B010 v. Canada (Minister of Citizenship and Immigration), (2015) 478 N.R. 57 (SCC)

JudgeMcLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
CourtSupreme Court of Canada
Case DateFebruary 16, 2015
JurisdictionCanada (Federal)
Citations(2015), 478 N.R. 57 (SCC);2015 SCC 58

B010 v. Can. (M.C.I.) (2015), 478 N.R. 57 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. NO.027

B010 (appellant) v. Minister of Citizenship and Immigration (respondent) and Attorney General of Ontario, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International (Canadian Section, English Branch), David Asper Centre for Constitutional Rights and United Nations High Commissioner for Refugees (interveners)

J.P. and G.J. (appellants) v. Minister of Public Safety and Emergency Preparedness (respondent) and Attorney General of Ontario, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International (Canadian Section, English Branch), David Asper Centre for Constitutional Rights, United Nations High Commissioner for Refugees and Canadian Civil Liberties Association (interveners)

B306 (appellant) v. Minister of Public Safety and Emergency Preparedness (respondent) and Attorney General of Ontario, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International (Canadian Section, English Branch), David Asper Centre for Constitutional Rights, United Nations High Commissioner for Refugees and Canadian Civil Liberties Association (interveners)

Jesus Rodriguez Hernandez (appellant) v. Minister of Public Safety and Emergency Preparedness (respondent) and Attorney General of Ontario, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International (Canadian Section, English Branch), David Asper Centre for Constitutional Rights, United Nations High Commissioner for Refugees and Canadian Civil Liberties Association (interveners)

(35388; 35688; 35685; 35677; 2015 SCC 58; 2015 CSC 58)

Indexed As: B010 v. Canada (Minister of Citizenship and Immigration)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

November 27, 2015.

Summary:

Section 37(1)(b) of the Immigration and Refugee Protection Act rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality, for engaging, in the context of transnational crime, in activities such as people smuggling. The Immigration and Refugee Protection Board found each of the appellants inadmissible, on the basis that s. 37(1)(b) did not require a profit motive. Each applied for judicial review.

The Federal Court rejected appellant B010's application (see 412 F.T.R. 23), while the applications of appellants J.P. and G.J., B306 and Hernandez were allowed (423 F.T.R. 144; 421 F.T.R. 52; and 422 F.T.R. 159, respectively). The cases were appealed.

The Federal Court of Appeal opted for a broad view of the activity caught by s. 37(1)(b). B010's appeal was rejected on the ground that s. 37(1)(b) caught all acts of assistance to undocumented migrants, and in particular, did not require that the activity be conducted for financial or other material benefit: see 443 N.R. 1. In the remaining cases, the court allowed the appeals and reinstated the Board's decisions of inadmissibility: see 451 N.R. 278. The cases were appealed.

The Supreme Court of Canada allowed the appeals. The interpretation of s. 37(1)(b) taken by the Board and supported by the respondent Ministers was not within the range of reasonable interpretations. Section 37(1)(b) applied "only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime." The Court returned the matters to the Board for a new hearing.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - [See second Aliens - Topic 1747.1 ].

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of) - [See fifth Aliens - Topic 1747.1 ].

