Human smuggling law ruling being appealed
VANCOUVER—The Crown will appeal a B.C. Supreme Court decision that struck down a section of the federal government’s human smuggling law.
Prosecutor Peter LaPrairie told the judge yesterday that the Crown fears the ruling leaves a gap in the law which could affect immigration cases, extradition, and other human smuggling prosecutions.
The case will return to court Friday, when the Crown will ask the judge to stay the charges, pending an appeal of the ruling in the case of four men accused of human smuggling.
In a decision rendered under a publication ban and released publicly last week, Silverman found that section 117 of the Immigration and Refugee Protection Act is overly broad.
The law 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 by this Act.”
Silverman suggested the federal government reword the law that was amended by the Conservative government with much fanfare after two ships carrying Tamil migrants arrived off the B.C. coast.
“It is clear that Canada’s objective in passing s. 117 is to stop human smuggling and to protect victims of human smuggling in accordance with her international obligations,” Silverman wrote in the Jan. 11 ruling.
However, that section of the law “captures a broader range of conduct, and persons, than is necessary to achieve the government’s objective.”
While the term “human smuggling” appears in the heading, it does not appear anywhere in the body of the law, which means it could criminalize the activities of humanitarian workers and family members helping refugees, Silverman wrote.
“Section 117 does not expressly refer to human smuggling or to smuggling operations,” the judge wrote.
“This section is much broader than that, criminalizing any assistance given to persons coming to Canada who are not in possession of appropriate documentation.”
Silverman declared this section of the law of no force and effect.
Peter Edelmann, the lawyer who represents accused Hamalraj Handasamy, said it will be up to the Crown whether to file other charges but the human smuggling case will end this Friday with either a stay, an acquittal, or quashing of the indictment against his client and three co-accused.