The Smuggled and the Smuggler: Exploring the Distinctions Between Mutual Aid, Humanitarian Refugee Assistance and People Smuggling in Canadian Law

Angus Grant

Angus Grant is a Canadian lawyer and academic.  He recently completed his doctorate in law at Osgoode Hall Law School in Toronto and was counsel for the Canadian Council for Refugees in the cases referred to in this article.

 

Introduction

It is sometimes said that Moses was the original people smuggler. While the historical accuracy of this claim is open to question, it is certain that, at least since Biblical times, political entities have sought to prevent, control, and regulate the entry of foreigners into their lands. But like the story of Moses, it also seems that there have always been those who – for humanitarian reasons or financial reward, or perhaps both – have assisted others in traversing borders.  In recent years, however, it appears that states have increasingly confronted the issue of people smuggling and begun addressing important questions that arise in the asylum context: what are the rights of asylum seekers who migrate by way of smuggling operations? What are the obligations of states to receive them and to consider their claims to refugee status? How do these rights and obligations intersect with international legal instruments aimed at combatting people smuggling?

In this article, I explore one small aspect of the smuggling phenomenon by reviewing Canada’s response to the arrival of two ships, the MV Ocean Lady and the MV Sun Sea, which arrived without authorization off the west coast of Canada carrying, respectively, 76 and 492 Sri Lankan Tamil asylum-seekers. These ships arrived in 2009 and 2011, and Canada’s response in each instance was aggressive. In particular, the alleged organizers of the operations were prosecuted criminally while those asylum seekers onboard alleged to have assisted in the journey, even in relatively minor ways, were subject to immigration inadmissibility proceedings. Of significance here is the fact that under Canadian law, inadmissibility findings deprive individuals of the right to assert a refugee claim pursuant to the 1951 U.N. Convention relating to the Status of Refugees (“Refugee Convention”), and while inadmissible asylum seekers may nevertheless submit an application for protection on the basis that they face a risk of torture, a risk to their life, or a risk of cruel or unusual treatment,[1] their right to seek asylum pursuant to the Universal Declaration of Human Rights,[2] or to any form of status under the Refugee Convention are permanently extinguished.[3]

The Canadian response in these two cases therefore raises important questions about the sanctity of both the right to seek asylum and the principle of non-refoulement under Canadian law, as well as under international refugee law.[4] After all, these cases serve to demonstrate how the role of profit is and should be conceptualized in domestic people smuggling legislation, as well as the extent to which domestic anti-smuggling legislation has diverged from international instruments on people smuggling, instruments which contain important built-in protections for the rights of refugees under the Refugee Convention.[5]  Moreover, in a context of almost unprecedented global movements of refugees across borders, refugees who are frequently assisted by individuals, aid agencies, and, yes, smugglers, state responses to smuggling events involving asylum seekers are of obvious and pressing relevance internationally. This is especially so when it seems that people smuggling legislation and state government preoccupations with border control have eroded both states’ commitments to asylum seekers and the role of state courts in preserving non-refoulement obligations.

The Canadian Approach

The arrival of the Ocean Lady vessel in 2009 was met with a response reminiscent of other boat arrivals in Canada and around the world: despite the relative infrequency of such arrivals, politicians and various media outlets decried this perceived threat to the integrity of the country’s immigration system. After the vessel’s arrival, and with reports of another ship – the MV Sun Sea – also en route to Canada, the Canada Border Services Agency (“CBSA”) went into crisis management mode, issuing a strategic internal memorandum to its employees. Amongst other instructions, the memo provided:

  • In terms of port of entry examination, the CBSA will . . . demonstrate that the marine people smuggling is serious and poses a significant threat to the health and safety of those in Canada.
  • In these cases, the CBSA will be aggressive in building evidence and arguing for inadmissibility. The focus will be on the health and safety impact for Canada and the exploitation of vulnerable persons which results from the efforts of organized people smuggling.
  • In terms of the approach for refugee determination hearings, they will be dealt with aggressively as well. The CBSA will advise the IRB that it intends to intervene in each case, however, the IRB’s [Immigration and Refugee Board] current 84% acceptance rate will be a challenge.
  • Detention is an effective tool against those who circumvent immigration processes. The CBSA will take maximum advantage of this tool, recognizing that there may be limitations if no legal grounds to detain exist.
  • Those who are found to be inadmissible and have removal orders issued against them, will be removed to Sri Lanka. The CBSA would be proactive in working with the Sri Lankan authorities to obtain timely travel documents.
  • The CBSA continues to work . . . to ensure that the best possible enforcement outcome is supported to ensure that a deterrent for future arrivals is created.[6]

