LEGAL ODYSSEY ENDS WITH FOUR MORE ACQUITTALS IN B.C. SUPREME COURT
The first vessel — undersized and not built for ocean voyages — laboured toward the B.C. coast in October 2009 with 76 Tamil asylumseekers onboard.
Then in August 2010, a larger ship — but with the same questionable seaworthiness — was intercepted off the coast with 492 Tamil migrants.
The Ocean Lady and Sun Sea passengers all claimed they were fleeing the ravages of civil war in Sri Lanka. But the Conservative government at the time took an aggressive stance — detaining and building cases against many of the asylum-seekers — as part of a campaign to deter future “irregular arrivals.”
A handful of passengers from each ship were also charged with being part of criminal human-smuggling operations.
However, on Thursday, four accused from the Ocean Lady were found not guilty, bringing to seven the total number of acquittals. There has been only one conviction.
“The government has spent years and huge amounts of money to fight the passengers of the Ocean Lady and the Sun Sea — in the courts, in the refugee hearing processes, detaining them as long as they could. All for what?” said Janet Dench, executive director of the Canadian Council for Refugees.
“The charges of criminality and security risks have been shown to be without foundation. … At least we can take pride in the fact that Canadian institutions and courts continue to treat people fairly.”
In the Ocean Lady case, the Crown had tried to argue that Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah played significant roles during the voyage — captain, engine room worker, chief engineer and transportation provider — and thus helped to organize, aid or abet a smuggling enterprise.
But in a decision released Thursday, B.C. Supreme Court Justice Arne Silverman said while there was evidence of organized criminal activity, the Crown had failed to prove beyond a reasonable doubt that the activities of the four men were connected to it or helped to further it.
“There is circumstantial evidence from which it can be argued that common sense dictates that this vessel and voyage could not have been mounted without the assistance of persons involved in organized crime,” Silverman said. “However, there is little evidence of a connection or a furthering ‘through acts’ of the four accused.”
The Supreme Court of Canada helped pave the way for Thursday’s outcome when it found in 2015 that Canada’s human-smuggling laws should not extend to people who are simply assisting family members or providing humanitarian or mutual aid to refugees.
In Thursday’s ruling, Silverman said: “I am satisfied that all of the conduct performed by the four accused was performed in pursuit of that mutual goal and amounts solely to mutual aid.”
All four men smiled, laughed and shook hands in court after the decision came down, The Canadian Press reported.
Mark Jette, a lawyer for one of the accused, said the courts have sent an important message.
“If you’re an internationally active people smuggler or trafficker who’s engaged in this for profit, you’re going to be prosecuted. If you get on a boat and assist yourself and others to get across safely, you’re not a criminal.”
While Thursday’s ruling does not mean the four accused’s refugee claims will automatically be accepted, it does give them a “fighting chance,” he added.
Speaking outside court, Kanagarajah described how he and the other migrants were convinced partway through the ocean journey that they would not survive.
“Most of the refugees believed that we were going to die, because there were so many storms, and the sea was very rough,” he said. “Fortunately we are here today.”
Kanagarajah said he still wants to become a Canadian citizen and plans to go to college to study business.
Earlier this year, three of four men accused of human smuggling in the Sun Sea case — Lesly Emmanuel, Nadarajah Mahendran and Thampeernayagam Rajaratnam — were similarly acquitted by a jury. The jury, however, could not reach a decision regarding a fourth man, Kunarobinson Christhurajah.
Following a retrial, Christhurajah was found guilty in May.
According to the most recent figures available from the Immigration and Refugee Board, eight men from the Ocean Lady were deemed inadmissible and received deportation orders, 36 refugees claims were accepted, and 21 claims were rejected.
In the Sun Sea cases, 22 were ordered deported after being found inadmissible, 230 refugee claims were accepted and 107 claims were rejected.
LITTLE EVIDENCE OF A CONNECTION OR A FURTHERING ‘THROUGH ACTS’ OF THE 4 ACCUSED.