B.C.’s Court of Appeal Tuesday ordered a new trial in a human smuggling case connected to the controversial arrival in 2010 of the ship MV Sun Sea carrying 492 Sri Lankan Tamil refugees.
Kunarobinson Christhurajah was charged in May 2012 and tried with three co-accused: Thampeernayagam Rajaratnam, Lesly Jana Emmanuel and Nadarajah Mahendran.
When the trial ended in January 2017, the co-accused were acquitted and the jury could not reach a verdict on Christhurajah. He was retried and convicted in May 2017.
The unanimous three-judge appeal court decision said the Crown theory at trial was that Christhurajah was part of an organized crime human smuggling operation.
The jury’s inability to reach a conclusion led to a mistrial being declared.
At retrial, the judge instructed the jury that it was a defence for an accused to have been engaged in mutual aid with other asylum seekers, telling them that the appellant’s sole motivation must have been to aid the other asylum seekers and that the defence required “reciprocity of assistance.”
The judge also refused to charge the jury on a humanitarian aid defence.
Christhurajah’s lawyers argued that the charge should be stayed due to unreasonable delay in bringing him to trial.
Failing that, they argued Christhurajah is entitled to a new trial because the judge’s jury charge unduly narrowed the mutual aid defence and should have contained the humanitarian aid defence.
The court agreed there had been a delay but concluded he was entitled to a new trial on the mutual aid argument.
“The humanitarian aid defence did not have an air of reality because no reasonable jury could conclude the appellant’s conduct conformed to humanitarian principles,” the court said.
The court said the refugees paid large sums of money to flee Sri Lanka on the MV Sun Sea.
The court said the Crown’s theory was that “Christhurajah played an integral role in that scheme as the owner of the ship, and the unsafe and overcrowded nature of the ship.”
The trial heard evidence that Christhurajah was managing director of a Bangkok, Thailand company that owned the ship.
In a separate decision, also released Tuesday, the court upheld Rajaratnam, Emmanuel and Mahendran’s acquittals.
Emmanuel was the captain of the ship, testifying he boarded the ship as a passenger and reluctantly took charge to avert disaster for all those aboard. Rajaratnam and Mahendran were not on the MV Sun Sea.
Government records showed that they entered Canada at Pearson International Airport in Toronto within minutes of each other in July 2010.
“The Crown alleged that they were involved in provisioning the vessel and organizing the transfer of the migrants,” the ruling said.
Rajaratnam and Mahendran’s defences focused on identification. On appeal, the Crown submits that the judge erred in charging the jury that the accused were entitled to acquittals if it concluded that they were involved in humanitarian aid or mutual aid, because humanitarian and mutual aid were defences without an air of reality.
A fifth person, Sathyapavan Aseervatham, was also charged, but died before trial.
Reporter Jeremy Hainsworth can be contacted at firstname.lastname@example.org