Bill C-11 (Historical)

Balanced Refugee Reform Act

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment
(a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;
(b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;
(c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;
(d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations certain countries, parts of countries or classes of nationals;
(e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;
(f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;
(g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;
(h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;
(i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and
(j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.
The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair.

I do agree there was consensus at the end of our last meeting in an attempt to try to work toward a compromise that would satisfy all parties sitting at the table here. Certainly over the last 48 hours there was a strong attempt to do that--in fact a number of attempts to do that. I think we have come a significant way with regard to finding a compromise regarding this amendment, albeit of the three parties that were discussing a potential compromise, the result is that only two of the parties in those discussions were able to come to a compromise.

I certainly want to thank Mr. St-Cyr for his thoughtfulness on this in terms of trying to find a way to come to a conclusion that would see us in the same position as Bill C-11. Unfortunately, we haven't been able to move that far. The government does have to draw the line on how far it can go, at least with respect to this amendment.

I think we have come to a very reasonable approach and compromise on this, and if this amendment is defeated, I will be introducing a government amendment. In addition, I'll be reading into the record a letter that the minister will be sending to the chair of the regulatory board in terms of direction with respect to the issue we have discussed in amendment G-2.

[Rick Dykstra, Conservative, St. Catharines, ON]

I have a few more points to make.

The amendment, at least the way it's drafted, would also remove the minister's authority to designate a body. We would actually have to move an amendment to this to allow the minister the ability to revoke a designation.

I do have an alternative approach to this. I understand where Mr. St-Cyr is coming from. He may not be satisfied with the alternative approach, but I think it is one that is reasonable and that certainly gets to the intent of his amendment. It also has stronger support from the Government of Quebec. They have informed us that they do not see the need for such an amendment, that it's actually not necessary.

The minister mentioned at his appearance here a couple of weeks ago that the intention of Bill C-35 was to designate one body. Nothing in the bill limits designation to only one governing body, so it does allow for that provision.

I can't stress strongly enough that it's the federal government—and Ms. Ménard laid out a Supreme Court decision on this—that maintains responsibility for its legislation. If we were to pass this amendment we would be relinquishing that responsibility.

We have worked extremely well together on bills like Bill C-11 and we want to try to find a way to compromise and meet the objectives of the bill while still having a bill that meets federal requirements. This amendment simply shoots a hole in that strategy, and in fact it is the one amendment that would obviously have to go back to cabinet for approval. This is one area around where there is a huge question mark as to whether it would survive that.

So, Mr. St-Cyr, if it is the intention of the Bloc to pass this amendment and if it is the will of the committee, we're going to need the support of somebody on the other side of the table, as we only have five votes on this side. I can tell you that it is not going to meet with the approval of the government.

I'm asking the committee to consider an alternative amendment that would get at what Mr. St-Cyr is presenting but do so in a way that actually allows us, as the federal government and legislators, to maintain our federal responsibility for legislation.

Thank you.

Copyright Modernization Act

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, our critic, the member for Timmins—James Bay, explained this very well in his speech. In fact, artist compensation is a very important component of this whole equation. He took considerable time this morning to explain how, as technology changed, people in the country were alarmed that a certain business model was coming to an end, but the companies adapted.

Years ago the Pony Express delivered mail across the United States. When the telegraph came in that put it out of business. When the telephone came in it replaced the telegraph. The one constant is that technology will change and we need to adapt to the new technology.

The key is to not tie ourselves up in litigation by bringing in legislation that will involve all sorts of lawsuits and lawyers. The idea here is to facilitate commerce so that the public is well served, but the artists get their fair share of compensation as well. That is the whole idea behind having a workable piece of legislation in this country. I think we can do it if there is a will on the part of all parties to work together on this when it gets to committee. I know the Bloc has some serious issues and I do not know whether they can be resolved. Even In our case I do not whether we will get all of our issues resolved

. However, if we are positive about this and move forward, hopefully we can follow what we did with Bill C-11, the immigration legislation, and get a successful conclusion.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to rise today to speak to Bill C-32. I listened to a lot of very good presentations today regarding this very important bill.

At the outset I would like to say, following up on the previous member who spoke and the NDP critic who spoke to the bill this morning, that members of the NDP will certainly be supporting this bill going to committee. We support it in principle. It is a outstanding issue that has to be dealt with by Parliament.

In many ways, I hope it follows the route of Bill C-11, the immigration bill, which basically proved to be successful at the end of the day with the help of all four parties in the House. We have the potential to follow that route with this bill. Some of the concerns that were raised today by the NDP critic in debate were responded to by the minister of the government.

It appears to me that there certainly seems to be an interest on the government's part in working with the NDP critic and our party, and I believe, the other parties as well, to try to work out perhaps even an all-party agreement on this legislation. I really do not feel that we are that far apart.

Speaker after speaker has concentrated on really, more or less, the same issues. Some issues were not addressed, but by and large, the same issues came up over and over again. So it is incumbent upon the government in committee to resolve those issues, and perhaps before Christmas, Parliament will have a second successful bill as opposed to having it end up not going anywhere.

The government has certainly had ample experience over the last five years with bills it proposed going nowhere because it is in a minority situation and knows that all it takes is for it to bring forward a bill that the opposition does not agree with and the bill will not be successful. That is really the end of its effort.

I recognize that we have only 20 minutes to discuss this matter and I do not know that it will be sufficient. Nevertheless I want to deal with some of the issues involving Bill C-32.

Canada's technological community has long been calling for a major overhaul of the Copyright Act to bring fair and balanced copyright legislation to this country. The act has not been reviewed since 1997. I think back to those days 13 years ago and realize how the technologies have changed during that period. It is tremendous.

John Manley was the minister and Jean Chrétien was the prime minister in a majority government. How and why the Liberal government of the day, a sort of command style government with an absolute majority, could not get this job done seems a bit surprising to me. Nevertheless it did not do it. That might be indicative of how controversial it actually is and how many players are involved.

I recall a number of years ago, in 2000, when I was involved in putting together Bill 31 in Manitoba, the province's Electronic Commerce and Information Act. That was internal to the government. We had to sit down with four or five government departments that were dealing with electronic issues. The Uniform Law Conference had a template that we could follow. Just trying to get those silos, those departments within a provincial government, onside proved to be fairly difficult, although we did get the job done.

In this case, it goes way beyond the government, because we are dealing with many competing forces within the country itself. The Liberal critic pointed out this morning how substantial this area is in Canada in terms of jobs and employment and the large part of the economy that is involved.

The Conservatives' copyright modernization act seeks to enact long overdue changes that would bring Canada in line with advances in technology and current international standards. At the rate we are going and with the technology changing, we are never going to catch up unless we get this job done now.

The issue is highly complex. It features competing demands from stakeholders and the artistic, academic, business, technology, consumer rights and communities. We have heard conflicting views from a number of them even today. However, it is a top priority and a multi-faceted issue that the government must take on if it wants Canada to be a competitive player in our increasingly technology-reliant world.

When Canada signed onto the World Intellectual Property Organization, or WIPO, Internet treaties in 1997, 13 years ago, it committed then to modernize its copyright legislation. Before Bill C-32, two other attempts were made to enact legislation that would achieve the goal, most notably in 2008 when the Conservative government brought forward Bill C-61 and that bill was met with widespread opposition. It died when Parliament prorogued in 2008.

Bill C-32 is designed to be technology neutral, which is a very good way to deal with it, because if we do not do that we will be dealing with technology referencing typewriters or old technology from many years past. Taken forward to the future, 20 years from now people will not be understanding the type of technology that we are dealing with in the bill right now. So we have gone to a technology-neutral position that applies across a broad range of devices and technologies with a view of ensuring adaptability to a constantly evolving technology environment.

During the summer of 2009, as the minister referenced, Industry Canada held a series of nationwide consultations on copyrights, soliciting input from Canadian consumers, industry experts and content developers. During the consultations, the most discussed and most contentious issue was digital rights management, including the digital locks, which has been talked about by many speakers today, anti-circumvention measures and TPMs, or technological protection measures.

User rights advocates made it clear that they wanted to see the government expand the fair dealing provisions in the Copyright Act and provide more exceptions for consumers. In Canada, fair dealing as defined by the Copyright Act is more restrictive than the fair use provisions in the United States, particularly with regard to education and teaching. It refers to uses of content that are considered valid defences to copyright infringement, such as for purposes of criticism and review, news reporting or educational use.

While user rights appear to have been taken into some consideration in drafting the bill, Bill C-32 is fairly heavily weighted in favour of the rights of content owners. I reference Sony, Hollywood studios and so on and have asked the question about the influence of the Hollywood lobby, the American political lobby on the Canadian government to come up with a solution that they basically approve of.

The Conservatives laugh and say it has taken six years and obviously they are not responding to any pressure because had they responded to pressure they would have done this a long time ago. What matters here is that the American government and American business interests want to see a piece of legislation that fits in with their legislation, because they see this as a continental market. I have explained before that of the 88 countries that have approved the WIPO Internet agreements, only half of them follow the American model. The other half have a lesser approach than the American system of supporting digital locks.

