Bill C-49 (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.
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

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, when I left off yesterday I was talking about the plight of refugees and how difficult it would be for them if they were detained for at least a year, especially children.

Once individuals have been determined to be genuine refugees, it would take them another five years before they could apply for permanent residence and another three or more years for them to bring their sons, daughters or spouse to Canada. These people could be separated from their children for at least eight years. If a child is left to languish in a refugee camp for over eight years, who knows what will happen to that child.

We do want to punish smugglers but this bill really attacks refugees rather than punishing smugglers.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I thank my colleague for her impassioned speech regarding this very problematic bill. I would like to hear about something she referenced.

What does the government's approach mean in terms of perhaps contributing to that dark history of immigration and the way we have treated refugees and immigrants in the past? Is this not part of a very dark series of encounters and actions that we have had toward refugees and immigrants? Will we come to regret this later on?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, in Canada we have had two approaches. One approach is a welcoming and caring approach to refugees. If we look at the Vietnamese boat people, their arrival to Canada was very much celebrated by church groups, by the government and by Canadians. They settled well in Canada and have made tremendous contributions to the well-being of Canada.

Another approach has been that we did not want them and we would detain them. If we look at the Somali refugees, for example, we detained them for an extensive period of time. Further back in history, we have turned boats away, whether they were from India or from Europe. As a result, we have caused deaths and suffering, whether they were Jews or Sikhs.

We have also interned Italians and Japanese because of their ethnic origins. The internments, for peace especially, is what I really am concerned about.

If this bill passes the way it is written, we will see children being interned in jail and detained for at least a year, if not a year and a half. The psychological impact that would have on these children would be devastating. Let us give serious thought to this because detaining a child for more than even a few weeks is very problematic. I doubt that many of them would even recover after being detained for more than a year.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I just wonder if the member would comment on what appears to be a deferential sort of treatment.

I remember that before the fall of the Berlin wall, there were thousands of individuals who would just simply get off a plane in Gander, Newfoundland, on a trip from eastern Europe to Cuba, and would be automatically granted refugee status and looked after. There was no talk of refugee detention centres.

One of the most horrific images in our world today is refugee camps where thousands of people sometimes spend many years in the same place without any recourse. With these detention centres, are we potentially looking at being in the same kind of boat? What does the member think the government thinks about that?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, we already know that the government is spending $9 billion to build prisons. It will probably need to spend quite a bit to build more detention centres also.

I also recall when 50,000 Irish refugees arrived in Toronto at the turn of century and they were welcomed by 30,000 Torontonians. It was called the city of York at that time and they created Toronto. A lot of them were sick and starving after their long journey from Ireland. They were leaving the famine at that time and Torontonians opened their arms to help them and cure them. That part of the creation of Toronto is a proud history. I wish all of us would remember that our history in Canada is very much opening our arms to refugees, most of the time.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I am very pleased to rise in this House in support of Bill C-49, the preventing human smugglers from abusing Canada's immigration system act.

From the day our Conservative government was first elected, we have made strengthening the criminal justice system a consistent priority. We have told Canadians that we would take action to crack down on the activities of organized crime groups and others whose activities undermine public safety and destabilize our communities. We told them that we would help build safer neighbourhoods for everyone and ensure that our streets and homes would be places where families could feel secure.

Ours is a government of action. We have consistently delivered on these promises time and time again. We have passed legislation to stiffen penalties for crime, and violent gun crimes in particular. We have provided law enforcement agencies with the tools and resources they need to do their jobs. We have taken steps to ensure that violent offenders are kept behind bars, not in their living rooms.

We are here today to take decisive action again.

In August, Canadians were reminded that this country is not immune to the global activities of organized crime groups intent on making a profit from the smuggling of hundreds of foreign nationals. The arrival of 492 Sri Lankan Tamils aboard the MV Sun Sea came less than one year after the arrival of 76 Sri Lankan Tamils aboard the Ocean Lady. The fact that two such vessels have reached Canadian shores in less than 12 months clearly demonstrates that large and growing human smuggling ventures are extending their reach and expanding their logistical capabilities and that these human smuggling networks are increasingly targeting Canada.

Human smuggling is a despicable crime, and abusing Canada's generosity for financial gain is utterly unacceptable.

