Section 7 of the Charter guarantees that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of the basic values underpinning our constitutional order.[1] Arguably, a number of the offence provisions under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) – ss. 124(1)(a), 117 and 131 in particular – all run afoul of the principles of fundamental justice that laws not be overbroad, arbitrary, vague, or grossly disproportionate in their impact, to the legislative objective that is sought.
Section 124(1)(a) is a remarkably broad “general offence” provision that purports to criminalize any contravention of the IRPA, or condition or obligation imposed under IRPA:
124(1) Every person commits an offence who (a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act.
Section 117, the “smuggling” offence provision, similarly captures aiding or abetting the coming into Canada of any person, where, mimicking the language of s. 124(1)(a), the entry is or would be in contravention of IRPA:
117(1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.
Section 131 then captures aiding/abetting or counselling any offence under ss. 124 or 117:
Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.
Do you know what this means? What all the immigration laws in Canada say, and where exactly, if you go offside, you might wind up in jail? There’s a good chance you have no idea. This is a problem, because as a fundamental principle of our criminal laws, everyone is supposed to be able to predict with certainty whether something they might do would land them in jail so they can avoid doing it. Parliament in turn is supposed to draft clear and logical laws that criminalize only specific actions that they have decided, for a good reason, people should not be allowed to do.
If you think you know what this means, you’ve probably said to yourself: this captures “illegal immigrants”, people who come in “illegally” or stay “illegally” without any status. These terms have become so ubiquitous that we’ve stopped unpacking them or thinking about what they actually mean – whether the law has truly given them meaning.
People who own cabins and boats on lake Ontario will know that they are allowed to come into Canada away from a port of entry, as long as they then report to a port of entry forthwith. It is not “illegal” to simply cross over the line that marks the border.
Similarly, anyone who has applied to extend their status in Canada will know that – even outside the COVID-19 shut down of processing centres – processing applications can take a long time. People remain on “implied status” so long as they submit an extension application before their current status expires. But then they have to wait anxiously for a decision on their application. If it’s refused, are they then immediately here “illegally”? Does this mean the police can show up to arrest these people the day after they get the refusal letter? I’ve certainly never heard of this happening. The letter typically simply tells people to leave, but does not say how quickly they need to do so.[2] Similarly, sometimes officers make mistakes when refusing an application,[3] and so people are allowed to then apply to “restore” their status with a new application or to seek judicial review of the decision in Federal Court – anyone who does either of these things likely would not consider themselves to be an “illegal immigrant”.
Okay, so tell me more about these criminal offence provisions
The section 124(1)(a) “general offence” provision has existed in some form since 1906 and has been carried through subsequent immigration acts to the present day IRPA. When the provision was first enacted, the Immigration Act, 1906 was much, much shorter and the violations referred to by this offence provision were clear from the specific language used elsewhere throughout that act. However, by the time this provision was carried through to the IRPA, subtle changes had been made to the provision itself and sweeping changes had been made to immigration laws. This effectively made this provision drastically more expansive in its scope – yet there is no apparent discussion by Parliament in Hansard about this and it is not clear they recognized the effect of what they were doing.
In passing IRPA, Parliament repeatedly said it was trying to create a simpler and more flexible act than the predecessor act, which had become unwieldy and unreasonably complex. At the same time, a number of commonly used specific immigration offences like ‘return without authorization after a previous deportation’ and ‘work without authorization’, were removed from the act. Rather than leave in specifically enumerated immigration offence provisions, s. 124(1)(a) was seemingly left as a “simpler” “more flexible” provision that would create whatever offence an officer might pick at their choosing from the buffet that is IRPA.
The objective of Parliament in enacting ss. 124(1)(a) and s. 131 – as gleaned from the scheme of the Act, the objectives of IRPA, the historical and legislative contexts, and Parliamentary statements of legislative intent – was to prevent abuse of the immigration system and to protect the safety, security and health of Canadian society. These provisions were not actually designed to render the whole of the IRPA into a criminal enforcement act, and to create a system for the Government to prosecute all persons who do not meet each and every specific requirement of IRPA, no matter how small.
