2012 FC 569, 2012 FC 569

[2014] 1 F.C.R. 95 IMM-4760-11 2012 FC 569 B010 ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: B010 v. Canada (Citizenship and Immigration) Federal Court, Noël J.—Vancouver, February 28; Ottawa, May 15, 2012. Editor’s Note: This decision has been affirmed on appeal (A-195-12, A-194-12, 2013 FCA 87 ). The reasons for judgment, handed down March 22, 2013, will be published in the Federal Courts Reports .

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of Immigration and Refugee Board, Immigration Division (ID) decision issuing deportation order after determining applicant inadmissible to Canada for engaging in people smuggling in context of transnational crime as set out in Immigration and Refugee Protection Act, s. 37(1) (b) — Applicant, Sri Lankan Tamil refugee claimant, arriving in Canada on unregistered ship from Thailand with 492 migrants aboard seeking refuge — Ship part of elaborate for-profit scheme to bring migrants to Canada; applicant serving as ship’s crew during voyage — ID concluding that six elements drawn from Act, ss. 37(1), 117(1) required to prove existence of “people smuggling” — Concluding that profit or material gain not necessary element of people smuggling — Determining that reasonable grounds to believe applicant boarding ship knowing would be acting as crew member but that applicant not receiving material benefit for working thereon — Whether ID erring in interpreting term “people smuggling” found in Act, s. 37(1)(b), in understanding or applying concept of wilful blindness — While word “smuggling” may include profit or material benefit component, not strictly necessary — ID correctly concluding that s. 37 only recognizing criminality of smuggling while s. 117 constituting provision to actually implement Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime by criminalizing such activity — ID’s

interpretation of ss. 37, 117 compliant with Canada’s obligations under international instruments at issue — Given wording of Act, s. 37(1)(b), reasonable for ID to conclude that applicant be permanent resident or foreign national; that crime be transnational — Also reasonable for ID not to include criteria not already found in ss. 37(1), 117(1) — However, ID’s conclusion that applicant not receiving any material benefit unreasonable given facts herein — Applicant receiving better lodging, food compared to hundreds of passengers on board — These important advantages constituting material benefit — Act, s. 117 not requiring that person know committing illegal act; simply requiring that person have knowledge engaging in act — Knowledge of passenger’s lack of required documents properly imputed to applicant in present case — ID’s understanding of test for wilful blindness not deficient — ID’s conclusion applicant engaging in people smuggling since applicant knowingly aiding coming into Canada of persons not in possession of documents required by Act as defined in s. 117(1) therefore reasonable — Accordingly, ID reasonably concluding applicant inadmissible to Canada for having engaged in context of transnational crime in “people smuggling” as set out in Act, s. 37(1)(b) — Question pertaining to definition of term “people smuggling” for purposes of Act, s. 37(1)(

b) certified — Application dismissed. Construction of Statutes — Immigration and Refugee Protection Act, ss. 37(1) (b), 117 — Meaning of terms “people smuggling”; “human smuggling” examined — Judicial review of deportation order issued by Immigration and Refugee Board, Immigration Division (ID) for people smuggling in context of transnational crime — Term “people smuggling” in Act, s. 37(1)(

b) undefined; words could support more than one reasonable meaning — For sake of coherence, consistency, Act, 37(1)(

b) should be interpreted in conformity with s. 117 so that meaning harmonious with Act as whole may be given — ID cognizant of fact Act, s. 3(3)(

f) calling for Act to be construed, applied in manner complying with international rights instruments to which Canada signatory — Nothing in Protocol against Smuggling of Migrants by Land, Sea and Air or in United Nations Convention Relating to the Status of Refugees explicitly preventing criminalizing those who engage in migrant smuggling without deriving material gain or profit therefrom — ID’s

interpretation of Act, ss. 37, 117 remaining compliant with Canada’s obligations under international instruments at issue herein — Act, 37(1)(

b) must be given meaning that is harmonious with Act as whole; in present case, ensuring that “people smuggling”, “human smuggling” given same definition upholding obligation — Entirely proper, justifiable to define term “people smuggling” in Act, s. 37(1)(

b) by relying on s. 117 of same statute — Ss. 37(1), 117(1) not requiring “secret or clandestine” component . This was an application for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board issuing a deportation order after determining that the applicant was inadmissible to Canada for engaging in people smuggling in the context of transnational crime as set out in paragraph 37(1) (

b) of the Immigration and Refugee Protection Act . The applicant, a Sri Lankan Tamil refugee claimant, arrived in Canada on an unregistered ship from Thailand with 492 migrants aboard seeking refuge. An investigation revealed that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada and that the applicant was one of 12 migrants serving as the ship’s crew during the voyage. Thus, the applicant was reported as being inadmissible for people smuggling and an admissibility hearing before the ID was held thereafter.

Regarding any material benefit he may have gained from his work, the applicant claimed that he did not receive better accommodation or extra food. He also denied knowing any of the other crew members before the voyage, but evidence to the contrary was presented. Relying on the United Nations Convention against Transnational Organized Crime , the ID found that there was a “transnational” component to the ship’s operation since people had been transported from Thailand to Canada.

As for the meaning of the term “people smuggling”, it concluded that six elements were required to prove that this had occurred for the purposes of subsection 37(1) of the Act: the first two elements were found in subsection 37(1) itself and the remaining four elements were drawn from subsection 117(1) of the Act. The ID concluded that profit or material gain was not a necessary element of people smuggling.

In determining whether the applicant engaged in people smuggling, the ID determined that there was reasonable ground to believe that the applicant boarded the ship knowing that he would be a crew member but that he had not received a material benefit for working as a member of the ship.

The applicant argued that the ID performed an incomplete statutory analysis of paragraph 37(1)(

b) of the Act, failed to properly distinguish the essential elements required to constitute “people smuggling” and erroneously concluded that it was equivalent to the criminal offence of “organizing entry into Canada” found in

section 117 of the Act; thus, that the term “people smuggling” had been incorrectly defined. The applicant also argued that the ID misapplied the concept of wilful blindness when it imputed that he had knowledge the other passengers lacked the necessary documents to enter Canada. The issues were whether the ID erred in its

interpretation of the term “people smuggling” found in paragraph 37(1)(

b) of the Act and in its understanding or application of the concept of wilful blindness. Held , the application should be dismissed. The term “people smuggling” found in paragraph 37(1)(

b) of the Act is undefined. These words could support more than one reasonable meaning. While the word “smuggling” may include a profit or material benefit component (article 3 of the Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime ), it is not strictly necessary. For the sake of coherence and consistency, paragraph 37(1)(

b) of the Act should be interpreted in conformity with

section 117 so that it may be given a meaning that is harmonious with the Act as a whole. In this case, the ID’s conclusion that

section 37 only recognizes the criminality of smuggling while

section 117 is the provision to actually implement the Protocol by criminalizing such activity was correct; and

section 117 is in fact the provision that, for Canadian domestic purposes, criminalizes the smuggling of human beings into Canada. While it is broader in scope than the definition set out in the Protocol and does not have the more restricted scope sought by the applicant, it remains the legislative answer to Canada’s obligations undertaken by its adherence to the Protocol since it clearly condemns the act of human smuggling and remains a legitimate response to valid human rights concerns. The ID was cognizant of the fact that paragraph 3(3)(

f) called for the Act to be construed and applied in a manner that complies with international rights instruments to which Canada is a signatory. While it recognized that the definition in

section 117 differed from that found in the Protocol, it reasonably concluded that the fact

section 117’s definition was broader than that of the Protocol did not hinder its compliance with the latter. Nothing in the Protocol or in the Convention explicitly prevents criminalizing those who engage in migrant smuggling without deriving material gain or profit from it. The ID’s

interpretation of sections 37 and 117 remained compliant with Canada’s obligations under the international instruments at issue herein. The term “people smuggling” should not be given a more restricted

interpretation than the one the ID adopted by relying on subsections 37(1) and 117(1) of the Act. A reading of paragraph 37(1)(

b) and

section 117 in both French and English makes it clear that the concern addressed by the Act, both for inadmissibility and enforcement purposes, was the condemnation of people/human smuggling into Canada. Paragraph 37(1)(

b) must be given a meaning that is harmonious with the Act as a whole. In this case, ensuring that “people smuggling” and “human smuggling” are given the same definition upholds this obligation and it was entirely proper and justifiable to define the term “people smuggling” in paragraph 37(1)(

b) by relying on

section 117 of the same statute when both provisions use comparable terms, address comparable acts, and are framed by the same objectives. Given the wording of paragraph 37(1)( b ), it was reasonable for the ID to conclude that it was a necessary requirement that the applicant be a permanent resident or foreign national and that the crime be transnational. It was also reasonable for the ID not to include any criteria not already found in subsections 37(1) and 117(1).

