Comment on BC Supreme Court ruling striking down smuggling law

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The Canadian Council for Refugees welcomes the recent decision by the BC Supreme Court striking down a section of the immigration legislation, on the grounds that it criminalizes humanitarian acts to protect refugees.

The section has been a grave concern to refugee workers in Canada, particularly since charges were laid five years ago against Janet Hinshaw-Thomas, a representative of a refugee support organization in the US. Although the charges against her were eventually dropped, people across Canada who work with refugees felt intimidated, because they knew that the law was so broad that it criminalized many activities to assist refugees.

In his recent decision (R. v. Appulonappa, 2013 BCSC 31), Justice Arne Silverman found that section 117 of the Immigration and Refugee Protection Act, which criminalizes human smuggling, violates the Canadian Charter of Rights and Freedoms because it is so broadly worded that it includes humanitarian actions to help refugees.

The relevant section struck down by the decision reads: “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 required by this Act.” (The wording of the section has recently been amended, but remains overly broad in the way the judge found unacceptable).

Most refugees must depend upon other people “aiding and abetting” them in escaping persecution and getting to a country where they can find safety. Those people may be family members, friends, compassionate strangers or humanitarian workers. The actions they take to help protect refugees must not be defined as criminal – on the contrary they are honourable actions to defend human rights, actions of which they can be proud.

Five years ago, the Canadian Council for Refugees called on the government to amend the law so that no one acting on humanitarian motives would fear prosecution. We now call upon the government to respect this court judgment, rather than appealing it, and to re-draft section 117 to comply with the Charter and Canada’s international obligations.

The Canadian Council for Refugees also invites Canadians to join in a campaign to declare that we are proud to protect refugees, to show our support for ensuring refugees find safety and their basic rights are respected.

For more information about the charges laid against Janet Hinshaw-Thomas, and the response by the CCR and others in the “Proud to Aid and Abet Refugees” campaign, see http://ccrweb.ca/aidandabet/index.htm