When Dicey Smiles

The Supreme Court upholds immigration detainees’ right to habeas corpus

Earlier this month, the Supreme Court delivered its decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which dealt with the availability of habeas corpus to control the constitutionality of a person’s continued detention by Canadian immigration authorities. More precisely the issue was whether the detention review scheme set up by the Immigration and Refugee Protection Act (IRPA) and regulations made under it was ” is as broad and advantageous ” [5] to the detainee than a habeas corpus application. By a 6-1 majority, the Court held that although the IRPA (concededly) provide an adequate review scheme for challenges based on immigration law issues, it did not do so for those aimed at the unconstitutionality of the “length, conditions and uncertain duration” of immigration detention.


Justice Karakatsanis writes for the majority (the Chief Justice and Justices Moldaver, Gascon, Côté, and Brown). She begins by pointing out that habeas corpus, an ancient common law recourse, has long been the law’s principal remedy for controlling the legality of a person’s detention. Despite its antiquity, “[h]abeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape”. [20] Access to it is a constitutional right, and cannot be denied unless legislation has put in place a full alternative meeting the “as broad advantageous” test. The system of appeal in criminal cases is one example of such an alternative; the system of judicial review of the merits of immigration decisions leading to detention is another. Indeed, the Court had, in the past, made an obiter suggestion that review procedures under the IRPA replaced habeas corpus, but Justice Karakatsanis finds that they were “never intended to preclude habeas corpus review of every detention arising in the immigration context”. [31]

The question is whether the IRPA procedures are sufficient with respect to the particular type of claim raised by an applicant. In this case, the applicant “challenged the length, uncertain duration and conditions of his detention”. [57] The regulations made under the IRPA instruct the Immigration Division of the Immigration and Refugee Board, which is required to regularly review all immigration detentions, to take the length and expected duration of detention into account but, Justice Karakatsanis finds, they still fall short of providing a substitute habeas corpus review. For one thing, they place the onus on the detainee to justify release, rather than on the government to justify detention. Moreover, “[i]n practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances”. [62] Because judicial review in the Federal Court must focus on an individual decision on a periodic review, it may fail to address the previous decisions that form the basis of the one under review. Besides, it appears that judicial review never results in an order of release but, at most, in the matter being remitted to the Immigration Division for a re-determination. Finally, habeas corpus proceedings are likely to be much more prompt than a judicial review. Meanwhile, detention conditions are simply not among the grounds the Immigration Division is required to consider when deciding whether to continue detaining a person. This too is in contrast to habeas corpus review, where the court can look into all aspects of an ongoing detention.

Justice Abella dissents. In her view, the liberty interests of immigration detainees can and must be protected by a proper interpretation and application of the IRPA and its regulations. She is concerned that the majority’s decision will, in practice nullify the detention review scheme set up by the IRPA, as detainees turn to habeas corpus instead. “It is far more consistent with the purposes of the scheme”, Justice Abella insists, “to breathe the fullest possible remedial life into the” IRPA. [74] Jutice Abella emphasizes the obligation of administrative decision-makers under the IRPA “to exercise their discretion in accordance with the Charter“, [91] as well as the need to interpret the IRPA in way that maximizes constitutional protections. As a result, she rejects what she sees as the applicant’s “attempt[] to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon”. [142]

Specifically, Justice Abella disagrees with the majority, as well as with a number of lower-court decisions on issues such as where the onus lies in proceedings before the Immigration Division, whether these proceedings can rely on prior decisions as the basis of the case for ongoing detention, and the possibility of review of detention conditions. She argues for “[i]mporting Charter principles into the exercise of administrative discretion under IRPA“, [129] which translates into “an obligation to weigh the purposes served by immigration detention against the detained individual’s … Charter rights”. [130] Conditions of detention, as well as its length, can be part of this analysis, by means of reading them into a consideration of “alternatives to detention”, which is required by the regulations. Provided that the administrative decision-makers act consistently with the relevant Charter values, the IRPA scheme will be as effective in securing liberty as habeas corpus review.