Once both ships had arrived, the government of the day responded with a two-pronged approach. First, it implemented the “aggressive” stance set out in the CBSA memo, notwithstanding concerns that doing so would violate Canada’s international obligations under the Refugee Convention.[7] The government deployed its response in the three distinct ways contemplated in its earlier memorandum: first, it criminally prosecuted those thought to be the primary organizers of the voyages.  Second, it alleged that anyone aboard the ships who in any way may have facilitated the voyage was inadmissible to Canada because such a person would have engaged in the organized criminal act of people smuggling; and finally, it intervened in virtually all of the passengers’ refugee claims, urging the Immigration and Refugee Board to reject their cases, typically on either credibility grounds or based on one of the Refugee Convention’s exclusion clauses.[8] The frequency of CBSA’s intervention in these cases represented a clear departure from the Canadian government’s typical approach to refugee status determination, in which Ministerial participation in individual refugee claims is a relative rarity.

Second, having determined that Canada’s existing laws were incapable of responding to large scale (if infrequent) smuggling events, the government set out to create a new scheme of differential treatment for asylum-seekers who arrive to Canada in groups. Passed into law in 2012, the new scheme permits the Minister of Public Safety to designate certain categories of migrants as “Designated Foreign Nationals” (DFNs).[9]  Under the new law, once designated, DFNs become subject to a range of measures, including periods of mandatory detention with infrequent review, ineligibility to appeal first-level refugee determinations, and, for those who do obtain refugee protection, ineligibility for permanent residence and family reunification for a period of five years. These legislative changes were reminiscent, albeit in milder form, of the radical legislative reaction in Australia following the so-called “Tampa Affair” of 2001.[10] While Canada did not excise portions of its territory, as did Australia, the response in both countries reflected essentially the same impulse: to concentrate border control powers within the executive, to deter future arrivals and to minimize, as much as possible, obligations arising under international refugee law.

While these new Canadian measures were not considered in the Sun Sea and Ocean Lady litigation and have not, to date, been contested in the courts, they appear on their face to be inconsistent with the Refugee Convention, most notably its provisions related to freedom of movement (Article 26), non-penalization (Article 31), and naturalization (Article 34).

Spotlight: Litigation

As mentioned above, the Canadian government’s two-pronged approach included varied acts of litigation including criminal prosecutions, immigration inadmissibility proceedings, and refugee claim interventions. The main criminal proceeding, however, involved prosecution of the alleged organizers of the Ocean Lady vessel under s.117 of Canada’s Immigration and Refugee Protection Act, which provided at the time:

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.

Section 117 of the IRPA gives effect to Canada’s obligations to criminalize migrant smuggling pursuant to the Convention against Transnational Organized Crime (“UNCTOC”)  and, more specifically, to UNCTOC’s supplementary protocol, the Protocol Against the Smuggling of Migrants by Land, Sea and Air (“Smuggling Protocol”). This said, it is clear that the Canadian provision, like equivalent provisions in other jurisdictions,[11] is significantly broader than the definition of migrant smuggling set out in Article 3 of the Smuggling Protocol:

“Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.

Most notably, the Canadian provision contains no “material benefit” component, meaning that at least in theory, any assistance provided to migrants in securing illegal entry into Canada may constitute a criminal offence. In the litigation that ensued, the parties agreed that the plain scope of s.117 would cover, for example, two refugee claimants traveling together and providing “mutual assistance” to each other – perhaps a mother fleeing her country of origin with her infant daughter to escape genital mutilation ordered by a local official – and the humanitarian who, for no profit or personal gain, assists them in their flight from persecution to come to Canada to make a refugee claim.[12] Because the ambit of the provision clearly goes beyond the government’s objective of preventing human smuggling, the defendants argued at trial that s.117 is overbroad and a violation of constitutionally protected rights to life, liberty, and security of the person, pursuant to s.7 of the Canadian Charter of Rights and Freedoms.[13] In this, the trial court agreed but was later reversed on appeal. The defendants appealed the matter to the Supreme Court of Canada.

