Canada: Supreme Court finds criminalisation of refugees for aiding collective flight to safety unlawful

Friday, November 27, 2015

In two related judgments by the Supreme Court, R v. Appulonappa [2015 SCC 59] and B010 v. Canada [2015 SCC 58], both decided on 27 November 2015, it found that domestic law relating to the criminalisation of asylum seekers who aided others to reach Canada by boat was unlawful.

The first case related to a group of Tamil asylum seekers from Sri Lanka who travelled to Canada irregularly via a freight ship. Four of the crew members, who also sought asylum, were charged in domestic law for the ‘organisation, inducement, aid or abetment of one or more persons coming to Canada without proper documentation’ (s.117 Immigration and Refugee Protection Act). If convicted, they faced a long period of imprisonment and disqualification from consideration as a refugee. They challenged this on the basis that it infringed the right to life, liberty and security of the person protected by the Canadian Charter of Rights and Freedoms.  

The Supreme Court of Canada considered this provision unconstitutional insofar as it permitted prosecution for (1) humanitarian aid to undocumented entrants, (2) mutual assistance amongst asylum‑seekers and (3) assistance to family members entering without required documents. It was thus overly broad, in view of its purpose to criminalise those involved in people smuggling in the context of organised crime. To this extent it should be read down and inapplicable. The ruling noted that in order for the protection given in Article 31 of the 1951 Refugee Convention to be effective, the law must recognise that people often seek refuge in groups and work together to enter a country illegally. Thus a state could not impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.

Similarly, the applicants in B010 all acted as crew members on boats transporting irregular migrants to Canada in order to seek asylum. Their asylum applications were found inadmissible pursuant to s37(1) of the Immigration and Refugee Protection Act as they were deemed to have been engaged in organised criminal people smuggling. This meant that their claims were excluded with no assessment of the merits. The court considered that s37(1) applied only to those who facilitated illegal entry of asylum‑seekers in order to obtain a financial or other material benefit in the context of transnational organized crime. It did not cover migrants that aided their own illegal entry or that of other refugees/asylum seekers in their collective flight to safety.

Also excluded were acts of humanitarian and mutual aid, including between family members. The interpretation of this provision by the Canadian Immigration and Refugee Board finding the appellants to be people smugglers was not reasonable and this finding should be reconsidered.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Humanitarian considerations
Refugee Status