However, it appears that this was the effect of what of Parliament did. A vast array of conduct that had never previously been criminalized and that in no way demonstrated abuse of immigration laws or endangerment to the safety, health or security of the public, was brought within the ambit of these provisions. Regularly occurring examples of conduct that could be prosecuted under s. 124(1)(a) include the following:
- A permanent resident who fails to live in Canada for two years out of a five year-period pursuant to s. 28(1) of IRPA, because they are living abroad to care for a sick relative who needs their help, and so are in breach of their residency obligations;
- A student who gets sick or has complications during a pregnancy, and stops attending school on the advice of her doctor and breaches her obligation to “actively pursue their course or program of study” pursuant to s. 220.1(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”).
- A visitor who helps do yard work for their grandmother or childcare for their aunt, who thus engages in unlawful “work” where a Canadian citizen or permanent resident would otherwise have been hired for the job.
- A student or visitor who submits an application to extend their status and remains in Canada on “implied status” under R183(5) when their permit expires while awaiting a decision on the application, who violates the condition not to overstay by failing to leave the very same day they receive the decision refusing their application.
- An individual who applies for a permanent resident card who fails to follow the proper application format specified under R56(2), for example, by not signing the forms in all the correct places or by submitting an improperly sized application photo, who has contravened a provision of the Act.
- All failed refugee claimants who, simply by virtue of having made a claim, become inadmissible for some contravention of IRPA, like seeking to enter Canada without the requisite visa or to remain beyond the terms of their visa to make the claim. These persons all receive conditional departure orders upon making a claim.[4]
The above conduct, on a plain reading, is all subject to prosecution under s. 124(1)(a) even though the Act contemplate that these persons are not subject to any immigration consequences. For example, former permanent residents and refugee claimants are issued departure orders and must simply depart Canada within 30 days. Provided they do, they are not precluded in any way by the IRPA from returning to Canada later. Officers will typically use their discretion not to pursue inadmissibility in cases where it is not warranted on humanitarian and compassionate, or other grounds. Applications made in the improper form are simply returned without processing and resubmitted again later.
In turn, the family member, doctor or school counsellor, advising a permanent resident or student to prioritize their family or health over their immigration obligations would be captured by the counselling provision under s. 131 for aiding and abetting or counselling a violation of the IRPA. So too would any lawyer or Member of Parliament constituency office assistant advising an individual to make a refugee claim that eventually fails, or assisting to submit an application that contains a small mistake, that does not comply with the IRPA.
Given the breadth and scope of the complexities in the Act, s. 117 – the “smuggling” offence provision – suffers from the same shortcomings as s. 124(1)(a) and 131, whenever a person might be “coming into Canada”. Section 117 makes no distinction between persons who present at a port of entry and persons who seek to surreptitiously enter. In this context, all family members, friends, bus drivers or taxi drivers who aid or abet a person who is inadmissible for any reason, to reach a port of entry, could be captured for aiding or abetting the coming into Canada of a person whose entry would be in contravention of the Act, contrary to s. 117 of IRPA.
For example, where the student or visitor discussed above who has inadvertently contravened a condition of their stay, goes for a day-trip to Seattle and is then examined on return to Canada at the port of entry. A person who is driving this student or visitor across the border could be caught under s. 117 of IRPA for aiding and abetting their coming into Canada, which is or would be in contravention of the IRPA by virtue of their inadmissibility.
Similarly, any lawyer or consultant who advises a foreign national to “flagpole” where they have in some way contravened the act by failing to comply with a condition of their status, could be committing an offence under s. 131 and s. 117 of IRPA. Flagpoling is a commonly used process where a person applies to renew a work or study permit by technically leaving Canada at a border crossing with the U.S., and re-entering immediately.[5] Even though the very purpose of flagpoling is to regularize status and Officers have the discretion to forgive any non-compliance by not writing an inadmissibility report or by issuing a Temporary Resident Permit under s. 24 of IRPA to authorize entry[6] – the person’s coming into Canada has arguably still been aided or counselled, where it is or would technically be in contravention of the IRPA.
In addition, any lawyer, family member or friend who counsels or aids another person to merely show up at a port of entry to make a refugee claim, is also aiding a contravention of the Act, in the same manner. So too is anyone counseling, aiding or abetting any person who was previously issued a deportation order, to show up at a port of entry and seek authorization to return.
There is simply no indication that Parliament actually intended to prosecute these types of conduct. By nonetheless doing so, Parliament arguably enacted legislation that is overbroad and contrary to section 7 of the Charter. Parliament’s intention to be flexible so as to assist in the practicalities of enforcement of some abusive conduct does not remedy an otherwise unconstitutional law, as stated by the Supreme Court of Canada in Bedford.[7] The unrestricted and overly broad means used are simply not necessary to achieve the state objective of protecting against the abuse of immigration laws or endangerment to the safety, health or security of the public.
