J.P. et al. v. Canada (Minister of Public Safety and Emergency Preparedness), (2013) 451 N.R. 278 (FCA)

• Judge: Sharlow, Mainville and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 02, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 278 (FCA);2013 FCA 262

J.P. v. Can. (2013), 451 N.R. 278 (FCA)

MLB headnote and full text

[French language version follows English language version]

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

Temp. Cite: [2013] N.R. TBEd. NO.006

The Minister of Public Safety and Emergency Preparedness (appellant) v. J.P. and G.J. (respondents)

(A-29-13)

The Minister of Public Safety and Emergency Preparedness (appellant) v. B306 (respondent)

(A-498-12)

The Minister of Public Safety and Emergency Preparedness (appellant) v. Jesus Rodriguez Hernandez (respondent)

(A-563-12; 2013 FCA 262; 2013 CAF 262)

Indexed As: J.P. et al. v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court of Appeal

Sharlow, Mainville and Near, JJ.A.

November 12, 2013.

Summary:

These appeals related to three decisions of the Immigration Division of the Immigration and Refugee Board, in which the applicants (J.P. and G.J.; B306; and Hernandez) were found to be inadmissible under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) due to their involvement in human smuggling. The applicants sought judicial review of those decisions.

The Federal Court, in decisions reported at (2012), 421 F.T.R. 52 (B306); (2012), 422 F.T.R. 159 (Hernandez); and (2012), 423 F.T.R. 144 (J.P. and G.J.), allowed each application for judicial review. The Minister of Public Safety and Emergency Preparedness appealed from each decision. The appeals were heard together.

The Federal Court of Appeal allowed the appeals, dismissing all three judicial review applications. The court answered the certified questions as follows:

In the B306 decision:

(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 on a definition contained in an international instrument to which Canada is a signatory?"

Answer: "Yes, for the reasons set out in the B010 Appeal Decision."

(2) "For the application of paragraph 37(1)(b) and section 117 of the IRPA, is there a distinction to be made between aiding and abetting the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by the IRPA, as opposed to aiding and abetting the smugglers while within a vessel and in the course of being smuggled? In other words, in what circumstances would the definition of people smuggling in paragraph 37(1)(b) of the IRPA extend to the offences referred to in section 131 of the IRPA?"

Answer: "The appellant deemed the question to be too broad and refused to make submissions on it, while none of the respondents addressed the question in either their written or oral submissions. It is consequently not appropriate for this Court to answer this question."

In the Hernandez decision:

(1) "Is the interpretation of paragraph 37(1)(b) of the IRPA, and in particular the phrase 'people smuggling' therein, by the Immigration and Refugee Protection Board, Immigration Division, reviewable on the standard of correctness or reasonableness?"

Answer: "The interpretation of paragraph 37(1)(b) of the IRPA by the Board is reviewable on a standard of reasonableness."

(2) "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 Smuggling of Migrants Protocol?"

Answer: "No."

In the J.P. and G.J. decision:

(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?"

Answer: "Yes, for the reasons set out in the B010 Appeal Decision."

(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?"

Answer: "The interpretation of paragraph 37(1)(b) of the IRPA by the Board is reviewable on a standard of reasonableness."

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - B306, a Tamil of Sri Lankan nationality, was one of 492 migrants who arrived in Canada aboard the "MV Sun Sea" in August 2010 - During the voyage, B306 approached the crew members and asked if he could cook for them in exchange for extra food - He did so and also held a watchkeeping post six hours per day - At a detention review hearing, a member of the Immigration and Refugee Board stated, "[B306] did provide some assistance to the crew in preparing their food for them and in keeping watch for other ships but I am not willing to find that on the basis of that [B306] engaged in people smuggling or trafficking in persons" - Subsequently, a member of the Immigration Division (ID) of the Immigration and Refugee Board found that B306 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 - A deportation order was issued - B306's application for judicial review was allowed - On the Crown's appeal, B306 asserted, inter alia, that the ID's failure to address the Board member's statement at the detention review hearing breached the rules of administrative fairness - The Federal Court of Appeal rejected this argument - There was no breach of procedural fairness - The issue of B306's involvement in people smuggling was not finally decided by the detention decision - There was consequently no need for the panel dealing with B306's admissibility hearing to address that decision - See paragraph 139.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - [See second Aliens - Topic 1747.1 and second Aliens - Topic 1842 ].

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of) - [See second Aliens - Topic 1747.1 and second Aliens - Topic 1842 ].

