The federal government tried to get tough on human smugglers, but a judge got tough on the government for using a law that could catch too many people in its net.
After two boatloads of Tamil migrants arrived off Victoria in 2009 and 2010, the federal government promised to crack down on illegal immigrants and on human smugglers who prey on desperate people. There is no question that we must halt human smuggling by criminal gangs bent only on profit, but in its eagerness, the government risks criminalizing both the desperate and those who want to help them for humanitarian reasons.
The judgment released Monday was in a case against four of the men on the MV Ocean Lady, which arrived off the B.C. coast in the fall of 2009. The four were charged under Section 117 of the Immigration and Refugee Protection Act. The law, which dates back to 2002, defines human smugglers as those who “knowingly organize, induce, aid or abet” someone to enter Canada without a visa, passport or other required documents.
Those who bring in 10 or more people can be fined $1 million and imprisoned for life.
The defence argued, and Justice Arne Silverman agreed, that the law is too broad. It says nothing about smuggling people for profit, so it could apply to family members who help their relatives or to humanitarian workers.
The government lawyers argued that that would never happen because part of Section 117 requires that all charges be approved in advance by the federal attorney general. The government’s policy and international agreements state that those who help migrants for humanitarian reasons are not to be charged.
But that leaves the protection of family members and humanitarian workers up to the attorney general, rather the security of the law, which is not sufficient. Just ask aid worker Janet Hinshaw-Thomas.
Hinshaw-Thomas, the American founder and director of Prime Ecumenical Commitment to Refugees, was charged under the act in 2007 when she brought a group of Haitian asylum-seekers to the Canada-U.S. border. When she told Canadian border officials she collected a $250 fee to cover the group’s costs, she was charged — with the approval of then-attorney general Robert Nicholson.
Although the charges were later stayed after a public outcry, it was clear that the requirement for ministerial approval was not a guarantee against abuse.
The judge in the Ocean Lady case ruled that Section 117 has “no force and effect” because it is too broad, and must be rewritten to be more specific about who is targeted. The ruling says nothing about the guilt or innocence of the four men.
Although that section of the act predates the Conservative government, the Crown’s attempts to defend it are part of its efforts to portray the Ocean Lady and Sun Sea as the first waves of a flood of seaborne migrants trying to enter Canada.
The government’s new, tougher laws, which came into effect in December, include holding migrants who come by ship in provincial jails. There is an unstated assumption that these people are not legitimate refugees, so it’s OK to treat them like criminals.
In fact, as the Times Colonist’s Katie DeRosa pointed out in her series last year, the 492 people on the Sun Sea were the equivalent of one week’s worth of refugee claims received by Canada. The vast majority of asylum-seekers arrive by plane.
The federal government is right to crack down on the criminals who smuggle people for profit, but in its efforts to be seen as acting on two notorious incidents, it risks subjecting people fleeing persecution to still more persecution.