Organized Hypocrisy

I want to come back to the issue of human smuggling. I posted yesterday about R. v. Appulonappa, 2013 BCSC 31, a decision of the B.C. Supreme Court striking down the provision of the Immigration and Refugee Protection Act (IRPA among friends or former federal court clerks) which criminalized aiding people to come to Canada without the papers required by IRPA―i.e. human smuggling. A sentence in Justice Silverman’s reasons caught my eye:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPA … ), why is it a crime to assist such a refugee to arrive? (par. 144)

Why indeed? Justice Silverman does not follow through on this question, indeed he seems to reject it, asserting that the policy of criminalizing human smuggling is “legitimate” (par. 166), although he holds that the way in which Parliament went about it was unconstitutionally clumsy. But I think that this question is worth asking.

First of all, two distinctions are in order. One is between “human smuggling” and “human trafficking”. The former means helping people get into a country illegally, that is to say without the papers (such as a passport and a visa) that entitle them to enter. The people being smuggled consent to it―indeed they actively seek it. Human trafficking, by contrast, means moving people―not necessarily across international borders―by force or fraud. There can be no consent in such circumstances. I am only talking about smuggling. The second distinction I want to draw is between the smuggling of illegal immigrants―people who intend to stay in the destination country without ever telling its authorities and without any claim of right to be there―and the smuggling of refugee claimants, who do notify the authorities and say that they are legally entitled to stay in the country as refugees. Justice Silverman’s question only applies to the latter situation, and that’s what I want to address. Illegal immigration is, well, illegal, so criminalizing assistance to it makes sense in the same way as criminalizing aiding and abetting any crime.

But what about criminalizing assistance to people who want to claim refugee status? To repeat Justice Silverman’s question, why is it a crime to assist those who are not themselves committing a crime?

Justice Silverman says that the purpose of the criminalization is “to protect victims of human smuggling,” (par. 138) but the essence of human smuggling, as opposed to human trafficking, is that the “victims” consent to it. Justice Silverman also says that the criminalization of smuggling “is intended to target criminal groups engaging in human smuggling who often exploit vulnerable migrants (including refugees)”; he distinguishes those who “are exploiting those migrants for profit,” and those who are “saving their lives by helping them escape persecution and violence in their home countries out of humanitarian compassion” (par. 154). But what exactly is wrong about a person making a profit out of a useful act, such as bringing a refugee to safety? The baker who sells me a loaf of bread does nothing wrong, even if he profits by the transaction, and even if I would starve without that bread. At least if I can pay, he is surely not bound to just give me the bread free of charge, “out of humanitarian compassion.” And refugees who resort to the services of smugglers obviously have the means to pay them.

Now the grocer in my example might be acting wrongly if, learning that I am starving, he charges me ten times the normal price. Then we could fairly say that he is “exploiting” me. But is that what happens with smugglers and refugees? I doubt it. It is surely the case that a major reason why smugglers’ services are so expensive as to seem “exploitative” is their illegality. As with drugs, illegality―created by the state―reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges.  (Another major factor is surely the inherent danger and difficulty, and possibly the illegality, of getting the refugees out of the countries they are fleeing.) But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation. And so I come to the conclusion that the reasons we give for criminalizing the smuggling of refugees are hypocritical, and thus the criminalization itself is.

But it is also hypocritical in a different, and arguably even worse, way. We proudly proclaim our commitment to “saving lives and offering protection to the displaced and persecuted” (IRPA, par. 3(2)(a)). But, as Justice Silverman observes, Canada does “not encourag[e] refugees to make their way to our shores” (par. 59). If they come here, well and good, we’ll try to review their cases through some form of fair procedure. (I know that many people will disagree that this is actually what we’re doing, especially after the recent reforms to IRPA. I won’t go into that debate now. I think it is at least the intention, even of the current government, to be fair.) But, sotto voce, we really wouldn’t mind that fewer of them show up. Criminalizing the actions of those who would bring too many refugee claimants here helps keep their numbers down without appearing to be harsh on the refugees themselves―on the contrary, we can go on pretending to be saving the poor people from exploitation. If that’s not a form of organized hypocrisy, I don’t know what is. I hasten to add that this is not just a Canadian problem. The criminalization of those who make a profit out of smuggling refugees is endorsed by the international instruments cited by Justice Silverman. But, again as with drugs, the international sanction does not make our bahaviour right.

Of course, there surely is a limit to the number of refugees any country can let in in a given period of time; especially if we actually give refugee claimants the benefit of a fair procedure, rather than treating their claims summarily and carelessly. Perhaps the fundamental, underlying hypocrisy is simply our claim to be a safe haven for the wretched of the Earth, when we simply don’t have the means to be that.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

3 thoughts on “Organized Hypocrisy”

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