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization (incl. people smuggling) - [See second Aliens - Topic 1842 , Civil Rights - Topic 1321 and Civil Rights - Topic 3107.2 ].

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization (incl. people smuggling) - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - At issue in these appeals was whether "people smuggling" required that the smuggling was carried out for a financial or other material benefit - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division (ID) of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - In B010 v. Canada (Minister of Citizenship and Immigration) (2013 F.C.A.), this interpretation was found to be reasonable - The respondents in these appeals asserted that the court should not follow B010 with respect to the standard of review on the ground that the reasonableness standard was manifestly wrong - The respondents asserted that, by applying a correctness standard, the court would be bound to conclude that the notion of "people smuggling" in s. 37(1)(b) had to conform to the Protocol Against Smuggling Migrants by Land, Sea and Air, rather than s. 117(1), with the result that a financial or other material benefit was required in order to be found inadmissible - The Federal Court of Appeal held that the ID's decision to interpret s. 37(1)(b) with reference to s. 117(1) was not only reasonable, but was also correct - That interpretation was entirely consistent with the modern rule of statutory interpretation that required a statutory provision to be read as a whole with the Act of which it was a part, which, in this case, included the closely related s. 117(1) - Further, the Protocol Against Smuggling Migrants did not restrict Canada's ability to take measures against persons whose conduct constituted an offence under its own laws - The reference to "a financial or other material benefit" in the Protocol did not restrict Canada's ability to adopt a wider definition of people smuggling that did not refer to a financial or material benefit - The court concluded that it was bound to follow B010 - See paragraphs 79 to 84.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization (incl. people smuggling) - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - At issue in these appeals was whether "people smuggling" required that the smuggling was carried out for a financial or other material benefit - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division (ID) of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - The respondents in these appeals were found to be inadmissible under s. 37(1)(b) - At issue was the mens rea requirement in s. 37(1)(b) - The Federal Court of Appeal held that, for the proper mens rea to be established, the ID "must have reasonable grounds to believe that the foreign 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" - The mens rea included both the specific knowledge of the lack of required documents and the more general mens rea that the foreign national intended to organize, induce, aid or abet the smuggled person's entry - The motive for doing so, whether ideological, financial or material, had no bearing in this analysis - See paragraphs 85 to 93.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization (incl. people smuggling) - B306, a Tamil of Sri Lankan nationality, was one of 492 migrants who arrived in Canada aboard the "MV Sun Sea" in August 2010 - During the voyage, B306 approached the crew members and asked if he could cook for them in exchange for extra food - He did so and also held a watchkeeping post six hours per day - Relying on the definition of "people smuggling" in s. 117(1) of the Immigration and Refugee Protection Act, a member of the Immigration Division (ID) of the Immigration and Refugee Board found that B306 was inadmissible for engaging in people smuggling in the context of transnational crime as set out in s. 37(1)(b) - A deportation order was issued - B306's application for judicial review was allowed - On the Crown's appeal, B306 asserted, inter alia, that the appeal should be dismissed on the ground that he had acted out of necessity or duress - The Federal Court of Appeal rejected the argument - B306 was in Thailand, not Sri Lanka, when he boarded the Sun Sea - He was facing no clear and imminent danger while aboard the Sun Sea - These factual conclusions of the ID were based on the evidence before it and were incompatible with a claim of necessity - The ID had also dismissed B306's allegations of duress by finding that he had voluntarily chosen to work and that there was no evidence of coercion - These findings were accorded deference by the court - See paragraphs 126 to 133.

Aliens - Topic 1797.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals or judicial review - [See fourth Aliens - Topic 1747.1 ].

