R. v. Alzehrani, 2013 FCA 262

[2014] 4 F.C.R. 371 2013 FCA 262 A-29-13 The Minister of Public Safety and Emergency Preparedness ( Appellant ) v. J.P. and G.J. ( Respondents ) A-498-12 The Minister of Public Safety and Emergency Preparedness ( Appellant ) v. B306 ( Respondent ) A-563-12 The Minister of Public Safety and Emergency Preparedness ( Appellant ) v. Jesus Rodriguez Hernandez ( Respondent ) Indexed as: J.P. v. Canada (Public Safety and Emergency Preparedness) Federal Court of Appeal, Sharlow, Mainville and Near JJ.A.—Toronto, October 2; Ottawa, November 12, 2013.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeals from Federal Court decisions allowing judicial reviews of Immigration and Refugee Board, Immigration Division (Board) decisions respondents inadmissible pursuant to Immigration and Refugee Protection Act (IRPA), s. 37(1) (

b) for engaging in people smuggling — Board defining scope of “people smuggling” under s. 37(1)(

b) with reference to IRPA, s. 117(1) — Finding respondents aiding, abetting smugglers — Federal Court finding it improper for Board to interpret IRPA, s. 37(1) (

b) by strict reliance on factual elements of offence set out in s. 117(1) ; concluding mens rea not established herein since participation motivated by desire to secure food, not to assist in people smuggling; notion of “people smuggling” under s. 37(1) (

b) including profit element — Main issue whether aiding, abetting in people smuggling requiring mens rea — International conventions at issue herein not prohibiting signatories from enacting legislation rendering inadmissible those contributing to, but not profiting from, people smuggling — Attaching financial component to concept of people smuggling leading to unacceptable results, contrary to Parliament’s intent — Reasonable for Board to interpret s. 37(1) (

b) with reference to s. 117(1) , to base inadmissibility on elements in R. v. Alzehrani — Federal Court confusing notion of intent with motive — Mens rea established in cases herein by Board — Appeals allowed. Constitutional Law — Charter of Rights — Life, Liberty and Security — Appeals from Federal Court decisions allowing judicial reviews of Immigration and Refugee Board, Immigration Division decisions excluding respondents under Immigration and Refugee Protection Act, s. 37(1) (

b) for people smuggling — Whether s. 37(1)(

b) engaging Charter, s. 7 by precluding refugee determination hearing for inadmissible foreign national — Inadmissibility finding under s. 37(1)(

b) not in itself engaging Charter, s. 7 — Only at later stage, i.e. assessment of risks, that Charter, s. 7 may be engaged. Practice — Notice of constitutional question — Appeals from Federal Court decisions allowing judicial reviews of Immigration and Refugee Board, Immigration Division (Board) decisions excluding respondents under Immigration and Refugee Protection Act, s. 37(1) (

b) for people smuggling — Failure to complete notice of constitutional question before Board not fatal herein —Appellant failing to identify which facts missing from records that would prejudice him with respect to constitutional arguments raised by respondents. Administrative Law — Judicial Review — Standard of Review — Appeals from Federal Court decisions allowing judicial review of Immigration and Refugee Board, Immigration Division (Board) decisions excluding respondents under Immigration and Refugee Protection Act, s. 37(1) (

b) for people smuggling — B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 followed —

Interpretation of s. 37(1) (

b) by Board reviewable on standard of reasonableness — Deference now rule rather than exception. These were appeals from decisions of the Federal Court allowing applications for judicial review of decisions by the Immigration Division of the Immigration and Refugee Board (Board) determining that the respondents were inadmissible pursuant to paragraph 37(1) (

b) of the Immigration and Refugee Protection Act (IRPA) for engaging in people smuggling. The respondents in A-29-13 and A-498-12 were aboard the MV Sun Sea and submitted refugee claims when they arrived in Canada. Both respondents had assisted the crew in operating the ship or by acting as lookouts. In A-29-13, the Board found as a matter of law that people smuggling pursuant to paragraph 37(1) (

b) of the IRPA does not require the element of “financial or other material benefit” referred to in the Smuggling of Migrants Protocol. The Board rather based its finding with respect to the scope of people smuggling under paragraph 37(1) (

b) with reference to subsection 117(1) of the IRPA as it then read. On judicial review, the Federal Court concluded, inter alia , that Canada’s international commitments to both penalize smugglers and to protect those who are being smuggled may be blurred by an overly expansive

interpretation of paragraph 37(1)(

b) that encompasses those who did not plan to carry out the scheme and have no prospect of a reward other than a modest improvement in their living conditions enroute. Consequently, it was improper for the Board to interpret paragraph 37(1) (

b) by strict reliance on the factual elements

of the offence set out in subsection 117(1) as it then read. In A-498-12, the Board also defined the scope of “people smuggling” under paragraph 37(1) (

b) with reference to subsection 117(1) of the IRPA as it then read and found that the respondents had aided and abetted the coming into Canada of foreign nationals. The Federal Court criticized the Board’s findings of fact as “not informed by the context of complete dependency, vulnerability and power imbalance in which the applicant found himself during the three-month journey to Canada.” In allowing the judicial review, the Court reasoned that the required mens rea had not been established since the respondent’s participation was motivated by a desire to secure food, not to assist in people smuggling, and that there was a distinction between the offence of people smuggling contemplated in

section 117 of the IRPA and the offence of conspiring with, being accomplice to, or being an accessory after the fact of the smugglers as contemplated in

section 131 of the IRPA. The respondent in A-563-12 was convicted of alien smuggling in the U.S. before claiming refugee status in Canada. The Board concluded, inter alia , that the respondent was inadmissible under paragraph 37(1) (

b) even though there was no evidence that he had engaged in people smuggling for financial gain or material benefit. The Federal Court found that properly construed, the notion of “people smuggling” under paragraph 37(1) (

b) includes a profit element. In the present appeal, the respondents submitted, inter alia , that “people smuggling” requires that the perpetrator carry out the smuggling for a financial or other material benefit in order to be captured by the inadmissibility provision set out in paragraph 37(1) ( b ); that the effect of paragraph 37(1) (

b) is to deny a determination of their United Nations Convention Relating to the Status of Refugees (Convention) refugee claims by the Board, and that such a denial violates their rights under

section 7 of the Canadian Charter of Rights and Freedoms (Charter). The respondents asked that the decision in B010 v. Canada (Citizenship and Immigration) , 2013 FCA 87 ( B010 Appeal Decision), not be followed. The B010 Appeal Decision found that it was reasonable for the Board to define people smuggling under paragraph 37(1) (

b) of the IRPA by relying upon subsection 117(1) . The respondents submitted that the use of the reasonableness standard in the B010 Appeal Decision was wrong. They added that by applying a correctness standard of review to the Board’s

interpretation of paragraph 37(1)( b ), the notion of “people smuggling” set out therein would have to conform to the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol) rather than subsection 117(1) . As a result, a financial or other material benefit would be required in order to be found inadmissible on the ground of people smuggling.

The appellant submitted, inter alia , that the respondents should have completed notices of constitutional question when they were before the Board, and that he is prejudiced as a result of that failure since he could have submitted evidence respecting the constitutional issues raised by the respondents. The main issues were whether the

interpretation of paragraph 37(1)(

b) requires that the foreign national have the mens rea to aid and abet in people smuggling in order to be captured by the inadmissibility provision; whether the definition of people smuggling under paragraph 37(1)(

b) is constitutionally overbroad if it is to be determined with reference to subsection 117(1); and whether paragraph 37(1)(

b) engages

section 7 of the Charter by precluding a refugee determination hearing for the foreign national captured by this inadmissibility provision. Held , the appeals should be allowed. There were no compelling reasons not to follow the B010 Appeal Decision on any of the fundamental issues resolved by that decision. The

interpretation of paragraph 37(1)(

b) by the Board was reviewable on a standard of reasonableness. Deference is now the rule rather than the exception where administrative tribunals are concerned. Nothing in the United Nations Convention against Transnational Organized Crime or in the Smuggling of Migrants Protocol prohibits signatories from enacting legislation that makes inadmissible to Canada those who contribute to, but do not profit from, people smuggling. A finding of inadmissibility under the IRPA is not the equivalent of a removal under the IRPA or refoulement under the Convention.