The government tries to bamboozle us by telling us that we have to give industry the digital lock provisions because we are following the United States, following WIPO.

However, half the countries that have approved and ratified these agreements are not following the digital lock procedures the way the Americans are. Let us understand that from the beginning. We do not have to go holus-bolus, cap in hand, following on the trail of the Americans, contrary to what the government would like us to believe.

The government has stated that its aim in updating the Copyright Act is not to punish individual users, but rather to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content. Of course we agree with that. No party in this House wants to be causing grief to the citizens of Canada. There is no question about that at all.

The copyright modernization bill contains three broad categories of changes that Internet and e-commerce law expert Michael Geist termed sector-specific reforms, compromise provisions, and no-compromise rules regarding the DRMs.

The sector-specific reforms are designed to appeal to a wide cross-section of Canadians and include measures that extend the term of copyright for performers and producers to 50 years from the time of publication of a musical performance. They also create a new "making available" right in accordance with the WIPO treaties. This measure will give copyright owners exclusive control over how their content is made available on the Internet.

It also introduces a mandatory review of the Copyright Act, to take place every five years. It is important to have a mandatory review every five years. Even though the bill itself is technologically neutral, things may change in five years, and it is important that we have the ability to require the government to do a review after that point.

Bill C-32's compromise provisions will formally enshrine commonplace grey-area practices that enable users to record TV programs for later viewing, as long as they do not compile a library of recorded content. That is called time-shifting. I know that some people are not going to be happy with this. There are people who like to use their PVRs to copy programs and want to be able to make copies of those and record them. But they are not going to allow people to compile a library of recorded content.

The provisions regarding transferring songs from CDs to MP3 players, called format-shifting, and making backup copies create new limited exceptions to the fair- dealing provision of the Copyright Act. These include exceptions for educators and exceptions for parody and satire, which Canadian artists have been asking for. Bill C-32's compromise provisions will create an exception for content creators that would enable the circumvention of DRMs for the express purpose of reverse engineering for encryption research, security testing, perceptual disability, and software interoperability.

It would also introduce a new YouTube exception that would allow Canadian users to compile clips of copyrighted works into a remix work, as long as it is not created for commercial purposes.

I also want to point out that no one here today has mentioned that this legislation will also give photographers, for the first time, the same rights as other creators. I listened for that all day long and I did not hear anyone mention it. Photographers should be happy, because for the very first time in the history in Canada they will be given the same rights as other creators.

Bill C-32 also creates a new exception for broadcasters to allow them to copy music for their operations.

In addition, it creates a carve-out for network locks on cellphones. This is another one that I think is going to be popular. One of our members actually introduced a bill regarding cellphones, but understand that we are talking about network locks on cellphones. Right now we are stuck with a network when we buy a cellphone. The locks are going to be taken away, and Canadians are going to have the right to unlock their phones. I think people are going to be happy with that if they want to switch carriers, as long as they abide by the providers' contract terms when they make the switch.

There is also a reduction of statutory damages from a maximum fine of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations where copyrighted works have been illegally accessed for non-commercial purposes.

The government touts this reduction of penalties as a progressive, positive change. However, if we read Michael Geist's work, he argues that this is not going to be the effect, that it is not going to work, that we are creating legislation that is going to produce a lot of litigation.

Our critic mentioned that artists have better things to do with their time than hire lawyers. Therefore, the bill is going to be good for lawyers. But if we are talking about little artists who are trying to practise their trade, the last thing they are going to want to do is hire lawyers to track down people who are infringing on their copyrights.

Perhaps we have to take another look at the whole issue of the fines. Perhaps we ought not to think that, because we are reducing fines from $20,000 to $5,000, we have solved the problem. Michael Geist, who is a recognized expert in this area, has made a convincing argument that this is not the case.

Finally, the copyright modernization act contains no-compromise provisions that are likely to have a huge impact on the way Canadians obtain, use, and share copyrighted content. These include measures that create powerful new anti-circumvention rights for content owners like Sony and other big companies, as distinct from the creators and the developers, that prevent access to copyrighted works on pain of fines of up to $1 million, or five years in jail. This measure is based directly on the United States' controversial Digital Millennium Copyright Act, the DMCA, and that is one of our criticisms of the bill. The government is slavishly following the American model as opposed to following the 88 countries in the world that are not following the American model, that have separated from the American model, and have gone easier on the digital lock issue.

An immediate result of this provision would be to convince the United States, and particularly its powerful entertainment lobby, that this country is in line with U.S. regulations and is an attractive and secure place to conduct business.

I think that is what it is all about with the Conservative government. It wants to convince the Americans that we are a good, safe market, with the same standards that they have, so that they can come and do business with us. Instead of this, the government should be looking out for our citizens.

The foundational principle of the new bill remains that any time a digital lock is used, whether on books, movies, music, or electronic devices, the lock trumps all rights. So what is the point of giving people all these rights if we simply take them away by making sure that the digital lock trumps all these new rights?

This means that both the existing fair-dealing rights and Bill C-32's new rights all cease to function effectively so long as rights-holders place a digital lock on their content or device. It would also require that, where a digital lock exists, digital copies made for the purposes of self-study self-destruct within five days, and that course materials be destroyed no later than 30 days after the conclusion of a course. What good is that?

We have had speaker after speaker criticize that provision of the bill.

Perhaps I can deal with the remaining points in the question-and-comments period.

Preventing Human Smugglers from Abusing Canada's Immigration System Act

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Madam Speaker. I repeat, we know that Canadians are smart. We know that they are compassionate. We know that they want to understand these issues and they want to be led with a sense of hopefulness and a sense that we will effectively deal with the problems in the world and compassionately deal with those who are the victims. That is what Canadians are about. They are not led by slogans. They are not led by easy answers. They are not led by someone who promises them something and delivers nothing.

We have problems in our refugee system, in our immigration system. Read the Auditor General's report. There are problems in the immigration system that is being led by the government. We were trying to fix the refugee determination system with Bill C-11, an honest attempt from all sides of the House to fix that. We are attempting to do that. We also are calling upon the government to look at our international relationships, to actually build them and build the kind of world where we stop the need for a refugee determination system here.

[Rob Oliphant, Liberal, Don Valley West, ON]

Mr. Speaker, it is a privilege to speak today to this bill at second reading.

The concerns of Canadians have been well expressed by members of the Conservative government. They have echoed the concerns that I have heard from many people in my riding and across the country as people have raised concerns about people arriving on Canada's shores in very vulnerable conditions.

Obviously the arrival this summer of the Sun Sea, carrying almost 500 Tamil refugee claimants from Sri Lanka, raised concerns. It raised concerns across the political spectrum. Those on the more left side of spectrum felt that someone was taking advantage of refugee claimants by charging exorbitant amounts of money and placing their very lives in danger for a second or third time as they were placed on vessels that were not seaworthy. They were designed to actually travel between Sri Lanka and India but made an across-the-ocean voyage to Canada.

There was also a concern that this was the second ship. The previous ship, the Ocean Lady, also came to the shores of Canada with refugee claimants on it. That began to raise concerns in Canada that something was going wrong, that something was out of control.

I congratulate the government for resisting some of the urges that some Canadians had to actually stop the ships mid-course in the ocean. The government made a wise decision, actually followed the law on this and exercised great concern for the administration of justice and for the law.

However, that began a discussion around the sort of law that Canadians wanted. Canadians were expressing concern, even outrage and, at times, misunderstanding about what was going on. There was a misunderstanding about immigration versus refugee law. I know that all hon. members in this chamber know that there is a difference between immigrants and refugees and that there is a further difference between refugee claimants and refugees themselves, or convention refugees as declared. That discussion has been sort of muddied by government ministers who have taken the opportunities, perhaps unwittingly, to muddy the waters for Canadians. I wanted to spend a few minutes clarifying what we are talking about here.

First, we are talking about people who are not immigrants, who have not stood in queues up to six or seven years, as people who have come to Canada often have, and who are not coming for economic reasons or as part of family sponsorship or family reunification programs. These are also not convention refugees who have been sponsored by the government, by the church or by other groups into Canada. We know that.

These are vulnerable individuals whose lives may have been at risk and who are seeking asylum in a country that has honoured asylum seekers with fair and just processes for decades. That is who these people are.

We all know that Sri Lanka has come through over two decades of civil war that has had atrocities on all sides. After every war, there are people whose lives continue to be at risk and some of them take desperate measures. That is what has happened with the two most recent vessels. They have been loaded with people who have claimed that their lives are in danger and they are seeking asylum in Canada.

Canada has a long history of having signed onto international conventions and treaties that dictate how we will deal with those asylum seekers. They are given fair and transparent judicial processes. They are allowed to be heard on a case-by-case refugee determination process.

As the hon. member from the New Democrat caucus said earlier, we have a process whereby the refugee determination has been too slow in the past but we were able to reach an accord in this House called Bill C-11 which changes some of those refugee determination processes and are meant to speed them up.

