Prosecutors will have to prove that Michelle Omoruyi, the Regina woman recently charged with human smuggling, was not providing humanitarian-type aid to asylum seekers or trying to help members of her family, says a Vancouver lawyer.
Omoruyi was charged last week with one count of human smuggling under the Immigration and Refugee Protection Act and one count of conspiracy to commit human smuggling.
The charges came on the heels of RCMP stopping nine West African nationals on the Canadian border between the North Portal, N.D., and Northgate, Sask., ports of entry.
Mark Nohra, a criminal defence lawyer in Vancouver who represented a man who was accused (but ultimately acquitted) of bringing hundreds of Tamil migrants into Canada illegally in 2010, says the legal definition of human smuggling has been narrowed in recent years, and that the identity of the nine asylum seekers could prove key in Omoruyi's case.
"It's arguable that if the actions fit into a number of categories that could be 1) humanitarian care or 2) providing some type of assistance to a family member, they might not be guilty of the offence of human smuggling," said Nohra.
'Taking advantage of someone's desperation'
Prosecutors will also need to prove that Omoruyi knew the asylum seekers were undocumented, said Nohra.
"The basic thing is this person had to know these African people did not have the proper documentation to come into Canada, so that they were coming into Canada in contravention of the Immigration Act," he said.
If a smuggler isn't providing humanitarian aid, "the main concern is that the alleged human smugglers are taking advantage of someone's desperation," Nohra added.
At a news conference in Saskatoon on Friday, Public Safety Minister Ralph Goodale said it's important to send a strong message about human smuggling.
"We want to be very alert to anything smacking of human trafficking and human smuggling. That's heinous behaviour and we want to be sure people in desperate circumstances are not being exploited," he said.
But human trafficking and human smuggling are two distinct offences, says Nohra.
"For trafficking, one of the definitions is the person bringing the person into Canada does it by deceit or fraud... You tell them you're helping them come to Canada for one reason, but when they get here in fact there's another reason why you brought them."
Smuggling can include helping asylum seekers and becomes a legal concern, according to Nohra, when "someone is desperate to leave their country because they fear for their life and then some unscrupulous person charges them, you know, $100,000 to help them get to another country. That's the main concern — that you're taking advantage of desperate people."
'They're very well behaved, low-key'
Court documents allege Omoruyi's husband, Victor Omoruyi, picked up five adults and four children, all Nigerian nationals, at a hotel in Minot, North Dakota, before driving them to a farmer's field just south of the border, between the two points of entry.
Jo Ann Voeller, who manages a hotel in the community, says she's witnessed this sort of activity several times in recent months.
"The last time, the kids were in age from probably three to 13. We had three families here that had three to four kids apiece," she said.
"They come, they check in. They're very well-behaved, low-key. It's not like they're problem guests. If it wasn't for the fact that border patrol came asking about them, we'd just think they were people that were coming through."
Jory Ehlke, the chief of the Lignite Volunteer Fire Department, on the American side of the Saskatchewan-North Dakota border, says his crew was dispatched to a field near the border on a frigid night last January to help with a search and rescue effort.
Ehlke says his crew followed a snowy trail dotted with diapers, children's clothes, food and a duffel bag.
Border patrol agents eventually located two adults and three children who had been exposed to extreme cold. The youngest, a 14-month-old, was airlifted to hospital for emergency care.
"It was a very dangerous situation," said Ehlke. "It was very surprising that none of them got seriously injured or worse."
No charges laid against Omoruyi's husband
Victor Omoruyi is now in the custody of U.S. Immigration and Customs Enforcement and is being held at the Grand Forks County Correctional Center, alongside another man and woman arrested with him.
Success Okundia (also known as Success Okundia-Julius) and Tosin Johnson (aka Tosin Cecilia Freeman-Osho) were discovered in Omoruyi's vehicle shortly after he allegedly dropped off his nine passengers at the border.
Police could not find any record of Okundia and Johnson crossing into the U.S. and had no immigration documents that would allow them to be there legally.
Both also had muddy shoes, leading officers to conclude they had recently walked through the mud in an area "of previous known smuggling activity," according to the officers' affidavit.
Court documents indicate Okundia and Johnson are accused of unlawful entry into the United States; however, no charges have been laid in their cases.
Details of the allegations against Victor Omoruyi have not been made public.