To attach a financial component to the concept of people smuggling would lead to unacceptable results and would be contrary to Parliament’s intent in adopting paragraph 37(1) ( b ). The Board’s decision to interpret paragraph 37(1) (

b) with reference to subsection 117(1) , as it then read, rather than relying on a definition contained in an international instrument was reasonable and was the correct

interpretation of that provision. It was also reasonable for the Board to find that the essential elements required to conclude that a foreign national is inadmissible on the ground of having been involved in people smuggling are those set out in R. v. Alzehrani . The reasoning of the Federal Court regarding the respondent’s mens rea in A-498-12 confused the notion of intent with that of motive and was plainly unsustainable.

Unless Parliament has specifically included motive as part of the elements of an offence, the required mens rea of aiding any person to commit an offense concerns the intent to assist in the commission of the offence, and that intent has little or nothing to do with the motive for providing the assistance.

For the purposes of paragraph 37(1) ( b ), the required mens rea was established in the cases herein when the Board had reasonable grounds to believe that the respondents in each of these appeals knew that the smuggled persons did not have the required documents but nevertheless agreed to organize, induce, aid or abet those persons entry into Canada or into a concerned foreign jurisdiction. The motive for doing so, whether ideological, financial, or material, has no bearing in this analysis. The findings of the Federal Court were sufficient in each case to establish the mens rea requirement of paragraph 37(1) (

b) irrespective of the motive for which each respondent acted. The failure to complete a notice of constitutional question before the Board was not fatal in the circumstances of these appeals. It is a general principle that this Court will not entertain Charter arguments that are not supported by a proper evidentiary foundation. However, the purpose of this principle is to avoid prejudice to the opposing party who could have adduced evidence concerning the arguments. Where no prejudice can be established, there is no reason why the constitutional arguments cannot be dealt with. .

In the present case, the appellant failed to identify which facts were missing from the records of these appeals that would prejudice him with respect to the constitutional arguments raised by the respondents. The inadmissibility provision of paragraph 37(1) (

b) of the IRPA must be interpreted with regard to its legislative purpose. That purpose is to refuse admissibility to Canada for foreign nationals who engage in people smuggling within the context of a transnational crime. Paragraph 37(1) (

b) cannot contemplate close family members who can avail themselves of the Convention and who mutually assist

themselves to enter Canada without proper documentation. It was not the intention of Parliament to capture such family members underparagraph 37(1)(b). As a result, the constitutional arguments raised by the respondents were not considered with respect to that issue. An inadmissibility finding under paragraph 37(1)(

b) does not in itself engage

section 7 of the Charter, though that provision couldeventually be engaged should the appellant Minister exercise his discretion in a manner that leads to the deportation to torture of theconcerned foreign national. It is only at a stage in the process subsequent to the inadmissibility finding, i.e. the assessment of risks, thatsection 7 of the Charter may be engaged. STATUTES AND REGULATIONS CITED Aliens and Nationality, 8 U.S.C. § 1324(a)(2)(A). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 6, 7. Criminal Code, R.S.C., 1985, c. C-46, s. 21(1). Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 57. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(f),(2)(b),(3)(f), 11(1), 25(1), 25.1(1), 25.2(1), 33, 34, 35, 36, 37(1),(2),38, 39, 40, 41, 42, 42.1, 44(1),(2), 45(d), 74(d), 97(1), 99(1), 100(2)(a),(b), 101(1)(f), 103(1)(a), 112(1),(3)(a), 113(d), 114(1)(b),115(1),(2),(3), 117, 133. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 229(1)(e).

Immigration Division Rules, SOR/2002-229, r. 47. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, s. 41(1). TREATIES AND OTHER INSTRUMENTS CITED Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against TransnationalOrganized Crime, 15 November 2000, 2241 U.N.T.S. 507, Art. 2, 3 “Smuggling of migrants”, 4, 5, 6. United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 U.N.T.S. 209, Art. 34. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 31, 33.

CASES CITED followed: B010 v. Canada (Citizenship and Immigration), 2013 FCA 87, 359 D.L.R. (4th) 730, leave to appeal to S.C.C. refused, [2013] 3 S.C.R.vi. applied: Jekula v. Canada (Minister of Citizenship and Immigration), (FC), [1999] 1 F.C. 266 (T.D.), affd (2000), 266 N.R.355 (F.C.A.). considered: B072 v. Canada (Citizenship and Immigration), 2012 FC 899, 13 Imm. L.R. (4th) 281; R. v. Appulonappa, 2013 BCSC 31, 358 D.L.R.(4th) 666; R. v. Alzehrani, 237 C.C.C. (3d) 471 (Ont. Sup. Ct.); Little Red River Cree Nation #447 v. Laboucan,2010 FCA 253; Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Berrahma v. Minister ofEmployment and Immigration (1991), 132 N.R. 202 (F.C.A.), leave to appeal to S.C.C. refused [1991] 3 S.C.R. vi; R. v. Latimer, 2001SCC 1, [2001] 1 S.C.R. 3; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125; Angle v. M.N.R.,(SCC), [1975] 2 S.C.R. 248. referred to: B010 v. Canada (Citizenship and Immigration), 2012 FC 569; S. C. v. Canada (Public Safety and Emergency Preparedness), 2013 FC491; Chiarelli v.

Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289;Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005SCC 51, [2005] 2 S.C.R. 539; Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149; Minister of Employment and (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; Bell ExpressVu Limited Partnership v.

Rex,2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Hibbert, (SCC), [1995] 2S.C.R. 973; R. v. Weir, 1999 ABCA 275, 250 A.R. 73; Bekker v. Canada, 2004 FCA 186, [2004] 3 C.T.C. 183; Somodi v. Canada(Minister of Citizenship and Immigration), 2009 FCA 268, 393 N.R. 395; Athey v. Leonati, (SCC), [1996] 3 S.C.R.458, (1996), 140 D.L.R. (4th) 235; Reference re Marine Transportation Security Regulations (CA), 2009 FCA 234, 202 C.R.R. (2d) 156;Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031; Rudolph v.

Canada (Minister of Employment andImmigration), (FCA), [1992] 2 F.C. 653 (C.A.); Nguyen v. Canada (Minister of Employment and Immigration), 1993

2926 (FCA), [1993] 1 F.C. 696 (C.A.); Sandhu v. Canada (Minister of Citizenship and Immigration) (2000), 258 N.R. 100(F.C.A.); Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487; Morgentaler v. The Queen,(SCC), [1976] 1 S.C.R. 616; Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232; Yamani v. Canada(Minister of Citizenship and Immigration), 2003 FCA 482; Erdos v. Canada (Minister of Citizenship and Immigration), 2005 FCA 419,345 N.R. 11; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.

AUTHORS CITED Goodwin-Gill, Guy S. “Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention, andProtection” in Erika Feller, Volker Türk and Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s GlobalConsultations on International Protection. Cambridge: Cambridge University Press, 2003, online:<http://www.unhcr.org/419b79970.pdf>.Hathaway, James C. The Rights of Refugees Under International Law. Cambridge: CambridgeUniversity Press, 2005. Mewett, Alan W. and M. Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.

APPEALS from decisions of the Federal Court (2012 FC 1282, [2014] 2 F.C.R. 128; 2012 FC 1417, 45 Admin. L.R. (5th) 267; 2012 FC1466, [2014] 2 F.C.R. 146) allowing applications for judicial review of decisions by the Immigration and Refugee Board, ImmigrationDivision (Canada (Public Safety and Emergency Preparedness) v. X, Hernandez v. Canada (Public Safety andEmergency Preparedness), determining that the respondents were inadmissible pursuant to paragraph 37(1)(

b) ofthe Immigration and Refugee Protection Act for engaging in people smuggling. Appeals allowed. APPEARANCES David Cranton for appellant in A-29-13. Gregory G. George and Norah Dorcine for appellant in A-498-12. Kareena R. Wilding for appellant in A-563-12. Krassina Kostadinov for respondents in A-29-13. Raoul Boulakia for respondent in A-498-12. Ronald Poulton for respondent in A-563-12. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Waldman & Associates, Toronto, for respondents in A-29-13. Raoul Boulakia, Toronto, for respondent in A-498-12.

