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OFFENCES AND ENFORCEMENT - Human smuggling and trafficking

Thursday, July 25, 2019 @ 8:08 AM  

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Appeals by the Crown from the acquittal of the respondents charged with human smuggling under s. 117 of the Immigration and Refugee Protection Act and from a finding that s. 36 of the Mutual Legal Assistance Act (MLACMA) was unconstitutional. The respondent E was the captain of a ship that arrived in Canada carrying Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory was that the respondents were part of a human smuggling operation linked to organized crime. E testified that he boarded the ship as a passenger, then reluctantly took charge of the ship after the original crew left the ship. The respondents R and M were not aboard the ship. The Crown claimed they were involved in provisioning the vessel and organizing the transfer of the migrants. Their defences at trial focused largely on the issues of identity and credibility of the migrant witnesses. The Crown made several attempts to admit documents obtained from Thailand. These attempts culminated in a trial ruling that s. 36 of the MLACMA was unconstitutional. The trial judge held s. 36(1) removed a judge’s ability to exclude foreign records solely because they contained hearsay or opinion and eliminated a judge’s gatekeeper role under the principled approach to hearsay because it removed the need for the tendering party to meet the requirements of necessity and reliability. The trial judge instructed the jury that the exceptions to the human smuggling offence of humanitarian aid or mutual aid were an element of the offence and that the Crown was required to prove that the accused were not providing humanitarian aid or asylum-seekers and were not themselves asylum-seekers who were providing mutual aid. As neither M nor R were passengers on the ship, the trial judge instructed the jury that the mutual aid exception could not apply to either of them, but it was up to the jury to determine whether the humanitarian aid or family aid exceptions applied.

HELD: Appeals dismissed. The trial judge did not err in finding that s. 36 violated ss. 7 and 11(d) of the Charter and declaring it to be of no force and effect. However, s. 36 should be declared of no force or effect only with respect to Crown evidence in the criminal trial context. The Crown could not rely on a statutory provision to secure the admission of hearsay evidence at a criminal trial unless the provision was consonant with the principled approach or the provision could be justified under s. 1 of the Charter. Section 36 fundamentally altered the rules governing the admissibility of hearsay in a manner that was inconsistent with an accused’s right to a fair trial. Humanitarian aid and mutual aid exceptions were properly characterized as true defences, not as elements of the offence. Family member aid was not a subset of mutual aid. It was not necessary that providing aid was the accused’s sole motivation and mutuality of effort was not required. The humanitarian aid and mutual aid defences each had four elements. The trial judge’s failure to define the elements of the defences did not have any effect on the outcome. The humanitarian aid defence had no air of reality in respect of R and M and should not have been left with the jury. Their defences focused on identification. The Crown’s identification evidence had significant frailties, and the jury was far more likely to have acquitted on that basis than because of the humanitarian aid defence. The most likely explanation for E’s acquittal was that the jury simply believed him or his evidence raised a reasonable doubt. If E’s evidence was accepted or not disbelieved, he would certainly have had access to the mutual aid defence. The outcome therefore would not have been different.

R. v. Rajaratnam, [2019] B.C.J. No. 1112, British Columbia Court of Appeal, S.D. Frankel, E.A. Bennett and N.J. Garson JJ.A., June 18, 2019. Digest No. TLD-July222019010