The majority is right. Adopting Justice Abella’s approach would have requires the courts to ignore the way in which the IRPA scheme has been applied by the administrative decision-makers, to expect these decision-makers to suddenly discover a commitment to the Charter of which they have so far shown little evidence, and to also to re-write the applicable regulations. Her approach rests, moreover, on the fiction that administrative decision-makers ― in this case, members of the Immigration Division, which she describes as “an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters” ― are no different from superior court judges when it comes to upholding the constitution. Yet they are nothing more than civil servants, neither independent in any real way nor required to be legally qualified, and the conceit that they understand and can uphold the constitution as well as judges is nothing more than another instance of post-truth jurisprudence in Canadian administrative law. Of course, this is not true of the judges of the Federal Court, who may review the Immigration Division’s detention decisions, but since this review is supposed to be deferential, it is not clear how much protection it can really offer.

Despite Justice Abella’s protestations to the contrary, it is difficult to avoid the impression that, for her, the supposed integrity of an administrative scheme is more important than “assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”. [72] She seems more preoccupied by likelihood of detainees bypassing the Immigration Division than by the established practice of the Immigration Division failing to give effect to their constitutional rights. Justice Abella’s lack of attention to the evidence of actual practice discussed by the majority and cheerful insistence that everything can be made right by high-minded exhortation are of a piece with her majority opinion in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, which I discussed here, and they are no more justified now than they were then. As for Justice Abella’s suggestion that the applicable regulations can be effectively re-written in the name of upholding Charter values, it is certainly consistent with her professed rejection of the Rule of Law. But the “rule of justice”, which Justice Abella would like to see prevail, is unlikely to come about from the empowering of administrative decision-makers at the expense of independent courts.

Chhina nicely illustrates a point that this blog has taken up quite a few times. As I put it here,

there is much more to the administrative state economic than labour boards or arbitrators … People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.

Or, as co-blogger Mark Mancini wrote more recently, “in the 21st century, administrative agencies are armed with the most repressive powers of the state”. The administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them. Justice Abella, in her naïve faith in the administrative state, is oblivious to its frequently oppressive reality.

Here is a question, by the way: what about Justice Karakatsanis? Nobody would have suspected her, I believe, of being a secret anti-administrativist. She joined Justice Abella’s Kanthasamy opinion, for instance and, more strikingly, was the author of the majority opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, for whose insistence that administrative decision-makers are experts, no matter their real qualifications, I had originally come up with the “post-truth jurisprudence” label . But there is another tendency in Justice Karakatsanis’ opinions, notably her dissents in R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518: a distrust of Supreme Court reminders to law enforcement about the importance of constitutional rights as means to secure these rights effectively. In Chhina, this distrust seems to have proved sufficiently strong to overcome Justice Karakatsanis’ normal faith in the administrative state.


Be that as it may, Justice Karakatsanis and a strong majority of the Supreme Court uphold the traditional remedy of habeas corpus, and of the independent courts as the dispensers of this remedy, as opposed to the second-rate ersatz purveyed by the administrative state. Justice Karakatsanis probably does not think of it in this way, but her decision also vindicates the thinking of that great bogeyman of progressive pro-administrativsts, A.V. Dicey. Contrasting the position of “countries possessing a constitution formed by a deliberate act of legislation” with that of the United Kingdom, Dicey wrote that in the former

you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. (117)

He emphasized the importance of “that inseparable connection between the means of enforcing a right and the right to be enforced” (118) ― well established, he argued, in the United Kingdom, but often neglected by “foreign constitutionalists”. For this reasons, although “[t]he Habeas Corpus Acts dedared no principle and define no rights … they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”. (118) Such articles are only valuable if they are joined with “skill in providing means for giving legal security to the rights declared”. (118) Dicey would, I would like to think, be satisfied with the skill shown by the Supreme Court here.

NOTE: My friend Pierre Gemson (along with our fellow McGillian Ewa Krajewska) represented the Canadian Civil Liberties Association, which intervened in the case. Well done!

Whatever

On Thursday, the Supreme Court handed down its decision in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, an immigration law case. Paul Daly expertly discusses takes apart the majority opinion from the administrative law perspective. For my part, I will deal with the substance of the decision. While I’m not an immigration law aficionado, I do have some practical knowledge of it, having clerked at the Federal Court for a year. So I’ll comment from the perspective of someone formerly (and briefly) “in the trenches,” someone who actually had to deal with cases of this sort on a regular basis.

The issue in Kanthasamy was the standard to be applied by the bureaucrats reviewing (on behalf of the Minister of Citizenship and Immigration) applications for exemptions from the requirements of the Citizenship and Refugee Protection Act on the basis of “humanitarian and compassionate considerations.” In practice, most of these applications are made by people whose applications for asylum are unsuccessful and who seek to be granted permanent residence in order to avoid deportation. Mr. Kanthasamy was in this situation too. The test that had long been applied by the administrative decision-makers, and also by the Federal Court on judicial review, was drawn from a set of Guidelines issued by the government. Under this test, there existed “humanitarian and compassionate grounds” for allowing a person to stay in Canada if deportation would result in “unusual and undeserved or disproportionate hardship” to that person or to another directly affected one.