Poulton Law Office, Toronto, for respondent in A-563-12. The following are the reasons for judgment rendered in English by [1] Mainville J.A.: These are three appeals by the Minister of Public Safety and Emergency Preparedness which were heardconcurrently. These reasons apply to all three appeals, and a copy thereof shall be filed in each appeal docket. [2] All three appeals raise substantially the same issues relating to findings of inadmissibility pursuant to paragraph 37(1)(

b) of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Under that paragraph, a foreign national is inadmissible to Canada for“engaging, in the context of transnational crime, in activities such as people smuggling”. [3] The Minister, relying for this purpose on subsection 117(1) of the IRPA, submits that paragraph 37(1)(

b) does not require that theforeign national be engaged in people smuggling for a financial or other material benefit in order to be declared inadmissible to Canada. [4] At the time periods pertinent to all three appeals, subsection 117(1) provided that “[n]o 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 bythis Act.” It is useful to note that subsection 117(1) has since been amended and replaced through subsection 41(1) of ProtectingCanada’s Immigration System Act, S.C. 2012, c. 17.

It now sets out that “[n]o person shall organize, induce, aid or abet the coming intoCanada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contraventionof this Act.” These reasons address the subsection as it read prior to that amendment. [5] The respondents in all three appeals, relying on paragraph 3(1)(

f) of the IRPA, on paragraph (

a) of

Article 3 of the ProtocolAgainst the Smuggling of Migrants by Land, Sea and Air [supplemented the United Nations Convention against TransnationalOrganized Crime, 15 November 2000, 2241 U.N.T.S. 507] (Smuggling of Migrants Protocol), and on

Article 31 of the United NationsConvention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (Refugee Convention), submit that “peoplesmuggling” requires that the perpetrator carry out the smuggling for a financial or other material benefit in order to be captured by theinadmissibility provision set out in paragraph 37(1)(

b) of the IRPA. [6] The respondents add that if they are wrong in their

interpretation of the scope of “people smuggling” under paragraph 37(1)(b),then the effect of that paragraph is to deny a determination of their Refugee Convention refugee claims by the Refugee Division of theImmigration and Refugee Board of Canada. The respondents submit that such a denial violates their rights under

section 7 of the

Canadian Charter of Rights and Freedoms, being

Part 1 of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44] (Charter). [7] The Immigration and Refugee Board of Canada—Immigration Division (Board) has relied on subsection 117(1) of the IRPA tointerpret paragraph 37(1)(b). It has consequently consistently found that a foreign national may be excluded under paragraph 37(1)(

b) ofthe IRPA even if he or she did not expect or receive a financial or other material benefit when engaging in people smuggling. However,in various judicial review proceedings, the Federal Court has been sharply divided on the issue, with the judges of that Court expressingdifferent and irreconcilable views on a number of related matters, such as the applicable standard of review: see notably B010 v. Canada(Citizenship and Immigration), 2012 FC 569; B072 v. Canada (Citizenship and Immigration), 2012 FC 899, 13 Imm. L.R. (4th) 281;B306 v.

Canada (Public Safety and Emergency Preparedness), 2012 FC 1282, [2014] 2 F.C.R. 128; Hernandez v. Canada (Public Safetyand Emergency Preparedness), 2012 FC 1417, 45 Admin. L.R. (5th) 267; J.P. v. Canada (Public Safety and Emergency Preparedness),2012 FC 1466, [2014] 2 F.C.R. 146; S. C. v. Canada (Public Safety and Emergency Preparedness), 2013 FC 491. [8] A panel of our Court has recently dealt with this controversy in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87,359 D.L.R. (4th) 730 (B010 Appeal Decision).

The panel in the B010 Appeal Decision found that it was reasonable for the Board todefine people smuggling under paragraph 37(1)(

b) of the IRPA by relying upon subsection 117(1). The Supreme Court of Canadadismissed the leave to appeal in the B010 Appeal Decision on October 3, 2013: [2013] 3 S.C.R. vi. [9] The B010 Appeal Decision did not address the constitutional issues raised by the respondents in all three appeals which arebefore this Court, including the effect of the recent Supreme Court of British Columbia decision in R. v. Appulonappa, 2013 BCSC 31,358 D.L.R. (4th) 666 (Appulonappa), which declared

section 117 of the IRPA inconsistent with the provisions of the Constitution andtherefore of no force or effect. That decision is currently under appeal before the British Columbia Court of Appeal[*]. The declarationof constitutional inapplicability made in Appulonappa has been suspended pending the outcome of that appeal: unreported order of theSupreme Court of British Columbia dated June 10, 2013 in SCBC file No. 25796. [10] In two of the appeals before us, the respondents urge this panel not to follow the B010 Appeal Decision.

The respondents in allappeals add that even if this panel finds that it is bound by that decision, numerous questions nevertheless remain unanswered and shouldbe dealt with in the appeals before us. These questions may be formulated as follows: (

a) Does the

interpretation of paragraph 37(1)(

b) of the IRPA require that the foreign national have the mens rea to aid and abet in peoplesmuggling in order to be captured by the inadmissibility provision? And if so, what is that mens rea requirement? (

b) If the definition of people smuggling under paragraph 37(1)(

b) of the IRPA is to be determined with reference to subsection 117(1),is that definition constitutionally overbroad? (

c) Does paragraph 37(1)(

b) of the IRPA engage

section 7 of the Charter by precluding a refugee determination hearing for the foreignnational captured by this inadmissibility provision? (

d) In the case of the respondent B306, did the Board err (

i) by refusing to consider that his assistance to the people smuggling operationwas the result of necessity or duress, or (ii) by failing to consider the findings of another Board member reached with respect to hisrelease from detention? THE LEGISLATIVE FRAMEWORK [11] Pertinent provisions of the IRPA, of the United Nations Convention against Transnational Organized Crime [15 November2000, 2225 U.N.T.S. 209] (Transnational Organized Crime Convention), of the Smuggling of Migrants Protocol and of the RefugeeConvention are reproduced in a

schedule to these reasons. [12] The general framework of these instruments, as they pertain to the issues raised in these appeals, may be briefly set out asfollows. [13] The most fundamental principle of immigration law is that foreign nationals have no unqualified right to enter into or to remain inCanada: Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, at page 733;Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v.

Canada (Minister of Citizenship and Immigration), 2005SCC 51, [2005] 2 S.C.R. 539, at paragraph 46. [14] Parliament may thus regulate and control the entry of foreigners into Canada, and has done so principally through the IRPA. Aforeign national seeking to enter and remain in Canada is therefore required to apply from abroad to a Canadian officer for a visa or forany other document required by the regulations to ascertain whether he is not inadmissible and meets the requirements of the legislation:IRPA, subsection 11(1). [15] Certain individuals are inadmissible to Canada under the terms of the IRPA.

These include, but are not limited to, thoseindividuals for which there are serious grounds to believe that they: (

i) are a threat to security: IRPA,

section 34; (ii) have committed crimes against humanity, war crimes or other international rights violations: IRPA,

section 35; (iii) have committed a serious crime in Canada or abroad: IRPA,

section 36; (iv) have engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting inconcert: IRPA, paragraph 37(1)(a); (

v) have engaged, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money

laundering: <I>IRPA</I> para. 37(1)( b ); (vi) have a health condition that is likely to be a danger to public health or safety, or which might reasonably be expected to cause excessive demand on health or social services: IRPA,

section 38 ; (vii) are unable or unwilling to support themselves or their dependents and for which no adequate arrangements for care and support have been made: IRPA,

section 39 ; (viii) have misrepresented or withheld material facts or failed to comply with the IRPA : IRPA,

section 40 and

section 41 ; or (ix) are accompanying a family member that is inadmissible: IRPA,

section 42 . [ 16 ] Notwithstanding these provisions, the responsible Minister may, in certain circumstances, waive the inadmissibility and grant permanent resident status to a foreign national if he is of the opinion that it is justified by humanitarian and compassionate considerations or by public policy considerations: IRPA, subsections 25(1) , 25.1(1) and 25.2(1) . [ 17 ] Canada is also a signatory to the Refugee Convention. That instrument was developed as a response by the international community to the horrors of the Second World War and the atrocities committed during that conflict. Articles 31 and 33 of the Refugee Convention are relevant for the purposes of these appeals: (

a) Article 31 provides that no penalties are to be imposed 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.” (

b) Article 33 sets out the principle of non-refoulement . It specifies that a refugee is not to be expelled or returned “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.” However, the benefit of non-refoulement may not be claimed “by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” [ 18 ] Parliament has implemented

Article 31 through the provisions of the IRPA . As a result, a distinction has been made between foreign nationals who seek to enter and remain in Canada in the normal course of the application of the IRPA and those foreign nationals claiming Refugee Convention protection in Canada. While a foreign national who wishes to enter and remain in Canada must normally apply from abroad for the appropriate documents, in the case of a foreign national claiming Refugee Convention protection, the protection claim may be made in Canada: IRPA, subsection 99(1) .

