2015 SCC 59
The four appellants in this case were the captain and crew of the Ocean Lady, which was apprehended off the coast of Vancouver Island in October 2009. All 76 passengers, including the appellants, were Sri Lankan Tamils without proper documents attempting to seek refugee status in Canada. The appellants were charged under s.117 of the Immigration and Refugee Protection Act (IRPA), which prohibited organization, inducement, aiding or abetting of entry into Canada by any person without the requisite travel documents. The appellants challenged the constitutionality of the provision on the grounds that it infringed the s.7 rights of humanitarian aid workers or family members providing assistance to refugee claimants, as well as undocumented migrants aiding one another on the journey to Canada.
Finding that the object of the provision had been to prevent ‘people smuggling’, defined in s.37(1)(b) of IRPA as excluding humanitarian conduct, mutual aid or family assistance, the Supreme Court ruled that s.117 was overbroad and infringed on s.7 liberty and security of the person interests. The infringement was not saved by s.1 of the Charter, as the legislative record indicated that Parliament had actively considered the possibility of non-smuggling activities being caught, and relied on prosecutorial discretion to remedy the infringement. The measure was therefore not minimally impairing. To the extent that the provision allowed for the prosecution of humanitarian conduct, family aid or mutual assistance, it was declared to be constitutionally invalid.
|2014/12/09||Appellant – Anthonimuthu Appulonappa|
|2014/12/09||Appellant – Hamlraj Handasamy|
|2014/12/09||Appellants – Jeyachandran Kanagarajah and Vignarajah Thevarajah|
|2015/01/19||Respondent – Her Majesty the Queen|
|2015/02/06||Respondent (Reply) – Her Majesty the Queen|
|2015/01/30||Intervener – Canadian Council for Refugees|
|2015/01/30||Intervener – British Columbia Civil Liberties Association|
|2015/01/30||Intervener – Attorney General of Ontario|
|2015/01/27||Intervener – Canadian Civil Liberties Association|
|2015/02/02||Intervener – Amnesty International|
|2015/02/02||Intervener – Canadian Association of Refugee Lawyers|