The Supreme Court was unanimous in holding that this was not the right approach. There was no unanimity, however, about what the right approach was. The five-judge majority, in an opinion by Justice Abella, insisted that the decision-maker must

focus[] … on the equitable underlying purpose of the humanitarian and compassionate relief application process. [They must] see[] the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but … not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion. …

They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted [by statute]. [31-32]

It is necessary to look at all the circumstances, and not to become fixated on specific words, treating them as discrete criteria.

For its part, the two-judge dissent, in an opinion by Justice Moldaver, emphasized the exceptional nature of “humanitarian and compassionate” applications, which must not become “a separate, freestanding immigration process, something Parliament clearly did not intend.” [85] The correct approach to the examination of such applications “must balance the dual characteristics of stringency and flexibility.” [96] A test that does this is:

whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. [101; emphasis in the original]

Justice Moldaver insists that “The ‘simply unacceptable’ test … should not be seen as wordsmithing,” [104] and assures us that will be readily applied because “[i]t uses concepts that are well-understood and regularly applied in Canadian law,” [ibid.] notably in the contexts of extradition proceedings and the doctrine of abuse of process in criminal law. By contrast, in the opinion of Justice Moldaver,

the test that [Justice Abella] proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. [107]

“Amorphous” is, indeed, a polite way of putting it. My reaction on first reading the majority opinion was that it said nothing at all, and that I must have missed something. Having read the dissent, and re-read the majority opinion before writing this post, I have come to the conclusion that I did not miss anything, and that the majority does, indeed, abjectly fail to provide any guidance to both the administrative decision-makers and to the Federal Court, where their decisions are reviewed (if they are reviewed at all), usually without any further right of appeal. Indeed, the majority opinion is even worse than just a failure to provide guidance: it takes away what little guidance there was, saying that it was not good enough ― and replaces it with nothing.

But would the dissent’s “simply unacceptable” test have been any better? I doubt it. Justice Moldaver’s proposed measure of “simple unacceptability” is “broad consensus that exceptional relief should be granted.” Whose consensus is this? And how is a bureaucrat, or a judge of the federal court, supposed to ascertain its existence? These are silly questions of course. Acceptability and consensus, just like “community standards” and other tests of this sort, are just rhetorical devices. There exists a broad consensus if a judge ― or a bureaucrat ― thinks that there ought to exist a broad consensus, and that’s that.

Justice Moldaver says that the “simply unacceptable” test is similar to those that are applied in other areas of the law. But, while true, this assertion misses the crucial point that the people who will actually be applying this test ― i.e. bureaucrats and Citizenship and Immigration Canada ― are not familiar with those areas of the law. They are, as Prof. Daly points out, not even lawyers. Indeed, even the judges of the Federal Court, who will be reviewing the bureaucrats’ decisions ― on the deferential “resonableness” standard ― are not familiar with these areas of the law, which are related to the criminal law context, though to be sure, the Federal Court does occasionally deal with abuse of process claims. The Supreme Court recently acknowledged the limits of the Federal Court’s subject-matter expertise, in Strickland v. Canada (Attorney General), 2015 SCC 37, which I blogged about here. In that case the issue was the Federal Court’s suitability to deal with family law issues, but the problem is similar in the criminal law and extradition contexts.

In short, both the majority and the dissent approach the case in a manner that is largely divorced from the reality in which it was decided and, more importantly, in which similar cases will be decided in the future. Neither provides helpful guidance to the decision-makers who are going to deal with these cases as part of their regular routine. (It might not be a coincidence that the only judge with the experience of such cases, Justice Rothstein, was not on the panel that decided Kanthasamy. With his retirement, the shortage of relevant practical experience on the Court is now permanent.) The judges act like generals who visit a distant and, on the whole, not terribly important position once in a blue moon, point in the direction of something on the horizon, and depart, self-satisfied. The local commanders might try to figure out what it is that the generals wanted, the soldiers might be impressed with confident tone and eloquent gestures, but there are unlikely to be substantial changes on the front line as a result of this visit.