In the event the foreign national entered Canada without proper documents or with forged documents, he may not be charged with related offences while his Refugee Convention refugee claim is still pending or if refugee protection is eventually conferred to him: IRPA,

section 133 . [ 19 ] Parliament has also implemented

Article 33, and added additional protections for refugees, through subsection 115(1) of the IRPA .

That subsection provides that a Refugee Convention refugee may not be removed from Canada to a country where he or she would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual punishment. [ 20 ] That being said, the Refugee Convention provisions of the IRPA do not extend to certain categories of foreign nationals who assert a refugee claim in Canada and who are contemplated by certain (but not all) of the inadmissibility provisions described above.

Specifically, the determination of a foreign national’s refugee claim is suspended where the foreign national is deemed to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality, or organized criminality (which includes engaging in people smuggling in the context of transnational crime): IRPA, paragraphs 100(2) (

a) and 103(1) ( a ).

If the inadmissibility of the foreign national is determined by the Immigration Division of the Board on one or another of these grounds, then the foreign national is ineligible to have his Refugee Convention refugee claim determined by the Refugee Division of the Board: IRPA, paragraph 101(1) ( f ). [ 21 ] Save exception, the inadmissibility determination does not necessarily entail that the concerned foreign national will be removed from Canada to a jurisdiction where he would personally be subject to a danger, believed on substantial grounds to exist, of torture or to a risk to his life or of cruel and unusual treatment or punishment, which I shall refer herein as “deportation to torture”.

Indeed, in circumstances of a potential deportation to torture, the inadmissible foreign national may still seek the protection of Canada not as a Convention Refugee, but rather as a person in need of protection: IRPA, subsection 97(1) , paragraphs 112(3) (

a) and 114(1) ( b ). However, the mechanisms set out under the IRPA to extend such protection to inadmissible foreign nationals are somewhat discretionary and vary in accordance with the grounds under which the inadmissibility was determined. [ 22 ] In the case of a foreign national found inadmissible to Canada on grounds of organized criminality which, as already noted, includes engaging in people smuggling in the context of transnational crime, the responsible Minister may waive the inadmissibility if he is satisfied that this would not be contrary to the national interest: IRPA,

section 42.1 (formerly paragraph 37(2) ( a )). [ 23 ] A foreign national found inadmissible on such grounds may also apply for a pre-removal risk assessment: IRPA, paragraph 112(1) . However, in such circumstances the risk assessment will be restricted to consideration of the risk of deportation to torture, and it shall also include consideration of whether the application should be refused because of the nature and severity of the acts committed by the foreign national or because of the danger he poses to the security of Canada: IRPA, subparagraph 113( d )(ii).

If protection is extended, it does not confer refugee protection, but simply stays the removal order with respect to the country or place in respect of which the concerned foreign national was determined to be in need of protection: IRPA, paragraphs 112(3) (

a) and 114(1) ( b ). In any event, protection may be denied if, in the opinion of the Minister, the foreign national should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of the danger to the security of Canada: IRPA, paragraph 115(2) ( b ). [ 24 ] The Smuggling of Migrants Protocol supplements the Transnational Organized Crime Convention which defines a transnational

offence, and it must be interpreted together with that Convention. The purpose of the Smuggling of Migrants Protocol, as set out inArticle 2, is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States to that end, whileprotecting the rights of smuggled migrants. It requires under

Article 6 that each State Party adopt legislative and other measures toestablish as a criminal offence the smuggling of migrants, which is described as

an act “committed intentionally and in order to obtain,directly or indirectly, a financial or other material benefit”.

Article 5 however provides an exemption from prosecution for the migrantswho have been the object of the smuggling operations. [25]

Section 4 to

Article 6 of the Smuggling of Migrants Protocol however states that nothing in that Protocol “shall prevent a StateParty from taking measures against a person whose conduct constitutes an offence under its domestic law.”

Section 3 to

Article 34 of theTransnational Organized Crime Convention also provides that “[e]ach State Party may adopt more strict or severe measures than thoseprovided for by this Convention for preventing and combating transnational organized crime.” THE DECISIONS BELOW The cases of J.P. and G.J. [26] In a blatant people smuggling operation, the MV Sun Sea arrived in Canadian waters after a long and secretive voyage fromThailand, carrying aboard 492 Sri Lankan foreign nationals seeking to enter Canada to make refuge protection claims.

Among them wereJ.P. and G.J. [27] After interviews and investigation, Canadian Border Services Agency officials concluded that J.P. had acted as one of the crewmembers of the MV Sun Sea and was thus engaging in people smuggling. As noted above, foreign nationals engaging in peoplesmuggling are inadmissible to Canada pursuant to paragraph 37(1)(

b) of the IRPA. Border Services officials also concluded that J.P.’sspouse, G.J., was inadmissible pursuant to

section 42 of the IRPA as an accompanying family member of an inadmissible person. Areport was consequently prepared pursuant to subsection 44(1) of the IRPA, thus suspending the determination of the refugee claimsmade by J.P. and G.J.

The Minister was of the opinion that the report was well-founded, and therefore referred the matter to the Boardfor an admissibility hearing pursuant to subsection 44(2) of the IRPA. [28] After holding a hearing and weighing the evidence, the Board concluded that J.P. had knowingly aided the coming into Canadaof persons who were not in possession of a visa, passport or other document required by the IRPA, and thus engaged, in the context of atransnational crime, in people smuggling. The Board thus found J.P. inadmissible pursuant to paragraph 37(1)(b).

It consequently alsofound G.J. inadmissible as an accompanying family member of an inadmissible person. The Board issued a deportation order againstboth of them pursuant to paragraph 45(

d) of the IRPA and paragraph 229(1)(

e) of the Immigration and Refugee Protection Regulations,SOR/2002-227. [29] The Board found as a matter of fact that J.P. and his spouse G.J. first left Sri Lanka for Thailand using their personal passports.They spent some time in Thailand until they received word that they could board the ship which would bring them to Canada. They paid$30 000 each for the voyage to Canada.

They did not board the ship at the public docks, but were tendered to somewhere in the oceanwhere they could not be seen, and they boarded separately one or two days apart. [30] Sometime after they boarded, the MV Sun Sea’s Thai crew left the ship. This was when J.P. was recruited to help operate thevessel. He originally declined, but shortly thereafter agreed to help. The Board found that his duties included chart plotting, reading GPS[Global Positioning System] and radar and controlling the ship’s wheel.

It also found that J.P. was an assistant navigator throughout mostof the voyage. [31] J.P. and G.J. submitted to the Board three grounds under which they should not be found inadmissible to Canada: -First, because all the individuals aboard the MV Sun Sea had made refugee claims at a port of entry in Canada, there was no connectionwith people smuggling since no clandestine behaviour was at issue. -Second, the concept of people smuggling set out in paragraph 37(1)(

b) of the IRPA must be consistent with the international instrumentsto which Canada is a party, including the Smuggling of Migrants Protocol which defines the “[s]muggling of migrants” [Art. 3] withreference to a “financial or other material benefit”. -Third, paragraph 37(1)(

b) is constitutionally overbroad and it violates the principles of fundamental justice and in the process restrictslife, liberty or security of the person more than is necessary to accomplish its purpose. [32] On the first submission, the Board concluded that secret or clandestine behaviour was not necessary to find that someone hadengaged in people smuggling.