While the applicant sought to include a “secret or clandestine” element, the ID correctly pointed out that where a person smuggled appeared at the port of entry to make a refugee claim, an individual that had aided that person to enter Canada could still be found guilty of an offence under

section 117. Subsections 37(1) and 117(1) do not require a “secret or clandestine” component but are instead concerned only with the “organizing of entry into Canada” whether the person entering declares themselves at a port of entry or not, when such a person is “not in possession of a visa, passport or other document required by this Act” (subsection 117(1)). Evidence submitted to the ID showed that the majority of the passengers on board the vessel were in fact not in possession of the visas and passports required by the Act. As for the issue of profit or material benefit,

section 121 of the Act makes clear that deriving profit from an offence under

section 117 is not a necessity and profit will only be factored into the penalty handed out for engaging in such an activity. The ID observed that the respondent had not established that the applicant received free passage in exchange for working during the voyage or that he was paid for working. It also recognized that the applicant had received better lodging than the regular passengers but did not consider this to be a material benefit.

The panel had evidence before it that, because of his work as a crew member in the engine room, the applicant received better lodging and food compared to the hundreds of passengers on board. These tangible benefits did constitute important advantages gained from his work as a crew member and were therefore a material benefit. There were reasonable grounds to believe that because of his work as a crew member, the applicant did not have to experience the poor and horrible conditions many of the migrants had complained of.

As a result, the ID’s conclusion that the applicant did not receive any material benefit was unreasonable given the facts in the record in this case. The applicant also attacked the ID’s application of wilful blindness, submitting that the ID erred in its understanding of the test for wilful blindness and failed to consider one of its elements, i.e. mens rea . Wilful blindness requires a consideration of whether the applicant knew of a need to make the inquiry.

As for the element of mens rea , the ID did not explicitly enunciate this component of the concept of wilful blindness but it has been established that a decision maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In addition, the ID did make a finding that the applicant knew of a reason for inquiry. It specifically determined that the applicant knew that as a Sri Lankan he needed a visa to enter Canada. This was sufficient for it to determine he had knowledge of a need for inquiry under

section 117 of the Act and showed that the panel’s understanding of the test for wilful blindness was not deficient. The applicant also argued that the ID erred in its assessment of the evidence when applying the test of wilful blindness. He claimed that he did not have a subjective reason to inquire about the documentation of other passengers because he believed and was told that they could lawfully claim refugee status despite lacking the passports and visas necessary to enter Canada and that the ID erred in concluding he had a reason to make the inquiry.

Section 117 of the Act does not require that a person know they are committing an illegal act; it simply requires that they know they are engaging in that act. Ignorance of the law is no defence. Thus, the applicant suspected other passengers did not have the necessary documentation but chose not to inquire. The knowledge they did not have the necessary documentation could therefore reasonably be imputed to him whether or not he knew it was illegal to enter Canada without these documents.

Since knowledge of the passengers’ lack of required documents was properly imputed to the applicant, the ID’s conclusion that heengaged in people smuggling was reasonable. The applicant knowingly aided the coming into Canada of persons who were not inpossession of documents required by the Act as defined by subsection 117(1). Accordingly, it was also reasonable to conclude theapplicant was inadmissible to Canada for having engaged in the context of transnational crime in “people smuggling” as set out inparagraph 37(1)(b).

The ID’s reasons satisfied the requirement of justification, transparency and intelligibility and its decision fell withina range of possible, acceptable outcomes which were defensible in respect of the facts and law. Finally, the question of whether, for the purposes of paragraph 37(1)(

b) of the Act, it is appropriate to define the term “peoplesmuggling” by relying on

section 117 of the same statute rather than a definition contained in an international instrument to whichCanada is signatory was certified. STATUTES AND REGULATIONS CITED Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 159. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 33, 34, 35, 36 (as am. by S.C. 2008, c. 3, s. 3), 37, 44(1),(2), 74(d), 117,118(1), 121.

Interpretation Act, R.S.C., 1985, c. I-21, s. 12. TREATIES AND OTHER INSTRUMENTS CITED Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against TransnationalOrganized Crime, 15 November 2000, 2241 U.N.T.S. 480, arts. 2, 3, 5, 6. United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209, arts. 2(a), 3(2)(a). United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 31. CASES CITED applied: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Canada Trustco Mortgage Co.v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, 259 D.L.R. (4th) 193, [2005] 5 C.T.C. 215; Newfoundland and Labrador Nurses' Unionv. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, 317 Nfld. & P.E.I.R. 340, 340 D.L.R. (4th) 17. considered: R. v. Alzehrani, , 237 C.C.C. (3d) 471, 75 Imm. L.R. (3d) 304 (Ont. Sup. Ct.); Sittampalam v. Canada (Minister ofCitizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198, 272 D.L.R. (4th) 1, 56 Imm.

L.R. (3d) 161; Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, 212 D.L.R. (4th) 1, [2002] 5 W.W.R. 1; Medovarski v. Canada (Minister ofCitizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, 258D.L.R. (4th) 193, 135 C.R.R. (2d) 1; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487,29 Admin. L.R. (4th) 21, 129 C.R.R. (2d) 18; Woolner v. Canada (Attorney General), , [2000] 1 C.T.C. 35, 99 DTC5722, 249 N.R. 129 (F.C.A.); R. v. Pereira, 2008 BCSC 184; Sansregret v.

The Queen, (SCC), [1985] 1 S.C.R. 570,(1985), 35 Man. R. (2d) 1, 17 D.L.R. (4th) 577; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, 477 A.R. 86, 316 D.L.R. (4th) 577; R.v. Jorgensen, (SCC), [1995] 4 S.C.R. 55, (1995), 129 D.L.R. (4th) 510, 102 C.C.C. (3d) 97. referred to: X (Re), (I.R.B.); Canada (Minister of Citizenship and Immigration) v. Khan, (I.R.B.); Chung v.Canada (Public Safety and Emergency Preparedness), (I.R.B.); X v. Canada (Public Safety and EmergencyPreparedness), (I.R.B.); Mugesera v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2S.C.R. 100, 254 D.L.R. (4th) 200, 208 Admin. L.R. (4th) 161; R. v. Godoy (1996), 34 Imm. L.R. (2d) 66 (Ont. Ct. J.); R. v. Mossavat,, 30 Imm. L.R. (2d) 201, 85 O.A.C. 1 (Ont. C.A.); Ezemba v. Canada (Minister of Citizenship and Immigration), 2005FC 1023; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th)1; Belalcazar v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 1013, 395 F.T.R. 291; Onyenwe v.

