Janet Hinshaw-Thomas, niece to the Jesuit theologian and cardinal, was charged with people smuggling as she delivered 12 Haitian asylum-seekers to the border post at Lacolle, Que., Sept. 28. The 65-year-old grandmother is the founder of Prime — Ecumenical Commitment to Refugees and has been working with refugees since 1983.

Hinshaw-Thomas spent a night in jail before being released on $5,000 bail and being warned to be on good behaviour.

Immigration lawyers and refugee rights advocates in Canada expressed shock that a law intended to punish criminal gangs for smuggling people is being applied to a church-supported humanitarian.

“This is clearly an abuse of a provision that was directed to something completely different,” said Andrew Brouwer of the Refugee Lawyers Association of Ontario.

{sidebar id=2}If the charges against Hinshaw-Thomas are allowed to stand, all work on behalf of refugees is endangered, said Mary Jo Leddy, founder of Toronto’s Romero House. Under this interpretation of the law, Pope John XXIII would have been guilty of people smuggling for issuing visas in Istanbul to thousands of Jewish refugees fleeing the Nazis, Leddy said.

“She just simply did what most of us (refugee advocates) do,” said Leddy.

“We are now criminalizing the act of assisting refugees,” said Canadian Council for Refugees vice president Amy Casipullai in a press release.

The Refugee Lawyers Association of Ontario claims this is the first time sub-section 117 of the Canada Immigration and Refugee Protection Act has been applied to a humanitarian worker.

“We had a person bringing in people who were there that did not have the proper documentation to enter Canada. This is not legal,” said Canada Border Services Agency spokesman Erik   Paradis. “The person knew very well that what she was doing was illegal.”

The charges against Hinshaw-Thomas have nothing to do with whether or not she was profiting from the movement of refugees, said Paradis.

“She was in contravention of section 117. Section 117, its provision doesn’t state that the person must be receiving money. There’s nothing like that,” Paradis said.

Hinshaw-Thomas and other volunteers with Prime have taken asylum seekers to the Canadian border for years and had never been told this was illegal. Five days before making the Sept. 28 trip to the Canadian border, Hinshaw-Thomas sent an e-mail to border officials to warn them of the 12 Haitians she would be bringing. No one at Prime received any reply to that e-mail, Hinshaw-Thomas said.

Charges under 117 of the Immigration and Refugee Protection Act require the consent of the attorney general of Canada. When the act was being revised in 2001, opposition members of Parliament objected that the clause could be used against humanitarian organizations or  individuals. Citizenship and Immigration officials told the politicians the requirement for consent from the attorney general would protect refugee advocates.

“It’s a good lesson for all people involved in politics that unless it’s in the law, unless it’s entrenched, you never know how it will be used by any government,” said NDP MP Judy Wasylycia-Leis.

Wasylycia-Leis proposed an amendment to section 117 which would have created an exception for humanitarian workers, but it was defeated in committee.

Liberal justice critic Marlene Jennings accused the Conservative government of misusing a law designed to combat human trafficking.

“There’s no political interference. Law enforcement people apply the laws,” said a spokesman for Public Safety Minister Stockwell Day.

Charging someone because refugees lack proper visas and passports doesn’t make sense, said Leddy.

“Refugees, by definition, don’t always arrive with perfect papers. If they did, would they be refugees?” she asked.

Despite her run-in with the law, Hinshaw-Thomas continues to praise Canada’s refugee system.

“Canada has an outstanding record of fairness to asylum seekers, which the United States does not,” she said.

Hinshaw-Thomas took on refugee work after being trapped in Afghanistan during the 1979 revolution and Soviet invasion, unable to get travel documents or leave the country legally.