Moreover, the Board did indeed find that even if clandestine activities were required, such activitiesoccurred, in this case, taking into account all of the circumstances, including the stealthy manner in which the MV Sun Sea navigatedand the secrecy surrounding the voyage.

The Board concluded that “although the plan may have been to present themselves to theCanadian authorities, they [the passengers of the MV Sun Sea] were circumventing the border requirements and more than likely chosethis route because they would not have made it to the Canadian border if they tried to board an airplane where there would be some pre-boarding screening of documents (and in these cases – missing documents)”: Board’s decision [Canada (Public Safety and EmergencyPreparedness) v.

X, (I.R.B.)], at paragraph 36. [33] With respect to the second submission, the Board found as a matter of law that people smuggling pursuant to paragraph 37(1)(b)of the IRPA does not require the element of “financial or other material benefit” referred to in the Smuggling of Migrants Protocol. TheBoard rather based its finding with respect to the scope of people smuggling under paragraph 37(1)(

b) with reference to subsection117(1) of the IRPA as it then read, which defined the offence of human smuggling more broadly than the Smuggling of MigrantsProtocol and without any reference to a financial or material benefit. The Board consequently adopted the elements identified by theOntario Court of Justice in R. v. Alzehrani, 237 C.C.C. (3d) 471 (Alzehrani) with respect to human smuggling undersubsection 117(1), as it then read, to identify people smuggling under paragraph 37(1)(b).

[ 34 ] The Board refused to consider the third submission raising constitutional arguments on the ground that the formalities of rule 47 of the Immigration Division Rules , SOR/2002-229, with respect to a notice of constitutional question had not been properly followed. [ 35 ] J.P. and G.J. were granted leave to submit an application for judicial review of the Board’s decision, and in a judgment dated December 12, 2012 cited as 2012 FC 1466 , Mosley J. allowed their application. [ 36 ] Two issues were raised in the judicial review:

(1) Did the Board err in law by declining to consider the third submission on the ground that proper notice had not been given? And (2) did it err in law by failing to interpret “people smuggling” in a manner consistent with the Smuggling of Migrants Protocol? [ 37 ] Mosley J. applied a standard of reasonableness to the first issue. He found that in their submissions before the Board, J.P. and G.J. were not seeking to strike down paragraph 37(1) (

b) of the IRPA on constitutional grounds, but rather seeking that this provision be interpreted in a manner consistent with the Constitution and international instruments. He thus concluded that the Board misinterpreted the thrust of the submissions and erred in declining to consider the Charter arguments notwithstanding the lack of notice. He found that this was an unreasonable decision in the sense that it was not justified and was outside the range of appropriate outcomes. [ 38 ] With respect to the second issue, Mosley J. recognized that a controversy existed within the Federal Court as to the applicable standard to review the Board’s

interpretation of paragraph 37(1) (

b) of the IRPA , and that a question had been previously certified on this issue by another judge of the Federal Court. He nevertheless weighed into the controversy by opining (at paragraph 13 of his reasons) that the

interpretation of paragraph 37(1)(

b) was “a question of law which is beyond the adjudicator’s expertise and a matter of central importance to the legal system requiring the correctness standard.” [ 39 ] He then reviewed the party’s submissions and the contradictory Federal Court decisions respecting the

interpretation of paragraph 37(1)( b ). He concluded (at paragraph 42 of his reasons) that Canada’s international commitments to both penalize smugglers and to protect those who are being smuggled “may be blurred by an overly expansive

interpretation of paragraph 37(1)(

b) which encompasses those who did not plan or agree to carry out the scheme and have no prospect of a reward other than a modest improvement in their living conditions enroute.” He added that it was consequently improper for the Board to interpret paragraph 37(1) (

b) by strict reliance on the factual elements of the offence set out in subsection 117(1) as it then read. [ 40 ] He then certified the following two questions pursuant to paragraph 74 (

d) of the IRPA :

(1) For the purposes of paragraph 37(1) (

b) of the IRPA is it appropriate to define the term “people smuggling” by relying on

section 117 of the same statute rather than a definition contained in an international instrument to which Canada is a signatory?

(2) Is the

interpretation of paragraph 37(1) (

b) of the IRPA , and in particular of the phrase “people smuggling” therein, reviewable on the standard of correctness or reasonableness? The case of B306 [ 41 ] B306 was also aboard the MV Sun Sea and he also submitted a refugee claim when that ship arrived in Canada. A report pursuant to subsection 44(1) of the IRPA was also prepared in his case, thus suspending the determination of his refugee claim.

The Minister was of the opinion that the report was well-founded, and referred the matter to the Board for an admissibility hearing pursuant to subsection 44(2) of the IRPA. [ 42 ] The Board found that B306 had acted as a cook for the crew of the MV Sun Sea and also as a lookout to avoid the ship being detected.

It notably found that B306’s watch-keeping duties helped to prevent the potential interception of the ship as it proceeded to Canada, and that his work aboard the ship meaningfully supported the people smuggling operation. [ 43 ] As was done in the case of J.P., the Board defined the scope of “people smuggling” under paragraph 37(1) (

b) of the IRPA with reference to paragraph 117(1) as it then read. As a result, the Board found that B306 had aided and abetted the coming into Canada of the foreign nationals aboard the MV Sun Sea . [ 44 ] The Board also rejected B306’s submissions raising necessity and duress on its findings that he did not face any sort of impending peril nor was he subject to coercion. [ 45 ] B306 had also served a notice of constitutional question on the Board alleging that it was contrary to

section 7 of the Charter for a refugee claimant to be barred from having a refugee protection hearing based on an inadmissibility finding under paragraph 37(1) (

b) of the IRPA . The Board rejected that submission on the ground that although B306 will likely be found ineligible to make a refugee claim, this did not mean that he would be returned to Sri Lanka since (

a) he “has a statutory right to apply for the Pre-Removal Risk Assessment and he cannot be removed from Canada until that process is completed” and (

b) he “may also make an application to the Minister under 37(2)( a ) [now s. 42.1 ] of the Act so that an inadmissibility finding under 37(1)(

b) would not apply to him”: Board’s decision, at paragraph 41. [ 46 ] The Board consequently found B306 inadmissible pursuant to paragraph 37(1)(

b) of the IRPA and issued a deportation order against him. [ 47 ] B306 was also granted leave to submit an application for judicial review of the Board’s decision, and in a judgment dated November 9, 2012 cited as 2012 FC 1282 , Gagné J. allowed his application. [ 48 ] With respect to the applicable standard of review, Gagné J. found that she was bound by the prior decision of Noël J. in B010 v. Canada (Citizenship and Immigration) , 2012 FC 569 [cited above] who had applied a reasonableness standard in reviewing the Board’s

interpretation of paragraph 37(1)( b ). Applying that standard to the case of B306, she found that the Board had reached an unreasonable conclusion.

[49] Gagné J. criticized the Board’s findings of fact as “not informed by the context of complete dependency, vulnerability and powerimbalance in which the applicant found himself during the three-month journey to Canada”: reasons, at paragraph 34. She thensubstituted her own assessment of the evidence to that of the Board. This allowed her to conclude as follows, at paragraph 37 of herreasons: However, in order to establish mens rea the [Board] had to turn its mind to the reasons for which the applicant sought to help thesmugglers and it erred in law by failing to do so.

In other words, the applicant aided the smugglers in exchange for food; he did not aidthe coming into Canada of “one or more persons who are not in possession of a visa, passport or other document required by [the] Act.”Nor did he induce or abet such actions. A distinction should be made between the offence of people smuggling contemplated in section117 of the IRPA and the offence of conspiring with, being accomplice to, or being an accessory after the fact of the smugglers ascontemplated in

section 131 of the IRPA (reference is made to its French version). Paragraph 37(1)(

b) refers to people smuggling, it doesnot refer to complicity or conspiracy. [50] She then proceeded to certify the following two questions: (

a) For the purposes of paragraph 37(1)(

b) of the IRPA, is it appropriate to define the term “people smuggling” by relying on

section 117of the same statute rather than on a definition contained in an international instrument to which Canada is a signatory? (

b) For the application of paragraph 37(1)(

b) and

section 117 of the IRPA, is there a distinction to be made between aiding and abettingthe coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by the IRPA, asopposed to aiding and abetting the smugglers while within a vessel and in the course of being smuggled? In other words, in whatcircumstances would the definition of people smuggling in paragraph 37(1)(

b) of the IRPA extend to the offences referred to in section131 of the IRPA? The case of Mr. Hernandez [51] Mr. Hernandez is a Cuban national who had left Cuba for the United States of America (U.S.). While in the U.S., he and twoother individuals purchased a 34-foot boat and left Florida for Cuba purportedly to pick up family members. When they arrived in Cuba,the family members of his two friends were present, as well as some of his cousins; however, none of his close family members werethere. [52] In all, 48 Cuban nationals boarded the small vessel and made their way to the U.S.