At the same time, the government also initiated removal cases against several passengers aboard the Sun Sea — not for having masterminded the venture, but because of their assistance during the voyage.[14] According to the persons brought before these proceedings, the plan prior to embarking on the journey was for the ship to be crewed by Thai seaman. Upon boarding the (by all accounts unfit) vessel, however, the crew promptly quit, leaving the passengers, many of whom had paid upwards of $40,000 CDN ($31,000 USD) for the voyage, in a quandary. Determined to proceed with the trans-Pacific crossing, the organizers enlisted passengers to assist with various activities, from charting the course to cooking and collecting rain water. These activities ultimately resulted in allegations that the enlisted passengers had themselves engaged in the act of people smuggling. In defence of their actions, these individuals asserted that the provision at issue in these cases – s.37 of the IRPA – was not intended to capture asylum-seekers who merely assisted in their own flight from persecution. In the alternative, they asserted that if they were properly caught by this inadmissibility provision, it was, as in the criminal proceedings, unconstitutionally overbroad.

In two consolidated appeal proceedings, the Federal Court of Appeal concluded that it was reasonable for immigration decisionmakers to define people smuggling by relying on the above-described criminal prohibition.[15] As such, the Court found that that the Canadian definition of people smuggling contained no “material benefit” or profit component. As mentioned above, upon finding that an individual is inadmissible for organized criminality (which includes people smuggling), that individual is automatically rendered ineligible to obtain refugee status.[16] While such individuals may still receive temporary protection against removal to torture or cruel or unusual treatment, their eligibility for refugee status under the Refugee Convention and the corresponding entitlement for permanent resident status for those found to be Convention refugees is immediately and permanently extinguished.[17]  In response, the appellants appropriately argued that the more limited form of protection for which they would be eligible is not the same as refugee protection. In particular, those limited to this lesser form of protection face a higher burden of proof and protection is simply unavailable for several forms of persecution not contemplated under the temporary protection regime.[18]  As such, the appellants correctly pointed out that the regime leaves refugee claimants open to the possibility of refoulement.

Ultimately, the parties sought leave to appeal their cases to the Supreme Court of Canada. As in the criminal proceedings, leave was granted and the matters were heard together in February 2015.  In two separate sets of reasons, the Supreme Court granted the appeals.[19] The principal findings of the Court were as follows:

  • Taking both legislative history and international law into consideration, the objective of s.117 of the IRPA was merely to combat people smuggling. As the actual scope of the provision clearly captured, and criminalized, a much broader ambit of activity, it was overly broad and, as such, was contrary to principles of fundamental justice.
  • It was an insufficient defence of s.117 to suggest that the provision could remain constitutionally compliant through the proper application of prosecutorial discretion. Rather than striking the provision in its entirety, however, the Court opted to “read it down” as being not applicable to persons who assist asylum seekers for humanitarian reasons or for reasons of mutual aid or family assistance.
  • Given the unconstitutional overbreadth of s.117 of the IRPA, it could not inform the interpretation of people smuggling for the purposes of immigration inadmissibility proceedings. Taking both statutory and international contexts into consideration, the provision only targets those who procure illegal entry in order to obtain, directly or indirectly, a material benefit in the context of transnational organized crime.
  • Notwithstanding the above, Canadian constitutional protections against infringements of life, liberty and security of the person are not engaged in inadmissibility determinations as they do not, at least inexorably, lead to removal.

Observations

A review of these two Canadian cases clearly reveals that there is a tension between state objectives to limit migrant smuggling and state obligations to protect the rights of refugee claimants to seek protection under the Refugee Convention. Important to note, however, is that the UNCTOC and its corresponding Protocols are not, at least principally, human rights instruments. Instead, they are enforcement mechanisms aimed at coordinating international approaches to combat human trafficking, people smuggling, and other forms of organized crime. In this, the Protocols make explicit that they represent minimum standards; states are permitted, in other words, to go beyond what is required in the instruments.[20] However, and this is where the tension lies, these mechanisms also explicitly provide that they are not intended to diminish rights accruing under international law, including the rights of refugees under the Refugee Convention. Article 19 of the Smuggling Protocol, for example, states:

Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

The task for the Canadian Supreme Court in these cases was therefore, at least in part, to resolve this tension.

