Case information

Charter of Rights — Constitutional law — Right to life, liberty and security of person — Right to a fair hearing — Constitutionality of s. 36 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) — Whether s. 36 of the Mutual Legal Assistance in Criminal Matters Act violates ss. 7 or 11(d) of the Charter — ss. 7, 11(d) of the Canadian Charter of Rights and Freedoms.

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In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status in Canada upon arrival. The three respondents were charged along with a fourth accused with organizing, inducing, aiding or abetting people to come into Canada, colloquially known as “human smuggling”, in contravention of s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Rather than call as witnesses the various police officers from Thailand who arrested the respondents and who might be able to attest to these matters from their own knowledge, the Crown proposed to introduce this evidence pursuant to the provisions of s. 36 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (MLACMA). The respondents filed an application challenging the constitutional validity of s. 36 of the MLACMA on the basis that it infringed ss. 7 and 11(d) of the Charter, and sought a declaration of invalidity pursuant to s. 52(1) of the Constitution Act, 1982. Ehrcke J. granted the respondents’ application, and found s. 36 of the MLACMA infringes an accused’s right to a fair trial and to make full answer and defence and therefore, violates ss. 7 and 11(d) of the Charter. Ehrcke J. held that s. 36 of the MLACMA is unconstitutional and declared ss. 36(1) and (2) to be of no force and effect. The respondents were acquitted of human smuggling charges laid under s. 117 of the Immigration and Refugee Protection Act. The Court of Appeal upheld the verdicts of acquittal and confirmed the constitutional invalidity of s. 36 of the MLACMA. The Court of Appeal held that s. 36 of the MLACMA was declared to be of no force and effect with respect to Crown evidence tendered in a criminal trial.