Canada has an obligation to crack down on dangerous criminal enterprises that benefit only those who organize such large-scale ventures and do so little with regard to the human cargo which they transport.

We also know that human smuggling routes can be used to traffic narcotics and firearms. This poses a threat to public safety and erodes our communities.

The profits from human smuggling may also be used to fund other illicit criminal activities.

Our government is committed to protecting the safety and security of Canadians. We are committed to maintaining the integrity of our borders and our immigration and refugee programs. We are committed to ensuring that Canada's immigration system remains fair. That is what the legislation before us today is about.

Bill C-49 is focused on giving officials additional tools to better respond to human smuggling.

First, we are proposing targeted amendments to the smuggling offence to ensure that it captures the various ways in which smuggling can occur.

Under the current regime, prosecutions for human smuggling require proof that the accused knew the individuals being smuggled did not have the documents required by law to enter Canada. Today's amendments would expand this to include any violation of the Immigration and Refugee Protection Act, including for example bringing people into Canada in a way that avoids their presenting themselves for examination as required by the act.

Currently, only situations where the smuggler knew that the smuggled persons did not posses the documents necessary to enter Canada are captured as an offence under the act.

What does this mean in the context of smuggling? It means that a prosecutor could prove this offence by showing that the accused was aware of the substantial risks if the smuggled person was or would be entering Canada in contravention to the Immigration and Refugee Protection Act but simply did not care.

We believe these changes would improve our ability to investigate and prosecute those who contribute to human smuggling ventures.

Second, we are proposing an escalating mandatory minimum penalty scheme for persons convicted of smuggling, reflecting our government's intention to more effectively deter and denounce this criminal activity.

Under the proposed legislation, the number of people smuggled and the presence of aggravating facts would determine which mandatory minimum penalty would be imposed upon conviction. The two aggravating facts are: the offence was committed for profit or for the benefit of, at the discretion of, or in association with a criminal organization or terrorist group; and the person, in committing the offence, endangered the life or safety or caused bodily harm or death to any of the persons smuggled.

The mandatory penalties would be, where less than 50 persons are smuggled, three years' imprisonment if one of the above aggravating facts was present, or five years' imprisonment if two of the above aggravating facts were present. The mandatory minimum penalties would be, where 50 or more persons are smuggled, five years' imprisonment if one of the above aggravating facts was present, and ten years' imprisonment if two of the above aggravating facts were present.

These amendments send a clear message. We will not tolerate smuggling operations in Canada and such conduct will be met with strong sanctions.

We are also proposing amendments to the Marine Transportation Security Act. For example, this bill would increase the penalties for anyone who fails to comply with the ministerial direction to not enter or leave or to proceed to another area in Canadian waters. Increased penalties will also apply to anyone who fails to submit required vessel pre-arrival information or who provides Canadian officials with false or misleading information.

The irregular arrival of a large number of irregular migrants all making refugee claims can pose significant challenges for border officials who are tasked with identifying each applicant in determining whether the individual is inadmissible to Canada and whether the individual poses a risk, due to the individual's association with organized criminal or terrorist organizations.

The sheer number of applicants combined with the increased complexity of examinations and investigations can and does overwhelm existing resources. This is why we need a new approach to the processing of irregular migrants, or one that will ensure Canada remains fair but also vigilant.

Bill C-49 accomplishes this by allowing the Minister of Public Safety to designate those who land on our shores in a way similar to those aboard the MV Sun Sea or the Ocean Lady as an irregular arrival. The minister will be able to make such a designation when he or she has reasonable grounds to believe that establishing the identity or admissibility of individuals who come to Canada as part of the arrival or other investigations cannot be carried out in a timely manner, or if he or she has reasonable grounds to suspect that the arrival of the group involved organized human smuggling activity.

Under the current rules, any foreign national or permanent resident may be detained on entry into Canada. People can be detained if an immigration officer considers such an examination necessary in order to continue an examination. They can also be detained if there are reasonable grounds to suspect that they are inadmissible to Canada, are a danger to the public or are unlikely to appear for an immigration proceeding.

The reasons for such detention however, must be reviewed by the Immigration and Refugee Board within 48 hours, and subsequently reviewed within seven days, and then each 30-day period that follows. In many cases this provides a reasonable system of checks and balances to help prevent unreasonably long detentions.

