Law360 Canada ( July 25, 2019, 8:08 AM EDT) -- Appeals by the Crown from the acquittal of the respondents charged with human smuggling under s. 117 of the Immigration and Refugee Protection Act and from a finding that s. 36 of the Mutual Legal Assistance Act (MLACMA) was unconstitutional. The respondent E was the captain of a ship that arrived in Canada carrying Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status upon arrival. The Crown’s theory was that the respondents were part of a human smuggling operation linked to organized crime. E testified that he boarded the ship as a passenger, then reluctantly took charge of the ship after the original crew left the ship. The respondents R and M were not aboard the ship. The Crown claimed they were involved in provisioning the vessel and organizing the transfer of the migrants. Their defences at trial focused largely on the issues of identity and credibility of the migrant witnesses. The Crown made several attempts to admit documents obtained from Thailand. These attempts culminated in a trial ruling that s. 36 of the MLACMA was unconstitutional. The trial judge held s. 36(1) removed a judge’s ability to exclude foreign records solely because they contained hearsay or opinion and eliminated a judge’s gatekeeper role under the principled approach to hearsay because it removed the need for the tendering party to meet the requirements of necessity and reliability. The trial judge instructed the jury that the exceptions to the human smuggling offence of humanitarian aid or mutual aid were an element of the offence and that the Crown was required to prove that the accused were not providing humanitarian aid or asylum-seekers and were not themselves asylum-seekers who were providing mutual aid. As neither M nor R were passengers on the ship, the trial judge instructed the jury that the mutual aid exception could not apply to either of them, but it was up to the jury to determine whether the humanitarian aid or family aid exceptions applied....