The decision was handed down on Friday and released yesterday. Justice Arne Silverman ruled section 117 of the Immigration and Refugee Act that makes human smuggling an offence violates the constitution and is of no force or effect.
The case of R v. Appuloppa
stemmed from the arrival of the MV Ocean Lady in British Columbia in October, 2009. The ship carried 76 Sri Lankan Tamils, none of whom had visas to enter Canada or proper documentation. All members of the ship made refugee claims after docking in Canada.
After an investigation, it was believed Appuloppa and three others had organized the illegal entry into Canada and the four were charged with human smuggling. The trial was scheduled to begin later this month. A pre-trial motion made by defense counsel resulted in the ruling that the section under which the charges were laid was unconstitutional.
At the time the offences were alleged to have been committed, section 117(1) read, "No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport, or other documents required by the Act."
The alleged smugglers argued the section was overbroad because it did not make an exception for family members and humanitarian workers who helped genuine refugees flee persecution. The accused pointed out that under international agreements against human smuggling, the offence is limited to where there is "a financial or other material benefit" to the smuggler.
They also argued the same principles found under s.133 of the Immigration and Refugee Protection Act
should apply to those who assist refugee claimants without receiving a benefit. Section 133 states that a person who comes to Canada and makes a refugee claim cannot be charged with an offence pertaining to entry unless and until they have finally been determined not to be a Convention refugee.
The Crown argued that "the financial or other material benefit" exception need not be specifically stated under Canadian law nor in international agreements. It was conceded it was not the intention of the federal government to prosecute relatives or humanitarian workers.
Prosecutors also argued under section 117(4) of the Act, prosecution for human smuggling cannot be commenced without the consent of the Attorney General of Canada. The Crown also argued the legislation achieves a valid government objective even though it is broad.
In his decision, Justice Silverman found that the section was overbroad in that it encompassed people that even the government of Canada agreed would never be prosecuted (family members and humanitarian workers assisting genuine refugees). The inclusion of those persons did not seek to achieve a governmental objective. He further ruled this cannot be overcome by the requirement to obtain the consent of the Attorney General before a prosecution can be commenced.
It was determined section 117 breached the principles of fundamental justice set out in section 7 of the Charter of Rights
and the section was struck down. Section 7 states everyone has the right to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice.
reports, the decision also affects the trial of six persons charged in relation to the arrival in Canada of the MV Sun Sea in 2010. The Sun Sea also docked in Canada carrying Tamils who made refugee claims. The trial of the six was to have begun after the Ocean Lady trial, now cancelled, was concluded.
The Toronto Star
reports that of the 76 men who arrived in 2009, 15 have been determined to be Convention refugees, 15 had their cases dismissed, and one person withdrew his claim.
The charges against the four men have been stayed meaning the prosecution can be recommenced within a year. The government can either appeal the decision or Parliament could rewrite the legislation to restrict prosecutions to persons who allegedly smuggle people into the country for monetary gain.