R. v. Christhurajah

2017 BCSC 1211 R. v. Christhurajah

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Christhurajah, 2017 BCSC 1211 Date: 20170518 Docket: 26117 Registry: Vancouver Regina v. Kunarobinson Christhurajah Before: The Honourable Madam Justice Wedge Oral Ruling on exemptions to s. 117 of the Immigration and Refugee Protection Act Counsel for the Crown: C.F. Hough M. Loda Counsel for the Accused: C.L. Leggett Place and Date of Trial: Vancouver, B.C. May 1-4, 8-12, 15-18, 2017 Place and Date of Judgment: Vancouver, B.C. May 18, 2017 [1] THE COURT: The accused, Kunarobinson Christhurajah, is charged with a single count of human smuggling under s. 117 of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 [IRPA]. This is a retrial. A mistrial was ordered by the trial judge at the conclusion of the first trial as the jury could not reach a verdict with respect to Mr. Christhurajah. [2] At the material time, s. 117 provided as follows: No person shall knowingly organize, induce, 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 this Act. [3] Mr. Christhurajah is now again being tried by judge and jury. The Supreme Court of Canada, in R. v. Appulonappa, [2015] 3 S.C.R. 754, held that s. 117 is over broad and therefore inconsistent with the Charter. The Court then read down s. 117, creating exceptions to the criminality under

the section in order to bring it into compliance with the Charter. In the concluding paragraphs of the decision, paras. 84 to 86, the Court said the following: [84] The extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family entering without the required documents. [85] The appellants ask the Court to strike s. 117 down in its entirety. Section 117, as it was at the time of the alleged offences, has been replaced. In the particular circumstances of this case, I conclude that the preferable remedy is to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place. This remedy is consistent with the guidance this Court gave in Schachter v. Canada, [1992] 2 S.C.R. 679. [86] I would allow the appeals and read down s. 117 of the IRPA, as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter. The charges are remitted for

trial on this basis. [4] The Crown has now closed its case. In the absence of the jury, the Crown and defence have sought a ruling with respect to the application of s. 117 as read down by the Court. Crown and defence agree that para. 86 of Appulonappa exempts Mr. Christhurajah from liability under the circumstances specified, but do not agree on whether the exemption should be characterized as a defence or as an additional element of the offence. [5] The characterization of the exemption has significant consequences. If the exemption is a defence, then, as with other defences, the jury need be instructed on it only if there is an air of reality to the defence on the evidence at trial in accordance with R. v. Cinous, 2002 SCC 29. The accused then bears the evidentiary burden of showing the defence has an air of reality. Having done so, the Crown, then, has the burden of disproving the defence beyond a reasonable doubt. [6] However, if the exemption is an element of the offence, the Crown has the burden of proving that element, as with all other elements of the offence, beyond a reasonable doubt, and the issue of whether there is an air of reality does not arise. [7] In the first trial, at the conclusion of the Crown's case, Mr. Christhurajah filed a no-evidence motion. He sought a directed verdict on the basis that there was no evidence on which a properly instructed jury could

reasonably find that he was not subject to the exemption from liability created by the Appulonappa decision. As such, the matter was dealt with by the trial judge, Justice Ehrcke, in the context of the no-evidence motion. [8] In the resulting ruling indexed as R. v. Christhurajah, 2017 BCSC 60, Justice Ehrcke observed at para. 18 that there was "a credible argument" that the exemption should be considered a defence. He went on to say at para. 18 the following: For one thing, the motive, intention, or purpose of someone in organizing, inducing, aiding or abetting undocumented migrants to come to Canada, will usually be a matter more within the knowledge of the accused than of anyone else. Typically, no one would know the accused's circumstances in this regard better than the accused himself. If the accused seeks to be acquitted on the basis that he was providing humanitarian aid to asylum seekers or was himself an asylum seeker providing mutual aid to another (including family members), then it does not seem unreasonable to require him at least to put that issue in play at his trial, by satisfying an evidentiary burden of showing that the defence has an air of reality. [9] Justice Ehrcke also observed at para. 20 that the use of the words "does not apply," which were the words used by the Court in Appulonappa, is apt for creating a defence as opposed to adding an element to the

offence. [10] In the result, however, Justice Ehrcke concluded that in light of the particular circumstances of the case before him, the difference was, as he put it, of little moment. That was because, having heard the evidence in the Crown's case, he concluded that even if the exemption is characterized as a defence, it was one that had an air of reality such that the Crown had the persuasive burden in relation to the exemption. He concluded at para. 22 the following: Since the Supreme Court of Canada did not express its intention unequivocally in this regard, I have decided that, for the purposes of this trial, I will treat the exemption created by para. 86 of Appulonappa as adding a new element to the offence in s.