Canada(Citizenship and Immigration), 2011 FC 604; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011SCC 61, [2011] 3 S.C.R. 654, 519 A.R. 1, 339 D.L.R. (4th) 428; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, 328D.L.R. (4th) 1, 16 Admin. L.R. (5th) 157; R. v. Lohnes, (SCC), [1992] 1 S.C.R. 167, (1992), 109 N.S.R. (2d) 145, 69C.C.C. (3d) 289; Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, 292 N.B.R. (2d) 1, 261 D.L.R. (4th) 1; R. v. Frank, (SCC), [1978] 1 S.C.R. 95, (1977), 4 A.R. 271, 75 D.L.R. (3d) 481; Charkaoui v.

Canada (Citizenship andImmigration), 2007 SCC 9, [2007] 1 S.C.R. 350, 276 D.L.R. (4th) 594, 54 Admin. L.R. (4th) 1; Canada (Minister of Citizenship andImmigration) v. Singh, , 151 F.T.R. 101, 44 Imm. L.R. (2d) 309 (F.C.T.D.); Suresh v. Canada (Minister of Citizenshipand Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1, 37 Admin L.R. (3d) 159; Harkat (Re), 2010 FC 1241, [2012] 3F.C.R. 251, 380 F.T.R. 61; Charkaoui (Re), 2005 FC 248, [2005] 3 F.C.R. 389, 252 D.L.R. (4th) 601, 261 F.T.R. 11. AUTHORS CITED Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Mackinnon, Mark. "The 'impossible' voyage of a Tamil ghost ship", The Globe and Mail (August 20, 2010).

Manning, Morris and Peter Sankoff. Manning Mewett & Sankoff: Criminal Law , 4th ed. Markham, Ont.: LexisNexis, 2009. Sullivan, Ruth. Statutory

Interpretation , 2nd ed. Toronto: Irwin Law, 2007. APPLICATION for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board issuing a deportation order to the applicant after determining that he was inadmissible to Canada for engaging in people smuggling in the context of transnational crime as set out in paragraph 37(1) (

b) of the Immigration and Refugee Protection Act . Application dismissed. APPEARANCES Samuel Loeb and Rod Holloway for applicant. Banafsheh Sokhansanj for respondent. SOLICITORS OF RECORD Samuel Loeb and Rod Holloway , Vancouver, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English [ 1 ] Noël J .: B010 (the applicant) seeks judicial review of a decision of the Immigration Division (ID or panel) of the Immigration and Refugee Board of Canada (I.R.B.) dated July 6, 2011.

The ID issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling in the context of transnational crime as set out in paragraph 37(1) (

b) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA). I. Alleged Facts [ 2 ] The applicant, a Tamil refugee claimant from Sri Lanka, arrived in Canada on August 13, 2010, on the MV Sun Sea , an unregistered ship with 492 migrants on board seeking refuge. Their journey from Thailand had lasted approximately three months. [ 3 ] A Globe and Mail

article published on August 20, 2010 ["The 'impossible' voyage of a Tamil ghost ship"] describes “the saga of the Sun Sea and its 492 bedraggled passengers” as “the stuff of spy thrillers.” The

article goes on to outline the very serious danger and difficult conditions faced by the migrants (trial record (TR), at pages 268 and 273): The ship’s former owners are shocked the journey was attempted at all. Bhumindr Harinsuit, managing director of Harin Panich, said the 30-year-old Japanese-built ship was barely able to make the trek between Bangkok and Songkhla. The idea of taking the rickety boat as far as Canada was too crazy to contemplate. “Even in the Gulf of Thailand, if there were rough seas she wouldn’t travel …”. Making the trip even more astonishing was its cargo of 492 human beings.

When sold, the ship only had sleeping space for 15 crew, one small toilet, a galley kitchen and life rafts for a maximum of 30 people. With space for only 12 tonnes of water, supplies would have had to have been harshly rationed to keep from running out mid-journey. “The captain was taking an amazing risk. We wouldn’t even send it to Malaysia,” Mr.

Harinsuit said. “The surprise isn’t that someone died [on the way to Canada], the surprise is that it was only one person who died.” [ 4 ] A Canada Border Services Agency (CBSA) investigation revealed that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada. It also emerged from the investigation that the applicant was one of 12 migrants serving as the ship’s crew during the voyage. As a result, an immigration officer reported the applicant under subsection 44(1) of the IRPA as being inadmissible to Canada for people smuggling.

A subsection 44(2) report was then referred to the ID and an admissibility hearing was held on April 15, 2011. [ 5 ] The applicant testified at the hearing that until 2009, he had lived in the area of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam (LTTE). When the Sri Lankan army reasserted control of the area that year, he was held in a detention camp for suspected ties to the LTTE, interrogated, and beaten over a period of five months.

As his ties to the LTTE were unsubstantiated, the applicant was eventually released, but remained the target of repeated harassment and interrogation by government forces. [ 6 ] When he later refused to report to a detention camp and was nearly taken away by paramilitaries, the applicant fled to Thailand, leaving behind his wife and child. The applicant then waited in Bangkok while an agent arranged for him to travel to a country where he could claim refugee status. Unable to acquire a visa after a two-month wait, the agent offered him an opportunity to travel to Canada on the MV Sun Sea .

The cost of the trip would be $30 000 and the applicant paid $5 000 up front. [ 7 ] Ten days later, the applicant made his way to the ship in a van with about ten other men. They all boarded the vessel, which at that time had only a Thai crew and no other passengers on board. At the hearing before the ID, the applicant testified that he placed his belongings in one of the cabins of the vessel and slept. After two or three days, the Thai crew purportedly abandoned the vessel, leaving its passengers behind.

The applicant claims that there was then a discussion as to what to do, that one of the men asked him if he could work on the ship, and that because he had already paid a portion of the fee for the voyage and feared returning to Sri Lanka, he agreed to help. For the rest of the voyage, the applicant worked twice a day in three-hour shifts in the engine room, monitoring the temperature, water, and oil level of the equipment.

With regard to any material benefit he may have gained from his work, the applicant testified before the ID that he did not receive better accommodation or extra food, that he slept in a room because he was one of the first on the ship, and that he shared the room with eight others. Questioned again about receiving any extra food, the applicant stated that he received extra food on one occasion when the engine had broken down while he was on duty and one of the other men worked to repair it (TR, at

pages 57–63; transcript of proceedings, at pages 11–17). [ 8 ] There were notable differences between the above account provided to the ID and some of the answers given by the applicant in solemn declarations made to CBSA enforcement officers over the course of several interviews. During questioning, when asked what he received in exchange for working in the engine room, the applicant answered that he was able to sleep in a room in a level above (TR, at pages 192 and 196).

Questioned as to why others would have identified him as a member of the LTTE, the applicant eventually stated the following: “See I was taken first on the ship, because of that I had a place to sleep and then I had the desire to learn more about the engine room so I had the opportunity and I worked there and then by working there we had kind of like extras, like noodles and stuff like that so maybe looking at all these things they have thought this way” (TR, at page 221).

And later, questioned about what kind of food he received in comparison to the limited rations of noodles and water received by the passengers, the following exchange took place (TR, at page 237): Q: Tell me about what kind of meals you ate. A: Whatever is cooked that we eat but sometimes when I work in the engine room we are given some noodles. Q: Tell me about the chicken and the pork and the beef. A: They give us that. After a few days they said that’s all, we ran out of stock. Q: Tell me about the soda pop, Coca Cola, Pepsi. A: Yeah they gave soda. Q: Not just everybody though. A: That I don’t know.

Q: That was just to you guys. You guys got all kinds of good stuff. There was liquor, cigarettes if you wanted them, pop, soda, traditional foods. A: Most of the people I see they were smoking but I’m not into smoking. Q: But you still got traditional foods just like everyone else in the crew. See the thing is the passengers could smell it. The people in the hatch could smell it. They can smell the cooking 3 times a day for you guys while they’re stuck with noodles and small amounts of water. A: What can I do? Those people give that what can I do?