They were apprehended by the U.S. CoastGuard approximately 80 to 100 km from the U.S. coast. Though Mr. Hernandez was a principal organizer of the smuggling operation, hedid not participate in it for financial gain. [53] As a result of these smuggling activities, Mr. Hernandez was convicted in the U.S. of alien smuggling pursuant to [Aliens andNationality] Title 8 U.S.C. § 1324(a)(2)(A). Because of this conviction, he was subject to deportation from the U.S. He came to Canada,where he made a refugee claim. [54] Two reports were prepared under subsection 44(1) of the IRPA. In the first report, Mr.

Hernandez was said to be inadmissible toCanada on grounds of serious criminality under paragraph 36(1)(

b) of the IRPA for having been convicted of an offence outside Canadathat, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term of imprisonment ofat least 10 years. The officer who prepared the report equated Mr. Hernandez’s alien smuggling conviction in the United States to theoffence of human smuggling under

section 117 of the IRPA as it then read. [55] The second report under subsection 44(1) concluded that Mr. Hernandez was inadmissible pursuant to paragraph 37(1)(

b) of theIRPA for engaging in people smuggling given the facts for which he had been convicted in the United States for alien smuggling. [56] Both reports were referred by the Minister to the Board. [57] With respect to the inadmissibility under paragraph 36(1)(b), the Board found, based on the evidence before it, “that the offenceof alien smuggling pursuant to Title 8 of the United States Code

section 1324(a)(2)(

A) is equal in its elements to the Canadian offence oforganizing entry into Canada pursuant to subsection 117(1) of IRPA and would constitute an indictable offence punishable underparagraph 117(2)(a)(

i) of IRPA to a maximum term of not more than 10 years which is inclusive of the 10 years that are required for a [58] The Board accordingly found that there were reasonable grounds to believe that Mr. Hernandez was subject to paragraph 36(1)(b)of the IRPA and consequently inadmissible on grounds of serious criminality.

It therefore made a deportation order against him on thosegrounds. [59] With respect to inadmissibility under paragraph 37(1)(b), the Board followed its unvarying jurisprudence to the effect that section117 of the IRPA, as it then read, provided an appropriate interpretative guide for defining people smuggling and therefore “does notrequire the element of ‘financial or other material benefit’ which is found in the Protocol’s definition of smuggling of migrants”: Board’sdecision, at paragraph 39. [60] It also found, based on the definition provided in subsection 117(1), as it then read, that “people smuggling” for the purposes ofparagraph 37(1)(

b) includes the elements of knowingly organizing, inducing, aiding or abetting the coming into a country of one or morepersons who are not in possession of a visa, passport or other document required by that country. It finally noted that the elements whichmust be proved to sustain a claim of “people smuggling” are the same as those set out in Alzehrani for the offence of “humansmuggling” under subsection 117(1) as it then read, albeit on a different standard of proof: Board’s decision, at paragraphs 40–42. [61] Reviewing the facts in light of these findings of law, the Board concluded that there were reasonable grounds to believe Mr.Hernandez was inadmissible under paragraph 37(1)(

b) even though there was no evidence that he had engaged in people smuggling for

financial gain or material benefit. Consequently, it also made a deportation order against him on that second ground. [62] Mr. Hernandez was granted leave to submit an application for judicial review of the Board’s decision, and in a judgment datedDecember 12, 2012 cited as 2012 FC 1417, Zinn J. allowed his application. [63] Mr. Hernandez did not challenge the Board’s inadmissibility finding under paragraph 36(1)(

b) of the IRPA in judicial review. Hisapplication therefore only concerned the Board’s finding of inadmissibility under paragraph 37(1)(

b) relating to people smuggling. [64] Zinn J. recognized that there were conflicting findings within the Federal Court with respect to the applicable standard of reviewof a Board’s decision dealing with paragraph 37(1)(

b) of the IRPA. He decided to carry out a full standard of review analysis. Thatanalysis led him to conclude that the correctness standard applied since, in his view, the

interpretation of paragraph 37(1)(

b) involvedmatters of criminal law and of international law: reasons, at paragraph 28. He also opined that the question of who is or is not admissibleto Canada was a question of central importance to the legal system: reasons, at paragraph 31. [65] Zinn J. recognized that the crime of human smuggling set out in subsection 117(1) of the IRPA did not require a profit motive.However, applying a correctness standard of review to the

interpretation of paragraph 37(1)(b), he found that the paragraph should not beinterpreted in light of subsection 117(1), as it then read. In his view, “Canada’s international commitments to criminalize the smugglingof migrants … has no bearing on when it must permit persons to seek Refugee Convention protection or when exceptions to the principleof non-refoulement will be met”: reasons, at paragraph 49. [66] He found that, properly construed, the notion of “people smuggling” under paragraph 37(1)(

b) includes a profit element. Hereached that conclusion on three grounds: (1) “Parliament used different terms in paragraph 37(1)(

b) and

section 117—people smugglingversus human smuggling”: reasons, at paragraph 59; (2) under the associated words rule of statutory

interpretation (noscitur a sociis)people smuggling in paragraph 37(1)(

a) should be interpreted with the terms “trafficking in persons” and “money laundering” set out inthat paragraph, both of which include a profit motive: reasons, at paragraphs 70–71; and (3) the reference to “in the context oftransnational crime” in paragraph 37(1)(

b) should be understood as a reference to international instruments: reasons, at paragraph 72. [67] Zinn J. then certified the following two questions: a. Is the

interpretation of paragraph 37(1)(

b) of the [IRPA] … and in particular the phrase “people smuggling” therein, by theImmigration and Refugee Protection Board, Immigration Division, reviewable on the standard of correctness or reasonableness? b. Does the phrase “people smuggling” in paragraph 37(1)(

b) of the [IRPA]… require that it be done by the smuggler in order to obtain,“directly or indirectly, a financial or other material benefit” as is required in the Protocol Against Smuggling of Migrants by Land, Seaand Air, Supplementing the United Nations Convention against Transnational Organized Crime? ANALYSIS The B010 Appeal Decision [68] The B010 Appeal Decision, released on March 22, 2013, dealt with many of the issues raised by these appeals. [69] B010 and B072 were also aboard the MV Sun Sea, and both submitted refugee claims upon their arrival in Canada.

After theThai crew of the MV Sun Sea left, B010 became a crew member responsible for checking engine temperature, water and oil levels. B072signed the incorporating documents for the corporation that bought the MV Sun Sea, cashed checks for the smuggling operation, andassisted in loading food and equipment on the ship. The Board found both B010 and B072 inadmissible to Canada pursuant to paragraph37(1)(

b) of the IRPA. In the respective judicial review proceedings challenging these findings, Noël J. and Hughes J. of the FederalCourt both refused to set aside these decisions of the Board. Both certified the following question: For the purposes of paragraph 37(1)(

b) of the IRPA, is it appropriate to define the term “people smuggling” by relying on

section 117 ofthe same statute rather than a definition contained in an international instrument to which Canada is a signatory? [70] In thoughtful and well-articulated reasons, Dawson J.A. dismissed both appeals concerning B010 and B072 respectively. Sheapplied a standard of reasonableness to the Board’s

interpretation of paragraph 37(1)(

b) of the IRPA. She also answered the certifiedquestion as follows: Answer: Yes, it is reasonable to define inadmissibility under paragraph 37(1)(

b) by relying upon subsection 117(1) of the [IRPA],which makes it an offence to knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are notin possession of a visa, passport or other document required by the Act. To do so is not inconsistent with Canada’s internationallegal obligations.