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - At issue in these appeals was whether "people smuggling" required that the smuggling was carried out for a financial or other material benefit - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - In B010 v. Canada (Minister of Citizenship and Immigration) (2013 F.C.A.), this interpretation was found to be reasonable - The respondents in these appeals asserted that the court should not follow B010 with respect to the standard of review on the ground that the reasonableness standard was manifestly wrong - The Federal Court of Appeal rejected this argument - Past jurisprudence had held that correctness was the standard of review of decisions interpreting s. 37(1)(b) - However, after Dunsmuir, deference was the rule rather than the exception where administrative tribunals were concerned - See paragraphs 68 to 76.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - At issue in these appeals was whether "people smuggling" required that the smuggling was carried out for a financial or other material benefit - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division (ID) of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - In B010 v. Canada (Minister of Citizenship and Immigration) (2013 F.C.A.), this interpretation was found to be reasonable - The respondents in these appeals asserted that the court should not follow B010 with respect to the standard of review on the ground that the reasonableness standard was manifestly wrong - The respondents asserted that, by applying a correctness standard, the court would be bound to conclude that the notion of "people smuggling" in s. 37(1)(b) had to conform to the Protocol Against Smuggling Migrants by Land, Sea and Air, rather than s. 117(1), with the result that a financial or other material benefit was required in order to be found inadmissible - The Federal Court of Appeal held that there was no compelling reason not to follow B010 on any of the fundamental issues resolved by that decision - This was true whether a standard of correctness or reasonableness was applied to the ID's interpretation of s. 37(1)(b) - Nothing in the international treaties prohibited signatories from enacting legislation that made those who contributed to, but did not profit from, people smuggling inadmissible - Although the Refugee Convention placed limits on the ability of a state to expel a refugee lawfully, a finding of inadmissibility under the IRPA was not the equivalent of a removal under the IRPA or a refoulement under the Refugee Convention - Further, to attach a financial component to the concept of people smuggling would lead to unacceptable results that were clearly contrary to Parliament's intention in adopting s. 37(1)(b) - See paragraphs 77 and 78.

Civil Rights - Topic 1321

Security of the person - Immigration - General - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - The respondents in these appeals were found to be inadmissible under s. 37(1)(b) - They asserted that s. 7 of the Charter guaranteed them a hearing by the Refugee Division of the Board to determine their Refugee Convention claims and that s. 37(1)(b) breached s. 7 in that its effect was to deny them such a hearing if they were found to be inadmissible - The Federal Court of Appeal rejected the argument - An inadmissibility finding under s. 37(1)(b) did not, in itself, engage s. 7 of the Charter - The issue of whether or not any of the respondents would be deported to a jurisdiction that could subject them personally to a danger of torture or to a risk to their life or to a risk of cruel and unusual punishment would, if necessary, be determined at a stage in the process under the IRPA which was subsequent to the inadmissibility finding - It was only at that subsequent stage that s. 7 of the Charter might be engaged - See paragraphs 117 to 125.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division (ID) of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - In R. v. Appulonappa (F.A.) et al. (2013), the British Columbia Supreme Court found that s. 117(1) was constitutionally overbroad and that its effect was contrary to s. 7 of the Charter - The respondents in these appeals were found to be inadmissible under s. 37(1)(b) - Relying on the reasoning in Appulonappa, they asserted that the ID's findings regarding the meaning of "people smuggling" in s. 37(1)(b) were constitutionally overbroad - The Federal Court of Appeal noted that the Appulonappa decision was before the British Columbia Court of Appeal and that the court could not comment on whether, within a criminal law context, s. 117 was constitutionally overbroad - The task here was limited to considering the constitutional validity of s. 37(1)(b) providing for the inadmissibility to Canada of those who engaged in people smuggling - The judge in Appulonappa found that the overbreadth of s. 117 made it impossible for persons to know if activities of humanitarian aid workers and close family members would result in charges under s. 117 - There was a very remote possibility that foreigners who were humanitarian aid workers could be found to be inadmissible under s. 37(1)(b) - Such a situation was too remote to place into question the constitutional validity of the section - A constitutional analysis based on overbreadth could not stray into remote or extremely hypothetical situations, but had to be restricted to reasonable hypothetical situations - As for close family members, s. 37(1)(b) was not intended to catch such persons - As a result, it was not necessary to consider the constitutional arguments regarding overbreadth - See paragraphs 103 to 116.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 1321 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - Under s. 37(1)(b) of the Immigration and Refugee Protection Act (IRPA), foreign nationals were inadmissible to Canada for "engaging, in the context of transnational crime, in activities such as people smuggling" - Relying on s. 117(1) of the IRPA to interpret s. 37(1)(b), the Immigration Division of the Immigration and Refugee Board had consistently found that a foreign national could be excluded under s. 37(1)(b) even if he or she did not expect or receive such a benefit - The respondents in these appeals were found to be inadmissible under s. 37(1)(b) - They asserted that s. 7 of the Charter guaranteed them a hearing by the Refugee Division of the Board to determine their Refugee Convention claims and that s. 37(1)(b) breached s. 7 in that its effect was to deny them such a hearing if they were found to be inadmissible - Prior to the appeal hearings, the respondents provided notices of constitutional questions, each alleging that s. 37(1)(b) was constitutionally overbroad and that its effect was contrary to s. 7 of the Charter - The Crown asserted that the notices should have been completed when the respondents were before the Board and that it was prejudiced as a result of that failure - The Federal Court of Appeal held that there were no grounds for not addressing the constitutional issues here - The issue of whether s. 37(1)(b) was overbroad had crystallized with the British Columbia Supreme Court's decision in R. v. Appulonappa (F.A.) et al. in January 2013, well after the respondents' hearings before the Board - The court could not simply ignore the issue, particularly where proper notices had been made as a result of Appulonappa - Further, where the factual foundation was sufficient to determine the constitutional issues, the court might well be in a position to address those issues when there appeared to have been a change in the law - The only "facts" identified by the Crown as being missing from the record were the legislative histories of ss. 37(1)(b) and 117(1) - These were not facts in the normal sense of the term - See paragraphs 94 to 102.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - [See Civil Rights - Topic 8584 ].

