News & Media

Wording of Rule Against Helping Undocumented Migrants into the Country Clarified by Supreme Court of Canada

September 12, 2016

In a case before the Supreme Court of Canada, R. v. Appulonappa, 2015 SCC 59, the legality and constitutionality of certain forms of migration was being debated. Essentially, a vessel was found near Vancouver Island, BC with a number of people from Southeast Asia aboard, fleeing because they believed their lives in danger. Four specific people – the appellants in the case before the SCC – were described in the court document as “point persons for a for-profit operation that helped smuggle undocumented migrants from Southeast Asia to Canada.” 

Under s. 117 of the Immigration and Refugee Protection Act (IRPA), it is an offence to “organize, induce, aid, or abet” entrance into Canada by those who are acting against the direction of the IRPA. Prior to their trial, they brought a challenge focused on the constitutionality of this section, saying that it breached s. 7 of the Canadian Charter of Rights and Freedoms, which outlines a person’s right to life, liberty, and security of person. The provision was ruled constitutional, a decision that was then reversed by the Court of Appeal, allowing the trial to proceed. In 2015, an appeal was allowed which ruled s. 117 unconstitutional so long as it restricts and punishes a migrant’s – whether documented or no – ability to seek humanitarian aid, provide assistance to family members, or participate in the assistance of other asylum-seekers.  

The discussion on “overbroad” laws from the court document is particularly interesting:

(1)           Overbreadth

[26]                          A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”:  Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101.  As stated in Bedford,“[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.

[27]                          The first step in the overbreadth inquiry is to determine the object of the impugned law.  The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object.  To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.

[28]                          The appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably foreseeable situations. It is indeed established that a court may consider “reasonable hypotheticals” to determine whether a law is consistent with the Charter:  see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

[29]                          The first scenario the appellants ask us to consider is the situation of a person assisting a close family member to flee to Canada.  The appellants cite as examples a mother carrying her small child, or the father of a household taking his family dependants with him aboard a boat. This scenario could also encompass cases of mutual assistance among unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their collective flight to safety is not meaningfully different from family members assisting one another and, as showed by the companion case B010, is a reasonably foreseeable situation.

[30]                          The second scenario advanced by the appellants is the case of a person who, for humanitarian motives, helps people to flee from persecution.  History is replete with examples of people who have aided others to flee persecution for humanitarian reasons.  Sometimes the person is acting as an individual.  Sometimes the person is a member of an organization devoted to helping people flee lands where they face threats and persecution.  Church groups may help undocumented people find refugee protection in Canada: House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p. 8002 (Hon. Gerry Weiner, Minister of State (Immigration)).  Humanitarian aid to fleeing people is not merely hypothetical; it is a past and current reality.

Please, enter a valid value

Call Us (416) 477-6022