My fear is that we already have the Minister of Public Safety expressing a lack of confidence in the Minister of Citizenship, Immigration and Multiculturalism and his fine work on Bill C-11. We on this side of the House were kind of confused when we listened to the discussions on what sort of a law would deal with this problem of smugglers.

Let there be no doubt that no one on this side of the House, nor, I believe, on the other side of the House, condones human smuggling. I will give everyone the benefit of the doubt. I do not believe anyone wants to put a vulnerable person at a greater vulnerable level. We do not want people making money off this exercise. We do not want to risk lives a second or third time. We want to ensure a fair and just immigration system, including a refugee determination system, that works. Everyone in the House agrees on that.

However, the Minister of Public Safety, who presented this legislation that does not seem to honour those things which we as Canadians have stood up for decades for, has started to shift the language on this. We hear members, although I think they are making an honest mistake, talking about queue-jumping. There are no quotas and no queues when it comes to refugee determination. We have no standards that we follow.

As a western country and as a democracy, we believe in the rule of law. Every person who comes to this country, whether by car, by foot, by canoe, by sea vessel, by airplane, by helicopter, no matter how they arrive or in what numbers they arrive, one, two or three people, whether they are children, youth, adults or seniors, every person is allowed a fair refugee determination process.

Is that system working? Obviously it is not. We introduced Bill C-11 because there were problems and it was taking too long. However, I believe some of those problems came from the fact that the government strangled the system by starving it of resources. The previous Liberal government left 15,000 people in that system and that number has now gone up to 60,000 people. This is a problem. We are hoping that Bill C-11 and the attendant resources that are required will streamline the process to ensure fairness and transparency and ensure those who are not bona fide refugees are sent home in a timely manner. We agree with that.

On this side of the House, we do not believe there are two kinds of Canadians: new Canadians and old Canadians. We are not surprised, as I keep hearing from my hon. colleagues across the aisle, that new Canadians have this concern too. We are all Canadians, whether we have been here one generation, two generations or three generations. We want to ensure that the system of justice, the system of refugee determination and the immigration system are fair, transparent and just, and we will work for that.

This particular legislation does raise some concerns for me in very specific ways. We absolutely want to tackle the problem of human smuggling. Would this bill actually do that or are there already, as previous members have said, pieces of legislation in place with life sentences if someone is actually caught doing this? Is there anything new in this legislation that would actually ensure that those who are committing the heinous act of smuggling human beings for profit into this country will be caught and punished? It is simply not in this legislation. There are too many problems.

Bill C-49 is not an effective piece of legislation nor is it a good piece of legislation. The government will need to find ways to improve this legislation to ensure that it actually addresses the real problem of human smuggling.

This bill would actually punish refugee claimants even after they have gone through a process of determination. It would create two kinds of refugees by splitting them into two classes, which is simply not right. We do not do that in Canada.

The government thinks that by somehow deterring refugees from seeking a safe way out of their country, they will not try to do this. Every piece of research has said that the laws of the land that people are going to do not determine whether or not they will try to get there. They are simply trying to get away from the threat against their life. That is the problem with this legislation. It is as though the government thinks, for example, that the Tamils living in Sri Lanka will look at this and decide not to get on the ship because of the things that could possibly happen to them.

Whatever can happen in Canada will never be as bad as what goes on for them in camps, in bushes, on beaches and in places where they try to eke out their very survival. Nothing that we can do will stop them from trying to get to safety. That is the human instinct. That is what is in the core of our bodies, our spirits. It is in our DNA. We want to survive.

That means for this to be effective, we have to do two or three different things. We have to look at truly effective ways to stop the smugglers. Yes, we want strong deterrents against the smugglers. Yes, we want to be assured that smugglers will face at least mandatory minimum sentences, with which I do not normally agree. However, this is such a horrible crime that we should look at that. Let us open our door to dealing with smugglers that way.

However, we have to go to the source of the problem. Once we have dealt with that, we have to look at human beings as human beings. The reality is these vulnerable human beings are vulnerable because of the failures of a particular national government or because of the international community's misunderstanding or failure to act to protect them.

The war has ended in Sri Lanka, but the violence and danger continues. The lives of people continue to be at risk. Canada is failing, the government is failing to ensure that we are in Sri Lanka, offering a democratic, institutional way of responding to how to live with a linguistic and religious minority in their midst and how to build civil society to protect minorities. Canada has not done that. We have abdicated our responsibility internationally.

We have also failed to work with the United Nations and other countries in refugee determination in Sri Lanka, in Thailand and in places where Tamils have sought refuge. We have to ensure that the United Nations has the resources, the staff, the personnel and the ability to get into a country and ensure that refugees are determined there.

Therefore, we have to stop the problem at the source. We have to stop it by building international human rights, by working co-operatively with other countries, by engaging internationally, by restoring our reputation, which has been so greatly damaged in the last four years by the government. We have to find a way to involve ourselves in these countries in real and meaningful ways and stop our tokenism.

The second thing we have to do is beef up the United Nations to ensure that we work in a partnership to do refugee determination there.

There are 43 million forcibly displaced persons in the world, and it is a horrible life. People seeking asylum are potential victims. They are not worthy of being further victimized in any way, as I believe the legislation may be doing. We have to find a way to fix this. We have to take out some of the basic problems in the legislation.

The question I continue to have is on these so-called irregular events. On some kind of an irregular immigration of inter-migration event, the minister seems to have too much power to designate. It seems to be far too open and far too flexible. This is one of the things at which the House has to look. We have to understand where we are then from that point on discriminating and causing two classes of refugee claimants and then, further, once determined, two classes of refugees. This law cannot discriminate against people because of where they have come from or how they have come to Canada. We have to absolutely take a step back and take a second look at the legislation.

Arbitrary detention, as the hon. member had said earlier, has not worked in Australia. Not only has civil society risen up against it, but every group that looks at this problem says that it is not working. It is not a deterrent. It is simply an infringement upon human rights.

Bill C-49 makes no exceptions for women who may be pregnant or children who arrive on the shores of our land. We have to look at this as a protection for the most vulnerable, including women and children.

The Supreme Court of Canada said that we would have to review lengthy periods of detention under the charter. Bill C-49 has to deal exactly with that. Arbitrary detention is already prohibited under international law, notably by the International Covenant on Civil and Political Rights.

Bill C-49 is dangerously close to denying any right of equal access to justice. It is blocking a sense of integration as well. That is where I really want to go in these last few minutes.

Once refugees have been determined to be refugees, they then become part of Canadian society. They are landed here and they begin to integrate into our society. They begin to learn the language and seek employment. They build families, they are part of neighbourhoods and they are part of communities. They are our friends. They are part of the structure and the very fabric of Canada.

Bill C-49 breaks that down. It blocks family reunification. It denies the right to travel. It does not look at the fact that the world changes. Someone may be determined a refugee, but that country's regime may change drastically and the conditions in that country may change.The legislation does not give the required flexibility to ensure that the people who integrate into our society are part of who we are, part of where we need to go, part of what we need to do.

The mere suspicion that something is wrong is not good enough for a minister to deny human rights. A fair and just country is what we are building. It is what we continue to work on and all legislation needs to be examined from that vantage point. Who is being hurt? Who is being helped? How is our country being built?

This legislation seems shy on actually dealing with the problem of human smuggling and heavy-handed when it comes to the victims of those smugglers. This is no time for Canada to re-victimize vulnerable people. This is no time for Canada to create two classes of refugees. This is no time for Canada to break Canada apart into different kinds of people. A Canadian is a Canadian is a Canadian. A refugee is a refugee is a refugee. A claimant is a claimant is a claimant. Canada is built on that. It is built on the rule of law that ensures that justice and transparency are built into the fabric of every piece of law that we pass in the House.

Canada has made mistakes when boats have landed on our shores before. I hope I do not need to remind a single person in the House of 1939 when the Government of Canada made a mistake. We turned back the S.S. St. Louis and we let hundreds of people go back to a country where their lives were very much at risk and their safety was at stake. This was not the first time it had happened.

In 1939 the S.S. St. Louis, filled with hundreds of refugees fleeing from the Nazis, sought asylum in Canada. At that time, the government sought to discredit them as well and warned that if the S.S. St. Louis were permitted to dock, more Jews in Europe might follow. Would that they had. Would that we had opened up our eyes, our minds and our hearts because we could have saved more lives.

We had not learned the lesson in 1914 from the Komagata Maru. We did not learn it in 1939. We are learning slowly. This legislation dangerously turns back the clock on these issues.

Canada needs to remember that we are a place of justice and fairness. We will punish the smugglers strongly. We will learn to accept the refugee claimants and give them justice.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, we are listening to Canadians.

Canadians told us they wanted to make this minority government work. The minority government surely is not listening to what Canadians want.

We have agreed with all the parties in this House to pass Bill C-11, which cleans up the problems in the immigration system right now. We have already indicated that we want to do something about smugglers, and there are already life sentences under current laws for smugglers.

