In Canada, the Immigration and Refugee Protection Act makes reference to international law, specifically international human rights instruments, requiring that the Act be interpreted in a manner that is consistent with it.2 As a dualist country, however, the hard edge of international law is not realized in Canada without direct and explicit incorporation into Canadian law.3 This said, the degree to which domestic immigration and refugee law implicates international law and international legal obligations has been the subject of considerable judicial commentary, most notably perhaps in the seminal decision
1 Though several have proposed such an international regulatory regime, particularly liberal economists, see for example Howard F Chang, “The Economics of International Labor Migration and the Case for Global Distributive Justice in Liberal Political Theory” (2008) 41 Cornell Int Law J 14.
2 See Immigration and Refugee Protection Act (IRPA), s 3(3):
This Act is to be construed and applied in a manner that…
(f) complies with international human rights instruments to which Canada is signatory.
3 For an overview of the monist and dualist modes of incorporating international law domestically, see J.H.
Currie, Public International Law (Toronto: Irwin Law, 2001) at 199-201. See also Jutta Brunnee & Stephen J Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 40 Canadian Yearbook of Intl Law 3 at 21. Also found in David Dyzenhaus, ed., The Unity of Public Law (Portland, Oregon:
Hart Publishing, 2004) at 357 [Brunnée and Toope, “Hesitant Embrace”].
165 of the Supreme Court of Canada in Baker.4 In Baker, the court adopted the principle first established elsewhere that international human rights law represents, at the very least, a key body of content with which to identify, interpret and resolve ambiguity in domestic legislation.5 The court in Baker also noted that international human rights norms have a
“critical influence” on the interpretation of the rights included in the Canadian Charter of Rights and Freedoms, including the scope and applicability of such rights to non-citizens.6
Mavis Baker was a Jamaican woman who entered Canada on a visitor's visa in 1981 at the age of twenty-six. She worked as a live-in domestic worker for eleven years, during which time she gave birth to four children who were, by virtue of their birth in Canada, Canadian citizens. She applied for permanent residency on humanitarian and compassionate grounds, based on the hardship she would endure if forced to return to Jamaica, given her current need for psychological care and on the impact that her departure would have on her Canadian-born children. A senior immigration officer refused the application, stating that there were insufficient humanitarian and compassionate reasons to warrant an exemption to the general rule that applications for permanent residency be processed outside Canada. On judicial review to the Federal Court, Baker argued that, as a signatory to the International Convention on the Rights of the Child, Can.
T.S. 1992 No. 3, Canada was obliged to make the consideration of the best interests of her children a primary consideration and that the responsible officer had not fulfilled this obligation. The court dismissed this argument, but did certify the following question of general importance: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of
4 [1999] 2 SCR 817 [Baker].
5 Ibid, at para 70, following Tavita v. Minister of Immigration, [1994] 2 NZLR 257 (CA), at p 266; Vishaka v.
Rajasthan, [1997] 3 LRC 361 (SC India).
6 Ibid, citing Slaight Communications Inc. v Davidson, [1989] 1 S.C.R 1038; R v Keegstra, [1990] 3 S.C.R. 697.
166 the Immigration Act?”7 The Court of Appeal upheld the lower court decision, finding that the best interests of the children need not be given primacy in assessing such an application. On further appeal, the Supreme Court of Canada recognized that the law, as constructed, did not mean that the Convention on the Rights of the Child and the affected children’s best interests were determinative8 of an application for permanent residence on humanitarian and compassionate grounds, but Canada’s signing of the Convention was an important interpretive factor in determining how such applications are to be determined:
[F]or the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.9
Of interest, while the minority judgment adopted the bulk of Justice Claire L’Heureux Dube’s majority reasoning in Baker, it dissented on the question of the application of international law to domestic decision-making, finding that the primacy accorded to children’s considerations under the Convention on the Rights of the Child was
“irrelevant unless and until such provisions are the subject of legislation enacted by Parliament.”10
7 The Canadian approach to judicial review and appeals of immigration matters provides an articulate example of how such matters are dealt with in legally exceptional ways – applications for judicial review of immigration decisions are subject to a leave requirement, while appeals are barred unless the judge who determines the judicial review certifies a question of general importance: see IRPA s 74(d). Challenges to this sui generis appellate structure have not been successful: see Huynh v Canada, [1996] 2 F.C. 976, leave to appeal to the Supreme Court of Canada dismissed, [1996] SCCA No. 311.
