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

[The Acting Speaker, Barry Devolin]

Order, please. I want to bring to the attention of the member for Toronto Centre and others that it is not a practice to draw attention to whether members are or are not in the chamber.

[Bob Rae, Liberal, Toronto Centre, ON]

I certainly know that, Mr. Speaker. One would think that after 32 years I would have figured out how to do this.

I simply wanted to point out the fact that I appreciated there were some people who were here. In my experience, other ministers are not always here when we discuss matters of a bill. I appreciate the minister's respect for parliamentary tradition.

However, I want to emphasize that it is not possible for the House to debate the question of the appropriateness of this legislation unless we understand what exactly is taking place in the country from which people are fleeing and which are now the subject of the sanctions in the bill. This is why we are discussing the legislation.

It is not possible to have a serious discussion about the bill without understanding that in Europe, in the United Nations, in the United States, in virtually every country in the western world significant concerns have been expressed, and are being expressed, about the human rights situation, historically, in Sri Lanka, and even today in Sri Lanka. It is an illusion to think that this is not a problem or it is something we should not discuss.

The Conservative government has remained significantly silent on this topic. We have not heard anything from it with respect to the circumstances surrounding the end of the war. We have not heard anything from it with respect to whether or not it is fully supportive of the decision of Ban Ki-moon to name a panel. We have not heard any response to the call from the British prime minister with respect to the need for war crimes investigation.

I do not know why there is that reluctance. I do not know why a government, which in many respects from insignificant moments in the life of the House has spoken clearly about democracy and has spoken clearly about human rights, would have such difficulty in this situation. It cannot be that there was a violent conflict and because one party to that conflict was the LTTE. It cannot be that the standard to which we hold the Sri Lankan government can be any less or any lower. It cannot be that we have appropriately designated the LTTE as a group that practised terror, that believed in violence, that believed in the appropriateness of killing civilians or of using civilians as targets and as shields in the course of a war, a group that believed it was appropriate to strap bombs on the backs of young 13-year-old women and send them into a market or into a bazaar. There never can be an apology or an expression of support for that kind of tactic or approach to life. We should be very clear about that. Speaking as someone who has lost dear friends to these acts of terror, I have no hesitation in being critical of that.

However, that is never an excuse for repression. That is never an excuse for oppression. It is not an excuse for the killing of civilians. We would not be seeing the numbers of people who get on those boats if there was not a problem in Sri Lanka. Anybody who says that we are not worried about that or we will not express a concern about that or that is not part of what we need to discuss is simply not facing up to the reality of the situation.

I would ask the government to use its offices of investigation and its capacity. I would like the government to remain deeply sensitive to the challenge that the Tamil community still faces in Sri Lanka and to be aware of some of those circumstances and the pattern of increasing the political power at the centre. Every sensible observer from the International Crisis Group to Amnesty International to Human Rights Watch to the United Nations has expressed concern about the underlying challenge of the problem of human rights in Sri Lanka.

If there were no civil rights problems in Sri Lanka, we would not be having this problem with refugees right now. We cannot discuss this bill in the House of Commons without discussing the situation in Sri Lanka. We must discuss it honestly and openly. That is essential.

The second point I want to make is the government has told us, and the member who just spoke referred to this very directly, that the purpose of the bill is to increase the severity of punishment for what it calls human smuggling. In the history of immigration and in the history of the movement of populations, it is very important for the Government of Canada and the people of Canada to express a strong view about people being paid money in order to bring many others to Canada and to portray them as refugees.

My colleague from Etobicoke Centre mentioned two of the most dramatic examples of the arrival of boats in the country. The member who was asked about it simply dismissed by saying, “well that is history”. Well, not exactly. It was pointed out that when the Komagata Maru was posted outside of Vancouver, it was not allowed in, people were not allowed to disembark and stay here. Eventually the boat went back and when they arrived in India, hundreds were killed. We know from the plight of the S.S. St. Louis that of the 900 people who were not allowed to land in Havana, or in Miami or in Halifax, probably as many as 300 were killed in the Holocaust. A lot of studies have done on both of these experiences.

