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A Canadian Border Services Agent stands next to migrant ship The Ocean Lady during a Canadian government news conference announcing a series of new reforms to combat human smuggling in Delta, British Columbia October 21, 2010. The Ocean Lady in October 2009 carried 76 illegal Tamil migrants to Canada.


A British Columbia Supreme Court judge has taken the bluster out of the Conservatives' campaign against illegal migrants by striking down a section of the law targeting human smuggling, putting at least two high-profile prosecutions in limbo.

In February, 2011, Prime Minister Stephen Harper vowed to toughen asylum laws as he stood aboard one of the ships used to bring Tamil migrants to Canada in 2009 and 2010.

Now, B.C. Supreme Court Justice Arne Silverman suggests the government go back to the drawing board on a key section of the legislation.

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It means a trial that was set for later this month for four men accused of ferrying Tamils aboard the first boat in fall 2009 has been adjourned.

The ruling also has implications for a second prosecution in connection with hundreds more migrants who arrived by boat the following year, and any future potential cases of human smuggling.

A publication ban was lifted on Monday on the ruling issued last Friday by Judge Silverman, who found that a section of the Immigration and Refugee Protection Act infringes on Charter rights because it is "unnecessarily broad."

He said the result could lead to the prosecution of people such as humanitarian workers.

As the law stood, a human smuggler was defined as anyone who might "knowingly organize, induce, aid or abet" someone coming to Canada who does not have a visa, passport or other required documentation.

The judge declared section 117 of the act to be of no force or effect, saying federal politicians now need to fill the legislative gap.

"This is not the court's job, nor does it have the authority to choose what those priorities are or should be. This is the job of Parliament," Judge Silverman ruled.

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A spokeswoman for Public Safety Minister Vic Toews said the government is reviewing the decision.

"Human smuggling is a dangerous and despicable crime. Our message is clear to those contemplating a human smuggling operation – don't do it," Julie Carmichael said in an e-mail.

Prosecutor Peter LaPrairie of the Public Prosecution Service of Canada was due back before the judge on Jan. 21 to discuss how the Crown would proceed.

Phil Rankin, a lawyer for one of the accused, said he was pleased with the ruling, while noting he anticipates it will be appealed until a decision is delivered by the highest court in the country.

"I'm not very clear on what it means to assist refugees. I've worked with refugees all my life and I've assisted them all my life," he said. "Am I an aider and abetter to smuggling? Because the section is so broad then perhaps I am."

NDP immigration critic Jinny Sims said the judge's decision shows the Conservative government rushed as it amended the legislation.

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"Every one of us agrees we have to address human smuggling," Ms. Sims said.

"But this Bill C-31 does actually nothing to address the real issues of human smuggling, but does more to punish the victims of the smugglers in the first place."

She said the Opposition is more than willing to help with a rewrite.

The Crown had been preparing to argue the four men should be found guilty of human smuggling related to the fall 2009 arrival of the MV Ocean Lady.

Jury selection was scheduled to begin on Wednesday for the accused: Francis Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah.

But those proceedings were cancelled on Monday and the trial, set to begin later in the month, was adjourned.

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Mr. LaPrairie noted the only charges against the men were laid under the section of the act the judge struck down. He couldn't say if the Crown would appeal the decision.

A second trial for six people accused of human smuggling in the case of the second vessel, the MV Sun Sea, was set to begin after the Ocean Lady prosecutions had concluded.

"I don't think this is going to mean that there is going to be flotillas coming to Canada," Mr. Rankin said of the impact of the decision. "Frankly, I think it just means this prosecution is not going ahead until the government tightens up their legislation and makes it constitutionally trustworthy."

University of Victoria professor Scott Watson, who specializes in refugee law, said the concerns raised by the judge have been top-of-mind for refugee advocates and opposition parties since the bill's creation.

He said potential next steps by the Tories would include appealing or rewriting the legislation to include exemptions.

The ruling is a blow to the government, while advocacy groups will view it positively, he added.

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"The government will have to pay more attention to how you can fight human smuggling and trafficking, yet at the same time provide protection to refugees," he said.

Prof. Watson said current human smuggling cases across the country will likely be put on hold, as the B.C. ruling sets a precedent and the government will want to get a final decision before it proceeds with prosecutions.

In the B.C. case, all of the accused remain out on bail and are living in Ontario.

Mr. Rankin said his client was happy when told of the decision, but he warned him not to celebrate just yet.

"I said 'Don't start planning your future too quickly," he said on Monday outside court. "They're all in a limbo as to what happens to them."

Among the 76 men who arrived on the Ocean Lady in fall 2009, 15 have been accepted as refugees, 15 have had their claims rejected, one claim has been withdrawn and three men have been issued deportation orders.

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The MV Sun Sea, which carried 492 Tamil migrants, also had women and children aboard. Among them, 50 people have been accepted as refugees, 63 people have had their claims rejected and 23 claims have been withdrawn.

The arrival of the vessels and subsequent, lengthy detention of those aboard prompted the Conservative government to pass tough new immigration laws aimed at preventing human smuggling. The government also buoyed international police with millions of dollars to block illegal operations before they could sail to Canada.

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