Whatever is given to me I’ll eat. [ 9 ] In his solemn declarations, the applicant also confirmed that after the Thai crew left the ship, and before any other passengers had yet to board, he and 7 of the men he had first boarded the ship with, formed a crew that proved capable of picking up nearly 500 migrants and feeding them while navigating across the Pacific Ocean to Canada (TR, at pages 195 and 229).

The applicant explained that he volunteered to work in the engine room because of his previous experience as a mechanic, but denied already knowing he would take on this role before boarding the ship. [ 10 ] At the hearing, the applicant also denied knowing any of the other crew members prior to the voyage, but was presented with evidence to the contrary. Three photographs show him posing with three members of the crew (including the captain) while still in Bangkok. The men can even be seen eating a meal together in one of the photos.

Invited to respond, the applicant could not remember when these photographs were taken and could only explain that he would sometimes interact with other members of the Tamil Diaspora he encountered in Bangkok during the approximately two and a half months he spent there. Despite the photos, the applicant insisted that he did not remember seeing the crew members in Bangkok (TR, at pages 232–233). II. Impugned Decision A. Interpreting the Relevant Provisions of the IRPA and Identifying the Requirements to Establish People Smuggling [ 11 ] The applicant was reported inadmissible to Canada under paragraph 37(1) (

b) of the IRPA , which reads as follows: Immigration and Refugee Protection Act , S.C. 2001, c. 27 Organized criminality 37.

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for … (

b) engaging, in the context of transnational crime, in activities such as people smuggling , trafficking in persons or money laundering. [Emphasis added.] [ 12 ] In its reasons, the ID first examined the term “transnational”. Finding no

interpretation of it anywhere in the IRPA , the panel relied on the United Nations Convention against Transnational Organized Crime , 15 November 2000, 2225 U.N.T.S. 209 (the Convention), which sets out in paragraph 2 (

a) of

article 3 of the Convention that an offence is transnational in nature when it is committed in more than one State. The ID was thus satisfied there was a transnational component to the MV Sun Sea operation since people had been transported from Thailand to Canada. [ 13 ] Turning then to the meaning of “people smuggling”, the ID first noted that Annex III of the Convention, the Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime [15

November 2000, 2241 U.N.T.S. 480] (the Protocol), offered the definition of a similar term: “Smuggling of migrants”.

Article 3 of theProtocol defines this as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entryof a person into a State Party of which the person is not a national or a permanent resident” and “Illegal entry” is defined as “crossingborders without complying with the necessary requirements for legal entry into the receiving State.” The applicant argued that thisprovision of the Protocol should be applied to define “people smuggling” and that in fact, previous decisions of the I.R.B. had done justthat: X (Re), , at page 3; Canada (Minister of Citizenship and Immigration) v.

Khan, , at pages 15and 26; Chung v. Canada (Public Safety and Emergency Preparedness), , at paragraphs 9, 14 and 19; X v. Canada(Public Safety and Emergency Preparedness), , at paragraphs 6, 13 and 17. [14] The ID was not convinced by this argument, concluding instead that past I.R.B. decision makers had wrongly viewed

section 37of the IRPA as Canada’s response to the Protocol, thus incorrectly adopting all of its notions. According to the ID, it was in fact section117 of the IRPA that criminalized the smuggling of migrants, as called for by

article 6 of the Protocol.

Section 37’s role then is torecognize the criminality of this Act and makes it a ground for deportation. As a result, the panel preferred the argument submitted bythe Minister of Public Safety and Emergency Preparedness (the Minister) that there was no need to consult the Convention and Protocolfor a definition of “people smuggling” when such a definition could already be found in subsection 117(1) of the IRPA: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Human Smuggling And Trafficking Organizing entryinto Canada 117.

(1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons whoare not in possession of a visa, passport or other document required by this Act. [15] In order to prove that “people smuggling” had occurred for the purposes of subsection 37(1), the ID concluded that six elementswere required. The first two elements are found in subsection 37(1) itself, specifically, that the smuggler is either a permanent resident orforeign national and that the crime is transnational.

The panel confirmed that the Minister had already established these two elementsgiven that the applicant was a foreign national and that there was a transnational component since the migrants were brought fromThailand to Canada. [16] The ID drew the remaining four elements from subsection 117(1), relying on the Ontario Superior Court’s decision in R. v.Alzehrani, , 237 C.C.C. (3d) 471 (Alzehrani), in which the defendants were accused of engaging in a conspiracy tosmuggle people across the border between Canada and the United States in contravention of

section 117 of the IRPA. At paragraph 10 ofAlzehrani, based on a reading of subsection 117(1), Justice Molloy determined that in order to establish the offence, the Crown had toprove that: (

i) the persons being smuggled did not have the required documents to enter Canada; (ii) the persons were coming intoCanada; (iii) the smuggler was organizing, inducing, aiding or abetting the person to enter Canada; and (iv) the accused had knowledgeof the lack of required documents. [17] Before proceeding with its analysis of these four remaining elements, the ID addressed the applicant’s concern that thisinterpretation contained no requirement that the smuggler engage in the act of smuggling for financial benefit, as set out in the Protocoldefinition of "Smuggling of migrants". The panel acknowledged that paragraph 3(3)(

f) of the IRPA required that its provisions beconstrued and applied in a manner that complies with international human rights instruments to which Canada is signatory. The IDfurther recognized that the definition under

section 117 was not the same as that of the Convention and Protocol because it did notrequire that the smuggler commit the offence for financial or other material benefit. That said, the panel interpreted the Convention “assetting a minimum with which signatories must comply. The fact that

section 117 is broader than the Protocol definition does not mean itis not in compliance with that instrument” (TR, at page 8; ID reasons, at paragraph 24). [18] The panel also acknowledged that not requiring that the offence be committed for financial or material gain could posedifficulties in certain situations: “For example, a relative could assist a genuine refugee claimant in coming to Canada without documentsand if the relative was a foreign national or permanent resident of Canada, they would be liable to deportation, and certainly if they werereported and referred to the Immigration Division, the Immigration Division would be required to hear the case” (TR, at page 8; IDreasons, at paragraph 25).

The ID concluded however that if necessary, this was a problem for Parliament to resolve by amending thelegislation. B. Analysing the Evidence to Determine Whether the Applicant Engaged in People Smuggling [19] The ID confirmed that the appropriate standard of proof in this matter was that of “reasonable grounds to believe” as set out insection 33 of the IRPA.

This standard requires something more than mere suspicion, but less than the standard of “balance ofprobabilities,” and it will be met where there is an objective basis for the belief the applicant engaged in people smuggling, based oncompelling and credible information (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R.100 (Mugesera), at paragraph 114). [20] While the applicant essentially claimed to have become a member of the crew by accident, the panel noted that the Minister hadsubmitted three photographs that cast doubt on this account.

As mentioned, the photographs are of the applicant with some of the othercrew members and the captain, taken while they were still onshore in Thailand. The applicant claimed that he did not know the men inthe photographs prior to boarding the ship, but that there were many Sri Lankan Tamils in Thailand and he would often mix with them ifhe encountered them while out somewhere.

He believed that the photographs must have been taken on such an occasion. [21] The ID rejected the applicant’s explanation and determined that there was reasonable ground to believe he had boarded the shipknowing that he would be a crew member. The panel noted that the applicant had mechanical experience and that the photographssubmitted by the Minister showed that the applicant had spent time in Thailand with the captain of the ship and two other members ofthe crew.

