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Accused smugglers of 492 Tamils were acting for humanitarian reasons, defence says

Keith Fraser, Postmedia Network

The MV Sun Sea cargo ship is docked at CFB Esquimalt in Victoria, B.C., on Aug. 17, 2010, after being intercepted at sea with hundreds of refugees on board. Two of the men who arrived on the ship are still being detained.

The MV Sun Sea cargo ship is docked at CFB Esquimalt in Victoria, B.C., on Aug. 17, 2010, after being intercepted at sea with hundreds of refugees on board. Two of the men who arrived on the ship are still being detained.

Lawyers for two of four men accused of helping smuggle 492 Tamil migrants into Canada aboard a cargo ship say their clients were acting for humanitarian reasons.

Kunarobinson Christhurajah and Lesly Emmanuel, along with their two co-accused, have pleaded not guilty in connection with the arrival of the migrants aboard the MV Sun Sea off the B.C. coast in 2010.

On Thursday, Christhurajah's lawyer, Casey Leggett, told a B.C. Supreme Court jury that the Crown had failed to prove that what his client was doing was not humanitarian.

"What he was doing was humanitarian. He was mutually assisting his fellow Tamil asylum seekers and his wife," Leggett said in his final submissions in a Vancouver court.

The Crown's theory was that the migrants were charged a fee, generally a $5,000 down payment, to be on the ship, with an additional $25,000 owing when they arrived in Canada. The prosecution says the accused assisted the migrants to come to Canada without the proper travel documents. But Leggett said there was no evidence that Christhurajah had profited or that he had received any money or compensation for his actions.

"If the Crown is going to ask you to conclude that he profited, the Crown is going to be asking you to guess."

Leggett noted the vessel was substandard and no doubt the prosecution will argue that it should not have been used to transport people across the Pacific Ocean and put people's lives at risk.

But he said his client and his wife were both on the boat and argued it would be "contrary to common sense" that someone who was intending to exploit another person by charging a fee and putting them on an unsafe vessel would themselves get on the vessel.

The defence lawyer said that his client and his wife and the people on board the MV Sun Sea, all of them Tamils from Sri Lanka, were fleeing "terrible persecution" arising from a bloody civil war in their home country.

Many Sri Lankan people had been kidnapped, tortured and arbitrarily detained during the war and the people on the boat feared being returned to Sri Lanka, so they did what they could to come to Canada, a safe country, said Leggett, who asked the jury to acquit his client.

"They came to Canada, they asked for Canada's protection and I think we can be proud to say we provided them with that protection."

Sandy Ross, a lawyer for Emmanuel, made a similar argument to the jury. He said that Emmanuel was "thrown into" becoming captain of the ship and helped the other Sri Lankan passengers aboard on their voyage to Canada.

Ross said his client didn't have to prove that his actions were for a humanitarian purpose or to assist asylum seekers, two exemptions for the human-smuggling offence under the Immigration and Refugee Protection Act. He said the Crown must prove that Emmanuel was not acting for a humanitarian purpose or to help asylum seekers, but added that the evidence at trial supported the proposition that he was acting for a humanitarian purpose.

Mark Nohra, a lawyer for accused Nadarajah Mahendran, told the jury that the central issue in the case against his client as to whether he assisted people to board the vessel was identification. He questioned the reliability of the evidence of Crown witnesses and argued that the Crown was relying on a "polluted" stream of information.

Nohra said the Crown's evidence was potentially contaminated after RCMP breached a policy regarding use of police photos.

Final submissions in the case are expected to continue Friday.

kfraser@postmedia.com