The IRPA is nuanced administrative regime that strikes a careful balance between promoting the positive aspects of immigration and refugee protection with the protection of Canadian society. There is simply no justification for unravelling this careful balance with the crushing weight of ubiquitous criminal enforcement.
Importantly, there is also no rational or principled way to interpret the impact of the numerous discretionary provisions that exist as key “relief valves” throughout IRPA – temporary resident permits, humanitarian and compassionate (H&C) applications and exemptions, public policy exemptions, Ministerial relief decisions that overcome serious inadmissibilities, H&C determinations that overcome residency obligation breaches, and Immigration Appeal Division appeals on H&C grounds. Are persons making these applications, who have contravened the IRPA or an obligation under it, guilty of any offence, or is their guilt dependent on the discretionary decision of an Officer or Member? Similarly, what are the implications for persons who submit applications to “restore” their lapsed status, which regularizes a person’s status going forward, but does not cure the breach retroactively? What about persons who overstay or become subject to a removal order that is then stayed because they face irreparable harm or risk in their home country?
In this way, the provisions are also unconstitutionally vague, in that the scope of prohibited conduct is not capable of reasonable delineation. It is not fixed or knowable in advance. This is the case both with respect to what exactly amounts to a “contravention”, and additionally what exactly is included in the “Act” – which expressly incorporates the expansive Regulations, ministerial instructions, and other “materials incorporated by reference”.
The nuances of the IRPA, which hinge on discretion and on flexible measures throughout in the immigration / administrative law context, simply do not lend it to a parallel existence as a criminal enforcement regime. This creates a stark example of a “standardless sweep” that allows law enforcement officials to pursue their personal predilections as set out by the Supreme Court of Canada in the Prostitution Reference, 1990.[8]
The Supreme Court of Canada made it clear in Appulonappa that the availability of discretion can show Parliament’s overbroad intention, but it cannot similarly save an overbroad criminal provision: “If the Attorney General were to authorize prosecution of such an individual … nothing remains in the provision to prevent conviction and imprisonment. This possibility alone engages s. 7 of the Charter.” [9] As Madam Justice McLachlin (as she then was) also made clear in R. v. Zundel, “The whole purpose of enshrining rights in the Charter is to afford the individual protection against even the well-intentioned majority. To justify an invasion of a constitutional right on the ground that public authorities can be trusted not to violate it unduly is to undermine the very premise upon which the Charter is predicated.”[10]
The overbreadth, arbitrariness, vagueness and grossly disproportionately of these provisions cannot be saved by section 1 of the Charter.
The above is a summary of some of the arguments being made in an application to challenge the constitutionality of s. 117, 124(1)(a) and 131 of IRPA, which is set to be heard in the British Columbia Supreme Court in September, 2020.
Erica Olmstead is a partner with Edelmann & Company who practices immigration, refugee and criminal law. She has particular expertise in cases that present complexities in the intersection between these areas, and she is passionate about litigating access to justice and Charter rights’ issues. She also works as a case review lawyer with the BC Legal Aid Appeals Department and is an instructor with the University of British Columbia.
[1] Bedford, supra note 3 at para. 96, 117; R. v. Khawaja, 2012 SCC 69 [“Khawaja”] at para. 35
[2] The website says simply to leave, but does not tell someone when or how soon: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/implied-status-extending-stay.html
[3] See this paper for concerns of the Canadian Bar Association with the role of “bots” in making some of these decisions: http://www.cba.org/CMSPages/GetFile.aspx?guid=c54903f5-cd8a-4d3a-96a3-ce0c33623845
[4] Only persons with pending or positive refugee claims are exempt from prosecution pursuant to s. 133 of IRPA.
[5] Paranych v. Canada (Public Safety and Emergency Preparedness), 2018 FC 158 at para 5.
[6] See for example: Paranych v. Canada (Public Safety and Emergency Preparedness), 2018 FC 158 and Saini v. Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129276 (FC).
[7] Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 101 – 113 [“Bedford”].
[8] Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC) [“Prostitution Reference, 1990”].
[9] Appulonappa, supra note 8 at para. 74.
[10] Zundel, supra note 12 at 773.