The RCMP’s case against the men who organized the MV Sun Sea humansmuggling operation could fall apart if the B.C. Court of Appeal upholds a decision that the law is unconstitutional.
Denied bail, Kunarobinson Christhurajah, 33, is waiting for the judge’s decision from behind bars at Fraser Regional Correctional Centre in Maple Ridge.
“The RCMP, they say: ‘You’re a peoplesmuggler.’ I’m not a people-smuggler,” Christhurajah insists. Listed as owner of the ship, he is one of six men charged with human smuggling in connection wit the operation that brought 492 Tamils to Canada on Aug. 13, 2010.
Those prosecutions are in limbo after a B.C. trial judge in January dismissed humansmuggling charges against the four men accused of bringing 76 Tamil migrants into Canada on the Ocean Lady, which arrived 10 months earlier in October 2009.
Justice Arne Silverman struck down section 117 of the Immigration and Refugee Protection Act, saying it is unconstitutional based on findings that the law is overly broad. He said it could criminalize the actions of humanitarian workers or family members bringing in refugees.
The federal government took the case to the B.C. Court of Appeal, which heard arguments on both sides Oct. 8 and 9. It could be weeks before the judge renders a decision.
If he agrees with Silverman that the law is constitutional, the six MV Sun Sea charges will likely be thrown out.
Denied bail, Christhurajah has been held in Fraser Regional Corrections Centre in Maple Ridge since the ship arrived. Every night he calls his wife, Mary Petrecia Christhurajah, 26, and their two-year-old daughter, Bynnthavy, who live in Vancouver on social assistance. Mary Petrecia has been accepted as a refugee.
“I only got to hold my baby one time,” he said, breaking into tears. “I’m a hard worker, but my family is living alone.”
Bynnthavy was born April 25, 2011, so nurses believe the child was conceived during the 12-week voyage from Thailand to Canada.
On their visits to see Christhurajah in prison, Mary Petrecia said Bynnthavy presses her tiny hand up against the glass to connect with her father.
“She puts her cheeks against the glass and she kisses him on the other side of the glass,” she said, speaking through a Tamil translator.
Christhurajah maintains he’s a refugee, not a criminal.
He said that when he was nine years old, he and his brother were imprisoned for nine months because the Sri Lankan army was looking for his father, who they suspected was fighting with the Liberation Tigers of Tamil Eelam.
In 2008, while Sri Lanka was still in the grip of a bloody civil war between the Sri Lankan government and the Tamil Tigers, Christhurajah and his wife fled for Thailand. Mary Petrecia was accepted as a refugee by the United Nations High Commission for Refugees and was told to wait for resettlement.
Mary Petrecia said she waited two years but no countries offered resettlement.
She said the couple faced constant harassment from Thai officials, who would threaten imprisonment unless a bribe was paid. Thailand is not a signatory to the Refugee Convention, so refugees there are considered illegal immigrants and are subject to arbitrary and indefinite detention. The couple heard about a cargo ship heading to Canada, Christhurajah said.
Christhurajah claims that the ownership documents of the MV Sun Sea were written in Thai, and he didn’t understand he was taking ownership. He said he thought he was agreeing to be a crew member to reduce the cost of the voyage on the ship to $25,000 for him and his wife, which his father paid, instead of $25,000 each.
“I didn’t know when I sign it, it says I’m the owner,” Christhurajah said. “They said: ‘You go as a crew member.’ “
According to the National Post, Christhurajah had been identified as a suspect in the Sun Sea operation even before the ship left Southeast Asia. He was the director of the Sun & Rashiya Co., which was registered in Thailand in 2008 for “trading and agricultural products” and later purchased the Sun Sea, then named the Harin Panich 19, the newspaper reported.
Christhurajah was among four men arrested when Thai police raided an apartment building in June 2010. Police seized supplies and engine parts they believed were being stockpiled for the voyage of the Sun Sea, including more than 500 litres of engine lubricant oil, the National Post reported.
The men were fined and handed over to immigration police for deportation, but Christhurajah disappeared and made it onto the ship.
After the arrival of the MV Sun Sea, RCMP carried out a complex international investigation that required more than 700 interviews and co-ordination among police forces in Thailand, Australia, France and Norway.
In May 2012, Christhurajah, Lesly Jana Emmanuel and Thayakaran Markandu were charged with human smuggling, which carries a possible life sentence and $1-million fine. Markandu was arrested in France, and Canadian authorities were trying to extradite him here.
A month later, RCMP charged three more men, two Canadians from the Toronto area, Thampeernayagam Rajaratnam and Nadarajah Mahendran, and a Sri Lankan man, Sathyapavan Aseervatham. Aseervatham had already been deported to Sri Lanka in July 2011.
Aseervatham signed an affidavit in 2012 saying he was tortured and held in custody for a year. He has since died in a motorcycle crash, which people in the Tamil community suspect was a murder.
Emmanuel, the alleged captain of the ship, Mahendran and Rajaratnam have been released on bail with conditions.
“They released them. I don’t know why they don’t release me,” Christhurajah said.
He said after his name was first published in the media, Sri Lankan officials went to his parents’ house and interrogated them. He has since not been in touch with his family in that country for fear his criminal charges are putting them at risk.
Christhurajah said his brother, who also came on the ship, is living in Vancouver, and his refugee claim is being processed.
Christhurajah said he has written letters to the Red Cross, Amnesty International and the United Nations High Commission for Refugees with no response.
“My lawyer told me: ‘This is a political game,’ “ Christhurajah said.
His lawyer, Greg DelBigio, did not return calls for comment.
The RCMP said in a statement it would be inappropriate “to speculate on the implications of a court decision or to comment on this matter while it is before the courts.”
The prosecutor for the case, Peter LaPrairie, said if the human smuggling law is found unconstitutional, the ruling would affect the cases against 95 people across the country.
REFUGEE CLAIMS FROM THE MV SUN SEA AND OCEAN LADY
Of the 492 passengers on the MV Sun Sea, 29 people have been issued deportation orders. Most of the deportation orders are for being part of the ship’s crew, and nine deportation orders were issued because the passengers were found to be members of an organization “engaging in terrorism.”
Two men from the Sun Sea remain in immigration detention. They have detention review hearings every 30 days before the IRB.
There are 117 people who have been accepted as refugees, 117 people who have had their claims rejected and 23 claims have been withdrawn. Many claims are still pending.
Of the 76 men aboard the Ocean Lady, 27 men have been accepted as refugees while 19 men have had their claims rejected. One claim has been withdrawn and several claims are still pending.
There have been deportation orders against four passengers on the Ocean Lady.
(Source: Immigration and Refugee Board, as of the end of September)
The CBSA would not answer questions as to whether the agency worked with Sri Lankan officials on the case of Sathyapavan Aseervatham case, citing privacy rules.
CBSA said a “temporary suspension of removals” is imposed on a country “when the entire civilian population faces a generalized risk as a result of a catastrophic event, such as a natural disaster, armed conflict or other extraordinary disruption.”
The five countries to which Canada will not deport people are Afghanistan, the Democratic Republic of Congo, Haiti, Iraq and Zimbabwe.
An administrative deferral of removals can be issued by the CBSA when immediate action is needed in response to a humanitarian crisis.
“Individuals with criminal records, those deemed to be serious security risks, war criminals or individuals who committed crimes against humanity or those persons who voluntarily choose to return home can be removed from Canada notwithstanding [temporary suspension of removals or administrative deferral of removals]” the CBSA said in a statement.
“Immigration legislation specifies that those under removal must be removed as soon as possible.”
CBSA said 124 people were deported back to Sri Lanka in 2012.
@ Copyright 2013