Bill C-4 (Historical)

Preventing Human Smugglers from Abusing Canada's Immigration System Act

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act

This enactment amends the Immigration and Refugee Protection Act to, among other things,
(a) authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons, the result of which is that some of the foreign nationals in the group become designated foreign nationals;
(b) authorize an officer or the Minister, as the case may be, to refuse to consider an application for permanent residence if the applicant has failed to comply with a condition of release or other requirement imposed on them;
(c) provide that a person may not become a permanent resident as long as an application by the Minister for cessation of that person’s refugee protection is pending;
(d) add, as grounds for the detention of a permanent resident or foreign national, the existence of reasonable grounds to suspect that the person concerned is inadmissible on grounds of serious criminality, criminality or organized criminality;
(e) provide that the Immigration Division must impose any prescribed conditions on the release of certain designated foreign nationals;
(f) provide for detention rules and a review procedure that are specific to the detention of certain designated foreign nationals;
(g) clarify the authority of the Governor in Council to make regulations in respect of conditions of release from detention;
(h) provide that certain designated foreign nationals may not apply to become permanent residents until the expiry of a certain period and that the processing of any pending applications for permanent residence is suspended for a certain period;
(i) require certain designated foreign nationals on whom refugee protection has been conferred to report to an officer;
(j) authorize the Governor in Council to make regulations respecting the reporting requirements imposed on certain designated foreign nationals;
(k) provide that the offence of human smuggling is committed when a person organizes the coming into Canada of another person and knows, or is reckless as to whether, the entry into Canada is or would be in contravention of the Act;
(l) provide for minimum punishments for the offence of human smuggling in certain circumstances;
(m) in respect of the determination of the penalty to be imposed for certain offences, add as an aggravating factor the endangerment of the life or safety of any person as a result of the commission of the offence;
(n) change the definition of “criminal organization” in Part 3 to give it the same meaning as in subsection 467.1(1) of the Criminal Code; and
(o) extend the time for instituting proceedings by way of summary conviction from six months to five years or from six months to 10 years, as the case may be.
The enactment also amends the Balanced Refugee Reform Act to provide that a refugee protection claimant whose claim is rejected is not prevented from applying for protection earlier than 12 months after the day on which the claim is rejected, if it is rejected as a result of a vacation of the initial decision to allow the claim.
The enactment also amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence for vessels that fail to comply with ministerial directions. It also amends the Act to authorize regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.

Preventing Human Smugglers from Abusing Canada's Immigration System Act

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, once again, I thank my colleague for the question.

As I was saying, my aim was not to insult members of the government party or anyone else. I merely wanted to present the facts, as these are the facts. I do not believe that we can jeopardize the rights of refugees in the name of security. As I was saying as well, this bill will in no way prevent human trafficking, and thus does not provide a solution to that problem. The solution is to enforce the existing law on human trafficking. That is the solution we need here.

[José Nunez-Melo, NDP, Laval, QC]

Mr. Speaker, as the hon. member for Saint-Hyacinthe—Bagot just explained very clearly, Bill C-4 is very restrictive, particularly when it comes to privileges and to the image that Canada has traditionally portrayed to other countries of the world.

I am somewhat troubled when I try to understand why the Conservative members want to once again introduce this bill and ignore the amendments that we, the members of the NDP and the members of the Liberal Party, are proposing. It is important to note the direct impacts of passing such a bill, such as the violation of the Canadian Charter of Rights and Freedoms and the violation of international treaties. I have difficulty imagining how anyone would want to pass this omnibus bill, which was already debated in the previous parliament as Bill C-49, if I am not mistaken. Many debates were held, many witnesses were heard and many facts were put on the table in this regard. The bill was not passed. However, the Conservatives are once again trying to pass this odious bill.

This is even more surprising since Canada will find itself in a difficult position with regard to international treaties if, in the end, this bill is passed as is. The government just wants to do what Australia did and it is very difficult to understand those objectives.

On top of all this, it is very worrisome to see that there will be fairly serious consequences if immigration officers are given more power. Many rights and liberties will be violated. One major problem involves the discrimination that people who are deemed to be designated claimants will face. They will not have any rights. What is even more worrisome is that these people will basically be put in prison for at least a year. This completely violates the Convention Relating to the Status of Refugees.

