate reasons.
Any broader interpretation would create a very real risk that humanitarians would be labelled criminals, and refugees who are in genuine need of protection would be excluded from protection in Canada merely because they helped other refugees reach safety. Such an interpretation would have a real deterrent effect to assisting refugees, since Good Samaritans would have to risk criminal prosecution in order to assist refugees to reach safety. Ironically, an interpretation as expansive as the one posited by the government would have the counter-productive effect of increasing smuggling, as it would become the only option for refugees to access protection.
STATUS OF THE CASE
In two separate judgments, the Supreme Court of Canada held that individuals cannot be denied refugee protection in Canada – and certainly cannot be punished criminally – for providing assistance to other refugees in fleeing violence and persecution. The Court found that the IRPA’s inadmissibility provision for human smuggling excludes family members, humanitarian workers, and migrants helping other migrants. People should only be sanctioned for people smuggling if they helped others cross the border for an exploitative purpose like a financial gain.
Chief Justice Beverley McLachlin emphasized the cruelty of the government’s position in her judgment in Appulonappa. On the government’s harsh reading of the law “a father, offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution.”
“Supreme Court of Canada Finds Smuggling Law ‘Overbroad’” (27 November 2015)