On the one hand, the government argued that the absence of any mention of “material benefit” in the smuggling provisions of the IRPA, taken together with Canada’s right to go beyond the terms of the Smuggling Protocol, both evinced and justified a Parliamentary objective to implement a more expansive anti-smuggling regime. Specifically, the Canadian government maintained that their regime provides for continued authorization of genuine refugees to engage in irregular migration in order to seek safety under both Canadian law and the Refugee Convention, but legitimately prohibits them from assisting others in the process.[21]

On the other hand, the fallout of this regime – which includes ineligibility of refugee claimants to access a determination under the Refugee Convention – presents what seems to be a clear conflict with Article 19 of the Smuggling Protocol and, more worrisomely, opens the door to possible instances of refoulement in violation of Article 33 of the Refugee Convention. Additionally, as advocacy organizations like the Canadian Council for Refugees argued in the described litigation, penalization of humanitarian workers who provide assistance to asylum seekers will likely have a chilling effect upon them, forcing asylum seekers into the hands of exploitative human smugglers who operate wholly outside national and international law.[22]  This fact, it is also worth noting, is certainly not limited to the Canadian context – widespread penalization of humanitarian support to refugees would likely lead to an even greater reliance on migrant smugglers among the world’s 65.3 million displaced persons.[23]

Ultimately, the Court adopted an interpretation of Canadian law that is, for the most part, harmonious with both the Smuggling Protocol and the Refugee Convention. [24] Moreover, the Court’s decisions in these cases will certainly be of significant interest to advocates and courts in many countries for a number of reasons, but particularly because they laudably and emphatically reject an approach to people smuggling that would equally capture and penalize refugees who engage in mutual assistance and humanitarian aid providers with exploitative people smugglers.

Also of particular interest from an international refugee law perspective, is the fact that the Court in the inadmissibility cases appeared to find that the scope of Article 31 of the Refugee Convention, which mandates that states refrain from imposing penalties against refugees on account of their illegal entry, is not confined in its application to criminal contexts, but is also applicable to the context of immigration inadmissibility.  In a somewhat novel finding, the Court also found that the protections contained in Article 31 apply to refugees who assist others in seeking asylum, in addition to those who engage in irregular migration simply on their own behalf.  The Court noted (at para. 63): “[t]he law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.”

Conclusion

In this era, in which thousands of people are traversing borders, seeking asylum, and hundreds more are acting to assist them for both remunerative and humanitarian reasons, it is crucially important to have a clear sense of the legal issues at play.

Indeed, while these Canadian proceedings were winding their way through the legal system, an interesting parallel proceeding was taking place in France where Briton Rob Lawrie was charged with people smuggling for attempting to take a 4-year-old Afghan girl from a “squalid” French migrant camp known as the “jungle” to her family members in Britain. While Lawrie noted that he was simply trying to assist “an innocent little girl who had lost the birth lottery,” he also acknowledged that he had made a “mistake” and asked for the mercy of the French courts. Facing up to five years in prison, the court did appear to recognize Lawrie’s noble intentions and instead sentenced him to a suspended fine. This said, the legality of the criminal prohibition under which he was charged did not appear to be challenged.  These Canadian cases, however, raise the question of whether the actions of Mr. Lawrie, and many others around the world who have engaged in similar activity, are the proper subjects of criminal prosecution under international law.

The Canadian Supreme Court’s decisions in the above matters are helpful in seeking to sort through this complex entanglement of domestic and international law. At the very least, they reinforce the assumption that, absent clear legislative language to the contrary, refugees who mutually assist one another in their flight from persecution are not engaging in unlawful activity and nor are those who assist them for humanitarian reasons.

[1] Pursuant to s.97 of Canada’s Immigration and Refugee Protection Act [IRPA].

[2] Universal Declaration of Human Rights, GA Res 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810, 1948, Article 14.