The New Democratic caucus therefore has serious concerns about passing this bill, as introduced by the Conservatives. We stand firm. We want this bill to be amended and we want it to give some reprieve to ensure that everyone in need—everyone who is a true refugee—is treated equally. It is important to remember that our proposals are in no way meant to be weak or condescending toward criminals or those who, for political purposes, use certain methods of transportation to transport refugees. In my opinion, immigration officers are trained and are capable of determining and knowing who the real bad guys are. The problem with this bill is that, in reality, we are lumping everyone into the same category.

And that is not acceptable.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I would like to thank the hon. member for his speech on the problems that exist in Bill C-4. He said that certain aspects of the bill are contrary to the law. This bill flies in the face of international conventions and the rights guaranteed under the Canadian Charter of Rights and Freedoms. I would like to hear my colleague's comments on this, and I would also like him to explain the consequences this bill would have on Canada's international reputation.

[José Nunez-Melo, NDP, Laval, QC]

Mr. Speaker, I would like to thank the hon. member for his question.

Everyone here has heard all about these unacceptable violations, specifically the violations of the Canadian Charter of Rights and Freedoms. When the charter was created, Canada gained respect in the eyes of the world and all the nations around the globe. Canada set an example and many countries have drawn inspiration from it. But everyone should be questioning the true objectives of this bill, as it now stands, because it violates every international convention, specifically those related to children. Putting children in jail is unbelievable; it is unheard of, the world over. Even countries ruled by dictators would not be able to propose a similar bill.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I would like to thank the hon. member for his response.

Could he also explain the impact this bill might have on Canada's reputation? He spoke about the fact that this bill is an attack on children's rights. The government says that this bill targets smugglers—that is what is written in the title—but the hon. member raised the point that it will also attack the rights of refugees. Could the hon. member speak about the impact this bill will have on the rights of refugees and on Canada's international reputation?

[José Nunez-Melo, NDP, Laval, QC]

Mr. Speaker, I thank my hon. colleague for his question.

The topic of children is one that affects us all. Long ago, the ancestors of our wonderful nation of Canada built a reasonable immigration system, able to support the productive force and workers. The children of some immigrants integrate better than their parents. If the bill is implemented as it stands now, there will be some serious and unfortunately very restrictive consequences for the intellectual and physical development of the children.

The hon. members from the Conservative Party should agree to the amendments proposed by the Liberal and NDP caucuses, to ensure that we are treating children humanely and that the bill targets human smugglers more directly.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, Bill C-4 attacks refugees. It has no place in Canada because it proposes measures that are completely unacceptable. Some provisions of the bill respect neither the charter nor Canada's international human rights obligations. It is a discriminatory bill because it penalizes refugees for their method of arrival. It reintroduces provisions from Bill C-49 from the previous parliament, which was widely condemned by the community across the country.

This bill was previously rejected by all the opposition parties in Parliament. Many legal experts have said that it violates the Canadian Charter of Rights and Freedoms and international law. The government is telling us that it wants to target the smugglers, but is it really necessary to risk our reputation within the international community? Is it really necessary to violate the constitutional and international rights of refugees? We deplore the reintroduction of the anti-refugee legislation.

This bill allows the minister to order the detention not only of the asylum seekers, but also of their children, even if our security is not at risk and the detainees are not a threat. The bill allows the minister to order the detention and imprisonment of persons seeking refugee status.

It is a government's duty to take responsible measures to deter human trafficking. It is Canada's duty to take clear and transparent measures to put an end to dangerous and abusive behaviour. We must take measures to end the behaviour of criminals, in other words, smugglers, who violate the rights of refugees and the vulnerable. We agree with putting an end to all that, but Bill C-4 targets the refugees and not the smugglers.

Canada is committed to protecting refugees and implementing measures that respect the rights of refugees and immigrants. But now we are increasing the burdens on our refugees. With regard to the former version of this bill, Alex Neve, of Amnesty International, recently said:

Bill C-49 does not get it right in drawing the line between tackling crime and upholding rights. It goes after smugglers, in large part, by punishing the individuals who turn to them--in desperation--for assistance. Those provisions of the Bill that are discriminatory and will lead to human rights violations must be withdrawn.

I believe Mr. Neve is still right.

