VANCOUVER – Four men accused of smuggling dozens of Tamil migrants into Canada were simply part of the effort to get themselves and the rest of the asylum seekers across the Pacific Ocean, their lawyers told a court on Wednesday.
Mark Jette said in closing arguments at the B.C. Supreme Court trial that the men, like the rest of the migrants, were seeking a better life and their work aboard the MV Ocean Lady wasn’t facilitating organized crime.
Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah, Vignarajah Thevarajah are accused under the Immigration and Refugee Protection Act of smuggling 76 migrants on board a cargo vessel from Thailand to the coast of British Columbia in October 2009.
Crown attorney Maggie Loda told the court on Tuesday the men were in control of the vessel and were out to make a profit on those who wanted asylum in Canada.
But defence lawyers Jette and Fiona Begg, who represent two of the men, told the court that the evidence fails to prove the accused were in charge or profited in any way out of the voyage.
“This is a group attempting to get away from terrible conditions in their home country,” Jette said. “We’re not comparing it to a cruise ship ticket.”
He said his client, Thevarajah, was among a few who received basic instruction on how to operate the engine room just before they embarked on the voyage. But he said it was a necessary skill for the group to proceed and there was no rational as to why Thevarajah was chosen for training nor did it suggest he was in charge.
Jette also listed several examples where witness testimonies and notes from border agents and other investigators were inconsistent, vague or lacked details, making it impossible to prove any one person on board was in charge.
Begg said her client, Anthonimuthu Appulonappa, didn’t receive preferential treatment while aboard the dilapidated vessel and his living conditions were equal to the other migrants.
She said rooms in the upper deck, where the accused allegedly slept, were no better than the main cargo hold where the majority of migrants lived.
“These were rooms the size of a cupboard,” she said. “They couldn’t have possibly been comfortable, nor were they private.”
In 2015, the Supreme Court of Canada ordered a new trial for the men after ruling portions of the Immigration and Refugee Protection Act were unconstitutional and shouldn’t automatically brand those who help migrants as people smugglers.
The high court determined that those providing humanitarian aid, including family members, would be exempt from the smuggling law.
The prosecution argued that the high court’s exemptions don’t apply to the accused because they had a role in organizing and executing the voyage, which aided in a money-making scheme where agents charged the migrants thousands of dollars for passage.
Jette said the courts should not begin weighing how much aid is too much or not enough to determine if anyone was in charge.
“We can’t hive them off into categories,” he said. “This was clearly a collective effort, in my submissions, to get from there to somewhere better.”
Jette said his client also claims to have paid a $10,000 deposit to an agent for his passage on the voyage and promised to make a second $10,000 payment once in Canada.
Although the migrants claim to have paid varying fees to agents to take part in the journey, Jette said the evidence fails to prove that the voyage was not a humanitarian act.
He said the law is intended to prosecute transnational and organized crime.
Lawyers representing Handasamy and Kanagarajah are expected to deliver their closing arguments on Friday.