This case concerns the constitutionality of s. 117 of the Immigration and Refugee Protection Act (IRPA). Section 117 criminalizes what is colloquially known as “human smuggling.” On January 11, 2013, Justice Silverman of the BC Supreme Court found s. 117 of IRPA to be overbroad and to violate s. 7 of the Canadian Charter of Rights and Freedoms.
On appeal, the Crown argued that the trial judge erred in accepting the Crown’s own original casting of the objective of the law as being aimed at stopping human smuggling and protecting the victims of human smuggling in accordance with Canada’s international obligations. The Crown argued on appeal that, while combatting human smuggling is one objective of s. 117, the law’s primary purpose is to prevent individuals from arranging the unlawful entry of others into Canada, thereby securing a number of general secondary goals.
The BCCLA is an intervenor in this case. At the BC Court of Appeal, the BCCLA argued that the Crown’s broad assertions as to the objective of the legislation are unsupported by the legislative history of the provision and represent a considerable departure from Parliament’s objective at the time the provision was enacted. The Association also argued that the Court should be reluctant to accept sweeping expressions of social and political values as statements of legislative purpose because such statements undermine the very function of the overbreadth analysis under s. 7 of the Charter. This case was heard on October 7 and 8, 2013.
The BC Court of Appeal released its judgment in this case on April 30, 2014. The Crown’s appeal was allowed. The Court accepted that it may consider the Crown’s new argument in respect of the legislative objective of s. 117. The Court found that the Crown’s general statement as to the primary objective of the law did not vary from the position the Crown advanced at trial. The Court also found that the offence at s. 117 is directed at a historical concern with border control and serves a number of secondary aims, one of which is international human smuggling. Ultimately, the Court was satisfied that in enacting s. 117, Parliament intended to create a broad offence with no exceptions, directed at border control and deterring and penalizing individuals who assist others to enter Canada illegally. The broad scope of the offence was held to be aligned with its legislative objective, and s. 117 found to be not overbroad.
The Supreme Court of Canada granted leave to hear a further appeal of this case. The BCCLA also intervened at the Supreme Court of Canada to argue that vague or imprecise definitions of legislative objectives are inappropriate because they undermine the ability for courts to meaningfully review legislation for compliance with the principles of fundamental justice. In our submission, the Attorney General of Canada in this case framed the legislative objectives of s. 117 of the IRPA in vague, sweeping, but nonetheless selective terms in order to uphold what is a textbook example of an overly broad law. We argued that the Court should take the opportunity to provide clear guidance on how objectives ought to be articulated for the purpose of a s. 7 analysis.
The Supreme Court of Canada released its decision on November 27, 2015. The Court struck down the human smuggling provisions of the IRPA as overbroad in so far as they criminalized humanitarian workers and family members trying to assist undocumented asylum seekers fleeing persecution to enter Canada.
The BCCLA was represented by Monique Pongracic-Speier of Ethos Law Group LLP at the BC Court of Appeal. At the Supreme Court of Canada, the BCCLA will be represented by Marlys Edwardh and Daniel Sheppard of Sack Goldblatt Mitchell LLP.