Summary

Keywords

Canadian charter (Criminal) - Constitutional law, Right to life, liberty and security of person.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms - Constitutional law - Right to life, liberty and security of the person - Overbreadth - Provision of the Immigration and Refugee Protection Act making it an offence to knowingly aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by that Act - Whether the provision is overbroad or vague and therefore unjustifiably infringes s. 7 of the Canadian Charter of Rights and Freedoms? - Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), s. 117.

On October 17, 2009, Canadian authorities intercepted a freight ship off the coast of Vancouver Island, British Columbia. The vessel was carrying 76 Sri Lankan Tamils, none of whom had proper documentation to enter the country, and all of whom initiated refugee claims upon arrival in Canada. Each paid, or promised to pay, between $30,000 and $40,000 for the voyage.

The Crown alleged that the four appellants, who were on board the ship, had organized the voyage, and were the captain and chief crew members of the ship. The appellants were charged under s. 117 of the IRPA, with organizing the illegal entry into Canada of a group of 10 or more individuals. The offence is known colloquially as the offence of “human smuggling.”

Prior to their trial, the appellants sought an order declaring that s. 117 unjustifiably infringes s. 7 of the Canadian Charter of Rights and Freedom and is therefore of no force or effect. They claimed that s. 117 was overbroad and inconsistent with the principles of fundamental justice, as it criminalized the acts of certain persons (i.e. humanitarian workers and close family members helping each other) who were not intended to be prosecuted. They were successful before the Supreme Court of British Columbia, but the British Columbia Court of Appeal overturned the decision