In a very interesting judgment the Canadian Supreme Court has declared unconstitutional the criminal offence of organising, inducing, aiding or abetting undocumented entry. The case is R. v. Appulonappa – SCC Cases (Lexus).

This post reviews that case and then goes on to consider whether similar reasoning might here in the UK or elsewhere be used to argue that prosecution of a person for assisting a refugee was unlawful. This is a live issue given the prosecution of former soldier Rob Lawrie in France for trying to smuggle a small girl from Calais into the UK at her mother’s request.

The offence in question in Appulonappa was s.117 of the Immigration and Refugee Protection Act 2001:

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.

The judgment makes interesting reading for a lawyer accustomed to the law of England and Wales, where we have no written constitution and it would be an oxymoron to suggest an Act of Parliament is unlawful. The grounds on which the Court examines the lawfulness of the offence included compatibility with the Canadian constitution, Canada’s international obligations and the purpose of the legislation as evinced by other sections and by the parliamentary debates around its introductions.

The argument was essentially that the offence was “overbroad” and criminalised some people it was not intended to criminalise and that therefore it was unconstitutional. If so, the offence could be argued to be uncostitutional. The Court agreed:

[57] In sum, while the security goals of the IRPA and the amendment that became s. 117 are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected. This is accomplished by interpreting s. 117 as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid. Under the Crown’s interpretation of s. 117 , a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA and the amendment that became s. 117.

The Court held that the criminal offence was overbroad and that it was incompatible with the Canadian constitution, the Charter. There were three categories of conduct it was held to not to apply to:

(1) humanitarian aid to undocumented entrants,

(2) mutual aid amongst asylum-seekers, and

(3) assistance to family entering without the required documents.

Here in the UK we have no written constitution and so our Supreme Court could not do the same with the various criminal offences which criminalise assisting refugees to enter the UK. The main ones to watch out for are section 25 of the Immigration Act 1971 (Assisting unlawful immigration to Member State) and section 25A of the Immigration Act 1971 (Assisting asylum-seeker to enter United Kingdom).

Nevertheless, the Canadian case does raise the question of whether prosecution for the various UK offences in some circumstances might be argued to be in breach of UK international obligations and/or in breach of common law or the Human Rights Act.

In the case of R v Asfaw [2008] UKHL 31 the House of Lords held that the prosecution of a refugee for an offence connected to illegal entry was unlawful. There was nothing wrong or unlawful about the criminal offence itself, the court ruled, but it was an abuse of process to prosecute a refugee using that offence. Could a similar argument be made for a person prosecuted for seeking to assist a refugee? It would certainly be novel.