Canadian Refugee Procedure/117-121.1 - Human Smuggling and Trafficking

IRPA Sections 117-121.1

Sections 117-121.1 of the Immigration and Refugee Protection Act read:

PART 3
Enforcement
Human Smuggling and Trafficking

Organizing entry into Canada
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.

Penalties — fewer than 10 persons
(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable
(a) on conviction on indictment
(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or
(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and
(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

Penalty — 10 persons or more
(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

Minimum penalty — fewer than 50 persons
(3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of
(a) three years, if either
(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or
(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or
(b) five years, if both
(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and
(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

Minimum penalty — 50 persons or more
(3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of
(a) five years, if either
(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or
(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or
(b) 10 years, if both
(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and
(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

No proceedings without consent
(4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

Offence — trafficking in persons
118 (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.

Definition of organize
(2) For the purpose of subsection (1), organize, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

Disembarking persons at sea
119 A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.

Penalties
120 A person who contravenes section 118 or 119 is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

Aggravating factors
121 The court, in determining the penalty to be imposed under section 120, shall take into account whether
(a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence;
(b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization;
(c) the commission of the offence was for profit, whether or not any profit was realized; and
(d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.

Definition of criminal organization
121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), criminal organization means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.

Definition of terrorist group
(2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii), terrorist group means a terrorist group as defined in subsection 83.01(1) of the Criminal Code.

Human smuggling is an offence in Canada under section 117 of the IRPA, but Canadian law recognizes a defence to section 117 of the IRPA for those providing humanitarian aid to asylum seekers

Human smuggling is an offence in Canada under section 117 of the IRPA and carries a maximum term of imprisonment of at least 10 years. However, Canadian law recognizes a defence to section 117 of the IRPA for those providing humanitarian aid to asylum seekers. Specifically, Canadian law recognizes defences of mutual aid, family member aid, and humanitarian aid. By way of example, the Canadian humanitarian aid defence has four elements:

1. the accused must act for the purpose of providing humanitarian aid, and not for the purpose of obtaining, directly or indirectly, a financial or other material benefit in the context of transnational organized crime;
2. the accused must provide aid in order to save the life or alleviate the suffering of an asylum seeker, which is a person from another state who intends to seek refuge in Canada from persecution or physical harm;
3. the aid must be humanitarian, a question to be determined by the trier of fact in accordance with the principles of impartiality, neutrality, and independence; and
4. the accused must reasonably believe that the person assisted is an asylum seeker.