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Human smuggling law struck down

VANCOUVER — A British Columbia Supreme Court judge has taken the bluster out of the Conservative’s campaign against illegal migrants by striking down a section of the law targeting human smuggling, putting at least two high-profile prosecutions in limbo.

In February 2011, Prime Minister Stephen Harper vowed to toughen asylum laws as he stood aboard one of the ships used to bring Tamil migrants to Canada in 2009 and 2010.

Now, B.C. Supreme Court Justice Arne Silverman suggests the government go back to the drawing board on a key section of the legislation.

It means a trial that was set for later this month for four men accused of ferrying Tamils aboard the first boat in fall 2009 has been adjourned.

The ruling also has implications for a second prosecution in connection with a boat of hundreds more migrants who arrived the following year, and any future potential cases of human smuggling.

A publication ban was lifted Monday on the ruling issued Friday by Silverman, who found a section of the Immigration and Refugee Protection Act infringes on charter rights because it is “unnecessarily broad.”

He said the result could lead to the prosecution of people like humanitarian workers.

As the law stood, a human smuggler was defined as anyone who might “knowingly organize, induce, aid or abet” someone coming to Canada who does not have a visa, passport or other required documentation.

The judge declared section 117 of the act to be of no force or effect, saying federal politicians now need to fill the legislative gap.

“This is not the court’s job, nor does it have the authority to choose what those priorities are or should be. This is the job of Parliament,” Silverman ruled.

A spokeswoman for Public Safety Minister Vic Toews said the government is reviewing the decision.

“Human smuggling is a dangerous and despicable crime. Our message is clear to those contemplating a human smuggling operation — don’t do it,” Julie Carmichael said in an email.

Prosecutor Peter LaPrairie, with the Public Prosecution Service of Canada, was due back before the judge on Jan. 21 to discuss how the Crown would proceed.

Phil Rankin, a lawyer for one of the accused, said he was pleased with the ruling, while noting he anticipates it will be appealed until a decision is delivered by the highest court in the country.

“I’m not very clear on what it means to assist refugees. I’ve worked with refugees all my life and I’ve assisted them all my life,” he said. “Am I an aider and abetter to smuggling? Because the section is so broad then perhaps I am.”

NDP immigration critic Jinny Sims said the judge’s decision shows the Conservative government rushed as it amended the legislation.

“Every one of us agrees we have to address human smuggling,” Sims said. The Crown had been preparing to argue the four men should be found guilty of human smuggling related to the fall 2009 arrival of the MV Ocean Lady.

Jury selection was scheduled to begin on Wednesday for the accused: Francis Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah.

But those proceedings were cancelled on Monday and the trial, set to begin later in the month, was adjourned.

Among the 76 men who arrived on the Ocean Lady in fall 2009, 15 have been accepted as refugees, 15 have had their claims rejected, one claim has been withdrawn and three men have been issued deportation orders.

The MV Sun Sea that carried 492 Tamil migrants also had women and children aboard. Among them, 50 people have been accepted as refugees, 63 people have had their claims rejected and 23 claims have been withdrawn.

The arrival of the vessels and subsequent, lengthy detention of those aboard prompted the Conservative government to pass tough new immigration laws aimed at preventing human smuggling. The government also buoyed international police with millions in funding to block illegal operations before they could sail to Canada.

 
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