Prosecutor Peter LaPrairie told B.C. Supreme Court Justice Arne Silverman on Monday that the Crown fears the ruling leaves a gap in the law which could affect immigration cases, extradition and other human smuggling cases.
"I'm hoping we can conclude this case as quickly as possible and appear before the Court of Appeal," LaPrairie said during a brief hearing in Vancouver.
On Friday, the Crown will return to court to ask the judge to stay the charges, pending an appeal of the ruling in the case of four men accused of human smuggling.
In a decision rendered under a publication ban and released last week, Silverman found that Section 117 of the Immigration and Refugee Protection Act is overly broad.
The law states: "No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document by this Act."
Silverman suggested the federal government reword the law that was amended by the Conservative government with much fanfare after two ships carrying Tamil migrants arrived off the B.C. coast.
"It is clear that Canada's objective in passing S. 117 is to stop human smuggling and to protect victims of human smuggling in accordance with her international obligations," Silverman wrote in the Jan. 11 ruling.
However, that section of the law "captures a broader range of conduct, and persons, than is necessary to achieve the government's objective."
While the term "human smuggling" appears in the heading, it does not appear anywhere in the body of the law, which means it could criminalize the activities of humanitarian workers and family members helping refugees, Silverman wrote.
"Section 117 does not expressly refer to human smuggling or to smuggling operations," the judge wrote. "This section is much broader than that, criminalizing any assistance given to persons coming to Canada who are not in possession of appropriate documentation."
Silverman declared this section of the law of no force and effect.
Peter Edelmann, the lawyer who represents accused Hamalraj Handasamy, said it will be up to the Crown whether to file other charges, but the human smuggling case will end this Friday with either a stay, an acquittal or quashing of the indictment against his client and three co-accused.
"But with respect to S. 117, it's clear this prosecution will not proceed ... unless Justice Silverman's ruling is overturned on appeal," Edelmann said outside court.
Handasamy, Francis Appulonappa, Jeyachandran Kanagarajah and Vignarajah Thevarajah are charged with human smuggling in relation to the arrival of 76 people aboard the MV Ocean Lady off the B.C. coast in October 2009.
Another ship carrying 492 Sri Lankan migrants, the MV Sun Sea, arrived in August 2010.
Six men face human smuggling charges in the Sun Sea case, and those prosecutions are in limbo pending the outcome of the Ocean Lady appeal. The Crown suggested in court Monday that two other human smuggling prosecutions currently before the courts are also affected.
In the Ocean Lady case, all of the accused remain out on bail and are living in Ontario, while two of the six accused in the Sun Sea case remain in custody.
Among the 76 men who arrived on the Ocean Lady in the fall of 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.
Of the 492 Tamil migrants aboard the Sun Sea, 50 have been accepted as refugees, 63 people have had their claims rejected and 23 claims have been withdrawn.
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