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Supreme Court of Canada Finds Smuggling Law “Overbroad”

    November 27, 2015

    Ottawa – The Supreme Court of Canada found today that individuals cannot be denied refugee status for providing unremunerated assistance to undocumented migrants entering Canada under a law that criminalizes human smuggling.

    The Court issued its decisions in two separate but related cases concerning provisions in the Immigration and Refugee Protection Act (IRPA) relating to the definition of “human smuggling.” Amnesty International Canada intervened in the case of B010 v. Canada (Citizenship and Immigration), which considered section 37(1) of the IRPA, a provision that renders those engaged in organized criminal smuggling inadmissible to Canada as refugees. The top court found unanimously that this provision does not apply to some people who help refugee claimants reach Canada. The exceptions include family members, humanitarian workers and migrants helping other migrants.

    Chief Justice Beverley McLachlin wrote that under the Crown's interpretation 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.” The Court found such  consequences to be incompatible with the intent and purpose of the law. The goal of the IRPA, rather, is to criminalize the smuggling of people in the context of organized crime and should not extend to permitting prosecution for simply assisting family or providing humanitarian aid to refugees.

    Justice McLachlin concluded that section 37(1)(b) should apply “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.”

    The judgment affirms the importance of international law sources in interpreting domestic human rights law, a topic on which Amnesty Canada focused its submissions. Notably, the Court stated that “to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law.”

    Amnesty Canada argued that the law risked labelling both refugees and humanitarian workers as criminals. In its original form, the law would have acted as a powerful deterrent to assisting refugees. It meant that good Samaritans must risk criminal prosecution for their humanitarian efforts to assist those fleeing persecution. It also meant that refugees would be exposed to greater risk of being returned to persecution for having assisted others to reach safety. Ironically, such an expansive interpretation could actually increase the likelihood that exploitative smugglers become the only option for desperate people fleeing persecution.

    The Court agreed, ruling the relevant sections of the IRPA as “overbroad,” and stating that it would lump in family members and humanitarians helping people seek asylum in Canada.

    “The decision ensures that refugees will no longer be penalized for assisting others in fleeing persecution, nor will they be exposed to the risk of refoulement and expulsion,” said Alex Neve, Secretary General of Amnesty International Canada’s English Branch. “The Court has affirmed an interpretation of the IRPA that is consistent with the country’s international human rights obligations and its own jurisprudence on the role of international law in domestic courts.”

    Amnesty International Canada was represented by Michael Bossin, Laïla Demirdache, and Chantal Tie, with assistance from articling student Ania Kwadrans.

    Amnesty’s argument in this case is available here.

    The Supreme Court of Canada’s decision is available here.


    For further information, please contact Elizabeth Berton-Hunter, Media Relations 416-363-9933 ext 332