The ID further noted that the applicant was among the first to board the ship and was deliberately evasive when asked aboutthe functions performed by other members of the crew not in the engine room. Taking all of the above into consideration, the panel wassatisfied that there were reasonable grounds to believe the applicant knew before boarding the ship that he would be a crew member and

it did not believe his explanations to the contrary. The ID remarked that even if it were wrong on this point, the applicant had still chosento work once on the ship (TR, at page 11; ID reasons, at paragraphs 34–35). [22] Examining the elements set out in Alzehrani, above, the ID asserted that the Minister had established that: (

i) the passengers ofthe MV Sun Sea did not have the documents required to enter Canada; (ii) they were coming to Canada; and (iii) the applicant aided intheir coming into Canada by serving as an engine room assistant. As for the fourth element, the panel admitted that it was not entirelyclear from the evidence whether the applicant knew the passengers did not have the required documents or whether he merely suspectedthat they did not have them. Regardless, the ID applied the concept of wilful blindness also invoked in Alzehrani.

The panel was satisfiedthat if the applicant did not know whether the passengers had the required documents, it was because he deliberately chose not to obtainthat knowledge. [23] Turning then briefly to the question of material benefit, the ID concluded that if it had erred and profit or material gain wasindeed a necessary element of people smuggling, it did not believe the applicant had received a material benefit for working as a memberof the MV Sun Sea. The panel ruled that the Minister had failed to establish that the applicant received free passage or was paid for hiswork.

While he may have received better accommodations than the regular passengers, the panel did not consider this to be a materialbenefit. [24] Finally, before concluding, the ID addressed the applicant’s argument that people smuggling had not occurred because the intentof the passengers was never to enter Canada clandestinely, but rather to report to a port of entry to make refugee claims. The applicantsubmitted that the IRPA allows refugee claimants without the required documents to enter Canada, attend at a port of entry, presentthemselves for examination, and make a refugee claim.

Accordingly, they had complied with the requirements and there was no “illegalentry” as required by

article 3 of the Protocol. [25] The ID rejected this argument, satisfied that there was no requirement in the IRPA that people smuggling involve a plan to bringpeople into Canada without presenting them for examination at a port of entry. It further noted that in the two cases considered wheremigrants had appeared at a port of entry, the courts still found this constituted “coming into Canada” as required by

section 117 of theIRPA (R. v. Godoy (1996), 34 Imm. L.R. (2d) 66 (Ont. Ct. J.) (Godoy), at paragraph 35; and R. v. Mossavat, , 30 Imm.L.R. (2d) 201 (Ont. C.A.) (Mossavat), at paragraph 1). III. Parties’ Positions [26] The applicant asserts that the ID performed an incomplete statutory analysis of paragraph 37(1)(b), failed to properly distinguishthe essential elements required to constitute “people smuggling”, and erroneously concluded that it was equivalent to the criminaloffence of “Organizing entry into Canada” found in

section 117 of the IRPA. As a result, he contends the panel incorrectly defined theterm “people smuggling” and that its definition would lead to absurd results.

When applying the ordinary principles of statutoryinterpretation and considering the plain meaning of the words read in their entire context, the objectives of the IRPA, and Canada’sinternational law obligations, the applicant submits that “people smuggling” should properly be defined “as the secret or clandestinemovement of persons across borders for material benefit” (applicant’s further memorandum of argument (AFMA), at paragraph 4).Because he did not receive profit or material benefit and the MV Sun Sea and its passengers did not enter Canada secretly orclandestinely, the ID erred in finding the applicant inadmissible. [27] Not surprisingly, the Minister asserts the ID correctly relied on

section 117 of the IRPA and contests the applicant’s definition of“people smuggling”, arguing his narrow definition would also lead to absurd results. The Minister specifically opposes the notion thatpeople smuggling requires the migrants to have entered Canada clandestinely, maintaining that entering Canadian territory without therequired documents is in itself sufficient to invoke the provision.

In addition, it puts forward that material benefit is not necessary toengage in people smuggling and that regardless, the applicant received a material benefit in the form of superior accommodations andfood in return for his work as a crew member. [28] The applicant’s secondary argument is that the ID misapplied the concept of wilful blindness when it imputed that he hadknowledge the other passengers lacked the necessary documents to enter Canada.

He says he believed that he and the other passengerscould legally file a refugee claim without the documents and so he had no reason to enquire as to whether the other passengers possessedthe necessary documentation. He could therefore not be wilfully blind to that fact.

For its part, the Minister disputes this assertion andargues that even if the ID had erred in its finding on this point, it would not be determinative of the case because there is no mens rearequirement under paragraph 37(1)(b). [29] As the Minister has pointed out, in essence, the applicant is not challenging the ID’s finding that he aided the migrants aboardthe ship to enter Canada without the required documents or that he was not truthful when he claimed to have become a crew member “byhappenstance”.

Instead, the applicant is only arguing that the ID should have applied a more restrictive definition of “people smuggling”for the purposes of inadmissibility under paragraph 37(1)(

b) that included both a profit or material benefit component and a clandestinecomponent. Such an

interpretation of the provision would arguably spare him from its application. Likewise, the applicant’s criticism ofthe ID’s application of wilful blindness is also an attempt to dodge

section 117. IV. Issues [30] The applicant asks this Court to consider two issues: 1. Did the ID err in its

interpretation of the term “people smuggling” found in paragraph 37(1)(

b) of the IRPA? 2. Did the ID err in its understanding or application of the concept of wilful blindness? The applicant submits that if the ID erred on either point, this would render the finding that he engaged in people smugglingunreasonable as well. V. Standard of Review

[ 31 ] The applicant submits that the

interpretation of a statute (the

interpretation of “people smuggling”) and the application of a legal test (wilful blindness) are both questions of law to which the applicable standard of review is correctness ( Sittampalam v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 326 , [2007] 3 F.C.R. 198 ( Sittampalam ), at paragraphs 15 and 31 ; Ezemba v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1023 , at paragraph 14 ). Accordingly, the Court would owe no deference to the ID’s determination of these issues.

The Minister disagrees, stating that since the issues at play here are the tribunal’s findings of facts and weighing of the evidence, this Court should show deference and the applicable standard of review would therefore be reasonableness. [ 32 ] I agree that the issue the applicant has raised with respect to the ID’s understanding of the concept of wilful blindness and whether it failed to correctly address elements of the legal test is a question of law that should be decided on the standard of correctness ( Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ( Khosa ), at paragraph 44 ; Mugesera , above, at paragraph 37 ; Belalcazar v. Canada (Public Safety and Emergency Preparedness) , 2011 FC 1013 , 395 F.T.R. 291, at paragraph 14 ). However, the ID’s application of wilful blindness to the facts remains subject to the reasonableness standard of review ( Onyenwe v. Canada (Citizenship and Immigration) , 2011 FC 604 , at paragraphs 9–10 ). [ 33 ] With regard to the ID’s

interpretation of the IRPA , the Supreme Court has consistently spoken of the need for deference when a tribunal is interpreting its own statute ( Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 ( Alberta Teachers’ ), at paragraph 30 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 ( Alliance Pipeline ), at paragraphs 37–39 ; Khosa , above, at paragraph 44 ; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraph 54 ). Accordingly, this Court will apply the standard of reasonableness to the ID’s

interpretation of paragraph 37(1) (

b) of the IRPA, ensuring that there was justification, transparency, and intelligibility within the decision-making process and that the ID’s

interpretation fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir , above, at paragraph 47 ). VI. Analysis A. Did the ID err in its

interpretation of the term “people smuggling” found in paragraph 37(1) (

b) of the IRPA ? [ 34 ] The term “people smuggling” found in paragraph 37(1)(

b) is left undefined. By basing itself almost entirely on

section 117, the applicant is of the view the ID failed to conduct any significant analysis of statutory

interpretation, ignoring several important aspects including meaning, purpose, and context. The applicant relies here on Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559 ( Bell ), where the Supreme Court noted that Driedger’s modern approach to statutory

interpretation has been the preferred approach across a wide range of interpretive settings. Driedger’s modern approach notably calls for the words of

an Act “to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Elmer A. Driedger, Construction of Statutes , 2nd ed. (Toronto: Butterworths, 1983), at page 87, cited in Bell , above, at paragraph 26). [ 35 ] The applicant argues that when applying these principles, “people smuggling” is properly defined as “the secret or clandestine movement of persons across borders for material benefit or profit” (AFMA, at paragraph 4).

