Fighting Human Smuggling or Criminalizing Refugees? Regimes of Justification in and around R v Appulonappa

Abstract

Following the arrival of the MVOcean Ladyin 2009, four men were charged with human smuggling under s. 117 of theImmigration and Refugee Protection Actfor having helped Sri Lankan asylum seekers reach Canada. Section 117 made it a criminal offence to aid and abet the unauthorized entry of asylum seekers, including when this was done for humanitarian reasons, to help family members, or as a matter of mutual aid. The case made its way to the Supreme Court and, in 2015, the court ruled inR v Appulonappathat s. 117 was too broad, potentially criminalizing humanitarian workers and family members who help transport asylum seekers, and should be interpreted in a strict manner. This article draws from pragmatic sociology to study the regimes of justification mobilized by various actors involved in, and around,R v Appulonappabetween 2009 and 2015. It focuses on two sites of contestation that crystalized around divergent conceptions of fairness and safety, discussing how competing regimes of justification were used to advance stakeholder’s positions.

Evaluating Ontario immigration detention centres through the lens of non-governmental organizations

“…The Global Detention Projects states that during the first 12 months of detention there is no judicial review administered to the detainee. Additionally, through Bill C-31 the Minister has complete control over which countries are deemed as safe country and which are deemed unsafe (Moffette & Aksin, 2018). The concern with having the power in the Minister's control is that migrants who are travelling from a country that is deemed safe by the Minister is unable to appeal the decision of the Immigration Refugee Board (IRB), The IRB has the power to accept and deny refugee claims within Canada (Moffette & Aksin, 2018).…”

“…Additionally, through Bill C-31 the Minister has complete control over which countries are deemed as safe country and which are deemed unsafe (Moffette & Aksin, 2018). The concern with having the power in the Minister's control is that migrants who are travelling from a country that is deemed safe by the Minister is unable to appeal the decision of the Immigration Refugee Board (IRB), The IRB has the power to accept and deny refugee claims within Canada (Moffette & Aksin, 2018). If coming from a safe country the migrant must also wait at least one year before applying for permanent residency (Moffette & Aksin, 2018).…”

Evaluating Ontario immigration detention centres through the lens of non-governmental organizations

“…Furthermore, the anti-smuggling legislation Bill C-31, the Protecting Canada's Immigration System Act, implements mandatory detention for all irregular migrants to Canada (Moffette & Aksin, 2018;Global Detention Project, 2018). The Global Detention Projects states that during the first 12 months of detention there is no judicial review administered to the detainee.…”

“…The concern with having the power in the Minister's control is that migrants who are travelling from a country that is deemed safe by the Minister is unable to appeal the decision of the Immigration Refugee Board (IRB), The IRB has the power to accept and deny refugee claims within Canada (Moffette & Aksin, 2018). If coming from a safe country the migrant must also wait at least one year before applying for permanent residency (Moffette & Aksin, 2018). During the time of waiting for permanent residency the migrant is able to be deported back to their country of origin; meaning, if the Minister deems a country to be safe when in fact it is not, then the migrant is left in harm's way when they are deported.…”

Immigration et criminalisation au Canada : état des lieux

“…Quatre des passagers ont été accusés en vertu de l'article 117 parce qu'ils auraient accepté de contribuer au bon fonctionnement de l'opération (à titre de mécanicien, capitaine ou membre de l'équipage) en échange d'un passage moins cher. Leurs demandes d'asile étaient ainsi jugées irrecevables (Moffette et Aksin, 2018). Dans R c. Appulonappa (2015), les avocats des quatre hommes et de plusieurs associations de droits de la personne ont soutenu que l'article 117 -tel qu'il était rédigé à l'époque 4 -était inconstitutionnel par sa portée excessive puisqu'il pouvait aussi criminaliser des personnes qui facilitent l'entrée illégale pour des raisons humanitaires ou pour aider des membres de leur famille.…”