Suspected human smugglers free following B.C. judge’s ruling

Published: January 14, 2013

The ruling on Friday by B.C. Supreme Court Justice Arne Silverman came as the trial of four men accused in the smuggling of 76 Sri Lankan Tamils aboard the MV Ocean Lady (pictured) off the coast of B.C. in 2009 was about to begin. Adrian Lam/Times Colonist files

KEITH FRASER
VANCOUVER DESI

A B.C. judge has struck down Canada’s law against human smuggling, putting in jeopardy two major prosecutions involving the smuggling of Tamils into the country.

The ruling on Friday by B.C. Supreme Court Justice Arne Silverman came as the trial of four men accused in the smuggling of 76 Sri Lankan Tamils aboard the MV Ocean Lady off the coast of B.C. in 2009 was about to begin.

The judge initially imposed a publication ban on the ruling but on Monday he lifted the ban.

Court heard that the trial of the four accused was being adjourned pending a decision by the federal Crown on how to proceed.

Silverman’s ruling also affects the prosecution of six men charged with smuggling 492 Tamils aboard the MV Sun Sea in 2010.

That prosecution was scheduled to begin – also in B.C. Supreme Court in Vancouver – following the trial of the four men accused in connection with the MV Ocean Lady case.

In an executive summary read out in court, the judge found that section 117 of the Immigration and Refugee Protection Act was overbroad because it cast too wide a net.

The defence lawyers had argued that in addition to genuine smugglers, the law also captures the acts of categories of persons – including humanitarian workers and close family members of refugees – who the Crown did not intend to prosecute.

The judge said the law has a legitimate objective – to prosecute the problem of human smuggling – but agreed with the defence that it was too sweeping.

“The only appropriate remedy is that s. 117 be declared, in the words of s. 52 of the Constitution Act, to be of no force or effect.”

Outside court on Friday, Vancouver lawyer Phil Rankin, who represents one of the accused, said the ruling was “good news” because it protects people – mothers, sisters, husbands, wives – who might have had only a remote connection to the smuggling.

He said the Crown will likely stay the charges against the four accused – Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah – and launch an expedited appeal.

“We’re at the lowest rung in the ladder.This is going to the Supreme Court of Canada, I believe.

The four accused, all of whom are on bail, remain in Ontario, where there is a large Tamil community.

All have filed refugee claims, but those claims were suspended pending the outcome of prosecution, said Rankin.

“Now it’ll be very interesting to see whether they can proceed with their refugee claims or not.”

Rankin said Monday that he’d spoken to his client, who was happy with the ruling.

“But I said, ‘Don’t be too happy. It doesn’t mean you’re not going to be prosecuted in the future.”

Peter Edelmann, another defence lawyer, said Friday that the law has long been a concern with people who aid and abet refugees.

“There are many people in Canada who work with refugees and do aid and abet refugees in a number of different ways,” he said.

“What the judge said today is that the government itself argued that it wouldn’t prosecute people in those circumstances. Unfortunately the law doesn’t reflect that.”

In an e-mail, a spokeswoman for the Public Prosecution Service of Canada said the ruling was being reviewed and the case was still before the court.

“The court has agreed to have the matter go over a week, at which time the Crown will advise the court of what steps it proposes to take in light of the ruling.”

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