Naturally, the applicant relies on this definition in order to avoid the consequences of paragraph 37(1) ( b ). As mentioned, if “people smuggling” requires a secret or clandestine component, it is argued this would not encompass him because the ID believed that he and others on board the MV Sun Sea planned to report directly to a port of entry to make a refugee claim (TR, at page 12; ID reasons, at paragraph 41).

Likewise, if the definition requires an element of material benefit or profit, this would not apply to him because the ID found that he paid for passage aboard the ship and gained no material benefit from his work as a crew member (TR, at pages 14–15; ID reasons, at paragraph 50). [ 36 ] However, and at the risk of repeating myself, I must stress that in applying the reasonableness standard of review, this Court’s task is not to assess the applicant’s proposed definition, but only to determine whether the ID’s chosen

interpretation falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir , above, at paragraphs 47 and 54 ). [ 37 ] For the sake of clarity and comparison, here are paragraph 37(1) (

b) and the possible

definitions at play in subsection 117(1) of the IRPA and

article 3 of the Protocol: Immigration and Refugee Protection Act , S.C. 2001, c. 27 Organized criminality 37.

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for … (

b) engaging, in the context of transnational crime, in activities such as people smuggling , trafficking in persons or money laundering. … Human Smuggling and Trafficking Organizing entry into Canada 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. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime

Article 3 Use of terms For the purposes of this Protocol:

(a) “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; (b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receivingState. [Emphasis added.] [38] I would begin with a few preliminary remarks. First, I would observe that to apply Driedger’s modern approach and readparagraph 37(1)(

b) in its entire context, as the applicant suggests, one must first tackle the IRPA in its entirety to get a sense of its overallstructure “and also turn up other provisions that may have some significant relation to the provision to be interpreted. By reading relatedprovisions together, the court uncovers aspects of what the legislature intended” (emphasis added) (Ruth Sullivan, StatutoryInterpretation, 2nd ed. (Toronto: Irwin Law, 2007) (Statutory

Interpretation), at page 132). Indeed, by examining the IRPA as a whole,the ID identified the important relationship between subsections 37(1) and 117(1) and came to the conclusion that

section 117, foundunder the heading “Human Smuggling and Trafficking”, serves to criminalize the act that then renders anyone who has engaged in itinadmissible for “people smuggling” under paragraph 37(1)(b). [39] Second, given the significant emphasis that has been placed on the term “human smuggling” located in the heading above section117, I note that it is well accepted that headings may be treated as an integral part of the context and relied on as “intrinsic aides” tointerpret a statute or to examine its structure (R v. Lohnes, (SCC), [1992] 1 S.C.R. 167, at page 179; Charlebois v. SaintJohn (City), 2005 SCC 74, [2005] 3 S.C.R. 563; Statutory

Interpretation, above, at pages 142–144). Accordingly, I find it reasonable toutilize the heading above

section 117 in order to give added credence to the existence of a link between it and subsection 37(1). [40] Third, I do not ignore there is a difference between the terms “people smuggling” and “human smuggling” found respectively inparagraph 37(1)(

b) and the heading above

section 117. However, when considering the textual analysis technique by which differentwords appearing in the same statute should be given different meanings, as exemplified by Justice Dickson [as he then was] in R. v.Frank, (SCC), [1978] 1 S.C.R. 95, I see no meaningful or plausible reason in this case to distinguish between the act of“people smuggling” and that of “human smuggling”. Both provisions are clearly meant to address the same criminal activity: thesmuggling of human beings. [41] Should this difference in terms remain a concern, I would point out that the definition relied on by the applicant found in

article 3of the Protocol also refers not to “people smuggling”, but instead to the “smuggling of migrants”. Nevertheless, it is this Court’s viewthat all three terms clearly seek to address the same act and so the only question that remains is whether “people smuggling” had to beinterpreted on its own, or whether it was reasonable for the ID to also rely on

section 117, but not to adopt all components found inarticle 3 of the Protocol. [42] Considering then the

interpretation of subsection 37(1) and 117(1) of the IRPA, I am mindful of the words of the Chief Justice ofthe Supreme Court and her colleague Justice Major expressed in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2S.C.R. 601 (Canada Trustco), at paragraph 10: It has been long established as a matter of statutory

interpretation that “the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”:see 65302 British Columbia Ltd. v. Canada, (SCC), [1999] 3 S.C.R. 804, at para. 50. The

interpretation of a statutoryprovision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as awhole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in theinterpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of thewords plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in allcases the court must seek to read the provisions of

an Act as a harmonious whole. [Emphasis added.] [43] There is little doubt we find ourselves in the situation described above “where the words can support more than one reasonablemeaning”. As demonstrated by the arguments of both parties and the different provisions they rely on, while the word "smuggling" mayinclude a profit or material benefit component (as seen in

article 3 of the Protocol), it is not strictly necessary (see

section 117 of theIRPA). In this situation, the Supreme Court instructs us that the ordinary meaning of the word plays a lesser role and that we should seekto conduct a textual, contextual, and purposive analysis to find a meaning that is harmonious with the IRPA as a whole. The SupremeCourt put great emphasis on this latter point by repeating that in all cases, regardless of which analysis proves most helpful, courts shouldseek to read the provisions of the IRPA as a harmonious whole. [44] This then raises a second important point.

If the provisions of the IRPA are to be read in such a manner, how can we adopt aninterpretation of the IRPA in which two sections hold different meanings when they employ such strikingly similar terms and appear toaddress the same conduct? One would be hard pressed to explain why an individual convicted of “organizing entry into Canada”pursuant to

section 117 could remain admissible to Canada despite paragraph 37(1)(b). Indeed, when the offence set out in

section 117 islocated under the heading “Human Smuggling and Trafficking” and may result in both a fine of up to $1 000 000 and life imprisonmentfor any individual that smuggles a group of 10 or more persons, how can an individual convicted of this offence not be found to haveengaged in “people smuggling” under paragraph 37(1)(b)? It strikes me as improbable that differing

interpretations given to the terms“people smuggling” and “human smuggling” could justify such a contradiction. Hence, for the sake of coherence and consistency, unlessthe contrary is clearly indicated by the context, this is another indication that paragraph 37(1)(

b) should be interpreted in conformity withsection 117 so that it may be given “a meaning that is harmonious with the Act as a whole” (Canada Trustco, above, at paragraph 10). [45] This conclusion is further supported by a purposive analysis of the provisions, where

section 3 of the IRPA comes into play.Section 3 provides meaningful guidance as to the objectives and proper application of the IRPA. While it does not impose directions, itcertainly provides the decision maker and this Court with greater guidance on how to interpret the statute. Its importance will alsobecome readily apparent as we examine related jurisprudence of this Court and the Court of Appeal: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Objectives and Application

Objectives — immigration 3.