Courts - Topic 81

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court of Appeal - [See second Aliens - Topic 1747.1 ].

Courts - Topic 81

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court of Appeal - On being asked by the appellants not to follow one of its own previous decisions, the Federal Court of Appeal stated, "This Court is normally bound by its own previous decisions... This principle does not however entail that this Court may never overrule its own decisions; the principle only stands for the proposition that this Court must rarely do so and only for important and valid reasons. This Court may overturn a prior decision 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 it failed to follow a binding precedent from the Supreme Court of Canada...; (b) when the prior decision has been overtaken by legislative changes or by subsequent decisions of the Supreme Court of Canada such as 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 engage in a balancing exercise between the two important values of correctness and certainty and ask itself whether it is preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error" - See paragraph 72.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - B306, a Tamil of Sri Lankan nationality, was one of 492 migrants who arrived in Canada aboard the "MV Sun Sea" in August 2010 - During the voyage, B306 approached the crew members and asked if he could cook for them in exchange for extra food - He did so and also held a watchkeeping post six hours per day - At a detention review hearing, a member of the Immigration and Refugee Board stated, "[B306] did provide some assistance to the crew in preparing their food for them and in keeping watch for other ships but I am not willing to find that on the basis of that [B306] engaged in people smuggling or trafficking in persons" - Subsequently, a member of the Immigration Division of the Immigration and Refugee Board found that B306 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 - A deportation order was issued - B306's application for judicial review was allowed - On the Crown's appeal, B306 asserted, inter alia, that, under the principles of res judicata (cause of action) or issue estoppel, the Board member's statement in the detention hearing was binding with respect to the admissibility hearing - The Federal Court of Appeal rejected the argument - Res judicata did not apply because the detention review proceedings were unrelated to the admissibility proceedings - Both proceedings did not address the same cause of action - Further, issue estoppel did not apply because the Board member did not finally determine the issue of whether B306 was engaged in people smuggling - His comments were clearly not meant to be a final determination - The elements of res judicata and issue estoppel were absent - See paragraphs 134 to 138.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 379 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Estoppel - Topic 379 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See second Aliens - Topic 1842 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See second Aliens - Topic 1747.1 ].

Statutes - Topic 2605

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from related provisions - [See second Aliens - Topic 1747.1 ].

Cases Noticed:

B010 v. Canada (Minister of Citizenship and Immigration) (2012), 412 F.T.R. 23; 2012 FC 569, refd to. [para. 7].

B072 v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 435; 2012 FC 899, refd to. [para. 7].

B306 v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 421 F.T.R. 52; 2012 FC 1282, refd to. [para. 7].

Hernandez v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 422 F.T.R. 159; 2012 FC 1417, refd to. [para. 7].

S.C. v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 434 F.T.R. 1; 2013 FC 491, refd to. [para. 7].

B010 v. Canada (Minister of Citizenship and Immigration) (2013), 443 N.R. 1; 359 D.L.R.(4th) 730; 2013 FCA 87, folld. [para. 8].

R. v. Appulonappa (F.A.) et al., [2013] B.C.T.C. Uned. 31; 358 D.L.R.(4th) 666; 2013 BCSC 31, refd to. [para. 9].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 13].

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. 13].

Esteban v. Canada (Minister of Citizenship and Immigration) - see Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration).

R. v. Alzehrani (M.) et al., [2008] O.T.C. Uned. N06; 237 C.C.C.(3d) 471; 75 Imm. L.R.(3d) 304 (Sup. Ct.), refd to. [para. 33].

