The Supreme Court of Canada this week is set to hear arguments in a number of cases calling into question the reach of the country's human smuggling laws.

Four of the five cases involve Sri Lankan migrants, and the fifth involves a Cuban man who fled to Canada, where he was denied refugee status after being convicted of human smuggling in the United States. The five, scheduled for Monday and Tuesday, comprise both criminal cases and admissibility cases, which determine who can make refugee claims.

The BC Civil Liberties Association (BCCLA) is an intervener in a case involving dozens of undocumented Sri Lankan Tamils who arrived on the coast of British Columbia aboard the MV Ocean Lady in 2009. The BCCLA will argue that a section of the federal government's Immigration and Refugee Protection Act (IRPA) is too abstract and therefore unconstitutional.

Story continues below advertisement

"What the government has done in this case is try to convince the court that the purpose behind this legislation is much broader than it really is," Daniel Sheppard, a lawyer for the BCCLA, said in an interview on Sunday. "In doing so, it undermines the constitutional rights that are based upon measuring the purpose of legislation and its effects."

The MV Ocean Lady arrived in B.C. in October, 2009, carrying 76 passengers. The ship's captain and crew were charged with human smuggling under Section 117 of IRPA.

At trial, lawyers for the four defendants argued that the law – which criminalizes the act of assisting anyone entering Canada without valid documentation – was too broad and could extend to people not intended to be prosecuted for human smuggling, including humanitarian aid workers or family members of migrants. B.C. Supreme Court Justice Arne Silverman agreed, finding it in violation of Section 7 of the Charter of Rights and Freedoms, regarding rights to life, liberty and security of the person.

However, that decision was overturned in B.C.'s Court of Appeal, where prosecutors argued that the law was meant to be broad, allowing for prosecutorial discretion.

Mr. Sheppard on Sunday disputed this, citing the 1987 decision R. v. Smith, in which the Supreme Court ruled that a minimum seven-year sentence imposed by Section 5(2) of the Narcotic Control Act was unconstitutional because it would have been applicable to someone importing several ounces of cocaine, and to someone importing a single marijuana cigarette.

"Although I have found the flexibility of this approach attractive, I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct," the court ruled, "if only because of the uncertainty it would create and the prejudicial effects, which the assumed validity or application of the provision might have in particular cases."

The constitutionality of Section 117 of IRPA will determine the fate of the four accused in the criminal MV Ocean Lady case: Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah.

Story continues below advertisement

"It is a principle of law that you can't be convicted of an unconstitutional law, even if it doesn't apply unconstitutionally against you," Mr. Sheppard said. "That's why, if this law is unconstitutional, because it can be used to prosecute a humanitarian aid worker, then not even a true human [smuggler] can be convicted under it."

The outcomes of the admissibility cases – some of which involve some of the 492 migrants who arrived in British Columbia aboard the MV Sun Sea in 2010 – will depend on whether the court believes the Charter is applicable in those cases.