Federal Skilled Worker Class Action Lawsuit

[warmest]

Decision by B.C. Supreme Court delays two trials for men accused of ferrying Tamil migrants to Canada

Published on Monday January 14, 2013, Petti Fong, Western Canada Bureau

VANCOUVER—Four men charged with human smuggling as part of a massive operation that brought dozens of Sri Lankan Tamils across the Pacific had their case suspended Monday after a B.C. Supreme Court judge threw out a section of Canada's human smuggling laws.

The decision, which will almost certainly be appealed, forces the federal government to rewrite a section of the Immigration and Refugee Act after the judge ruled it could possibly lead to criminal charges against humanitarian workers and family members of refugee claimants.

Justice Arne Silverman found the section, known as the human smuggling provision, is overly broad. Section 117 of the act makes it a criminal offence for someone to knowingly organize or aid and abet someone coming into Canada without proper documentation.

The Crown argued the section, which first became law nearly a decade ago, is consistent with Canada's goals and international obligations, as a signatory to various international agreements aimed at stamping out illegal migration.

But lawyers for the accused said the section casts too wide a net.

The ruling is intended to strike down the provision and give the government the chance to rewrite it, said Sean Rehaag, who teaches immigration and refugee law at Osgoode Hall Law School.

“If the government doesn't appeal this and does not get a stay, it will no longer be illegal to assist people in coming to the country without valid documents,” he said Monday. “That's why it will almost certainly be stayed because the government is not going to be willing to accept that.”

Crown lawyer Peter LaPrairie said the government is assessing the ruling and will consider its options. He said the case returns to court next week to determine what happens to the accused men, who still face charges.

The four accused, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah, arrived in B.C. along with with 72 other males on board the Ocean Lady in October 2009.

Three of those men have been issued deportation orders, 15 were accepted as refugees and 15 had their claims dismissed. One has withdrawn his refugee claim.

http://www.thestar.com/news/canada/article/1314826--decision-by-b-c-supreme-court-delays-two-trials-for-men-accused-of-ferrying-tamil-migrants-to-canada

 

[warmest]

Human-smuggling law too broad: court
Decision throws into question cases involving Tamil migrants

By Douglas Quan, Postmedia News; With A File From Tara Carman, Vancouver Sun January 15, 2013

Canada's human-smuggling law is "unnecessarily broad" and should be returned to Parliament, a B.C. judge has ruled, throwing into question the trials of two groups accused of bringing hundreds of Tamil migrants to the West Coast in 2009 and 2010.

In striking down section 117 of the Immigration and Refugee Protection Act, B.C. Supreme Court Judge Arne Silverman was careful to say the ruling was not meant to attack the federal government's "legitimate goal" of targeting the problem of human smuggling. But the way the law is written has the potential to criminalize not just individuals who seek to exploit migrants but well-meaning family members and humanitarian workers, Silverman said.

Federal prosecutors are reviewing the ruling and will advise the court of its plans in a week, Sujata Raisinghani, a spokeswoman for the Public Prosecution Service of Canada, said Monday.

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

The judge's ruling comes as jury selection was to begin this week in the case of four men accused of smuggling 76 Sri Lankan Tamils to Canada aboard the vessel MV Ocean Lady in the fall of 2009.

That process has now been cancelled and defendants Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah - all living in Ontario - have been told they do not need to appear in Vancouver for now.

A second trial for six men accused of smuggling 492 Tamil migrants aboard the MV Sun Sea in the summer of 2010 was set to follow.

Vancouver lawyer Phil Rankin, who represents one of the accused in the Ocean Lady case, said Monday he expects the Crown to stay the charges and appeal the ruling.

As written, 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."

Someone convicted of smuggling 10 or more people faces a maximum penalty of life imprisonment and a $1-million fine.

Crown prosecutors had said the law was consistent with Canada's goals to fight human smuggling and that flexibility was needed to assess each case. Plus, most other countries have taken the same broad approach.

But defence lawyers argued the law cast too wide a net and could ensnare legitimate humanitarian aid workers or family members who help refugees escape persecution and violence.

The vast majority of refugees who come to Canada have been helped by someone along the way, Rankin said.

