Her Majesty the Queen v. Abdulle

[Indexed as: R. v. Abdulle]

Ontario Reports
Ontario Superior Court of Justice,
Beaudoin J.

December 23, 2014

124 O.R. (3d) 111 | 2014 ONSC 7455

Case Summary

Canadian Charter of Rights and Freedoms — Fundamental justice — Overbreadth — Immigration — Failure to exempt humanitarians and family members from prosecution for human smuggling not rendering s. 117 of the Immigration and Refugee Protection Act unconstitutionally overbroad — Section 117 necessarily and intentionally broad in order to achieve goals of border control and security — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 117.

The accused was charged with human smuggling contrary to s. 117 of the Immigration and Refugee Protection Act ("IRPA") and other offences arising from his alleged role in facilitating the coming into Canada of Somali refugees. He brought an application for a declaration that s. 117 of the IRPA is unconstitutionally overbroad and violates s. 7 of the Canadian Charter of Rights and Freedoms in that it captures individuals who assist refugees to enter Canada for humanitarian purposes.

Held, the application should be dismissed.

Parliament did not intend to exempt humanitarians and family members from prosecution under s. 117 of the IRPA. A profit motive is not an element of the offence. The primary objective of s. 117 is border control and security. Section 117 is necessarily and intentionally broad in order to achieve that objective. Since the objective of s. 117 is aligned with its scope, s. 117 is not unconstitutionally overbroad.

R. v. Appulonappa, 2014 BCCA 163; R. v. Heywood, 1994 34 (SCC), applied.

Other cases referred to

B010 v. Canada (Minister of Citizenship and Immigration), [2013] F.C.J. No. 322, 2013 FCA 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42; C. (S.) v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 491; Ontario (Ministry of Community Safety and Correctional Services) v. Avon, 2011 ONSC 5211; Ottawa-Carleton Standard Condominium Corp. No. 650 v. Claridge Homes Corp., 2009 25983 (S.C.J.); P. (J.) v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 262; Peachland (District) v. Peachland Self Storage Ltd., 2013 BCCA 273; R. v. Alzehrani, 2008 57164 (ON SC); R. v. Big M Drug Mart Ltd., 1985 69 (SCC); R. v. Hamilton, 2005 SCC 47; R. v. Jacques, 1996 174 (SCC); R. v. Jones (2006), 2006 28086 (ON CA); R. v. Jupiter, 1983 5317 (ON SC); R. v. Khawaja, 2012 SCC 69; R. v. MacFarlane, 2008 NSSC 8; R. v. Smith, 1987 64 (SCC); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7

Criminal Code, R.S.C. 1985, c. C‑46

Immigration Act, R.S.C. 1985, c. 29 (4th Supp.), ss. 94.1, 95.1, 95.2

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 117, 121

APPLICATION for a declaration of unconstitutionality.

Emilie Taman and Mark Seebaran, for Public Prosecution Service of Canada.

Elena Davies, for applicant.

BEAUDOIN J.: —

The Application

[1] The applicant, Mohamed Farah Abdulle, brings this application for an order declaring s. 117 of the Immigration and Refugee Protection Act overbroad, and, as such, unconstitutional and of no force and effect.

[2] The applicant submits that s. 117 of the IRPA, as it stood until December 2012, is worded in a manner that is overbroad in scope for the offence of human smuggling. It is overbroad in scope as it captures, within its application, individuals who assist refugees to enter Canada for humanitarian purposes. The applicant argues that charging humanitarian workers under this section contradicts Parliament's intention and objectives in enacting s. 117, resulting in an infringement of the applicant's s. 7 rights pursuant to the Canadian Charter of Rights and Freedoms that cannot be saved by s. 1 of the Charter.

(continues exactly as in the original judgment...)

Application dismissed.

Notes

1 S.C. 2001, c. 27 ("IRPA").
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter").
3 2014 BCCA 163.
4 See 2013 FCA 262; 2013 FCA 87.
...

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