Let us get the government out there and catch the smugglers first and give them their life sentences. We are right behind any initiative to do that.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I invite the member to read the minister's speech on this subject. I thought I heard him say that they knew where the smugglers were or who the smugglers were, that there were three or four organized criminal gangs from Sri Lanka that had been involved in the drug trade and in arms deals and whatnot in the past, and now that the war has more or less come to and end they have decided to embark on human smuggling. So if they know who the people are, it should be a simple matter of having our police forces, and so on, talk to the foreign governments and try to do something about it from that end.

Clearly, the problem is over there. That is where the boats are being bought. That is where the boats are. They are recruiting the people over there. The money is being flushed through bank accounts in these foreign countries. So it is incumbent upon these countries to help us catch these smugglers. The government itself has indicated that it is going to appoint a special adviser on human smuggling and it is going to increase the presence overseas through operational activities, diplomatic outreach, partnership with other affected nations, and all those other great things that would catch these smugglers. So I invite them to get out there and catch them.

In the meantime, we have Bill C-11, which we put together through a co-operation of all of the parties in this House. Let us get it implemented and let us deal with the backlog in the immigration system.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I am very pleased to speak to Bill C-49 today.

During question period today, the member for Winnipeg South Centre asked a question about the nominee program in Manitoba. This has been a very successful program, developed under the auspices of the NDP under former premier Gary Doer's leadership in 1999. In fact, the program became so successful that the province of Nova Scotia approached Manitoba to study how to replicate it. I hope and believe Nova Scotia has a similarly successful program at this time.

In answering the question, the minister made the point that Manitoba's population represented 10% of the population of Canada and that Manitoba received 30% of the nominees under the program. He pointed out that while the Liberals were in power, Manitoba only received 2,000 nominees per year. Under the Conservatives, it gets 10,000 per year. We like to think that the 10,000 we get in Manitoba each year is a result of the initiatives of the Gary Doer NDP government, which proved to be so successful.

I also want to point out that the Minister of Immigration has provided some of the only true leadership we have seen from his government in the last five years. In June he brought all parties in Parliament onside with an agreement on Bill C-11 to take care of the mess in the immigration system, which had developed over the years.

The argument rages still in the House as to whether the mess was in fact left by the Liberals or created by the Conservatives. The NDP has stayed out of that fight. They can continue to fight it out as to who is ultimately responsible, but the fact is it is a mess. As I said, the minister was able to get all party agreement in June to make big improvements to the immigration system.

What the minister did is something the government should replicate. There is a schizophrenia in the government. It seems to be incapable of going back to the last long period of minority government, the Lester B. Pearson years in the sixties, when we got a new flag, we amalgamated the armed forces, we brought in medicare and a lot of other things. The Conservatives have literally wasted five full years trying to fight its way through Parliament with no real effect.

However, there is one good example with the minister getting all parties together and getting a new immigration act in place. The government should be doing more of that. Instead, what has it done? The Conservatives have done some polling, and we are very clear about that. They keep mentioning the 65% public support for Bill C-49.

The bill is not being promoted by the Minister of Immigration. It is being promoted by the Minister of Public Safety. Once again, the Minister of Public Safety trumps the Minister of Immigration and the polling of the Conservative Party. The appeal to public sentiment is the overriding concern behind this bill.

We feel we should give some time for Bill C-11 to be implemented in the country. It was only passed in June. It has not had time to do what it has been designed to do. Now the government is trying to amend the bill before it even has its current legislation in place.

It is interesting to note that Bill C-49 has 12 clauses that deal with refugees. Only five clauses actually deal with smugglers. I think all parties in the House agree that human smuggling is a very bad thing and that it is a criminal enterprise. In fact, the government points out that it is a criminal enterprise that spans the globe, that human smugglers facilitate for a profit individuals entering Canada illegally. The figure of $50,000 is being mentioned.

Our party is totally opposed to this. We think the government should take measures to root out these smugglers. We know the smugglers are not here. The smugglers are in foreign jurisdictions. Therefore, the government has to bring in legislation to deal directly with an effort to get at these people in other countries. It has indicated it is dealing with that issue through diplomatic means and policing means. It is going to have to deal with the police in Thailand, in Southeast Asia and other countries around the world.

It has also been pointed out that there already is a life sentence under the immigration laws of the country for smugglers. Therefore, what is this all about? Why is the government bringing in a new bill with a graduated penalty system and minimum sentences when we already have a life sentence for people involved in this kind of activity, if they are caught.

By charging large sums of money for transportation, human smugglers have been making a lucrative business out of facilitating illegal migration around the world, often counselling smuggled persons to claim asylum in the country in which they are smuggled. Human smuggling can take place in many forms, including by boat.

Once again, as has been pointed out by many members, the government is making a separation as to how people arrive in Canada. It will deal with people who arrive by boat differently than people who arrive by airplane.

In terms of human smuggling undermining Canada's security, large scale arrivals make it difficult to properly investigate whether those who arrive, including the smugglers themselves, could pose a risk to Canada on the basis of either criminality or national security. The public security minister made pronouncements about criminals and terrorists, speaking about the recent arrival of the boat, stirring up public sentiment against them. The people who are brought in will be investigated. That is the whole idea behind what we are doing right now.

In addition, the government wants to give the Minister of Public Safety more powers. I do not know if that is such a good idea. In the short term perhaps with the current situation it might seem like the popular thing to do, because 65% of the people are against acceptance of the people on these boats. However, if we were to take it two or three years down the line and a boat load of people from another country showed up, perhaps the polling then would show that 65% were in favour of the people staying. What is the minister going to do? What is the point of having an immigration department in the first place if the minister is going to be overriding it and making decisions along the way? That measure may be wise in the short run, but may not be wise in the long run.

The government also wants to make it easier to prosecute human smugglers, but it has to catch them in the first place and they have to be caught overseas. Foreign governments have to be involved in the process as well.

I believe the government already knows who these smugglers are. The minister has indicated there are three or four groups at least in Sri Lanka that were previously involved in other criminal activities. These groups have now transferred their activities over to human smuggling. Half the battle is knowing who the enemy is.

The bottom line is we should be enforcing our existing laws as opposed to dreaming up new laws to become more popular with the public.

The government also wants to introduce mandatory minimum prison sentences on convicted smugglers. It wants to hold the owners and operators of the ships to account for the use of their ships in human smuggling operations.

The government is ensuring the safety and security of our streets and communities by establishing, and this is a good one, the mandatory detention of participants for up to a year or until a positive decision by the Immigration and Refugee Board, whichever comes sooner, in order to allow for the determination of the identity, admissibility and illegal activity of a participant.

We have some experience with Australia. My colleague from B.C. indicated earlier that he thought there were probably 20,000 refugees in the Australian system. I recognize it is a little warmer in Australia than here, but where will Australia put these people?

The government has announced that it will spend $9 billion on new prisons in the country. Will the government use these prisons as detention centres? Is it the government's intention to put people into detention centres? That is one of the initiatives in the bill.

The government hopes to reduce the attraction of coming to Canada by way of illegal human smuggling by doing several other things. It is going to prevent those who come to Canada from applying for permanent resident status for a period of five years.

I may be running out of time quicker than I anticipated so I do not know if I will have time to get to all the studies that have been done.

Studies done in England show that most immigrants do not have a clue of the rules of the country to which they go. They go to that country regardless of the rules. Are we expecting smugglers to start reading the new rules? What is the government going to do? Is it going to send the smugglers a list of the new rules and all the regulations that are promulgated through the bill?

The government is going to hold a refugee back from permanent resident status for a period of five years should that individual successfully obtain refugee status. The individual will be prevented from sponsoring family members for five years. I will have a lot to say about that at a later point.

The government is trying to reduce the attraction of coming to Canada by way of illegal human smuggling operations by ensuring the health benefits participants receive are not more generous than those received by the Canadian public.

The government is enhancing the ability to terminate the protected person status of those who return to their country of origin for a vacation or demonstrate in other ways that they are not in legitimate need of Canadian protection.

Another point raised by other speakers was whether the bill would survive a charter challenge.

The government is planning to detect and deter human smuggling overseas through the appointment of a special adviser on human smuggling and illegal migration. That may be a good idea. I do not know who that will be and what he or she might do, but hopefully there will be a way of monitoring or getting some sort of report from this individual as to progress being made. We would not want to add onto a bureaucracy that produces very little results.

In terms of increasing the presence overseas through operational activities, diplomatic outreach, partnership with other affected nations and engagement with multilateral bodies, anything that can track down the smugglers and put them in jail is probably a good idea. I indicated that we already have life sentences for smugglers. If we apply life sentences and put them in jail, the House will have our full agreement on that, but the preponderance of the bill actually deals with the migrants themselves and that is what the government is looking at.

Bill C-49 is called the “preventing human smugglers from abusing Canada's immigration system act”, but it is really basically an act to attack and punish refugees. As I indicated before, we would rather attack the criminals, the traffickers, the smugglers, and not the victims. The bill will concentrate absolute power in the hands of the minister to decide which refugees will be subject to these measures, with no clear definition of irregular arrival. It can apply to any group of refugees, immigrants or visitors.

