The Canadian Press - ONLINE EDITION

B.C. Court of Appeal orders new trials for four alleged human smugglers

  • Print

VANCOUVER - A new trial has been ordered for four men accused of human smuggling in connection to one of the cases that prompted a federal government crackdown on the offence.

In a unanimous ruling Wednesday, the B.C. Court of Appeal overturned a January 2013 decisions by the B.C. Supreme Court that found a section of the Immigration and Refugee Protection Act was too broad.

B.C. Supreme Court Justice Arne Silverman ruled Section 117 infringed on charter rights because humanitarian workers could be prosecuted under the act. Silverman ruled the section was unconstitutional and the charges were dismissed against the men.

But B.C. Court of Appeal Justice Kathryn Neilson disagreed, saying the act was not too broad.

"Parliament intended to create a broad offence with no exceptions, directed to concerns of border control and the particular issue of deterring and penalizing those who assist others in entering Canada illegally," said Justice Kathryn Neilson in a written ruling.

Neilson said while there may be difficult cases in which prosecutions are unpalatable, she noted that Parliament also enacted a centralized process so attorneys general could assess all circumstances, including motive, before proceeding with charges.

Neilson set aside the acquittals and ordered new trials for Francis Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah.

The Crown alleged the men organized the voyage of the MV Ocean Lady and were the captain and chief crew members. The ship was stopped off the west coast of Vancouver Island Oct. 17, 2009, and authorities found 76 Tamil migrants aboard. None of the people aboard had the proper documents to enter Canada.

Phillip Rankin, legal counsel for Kanagarajah said the decision was bad for refugee rights.

He said the court "moved the gates even wider" on who could be prosecuted under the act.

"We had said that it was too broad to know when you were going to be prosecuted for that particular offence ... and they said basically it's even broader than that. It's basically dealing with even non-refugee issues."

Rankin said all four men will be seeking leave to appeal to the Supreme Court of Canada.

Peter Edelmann, counsel for Handasamy, said he was also disappointed with the results.

Josh Paterson, executive director of the BC Civil Liberties Association, an intervener in the case, said the organization believes the law is still to broad.

He said the legislation could still be used, hypothetically, against a brother helping his sister to leave a country where she is being persecuted, or church groups who are trying to help refugees.

"If you don't intend to prosecute the brother helping his sister, the church group helping a refugee, then don't write a law that lets you do it," he said. "Why should you write a law so broad to allow you to make those kinds of prosecutions, and then say, 'oh, yes, but we won't do that?'"

Paterson said if the four men decide to appeal the case to the Supreme Court of Canada his organization has "every intention of intervening."

The B.C. Appeal Court ruling stated the migrants told Canadian authorities they paid $5,000 when they boarded the ship in Indonesia or Thailand and were to pay $30,000 to $40,000 for the voyage.

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

Another ship carrying 492 Sri Lankan migrants, the MV Sun Sea, arrived in August 2010.

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes


  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.


Make text: Larger | Smaller


Tree remover has special connection to Grandma Elm

View more like this

Photo Store Gallery

  • A young gosling flaps his wings after taking a bath in the duck pond at St Vital Park Tuesday morning- - Day 21– June 12, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)
  • A gaggle of Canada geese goslings at Woodsworth Park in Winnipeg Monday- See Project Honk Day 05- May 07, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)

View More Gallery Photos


Should political leaders be highly visible on the frontlines of flood fights and other natural disasters?

View Results

View Related Story

Ads by Google