In the case of irregular arrivals however, the current system of detention review does not provide officers from Canada Border Services Agency with sufficient time to properly interview and identify each individual, or to determine whether the individual may be inadmissible to Canada or pose a risk to Canadians.

Too many resources are expended in meeting the demands of the detention review schedule rather than focusing on the required investigations and verifications needed to ensure the integrity of Canada's immigration and refugee program as well as the safety and security of Canadians.

Bill C-49 addresses this by providing for the mandatory detention of persons who arrive in Canada as part of a designated arrival until such time as they are found to be refugees by the Immigration and Refugee Board, or until 12 months have passed since they were first detained. Those persons still detained after 12 months will have a detention review hearing before the Immigration and Refugee Board to determine whether there is a basis for their continued detention. If the Immigration and Refugee Board continues detention, there will be subsequent reviews every six months. The minister will be able to order early release where exceptional circumstances exist.

Under our proposed amendments, individuals who come to Canada as part of a designated arrival will, for a period of five years, be prevented from applying for permanent resident status and sponsoring family members. Restrictions on travelling outside Canada will also apply during this period. They will also be prevented from accessing a more generous health care plan than the average Canadian currently receives, something they can do at the present time through the interim federal health plan.

These are practical and sensible provisions. They address the need to properly identify individuals who come to Canada as part of an irregular arrival. They will help to keep Canadians safe by helping to ensure that dangerous criminals and terrorists are not released into Canadian society. They will also help deter human smuggling operations from targeting Canada.

We also need to deter other kinds of abuse of Canada's immigration and refugee protection program. Refugee status can be revoked when it is proven before the refugee protection division of the Immigration and Refugee Board that an individual had lied to support his or her claim for protection and that the remaining credible evidence is not sufficient to support the individual's need for refugee protection. This is referred to in the act as the vacation of refugee status.

Bill C-49 amends the Balanced Refugee Reform Act to prevent such persons from appealing decisions of the refugee protection division with regard to the vacation of refugee protection to the refugee appeal division of the Immigration and Refugee Board. The bill also eliminates appeals to the refugee appeal division with respect to the decisions the division has made that a person's need for refugee protection has ceased.

All these measures substantially enhance our ability to crack down on those who engage in human smuggling. They strengthen our ability to protect the safety and security of Canadians from criminal or terrorist threats, and they respect our international obligations and commitments to provide assistance and sanctuary for genuine refugees.

Before I end my speech, I want to address the comments made by the NDP's public safety critic last week. He compared the selfless act of those who helped slaves escape persecution to the criminal human smugglers who prey on vulnerable individuals and who only care about profit. That member should be ashamed and he should apologize to this House.

Human smugglers are clearly targeting Canada and are treating our country like a doormat. The problem is growing and must be stopped.

Canadians expect appropriate measures to respond to the challenges associated with such large-scale arrivals, such as those we have recently witnessed. They want to help those in need and those who need our protection, but Canadians are not naive. They know that threats exist and that we must remain vigilant.

That is why our government is committed to taking action on many fronts, both domestically and internationally. That is what we have done, and that is what we are going to continue to do in the future.

We are proud of this bill. I encourage the member for Vancouver Kingsway and all members to recognize that the serious problem posed by human smuggling is growing and must be stopped.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Speaker, the Parliamentary Secretary to the Minister of Public Safety referenced two vessels, the Sun Sea and the Ocean Lady. I would like to take him back in time and reference two other ships that arrived in Canadian waters.

Back in 1939 the SS St. Louis arrived in Canadian waters with 937 European Jews on board. Unfortunately, that ship was turned away. Those unfortunate Jews were returned to Europe, and in the subsequent years virtually all of them lost their lives in the Holocaust.

There was a similar incident in 1914 with the SSKomagata Maru. There was 354 people on board. They were turned back. Many of them lost their lives when they returned to India.

I ask the parliamentary secretary, under this legislation, what sort of sanctions would the ship's captain and owners of the SS St. Louis have faced?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I know my colleague opposite is very interested in a number of immigration issues, and I respect him for that.

Let us be honest, we are not talking about 50 or 60 years ago, or even 80 years ago. These are different circumstances, different people. These are human smugglers who are doing it purely for profit. That is what we are talking about here, human smugglers who are doing this purely for profit. The intention behind this legislation is to take that issue out.