The bill creates a second class of refugees. Even people whose refugee status has been confirmed cannot obtain travel documents or file an application for permanent residence for five years. These provisions also violate the international convention, which requires countries to issue travel documents.

The bill will result in indefinite detentions, and a designated person will not be able to submit an application for permanent residence until five years have elapsed. Why such a long time? This measure applies even if the person's refugee status in Canada is confirmed. This bill will prevent refugees who have been duly accepted from being reunited with their families and spouses. It will certainly not help the integration of refugees into our society. This bill seems very difficult to justify.

In addition, as long as designated claimants do not have permanent resident status, they will be deprived of the right to travel outside the country. This provision of the bill appears to violate article 28 of the Convention Relating to the Status of Refugees. The bill contains discriminatory provisions. Designated claimants cannot appeal decisions regarding their claims to the Refugee Appeal Division. Since when does Canada fail to abide by its international commitments? Since when does Canada deny the right of appeal?

We have to wonder. Why do the provisions of this bill appear to violate the provisions of refugee conventions and even those of the charter? The bill imposes mandatory imprisonment on groups of refugee claimants, including children, despite the fact that these same individuals have not given us any reason to believe that they represent any sort of danger or threat. The minister will even have the power to decide to imprison any refugee claimant upon arrival if there is even the slightest suspicion of smuggling. The minister will also have the right to imprison refugee claimants simply because their identity cannot established in a timely manner.

As hon. members know, refugees are often fleeing a war zone, a place where circumstances are less than ideal. It is difficult to justify placing additional burdens on these people. It seems as though the legislation even violates the international Convention Relating to the Status of Refugees, which prohibits the imposition of penalties on refugees fleeing persecution on account of their illegal entry. Human smuggling is a serious problem. Resources and co-operation with foreign governments are required to deal with smugglers. However, human smuggling does not justify the violation of constitutional and international rights.

The Canadian Civil Liberties Association wrote to the Prime Minister and the Minister of Citizenship, Immigration and Multiculturalism to express its concerns about this bill. The president of the Canadian Council for Refugees, Wanda Yamamoto, has said, “We are celebrating this year the 60th anniversary of the refugee convention, but instead of honouring this treaty, the government is proposing to violate it.” She went on to say, “Let us not forget that the convention was adopted because many countries, including Canada, had closed their doors on Jewish refugees fleeing the Nazis, and we said 'Never again!'”.

I completely agree with her. After the second world war, the international community went through a period of reflection. Together, we decided that we never wanted to violate refugees' rights ever again. The ship filled with Jewish refugees that had travelled around the world was denied entry to Canada and many other countries. They were forced to return to Germany and in the end, suffered the same fate as so many of their fellow Jewish citizens under the Nazi regime: they were killed.

The measures being proposed here today will mean that people who want to come to Canada, which has been an internationally-recognized safe haven, will no longer believe that to be true. Where will these people go? Will they be forced to stay in their country? Passing this legislation could lead them to their deaths. Is that not disturbing? It seems very clear that the bill currently before us does very little to deter smugglers. One has to wonder why the government is so intent on attacking refugees and their children. The government must know that we already have legislation to deal with smugglers and traffickers. They already face life imprisonment and fines up to $1 million.

If the Conservatives want to discuss the existing deterrent effect, let us talk about it. Why are they so intent on attacking refugees? Our commitments mean that we cannot harm them gratuitously. Bill C-4 punishes refugees.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Mr. Speaker, I have listened with some interest to several speeches by our NDP colleagues today. A few moments ago, one of them said this bill was repressive, backward and oppressive, referring to the government that way. This member now claims that we would be oppressing refugees by this bill. He brought up the issue of the St. Louis and the tragedy of the Jewish refugees fleeing Hamburg who came to our coast and were turned back.

I have actually met some of those survivors, there were a few. I can assure members that none of them would be seeking to go back for a vacation in the land they had supposedly fled. Refugees are not refugees because a smuggler says they are. We have the ability to determine genuine refugee status in this country.

