On November 27, 2015, the Supreme Court of Canada decided two appeals, B010 v. Canada (Citizenship and Immigration) and R. v. Appulonappa. The appeals concerned the meaning and application of the human smuggling provisions in the Immigration and Refugee Protection Act (IRPA).
The Supreme Court of Canada unanimously concluded that the offence of “human smuggling” in s. 117 of IRPA, despite its broad wording, applies only to those engaged in organized crime. It does not apply to those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada.
These cases arose out of large scale entries to Canada in 2009 and 2010 by Tamil refugees arriving by boat in British Columbia. The Supreme Court’s decision comes in the midst of the most serious worldwide refugee crisis since the Second World War and as Canada prepares to welcome 25,000 Syrian refugees.
The offence of human smuggling at issue in the appeals applied broadly. It made it an offence to “organize, induce, aid or abet” undocumented entry to Canada. This meant that those who assisted close family members to come to Canada, or humanitarians who assisted those fleeing persecution, could be caught by the offence. Indeed, the offence’s net was so wide that it caught even the parents of refugee families bringing their children to Canada. This meant potential imprisonment and that asylum seekers’ refugee claims would not be considered.
In Appulonappa, after reviewing the relevant legislative history, the court concluded that the reach of IRPA’s human smuggling provision exceeded what Parliament intended. The offence was unconstitutionally overbroad. Rather than declaring the offence invalid, as it usually does, the court “read down” the provision to align it with Parliament’s intention.
IRPA contained a requirement to obtain the Attorney General’s consent before any prosecution for human smuggling could be brought. In Appulonappa, Chief Justice McLachlin rejected the idea that the solution lay not in a Charter remedy for overbreadth, but in a case by case judicial review of the exercise of prosecutorial discretion to weed out prosecutions of those Parliament did not intend to criminalise. Other federal statutes, some with more direct application to white collar crime, contain similar consent to prosecute requirements: Canada Elections Act; Freezing Assets of Corrupt Foreign Officials Act; Foreign Extraterritorial Measures Act; Special Economic Measures Act; and Crimes Against Humanity and War Crimes Act. There are also similar provisions found in provincial legislation. It is important to note, however, that legislative requirements requiring the consent of ministers or administrative tribunals to prosecute regulatory offences do not involve review of prosecutorial discretion and accordingly raise different considerations.
This aversion to permitting the courts to review the exercise of prosecutorial discretion continues a trend in Supreme Court case law. It affirms that attempts to review Crown decisions to bring or maintain white collar prosecutions, or challenges to discretionary decisions made in the course of those cases, will be extremely difficult. At the same time, Appulonappa means that the Crown will not be able to rely on the existence of its discretion as curative of constitutional deficiencies in legislative schemes.
Andrew Nathanson and Gavin Cameron of Fasken’s White Collar Defence and Investigations Group were counsel for the intervener the Canadian Civil Liberties Association (“CCLA”) in the B010 and Appulonappa appeals. The views expressed here are those of the writers and do not necessarily reflect the views of the CCLA.
 B010 v. Canada (Citizenship and Immigration) 2015 SCC 58 (“B010”) and R. v. Appulonappa 2015 SCC 59 (“Appulonappa”)
 S.C. 2001, c. 27 (“IRPA”)
 S.C. 2000, c. 9
 S.C. 2011, c. 10
 R.S.C. 1985, c. F-29
 S.C. 1992, c. 17
 S.C. 2000, c. 24