When the member says that we should ask our constituents how they feel, I have to ask how Canadians felt in 1914 and in 1939.

We always have to say to ourselves that these are not easy issues. I have no doubt at all in my mind that there are a great many of my constituents who, if they were told about this legislation, would say that it is good. It is only when we think it through that we ask ourselves if this is really what we should do. This is where I have a problem.

I have a problem because the law is not just about smuggling; the law is also about refugees. It creates two classes of refugees. That is the weakness of the law and, in my view, it is the flaw of the law. In my view, it is a flaw which the courts will attack front and centre. It is not just about the charter; it is also about our international obligations.

We have signed covenants with respect to the rights of children and with respect to the rights of refugees. We cannot simply say that because refugees came over in a certain boat that we will put them in a different category. They would be designated by the minister and they would be unable to do what other refugees could do, or what other people who applied for refugee status could do, or those who sought to be refugees could do.

It is this creation of two classes that is the central weakness and flaw of the bill. In addition, the legislation as a whole and the discussion as a whole does not in fact deal with where the problem lies.

It is equally important for us to deal with the issue of queue jumping. There is nothing more basic to a Canadian's sense of fairness than to say that we do not want people jumping the queue, that those people are trying to come in as immigrants when there are other people who are patiently waiting in their countries of origin.

It has to be understood that there is no queue line for refugees. These are two different things. Again, that is where I think the government has used language, quite creatively I might add, which is intended to tell Canadians that we have to create a situation that is fair to everyone.

I agree we have to create a situation that is fair to everyone, but I question legislation that creates two separate categories of refugees, that treats people who come over in certain boats in a certain way and people who come over by plane or in another boat in another way. The government is not being upfront with the people of Canada when it suggests that what is taking place is any form of queue jumping.

If there is a refugee process that is well managed and that has enough people to manage the flow of people who are coming in and asking to be refugees, if people are not accepted as refugees they go back to their country of origin, and that is it.

We send back hundreds, if not thousands of people. No one should be under any illusions about that. This legislation is more about politics than it is about dealing with a real problem.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I thank the hon. member for Toronto Centre for his comments. He is always a thoughtful member. In particular, let me say that I agree with many of his comments with respect the conflict in Sri Lanka and the need for a just and durable settlement that respects the legitimate aspirations of the Tamil people and that responds to the many serious concerns about human and civil rights violations.

I spoke to that at the beginning of my speech in introducing this bill yesterday, and I did discuss the ongoing efforts of Canadian diplomats and members of this government's executive branch to do everything we can to ask the Sri Lankan authorities to deal with these issues in a transparent and serious manner. I entirely agree with the member.

Having said that, I think it is important to underscore that the bill does not deal with any particular source country.

Second, in dealing with that issue, I wonder if the member would care to comment or reflect on the fact that, since the cessation of hostilities last year, more than 100,000 Tamil Sri Lankan refugees who were under the protection of India, principally in Tamil Nadu, have since returned to Sri Lanka. The UN High Commissioner for Refugees has said that Tamil refugee claimants can no longer be presumed to have a bona fide claim. The UNHCR has also facilitated the return to Sri Lanka of many Tamil asylum claimants who were under temporary protection in southeast Asia.

Similarly, a CBC report last week indicated that Tamils living in India had paid smugglers to come to Canada, in part for economic reasons, in their words. Finally, according to a CBSA survey, a significant majority of successful Tamil asylum claimants in Canada have subsequently returned to the country from which they claimed to flee for reasons of fear of persecution.

Could the member comment on the fact that the situation according to the UN and other international observers has improved appreciably from the point of view of safety? However, I agree with him that there continue to be very serious issues that must be dealt with.