[3] See the combined effect of sections 101(1)(f) and 112(3) of the IRPA.

[4] The principle of non-refoulement, codified at Article 33 of the Refugee Convention, requires that no state “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”  This obligation is incorporated into Canadian law at s.115(1) of the IRPA.

[5] See in particular the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime 15 November 2000, 2225 UNTS 209 (entered into force 28 January 2004) (“Smuggling Protocol”).  Article 19 of the Smuggling Protocol provides:

Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, and, in particular the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

[6] The memorandum was obtained through an Access to Information Request, ATIP Request A-2013-03486 (10 September 2013), available for download at: http://ccrweb.ca/en/sun-sea-cbsa-strategy.  Emphasis added.

[7] Most notably the concern that inadmissibility findings in relation to refugee claimants would deprive such individuals of the right to a hearing into their claim to refugee status.

[8] Found at Article 1F of the Refugee Convention, supra note 4.

[9] The designation process has been incorporated into the Immigration and Refugee Protection Act (IRPA) at s.20.1(1).

[10] See generally Irene Khan, “Trading in Human Misery: A Human Rights Perspective on the Tampa Incident” (2003) 12 Pac. Rim L. & Pol’y J. 9.

[11] See for example, the Australian Migration Act 1958 (as amended), No. 62, s. 233A and in the United States 8 U.S.C. § 1324(a)(1)(A)(i) [alien smuggling]; §1324(a)(1)(B)(i) (providing increased penalty where an offence is committed for financial gain).

[12] The case was of particular concern to several refugee advocacy organizations because of its implications on refugees travelling in groups, but also because it raised the spectre of criminalizing certain forms of advocacy commonly undertaken by them.

[13] In Singh v. Canada (Minister of Employment and Immigration, the Supreme Court of Canada affirmed that all individuals physically present in Canada are entitled to the protections contained in the Canadian Charter of Rights and Freedoms.  While refugee claimants have no constitutional right to remain in Canada, the Court further concluded that they do have the right to have their claims determined in accordance with the principles of fundamental justice.

[14] While the initial removal decisions in these cases were, for the most part, unreported, the first level judicial review applications of these decisions are available, see for example B306 v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1282, B010 v Canada (Minister of Citizenship and Immigration), 2012 FC 569, S.C. v Canada (Public Safety and Emergency Preparedness), 2013 FC 491, J.P. v Canada (Public Safety and Emergency Preparedness), 2012 FC 1466.

[15] B010 v. Canada (Citizenship and Immigration), 2013 FCA 87; B306 v. Canada (Citizenship and Immigration), 2013 FCA 262.

[16] Pursuant to sections 101(1)(f) and 112(3) of the IRPA.

[17] The narrower form of protection available to inadmissible individuals is set out at section 97 of the IRPA.  While all refugee claimants are eligible to seek protection under s.97, it is only inadmissible claimants who are prevented from obtaining permanent resident status upon a positive finding of risk.

[18] Under Canadian law, the standard of proof to establish a well-founded fear of persecution is that of a “reasonable chance”, see Adjei v Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680.  The standard utilized under s.97 of the IRPA is the balance of probabilities.  And because s.97 only affords protection against the most severe forms of human rights violations, there is a wide band of mistreatment – cumulative acts of discrimination or persistent police harassment, for example – that amount to persecution but are not accounted for in respect of inadmissibile individuals.

[19] The consolidated immigration inadmissibility cases are referred to collectively as B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, while the criminal appeals are cited as R. v. Appulonappa, 2015 SCC 59.

[20] Anne Gallagher & Fiona David, The International Law of Migrant Smuggling, 366 (New York: Cambridge UP, 2014).

[21] Section 133 of the IRPA defers charges against refugee claimants related to their own illegal entry pending the outcome of their claims, in conformity with Article 31 of the Refugee Convention.

[22] See the Supreme Court factum of the Canadian Council for Refugees.

[23] This being the UNHCR’s most current figure, a record high: UNHCR, “With 1 human in every 113 affected, forced displacement hits record high”.

[24] See B010 et al. v. Canada (Minister of Citizenship and Immigration), 2015 SCC 58 and Appulonappa et al. v. R, 2015 SCC 59.

 

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