117. That is, the jury will be told that in addition to all the elements set out in s. 117, the Crown has the onus of proving, beyond a reasonable doubt, that the accused was not providing humanitarian aid to asylum-seekers and was not himself an asylum-seeker providing mutual aid to another (including family members). [11] The foregoing, then, gives rise to the following issues: first, as argued by the defence, is this court bound to follow the approach taken by Justice Ehrcke on the basis of the principle expressed in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) for reasons of consistency, certainty, and judicial comity? If not, the issue then becomes the proper characterization of the exemption created by the court in Appulonappa. [12] Counsel for Mr. Christhurajah argues vigorously that consistency and certainty would be in peril if this court were to depart from Justice Ehrcke's ruling. In his written argument, counsel stated the position as follows [as read in]: Mr. Christhurajah was tried by a judge and jury and the jury could not arrive at a unanimous decision so a retrial has taken place. A different jury might hear the evidence, be instructed upon the law, and arrive at a different result or a different result might be arrived at if the evidence on a retrial were somehow different from the evidence at the first trial. However, fairness, consistency,

and the rule of law should not permit a retrial where the jury is instructed differently than in the first trial and where the first jury instruction has not been determined to be incorrect. [13] Counsel submits this is a crucial feature of the case. I accept that it is certainly a unique feature of this case. However, it is my view that Justice Ehrcke did not make a ruling by which I am bound. The learned trial judge took great care in his ruling to indicate that the proper characterization of the exemption was, as he said, of little moment because the Crown bore the persuasive burden in any event. That was because, on the evidence before him, he had concluded there was an air of reality to the defences raised by the exemption. For that reason and that reason alone, in my view, he decided the best course was to treat the exemption as an element of the offence for purposes of instructing the jury. [14] That being the case, it is open to me to consider afresh the characterization of the exemption in order to properly instruct the jury on s. 117 of the IRPA as read down by the Court in Appulonappa. In the interests of time, I will confine my reasons on this issue to those necessary to give guidance to the parties. The accused has not yet elected to call evidence and the parties are also in the process of preparing their closing submissions. I will provide more complete reasons on

this issue as time permits. [15] In Appulonappa, the Court concluded that the language of s. 117 had the effect of criminalizing conduct unrelated to the objectives of Canada's refugee laws. At paras. 50-51 of the decision, the Court discussed the primary objectives of the legislation, which can be fairly summarized as providing humanitarian protection on the one hand and protecting the country's borders on the other. At paras. 50-51, the Court states: [50] In Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 29-30, this Court held that the Refugee Convention has the broad general aim of providing humanitarian refuge for those fleeing persecution while recognizing the need to protect states' borders. [51] As discussed in B010, the object provisions of the IRPA establish that both of these broad goals are important to the IRPA as well. It follows that s. 117 should be interpreted in a balanced way that respects both the security concerns as well as the humanitarian aims of the IRPA. An interpretation of s. 117 that catches all acts of assistance to undocumented migrants arguably allows security concerns to trump the humanitarian aims of the IRPA. [16] I accept the submission of the Crown that the Court did not raise the state's humanitarian objective above the protection of its own borders. Instead, it excluded certain conduct from the

scope of s. 117 to balance the two competing interests. In order to balance both objectives, the Court crafted two circumstances in which s. 117 was inapplicable, first, humanitarian aid, and second, mutual aid among asylum seekers including family members. [17] It is helpful when considering the Appulonappa exceptions to have regard to the importance of organized smuggling to the decision. [18] In the sister decision of B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court focused on those who aid or abet the entry of undocumented migrants when they are connected to or act in furtherance of transnational organized crime. The Court, at para. 72, considered the parameters of s. 37(1)(b) of the IRPA and, in particular, the meaning of "people smuggling." It concluded that it targets: . . . procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. [19] The Court considered the same concepts in Appulonappa. At para. 44 of Appulonappa, the Court said the following: The Smuggling Protocol is concerned with stopping the organized crime of people smuggling. It seeks to prevent and combat the smuggling of migrants and to promote cooperation among states to this end, while protecting the rights of smuggled migrants: art.