Also, as I have indicated, Parliament already approved a strong and balanced refugee law a few months ago. The Conservatives should basically concentrate on enforcing Bill C-11, the law we have right now, and allow genuine refugees to stay and deport the bogus ones as quickly as possible. We are fully in agreement with that. Once again, we were part of the development group behind Bill C-11 in the first place.

We have also long called for the refugee determination process to be sped up, because it has taken too long in the past, and increased RCMP resources and secure immigration status of trafficked and smuggled victims so that they can testify against the real criminals. That was a concern that was indicated as well, that even if we do catch the smugglers, what are the realistic chances that witnesses would be willing to testify against them? We need to make sure that we have RCMP resources and proper safeguards to make sure that when we do catch these people, the witnesses are able to testify against them to put them away for those long sentences.

Our members have indicated that the bill will hurt legitimate refugees and those people who help them. It will prevent refugees from bringing their spouses and children to Canada for at least seven years, and women and children will be detained for at least one year, repeating the previous sad history of punishing and interning refugees and their children.

Bill C-49 is basically very deeply unfair to refugees because it fails to honour obligations under Canadian and international law, and other speakers have mentioned that. It deprives individual cases from the independent review that justice requires. It will involve huge costs and unnecessary detention. We talked about the $9 billion in prisons that the government will have sprouting up across the country over the next little while. It will do nothing to prevent human smuggling. More laws will not catch the smugglers who are overseas. Mandatory minimum sentences will not deter them.

Under the Immigration and Refugee Protection Act, smuggling is already punishable by life imprisonment and mandatory minimums have been shown not to work as deterrents. If we already have the possibility of life imprisonment, then how much further do we want to go in this area?

I recognize that my time is up and I would be willing to answer questions from members.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, it is great to get back to matters of substance.

It is an honour to have the opportunity to rise today in support of Bill C-49, an act to prevent human smugglers from abusing Canada's immigration system.

Canada has a history and a tradition of welcoming immigrants who wish to start a new life here. On a per capita basis, we now welcome more newcomers than any other country, nearly a quarter of a million last year alone.

Through the Balanced Refugee Reform Act, introduced by our Conservative government, we have committed to resettle 2,500 more refugees living in refugee camps and urban slums. This is a source of pride for our country and a reflection of the generosity of our nation. It is part of our national character.

Unfortunately, Canada's immigration system and our generosity have become a target for human smuggling operations. The arrival of the MV Sun Sea and the Ocean Lady in a period of less than 12 months clearly demonstrated that human smuggling networks are extending their reach to our borders. Our intelligence indicates that these voyages, organized by criminal syndicates, will continue.

This form of illegal commercial migration is dangerous and exploitive by nature. The journey of these migrants is treacherous, and every year people around the world die in human smuggling operations.

The ringleaders of these smuggling operations are ruthless profiteers. They are vile, despicable criminals who consider their passengers to be little more than cargo. Those profiteers cause misery and suffering, and risk the lives of those they purport to be helping. Human smugglers and those on board their vessels also provide financial support to dangerous international criminal networks.

Many who use these types of smuggling networks are economic migrants. When they use this unlawful behaviour to arrive on our shores and then claim to be asylum seekers, they abuse our country's generosity.

These operations are unfair to those seeking to come to Canada by legal means. Millions of people around the world aspire to come to our great country, and it is gross unfairness to allow others to jump the queue through illegal means and co-opt those who use legal means to come to Canada.

Those who use illegal means take up space and resources in our immigration system, which should be focused on those who have applied to immigrate legally. They deprive true refugees of the opportunity to be granted protection in this great country of ours. When genuine refugees use these illicit networks to get to Canada, they put themselves and their families at risk.

If we do not take strong action now, more vessels will arrive in Canada and more lives will be put at risk. We cannot just stand by and allow these exploitive operations to continue. We must act now.

We must act to avoid a two-tiered immigration system: one tier for legal immigrants who wait patiently in the queue for the privilege of coming to Canada; and a second tier for illegal migrants and queue-jumpers who pay human smugglers to get them to the front of the line.

Canadians have reacted strongly to these unwelcome arrivals. More than 50% of Canadians polled agreed that this type of migration is unacceptable. These events have put at risk public support for immigration in general and refugees in particular.

We are a generous country. We welcome immigrants and refugees from around the world. I would hate to see our national support for that program decline because illegal migrants and smugglers are abusing the system.

We need to maintain public confidence in our immigration and refugee system, since immigration will soon become the source of all our labour-force growth and a critical part of our economic growth.

The legislation before us will help prevent abuse of Canada's immigration system and goodwill. It will help us prevent human smuggling operations. It will provide disincentives to would-be migrants, so that they do not place themselves at the mercy of human smugglers on these treacherous ocean journeys.

I would like to outline how this legislation will do just that. First, the law before us proposes to introduce mandatory detention for up to one year. This will allow for determination of identity, admissibility, and illegal activity. As I am sure most members of this House are aware, people who arrive on these vessels often do not have proper documentation, whether by design or not.

We do not know who they are or whether they might have been involved in criminal or terrorist activities. We as a government need to have time to confirm their identities. This becomes particularly difficult in the case of mass arrivals, as we have recently experienced, when hundreds of people arrive at the same time without the proper paperwork.

As we are now learning, some of the migrants onboard the Sun Sea have already claimed refugee status in other countries such as the United Kingdom, and have already been found not to be in need of protection.

Detention will allow us to verify and confirm the identities of these individuals. This way we can determine whether they are admissible to Canada, or whether they are, or have ever been, involved in illegal activity.

That is fair and reasonable, and Canadians agree with us. Our main priority is to protect the safety and security of Canadians. We need to know who these people are before they are released into our Canadian communities. This is the least that Canadians can expect of their government, and we are delivering on that expectation.

Second, this legislation aims to introduce several disincentives to stop those who are tempted to use this perilous form of migration. A key disincentive is that those who arrive as a result of a designated smuggling event will not be able to apply for permanent residency for a period of at least five years. This applies whether they are found to be in need of protection or not.

During that five-year period, persons found to be in need of protection would be restricted from travelling outside Canada and would be unable to apply for permanent residence to Canada through other means. As a result, they would not be eligible to sponsor family members into Canada or to become Canadian citizens during that time.

For those who received protected-person status, reporting requirements would be put in place. This will allow our government to be able to initiate proceedings before the Immigration and Refugee Board to remove their protected-person status if there is evidence that the individual no longer needs protection. This would apply, for example, if the individual returns to his country of origin or if conditions in that country change.

If someone is able to return safely from a holiday to his country of origin, the country that he claims to be fleeing, then he is clearly not in genuine need of Canada's protection. In such cases, the existing legislation would allow the Minister of Citizenship, Immigration and Multiculturalism to make an application to the Refugee Protection Division for a cessation of the individual's protected-person status.

These legislative amendments would ensure that while an individual is subject to a cessation application, his application for permanent residence would be suspended and would not be processed until a decision is made on the minister's application. If the Refugee Protection Division upholds the minister's decision and the application for cessation, the individual would be removed from Canada.

An individual would be allowed to apply for permanent residence only after five years, if he is determined to be in further need of protection. This means that people in this category could apply for permanent residence only if no cessation proceedings had been initiated as a result of changed country conditions, or if they had not returned to their country of origin, or if the minister's application for cessation was not positively decided by the IRB.

If there is evidence that the protected-person status was obtained fraudulently, if, for example, an individual has directly or indirectly misrepresented or withheld material facts relevant to his situation, then the Minister of Public Safety would be able to apply to the Refugee Protection Division of the IRB to revoke the individual's refugee protection status. If the original decision is cancelled and no other grounds for protection remain, the individual would be removed from Canada.

Once in force, the bill would also eliminate access to the Refugee Appeal Division for people who want to review a negative decision on their claim. While they would still be able to ask the Federal Court to review a decision, they would not benefit from an automatic stay of removal from Canada while their application was being considered.

These measures that our government has proposed are firm but reasonable. They are exactly what Canadians have been calling for. They would maintain our Conservative government's goal of faster protection for those who truly need it and faster removal of those who do not. This will be achieved through the balanced refugee reform act, the bill before us today.

To further discourage individuals from coming to Canada as part of a smuggling operation, we are also taking measures to ensure that these individuals have access to fewer Canadian benefits. Canadians enjoy health services that are among the best and most generous in the world.

Currently, asylum seekers, resettled refugees, failed asylum seekers awaiting removal, detained individuals, and victims of trafficking are all provided with temporary health care coverage through the interim federal health program.

Under the changes we are proposing, the scope of services provided under the IFH program would be reduced for those who arrive in Canada illegally by way of human smuggling. They would receive only basic coverage, including medically necessary care and the immigration medical exams that refugee claimants must take upon their arrival in order to ensure that they do not pose a risk to public health or safety.

We need to ensure that illegal migrants are not receiving health coverage that is more generous than that offered to hard-working Canadians.