As a result, I’m not at all convinced that the result of the majority’s decision will be that too many “humanitarian and compassionate” applications will be granted, as Justice Moldaver fears ― or for that matter that more will be, as Justice Abella presumably wants. (By the way, neither judge, I suspect, knows how many are actually granted now. Certainly we at the Federal Court had no idea. Since the decision is, ostensibly, the Minister’s, he or she cannot apply for judicial review of a decision granting an application, so the courts never see them.) Left to their own devices ― freed from the constraints of the Guidelines and protected by a deferential standard of review ― the bureaucrats who deal with the applications might even become less, rather than more, likely to grant the applications. After all, in my admittedly limited experience, they do not exactly share Justice Abella’s sensitivities and inclinations. More likely, however, they will just shrug off the Supreme Court’s latest pronouncement. And really, that’s pretty much what it deserves.

The Scope of Smuggling

On Friday, the Supreme Court issued a pair of decisions clarifying the scope of the provisions of the Immigration and Refugee Protection Act (IRPA, among friends) relative to “people smuggling” ― the transportation to or across international borders of consenting individuals who lack the authorization to cross the borders in question. In  B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court held that a person is not inadmissible to Canada on grounds of organized criminality if he or she was not acting in order to obtain “a financial or other material benefit in the context of transnational organized crime.” [5] In R. v. Appulonappa, 2015 SCC 59, the Court held that the penal provision of IRPA relative to smuggling was unconstitutionally overbroad “insofar as [it] permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” [5]

While the legal issues on which the two decisions ultimately turn are different ― B010 is about statutory interpretation while Appulonappa is a Charter case ― they are closely related. Both decisions are unanimous, with the Chief Justice writing for the Court. I will review them together.

* * *

In B010, the issue was the scope of IRPA‘s provision that made foreign nationals inadmissible to Canada “on the grounds of organized criminality” and thus, if they claim asylum, prevented their claims from being determined on the merits, for “engaging, in the context of transnational crime, in activities such as people smuggling.” In the opinion of the Chief Justice, the “ordinary sense” of that provision, and in particular of the phrases “people smuggling” and “organized criminality” did not necessarily suggest that the activities it is aimed had to have a profit motive.

However, the Chief Justice concluded that provision’s “broader statutory context … suggests that [it] targets organized criminal activity in people smuggling for financial or other material benefit.” These considerations included the other grounds of inadmissibility provided by IRPA, which suggest that the provision at issue was specifically intended to target money-making organized crime, as well as the scope of the penal provision at issue in Appulonappa, which the Court held also targeted those who sought to make a profit from people smuggling. Moreover, the definition of a “criminal organization” in the Criminal Code, enacted so as to bring Canada into compliance with an international treaty a protocol to which deals with people smuggling, also refers to the profit motive. The protocol in question and other international agreements provided an “international context” which unambiguously pointed towards an intention to specifically outlaw profit-motivated smuggling, while not penalizing humanitarians and family members helping refugees.

* * *

As for Appulonappa, the issue there was whether IRPA‘s provision that imposed severe penalties, including potentially lengthy terms of imprisonment, on those who “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” was overbroad, and thus inconsistent with the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. A law is unconstitutionally overbroad if it penalizes acts that are not inconsistent with its purpose. Here, the problem was said to be that the provision reached the actions of those who did not seek to derive a material benefit from helping would-be refugees come to Canada. While the government argued the provision aimed “to catch all acts that in any way assist the entry of undocumented migrants,” the Court concluded that its purpose was narrower than that.

While the text of the provision in question was “broad enough to catch assistance to close family members and humanitarian assistance,” [36] here too other factors were more revealing of its aims. These factors included, once again, the international law, as well as the statutory context ― notably, the inadmissibility provision interpreted in B010, and the purposes of IRPA as a whole, which balance humanitarian concerns with those related to security. Importantly, IRPA provided that no prosecution for smuggling could be initiated without the agreement of the Attorney General. This “filter” was intended, as records of Parliamentary debates confirmed, to prevent the prosecution of persons participating in activities that fall within the broad definition of smuggling but are motivated by humanitarian or family concerns.

As the Chief Justice pointed out, it was thus clear that

Parliament itself understood … that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people.  [72]

In her view, reliance on the Attorney General exercising his discretion in this way was not enough to avoid the overbreadth problem. Whatever Parliament’s intentions, nothing stopped the Attorney General from authorizing a prosecution inconsistent with those intentions. Thus, so long as the provision remained on the books, “people whom Parliament did not intend to prosecute [were] at risk of prosecution, conviction and imprisonment.” [74]

By way of justification under section 1 of the Charter, the government seemed to argue that the provision could not have been less broadly than it was, and was therefore minimally impairing. The Chief Justice, however, observed that “[s]ection 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights” [82; emphasis in the original], and concluded that this justification was missing.