2. Article 6(1)(a) requires signatory states to adopt measures to establish migrant smuggling as a criminal offence. The Smuggling Protocol includes as a minimum definition for this offence, procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, "in order to obtain, directly or indirectly, a financial or other material benefit": art. 3(a). [20] At para. 45, the Court returned to this theme stating as follows: In dealing with conflicting statements of the legislative objects of a statute, the way forward lies in an interpretation which harmonizes obligations in the international instruments to which Canada is a party in a way that avoids conflict and gives expression to each of the various commitments. I conclude that read together in this way, Canada's international commitments support the view that the purpose of s. 117 is to permit the robust fight against people smuggling in the context of organized crime. This excludes criminalizing conduct that amounts solely to humanitarian, mutual or family aid. [21] The Court noted that this focus on organization is consistent with the penalty provisions of the IRPA, ss. 117(2) and (3), which provide for greater sanctions based on greater numbers of people smuggled into Canada, therefore suggesting a heightened focus on large-scale smuggling operations. The Court clearly states in

para. 45 that it intended to exclude conduct amounting solely to humanitarian aid. I do not read the last sentence of para. 45, and in particular the word "solely," as some sort of throwaway line. [22] I accept the submission of the Crown that the decision read in its entirety is a clear statement by the Court that profit as a motive for procuring illegal entry of a person into Canada is not only inconsistent with the notion of humanitarian aid, but completely undermines it. Paragraphs 44 and 45 alone speak to the Court's intention in this regard. In addition, at para. 63 the Court refers to s. 117 as: . . . a filter to screen out assistance not associated with organized criminal smuggling, namely innocent humanitarian acts, mutual aid and assistance to family members. [23] At para. 65, the Court cites the statements made in Parliament by the then Minister Bouchard about the difficulties facing the legislative drafters of s. 117 and the reluctance to include any phrase that would undermine the ability to prosecute the unscrupulous: We cannot let such individuals escape sanction by adding phrases which create insurmountable problems of proof and create gaps through which the unscrupulous would march. [24] At para. 79, the Court again emphasizes the importance of combatting the organizational element of people smuggling. [25] Further, I note that s. 121(1) of the penalty sections of the IRPA provides that an aggravating factor when imposing sentence is whether the commission of the offence was for profit whether or not any profit was realized. [26] I accept the Crown's argument that a link to organized criminality is not a prerequisite to a finding of guilt under s.

117. To hold otherwise would be inconsistent with s. 121(1)(b), which creates as another aggravating factor on sentence that the commission of the offence was: . . . for the benefit of, at the direction or in association with a criminal organization. [27] Thus, while the Court considered the role of organization in Appulonappa and B010, it did so, in my view, to establish that organized smuggling is criminal. I accept the argument of the Crown that the balancing by the Court of the primary objectives of the IRPA human smuggling provisions allows the exclusion of purely humanitarian ventures or those engaged in truly mutual collective flight. [28] In the sister decision to Appulonappa, B010, the Court pointed to the dangers to migrants inherent in smuggling persons by sea and the vulnerability of the migrants which human smugglers prey upon. The migrants' desperate circumstances lead to their payment of large sums of money and acceptance of the dangerous life-risking conditions imposed on them by the smugglers. The Court also focused on the state's interest in controlling irregular migration in order to protect the safety and security of Canadians as well as the integrity of the efficacy of Canada's lawful immigration and refugee regimes. [29] I am satisfied, then, based on a reading of the Appulonappa decision as a whole, that the excluded conduct functions as an exemption to

the offence created by s. 117 and, as such, it is for the accused to raise the exemption and to establish a prima facie case for an air of reality that his actions fit within the excluded categories of conduct. Where an air of reality engages one of the exceptions, the issue must go to the jury, who must then be satisfied beyond a reasonable doubt by the Crown that the accused organized, induced, aided, or abetted the entry of the undocumented migrants and that the accused was not acting to provide humanitarian aid to asylum seekers or was not an asylum seeker providing mutual aid to other asylum seekers including aid to family members. [30] With respect to those exceptions, my present view is that the following applies. First, an asylum seeker means a person from another state who is seeking refuge in Canada from some form of persecution or physical danger. Those were the approximate words used by Justice Ehrcke in an oral ruling on the issue. [31] Second, the humanitarian aid exemption applies to those who are acting solely for humanitarian aid purposes. Were the exception interpreted any other way, it would provide a complete defence to organized profit-driven smugglers who have both a financial and a humanitarian motive. It would undermine Canada's ability to combat large-scale human smuggling. The most likely target for those motivated by profit are those who are the most

desperate and most easily exploited for profit. [32] Further, it would undermine the humanitarian purpose of the legislation by putting the safety of the migrants at risk. I accept the argument of Crown that the Appulonappa exceptions do not capture acts aimed to obtain directly or indirectly a financial or other material benefit. The material benefit does not have to accrue directly to the person charged with the offence. It is the profit motive generally and not the person to whom the profit goes. [33] Third, the mutual aid exception applies to refugees who are mutually assisting one another in their collective flight to safety. It is limited to those who engage in mutual aid for the sole purpose of flight. Mutuality requires everyone in the venture giving and receiving assistance to flee. It requires reciprocity. [34] Finally, true mutuality does not extend to circumstances where some migrants do work that is incidental to their own travel needs and does not advance the overall or actual movement of the migrants [35] That concludes my ruling. The Honourable Madam Justice C.A. Wedge