(1) The objectives of this Act with respect to immigration are … (

i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; … Objectives — refugees

(2) The objectives of this Act with respect to refugees are … (

h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. Application

(3) This Act is to be construed and applied in a manner that (

a) furthers the domestic and international interests of Canada; … (

f) complies with international human rights instruments to which Canada is signatory. The IRPA thus seeks to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals. Furthermore, it is clear that the IRPA is to be interpreted and applied in a manner that furthers the domestic and international interests of Canada while also complying with the international human rights instruments to which Canada is a signatory. This is also corroborated by

section 12 of the

Interpretation Act , R.S.C., 1985, c. I-21, which states that every enactment “shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects.” [ 46 ] With regard to the need to comply with international instruments, it is important to point out that paragraph 3(3) (

f) does not require that a definition found in an international instrument (in this case the Protocol) be imported in its entirety into the IRPA . For example, I note that in Sittampalam , above, at paragraph 40 , when asked to consider international instruments, Justice Linden of the Federal Court of Appeal had the following to say: With respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree.

Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in

section 467.1(1) … of the Criminal Code , R.S.C., 1985, c. C-46. Nor did it adopt the definition of “organized criminal group” in the [Convention]. The wording in paragraph 37(1) (

a) is different, because its purpose is different . [Emphasis added.] [ 47 ] In the case at bar, the ID concluded that

section 37 only recognizes the criminality of smuggling while

section 117 is the one to actually implement the Protocol by criminalizing such activity. The question remains, does such an

interpretation conform to the objectives of the IRPA ? In other words, do

section 117 and its definition of human smuggling meet Canada’s domestic and international obligations by complying with the international Convention and Protocol to which Canada is a signatory? [ 48 ] After examining the relevant provisions, I conclude the ID’s

interpretation is correct and

section 117 is in fact the provision that, for Canadian domestic purposes, criminalizes the smuggling of human beings into Canada. While it is broader in scope than the definition set out in the Protocol and does not have the more restricted scope sought by the applicant, it remains the legislative answer to Canada’s obligations undertaken by its adherence to the Protocol since it clearly condemns the act of human smuggling (albeit to a broader extent) and remains a legitimate response to valid human rights concerns. Furthermore, in the unlikely event

section 117 ’s broader definition should somehow conflict with the Convention or Protocol, it is worth remembering that a validly enacted legislation will prevail over international law ( Statutory

Interpretation , above, at page 33). [ 49 ] The ID was cognizant of the fact paragraph 3(3) (

f) called for the IRPA to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. The panel recognized that the definition in

section 117 differed from that found in the Protocol. However, it reasonably concluded that the fact

section 117 ’s definition was broader than that of the Protocol did not hinder its compliance with the latter. Nothing in the Protocol or in the Convention explicitly prevents criminalizing those who engage in migrant smuggling without deriving material gain or profit from it.

Likewise, nothing in these instruments prevents a contracting State from making inadmissible those who engage in such conduct. [ 50 ] The applicant referred this Court to articles 2 and 5 of the Protocol, but these only make clear that the Protocol’s purpose is to protect the rights of smuggled migrants and that they are not to face criminal prosecution under the Protocol for having been the object of smuggling. Similarly,

Article 31 of the United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6, which the applicant also referred to, states the following:

Article 31 Refugees Unlawfully in the Country of Refuge 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence , on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of

Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. [Emphasis added.] I need only emphasize here that the inadmissibility ruling under paragraph 37(1)(

b) is not a result of the applicant’s illegal entry into

Canada, but rather of his role in facilitating the entry into Canada of other refugees. Thus, the ID’s

interpretation of sections 37 and 117remains compliant with Canada’s obligations under the international instruments above. [51] Continuing with the purposive analysis, I turn to another compelling point on which the Minister placed great emphasis,specifically, the Federal Court of Appeal’s ruling that

section 37 of the IRPA should be given an “unrestricted and broad”

interpretation(Sittampalam, above, at paragraph 36). While I note that the Court of Appeal in that case considered the specific

interpretation of theterm “organization” in paragraph 37(1)(

a) and not the whole section, it is also apparent that the Court was driven in great part by theIRPA’s objective of prioritizing the security of Canadians. With respect to immigration, the [Federal] Court of Appeal relied on aprovision now found in paragraph 3(1)(i), expressed as the objective “to promote international justice and security by fostering respectfor human rights and by denying access to Canadian territory to persons who are criminals or security risks”.

I note that the sameobjective is found to apply with respect to refugees, as set out in paragraph 3(2)(h), expressed again as an objective “to promoteinternational justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risksor serious criminals” (emphasis added). [52] It was in fact this same objective of promoting international justice and security which formed the basis in several cases forapplying a broader

interpretation to sections 33 to 37 [section 36 (as am. by S.C. 2008, c. 3, s. 3)] of the IRPA under previous legislation(see Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration),2005 SCC 51, [2005] 2 S.C.R. 539 (Medovarski); Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R.350; Sittampalam, above, at paragraph 21; Canada (Minister of Citizenship and Immigration) v. Singh, , 151 F.T.R.101 (F.C.T.D.)). [53] As mentioned in Medovarski, above, at paragraph 10, the objective of the IRPA set out in

section 3 is to prioritize security. Withthis objective in mind, when applying some of the inadmissibility provisions in Division 4 of the IRPA, our courts have given a broadand unrestricted approach to such terms as “danger to the security of Canada” and “member of an organization” found in

section 34 (forexample, see Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paragraph 90; Poshteh v.Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, at paragraph 29; Harkat (Re), 2010 FC 1241,[2012] 3 F.C.R. 251, at paragraphs 85–88; Charkaoui (Re), 2005 FC 248, [2005] 3 F.C.R. 389, at paragraphs 35 and 36). [54] I would add that in Poshteh, above, at paragraph 29, the Federal Court of Appeal ruled that the availability of a ministerialexemption justified a continued broad

interpretation of the term “member”. I note that the same ministerial exemption to which the Courtof Appeal referred to in

section 34 and which justified a broad

interpretation of the provision can also be found in

section 37. Thisexception clause thus permits the Minister to declare that an inadmissible person can remain in Canada if their presence here would notbe detrimental to the national interests (subsection 34(2) and paragraph 37(2)(

a) of the IRPA). Such discretionary ministerial powers maybe employed in cases where an individual found inadmissible for having engaged in “people smuggling” can demonstrate to the Ministerpersonal circumstances which would justify such an exception. Therefore, even if “people smuggling” is defined more broadly, anotherremedy remains available to the applicant. [55] Clearly, given the presence of a ministerial exemption, the above jurisprudence, and most notably the “unrestricted and broad”approach applied by the Federal Court of Appeal in Sittampalam, the ID’s

interpretation appears well founded. It begs the question: whyshould the term “people smuggling” be given a more restricted

interpretation than the one the ID adopted by relying on subsections37(1) and 117(1) of the IRPA? The applicant contends that the basic rules of

interpretation call for such, but as we have seen up to thispoint, these rules appear to support the ID’s conclusion. [56] The applicant submitted that sections 37 and 117 were not comparable for the following reasons: (1) both sections have different roles within the IRPA: an enforcement and an inadmissibility purpose;

(2) section 37 leads to a deportation order while

section 117 leads to a criminal conviction, each applying a different approach andresulting in different consequences; (3) while

section 117 includes the English heading “Human Smuggling and Trafficking”, the French heading reads “Organisationd’entrée illégale au Canada” and makes no reference to smuggling. The applicant argues there is therefore no link between this andsection 37’s “passage de clandestins”. [57] I have already commented on the different purposes sought by sections 37 (inadmissibility) and 117 (enforcement). The factthere are different purposes does not forbid the use of a definition in one

section for the purposes of another section. As seen before, I donot see this as an obstacle to a harmonious

interpretation of the statute, quite the opposite. [58] As for the different perceptions drawn by the applicant from the French and English text references, I find these to be unclear. Itis true that different head notes are employed to explain the sections, but it does not change the fact that smuggling of human beings isthe crime addressed in both provisions. A reading of paragraph 37(1)(

b) and

section 117 in both French and English makes it clear thatthe concern addressed by the IRPA, both for inadmissibility and enforcement purposes, was the condemnation of people/humansmuggling (passage de clandestins) into Canada. Subsection 118(1) also makes it clear that the enforcement purpose targets the“trafficking in persons” (“traffic de personnes”).

