New trial ordered for man accused of human smuggling in MV Sun Sea case

Migrants look over the side of the MV Sun Sea after it was escorted into CFB Esquimalt in Colwood, B.C., Friday, Aug. 13, 2010. THE CANADIAN PRESS/Jonathan Hayward

VANCOUVER - The British Columbia Appeal Court has ordered a new trial for a Sri Lankan man found guilty of smuggling Tamil migrants to Canada aboard a dilapidated cargo vessel in 2010.

Kunarobinson Christhurajah was convicted two years ago in the B.C. Supreme Court and handed a four-year sentence after almost 500 migrants fleeing the aftermath of war arrived aboard the MV Sun Sea.

Three other men were acquitted.

In his appeal, Christhurajah argued the trial judge incorrectly instructed the jury about the defence of mutual aid, which asks whether he was acting to help fellow asylum seekers and not for financial gain.

In a unanimous decision, the three-member Appeal Court panel said the judge's instruction made conviction a foregone conclusion and the jury should have been told that if they found Christhurajah's motivation was financial, the defence of mutual aid wasn't available.

In a separate ruling, the Appeal Court dismissed the Crown's appeal of the three acquittals, saying the prosecution didn't demonstrate that there were errors in the verdicts.

The MV Sun Sea was the second ship of Sri Lankan asylum seekers to reach B.C. in 2010. The Ocean Lady arrived with 76 passengers.