8 For further on this, see also Legault v Canada (MCI), 2002 FCA 125.
9 Baker, supra note 4 at para 75.
10 Ibid at para 81.
167 The Immigration and Refugee Protection Act, which was passed into law in 2002, and the corresponding requirement that the Act be interpreted in a manner that complies with international human rights instruments, codified and arguably expanded the majority ruling in Baker, making international human rights requirements the lynchpin in resolving ambiguity in the IRPA. This said, judicial decision-making on the relationship between domestic and international law has remained somewhat inconsistent, at times treating the latter simply as one part of the interpretive matrix to be considered, while at other times presuming it to be determinative, unless the international source is patently inconsistent with the statutory text.11
The Federal Court of Appeal leaned towards this latter approach in the case of de Guzman, which involved a challenge to a regulation that permanently bars the sponsorship of any family member who has not been listed on a permanent resident’s own immigration application. The appellant argued, inter alia, that this provision offended the guarantees to non-interference with family life, as enumerated in both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Noting the mandatory language of s3(3)(f) of the IRPA, the court asserted that decision-makers are to attribute more than mere persuasive or contextual significance to relevant international human rights instruments in the interpretation of the Act.12 Indeed, the court concluded that the jurisprudence, together with the plain words of s3(3)(f) signify that the IRPA is to be interpreted and applied consistently with Canada’s international human rights obligations, unless, on the modern approach to statutory interpretation, this is impossible.13 In other words, because the international human rights instruments on which the appellant relied in de Guzman create binding legal obligations, s3(3)(f) makes them “determinative of the meaning of the IRPA, in the absence of a clearly expressed legislative intention to the contrary.”14 In a neat judicial sleight of hand, however, the court further reasoned that the
11 Brunnée and Toope, Hesitant Embrace, supra note 3 at 6-7.
12 de Guzman v Canada (MCI), 2005 FCA 436 at para 75.
13 Ibid at para 83.
14 Ibid at para 108.
168 impugned regulation was not to be examined in isolation, but in the context of the entire legislative regime. Considering that the regime provides the Minister of Citizenship and Immigration with the discretionary capacity to override on humanitarian and compassionate grounds any decision that may offend Canada’s international legal obligations, the court concluded that the regulation does not make the IRPA non-compliant with Canada’s obligations under international law. More of course could be said about the soundness of this reasoning, but for the sake of my argument, the court’s conclusions on the merits are not as important as the emphasis it placed on integrating international legal obligations with the domestic sphere of Canadian immigration decision-making.
The same can be said for the decision of the Federal Court of Appeal in Okoloubu, in which the court held that immigration officers deciding cases on humanitarian and compassionate grounds must bear in mind not only the values enshrined in Canada’s Charter of Rights and Freedoms, but also those found in the International Covenant on Civil and Political Rights.15 The court then went on to enumerate various provisions of the ICCPR – the principles of non-interference in family life (Article 17), the importance of a family unit and protection thereof by society and the state (Article 23), as well as children’s rights (Article 24) – as being amongst those interests that the officer must have in mind when dealing with an application for permanent residence on humanitarian and compassionate grounds. Citing another decision – Thiara - the court nevertheless concluded that s3(3)(f) of the IRPA does not require that an officer exercising discretion under the Act “specifically refer to and analyze the international human rights instruments to which Canada is signatory. It is sufficient if the officer addresses the substance of the issues raised.”16 What this means remains somewhat unclear, but one would at least presume that if officers are required to “bear in mind” international human rights law in considering the applications that come before them, their decisions must also be consistent
15 Okoloubu v Canada (MCI), 2008 FCA 326 at paras 49-50.
16 Ibid at para 50, citing Thiara v Canada (MCI), 2008 FCA 151, at para 9.
169 with this body of law or provide compelling reasons based on domestic law for departing from it.17
More recently, in a number of cases primarily involving two migrant ships that arrived in Canada in October, 2009 and August, 2010, the courts have examined the intersections between the IRPA’s organized criminality inadmissibility provisions, its criminal sanctions and international instruments on the smuggling of persons, specifically the United Nations Convention against Transnational Organized Crime and a protocol to that Convention, the Protocol against the Smuggling of Migrants by Land, Sea and Air.18 The arrival of these migrant ships – the MV Ocean Lady and the MV Sun Sea – was clearly viewed by the government as a profound threat to the integrity of Canada’s borders and the Canada Border Services Agency (CBSA) responded to the arrivals forcefully through detention, criminal prosecutions and inadmissibility proceedings.19 In an interesting and ill-fated twist to the story, prior to the departure of the MV Sun Sea for Canada, the ship’s Thai crew refused to go ahead with the voyage and left the boat. The organizers of the smuggling operation, alleged to be members of the militant Liberation Tigers of Tamil Eelam (LTTE) group, nevertheless commenced the journey and in so doing recruited some of the asylum seeker passengers to help along the way. Following their arrival (and
17 This interpretation would also seem consistent with statements from the Supreme Court of Canada that the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified: see Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, para 70.
18 Jointly passed by U.N. General Assembly resolution A/RES/55/25 of 15 November 2000 and ratified by Canada in May, 2002, referred to hereafter, respectively, as UNCTOC and the Smuggling Protocol.
19 Both ships carried Tamil asylum seekers fleeing the ongoing, post-civil war violence in Sri Lanka. The initial arrival of the MV Ocean Lady was a relatively modest smuggling operation, carrying aboard 76 passengers. The MV Sun Sea carried 492 passengers. In a memorandum drafted days before the arrival of the MV Sun Sea, the Director General for Post-Border Programs for CBSA noted that “[d]etention is an effective tool against those who circumvent immigration processes” and that the agency would be “aggressive in
Memorandum obtained through Access to Information Request A-2013-03486(10 September 2013), provided to the Canadian Council for Refugees and on file with the author. See also above discussion at Chapter 2, note 151 and accompanying text.