Canada is a fair, generous and welcoming country for those who want to work for a better life, but our generosity should not make us a target for criminal activities such as smuggling operations. In order to avoid becoming a target, we must remove the incentives for people seeking to come here by way of human smuggling.

These measures before us today are right. They are fair. And they are necessary. We know that Canadians agree with us. Poll after poll shows that Canadians want firm action taken on human smuggling, on cheating the system.

Cultural groups across the country have endorsed our measures. The Peel Tamil Community Centre stated that it was “pleased to see the government taking action to deter human smugglers who charge victims enormous sums of money”. The Taiwanese Canadian Association of Toronto said, “We need to know the identities of these individuals before they are released into Canadian society. That's why we also support the mandatory detention of illegal migrants who use human smugglers”.

Our government is committed to protecting the integrity of our immigration and refugee system. We are committed to upholding our laws. We are committed to protecting the safety and security of Canadians.

Taken together, the changes we have proposed will help safeguard our fair and generous immigration system. Moreover, they will help ensure that Canada is not an easy target for criminal organizations involved in human smuggling.

As I mentioned before, this legislation has won the support of virtually all key stakeholders. The legislation has resonated with Canadians at large. In fact, recent polls show that 60% of Canadians want to send ships back without allowing them to land on our shores. Yet we know that as a compassionate country we have to leave room for legitimate refugees. It is the abuse of the system that we object to.

Canada is a compassionate country, but because we are compassionate and generous, there are people around the world who will abuse that generosity, and Canadians do not tolerate abuse. In fact, I am shocked to hear the opposition parties in this House actually criticizing and opposing this bill. It is very clear that they are still not listening to Canadians.

We have consulted broadly with Canadians on this bill and we know that Canadians support it. My invitation to the opposition parties is to join us in doing the right thing for Canada.

Preventing Human Smugglers From Abusing Canada's Immigration System Act

[Justin Trudeau, Liberal, Papineau, QC]

Madam Speaker, the arrival on Canadian shores of the latest two boats filled with Tamil refugee claimants has generated many concerns from the public. Opinion polls suggest that the vast majority of Canadians want future boats to be turned away and the Tamil refugee claimants to be deported for fear that our generous system is being exploited by criminal elements.

As always, the government has not missed the opportunity to turn public concerns into bad legislation that torques up the issue and promotes fear and misunderstanding in the hopes of electoral gain.

Bill C-49 is a terrible piece of legislation but a very effective announcement. It is effective because the government gets to talk about getting tough on vile human smugglers who criminally take advantage of extraordinarily vulnerable people fleeing persecution and oppression. It is always effective to be able to stand up and talk about defeating the evildoers while protecting the innocent and the just.

The problem is that is all this is, talk. This legislation actually does very little to go after the evildoers, and far from protecting the vulnerable, actually goes after and punishes asylum seekers.

Allow me to be very clear on one thing, Liberals and indeed members of all parties in this House are deeply committed and concerned with our capacity to crack down on human smugglers and protect the integrity of our refugee and immigration systems.

It is just that it is apparent there is little in the new legislation that actually cracks down on smugglers. There are provisions the government is quite pleased with that provide for mandatory minimum sentences of up to 10 years, but those are very unlikely to be an effective deterrent given that smuggling already carries a potential life sentence.

There are some minor provisions against shipowners who disobey ministerial orders, but nothing that is truly likely to put a dent in the multi-million dollar human smuggling business. Indeed, many of the provisions will just drive up the cost to asylum seekers and put them on more dangerous sea routes.

Rather, most of the legislation's provisions are directed at trying to deter refugees themselves. Many of the provisions may be inconsistent with the charter. Others are in direct violation of our obligations under international law. All will cause great hardship to refugees who have come to Canada to seek protection.

The legislation represents a complete reversal and backtracking on Canada's proud humanitarian tradition toward refugees and the displaced.

This government bill would create two classes of refugees based on the means of transportation they use to get here. Consider this: our system assesses, questions and judges people to determine whether they are legitimate refugees, but they will be treated differently if the minister does not like the way they arrived in Canada. That has nothing to do with the refugees' merit. It is entirely arbitrary. These people are recognized as refugees because they have good reason to fear for their lives because of their race, religion, nationality, membership in a particular social group or political opinions. These are legitimate refugees, but because we do not like the way they arrived here, we subject them to harsh punishment that is no doubt unconstitutional and certainly violates our international obligations.

We cannot judge people on the basis of how they get here, because refugees use unorthodox means to reach their chosen land. In most cases, people have found unorthodox ways to get to Canada. The government judges these people on the basis of their country of origin. Designating people who arrive illegally means the government can judge anyone it wants.

In addition to keeping designated refugees locked up, the government would impose a five-year probation, during which time they would be forbidden from leaving Canada or from applying to sponsor other family members, who are most likely suffering. The government would also have the power to hold asylum seekers for up to a year.

The president of the Canadian Council for Refugees, Wanda Yamamoto, said:

Measures keeping some refugees longer in detention, denying them family reunification and restricting their freedom of movement are likely in violation of the Canadian Charter and of international human rights obligations. People who are forced to flee for their lives need to be offered asylum and a warm welcome, not punished.

That is what is so worrisome about this capacity to create two categories of refugees depending simply on whether or not the minister approves of the way they got here.

The thinking behind it, I assume, is that if people know that the minister might not approve of their way of coming here, they are not going to get in those leaky boats and risk their lives in a heavy crossing. But when we look at the pressures on them when they got on, and their willingness to shell out to criminal elements extraordinary amounts of money that they do not have, the suspicion that perhaps the minister will disapprove of them is not going to keep them away.

When we create two classes of refugees because we like their way of getting here or we do not like their way of getting here, we are creating divisions among the very people who are most vulnerable, people whose rights Canada has sworn to uphold and protect. It is a complete discarding of the Canadian principles of fairness and justice that have defined this country for decades.

The Charter of Rights and Freedoms states that everyone has the right not to be arbitrarily detained or imprisoned. Everyone has the right on arrest or detention to be informed promptly, to retain and instruct counsel without delay, and to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

On top of that, the fact that refugees would have no right to apply for permanent residence for five years after determination of their claim is inconsistent with the principle enunciated in article 34 of the UN Convention and Protocol Relating to the Status of Refugees which provides that states must make every effort to expedite naturalization proceedings for people determined to be refugees. We are tossing international obligations and Canadian law to the wind with this bill.

The Geneva Convention states:

The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory...

That is fairly clear. Again, the proposed legislation goes against that by banning them from travel for up to five years. Even once they have been recognized as refugees, they have to wait until they become permanent residents to get travel documents.

The Geneva Convention also states that the contracting states, of which we are one:

...shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

That is one of the things Amnesty International recently declared in an open letter violates the rights of these refugees. It ignores the reality that many of these refugees who have a well-founded fear of persecution turn to smugglers for assistance because of desperation, because of a lack of other options, because of a lack of a willingness of their host government which is busy oppressing or maligning them to help them get to another country.

Neither a just society, nor the Canadian Charter of Rights and Freedoms, nor international agreements are safe from this government.

We have good reason to be very concerned about this bill. I—we—understand that the problem of human trafficking needs to be dealt with, but the Conservatives' approach lacks refinement, subtlety and respect for the Canadian Charter of Rights and Freedoms. They are classifying people not according to the dangers they face at home, but according to how they get to Canada. That is not the right way to do things.

The Tamil boatloads of 2009 and 2010 represented a new wave of boatloads of refugee claimants. The government's response to the first boat was relatively muted. There was not a tremendously strong public outcry against these refugee claimants.

However, well before the second boatload arrived, the public safety minister was already warning the Canadian public that the boat was filled with terrorists and criminals, before these people were evaluated, examined, interviewed, judged on their individual merits, as our obligations require us to do in the case of every single refugee.

This coming out against them soured public opinion against the claimants before they even arrived in Canada, and has produced a dramatic backlash. The effect of this short-sighted reaction has been to create a strong anti-refugee and anti-immigrant sentiment.

That is not typical of Canada. That is not typical of Canadians. We are a country that has consistently stood up open to immigrants, to refugees, and to drawing from around the world people who wish to come here, build a safe and secure life free from persecution. Now we are busy encouraging that persecution and hyping up the tensions between Canadians and potentially new Canadians.

It is extremely important that a Canadian government be responsible in how it defends our immigration and refugee system, how it makes Canadians understand that we are strong because of, not in spite of, diversity. Our differences are what define us and make us the flexible, open, confident, powerful country that we are in the process of becoming more and more every day.

The government needs to be much more responsible in how it chooses to elevate and enervate the Canadian public's level of debate on an issue such as this one.

It is important to mention that when the minister and the Prime Minister talk about making sure that the immigrants who go through the normal process do not get unfair treatment because of the queue jumpers, it is actual misinformation.

