Prosecution of six charged in Tamils human smuggling case still in jeopardy

Published: February 15, 2013


The MV Sun Sea cargo ship docked at CFB Esquimalt in Victoria, B.C., Aug. 17, 2010. Darren Stones/Times Colonist files

B.C.’s highest court has refused a bid by federal prosecutors to suspend a ruling that struck down Canada’s human smuggling law.

Friday’s decision by the B.C. Court of Appeal to decline a federal Crown application to issue a stay — or temporary suspension — of the ruling means that the prosecution of six Sri Lankan men charged with smuggling 492 Tamils into Canada remains in jeopardy.

In January, B.C. Supreme Court Justice Arne Silverman declared that the law was overly broad and unconstitutional and quashed charges against four Sri Lankan men accused of smuggling in 76 Tamils aboard the MV Ocean Lady in 2009.

That ruling also put into limbo the federal prosecution of the six men accused of smuggling in the 492 Tamils aboard the MV Sun Sea in 2010.

Judge Silverman suspended his declaration that the law was of no force and effect for 30 days to allow the Crown to seek the stay of the declaration pending an appeal of the ruling.

On Friday, federal prosecutors appeared before a three-member panel of the B.C. Court of Appeal seeking the stay.

However, they quickly ran into opposition from the panel, who questioned whether the higher court had the jurisdiction to grant such an order.

Crown counsel Paul Riley responded by noting that following a recent high-profile civil case in which Canada’s criminal law against assisted-suicide was struck down by the B.C. Supreme Court, the high court granted a stay of the declaration of invalidity pending appeal.

He said it would be “absurd and almost ridiculous” for the high court to now refuse jurisdiction to hear a stay application in a criminal case involving the striking down of a criminal law.

“I would say many people would look at that and say it makes no sense,” said Riley. “It’s not only incredibly technical but it seems to ignore … that there is a concern about a gap in the legislation.”

Riley added that prosecutors were simply trying to maintain the rule of law.

But B.C. Court of Appeal Justice Peter Lowry said contrary to the Crown’s submission, he did not believe the Criminal Code allowed such a stay application to be heard by the court in the circumstances.

He said the only appeal that can be heard now by the court is regarding the decision by the judge to quash the indictment.

“But the Crown is not seeking a stay of that order. The Crown actually seeks a stay of the precedential effect of what was a determination of a constitutional issue. That is not a stay that in my view is open to an appellate court to grant.”

He declined to make the stay and his ruling was agreed to by Justice David Frankel, who was active in the questioning of the Crown, and Madam Justice Ann MacKenzie.

Outside court, federal prosecutor Peter LaPraire said the Crown hadn’t decided what it will do about the Appeal Court ruling but that added that it will likely have to go back before Justice Silverman.

Meanwhile the clock is ticking, as Justice Silverman’s suspension of declaration of invalidity of the law is expected to expire Feb. 25. The Sun Sea case, which has no trial date, is back in court Feb. 27.

Lawyers in the Sun Sea case have already filed a constitutional challenge similar to the one filed in the Ocean Lady case and are expected to seek to have the charges against the six accused quashed.

Justice Silverman found that the law was overly broad since it targeted individuals — including humanitarian workers — who the Crown did not intend to prosecute.

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