"Almost all come without documents, they almost all come without the proper paperwork and they're almost all helped by somebody (who) could theoretically be guilty of smuggling them. Only difference being the attorney-general has to consent to the prosecution and so far they've been consenting only in the cases where the boats are involved," he said. "Abetting is just encouraging. So anybody that encourages someone to get to Canada is guilty of smuggling."

The judge agreed, declaring the section of the act to be "unnecessarily broad in that it captures a broader range of conduct, and persons, than is necessary to achieve the government's objective, and thereby infringes Sec. 7 of the Charter," Silverman said.

The judge noted that the definition of human smuggling in international law includes mention of some kind of financial motive. But it is not up to the court to decide how to rewrite the law. "This is the job of Parliament."

Refugee advocates years ago called on the federal government to narrow its definition of human smuggling after an American humanitarian worker, Janet Hinshaw-Thomas, was charged after accompanying 12 refugee-seeking Haitians to the Quebec border in September 2007, Janet Dench, executive director of the Canadian Council for Refugees, said Monday.

The charges against her were dropped following a public outcry, which included a letter from three former attorneys general and three former ministers of immigration who wrote that there was a "crucial distinction to be made between the criminal organizations that derive enormous profits from smuggling human beings across borders illegally, and the numerous refugee assistance organizations and dedicated individuals who assist those fleeing persecution and torture."

As of Monday, 15 of the Ocean Lady migrants had been accepted as refugees, 15 had been rejected and one claim had been withdrawn.

Meanwhile, 50 of the Sun Sea migrants had been accepted as refugees, 63 had been rejected, and 23 claims had been withdrawn.

http://www.vancouversun.com/news/Human+smuggling+broad+court/7820490/story.html

 

[st-cnncomes]

You are wrong on both issues:
1. You are wrong by stating that by refunding my fees CIC has paid its debt for few simple reasons:
a. The fees were paid many years ago but are going to be refunded without any interest. Any private, public or government body recognizes they need to pay interest, except CIC of course.
b. In the contrast to new applications, the pre-2008 applications were made in simplified process - i.e. there was no need to submit any supporting documents except the application forms. On a later stage, when CIC was ready to process the application it requests the applicants to submit the supporting documents. Once CIC decided to move on with the application and already requested to submit additional documents, such as IELTS, translations, medical checks, PCC, etc, but later decided to slash the file without further processing , it is CIC liability to refund the applicants also the costs of obtaining the additional documents they have requested.
c. A contract can be broken, that's right, but the breaking party is liable to the damage caused by its breaking the contract. And I do hope that the court will find CIC liable. I am not part of this litigation as I do not believe something will come out of it. Not because the cause is not justified but because I don't believe the CoJ have the power and will to oblige CIC do anything at all.
2. For the theoretical case I brought earlier, I am giving an example of an applicant who is up to CIC standards by old and new rules. Who is also eligible to apply on different classes of immigration even now. BUT, due to the ministerial decision, old case is closed without processing, and the applicant has no other choice but reapply and wait again. Now, who is going to benefit from it? The applicant who has to go over the procedures and costly process again remaining in the vulnerable position of foreign worker? Or perhaps CIC who needs to do still X work on old case + full new work on the new case for the same amount of application fees?

I can tell you one thing. If a similar case would be happening to those applying for citizenship, rest assured the issue would be raised to much higher levels of public discussion and CIC with his head would be punished, administratively and electorally.

And believe you me the damages will be astronomical. Jason Kenny will end up wearing G-Strings. Some jokers believe that immigration is a privilege, on the contrary keeping skilled people on hold is the biggest privilege, it comes with a price. By the way was Kenny shopping for panties in India ?

 

[cljw31]

And believe you me the damages will be astronomical. Jason Kenny will end up wearing G-Strings. Some jokers believe that immigration is a privilege, on the contrary keeping skilled people on hold is the biggest privilege, it comes with a price. By the way was Kenny shopping for panties in India ?

So you are imagining a man wearing G-String? you would like to see man wearing G-String? your hobby?

 

[Dalaga]

My application when checked on line, the space supposed to be telling the status of application is now changed to blank from "in process". Is this really it? Oh, so much time wasted in collating the requirements, taking IELTS etc and also money for the processing fee.... I can't still comprehend.. water,please..