Let me share a secret that the government does not want anyone to know. There is no queue for refugees. There are no queue jumpers in the refugee system. We have a process around refugees. Anyone who comes to Canada and seeks asylum falls into an evaluation process that has nothing to do with the quotas we establish for refugees, family class immigrants, economic migrants. It has nothing to do with the legitimate immigration process, the queue and wait times.

A refugee is evaluated on the merits of his or her individual case. Unfortunately, as we have seen in the case of the American war deserters and many others, the government is choosing to interfere with the process in which refugee claimants are evaluated on the merits of their claim. The government is choosing to prejudge. It is choosing to frame the debate in such a way that people are blending immigrants and refugees. They are two very different things.

By stoking our fears and concerns and the frustrations of legitimate immigrants who have been here but who followed the queue, who see these people as queue jumpers because the government says they are queue jumpers, we are not serving Canada. We are not living up to our international responsibilities to be a fair and just country. We are falling by the wayside of the rights and principles for which Canada has always stood.

Instead of misinforming and holding press conferences in front of boats, we would have liked the government to consider an alternative approach.

The first and most obvious one, in the case of the Sri Lankan asylum seekers, is to aggressively pursue a peace settlement in Sri Lanka.

Tens of thousands of Tamils still remain detained in detention camps. The government is being investigated by the United Nations to see if crimes against humanity were committed by the government during the civil war. Tortures and disappearances unfortunately continue.

However, there is no doubt that there is a genuine opportunity for peace. The Tamil minority wants some form of autonomy. This can be addressed within a federal state. More and more Tamils are involved in the Sri Lankan government. There is an openness toward improving the relations between the Tamil community, the international community and the government.

We are making headway on that and Canada can play a role in helping shape that peace, in helping encourage that peace. We know what it is like to live within a country where there are distinct cultural, linguistic and religious identities and to make it work. We are living proof of that here in the House of Commons. We need to build on our capacity to work with international partners, to work with the UN. Unfortunately it is an area in which the government has not been particularly successful.

When we called upon the government to work with international partners, to cut off human smuggling, to decrease the likelihood and the possibility of engaging with human smugglers, to go after human smugglers, what did it do? The Conservatives went after them. They worked with local police forces. But instead of rounding up human smugglers they rounded up potential asylum seekers. That is not the kind of work we need to do if we are going to really crack down on human smuggling.

People have been talking about turning around boats. I am pleased that the government has not chosen in this bill to encourage the idea that we should turn these boats around before they land on our shores, because that is a violation of any number of international conventions and puts people who are extraordinarily vulnerable at tremendous risk.

Since the diversion of the ships is not legal, the only alternative is therefore to provide expeditious determination of refugee claims. It is well known that the most effective mechanism for deterring frivolous or irresponsible or unfounded claims and slowing down refugee movements is to subject persons to fair but expeditious determinations and to quickly deport persons whose claims are rejected. Unfortunately, Bill C-49 does not address that and does not encourage that.

The process of seeking the detention of refugee claimants, coupled with expedited hearings while providing them due process is an effective response to try to deter claims. In the case of the Sri Lankan Tamils, given the current situation, it may well be that some of the claimants will be accepted. However, all should be expeditious, fair determinations.

This, coupled with efforts to resolve the situation in Sri Lanka and with efforts to stem the flow of boats by working with governments in the region, is the most effective long-term response. It can be done without inflaming anti-immigrant feelings in Canada and in a manner that will ensure Canada complies with its obligations under international law and the charter.

Speaking of this legislation, there is something else that worries me. As we have heard speaker after speaker in the opposition get up and highlight all the real legal challenges and convention challenges with this bill, and as experts have come out time and time again with real concerns about this, the thing that really bugs me is that this legislation, which is filled with ineffective and illegal measures, was drafted by the good people in what is generally considered to be the best immigration ministry in the world.

Our fine bureaucrats put together this piece of legislation that is not worthy of the kind of work and the kind of balanced approach that was even available and visible in Bill C-11 that we passed unanimously in the House. That bill was supposed to balance and improve our process of evaluating refugees and providing fairness for refugees.

Under the guise of legislation to deter smugglers, or smuggling, the government has introduced broad changes to our refugee determination system and to the rights of persons recognized as refugees.

Let us be perfectly clear. There is very little in this legislation that is designed to crack down on smugglers. Instead, this legislation takes reprisals against the refugees who use those smugglers—

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Madam Speaker, when the hon. member referenced Bill C-11, which passed the House with the support of all parties and all members of Parliament, he referenced it in an interesting way. We worked collectively on that bill and we passed a bill that we all thought was pretty good. Were we 100% happy? No one was absolutely happy but we thought it was good.

All of sudden, this bill gets dropped on us out of the blue that seems to go back on that sort of consensual collective way that we were able to arrive at results. The result of dropping a bill without any consultation with other parties are issues that were raised.

My goodness, have we ever allowed for the incarceration of children for one year in detention centres in Canada? What are we thinking of doing here? How can we separate families for five years? The people who are determined to be refugees, we will not allow them to travel back to their country to bring to Canada the rest of their families who also are in harm's way as refugees in camps, perhaps. Even though they have been determined as refugees, we will not allow them landed status, so they cannot bring over their families.

We will have sometimes husbands, wives and children of determined refugees in harm's way. Could the hon. member tell us if Canada has ever treated some of the most vulnerable on the planet in that manner?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

It has not even been proclaimed yet, as one of my colleagues points out.

This is really problematic and a very sad day that we are here to do this.

Bill C-49 is a piece of legislation that is extremely unfair to refugees. We just listened to a speech from a Conservative member that had a completely confused understanding of what it was to be a refugee or a refugee claimant in Canada. The member seemed to believe that all of these people were criminals or potential criminals and talked about them in that way. Nothing could be further from the truth, and even in the situation where a refugee claimant may lose that determination, I would think there are very few, if any, of those people who any Canadian would reasonably define as a criminal. It is very sad that this kind of confusion can exist on the Conservative bench amongst government party members about the intent or the need for this piece of legislation. That is a very serious confusion and misleads Canadians about the situation of refugees and refugee claimants in Canada.

Even if we look at the situations that seem to have given occasion to this particular bill, the arrival of the boats on Canada's west coast with largely Tamil refugees, that is not a fair descriptor yet. Many of the people who have arrived in Canada in boats, recently and in past years, have had successful refugee determination cases. They were not criminals. They were not queue-jumpers. They were in fact refugees, as determined by the established process here in Canada. That characterization of them is false and misleading, and it is very sad that it continues to be promulgated.

Bill C-49 is a deeply flawed bill and deeply unfair to refugees. It does not honour Canada's obligations under our own equality law, under the charter, or under international law. It is a sad departure from Canada being, in 1986, a country that was honoured by the UN High Commissioner for Refugees with the Nansen Medal for its refugee work as one of the outstanding countries in the world in terms of refugee resettlement and support for refugees. This is a far step from that point in our past history.

This bill would deprive refugees of an independent review. Because it moves to the detention system, which we have largely avoided in Canadian refugee determination and Canadian refugee law, it goes to the expensive alternative of detention. Detention is hugely expensive when compared to the value of a refugee claimant living in the community while his or her case is being determined. This is a serious departure.

The reality is that the bill, despite all the bravado about it, would really not do much about human smuggling. More Canadian laws are not going to catch human smugglers, the people who organize the kinds of things that the government is apparently concerned about.

Mandatory minimum sentences are ineffectual in most criminal situations and I cannot imagine how in this circumstance there is even any hope of them being any kind of deterrence. The only reason we would have a mandatory minimum sentence is for the deterrent value. I think they are almost useless. I doubt that any of the criminal organizations that the government says are out there organizing and switching from arms shipments to human shipments are writing memos to the people they work with saying, “Beware. Canada has just introduced a mandatory minimum sentence for human smuggling”. Mandatory minimums are not going to stop any of those people. They are not even an issue. They are not even a consideration in those circumstances. In this case, a mandatory minimum sentence would be completely ineffectual. This is one of the places where it would be least effective anywhere in criminal law.

Overwhelmingly, mandatory minimum sentences are ineffective throughout most aspects of criminal law. It is a government fantasy to think that they would somehow address the human smuggling situation.

Refugees are usually people who are in desperate circumstances. One of the criteria for determining whether people are refugees is if they fear for their life in their country of origin, if they have been persecuted and are seeking safety. It is our duty to receive those people and make a determination about their case.

In Bill C-11, we made decisions about how to expedite that process. It was taking too long in some cases. The Conservatives did not help the speed of the refugee determination process by their actions when they became government, by the fact that they would not reappoint anybody to the immigration and refugee appeal boards. The backlog increased because of their refusal to reappoint anybody that the previous Liberal government had appointed. They were slow making their own appointment. The Conservatives are directly responsible for the backlog that exists in refugee determination in Canada right now.

But we did take some extra measures to make sure that it was a more effective process in Bill C-11. We did take measures to ensure that when someone is determined not to be a refugee that they are removed from Canada. I have always said that a key aspect of our immigration and refugee policy had to be an effective removals policy as well. If we are going to have any respect for our refugee and immigration regime, that has to be an effective part. There has been a real experience that it is one place where we have fallen down in terms of enforcing immigration law in the past.