170 detention) in Canada, several of the asylum seekers who had helped out with the voyage, including some who had merely cooked aboard the ship, were referred to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing, based on the premise that in assisting the smuggling operation, they had engaged in the transnational crime of people smuggling, as set out at s 37(1)(b) of the IRPA. The Immigration Division consistently affirmed the allegations of the CBSA in these cases, finding the asylum seekers inadmissible under s 37, which has the effect of terminating their claims to refugee status.20
Meanwhile, the suspected masterminds of the MV Ocean Lady operation were criminally prosecuted under s 117 of the IRPA on charges attracting a fine of up to
$1,000,000 and, potentially, to life imprisonment.21
Prior to the commencement of the trial in the criminal prosecutions, the four co-accused applied for an order declaring that s 117 of the IRPA infringes s 7 of the Charter. At the heart of the application, the accused argued that the provision was unconstitutionally overbroad in that it criminalizes a broader range of activities, including humanitarian refugee assistance and assistance of family members, than was intended to be caught by the provision.
The trial judge accepted that s 117 was overly broad, based in part on the narrower scope of the Smuggling Protocol and on the Refugee Convention, which specifically prohibits prosecution for illegal entry. The court noted that the Smuggling Protocol, unlike the IRPA provision, specifically limits the ambit of what is considered to be smuggling activity to those actions undertaken for some form of profit or personal gain. The means
20 Pursuant to sections 101(1)(f) and 104(2)(a) of the IRPA. See for example: Canada (PSEP) v. X, 2011 CanLII 93842 (CA IRB); X (Re), 2011 CanLII 86097 (CA IRB); X (Re), 2012 CanLII 95162 (CA IRB); Canada (PSEP) v X, 2012 CanLII 93972 (CA IRB).
21 Since (and in response to) the arrival of these migrant ships, s117 of the IRPA was amended to include mandatory minimum sentences, in addition to the already existing possibility of life imprisonment. The minimum sentences are three, five and ten years, depending on the number of persons smuggled, on whether the accused smuggler endangered any lives or harmed anyone, and on whether the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.
171 chosen to achieve the legitimate state objective of combating human smuggling therefore captured a broader range of conduct, and persons, than is necessary and, as such, s.117 was found to violate the Charter and was therefore of no force or effect.22 On appeal to the British Columbia Court of Appeal, the Crown was permitted to substantially recast its argument regarding the objectives of the anti-smuggling provision. Rather than merely fulfilling its international obligation to combat human smuggling, the Crown argued that the true objective of s 117 was to “prevent individuals from arranging the unlawful entry of others into Canada, thereby securing the secondary goals of enforcing Canadian sovereignty; maintaining the integrity of Canada’s immigration and refugee regime;
protecting the health, safety, and security of Canadians; and promoting international justice and security.”23 The Court of Appeal accepted this expanded articulation of the provision’s objective, which led to the unsurprising conclusion that s 117 is not overly broad. The court accepted, in other words, that the aim of Canada’s anti-smuggling provision is equally to prevent parents from bringing their children into Canada as it is to prevent profiteering people smuggling who organize large scale boat arrivals.24 Nevertheless, in arriving at this conclusion, the court paid considerable attention to both the Refugee Convention and the Smuggling Protocol.25
Both before and after the British Columbia trial court’s decision in Appulonappa, the Federal Courts were considering judicial reviews and appeals of the Immigration Division decisions on the application of s 37 to the asylum seekers who participated in the MV Sun Sea operation.26 In two consolidated appellate decisions, the Federal Court of Appeal upheld the findings of the Immigration Division, distinguishing the Appulonappa trial decision and concluding that Canada had legitimately decided to incorporate a definition of people smuggling that was broader than that which was required under its international
22 R v Appulonappa, 2013 BCSC 31
23 R v Appulonappa, 2014 BCCA 163 at para 5.
24 Ibid at paras 114, 120-146.
25 Ibid at paras 121-140.
26 B306 v Canada (PSEP), 2012 FC 1282; B010 v Canada (MCI), 2012 FC 569; S. C. v Canada (PSEP), 2013 FC 491; J.P. v Canada (PSEP), 2012 FC 1466; Sivagnanasingam v Canada (PSEP), 2013 FC 604; B006 v Canada (MCI), 2013 FC 1033; B072 v Canada (MCI), 2012 FC 899.
172 obligations.27 Leave to appeal both these decisions and the Appulonappa decision was granted by the Supreme Court of Canada and the matters were heard together in early 2015.28
Once again, however, the ultimate conclusions reached by Canadian courts in these decisions is ancillary to my larger point, which is that domestic law is presumed to conform with international law and the latter has become an important interpretive mechanism by which Canadian decision-makers determine the substantive content of domestic immigration and refugee law.29