Human smuggling laws unconstitutional

In two cases involving ships carrying Tamil refugees to Canada’s shores, the Supreme Court has ruled that federal immigration laws denying entry to human smugglers are unconstitutional.

Those laws could be used to bar from Canada or prosecute anyone who performs a humanitarian act, including passengers helping one another or family members giving aid to their relatives, the court said in unanimous rulings written by Chief Justice Beverley McLachlin. And that is out of step with the laws’ stated purposes and Canada’s international obligations for refugee protection, she said.

One of the laws criminalized aiding people coming to Canada without valid documentation. The other law banned people smuggling in the context of transnational crime.

Under the former Conservative government’s interpretation of the immigration laws, “a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution,” Chief Justice McLachlin wrote.

In one of the two cases before the court, several Tamils had been ruled inadmissible to Canada for performing duties on the Sun Sea ship carrying 492 refugees from Sri Lanka to British Columbia in 2010. But they had taken up those duties, they said, only after the initial crew abandoned ship. The other case involved four men criminally accused of human smuggling for organizing a boatload of 76 Tamils in 2009, also to B.C.

The court said the two laws in question should now be read as if they forbid only human-smuggling efforts that are done for profit, as part of international organized crime. The four men in the second case will still have to face trial.

The ruling came as Canada prepares to bring in 25,000 Syrians from refugee camps in Jordan, Lebanon and Turkey by the end of February.

“This decision is a reminder of our humanitarian traditions,” Daniel Sheppard, a Toronto lawyer who represented the B.C. Civil Liberties Association in one of the cases, said in an interview. He said that the government of Stephen Harper had supported such a broad reading of the laws in question, it could have criminalized an Afghan mother rescuing her child from the Taliban.

One of the two laws dates from 1988, under the Brian Mulroney government, and the other from 2001, under Jean Chrétien. Parliamentary debates showed that in neither case did the government wish to prosecute people for offering humanitarian aid; however, the governments at the time found it difficult to write the laws in a way that would let humanitarian cases through.

The federal government argued that interpreting “people smuggling” to require a financial benefit would not catch smuggling done for reasons of sexual exploitation or terrorism. But the court replied that several other laws already make individuals suspected of involvement in those crimes inadmissible to Canada.

Immigration, Refugees and Citizenship Minister John McCallum could not be reached for comment. (Globe and Mail)