B010 v. Canada (Minister of Citizenship and Immigration), (2012) 412 F.T.R. 23 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: February 28, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 412 F.T.R. 23 (FC);2012 FC 569

B010 v. Can. (M.C.I.) (2012), 412 F.T.R. 23 (FC)

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: [2012] F.T.R. TBEd. MY.041

B010 (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4760-11; 2012 FC 569; 2012 CF 569)

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

Federal Court

Noël, J.

May 15, 2012.

Summary:

The applicant, a Tamil refugee claimant from Sri Lanka, arrived in Canada on the MV Sun Sea, an unregistered ship with 492 migrants on board. He claimed to have become a member of the crew by accident, and that he gained no material benefit as a crew member. The Immigration Division (ID) of the Immigration and Refugee Board issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling in the context of transnational crime as set out in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA). The applicant applied for judicial review. The two issues were: (1) whether the ID erred in its interpretation of the term "people smuggling" found in s. 37(1)(b); and (2) whether the ID erred in its understanding or application of the concept of wilful blindness.

The Federal Court dismissed the application. The court certified the following question: "For the purposes of para. 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?"

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The Immigration Division defined the term "people smuggling" in s. 37(1)(b) of the Immigration and Refugee Protection Act by relying on s. 117 of the same statute - Section 117 appeared under the heading "human smuggling and trafficking" - On judicial review, the applicant submitted that ss. 37 and 117 were not comparable because both sections had different roles within the Act, namely, an inadmissibility purpose and an enforcement purpose, respectively - Section 37 led to a deportation order, while s. 117 led to a criminal conviction - The Federal Court stated that the fact that there were different purposes did not forbid the use of a definition in one section for the purposes of another section, and was not an obstacle to a harmonious interpretation of the statute - See paragraph 57.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The Immigration Division defined the term "people smuggling" in s. 37(1)(b) of the Immigration and Refugee Protection Act by relying on s. 117 of the same statute - On judicial review, the applicant submitted that ss. 37 and 117 were not comparable - While s. 117 included the English heading "human smuggling and trafficking", the French heading read "Organisation d'entrée illégale au Canada" and made no reference to smuggling - The applicant argued there was therefore no link to s. 37's "passage des clandestins" - The Federal Court disagreed - The different headings did not change the fact that smuggling of human beings was the crime addressed in both sections - A reading of s. 37(1)(b) and s. 117 in both French and English made it clear that the concern addressed by the Act, both for inadmissibility (s. 37) and enforcement (s. 117) purposes, was the condemnation of people/human smuggling ("passage de clandestins") into Canada - Section 118(1) also made it clear that the enforcement purpose targeted the "trafficking in persons" ("traffic de personnes") - Having reviewed the contextual situation of both sections, the court concluded that, regardless of the different terms employed, both provisions had the same concern in mind: the condemnation of trafficking/smuggling of people/humans ("passage de clandestins") into Canada - See paragraph 58.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The applicant was reported inadmissible to Canada under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA): "engaging, in the context of transnational crime, in activities such as people smuggling" - The Federal Court stated that s. 37(1)(b) "must be interpreted in accordance with the words given, keeping in mind the context in which it was enacted and the objectives sought. Most importantly, the provision must be given a meaning that is harmonious with the IRPA as a whole. In this case, ensuring that 'people smuggling' and 'human smuggling' [s. 117] are given the same definition upholds this obligation and I find it entirely proper and justifiable to define the term 'people smuggling' in paragraph 37(1)(b) by relying on section 117 of the same statute when both provisions use comparable terms, address comparable acts, and are framed by the same objectives." - See paragraph 59.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The Immigration Division (ID) issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling in the context of transnational crime as set out in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) - The Federal Court stated that the ID correctly pointed out that Canada's obligation under the U.N. Convention Against Transnational Organized Crime and its Protocol was to criminalize the smuggling of migrants and that it was s. 117 (human smuggling) that fulfilled that obligation - Section 37 set out that those who engaged in smuggling were inadmissible - It reasonably followed that in order to engage in "people smuggling", there had to be reasonable grounds to believe that the person engaged in "human smuggling" as set out in s. 117 - It was reasonable for the ID to conclude that it was a necessary requirement that the applicant be a permanent resident or foreign national and that the crime be transnational (s. 37) - It was also reasonable for the elements of the offence set out in s. 117 in the context of "human smuggling", to be required in the context of "people smuggling" under s. 37 - Likewise, it was reasonable for the ID not to include any criteria not already found in ss. 37(1) and 117(1) - See paragraphs 60 and 61.

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of) - [See both Statutes - Topic 9403 ].