This bill would crack down on the smugglers. It would actually bring some accountability and increase our ability to prosecute smugglers, mandatory minimum prison sentences for convicted smugglers, and it would hold the shipowners to account. It would provide for a maximum of one year of detention, so that legitimate refugee status could be determined by our very generous provisions in our country. Refugees are very well looked after in this country. It would prevent abuse of our system and, frankly, it would ensure that health benefits of refugees do not exceed those of Canadians themselves who support these--

[The Speaker, Conservative, Andrew Scheer]

The hon. member for Gaspésie—Îles-de-la-Madeleine.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, the health of our newcomers is certainly topmost in our interest. We certainly want to ensure that all people who come to Canada are welcomed. In large measure I agree with him that when somebody comes to this country, we need to treat them well. We need to give them access to health care. We certainly do not need to imprison them. I do not think that sending the refugee to prison would in any way stop the smuggler from trying to make a profit off of people's misery.

[Jean-François Larose, NDP, Repentigny, QC]

Mr. Speaker, once again, I see the government lacking vision and even effort.

Being a father myself, I do not understand what I am supposed to tell my son when I see this happen. The Charter of Rights and Freedoms is supposed to be for everybody in this land. Yet, again, with a lack of effort, the legislation that is being brought forward is very broad and does not attach itself to specifics. There is exclusion.

The roots of this country have touched the soil of every nation on the planet and everyone should be welcome here. We should not be resorting to repression. The charter is far-reaching, and we send our military around the world to say that this charter must exist. We encourage democracy and yet, here at home, we are starting to exclude people.

Perhaps the hon. member has a comment to add about this.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I would like to thank the hon. member.

The rights bestowed on us by the Canadian charter are clearly rights that we value. They are upheld by the Supreme Court and they belong to us all. We cannot deny the rights of refugees just because we think that we will control smugglers by targeting refugees. That is backwards. It is the opposite of what we should be doing.

To get to the root of Canada's smuggling problem, we need to target smugglers. The bill before us does not seem to do that. Instead, it targets refugees who already bear a heavy burden. Constitutional rights exist in Canada. I have a hard time seeing how the bill before us today could do anything to help control smuggling, which is a real problem. If the government wants to table a bill that actually deals with smugglers, I am completely open to discussing it. However, the fact that we are talking about targeting refugees is something quite surprising and, I feel, something that goes against our international law agreements.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, I feel compelled to rise and speak to Bill C-4 because we need evidence-based solutions to address human smuggling. Unfortunately, this backward legislation targets legitimate refugee claimants and not the real criminals: human smugglers.

It was 60 years ago that the government expressed its solidarity with refugees by signing the 1951 refugee convention, and 2011 is a special commemorative year. The UN refugee agency is calling on the public to reaffirm its support for refugees. It is calling on governments to show humanity and respect for human rights and refugee rights.

The UN has developed the “1 is too many” campaign to strengthen global protection in this anniversary year. The “1 is too many” campaign concentrates on the central tag line: one refugee without hope is too many.

There is a portfolio of other tag lines such as: one family forced to flee is too many; one refugee without hope is too many; one refugee returned to danger is too many; one refugee longing for home is too many; one child without a nationality is too many; one family without shelter is too many; one refugee denied a safe haven is too many; one child growing up in a camp is too many; one family torn apart by war is too many; one girl raped at gun point is too many; and it goes on.

As legislators we must all ask ourselves, if our family was in danger, our lives threatened by the government that is supposed to protect us, what would we do and how would we want the world to respond?

Each one of us should remember how many of us are children or descendants of immigrants. Each one of us should consider the economic, cultural and social benefits Canada has gained by accepting immigrants and refugees to our country. We must all remember our long-standing dedication to humanitarian values and human rights.

Instead of the government reaffirming Canada's commitment to protect refugees in this anniversary year, the government is fearmongering, demonizing, and punishing refugees through its treatment of asylum seekers and through its proposed legislation.

I have the honour of representing Etobicoke North, which is one of the most diverse ridings in the country. Each week we hear from desperate families, such as: a sister trying to bring family from Africa because her brother is hiding in a bush afraid of political persecution; an uncle giving up his job and leaving family in Toronto to rescue three orphan nieces in India.

During the humanitarian disaster in Sri Lanka, I heard daily from my Tamil community. One man came into my constituency office and wrote down the names of 100 family members who were missing and he did not know whether they were alive or dead. Each weekend during the humanitarian crisis I met with my Tamil community for four months.

Bill C-4 was originally introduced in Parliament by the government in October 2010 as Bill C-49 and it was reintroduced in June 2011 in the new parliamentary session. If the bill is approved by Parliament, it will make significant changes to the Immigration and Refugee Protection Act, affecting the way refugee claimants are treated in Canada.