Finally and very briefly, the analogies to the St. Louis and Komagata Maru quite frankly border on demagoguery. Neither of those situations has any relevance to this. We would—

[The Acting Speaker, Barry Devolin]

Order. The hon. member for Toronto Centre.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, the minister is very kind. At one point in his speech he says how thoughtful I am and at the end of his speech he calls me a demagogue, so I am not sure which it is. I wish the minister would make up his mind. I can handle the praise and the criticism, either one, but I just wish he would make up his mind. A thoughtful demagogue, I guess, is the average.

On the first point the minister is absolutely correct, that of course the situation has changed, but let us be candid. The situation has changed because there has been a considerable consolidation of power in Sri Lanka, significant centralization of power and continued repression. It is still a very dangerous place to be a journalist. It is a very dangerous place to express opposition and differing views, but it is also a constantly evolving situation.

I am not suggesting for a moment that there is an automatic presumption that any one of the people, who came over in the circumstances of the last 18 months in two boats that are the subject of this legislation, is a refugee. I am simply saying there is a need to consider their claim. There is a need to make sure we have a sufficient number of officers and people who can review the case in time to get it done. That is the approach that needs to be taken to regulate that situation.

We can debate the question of the other boats in our history. The one thing I would not want the minister to ignore is the comment that was made by former Prime Minister Mulroney at the time that the boat came to Newfoundland. At that point the government of the day decided it would grant almost immediate resident status to the people who claimed, and Mr. Mulroney said it was done in a spirit of generosity, realizing and remembering the historic traditions of the country. If I may say so, this was quite a significantly different tone than the one struck by the current Prime Minister.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I want to thank the hon. member for his thoughtful commentary on a very important bill. He made a couple of points, which I hope all members will recall, that we cannot paint all refugees and refugees' circumstances in countries with the same brush.

I listened carefully to the speech of the Parliamentary Secretary to the Minister of Public Safety, and I was a little disturbed that he invoked a number of images of gun crime, violent offenders, profits and funds used for illicit criminal activities. He tended to paint a picture that what we are talking about in the bill is about refugees and all of these terrible things that are associated with refugees.

The member read that speech, and that means it comes from the minister's office, which means it comes from the Prime Minister's Office. Is there a sense that maybe the government is not being totally forthright with the House with regard to its attitude toward refugees generally?

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, I think the central flaw in the bill, as I have tried to suggest, is this. First of all, the government did not invent the offence of human smuggling. Human smuggling is an offence that is now punishable by up to life imprisonment. We have not had many convictions of it, but nevertheless to suggest that this is some new law, some new crackdown that is taking place, is more illusion than reality. The reality is that we already have a law in place.

The other flaw is that the bill has much more to do with how refugee applicants who come over in boats of this kind are treated, that is to say detention for up to a year and being treated in a separate channel, a separate class. It creates a new class of people who have been designated by a minister because of the circumstances in which they have come. It gives extraordinary power and discretion to the minister to label a group or to label a particular circumstance, and it then puts those people in a separate stream and they are treated in a completely separate way that is entirely discriminatory in comparison to how other refugee applicants are to be treated. That is why I do not believe this meets the test. It does not meet the test.

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

Mr. Speaker, there are 18,000 internally displaced persons in Sri Lanka and 89,000 widows in the north and the east. They are in a desperate situation. They talk about struggling to live each day. They have no jobs and no men to help them out.

Would this be one of the definitions of refugees, people who have no livelihood, who live in camps and who are stuck in a desperate situation with respect to food and shelter?

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, I am not here to give a definition of who is or is not a refugee. That is a determination that is made in law.

I am here to say that we all have to understand how serious the humanitarian situation in Sri Lanka remains for a great many people. One should not forget that, and one should not ignore the nature of that circumstance.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, it is indeed an honour and a pleasure for me to rise and speak in favour of Bill C-49, Preventing Human Smugglers from Abusing Canada's Immigration System Act, and I would certainly like to commend the hon. Ministers of Citizenship and Immigration and of Public Safety for the good and timely work they have done in getting this legislation before the House.