It should be noted that the reference to subsection 117(1) in that answer is to the text of the provision as it read prior to the replacementof that subsection brought about by subsection 41(1) of Protecting Canada’s Immigration System Act. [71] The respondents in this case submit that the B010 Appeal Decision rests essentially on the standard used to review the Board’sinterpretation of paragraph 37(1)(b). The respondents consequently ask that this Court not follow the B010 Appeal Decision with respectto the standard of review on the ground that the use of the reasonableness standard is manifestly wrong.

They add that by applying acorrectness standard of review to the Board’s

interpretation of paragraph 37(1)(

b) of the IRPA, we would be bound to conclude that thenotion of “people smuggling” set out therein must conform to the Smuggling of Migrants Protocol rather than subsection 117(1). As aresult, we would also be bound to conclude that a financial or other material benefit is required in order to be found inadmissible toCanada on the ground of people smuggling. [72] This Court is normally bound by its own previous decisions: Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R.(4th) 149, at paragraphs 8–10; Minister of Employment and Immigration v. Widmont, (FCA), [1984] 2 F.C. 274

(C.A.), at pages 278–282.This principle does not however entail that this Court may never overrule its own decisions; the principle onlystands for the proposition that this Court must rarely do so and only for important and valid reasons. This Court may overturn a priordecision in the following circumstances: (

a) when the prior decision is found to be manifestly wrong because it failed to consider a relevant provision of a statute or regulation or (

b) when the prior decision has been overtaken by legislative changes or by subsequent decisions of the Supreme Court of Canada suchas to justify not following it; or (

c) when there are other serious and compelling reasons to overturn the prior decision, but in this latter case the Court must then engagein a balancing exercise between the two important values of correctness and certainty and ask itself whether it is preferable to adhere toan incorrect precedent to maintain certainty, or to correct the error: Canada v.

Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at paragraphs25 to 27. [73] In this case, I find no compelling reason not to follow the B010 Appeal Decision on any of the fundamental issues resolved bythat decision. [74] I recognize that the standard of review of decisions of the Board interpreting subsection 37(1) of the IRPA has been found in pastjurisprudence of this Court to be that of correctness: Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326,[2007] 3 F.C.R. 198, at paragraph 15.

However, as aptly noted in the B010 Appeal Decision, at paragraphs 61–70, the position of theSupreme Court of Canada with respect to the standard of review applicable to decisions of administrative tribunals interpreting their ownstatutes or statutes closely related to their functions has considerably evolved since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190.

Deference is now the rule rather than the exception where administrative tribunals are concerned. [75] I subscribe to the comments of Dawson J.A. at paragraph 72 of the B010 Appeal Decision where she notes that as “aptlyillustrated by the Supreme Court’s textual, contextual and purposive analysis in Canada (Human Rights Commission) v. Canada(Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, even when the question at issue is the

interpretation of a tribunal’s home statute,the range of possible, acceptable outcomes can be narrow.” In many circumstances, there is not much of a practical distinction betweenapplying a standard of review based on reasonableness or on correctness. [76] I am comforted in this approach by the fact that even if I were to apply a standard of correctness to the Board’s

interpretation ofparagraph 37(1)(

b) of the IRPA, I would reach the same conclusion on the meaning of that provision. [77] Indeed, I subscribe to this Court’s reasoning in the B010 Appeal Decision, at paragraphs 76–80 that nothing in the TransnationalOrganized Crime Convention or in the Smuggling of Migrants Protocol prohibits signatories from enacting legislation which makesinadmissible to Canada those who contribute to, but do not profit from, people smuggling.

Moreover, I also subscribe to the reasoning setout at paragraphs 81–91 of that decision that although the Refugee Convention places limits on the ability of a signatory State to expel arefugee lawfully in its territory, a finding of inadmissibility under the IRPA is not the equivalent of a removal under the IRPA orrefoulement under the Refugee Convention. [78] I also note that to attach a financial component to the concept of people smuggling would lead to unacceptable results.Individuals could engage in people smuggling of dangerous persons such as potential terrorists, but would not as a result be subject to aninadmissibility finding under the IRPA on the ground that they carried out the smuggling activities for ideological reasons rather than fora financial gain.

This, in my view, would be clearly contrary to Parliament’s intent in adopting paragraph 37(1)(b). [79] The Board’s decision to interpret paragraph 37(1)(

b) of the IRPA with reference to subsection 117(1) thereof, as it then read, isnot only reasonable, but in my view also the correct

interpretation of that provision. [80] First, that

interpretation is entirely consistent with the modern rule of statutory

interpretation requiring that a statutory provisionbe read as a whole with the act of which it is part of, which in this case includes the closely related subsection 117(1), as it then read:Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paragraph 10; Bell ExpressVu Limited Partnership v.Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paragraph 27. [81] Second, the Smuggling of Migrants Protocol does not restrict Canada’s ability to take measures against persons whose conductconstitutes an offence under its own laws.

As a result, the reference to “a financial or other material benefit” in that Protocol does notrestrict Canada’s ability to adopt a wider definition of people smuggling which does not refer to a financial or material benefit. [82] As a final argument, the respondents also allege that Dawson J.A. did not discuss in the B010 Appeal Decision a paper dealingwith the scope and

interpretation of

Article 31 of the Refugee Convention, and had she considered that paper, she would have reached adifferent conclusion. There is no merit to this submission. First, there is no evidence that Dawson J.A. did not consider the materialplaced before her, and I must assume that she did. Second, I have carefully considered the paper in question, by Guy S.

Goodwin-Gill,“Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalization, detention, and protection”, in Erika Feller,Volker Türk and Frances Nicholson, Refugee Protection in International Law (Toronto: Cambridge University Press, 2003); that articledoes not address in any depth the issue of migrant smuggling, and I have found it to be of marginal pertinence to the issues which werebefore the Court in the B010 Appeal decision. [83] In any event, Dawson J.A. properly relied (at paragraph 85 of the B010 Appeal Decision) on the work of James C.

Hathaway,The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005), at pages 412–413, to conclude thatArticle 31 of the Refugee Convention does not prevent Canada from expelling refugees who illegally enter its territory. [84] I therefore conclude that this Court is bound by the B010 Appeal Decision with respect to the following issues:

(

a) That the standard of review of decisions of the Board with respect to the

interpretation of paragraph 37(1)(

b) of the IRPA is that ofreasonableness; (

b) That the Board acted reasonably by referring to subsection 117(1) of the IRPA, as it then read, to define the concept of “peoplesmuggling” in paragraph 37(1)(

b) without the requirement of a financial or material gain or advantage; and (

c) That the Board’s

interpretation of paragraph 37(1)(

b) is not inconsistent with Canada’s international obligations under the RefugeeConvention, the Transnational Organized Crime Convention or the Smuggling of Migrants Protocol. The mens rea requirement [85] The Board found that the essential elements required to conclude that a foreign national is inadmissible on the ground of havingbeen involved in people smuggling are those set out in Alzehrani, at paragraph 10. This, again, is a reasonable finding. Indeed, it is theonly possible finding once the Board had concluded that paragraph 37(1)(

b) must be interpreted with regard to subsection 117(1), as itthen read. [86] As a result, relying on subsection 117(1) as it then read, in order to make an inadmissibility determination with respect to aforeign national pursuant to paragraph 37(1)(

b) of the IRPA, the Board had to find that “there are reasonable grounds to believe” (IRPA,section 33) that (

i) the smuggled person did not have the required documents to enter Canada or another concerned foreign jurisdiction;(ii) the smuggled person was coming to Canada or to the concerned foreign jurisdiction; (iii) the foreign national was organizing,inducing, aiding or abetting the smuggled person to enter Canada or the concerned foreign jurisdiction; and (iv) the foreign national hadknowledge of the lack of required documents. [87] In this context, evidence of the proper mens rea must be established.

