Immigration act needs updating: experts

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This article was published 31/01/2022 (1059 days ago), so information in it may no longer be current.

LEGAL experts have raised concerns about shortcomings in Canada’s laws, after a family of four froze to death trying to walk across the U.S. border near Emerson.

RCMP officers found the bodies of Jagdish Patel, 39, his wife, Vaishaliben, 37, their daughter, Vihangi 11, and three-year-old son, Dharmik, in a Manitoba field Jan. 19.

The family had travelled some 11,000 kilometres from their home in Dingucha, India, to southern Manitoba as part of what police suspect was a human smuggling operation.

Seven undocumented Indian nationals were detained by U.S. border patrol agents just over the boundary near St. Vincent, Minn., after walking hours at night in a -35 C blizzard.

David Matas, a Winnipeg-based human rights, refugee and immigration lawyer, said the tragedy has exposed a gap in Canada’s Immigration and Refugee Protection Act.

It is illegal to smuggle people into Canada but there is no law against smuggling people out of the country, he said.

“The (act) needs to be amended to address that,” said Matas. “It’s a tragic case. It shows some of the problems in our smuggling laws.”

Matas suggested Canada isn’t meeting its obligations as a state party to the United Nations’ protocol against the smuggling of migrants by land, sea and air.

The protocol requires parties to make it a criminal offence to smuggle humans across borders for financial gain. This includes the smuggling of people from one state party to another, such as Canada to the United States.

“There needs to be legislation to encompass the situation exemplified by the current tragedy, criminalizing the smuggling from Canada to the United States or to any other state party to the protocol,” said Matas.

While U.S. authorities have charged a Florida man allegedly tasked with picking up the 11 Indian nationals in a rented van, no one has been charged in Canada amid an ongoing investigation by Manitoba RCMP.

Police are trying to track the movements of the Patel family, who arrived in Toronto on Jan. 12, and made their way to the Emerson area on or about Jan. 18.

Officers are trying to find out who transported the Indian nationals. No vehicle was left behind at a drop-off spot close to the border on the Manitoba side.

At a news conference Jan. 27, Manitoba RCMP Supt. Rob Lasson said officers would consider Criminal Code offences if there is enough evidence to lay charges in Canada.

He declined to reveal which specific charges could be considered in connection with the deaths.

Matas and Winnipeg defence lawyer Martin Glazer said police could consider the offence of criminal negligence causing death.

Offences under the federal immigration act could also apply, depending on what the police investigation finds.

“(The case) is unprecedented,” said Glazer. “It is a horrible tragedy, and the law may need to be changed to cover this kind of incident. If the law doesn’t cover it, the law is inadequate.”

U.S. authorities charged Deltona, Fla., resident Steve Shand, 47, with transporting or attempting to transport illegal aliens, after he was arrested in Minnesota a few hours before the Patels’ bodies were found.

There was no evidence Shand crossed into Canada, according to a court document.

Glazer and Winnipeg immigration lawyer Ken Zaifman said it is unlikely Shand will be charged in Canada.

However, that could change if there is evidence alleging Shand conspired with someone in this country to smuggle people into the U.S., said Glazer.

If one or more people are charged in Canada, said the legal experts, one of the challenges will be trying to prove what a suspect or suspects knew about the alleged smuggling operation and the risks of the illegal crossing.

“Laying the charge is one thing, proving it is another,” said Glazer.

chris.kitching@freepress.mb.ca

Twitter: @chriskitching