Canadian COMPETITION LAW

Christine Duhaime (Anti-money Laundering Law in Canada)

Canada is seeking the extradition of the alleged organizer of the migrant ship, the MV Sun Sea, that illegally transported 492 Sri Lankan foreign nationals from Thailand to Canada in August 2010. Thayakaran Markandu, who is also a Sri Lankan foreign national, was arrested in France and is being held in custody by French authorities. Earlier this month, the RCMP issued a warrant for his arrest on charges of human smuggling under the Immigration and Refugee Protection Act.

The charges may be amended to include money laundering with respect to the proceeds of the smuggling operation. Examples of money laundering that may occur in human smuggling operations include the use of funds paid to smugglers or traffickers, the use of funds paid to procure supplies or boats for smuggling or trafficking, or the use of funds from terrorists or terrorist organizations. Those aboard the MV Sun Sea claim they paid between $20,000 to $40,000 to be smuggled into Canada.

Difference between Human Smuggling & Human Trafficking

There may also emerge evidence of human trafficking in the MV Sun Sea smuggling operation. Several of the migrants have told Canadian authorities that they owe “debts” to those who arranged their voyage on the MV Sun Sea and will have to pay their “agents” substantial sums to clear the debts in Canada. This suggests they were trafficked and not smuggled.

The difference between human smuggling and human trafficking is as follows:

1.  Human smuggling involves the illegal movement of people across borders and is by definition, international. Unlike trafficked persons, the smuggled person usually consents to being smuggled and pays large sums of money to the smugglers;

2.  Human trafficking, on the other hand, can be local, national or international – a person may be trafficked from a small town to a large city within the same country, or trafficked to another country;

3.  People who are smuggled are not deprived of liberty when they arrive at their destination, whereas those who are trafficked are deprived of their liberty in one of several ways – they are typically coerced, threatened or physically abused and are usually forced to provide free labour or services, forced into the sex trade, or forced to pay substantial sums to the traffickers for long periods of time;

4.  The destruction of identification or travel documents is a sign of human trafficking, not usually smuggling. Trafficked persons are usually ordered to destroy their travel documents to protect the traffickers. Often the traffickers will destroy the travel documents of the persons they are trafficking as a means of controlling them; and

5.  A smuggling operation can become a trafficking operation. Migrants may agree to be smuggled on a migrant ship and once on board, become victims of trafficking. This can happen if the smugglers force migrants to provide services (often sexual), labour, or payments of some kind on the vessel or after arrival in Canada, under circumstances where the migrants fear for their safety or that of someone known to them if they refuse to provide that service, labour or payment.

According to newspaper reports, of the 492 Sri Lankan foreign nationals who arrived aboard the MV Sun Sea seeking refugee status, only four have qualified. Several have been deported because of ties to the Liberation Tigers of Tamil Eelam, a listed terrorist organization in Canada. Several others are facing inadmissibility hearings as a result of immigration fraud (i.e., forged or destroyed documents or false identities).

Under the United Nations Convention Relating to the Status of Refugees, to which Canada is a signatory, a person may be granted refugee status if he or she has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion and is unable (or because of the well-founded fear, unwilling) to seek protection from their own country. There are exceptions – foreign nationals who have committed certain serious crimes are not eligible to be considered Convention refugees. Canada also accepts as refugees, foreign nationals who are in need of protection. These are foreign nationals whose removal from Canada to their own country would subject them personally to a danger of torture, a risk to their life, or a risk of cruel and unusual treatment or punishment. There are also exceptions under this category – for example, the risk must be personal to the refugee claimant and must exist throughout the foreign national’s own country.

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