LE­GAL ODYSSEY ENDS WITH FOUR MORE AC­QUIT­TALS IN B.C. SUPREME COURT

National Post (National Edition) - - FRONT PAGE - DOU­GLAS QUAN

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.

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