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December, 2015.- In two sets of landmark decisions, the Supreme Court of Canada cut Canadians free from a refugee policy based on fear, mistrust and hostility. This policy, implemented by the Harper government, had made it illegal for anyone, regardless of motive, to assist refugees fleeing persecution and entering Canada without lawfully issued documentation and labelled all those involved as international criminals called people smugglers. In prosecuting those who out of humanitarian intent or to help family members or to help themselves and others flee oppression, Canada had established a new low in its standard of human rights protections for the persecuted. Refugees escaping war, extra judicial killing and torture have to enter countries of refuge by some means and usually with help. Canada had labelled those helpers international criminals and worse, threats to national security. That all changed on Friday, November 27, 2015 when the Court issued its decisions in Hernandez et al v. Minister of Citizenship and Immigration, and Appulonappa v. The Queen.
The first set of decisions featured three refugees from Sri Lanka. The fourth decision was an asylum seeker from Cuba, Jesus Hernandez. Mr. Hernandez is a native of Cuba who was accepted as a refugee by the United States in 2001. Two years later, he purchased a boat with two others with purpose of assisting his wife, children and other family members in escaping Cuba. Unfortunately, his close family members could not make it to the rendezvous point to be picked up and so he was forced to leave with some of his family members and the family of the two other escape organizers. His boat was subsequently intercepted on the high seas by US Coast Guard and he was charged and convicted in the US of alien smuggling and was ordered deported from the US. He then entered Canada and claimed refugee status but was found to be a people smuggler pursuant to Canadian Immigration law and was barred from making his claim and was ordered deported.
The other cases before the Supreme Court involved ethnic Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices. Twelve of the migrants took over various duties during the three-month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant. One of the refugees worked two three-hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment, without, he says, remuneration or benefit, another, who was accompanied by his wife, stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage, in return for which he and his wife lived in crew quarters and benefited from more humane conditions than most of the migrants. The final Tamil appellant had volunteered to act as a cook and lookout in order to receive better rations because he was hungry and in poor health. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.
In separate cases, the Immigration Division decided that in order to be found to be a people smuggler under s. 37 of the Immigration and Refugee Protection Act, you merely had to assist others in attempting to enter the country of asylum, in this case Canada. It was not relevant, according to the Immigration Division and the government of Canada, whether you received payment, or a material benefit. The mere act of helping others made you an international criminal.
This view of s. 37 was rejected by the Supreme Court in its decision. Instead, the Court decided that he wording of s. 37(1)(b), 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 highlight the absurdity of the government’s interpretation, the Court noted examples. In the first example, the family is fleeing persecution and the mother arranges to procure false travel documents, the father pays for the documents, and the daughter hides the documents as they flee their home. Upon arrival in Canada, they promptly disclose that their travel documents were false, and claim asylum. Without a financial or material benefit component, each family member has engaged in “people smuggling” and is inadmissible under s. 37(1)(b). Without the financial benefit requirement, it is not possible to differentiate the ‘smuggler’ from the ‘smuggled’. The absurdity flows, in part, from the fact that, if each family member had procured, purchased, and concealed their own travel documents, without providing any mutual aid, it is undisputed that s. 37(1)(b) would not apply.
In the second set of cases, the criminal prosecutions under s. 117, the Court made a similar finding, noting that s. 117 of the Law was overly broad in including people who assist others in escaping for reasons of family or humanitarian purposes.
Mr. Hernandez tried to help his family to escape from Cuba. He wasn’t paid for this and he received no benefit. He acted out of concern for their future and their freedoms. Thanks to the Supreme Court of Canada decision this week, he is now an innocent man and is no longer regarded as an international criminal.
Ronald Poulton (Barrister & Solicitor)