I want to talk about some of the specific aspects of this legislation.

I really believe that Bill C-49 punishes refugees. My remarks are drawing fairly heavily on the work of the Canadian Council for Refugees, in whom I have incredible confidence. This is an umbrella organization of almost every refugee- and immigrant-serving organization in Canada. It does excellent and detailed work on immigration and refugee policy and speaks loud and clear for the people it serves from coast to coast to coast in Canada. Whenever I speak on immigration and refugee matters, I draw heavily on its work.

Bill C-49 has been presented as legislation that would target smugglers, but in fact most of the legislation would not target smugglers but refugees and changes the circumstance for refugees. I think the previous Liberal member did a count and said there are 12 sections of the bill that deal with refugees and only five sections that deal with smugglers. So it really is an unbalanced piece of legislation in that sense.

Refugees, in this bill, including refugee children, would be mandatorily detained for a year without the possibility of an independent review and denied family reunification and the right to travel for over five years under the terms of this legislation. These are very serious restrictions. Mandatory detention is something that we have not used extensively in Canada and I think it would be a real departure from the success of our refugee legislation.

Many people believe that under Bill C-49 refugees could easily be victimized three times: first, by the people who were persecuting them in their country of origin; second, by smugglers who are often the unscrupulous people they have to use to escape their persecution; and finally, by an unfair process here in Canada. This is totally contrary to what we should be doing. We should be seeking to reduce the victimization of refugees and of people who have been persecuted and who fear for their lives in their countries of origin. The bill would only add to that victimization, unfortunately.

As I mentioned earlier, this legislation seems to violate Canada's commitments under international law and the Canadian Charter of Rights and Freedoms. The Convention on the Rights of the Child is another one that is in play here and is of great concern. The Convention Relating to the Status of Refugees, the refugee convention, is another important international commitment that Canada has made. I think under all of those international agreements and also under the charter there will be challenges to this legislation, because in one way or another it is problematic. When we look at the Convention on the Rights of the Child, for instance, a delay in family reunification is an incredible violation of the rights of a refugee child. If a parent is here in Canada making a refugee claim, if the possibility of reunification for that child is delayed by five years, it is a very serious problem for that child and I think a very serious violation of that child's rights.

The most serious aspect of Bill C-49 is that it would create in our refugee legislation two classes of refugees: one class that is designated by the minister based on their mode of arrival, who would have different treatment compared to other refugees who land on our shores in Canada, who arrive in Canada by some other means. I think this is a clearly discriminatory provision.

In fact, it goes back on the commitments that we thought we had received from the government when the negotiation happened around Bill C-11, the Balanced Refugee Reform Act. In that legislation, there was also an attempt to establish two classes of refugees and to have a designation system. It was based on the country of origin, on what were considered safe countries that could produce refugees and countries that were not considered safe, and we know that it is almost an impossible designation to make.

So in negotiations with the government we got that changed and we did away with that classification of refugees that was a key part of the previous bill, Bill C-11.

Now the government, in this bill, is trying to reintroduce that kind of designation system. This time, it is not based on the country of origin of the refugee but on how that refugee got to Canada, on his or her mode of arrival. I think that is just trying to get it back in when we thought we had dealt with that issue very clearly in the previous negotiations, in the previous legislation.

I think, too, the discretion that is afforded the Minister of Citizenship and Immigration in making these designations would be way off the scale. It would be too much. It would go way too far in allowing an individual minister the ability to make these decisions about who would be this designated refugee who loses some of the rights established under Canadian law for refugee determination. I think if there is any reason to have serious questions about this legislation, it is because of the establishment of these two classes of refugees and because of the incredible amount of discretion that it would afford the minister.

There are places for discretion for ministers of citizenship and immigration around humanitarian and compassionate considerations, for instance, because refugee and immigration cases are often reflections of people's very complex lives and that is a place where there needs to be some discretion for a minister, especially in this portfolio. However, I do not believe that allowing a minister to designate who is a first-class refugee and who is a second-class refugee or a no-class refugee is an appropriate addition to our immigration and refugee law in Canada. It is a very serious problem.

This bill, as we has mentioned, talks about mandatory detention of people who are designated by the minister as second-class refugees. There is mandatory detention without independent review. This kind of arbitrary detention is likely contrary to the charter and international law. Children will also be detained under this proposal. Unless they are accepted as refugees or released on discretionary grounds by the minister based upon exceptional circumstances, designated persons will remain in detention for a minimum of one year before having access to a review of their decisions. There are examples in Canadian law where that kind of process has been shown to be in contradiction of the charter.

The bill also talks about mandatory conditions being imposed upon release and for persons to be indefinitely detained beyond 12 months without the possibility of release if the minister is of the opinion that their identities have not been established. These measures seriously deprive people of liberty, without the opportunity for an independent tribunal to review whether they are necessary to their particular situations or to their particular cases.

The bill also denies refugee claimants in the designated class the right to appeal a negative refugee decision to the Immigration and Refugee Board's Refugee Appeal Division. It is frustrating to no end to have to be debating the need for a Refugee Appeal Division yet again in the House of Commons. The Refugee Appeal Division, an appeal of the decision of the Immigration and Refugee Appeal Board on a specific refugee case, was part of the new Immigration and Refugee Protection Act that came into effect in 2001. In fact, with the Liberal government of the day, the establishment of the Refugee Appeal Division was a compromise, worked out with all the parties in the House, that garnered support for that legislation.

Sadly, even though we won the Refugee Appeal Division in an important appeal in the refugee process, the Liberal government of the day and subsequent Conservative governments never put it in place. It was passed and was part of the law but was never implemented. This was a serious problem. We even had private members' legislation, committee reports and other motions that called upon the government to actually implement the established law of the land but to no avail.

Recently, in the debate on Bill C-11, again we thought we had won a victory where finally the Refugee Appeal Division, this important appeal of a negative refugee decision, would be implemented. However, now we see that the government is proposing, in Bill C-49, to remove that again. We think we have it but we do not implement it. We think we have it again and now we are going to limit it.

Every organization has said that this is an important aspect of refugee law and that it needs to be here in Canada. International organizations have commented that Canada needed to have this level of appeal, that Canada needed to uphold its existing refugee act, and that this was a crucial piece of what we should be about in our refugee laws. I am really disappointed that the government has again moved to limit the Refugee Appeal Division.

Family reunification is an issue. I mentioned the issue of blocking families from being reunited for five years and the issue of refugee integration into the community. This slows that process down, and that has been one of the successes of Canadian immigration law. We have moved new immigrants and refugees into positions of participation in society, of feeling that they belong in Canada, that they are valued members of the community, better than any other country, and yet here again in this legislation we are putting forward barriers to doing that, and we do that at our peril. We are turning our backs on what we have proven works and what other countries agree have worked.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Madam Speaker, I am pleased to have the opportunity to participate in the debate today on Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act. In the tradition of the government, it has given it a nickname, the Preventing Human Smugglers from Abusing Canada's Immigration System Act.

Once again, as has been the case with all of the nicknames that it has come up with, it is a very misleading nickname because this bill really affects refugees far more than it will ever affect those who engage in human smuggling.

It is unfortunate with this bill that we have seen a real setback in the kind of progress we have made in this Parliament on immigration and refugee issues. We had a great example of co-operation, of cross-party co-operation, and government and opposition co-operation, with Bill C-11, the Balanced Refugee Reform Act, which passed unanimously in this House back in June. That was a place where the government introduced a bill to address issues it saw with the refugee determination process in Canada, in an attempt to make it more efficient, to speed it up and to address some of the problems existing in that process.

The opposition had trouble with that bill, but because there was an openness to dealing with the questions that the opposition had, a better bill was created. Unanimity was found, a rare thing in this minority Parliament, and I was hopeful about that kind of process. We saw, in one of the few occasions since it has come to power in the last two Parliaments, the government's willingness to actually work with others to craft a better bill, and that is what we ended up with.

Now we are set back with Bill C-49, which takes us back and tries to reopen some of the issues that the government apparently resolved back in Bill C-11. It is trying to reopen some of the issues on which it forged a compromise with the opposition parties back in the spring in this place.

That is very troubling. It seems that when we do the job that Canadians sent us here to do, to talk to each other, to do the things that are best for Canadians, when we finally have that opportunity, the government wants to turn its back on that development in a very dramatic way by reintroducing another bill that reforms a piece of legislation we just dealt with in June.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Madam Speaker, I would not call them second class. I would call them no class. That is clear.

At the beginning, I said that this was really three bills. The first part of the bill, the one called An Act to amend the Immigration and Refugee Protection Act, seems to be intended to propose amendments to Bill C-11, which is the bill that my colleague across the floor just mentioned. This was a bill in which we tried to bring balance to the way that the bill was going forward.

What Bill C-49 does to Bill C-11, under the guise of catching smugglers, is to change how Bill C-11 works. It changes how would-be refugees are accepted into the system in Canada; it changes this radically and people ought to know.