Aliens - Topic 1786

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Grounds - The applicant, a Tamil refugee claimant from Sri Lanka, arrived from Thailand on the MV Sun Sea ship with 492 migrants - He claimed to have become a member of the crew by accident, and that he gained no material benefit as a crew member - The Immigration Division (ID) issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling as set out in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) - The ID refused to read in the "material benefit or profit" component found in the U.N. Protocol Against the Smuggling of Migrants, to which Canada was a signatory - The Federal Court held that it was reasonable for the ID, in interpreting "people smuggling", to rely on s. 117of the IRPA, found under the heading "human smuggling and trafficking" - The words of s. 37(1) could support more than one reasonable meaning - Thus, the ordinary meaning of the words played a lesser role, and the provisions of the IRPA were to be read as a harmonious whole - Further, for the sake of coherence and consistency, s. 37(1)(b) should be interpreted in conformity with s. 117 - That conclusion was further supported by a purposive analysis of the provisions, pursuant to s. 3 of the IRPA - See paragraphs 41 to 45.

Aliens - Topic 1786

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Grounds - The applicant was from Sri Lanka - He entered Canada on the MV Sun Sea ship with 492 migrants on board - He claimed to have become a member of the crew by accident - The Immigration Division (ID) issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling in the context of transnational crime as set out in s. 37(1)(b) of the Immigration and Refugee Protection Act - The ID, in interpreting "people smuggling", relied on s. 117, found under the heading "human smuggling and trafficking" - Section 117 criminalized such conduct - The ID was satisfied that, at the very least, the applicant was wilfully blind as to whether the migrants being smuggled did not have the required documents - On judicial review, the applicant argued that the ID applied the incorrect legal test for wilful blindness because it omitted an essential mens rea element - The Federal Court concluded that the ID, without explicitly enunciating that component, determined that the applicant knew that as a Sri Lankan, he needed a visa to enter Canada - That was sufficient for it to determine he had knowledge of a need for inquiry under s. 117 - Section 117 "does not require that a person know they are committing an illegal act; it simply requires that they know they are engaging in that act" - The applicant suspected other passengers did not have the necessary documentation, but chose not to enquire - The knowledge they did not have the necessary documentation could therefore reasonably be imputed to him, whether or not he knew it was illegal to enter Canada without those documents - See paragraphs 65 to 71.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - The Federal Court was asked to consider two issues: (1) whether the Immigration Division (ID) erred in its interpretation of the term "people smuggling" found in s. 37(1)(b) of the Immigration and Refugee Protection Act; and (2) whether the ID erred in its understanding or application of the concept of wilful blindness - The applicant submitted that both issues were questions of law to which the applicable standard of review was correctness - The court agreed that the issue with respect to the ID's understanding of wilful blindness and whether it failed to correctly address elements of the legal test was a question of law to be decided on the standard of correctness - However, the ID's application of wilful blindness to the facts was subject to the reasonableness standard - The court also applied the standard of reasonableness to the ID's interpretation of s. 37(1)(b) - The leading jurisprudence consistently spoke of the need for deference when a tribunal was interpreting its own statute - See paragraphs 30 to 33.

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - One of the main issues at play in this judicial review application was the interpretation to be given to "people smuggling" in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) - The applicant suggested the following certified question: "Does 'people smuggling' in section 37(1)(b) of IRPA include requirements of either or both (1) a financial or material benefit and (2) crossing of a border without complying with the necessary requirements for legal entry into the necessary state?" - The Federal Court certified an amended question - The interpretation of s. 37(1)(b) was determinative of the scope to be given to it - The parties did not submit any guiding jurisprudence on the topic and research had shown none - Further, the interpretation might be dispositive of the case at hand - The following amended question was one that was serious and of general importance: "For the purposes of para. 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?" - See paragraphs 72 to 75.

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - [See second Aliens - Topic 1786 ].

Statutes - Topic 526

Interpretation - General principles - Consistency with comity of nations or international law - [See both Statutes - Topic 9403 ].

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 first Aliens - Topic 1786 ].

Statutes - Topic 1805

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation by context - [See second Aliens - Topic 2 ].

Statutes - Topic 2407

Interpretation - Interpretation of words and phrases - By context - [See first Aliens - Topic 1786 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See first Aliens - Topic 1786 ].

Statutes - Topic 9403

Treaty, convention and protocol - Implementation legislation - General principles - Interpretation - The term "people smuggling" found in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) was undefined - Section 3(3)(f) called for the IRPA to be construed and applied in a manner that complied with international human rights instruments to which Canada was a signatory - The Federal Court, when asked to consider the Protocol Against the Smuggling of Migrants, supplementing a U.N. Convention, stated that the IRPA "is to be interpreted and applied in a manner that furthers the domestic and international interests of Canada while also complying with the international human rights instruments to which Canada is a signatory. ... With regard to the need to comply with international instruments, it is important to point out that para. 3(3)(f) does not require that a definition found in an international instrument (in this case the Protocol) be imported in its entirety into the IRPA." - See paragraphs 45 and 46.

