ARCHIVED – Backgrounder — Better Tools to Successfully Prosecute and Impose Mandatory Prison Sentences on Human Smugglers

Human smuggling is a criminal enterprise that spans the globe. It involves organizing the illegal entry of persons into a country in order to receive a financial or other material benefit. Human smuggling is big business, generating significant profits for sophisticated criminal organizations and others who engage in this crime and abuse immigration systems designed to help those in genuine need.

The Immigration and Refugee Protection Act (IRPA) already contains stiff penalties for human smuggling: fines up to $1 million and/or up to life imprisonment for smuggling 10 or more people.

The proposed changes in the Protecting Canada’s Immigration System Actwould strengthen the criminal law’s responses to human smuggling, better protect the integrity of Canada’s refugee system, and enhance the ability of law-enforcement and prosecutors to effectively investigate and prosecute human smugglers.

Under the proposed legislative changes, the offence of human smuggling would be broadened to better capture the different ways that the crime of smuggling occurs and to make it easier to prove that the offence was committed.

Currently, proving the offence of human smuggling requires evidence that the accused knew that the individuals who were being smuggled did not possess the documents lawfully required to enter Canada.

The proposed amendments would expand the offence to prohibit the organized entry of persons into Canada in contravention of any requirements of IRPA. For example, this would include the act of bringing people into Canada in a way that avoids their presenting themselves for examination, as required by the Act. In addition, the proposed amendments would include the additional element of recklessness into the offence. This would mean that a prosecutor could prove this offence by demonstrating that the accused was aware (but didn’t know with certainty) of the substantial risk that the smuggled person was or would be entering Canada illegally, but simply didn’t care.

The amendments also provide for escalating mandatory prison sentences for persons convicted of smuggling, reflecting the Government’s intention to more effectively deter and denounce this criminal activity. Under the proposed legislation, the number of people smuggled and the presence of aggravating factors would determine which mandatory prison sentence would be imposed upon conviction.

The two aggravating factors are:

• The offence was committed for profit or for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group; and
• The person, in committing the offence endangered the life or safety of, or caused bodily harm or death to, any of the persons smuggled.

The mandatory prison sentences would be, where less than 50 persons are smuggled:

• 3 years imprisonment if one of the above aggravating factors was present.
• 5 years imprisonment if two of the above aggravating factors were present.

The mandatory prison sentences would be, where 50 or more persons are smuggled:

• 5 years imprisonment if one of the above aggravating factors was present.
• 10 years imprisonment if two of the above aggravating factors were present.

The proposed amendments in the Protecting Canada’s Immigration System Act would further ensure that the definition of “criminal organization” used for criminal law purposes in IRPA is consistent with the definition used in the Criminal Code.

An additional aggravating factor, namely, whether the life or safety of any person was endangered by the offender during the commission of the offence, would also be added to s. 121 of IRPA.

Lastly, the amendments would expand the limitation period for summary conviction offences prosecuted under IRPA.

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