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

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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.

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