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act rendered a permanent resident or a foreign national inadmissible to Canada, and effectively denied that person access to refugee determination procedures, on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - The Immigration and Refugee Board found the appellants inadmissible to Canada, on the basis that s. 37(1)(b) covered all acts of assistance to illegal migrants and, in particular, did not require a profit motive - The Supreme Court of Canada concluded that s. 37(1)(b) applied "only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime." - The Court outlined the type of conduct that might render a person inadmissible to Canada and disqualify the person from the refugee determination process on grounds of organized criminality - The Court also found that acts of humanitarian and mutual aid (including aid between family members) did not constitute people smuggling - The Court returned the matters to the Board for a new hearing - See paragraph 5.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - This case turned on the statutory interpretation of s. 37(1)(b) of the Immigration and Refugee Protection Act: "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." - The Supreme Court of Canada, in considering the range of conduct captured by s. 37(1)(b), noted that the statutory provision "performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits." - The matter was one of statutory interpretation - The modern rule of statutory interpretation applied, requiring the words of s. 37(1)(b) to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament - See paragraphs 27 to 29.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - The Supreme Court of Canada, as a step in the statutory interpretation of s. 37(1)(b), interpreted the provision in its entire context and harmoniously with the scheme of the legislation - The first contextual consideration was the relationship between s. 37(1)(b) and the rest of s. 37(1) - The second consideration was the relationship between inadmissibility for people smuggling under s. 37(1)(b) and other grounds of inadmissibility under the IRPA - A third contextual consideration was the relationship between s. 37(1)(b) and the related offence provision in s. 117 - A fourth contextual consideration was the definition of "criminal organization" in s. 467.1(1) of the Criminal Code - In the result, the Court stated that "the broader statutory context of s. 37(1)(b) suggests that the provision targets organized criminal activity in people smuggling for financial or other material benefit, and not asylum-seekers rendering each other mutual assistance." - See paragraphs 36 to 46.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - The Supreme Court of Canada, as a contextual consideration, stated that s. 37(1)(b) "should be interpreted harmoniously with the Criminal Code's definition of 'criminal organization' as involving a material, including financial, benefit." - The legislative history of s. 37(1)(b), including Ministerial comments, and the definition of "criminal organization" in s. 467.1(1) of the Criminal Code, expressly requiring a financial or other material benefit, strongly supported the conclusion that while "organized criminality" and "criminal organization" were not identical phrases, "they are logically and linguistically related and, absent countervailing considerations, should be given a consistent interpretation. ... Both provisions were enacted to give effect to the same international regime for the suppression of transnational crimes such as people smuggling." - See paragraphs 41 to 46.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - The Supreme Court of Canada, as a contextual consideration in interpreting s. 37(1)(b), discussed the provision's international context, including the relevant international instruments, i.e., the United Nations Convention Against Transnational Organized Crime ("Palermo Convention"), and the United Nations Convention Relating to the Status of Refugees ("Refugee Convention") - Sections 3(2)(b) and 3(3)(f) of the IRPA "make Parliament's presumed intent to conform to Canada's international obligations explicit. ... There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights ... . I conclude that it is appropriate to consider the relevant international instruments in interpreting s. 37(1)(b): the Palermo Convention and its protocols, and the Refugee Convention." - See paragraphs 47 to 59.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - In these appeals, the respondent Minister argued that any and all assistance to undocumented migrants to Canada fell within the prohibited range of conduct - The Supreme Court of Canada, as a step in the statutory interpretation of s. 37(1)(b), interpreted the provision harmoniously with the intention of Parliament - The Parliamentary record revealed no evidence that Parliament, in enacting s. 37(1)(b) in 2001, intended to erase the distinction between those who acted for financial or material benefit and those who acted for humanitarian purposes or gave mutual assistance or to target conduct unconnected to transnational organized crime - To adopt the interpretation of s. 37(1)(b) urged by the Ministers would lead to anomalous and unintended consequences - "It is well established that Parliament should be presumed not to intend absurd results when it enacts legislation." - See paragraphs 67 to 71.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Section 37(1)(b) of the Immigration and Refugee Protection Act rendered a permanent resident or a foreign national inadmissible to Canada on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - Each of the appellants were found inadmissible to Canada, on the basis that s. 37(1)(b) covered all acts of assistance to illegal migrants and, in particular, did not require a profit motive - The Supreme Court of Canada allowed the appeals - "The wording of its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety." - See paragraph 72.

International Law - Topic 5

General - Incorporation into domestic law - [See fifth Aliens - Topic 1747.1 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See sixth Aliens - Topic 1747.1 ].

Statutes - Topic 503

Interpretation - General principles - Avoidance of unreasonable results - [See sixth Aliens - Topic 1747.1 ].

Statutes - Topic 515

Interpretation - General principles - International convention - Effect of - [See fifth Aliens - Topic 1747.1 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See fifth Aliens - Topic 1747.1 ].

Statutes - Topic 1408

Interpretation - Construction where meaning is not plain - Avoidance of absurdity - [See sixth Aliens - Topic 1747.1 ].

Statutes - Topic 1446

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - By reference to other provisions in same Act - [See third Aliens - Topic 1747.1 ].

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - [See fourth Aliens - Topic 1747.1 ].

Statutes - Topic 1631

Interpretation - Extrinsic aids - Other statutes - Similar expressions - [See fourth Aliens - Topic 1747.1 ].

Statutes - Topic 1658

Interpretation - Extrinsic aids - Legislative history - Ministerial comments - [See fourth Aliens - Topic 1747.1 ].

Statutes - Topic 2402

Interpretation - Interpretation of words and phrases - General principles - Avoidance of absurdity - [See sixth Aliens - Topic 1747.1 ].

Statutes - Topic 2407

Interpretation - Interpretation of words and phrases - By context - [See third Aliens - Topic 1747.1 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Aliens - Topic 1747.1 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See fourth Aliens - Topic 1747.1 ].

Statutes - Topic 9403

Treaty, convention and protocol - Implementation legislation - General principles - Interpretation - [See fifth Aliens - Topic 1747.1 ].

Words and Phrases

In the context of transnational crime - The Supreme Court of Canada considered the meaning of the phrase "in the context of transnational crime" in s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraph 35 et seq.

Words and Phrases

Organized criminality - The Supreme Court of Canada considered the meaning of the phrase "organized criminality" in s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraph 34 et seq.

Words and Phrases

People smuggling - The Supreme Court of Canada considered the meaning of the phrase "people smuggling" in s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraph 33 et seq.

Cases Noticed:

R. v. Appulonappa (F.A.) (2015), 478 N.R. 3; 2015 SCC 59, refd to. [para. 5].

Febles v. Canada (Minister of Citizenship and Immigration), [2014] 2 F.C.R. 224; 442 N.R. 290; 2012 FCA 324, refd to. [para. 24].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 25].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 29].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 47].