Having reviewed the contextual situation of both sections, I can only conclude that,regardless of the different terms employed, both provisions have the same concern in mind: the condemnation of trafficking/smugglingof people/humans (passage de clandestins) into Canada for both admissibility and enforcement purposes. [59] We have seen from Canada Trustco, above, at paragraph 10, that paragraph 37(1)(

b) must be interpreted in accordance with thewords given, keeping in mind the context in which it was enacted and the objectives sought. Most importantly, the provision must begiven a meaning that is harmonious with the IRPA as a whole. In this case, ensuring that “people smuggling” and “human smuggling”are given the same definition upholds this obligation and I find it entirely proper and justifiable to define the term “people smuggling” inparagraph 37(1)(

b) by relying on

section 117 of the same statute when both provisions use comparable terms, address comparable acts,and are framed by the same objectives.

[60] The ID correctly pointed out that Canada’s obligation under the Convention and its Protocol was to criminalize the smuggling ofmigrants and that it was

section 117 that fulfilled this obligation, not

section 37. The latter

section sets out that those who engage insmuggling will be inadmissible. It also reasonably follows then that in order to engage in “people smuggling”, there would have to bereasonable grounds to believe that the person engaged in “human smuggling” as set out in

section 117. Given the wording of paragraph37(1)(b), it was reasonable for the ID to conclude that it was a necessary requirement that the applicant be a permanent resident orforeign national and that the crime be transnational. It was also reasonable for the same criteria set out in Alzehrani, above, identified asnecessary elements of the offence set out in

section 117 in the context of “human smuggling”, to be the criteria required in the context of“people smuggling” under

section 37. [61] Likewise, it was reasonable for the ID not to include any criteria not already found in subsections 37(1) and 117(1). While theapplicant sought to include a “secret or clandestine” element, the panel correctly pointed out that where a person smuggled appeared atthe port of entry to make a refugee claim, an individual that had aided that person to enter Canada could still be found guilty of anoffence under

section 117 (Godoy, above, at paragraph 35 and Mossavat, above, at paragraphs 1–2). The Minister also rightfullysubmitted to this Court that no such component can be derived from a reading of paragraph 37(1)(b), of

section 117, or even of theProtocol, and this in either French or English. The Minister also referred this Court to

section 159 of the Customs Act, R.S.C., 1985 (2ndSupp.), c. 1, which defines smuggling as follows: “Every person commits an offence who smuggles or attempts to smuggle into Canada,whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated byor pursuant to this or any other Act of Parliament” (emphasis added).

I agree with the Minister that subsections 37(1) and 117(1) do notrequire a “secret or clandestine” component, but are instead concerned only with the “organizing of entry into Canada”, whether theperson entering declares themselves at a port of entry or not, when such a person is “not in possession of a visa, passport or otherdocument required by this Act” (subsection 117(1) of the IRPA) [emphasis added].

Evidence submitted to the ID showed that themajority of the passengers on board the MV Sun Sea were in fact not in possession of the visas and passports required by the IRPA. [62] As to the argument calling for a “material benefit or profit” component,

section 121 of the IRPA makes clear that deriving profitfrom an offence under

section 117 is not a necessity and profit will only be factored into the penalty handed out for engaging in such anactivity. The ID therefore refused to read into the provision a “material benefit or profit” component. Still, should this conclusion proveincorrect, it is appropriate to mention that a material benefit is something that provides a person a concrete benefit over others. Forexample, the Federal Court of Appeal determined that receiving special schooling for children without having to pay constituted amaterial benefit (Woolner v.

Canada (Attorney General), , [2000] 1 C.T.C. 35 (F.C.A.), at paragraph 13). Morerecently in R. v. Pereira, 2008 BCSC 184, at paragraph 162, while interpreting the definition of “Organized criminal group” set out inarticle 2(

a) of the Convention, which explicitly contains “a financial or other material benefit” component, the British ColumbiaSupreme Court defined the term as follows: “The New Oxford Dictionary defines ‘benefit’ as ‘an advantage or profit gained fromsomething’ and ‘material’ as ‘important; essential; relevant’.

The benefit has to be material in the sense that it must be ‘important’ or‘essential’ and can include, but is not limited to, a financial benefit” (emphasis added). [63] Examining the issue of profit or material benefit, the ID observed that the Minister had not established that the applicant receivedfree passage in exchange for working during the voyage or that he was paid for working. As for any possible material benefit, whilerecognizing that the applicant had received better lodging than the regular passengers, the ID did not consider this to be a materialbenefit.

The panel did not address the evidence regarding access to better food on board the ship. [64] As outlined in paragraphs 7 and 8 of these reasons, the panel had evidence before it that because of his work as a crew member inthe engine room, the applicant received better lodging and food as compared to the hundreds of passengers on board (see TR, at pages192, 196, 221 and 237). I find these tangible benefits did constitute important advantages gained from his work as a crew member andwere therefore a material benefit.

Should there be any doubt regarding this conclusion, I need only point to the markedly differentconditions of the passengers in comparison to the crew, as described in a CBSA Report (TR, at page 253; Canada, CBSA, “Sun SeaHuman Smuggling Operation” (January 27, 2011), at page 12): Many of the migrants comment on the poor – some use words like ‘terrible’, ‘horrible’ – conditions of their accommodations on the SunSea. Some migrants say the children on board suffered even more than the adults.

There is general agreement among the migrants thatpeople were very angry about the conditions on board and that the conditions they experienced were much worse than what they werepromised by agents … Complaints about the Sun Sea include: - food shortages - water shortages (being limited to ½ litre per day per person) - abuse of power by crew members via food and water (punishing certain people by refusing them food and/or water, allowing somepeople more water than others, refusing water to people who requested more water because they couldn’t pass urine) - having to bathe in salt water - inadequate toilet facilities - cramped space - five or more people crowded into a single, small cabin - difficulty finding somewhere to sleep comfortably - some people having to sleep on the deck - some people getting sick - the fact there was a fatality during the voyage

- the fact that several of the people onboard had to be taken to the hospital when the ship arrived in Canada. [Emphasis added.] There were reasonable grounds to believe that because of his work as a crew member, the applicant did not have to experience theconditions described above. As a result, I find the ID’s conclusion that the applicant did not receive any material benefit to beunreasonable in light of the facts found in the record. B.

Did the ID err in its understanding or application of the concept of wilful blindness? [65] Relying on Alzehrani, above, the ID sets out that to have engaged in people smuggling, the applicant must have had knowledgethat the migrants being smuggled did not have the required documents.

Considering the issue, the ID undertook the following analysiswhich I will provide in full for greater certainty (TR, at page 14; ID reasons, at paragraphs 48–49): It is not entirely clear from the evidence whether [the applicant] actually knew that the passengers did not have the required documentsor merely suspected that they did not have the documents. However in [Alzehrani], a case involving a prosecution for people smugglingcontrary to

section 117 of the IRPA, at paragraph 34, the court held that: Wilful blindness is the equivalent of knowledge; it is knowledge that is imputed to an accused who suspected the truth, knew itsprobability, but deliberately refrained from making the inquiry that would have confirmed his suspicion, because he wished to avoidactual knowledge: R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570 at 585-586. [The applicant] is from Sri Lanka, he knew that as a Sri Lankan he needed a visa to enter Canada and he travelled on the MV Sun Sea totry to circumvent the visa requirement.

He spent more than three months on a ship with hundreds of other people from Sri Lanka. He hastestified that he thought that the other people on board who were travelling on the MV Sun Sea were in similar circumstances to him. Hehad ample opportunity to find out if th

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