TAMILS: Vancouver judge quashes charges against four accused of people smuggling

Tamils waving aboard the MV Ocean Lady in 2009. Four men charged with smuggling 76 Tamils aboard the ship have had their charges dismissed by a B.C. judge.

BY Keith Fraser
The Province
A B.C. judge who struck down Canada’s human smuggling law on Friday quashed the charges against four men accused of bringing 76 Tamils into Canada in 2009.
B.C. Supreme Court Justice Arne Silverman also suspended his declaration of invalidity of the law for 30 days so the federal Crown can go to the B.C. Court of Appeal and apply for a stay or further suspension of the ruling, pending a possible appeal.
The decisions by the judge followed his ruling on Jan. 11 that Section 117 of the Immigration and Refugee Protection Act was overbroad and unconstitutional.
Complicating the issue was the fact that the smuggling law was amended in December, prior to Silverman’s ruling.
The judge said he agreed with the Crown’s argument that the striking down of the law created a void in past prosecutions, including 95 criminal charges that were laid prior to the December amendment.
The Crown argued that the ruling meant authorities were powerless to deal with those past cases, leaving the public unprotected.
The judge said he had “great concern” about the void that was created and the need to protect the public, in light of the 95 cases, nine of which are in B.C.
He said if there was no suspension of the declaration of invalidity, there was a question about what might happen to the 95 accused.
“I’m concerned about whether or not they might be released into the community when arguably they should not be,” he said in brief reasons of judgment.
“Conversely, I also have concerns that persons should have to continue to face charges perhaps without bail when there is an existing decision which has struck down the section under which they are charged.”
The Crown and defence agreed that in the circumstances, the charges against the four accused should be quashed and the judge made that declaration.
The four men — Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah — are on bail and living in Ontario, where there is a large Tamil community. They weren’t in the Vancouver courtroom Friday.
All four men have filed refugee claims but those claims were suspended pending the outcome of the prosecution.
The men were arrested after the 76 Sri Lankan Tamils aboard the ship came in off the coast of B.C. in 2009.
Silverman’s ruling is also expected to impact the case of six men charged with smuggling 492 Tamils aboard the MV Sun Sea in 2010. That prosecution was scheduled to follow the MV Ocean Lady case.
In his ruling striking down the law, the judge said that the law captures categories of persons — including humanitarian workers and close family members of refugees — who the Crown did not intend to prosecute.
He said the law had a legitimate objective — to prosecute the crime of human smuggling — but agreed with the defence that it was too sweeping and violated the accused’s right to life, liberty and security of person.
It is anticipated that the case will eventually wind up in the Supreme Court of Canada, a process which could take several years.
kfraser@theprovince.com
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