The government claims that the bill is about stopping smugglers who are bringing people illegally into Canada. However, the bill focuses on punishing the people they are smuggling, including refugees who need to get to Canada to save their lives.

All of Canada's laws must respect the Canadian Charter of Rights and Freedoms, which guarantees basic rights. Several aspects of Bill C-4 likely do not respect the charter. For example, Bill C-4 says that designated persons are detained for one year without review.

The Supreme Court of Canada has recently clearly stated that detention without review for long periods is contrary to the charter. If Bill C-4 is approved by Parliament, it could be challenged in the courts and the courts would probably decide that some parts of the bill are illegal because they do not respect the charter. Unfortunately, while the courts are deciding the case, refugees would suffer in detention.

Canadian laws must also respect international human rights conventions that Canada has signed. These include the convention relating to the status of refugees and the convention on the rights of the child. Many parts of Bill C-4 do not respect one or more international conventions. If Bill C-4 is passed, Canada would therefore be failing in some of its international obligations.

The following are examples of the ways in which Bill C-4 violates human rights protected by international law.

Punishing refugees for illegal entry. The refugees convention says in article 31 that governments must not impose penalties on refugees for illegal entry. However, Bill C-4 does exactly this by punishing designated persons in various ways, including by detaining them.

With regard to arbitrary detention, the International Covenant on Civil and Political Rights says that governments must not detain anyone arbitrarily. Arbitrary detention is detention without the proper legal protections; for example, detaining people without giving them the possibility of having a review of their detention by an independent judge. Bill C-4 does exactly this by saying that designated persons must be detained without possibility of review for one year.

With regard to separation of families, various international conventions say that governments must protect the rights of families to be united but Bill C-4 does the opposite by denying designated refugees the right, for five years, to apply to reunite with their children overseas.

With regard to the best interests of the child, the Convention on the Rights of the Child says in article 3 that governments must take into consideration the best interests of any child affected by a decision. However, under Bill C-4, some children could be deported from Canada without any consideration of their best interests and application on humanitarian and compassionate grounds.

Bill C-4 is deeply unfair to refugees. It fails to honour obligations under Canadian and international law. It deprives individual cases from the independent review that justice requires. It would involve huge costs in unnecessary detention. Australia tried punishing refugees to deter them. It did not work.

At the same time, Bill C-4 would do nothing to prevent human smuggling. More laws would not catch the smugglers who are overseas. Mandatory minimum sentences have been shown not to work as deterrents. Smuggling, under the Immigration and Refugee Protection Act, is already punishable. The reality is that under Bill C-4 refugees would be victimized three times: first by their persecutors; second by the smugglers; and finally by Canada.

The reality is that most refugees want to go home but simply cannot return safely. We should admire and honour their courage and determination as they strive to pick up the pieces and start over, and we should recognize the richness and diversity they bring to Canada.

I would like to close by reminding us all that many refugees have made a difference and distinguished themselves on the world stage: actress and singer Marlene Dietrich; physicist Albert Einstein; and our own Michaëlle Jean. Finally, one refugee without schooling is too many. One refugee child behind bars is too many.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I would like to thank the hon. member for her presentation. I have a couple of questions.

Basically, the bill says it is preventing human smugglers from abusing Canada's immigration system act. We have a member of the government saying that this will make streets safer. What is the member's opinion regarding whether the bill will make streets safer and who will be affected by it? Is it the smugglers or the refugees?

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, It is important for people to understand that the bill has been harshly criticized because of what it would do to refugees. Refugee advocates denounce the bill as an attack on refugee rights. In particular, critics say that the bill contravenes the Canadian Charter of Rights and Freedoms and Canada's obligation under the UN Convention on Refugees.

Janet Dench, the executive director of the Canadian Council for Refugees, says:

It is difficult to understand why the government would be proposing to bring this legislation back without change when it has been so widely condemned by legal experts, is clearly a violation of our charter and clearly in violation of international standards of human rights. There is no ambiguity about this. It does not conform to our international legal obligations.

She goes on to say:

—refugees...would be detained for up to a year, and even those accepted as refugees would be held in suspended animation for five years without any right to travel, to reunify with family or get on with their lives.