 

[wounderful]

My application when checked on line, the space supposed to be telling the status of application is now changed to blank from "in process". Is this really it? Oh, so much time wasted in collating the requirements, taking IELTS etc and also money for the processing fee.... I can't still comprehend.. water,please..

Same for me. CIC doing extra work on our files now..... except processing. i.e. Free of cost. ;D

 

[wounderful]

Same for me. CIC doing extra work on our files now..... except processing. i.e. Free of cost. ;D

Any one has similar situation please share .

 

[CanadaSet]

same here..

from "in process" to "decision made" and now "blank"... what is happening... what does this mean... ???

 

[topchi]

Mr Tuyen,

From your posts on this forum, its clear that you are waiting to rub your hands in glee at the outcome of the case. You have said enough about the futility of it all. Dont you think its time you just SHUT UP.

Those who feel that they have been unfairly treated have a right to resort to legal options, even if its eventually fails them. While you espouse 'Free Speech', your posts does not demonstrate that you practice the same..Accept the fact that other people also have this Right, and its not exclusively your privilege.

It is creditable that you have taken on the responsibility of discouraging one and all against wasting their hard earned money. You also deserve all the accolades for educating the forum members with your wisdom, and un solicited advice. But sadly…. Its repetitive and does not add value.

You seem to be under the false impression that you need to respond to each and every post …each and every sentence in them…While the CIC may give you brownie points for them, they are actually irritants.

Fine…we agree that CIC does not have to take our permission to make changes to its policies…that they have done no wrong by pressing the delete button on the pending applicants……that they do not owe us any interest for the application money …that the people who are resorting to litigation have been fooled by the lawyers….and that they are delusional…But wont you just let them be….let them make their own decisions even if its faulty.

At some places you say that you don’t have a crystal ball to tell about the future...but all your posts belie this ….you have already forecasted some fancy Human Rights voilations suit. Whoever you are, you are an immigrant yourself....What if someday, some learned Minister, in the interest of Canada, comes up with another proposal to send back all your kind to their respective countries…….a bill that says that all immigration was against what the country needed…..and all immigrants who call themselves Canadians now….be done away with.

Don’t you think that it would be so productive for the country that adopted you, if you channelised your time and energy to be of some value to them…..rather than rant on this forum……You know that people here are whiners…and losers…

I am sanguine that you would surely respond to this post……and attempt to tear it into shreds …..as is ur wont…

 

[tuyen]

same here..

from "in process" to "decision made" and now "blank"... what is happening... what does this mean... ???

What do you THINK it means? If you were part of the pre-2008 applicants, take a wild guess as to what it might mean. If you don't get it on the first guess, I'll even give you a second guess.

 

[topchi]

What do you THINK it means? If you were part of the pre-2008 applicants, take a wild guess as to what it might mean. If you don't get it on the first guess, I'll even give you a second guess.

You dont have to ..... STOP being the Lord around please...would you

 

[tuyen]

Mr Tuyen,

From your posts on this forum, its clear that you are waiting to rub your hands in glee at the outcome of the case. You have said enough about the futility of it all. Dont you think its time you just SHUT UP.

Why should I shut up? In Canada, we're allowed to speak freely and even disagree with each other. And yes, I realize that for those of you in Taliban-controlled countries, this concept is completely alien to you, but you really need to learn to understand it, embrace it, and accept it if you ever plan on living in Canada some day.

While you espouse 'Free Speech', your posts does not demonstrate that you practice the same..Accept the fact that other people also have this Right, and its not exclusively your privilege.

Please point me to just ONE single example where I told somebody to "shut up" or asked them to stop talking or stop posting or to stop sharing their opinions.

You can't, because I never said anything even remotely close to that. Just because I have a different viewpoint than most in this thread, doesn't mean I want to take away their right to express themselves. I've never told anybody to shut up or to stop posting - not even to those who have tried to prevent me from expressing myself. So it makes it all the more absurd that you attack me on violating free speech, when you don't even seem to know what that is.

It is creditable that you have taken on the responsibility of discouraging one and all against wasting their hard earned money. You also deserve all the accolades for educating the forum members with your wisdom, and un solicited advice. But sadly.... Its repetitive and does not add value.

