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Summary

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Charter of Rights and Freedoms - Right to life, liberty and security of the person - Immigration law - Inadmissibility and removal - Inadmissibility under s. 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling - What is the standard of review in respect of the Immigration Division of the Immigration and Refugee Protection Board’s interpretation of the scope of s. 37(1)(b)? - What is the scope of s. 37(1)(b)? - Is s. 7 of the Charter engaged in the inadmissibility process before the Board?

B010, a 35-year-old Tamil from Sri Lanka, arrived in Canadian waters via Thailand on August 12, 2010 aboard the MV Sun Sea, an unregistered ship upon which 492 migrants seeking refuge travelled. B010 is married and has two children. During much of the civil war, B010 lived in the northern territory of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam (“LTTE”), where he worked as a driver, mechanic and fisher.

When the Sri Lankan government regained control of the area in 2009, B010 was detained and interrogated on several occasions by government forces for suspected LTTE involvement. Upon learning he was to be taken to a detention camp, B010 fled to Thailand where he eventually was offered a spot on the MV Sun Sea, bound for Canada, in return for which he paid the organizers of the voyage. The Thai crew subsequently abandoned the ship while en route, and the passengers decided to perform tasks on the ship to continue with the voyage. B010 agreed to work six hours a day in the engine room, monitoring the equipment.

After the ship’s arrival in Canadian waters, the Canada Border Services Agency (“CBSA”) conducted an investigation that revealed that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada. The CBSA also determined that B010 was one of 12 passengers aboard the ship who had served as the ship’s crew during the three-month voyage. An immigration officer reported B010 as inadmissible to Canada by reason of people smuggling, pursuant to s. 37(1)(b) of the IRPA.

Lower Court Rulings