Miller v. Canada (Attorney General) (2002), 293 N.R. 391; 220 D.L.R.(4th) 149; 2002 FCA 370, refd to. [para. 72].

Widmont v. Minister of Employment and Immigration, [1984] 2 F.C. 274; 56 N.R. 198 (F.C.A.), refd to. [para. 72].

Janssen Pharmaceutica Inc. et al. v. Apotex Inc. et al. (1997), 208 N.R. 395 (F.C.A.), refd to. [para. 72].

Minister of National Revenue v. Craig, [2012] 2 S.C.R. 489; 433 N.R. 111; 2012 SCC 43, refd to. [para. 72].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al., [2007] 3 F.C.R. 198; 354 N.R. 34; 2006 FCA 326, refd to. [para. 74].

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. 74].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 75].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

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. 80].

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. 80].

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. 90].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 91].

R. v. Weir (D.T.) (1999), 250 A.R. 73; 213 W.A.C. 73; 181 D.L.R.(4th) 30; 1999 ABCA 275, refd to. [para. 100].

Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 101].

Somodi v. Canada (Minister of Citizenship and Immigration) (2009), 393 N.R. 395; 2009 FCA 268, refd to. [para. 101].

Laboucan v. Little Red River Cree Nation #447, [2010] N.R. Uned. 148; 2010 FCA 253, refd to. [para. 101].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 101].

Reference Re Marine Transportation Security Regulations (2009), 395 N.R. 1; 2009 FCA 234, refd to. [para. 111].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 111].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 119].

Berrahma v. Ministre de l'Emploi et de l'Immigration (1991), 132 N.R. 202 (F.C.A.), leave to appeal dismissed (1991), 136 N.R. 236 (S.C.C.), refd to. [para. 123].

Rudolph v. Minister of Employment and Immigration, [1992] 2 F.C. 653; 142 N.R. 62; 91 D.L.R.(4th) 686 (F.C.A.), refd to. [para. 123].

Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; 151 N.R. 69 (F.C.A.), refd to. [para. 123].

Jekula v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 266; 154 F.T.R. 268 (T.D.), affd. (2000), 266 N.R. 355 (F.C.A.), refd to. [para. 123].

Sandhu v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 258 N.R. 100 (F.C.A.), refd to. [para. 123].

Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 487; 331 N.R. 129; 2005 FCA 85, refd to. [para. 123].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 127].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 127].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 127].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2003), 314 N.R. 347; 2003 FCA 482, refd to. [para. 136].

Erdos v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 11; 2005 FCA 419, refd to. [para. 136].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 137].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 137].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 137].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 37(1)(b), sect. 117(1) [Schedule].

Protocol Against the Smuggling of Migrants by Land, Air and Sea, art. 2 [para. 24]; art. 3 [para. 5]; art. 5 [para. 24]; art. 6 [para. 25].

United Nations Convention Against Transnational Organized Crime, art. 34 [para. 25].

United Nations Convention Relating to the Status of Refugees (1951), art. 31 [para. 5]; art. 33 [para. 17].

Authors and Works Noticed:

Feller, Erika, Turk, Volker, and Nicholson, Frances, Refugee Protection in International Law (2003), art. 31 [para. 82].

Goodwin-Gill, Guy, Convention Relating to the Status of Refugees: non-penalization, detention and protection, in Feller, Erika, Turk, Volker, and Nicholson, Frances, Refugee Protection in International Law (2003), art. 31 [para. 82].

Hathaway, James C., The Rights of Refugees Under International Law (2005), pp. 412, 413 [para. 83].

Mewett, Alan W., and Manning, Morris, Criminal Law (2nd Ed. 1985), p. 112 [para. 91].

Counsel:

David Cranton, Kareena R. Wilding, Gregory G. George and Norah Dorcine, for the appellant;

Krassina Kostadinov, for the respondents, J.P. and G.J.;

Raoul Boulakia, for the respondent, B306;

Ronald Pulton, for the respondent, Jesus Rodriguez Hernandez.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

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

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

Poulton Law Office, Toronto, Ontario, for the respondent, Jesus Rodriguez Hernandez.

These appeals were heard at Toronto, Ontario, on October 2, 2013, by Sharlow, Mainville and Near, JJ.A., of the Federal Court of Appeal. On November 12, 2013, Mainville, J.A., delivered the following reasons for judgment for the court.