The Board must have reasonable grounds to believe that theforeign national knew that the smuggled person was entering Canada or a concerned foreign jurisdiction without the required documents,but nevertheless organized, induced, aided or abetted the entry of the person into Canada or the foreign jurisdiction. Thus, the mens reaattached to paragraph 37(1)(

b) includes both the specific knowledge of the lack of required documents and the more general mens reathat the foreign national intended to organize, induce, aid or abet the entry of the smuggled person. [88] As noted above, in the case of B306, Gagné J. reasoned that the required mens rea had not been established since B306’sparticipation in the operation was motivated by a desire to secure food, not to assist in people smuggling.

J.P. and G.J. rely on thisreasoning to argue that J.P.’s involvement in assisting in the operation of the ship was motivated by a modest improvement in his livingconditions aboard the MV Sun Sea, and that consequently he did not have the required mens rea of assisting in the people smugglingoperation. With respect, this line of reasoning confuses the notion of intent with that of motive. It is plainly unsustainable. [89] In determining liability, subsection 21(1) of the Criminal Code, R.S.C., 1985, c. C-46 specifically provides that everyone is aparty to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it: or (c)abets any person in committing it. [90] The actus reus of “aiding” is doing (or in certain circumstances omitting to do) something that assists or encourages a perpetratorto commit an offence. However, the actus reus is not sufficient alone; the individual must have rendered assistance for “the purpose ofaiding any person to commit” a crime (Criminal Code, paragraph 21(1)(b)). That mens rea requirement in the word “purpose” has twocomponents: intent and knowledge: R. v.

Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paragraph 16. [91] Unless Parliament has specifically included motive as part of the elements of an offence, the required mens rea of aiding anyperson to commit an offense concerns the intent to assist in the commission of the offence, and that intent has very little or nothing to dowith the motive for providing the assistance: see the discussion in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, atparagraphs 23–39. The perverse consequences of confusing motive with intent are well illustrated by the following hypothetical situationdescribed by A. W. Mewett and M.

Manning, Criminal Law (2nd ed. Toronto: Butterworths, 1985), at page 112 and referred to by theSupreme Court of Canada in both R. v. Hibbert, above, at paragraph 35 and in R. v.

Briscoe, above, at paragraph 16: If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle forwhich he will pay him $100, when that person is … charged under s. 21 for doing something for the purpose of aiding his friend tocommit the offence, can he say “My purpose was not to aid the robbery but to make $100?” His argument would be that while he knewthat he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery wassuccessful or not. [92] For the purposes of paragraph 37(1)(

b) of the IRPA, the required mens rea was established in these cases when the Board hadreasonable grounds to believe that the respondents in each of these appeals knew that the smuggled persons did not have the requireddocuments but nevertheless agreed to organize, induce, aid or abet those persons entry into Canada or into a concerned foreignjurisdiction.

The motive for doing so, whether ideological, financial, or material, has no bearing in this analysis. [93] In the case of B306, the Board found, as a matter of fact, that “[h]e chose to help the people smugglers, who he knew wereillegally transporting people to Canada”: Board’s reasons, at paragraph 26. In the case of J.P., the Board found that he knowingly aidedthe coming into Canada of persons who were not in possession of a visa, passport or other documents required by IRPA. In the case ofMr.

Hernandez, it is not disputed that he knew that the persons he was aiding to enter the U.S. did not have proper documents. Thesefindings were sufficient in each of these cases to establish the mens rea requirement of paragraph 37(1)(

b) irrespective of the motive forwhich each respondent acted. The Minister’s objection to the constitutional issues being dealt with by this Court [94] In the B010 Appeal Decision, Dawson J.A. did not consider the issue of whether the

interpretation of paragraph 37(1)(

b) of theIRPA retained by the Board and based on paragraph 117(1), as it then read, was consistent with

section 7 of the Charter. Nor did sheconsider the impact of the Appulonappa decision which declared

section 117 of IRPA, as it then read, constitutionally overbroad and

consequently of no force or effect. [95] The respondents submit that

section 7 of the Charter guarantees them a hearing by the Refugee Division of the Board todetermine their Refugee Convention refugee claims, and that paragraph 37(1)(

b) breaches that Charter provision in that its effect is todeny them such a hearing if they are found to be inadmissible to Canada: IRPA, paragraph 101(1)(f). The respondents also submit that inlight of Appulonappa, the Board’s

interpretation of paragraph 37(1)(

b) is constitutionally overbroad. Consequently, the respondents askthat this Court strike down paragraph 37(1)(

b) on constitutional grounds which were not considered in the B010 Appeal Decision. [96] A litigant who seeks to challenge the constitutional validity, applicability or operability of a legislative provision before a federalboard, the Federal Court or this Court must complete a notice of constitutional question for the provision to be judged invalid,inapplicable or inoperative: Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)],

section 57. [97] In these appeals, the respondents completed such notices in this Court prior to the appeal hearings, and all of these notices allegeboth that paragraph 37(1)(

b) is constitutionally overbroad and that its effect is contrary to

section 7 of the Charter. However, theappellant Minister submits that the respondents should have also completed notices of constitutional question when they were before theBoard, and that he is prejudiced as a result of that failure since he could have submitted evidence respecting the constitutional issues nowbeing raised before us. [98] While it is true that no notice of constitutional question was completed before the Board (except in the case of B306 whoprovided a notice limited to the

section 7 Charter arguments), in the circumstances of these appeals I do not believe this failure to befatal. [99] First, the issue of whether paragraph 37(1)(

b) is constitutionally overbroad largely crystallized with the release of theAppulonappa decision by the Supreme Court of British Columbia on January 11, 2013. This was well after the Board held its hearingsand made its decisions in the cases before us.

I do not believe that this Court can simply ignore Appulonappa, particularly where propernotices of constitutional questions have been laid before this Court as a result of that decision. [100] Second, where the factual foundation is sufficient to determine the constitutional issues, or where the only missing elements are“legislative” evidence (non-adjudicative evidence such as Hansard extracts or public reports) which can be easily added to the record,this Court may well be in a position to address the issues, particularly where, such as here, there appears to have been a change in the lawbrought about as a result of the Appulonappa decision: R. v.

Weir, 1999 ABCA 275, 250 A.R. 73, at paragraphs 5–6, 14–15. [101] This Court has held that, as a general principle, it will not entertain Charter arguments that are not supported by a properevidentiary foundation: Bekker v. Canada, 2004 FCA 186, [2004] 3 C.T.C. 183; Somodi v. Canada (Minister of Citizenship andImmigration), 2009 FCA 268, 393 N.R. 395. However, as I noted in Little Red River Cree Nation #447 v. Laboucan, 2010 FCA 253, atparagraph 10, the principal purpose of this principle is to avoid prejudice to the opposing party who could have adduced evidenceconcerning the arguments.

Where no prejudice can be established, I see no reason why the constitutional arguments cannot be dealt with:see by analogy Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, at paragraphs 51–52. [102] In this case, the Minister has failed to identify exactly which facts are missing from the records of these appeals that wouldprejudice him with respect to the constitutional arguments raised by the respondents. The Minister, through counsel, referred to certainreports, almost all of which were already included in the various appeal books prepared for these appeals.

The only “facts” identified bycounsel which would not be in the records before us concern the legislative history of paragraph 37(1)(

b) and of

section 117 of the IRPA.These are not “facts” in the normal sense of the term, but rather references to past legislation which this Court can appraise proprio motu.As a result, I see no grounds for not addressing the constitutional issues set out in the respondents’ respective notices of constitutionalquestions, particularly where all such notices have been duly served and filed. Are the Board’s findings with respect to the meaning of “people smuggling” under paragraph 37(1(

b) constitutionally overbroad? [102] The respondents essentially rely on the reasoning set out in Appulonappa, which they say applies to paragraph 37(1)(

b) of theIRPA insofar as that paragraph is interpreted with reference to subsection 117(1), as it then read. [103] The accused in Appulonappa were charged with the offence of human smuggling under subsection 117(1) of the IRPA, as it thenread, as a result of their alleged involvement with the MV Ocean Lady carrying 76 Sri Lankan Tamils, without proper documentation,into Canadian waters, in the autumn of 2009. The Judge in Appulonappa found that the Charter was engaged by

section 117 of the IRPAin light of the potential terms of imprisonment contemplated by that provision. [104] The Judge in Appulonappa noted (at paragraph 72 of the reasons) that Canada, Australia, the U

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