Human Smuggling Laws Unconstitutional, Supreme Court Hears

February 18, 2015 Updated: February 18, 2015

The Supreme Court this week heard argument on five cases that could change how Canada defines both human smuggling and refugee claims. Given its potential impact, the case attracted interventions from law groups across the country.

Eight of the nine appellants in the cases are Sri Lankan refugee claimants who arrived in Canada aboard either the MV Ocean Lady or the MV Sun Sea in 2009 and 2010 respectively.

The cases centre on the constitutionality of section 117 of the Immigration and Refugee Protection Act, which defines criminality for human smuggling.

The law currently criminalizes anyone assisting someone entering Canada without valid documentation as a human smuggler, including humanitarian workers assisting refugees fleeing persecution.

The Canadian Association of Refugee Lawyers (CARL), an intervener in the case, argued that the law is unconstitutional and means that those who are refugees might never be able to make their refugee claim, and might be deported or left in legal limbo.

The law currently criminalizes anyone assisting someone entering Canada without valid documentation as a human smuggler.

The association also argued that the cases are in conflict with section 7 of the Charter of Rights and Freedom, which protects life, liberty, and security of the person.

One of the cases involving a mother highlights the issue with current human smuggling definitions, says Andrew Brouwer, counsel for CARL.

“A mother flees the country with her child and then is charged with people smuggling because she brought her own child,” said Brouwer. “These provisions would encompass not just members of organized criminal gangs who exploit refugees and make a whole lot of money, but family members of refugees.”

Following the cases of the Ocean Lady and the Sun Sea, Canada toughened its human smuggling laws.

“We are concerned it is being overly broad that it captures all sorts of conduct that we wouldn’t normally consider human smuggling. It would capture family members helping each other escape persecution,” said Carmen Cheung, senior counsel for the BC Civil Liberties Association, another intervener in the case.

“Criminal Laws in general should be narrowly tailored to fulfill a certain purpose within a certain context and to capture a range of conduct that we are concerned about,” she adds.

“If the definition of human smuggling as it currently exists in the law is found to be constitutional, then these people—none that have made a profit on human smuggling and some that were simply providing a service on a ship they were being transported on—would be considered to be human smugglers.”

Kaven Baker-Voakes is a freelance reporter based in Ottawa.