Law Times

Page 10 March 4, 2013 �� Law Times ��� FOCUS Gov���t appealing human smuggling ruling Legislative changes required if decision upheld, lawyers say BY SHARON HO For Law Times T he British Columbia Supreme Court decision to strike down s. 117 of the Immigration and Refugee Protection Act was a good one, according to the Canadian Association of Refugee Lawyers. ���We do not believe it is appropriate to sanction any individuals who do not have any profit motive who help refugee claimants obtain protection in Canada,��� says Lorne Waldman, president of the association. Waldman says he and other refugee organizations have been concerned about the breadth of the legislation for a long time. Section 117 states: ���No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who ���We do not believe it is appropriate to sanction any individuals who do not have any profit motive who help refugee claimants obtain protection in Canada,��� says Lorne Waldman. are not in possession of a visa, passport or other document required by this act.��� In January, B.C. Supreme Court Justice Arne Silverman struck down the section after ruling it infringed s. 7 of the Charter of Rights and Freedoms because it���s ���overbroad��� and ���unnecessarily broad, in that it captures a broader range of conduct and persons than is necessary to achieve the government���s objective.��� Silverman found s. 117 targets criminal groups involved in human smuggling who then use migrants, including refugees. But the broad wording of the legislation meant that humanitarian aid workers and family members assisting refugees, even if they���re not doing so for a ���financial benefit,��� could be subject to criminal sanction under s. 117. ���It is clear that s. 117 makes no distinction for the persons involved or reasons behind the transport to and entrance into Canada or whether or not the accused person has profited from the transportation of persons into Canada,��� he wrote in his ruling. The Crown had argued in this case that s. 117 allowed Canada to stop human smuggling and protect the victims of it. The legislation also let Canada fulfil its international obligations under the migrant smuggling protocol to protect legitimate refugees and prosecute people involved in the activity. The Crown also stated the government worded the defined activity in s. 117 broadly to ensure it had the flexibility necessary to fight human smuggling. The Crown also argued it hasn���t been Canada���s practice to prosecute humanitarian aid workers or family members. But Silverman couldn���t find any international instrument or Canadian legislation that prohibits the prosecution of CANADIAN LAW LIST 2013 YOUR INSTANT CONNECTION TO CANADA���S LEGAL NETWORK Inside you will ���nd: of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law ���rms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; February each year L88804-590 L88804-590 Prices subject to change without notice, to applicable taxes and shipping & handling. related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related of���ces of importance. MORE THAN A PHONE BOOK Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Untitled-1 1 www.lawtimesnews.com 13-01-29 3:10 PM humanitarian aid workers or close family members. Silverman ruled it���s now Parliament���s responsibility to change the law. He wrote in his ruling that he wasn���t criticizing Parliament���s goal of passing legislation that targets human smuggling. The decision, he said, was about Parliament���s move to pass legislation that ���is more broad than the government���s objective and which infringes s. 7 of the Charter of Rights.��� Kevin Lamoureux, the Liberal party���s immigration critic, doesn���t think the government thought about the implications of the legislation, how it could affect Charter rights, and whether the courts could strike it down. ���The government has given a low priority to the legality [of the legislation],��� says Lamoureux. ���They just take a basic line.��� Sharryn Aiken, Queen���s University���s associate dean and an associate professor of law, believes the government must reform the legislation to exempt humanitarian workers who aren���t helping refugee claimants for financial reasons. ���It is simply not enough for the government to say, ���Trust us,������ says Aiken. A spokesperson for Public Safety Minister Vic Toews referred a request for comment to the Public Prosecution Service of Canada. The prosecution service is now appealing the ruling and seeking a stay of it at the British Columbia Court of Appeal in the meantime, wrote spokeswoman Sujata Raisinghani in an e-mail. Waldman believes if the appeal court upholds the ruling, the government will need to change the legislation ���to properly focus on the persons deserving of criminal sanctions so they will be punished but those who are not will not be caught in the net of what is too broad.��� Aiken believes the problem of human smuggling into Canada worsened when the government ended its source country class of humanitarian-protected persons abroad program in 2011. The program used to provide a way for potential refugees to approach Canadian embassies to get help in obtaining a Canadian visa. ���Now there���s no way for a refugee claimant to get a visa unless they resort to smuggling,��� says Aiken. Silverman���s ruling has delayed the trial of four men ��� Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah, and Vignarajah Thevarajah ��� who face accusations of smuggling 76 Sri Lankan Tamils aboard the vessel MV Ocean Lady to Canada in 2009. The trial for six people accused of smuggling 492 Tamils on the vessel MV Sun Sea in 2010 was on track to follow the first case but is now also on hold. LT

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