We understand the need for legitimate refugees to be able to come to this country. We have processes that are able to handle that.

In this situation, these are human smugglers. Large sums of money are being expended by these folks to come here. We also hear a lot of things are occurring after the fact, after some of the folks come here, about their returning to their country of origin.

I think my friend has to recognize that these are different circumstances, different times. We are not talking about something that happened 60 years ago. We are talking about something that happened in the last few months.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the point raised by the previous member is a very important one. Will the government acknowledge that a ship can be leased to transport legitimate refugees, and that these refugees may agree to pay a reasonable amount of money so that the ship can reach foreign shores? Will it also recognize the fact that the captain would be remunerated?

How do we make a distinction between a captain who receives reasonable remuneration for the risks he is taking and the expenses he is incurring, as opposed to a captain who is doing it for profit? An investigation would have to be done after the fact. I think that the government member knows very well that in the past our welcome for refugees has been an example for the world. We have had no complaints about the refugees, because they have truly enriched our country.

Now, in different circumstances that may appear similar, how will we distinguish between those who are charging a fair price and those who are exploiting refugees? The second kind has neither the government's sympathy nor ours, I should add.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I know my friend is interested in immigration issues and I respect him likewise for that. But these are different circumstances. I do not think we can deal with the what-ifs and all those other things. We do know certain things are occurring in our world, and Canadians expect members of Parliament to take a stand.

I hear in my riding, and I am sure my colleagues do, from people who have legitimately followed all of the rules and have immigrated to this country or have come as refugees in the normal sense of how these things occur. What they are not happy about is people who are paying huge sums of money, lining up on foreign shores and coming here in ships. Seemingly, in their minds, the ship owners and the captains have been immune from any prosecution. This is just putting it on the table that all of these people need to recognize before they leave their shores, if they are paying large sums of money, that the captain is going to face sanctions when he gets here, and those people who are buying their way, so to speak, into this country are going to face this process of dealing with the refugee system. It is a fair process, quite honestly.

Canadians do not want Canada to be seen as a welcome mat for everyone who wants to come here and uses this as a reason for getting into the country.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, the current law in the Immigration and Refugee Protection Act, in section 117, provides for punishment of 10 years if people are smuggling in 10 or fewer people, and it provides life imprisonment if they are smuggling in more than 10 people. A life sentence is very severe. Why are those terms already in the immigration act not enough to deal with smugglers? I can see that if Conservatives want to amend the Marine Transportation Security Act, that could be possible. Why is it not introduced separately, and why is it mixed in with the immigration act, because the immigration act already has severe punishment in that section?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, again, my colleague is another member of the House who has immigration files she is interested in. I think she has a private member's bill before the House that would allow additional immigration to this country.

If what the member is saying is in fact what she believes, she should support the bill because typically the NDP supports less in terms of sentencing than other parties. The bill is fair and reasonable, but it sends a clear message around the world to those who would engage in human smuggling for profit that they are going to be sanctioned and there are opportunities when they get to this country to face Canadian laws that deal with this. So I would ask all members to talk to their constituents. I think they will find that most of their constituents find this fair and reasonable and they expect Canada to stand up for some of these principles.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Mr. Speaker, the government attempts to create fairness, and one of the great mediators of fairness is the Canadian Charter of Rights and Freedoms. Would the parliamentary secretary be prepared to table in the House an opinion by the Department of Justice as to whether or not all provisions within this bill will meet the test of the charter or a charter challenge?

Would he provide that to members of the House, so that we can review as to whether or not these provisions do indeed meet the test of fairness as prescribed by the Canadian Charter of Rights and Freedoms?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, my colleague across the floor would know that I do not have such a document with me. Whether it exists or not, I do not know, but that is frequently an argument we hear from the opposite side, that it will not pass the test of the charter.

We can always stand back and say it will not pass the test of the charter, and we will not know that until a court has ruled on it. However, as he knows from when his party was in power, the drafters of these bills come from within the legal branches of Justice and other branches. They have vetted it. They have brought it forward. This bill was not written on the back of a napkin or anything of that nature. It has been drafted properly, and I am sure my colleague is quite well aware of that.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, it is a pleasure to participate in this debate. I want to do so by concentrating really on two aspects of the legislation and on the situation that the member who has just spoken and others have talked to.