National Corn Growers Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 47].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 48].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 48].

GreCon Dimter Inc. v. Normand (J.R.) Inc. et al., [2005] 2 S.C.R. 401; 336 N.R. 347; 2005 SCC 46, refd to. [para. 48].

United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.C.A.C. 282; 465 W.A.C. 282; 2009 SCC 41, refd to. [para. 48].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 48].

Thibodeau v. Air Canada, [2014] 3 S.C.R. 340; 463 N.R. 231; 2014 SCC 67, refd to. [para. 48].

De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; 345 N.R. 73; 2005 FCA 436, refd to. [para. 49].

Febles v. Canada (Minister of Citizenship and Immigration), [2014] 3 S.C.R. 431; 464 N.R. 7; 2014 SCC 68, refd to. [para. 75].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 467.1(1) [para. 41].

Immigration and Refugee Protection Act, S.C. 2001 c. 27, sect. 37(1)(b) [Appendix A]; sect. 117 [para. 39 and Appendix A].

Protocol Against the Smuggling of Migrants by Land, Air and Sea, 2241 U.N.T.S. 480 ("Smuggling Protocol"), generally [para. 43]; art. 2, art. 3(a), art. 6(1)(a), art. 6(4), art. 11(1), art. 11(5), art. 19 [Appendix B].

Protocol Relating to the Status of Refugees (1967), 606 U.N.T.S. 267, generally [para. 47].

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Human Trafficking Protocol"), 2237 U.N.T.S. 319, art. 14(1) [para. 53].

United Nations Convention Against Transnational Organized Crime ("Palermo Convention"), 2225 U.N.T.S. 209, generally [para. 43]; art. 1, art. 2(a), art. 3, art. 5, art. 34 [Appendix B].

United Nations Convention Relating to the Status of Refugees ("Refugee Convention") (1951), 189 U.N.T.S. 150, art. 31(1), art. 33 [Appendix B].

Counsel:

Rod H. G. Holloway and Erica Olmstead, for the appellant, B010;

Lorne Waldman, Tara McElroy and Clarisa Waldman, for the appellants, J.P. and G.J;

Raoul Boulakia, for the appellant, B306;

Ronald Poulton, for the appellant, Jesus Rodriguez Hernandez;

Marianne Zoric and François Joyal, for the respondents;

Hart Schwartz and Padraic Ryan, for the intervener, the Attorney General of Ontario;

Jennifer Bond, Andrew J. Brouwer and Erin Bobkin, for the intervener, the Canadian Association of Refugee Lawyers;

Angus Grant, Catherine Bruce, Laura Best and Fadi Yachoua, for the intervener, the Canadian Council for Refugees;

Chantal Tie, Laïla Demirdache and Michael Bossin, for the intervener, Amnesty International (Canadian Section, English Branch);

Barbara Jackman and Audrey Macklin, for the intervener, the David Asper Centre for Constitutional Rights;

John Terry, Rana R. Khan and Ryan Lax, for the intervener, the United Nations High Commissioner for Refugees;

Andrew I. Nathanson and Gavin Cameron, for the intervener, the Canadian Civil Liberties Association.

Solicitors of Record:

Legal Services Society, Vancouver, British Columbia, for the appellant, B010;

Waldman & Associates, Toronto, Ontario, for the appellants, J.P and G.J.;

Raoul Boulakia, Toronto, Ontario, for the appellant, B306;

Poulton Law Office, Toronto, Ontario, for the appellant, Jesus Rodriguez Hernandez;

Attorney General of Canada, Toronto, Ontario, for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

University of Ottawa, Ottawa, Ontario; Refugee Law Office, Toronto, Ontario, for the intervener, the Canadian Association of Refugee Lawyers;

Angus Grant, Toronto, Ontario; Refugee Law Office, Toronto, Ontario; Laura Best & Fadi Yachoua, Vancouver, British Columbia, for the intervener, the Canadian Council for Refugees;

South Ottawa Community Legal Services, Ottawa, Ontario; Community Legal Services Ottawa Centre, Ottawa, Ontario, for the intervener, Amnesty International (Canadian Section, English Branch);

Jackman Nazami & Associates, Toronto, Ontario; University of Toronto, Toronto, Ontario, for the intervener, the David Asper Centre for Constitutional Rights;

Torys, Toronto, Ontario; UNHCR, Toronto, Ontario, for the intervener, the United Nations High Commissioner for Refugees;

Fasken Martineau DuMoulin, Vancouver, British Columbia, for the intervener, the Canadian Civil Liberties Association.

These appeals were heard on February 16, 2015, before McLachlin, C.J.C., Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada. In reasons written by McLachlin, C.J.C., the Court delivered the following judgment, dated November 27, 2015, in both official languages.

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    ...105 547 Transnational and Cross-Border Criminal Law: Canadian Perspectives B010 v Canada (Citizenship and Immigration), 2015 SCC 58 .............................................. 71, 72, 77, 78, 79, 81–84, 87–89, 90, 91, 164 Balcombe v he Queen, [1954] SCR 303 ....................................
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