In a January 11 ruling, a Canadian judge in the provincial British Columbia Supreme Court struck down a section of the Canadian government’s ‘human smuggling’ law for being “unnecessarily broad”. The immediate effect is the adjournment of the trials of four Eezham Tamil refugees who arrived aboard the Ocean Lady in 2009. All four had been charged with ‘human smuggling’ under Section 117 of the Canadian ‘Immigration and Refugee Protection Act’ (IRPA). Section 117 of the IRPA defines ‘human smuggling’ and imposes mandatory minimum sentences for convicted ‘human smugglers.’ However Justice Silverman’s ruling in the R. v. Appulonappa case found Section 117 of the IRPA “overbroad” and a violation of the principles of fundamental justice guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms.
Justice Silverman struck down Section 117, declaring it “to be of no force or effect.”
Jury selections for the trials of Francis Appulonappa, Hamalro Handasamy, Jeyachandran Kanaharajah, and Vignaraja Theverajah were due to begin on January 16.
Canadian Prime Minister Stephen Harper had repeatedly promised legislation to target ‘human smugglers’ in response to the arrival of Tamil refugees aboard the Ocean Lady on October 17 2009, and the MV Sun Sea on August 13 2010.
Section 117 of the IRPA is the result of attempts by the Conservative Harper government to amend the IRPA following mass arrivals of Eezham Tamil refugees. Amendments to the IRPA to define ‘human smuggling’ and impose mandatory minimum sentences upon ‘human smugglers’ were first introduced as the failed Bill C-49 in the Canadian House of Commons in October 2010.
Once the Conservatives had secured a parliamentary majority, the IRPA was amended through Bill C-4, the ‘Preventing Human Smugglers from Abusing Canada’s Immigration System Act’ which was introduced in June 2011.
When Bill C-4 was tabled in parliament it was criticized by refugee and human rights organizations like the Canadian Council for Refugees and the Canadian Civil Liberties Association as being anti-refugee rather than anti-smuggling.
Section 117 (1) of the IRPA states “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 document required by this Act.”
In the R. v. Appulonappa ruling, Justice Silverman found Section 117 (1) “overbroad” because it criminalizes the actions of humanitarian aid workers as well as close family members. Section 117 (1) and the mandatory minimum sentences laid out in Section 117 (2) and (3) do not distinguish between criminal groups or organization exploiting migrants and those who act out of compassion and concern for the lives and safety of migrants.
Justice Silverman noted that Section 117, as it stands, could criminalize a migrant parent for the ‘human smuggling’ of their child. Justice Silverman’s ruling cites failure of Section 117 to solely target criminal activity for material benefit as reasoning for finding Section 117 in violation of the principles of fundamental justice laid out in Section 7 of the Canadian Charter of Rights and Freedoms. Section 117 was therefore ruled unconstitutional.
Reacting to this development, Eezham Tamil political observers in Canada speculate three courses of action that the Conservative government may take.
The government can appeal for a stay of the ruling so that the legislation remains in effect while continuing to appeal the content of the ruling to the Supreme Court. It can amend Section 117 of the IRPA to be more specific, and then charge the accused again. Or, the Conservative government can drop the charges altogether which seems the most unlikely, they argue.