Ultimately, this may be of little help to the appellants who had challenged the constitutionality of the provision in question in Appulonappa. Instead of striking it down completely, as they had hoped, the Court read it down “as not applicable to persons who give humanitarian, mutual or family assistance,” [85] and order a trial based on this revised version. Because the appellants were not actually humanitarians at all, but the crew of a ship that brought dozens of refugees to Canada, they might not far any better as a result of their constitutional victory.

* * *

The Court’s reasoning in both decisions seems persuasive to me in both decisions, at least as to the specific questions the cases turn on. I am rather less impressed with the Court’s apparent endorsement of the policy of criminalizing profit-motivated people smuggling. In the introduction to B010, the Chief Justice claims that “[t]he smugglers … cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face.” Unfortunately, the Chief Justice pays no heed to the role that the criminalization of for-profit smuggling plays in making it the gruesome business it undoubtedly is. I have addressed this issue here and, quite recently, here. I might return to it again. For now, it is enough that, bad as they still are, our immigration laws are a little less bad now than they used to be.

Down with Hypocrisy, Again

Over at Democratic Audit UK, Mollie Gerver has an interesting post arguing that the European Union should decriminalize people smuggling ― that is, helping consenting individuals to cross borders which they lack permission to cross, in exchange for payment. (Consent is very important here: it’s what distinguishes “smuggling” from “trafficking,” the moving of people by force or fraud.) Having once written that Canada’s anti-smuggling laws are a form of organized hypocrisy, I agree. If anything, I would go even further than Ms. Gerver.

Ms. Gerver points that it is not illegal for a refugee to pay a smuggler, or to come to a country where he or she applies for protection. Even those whose applications for refugee status are denied are only deported, not punished. Smugglers, by contrast, face stiff criminal sanctions if they are caught, and this, Ms. Gerver explains, creates all sorts of perverse incentives. For example, smugglers “require extensive intelligence information to evade border control officials, which is often only possible by joining forces with those involved in arms trading and human trafficking networks.” Even worse, “[t]o avoid getting caught and arrested, smugglers often also take violent actions against migrants and refugees.” Moreover, because they face criminal sanctions whether or not they endanger the people they transport, smugglers are incentivized to carry as many people as they can, regardless of the risks, so as to maximize the profits.

Ms. Gerver proposes that smuggling be decriminalized, and that smugglers only face criminal punishment actions that are independently wrong, whether abuse or endangerment of the migrants, arms trafficking, or even “fraud if they fail to warn migrants and refugees about the risks of the journey.” In this way, smugglers will actually have an incentive to avoid, not to engage in, these sorts of behaviour. In Ms. Gerver’s view, such an approach would not be inconsistent with turning potential refugees away if they are intercepted before reaching safe haven, and generally with trying to reduce the number of those who reach their destinations and claim asylum. Indeed, she believes that “smuggling may also be easier to stop if decriminalised,” because smugglers might become “less nervous about being caught” once they know that they will not face sanctions if they are.

I’m not sure quite how seriously Ms. Gerver means her suggestions that decriminalization would be a way of reducing the number of refugees able to claim asylum in the West. I doubt that the suggestion is correct, because lowering the price of smuggling to those who engage in it will also lower the price their clients have to pay, and thus attract more of them, many more, I suspect, than would be stopped en route. Ms. Gerver might not think that this would be a good thing. But I certainly do. Indeed, I now believe, as I did not when I wrote the post linked to above, that states have no right to keep out any migrants, whether they are fleeing natural disasters, war, political persecution, or misery caused by the same sort of bad government that makes natural disasters into humanitarian catastrophes and causes wars and persecution. But you need not share this view to think that allowing more people who are genuine refugees as the term is generally understood to come to safety would be a good thing.

Indeed, you do not even need to believe that to want to change a policy that makes it more likely that refugees will be victimized by smugglers. To repeat, this policy is one of rank hypocrisy. We say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality, as I argued in my earlier post on this topic, and as Ms. Gerver confirms, we create incentives for the smugglers to exploit them. To the somewhat more specific points Ms. Gerver makes, I would add the following, more general, one that I made in my earlier post:

[a]s 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. … 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.