Statutes - Topic 9403

Treaty, convention and protocol - Implementation legislation - General principles - Interpretation - In interpreting the term "people smuggling" in s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Immigration Division (ID) preferred the argument submitted by the Minister that there was no need to consult the U.N. Convention and Protocol Against the Smuggling of Migrants for a definition of "people smuggling" - The ID concluded that s. 117(1) of the IRPA, found under the heading "human smuggling and trafficking", actually implemented the Protocol, by criminalizing such activity - The ID therefore refused to read in the "material benefit or profit" component found in the Protocol - The Federal Court, after examining the relevant provisions, concluded that the ID's interpretation was correct - "Section 117 is in fact the provision that, for Canadian domestic purposes, criminalizes the smuggling of human beings into Canada. While it is broader in scope than the definition set out in the Protocol ... it remains the legislative answer to Canada's obligations undertaken by its adherence to the Protocol since it clearly condemns the act of human smuggling (albeit to a broader extent) and remains a legitimate response to valid human rights concerns." - Further, in the "unlikely event" s. 117's broader definition conflicted with the Convention or Protocol, validly enacted legislation prevailed over international law - The ID reasonably concluded that the fact s. 117's definition was broader than that of the Protocol did not hinder its compliance with the latter - Nothing in the Protocol or in the Convention explicitly prevented criminalizing those who engaged in migrant smuggling without deriving material gain or profit from it - Likewise, nothing in those instruments prevented a contracting state from making inadmissible those who engaged in such conduct - See paragraphs 47 to 49, and 62.

Words and Phrases

People smuggling - The Federal Court interpreted the phrase "people smuggling" found in s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 34 to 45.

Cases Noticed:

HIC v. Canada (Minister of Citizenship and Immigration), [2004] I.D.D. No. 1, refd to. [para. 13].

Canada (Minister of Citizenship and Immigration) v. Khan, 2004 CanLII 56758 (I.R.B.), refd to. [para. 13].

Canada (Minister of Public Safety and Emergency Preparedness) v. Chung, [2007] I.A.D.D. No. 506, refd to. [para. 13].

Canada (Minister of Public Safety and Emergency Preparedness) v. UOP, [2009] I.D.D. No. 9, refd to. [para. 13].

R. v. Alzehrani (M.) et al., [2008] O.T.C. Uned. N06; 75 Imm. L.R.(3d) 304 (Sup. Ct.), refd to. [para. 16].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 19].

R. v. Godoy (1996), 34 Imm. L.R.(2d) 66 (Ont. C.J.), refd to. [para. 25].

R. v. Mossavat (F.) (1995), 85 O.A.C. 1; 30 Imm. L.R.(2d) 201 (C.A.), refd to. [para. 25].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 34; 2006 FCA 326, refd to. [para. 31].

Ezemba v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 599; 2005 FC 1023, refd to. [para. 31].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 32].

Belalcazar v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 395 F.T.R. 291; 2011 FC 1013, refd to. [para. 32].

Onyenwe v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 379; 2011 FC 604, refd to. [para. 32].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 33].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 33].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 33].

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. 34].

R. v. Lohnes, [1992] 1 S.C.R. 167; 132 N.R. 297; 109 N.S.R.(2d) 145; 297 A.P.R. 145, refd to. [para. 39].

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563; 342 N.R. 203; 292 N.B.R.(2d) 1; 761 A.P.R. 1; 2005 SCC 74, refd to. [para. 39].

R. v. Frank, [1978] 1 S.C.R. 95; 15 N.R. 487; 4 A.R. 271; 75 D.L.R.(3d) 481, refd to. [para. 40].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 42].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 52].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 52].

Canada (Minister of Citizenship and Immigration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 52].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 53].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 53].

Harkat, Re (2010), 380 F.T.R. 61; 2010 FC 1241, refd to. [para. 53].

Charkaoui, Re, [2005] 3 F.C.R. 389; 261 F.T.R. 11; 2005 FC 248, refd to. [para. 53].

Woolner v. Canada (Attorney General) (1999), 249 N.R. 129; 92 A.C.W.S.(3d) 1105 (F.C.A.), refd to. [para. 62].

R. v. Pereira (L.S.) et al., [2008] B.C.T.C. Uned. H13; 2008 BCSC 184, refd to. [para. 62].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 66].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 66].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 67].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 69].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3 [para. 45]; sect. 37(1)(b) [para. 11]; sect. 117(1) [para. 14].

United Nations Convention Against Transnational Organized Crime, Protocol Against the Smuggling of Migrants by Land, Air and Sea, Annex III, art. 3 [para. 37].

United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969, No. 6, art. 31 [para. 50].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 34].

Manning, Morris, and Sankoff, Peter, Criminal Law (4th Ed. 2009), pp. 178 [para. 69]; 180 [para. 66].

Sullivan, Ruth, Statutory Interpretation (2nd Ed. 2007), pp. 33 [para. 48]; 132 [para. 38]; 142 to 144 [para. 39].

Counsel:

Samuel Loeb and Rod Holloway, for the applicant;

Banafsheh Sokhansanj, for the respondent.

Solicitors of Record:

Samuel Loeb, Vancouver, British Columbia, for the applicant;

Rod Holloway, Vancouver, British Columbia, for the respondent;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Vancouver, British Columbia, on February 28, 2012, before Noël, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 15, 2012, at Ottawa, Ontario.