This bill causes me a great deal of concern, not because it is illegitimate or inappropriate for governments to be concerned about the security of Canada. In fact that is a primary responsibility of the federal government and a responsibility that all of us take very seriously. However, I am concerned because the methods and definitions used in this bill would significantly impact a number of people who are not smugglers, the term used by the government, but people fleeing for their lives from difficult situations.

In particular I want to discuss, at this point in time, the situation in Sri Lanka because we would not be having this discussion if two boats had not arrived over the last several years on which a number of Sri Lankans of Tamil origin came to Canada. It is important for us to stop dancing around the issue and understand that, were it not for that particular circumstance, we would not be having this debate, we would not be having this discussion and the government would not be presenting this legislation.

To talk about this legislation without talking about what happened in Sri Lanka and what is taking place there today would be a bit like talking about Moby Dick without mentioning a white whale.

As members know, I have spent many months in Sri Lanka over the last several years. Together with a number of other Canadians and international constitutional experts, I was involved in advising in the negotiating process that came out of the ceasefire in Sri Lanka that took place in 2001 and was negotiated by the Norwegians.

In the course of that work, I had the opportunity to spend a great deal of time in that country. I met on several occasions with political leaders on all sides and have had an opportunity since then to follow on a regular basis the events that are taking place in the country.

I am not going to go over the entire political history of Sri Lanka except to say that the period in which I was there, the period of the ceasefire, was a brief interregnum of non-violence during a 25-to-30 year, very difficult and violent civil war in which literally tens of thousands of people were killed, mainly in the north but including civilians in the south. Yes, acts of terrorism were carried out against civilians. Very significant bombing and damage and destruction and death occurred as a result of the war carried out by the government of Sri Lanka as well as the Liberation Tigers of Tamil Eelam, as they are called, better known as the Tamil Tigers.

The ending of that war was a subject of considerable debate in this House. Many questions were raised in question period about it, not only in this House but in parliaments and legislatures around the world.

There are questions about what actually happened at the end of that conflict. Certainly by any estimation, several thousand people were killed in the last few days. Estimates range anywhere from a few thousand to as high as 30,000 or 40,000. Those numbers are contested and debated by all sides, but nevertheless, it is clear that there was a significant loss of life at the very end of the war.

It is also interesting that as recently as the last few days, Prime Minister Cameron of the United Kingdom called for an investigation into possible war crimes that may or may not have taken place at the end of that war.

The Secretary-General of the United Nations, Mr. Ban Ki-moon, has appointed a panel of experts to advise him. It is to look into the question of what happened and what the possible consequences would be with respect to the conduct of the government of Sri Lanka as well as the conduct of the LTTE. That panel has not been welcomed by the government of Sri Lanka. In fact, its very existence has been challenged. It is the subject of considerable debate in Sri Lanka. The government of Sri Lanka has also appointed a commission that is supposed to look into the question of what happened in those last days.

From the perspective of the government of Sri Lanka, the war is simply over. The conflict is at an end. There are still several thousand people in large refugee camps, but many of them have been rehoused and moved out, away from the 300,000 people who were in the camp at the end of the conflict.

At the same time, it is fair to say that political power is being consolidated at the central level. As colleagues will certainly know, the government of Sri Lanka not only has not been particularly enthusiastic about allowing in the members of the panel from the Secretary-General of the United Nations, it also, despite the fact I had a valid visa issued by the High Commission of Sri Lanka, did not permit me to enter the country when I arrived at Colombo airport some several months ago. I am sure other members perhaps in other parties have since been allowed to go, but I regret very much I was unable to go last June.

I must confess, I do not say these words with even a degree of personal resentment at the fact that this took place. Rather it was the fact that when I was not allowed in, it was because I was deemed to be a threat to the security of the country. When I hear others described as a threat to the security of the country, that is what I was called.

I hope people will think through very carefully in trying to understand some of the motivation, some of the issues, the human problems, the suffering, the sense of threat to life and limb that has historically led people to flee a country and to seek refuge and harbour somewhere else.

The minister is sitting in the House. I respect the fact that he is here listening to the debate. I have always respected that approach—