The same situation prevailed with sex work under the legislative framework that the Supreme Court struck down in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As I wrote in commenting on that decision, exploitation of sex workers by pimps is no small part a predictable consequence of the illegality of “living off the avails” of prostitution:

no law can make demand for protection of and assistance to prostitutes vanish. By criminalizing the supply that emerges to meet this demand, law makes supply more scarce, and therefore more costly, both in purely financial terms, and in the overall exactions the suppliers impose on their customers. An illegal activity inevitably attracts more “tough” ― read, abusive ― people than a legal one would.

Parliament was forced to change the way it regulated sex work after Bedford, but the new legal framework is, if anything, even more similar to that which applies to people smuggling, both in form and in effect. Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

The title of my comment on Bedford was “Down with Hypocrisy.” I still feel that way about the criminalization of sex work ― or of the demand for sex work. And I still feel that way about the criminalization of human smuggling ― or, to describe it less hypocritically, of remunerated assistance to people crossing borders that states had no business preventing them from crossing in the first place. Hypocritical laws enacted with, at best, a reckless disregard for the misery they cause do not belong on the statute book of any decent polity.

H/t: Michael Plaxton

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.

Smuggling Intentions

Last week the Supreme Court of British Columbia declared Canada’s prohibition on human smuggling, s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, [IRPA] unconstitutional because overbroad. S. 117 provides that, under pain of severe penalties,

[n]o 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 [the IRPA].

The accused in R. v. Appulonappa, 2013 BCSC 31, argued that this criminalized conduct which Parliament did not actually intend to prohibit or prosecute, and so was contrary to s. 7 of the Canadian Charter of Rights and Freedoms, which proscribes deprivations of liberty contrary to “principles of fundamental justice.” One of these principles, long recognized by Canadian courts, is that penal laws must be no broader than is necessary to achieve their objective; in other words, they must not threaten people with punishment for conduct which it is not necessary to punish to achieve Parliament’s goals.

The accused claimed that s. 117 could do just that. Although it is aimed at human smuggling, which international agreements define, roughly, as assisting people to enter into a country illegally in order to make an economic profit, its wording is so broad that it could apply to family members or humanitarian workers helping people come to Canada and validly claim refugee status. Refugees, generally speaking, do have not the papers required by the IRPA. But the statute exempts them from liability for coming to Canada without them. Yet, while the refugees themselves would not be committing any offence, those who “organize, aid or abet” their “coming into Canada” would, regardless for their reason doing so.

The government argued that the examples put forth by the accused were far-fetched, and that, in any case, subs. 117(4), which provides that the Attorney-General has to authorize any prosecution under s. 117, would prevent any abuses. Indeed, it argued that the Attorney-General was legally bound to exercise his authority under subs. 117(4) so as to comply with international agreements that would protect humanitarian workers and family members.

Justice Silverman was unimpressed with the government’s submissions. The accused’s examples were realistic enough, and “technically within the scope of ‘human smuggling’ under s. 117.” Yet “they are not within the objectives that Canada is trying to achieve through s. 117.  To the contrary, it is the clear intention of the government not to prosecute such people” (par. 149). But that intention, of course, is not expressed in the provision, which, as a result, is too drafted much more broadly that necessary. This “makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges” (par. 153). The argument that the requirement of the Attorney-General’s authorization would prevent prosecution of those whom Parliament did not really intend to target was equally unpersuasive. Even if, as the government contended, the Attorney-General had a legal obligation to protect family members and humanitarian workers, it is not clear how that obligation could be enforced by courts. And if it was only a matter of policy, it could easily be abandoned.

Thus, although insisting that his “decision is not a negative comment on Parliament’s legitimate goal and objective of passing legislation which targets human smuggling” (par. 166), Justice Silverman struck down s. 117. Trying to read it down or to read into a condition not inserted by Parliament would have amounted to an usurpation of legislative power, so a declaration of unconstitutionality was the only possible remedy.

This is right. It is a basic principle of the Rule of Law that laws should be enforced as written, rather than according to implicit but unstated executive policy or legislative intentions smuggled in by courts through interpretation. The Rule of Law also requires that people have notice of what they can and what they cannot be prosecuted for. A law that threatens prosecution of an innocent activity has a “chilling effect” on that activity: people will fear engaging in it even if the state never really meant to prohibit it. So if the international consensus and Canada’s own policy is not to prosecute certain activities, a revised version of s. 117 should make that clear.

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.