Maybe it doesn't add value to YOU, but I'm sure others feel differently. And I don't care if it's a thousand others, or a hundred others, or just one single person. If I can prevent even one person from wasting their money on this ridiculous lawsuit, I'm happy to do it. Similarly, if I can bring a much-needed dose of reality to the lawsuit participants and get them to have a FAR more realistic expectation on the outcome, I'm happy to do it.

You seem to be under the false impression that you need to respond to each and every post ...each and every sentence in them...

More nonsense.
Just as you don't seem to know what "free speech" is, you likewise don't seem to know what "each and every post" means. Go ahead and count the number of posts in this thread, and then count my replies. "Each and every post" would require there to be an equal number of posts from me as from everyone else. And guess what: the numbers aren't even close.

I respond only when I see something utterly nonsensical being said, or when a post is directed at me. The other 99% of the posts I just ignore completely.

What if someday, some learned Minister, in the interest of Canada, comes up with another proposal to send back all your kind to their respective countries.......a bill that says that all immigration was against what the country needed.....and all immigrants who call themselves Canadians now....be done away with.

Let's put aside the absurdity of your scenario for a moment, and completely ignore the fact that such a bill would effectively slash the population of Canada from 35 million people down to around 1.5 million which, of course, would completely collapse the country in less than a day. But okay, let's overlook that for now. If such a bill ever made its way into an actual law, and the Supreme Court of Canada ruled that it was okay, then I would pack my bags and go. Only a real fool would try to live in a country where he's not wanted.

Don't you think that it would be so productive for the country that adopted you, if you channelised your time and energy to be of some value to them.....

You have no idea who I am or what I do, nor do you have the slightest inkling as to how much I've already given back to Canada both in terms of service AND in tax dollars AND in jobs I provide to people who are able to not only feed their families, but are able to do so very comfortably. But why am I not surprised that once again you seem perfectly willing and able to make a bombastic statement without so much as a shred of thought put into it?

 

[hopefulever]

Like order of Supreme Court of Pak. What a Gutful man. Such type of Judges are need of present days. Salute to Justice Choudhry.

 

[warmest]

Mr Tuyen,

From your posts on this forum, its clear that you are waiting to rub your hands in glee at the outcome of the case. You have said enough about the futility of it all. Dont you think its time you just SHUT UP.

Those who feel that they have been unfairly treated have a right to resort to legal options, even if its eventually fails them. While you espouse 'Free Speech', your posts does not demonstrate that you practice the same..Accept the fact that other people also have this Right, and its not exclusively your privilege.

It is creditable that you have taken on the responsibility of discouraging one and all against wasting their hard earned money. You also deserve all the accolades for educating the forum members with your wisdom, and un solicited advice. But sadly.... Its repetitive and does not add value.

You seem to be under the false impression that you need to respond to each and every post ...each and every sentence in them...While the CIC may give you brownie points for them, they are actually irritants.

Fine...we agree that CIC does not have to take our permission to make changes to its policies...that they have done no wrong by pressing the delete button on the pending applicants......that they do not owe us any interest for the application money ...that the people who are resorting to litigation have been fooled by the lawyers....and that they are delusional...But wont you just let them be....let them make their own decisions even if its faulty.

At some places you say that you don't have a crystal ball to tell about the future...but all your posts belie this ....you have already forecasted some fancy Human Rights voilations suit. Whoever you are, you are an immigrant yourself....What if someday, some learned Minister, in the interest of Canada, comes up with another proposal to send back all your kind to their respective countries.......a bill that says that all immigration was against what the country needed.....and all immigrants who call themselves Canadians now....be done away with.

Don't you think that it would be so productive for the country that adopted you, if you channelised your time and energy to be of some value to them.....rather than rant on this forum......You know that people here are whiners...and losers...

I am sanguine that you would surely respond to this post......and attempt to tear it into shreds .....as is ur wont...

topchi: Worthy observations and comments. Well done.

 

[jevan]

Like order of Supreme Court of Pak. What a Gutful man. Such type of Judges are need of present days. Salute to Justice Choudhry.

Chief Justice of Pakistan ZINDABAD.....Waiting to say the same for Justice Rennie.