The hypocrisy of policies against people smuggling
It is not from the Supreme Court that the impetus for changing our hypocritical policies must come.
Canada opposes “people smuggling” ― the transportation of consenting persons across national borders which they lack authorization to cross. The executive has entered into international agreements that call on countries to prosecute smugglers. Parliament has implemented these agreements by enacting provisions of the Immigration and Refugee Protection Act that make smugglers inadmissible to Canada if they are foreign nationals (which, among other things, means that if they claim refugee protection, their claims can be dismissed without being determined on the merits) and expose people involved in smuggling operations to stiff fines and lengthy prison terms.
Last week, the Supreme Court issued a pair of decisions which, although they narrow the potential scope of these provisions, ensuring that they can only be applied to those smugglers who reap financial or otherwise material benefits from their activities ― and not to humanitarians or people helping family members ― fully endorse this anti-smuggling stance. In the first paragraph of one of these decisions, B010 v. Canada (Citizenship and Immigration), Chief Justice McLachlin, writing for a unanimous court, opined that:
The smuggling of human beings across international frontiers is a matter of increasing concern all over the world. Those who are smuggled pay large sums for what are frequently life-threatening journeys to countries for which they have no documentation or right of entry. … The smugglers, for their part, cynically preys on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face. The smugglers’ activities are often controlled by extensive transnational criminal organizations, which Canada and other states seek to combat through multilateral cooperation.
We justify these hypocritical laws by appeals to security, but ― as we have seen in the debate over Syrian refugees ― it is very doubtful that this concern is a serious one.
This ringing statement is most unfortunate. It is oblivious to the role that states, including Canada, play in creating a dangerous and expensive market for the smugglers’ services. It also ignores the galling hypocrisy at the heart of the refugee policies of Canada and other rich countries.
By making it presumptively illegal for people who are on a “desperate search for better lives” to cross international borders, states create demand for assistance to those who are determined to embark on such a search, and are prevented from simply jetting off to a peaceful, prosperous future. Some of this demand is met by charitable institutions and family members. But because this supply is insufficient, there also emerges a for-profit supply, which states in turn criminalize under the pretense of protecting the desperate from exploitation. Yet by criminalizing those who make money providing a service for which people are desperate, states both reduce the supply of this service and increase the risks for which the suppliers who remain (or enter into) this now black market want to be compensated. Inevitably, the prices the suppliers charge go up in response, and well-meaning people unable or unwilling to think in economic terms wax indignant about the cynicism of it.
Indeed, as Mollie Gerver recently argued in a post for Democratic Audit UK, criminalization of “smuggling” creates perverse incentives for the people who want to avoid the penalties that will be imposed on them if they are caught. Consider, for example, the story of the Sun Sea, the ship on which many of the appellants in B010 sailed to Canada across the Pacific. As the Chief Justice observes, “[s]hortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices,” for a voyage that would last three months. Why did the crew do it? It is easy, of course, to describe them as greedy, cynical predators. That’s what the Chief Justice does. But it should be obvious enough that the criminalization of “smuggling,” which she and her colleagues forcefully endorse, creates a very strong incentive for them to behave in just this way, in order to avoid imprisonment in Canada.
Ostensibly, Canada (and other rich countries) is committed to welcoming people fleeing persecution. But, in reality, it puts up obstacles in the path of those who want to come here, and enacts laws that ensure that people who try to get around those obstacles pay dearly, and put their lives at risk in doing so. It is, as I have argued here and here, an instance of rank hypocrisy. We justify these hypocritical laws by appeals to security, but ― as we have seen in the debate over Syrian refugees ― it is very doubtful that this concern is a serious one. Rather, it seems that, as in the case of prostitution, drugs and, increasingly, smoking, we seem to try to scare or disgust people out of undertaking an activity which we deem undesirable but are too squeamish ― or too realistic ― to actually outlaw. This is hypocrisy too, and we should put an end to it as soon as possible. The fact that international law forbids us from doing so is no excuse. As in the case of the criminalization of marijuana (and other drugs), international law on this point is unjust, and has no claim to our obedience.
Needless to say, it is not from the Supreme Court that the impetus for changing our hypocritical policies must come. The Court must only answer the legal questions that are presented to it, as it did in last week’s decisions ― except in that unfortunate paragraph in B010. Indeed, the Court would arguably be overstepping its role were it to engage in social commentary questioning the wisdom or justice of policies whose constitutionality is not in question before it (except to a limited extent in one of the cases). But by the same token, the Court should also refrain from engaging in social commentary endorsing such policies. Not only does the Court run the risk of being badly wrong and, in effect, of giving its imprimatur to a glaring injustice but, by going out of its way to bless a government policy, it oversteps the boundaries of its constitutional role just as surely as if it went out of its way to damn it.