Hon. members will know that in recent years the smuggling of human beings across international borders has become a multi-million dollar activity that is actually global in scope. Some estimates place the number of people who are smuggled across borders every year at 800,000. The United Nations notes that it is one of the fastest growing areas of international criminal activity.

The precise number of people who are smuggled across international borders is difficult to confirm, given the clandestine nature of these operations, but there is no doubt that human smuggling is big, big business. People can be smuggled by land, by sea or by air. Human smuggling may be perpetrated by organized crime groups or by individuals with links to terrorist organizations. This fact in itself should spur us all into action. Like many of our international allies and partners, Canada today is a target for the global activities of organized criminal enterprises that engage in this reprehensible act of human smuggling.

Canadians have recently witnessed the arrival of 492 Sri Lankan Tamils aboard the MV Sun Sea, less than one year after the arrival of 76 Sri Lankan Tamils aboard the boat the Ocean Lady.

Earlier this month, a number of people were discovered in a container at the Port of Montreal in a possible case of human smuggling or human trafficking.

Last year, the RCMP's Atlantic region immigration and passport section, working with the Integrated Border Enforcement Team in New Brunswick, arrested four people alleged to have facilitated illegal migration. Two of these individuals have since pleaded guilty and were convicted of offences under the Immigration and Refugee Protection Act, including human smuggling and misrepresentation.

Finally, Canadians previously witnessed the seizure of four cargo ships that appeared in remote west coast waters, carrying nearly 600 migrants from southern China. Many of these individuals were children and teenagers whose parents had paid sums equivalent to 10 years of their salaries to so-called snakeheads that specialize in human smuggling.

Human smuggling is a serious crime. I think all members of the House would agree with that, and the international community has taken decisive action to respond to it. The UN Convention against Transnational Organized Crime and its supplemental Protocol against the Smuggling of Migrants by Land, Sea and Air provide a broad international framework to respond to the varied threats posed by organized crime and their smuggling ventures.

Canada was among the first countries to sign and ratify these important international crime treaties, and the tabling of this bill today reflects Canada's ongoing commitment to strengthening our responses to migrant smuggling.

Human smuggling undermines the integrity of Canada's borders and our immigration and refugee programs and system. It poses a threat to public safety, since the identities of smuggled individuals are often hard to establish, and in many cases, it poses a threat to national security or public safety, since human smuggling ventures are also being used to traffic narcotics and/or arms, to secure safe haven for criminals and terrorists, and to raise funds for a wide range of illicit activities, including the aforementioned terrorism.

Bill C-49 will give law enforcement officials much needed and additional tools to investigate and prosecute these individuals who organize and engage in human smuggling ventures. It will also enhance law enforcement's ability to investigate the potential national security and public safety risks posed by unidentified migrants who come to Canada as part of an irregular arrival, among whom there may be individuals with criminal and/or terrorist links.

More specifically, Bill C-49 will amend the current human smuggling offence, about which the last speaker spoke, in section 117 of the Immigration and Refugee Protection Act. The proposed amendments would make it an offence to organize, induce, aid or abet someone to enter Canada, knowing that or being reckless as to whether that entry would be in contravention of the Immigration and Refugee Protection Act.

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

It is clear, at least it is clear to the members on this side of the House, that by broadening the offence in this fashion our laws will now better reflect the different methods that smugglers utilize to bring persons into Canada.

In addition to amending the offence, the bill also proposes tough mandatory minimum penalties of imprisonment ranging from 3 to 10 years, depending on the particular facts that are proven in court. This sends the clear message to smugglers, criminals who have little concern for smuggled persons and immigration laws, that Canada will no longer tolerate these illegal activities.

The bill also proposes increasing the penalties for the operator of any vessel who fails to comply with ministerial direction to leave or not enter Canadian waters or who fails to provide required pre-arrival information, and who provides false or misleading information to officials.

Today, vessels of 300 gross registered tons or more that are bound for Canada must fill out a pre-arrival information report at least 96 hours before arriving at a Canadian port. The Minister of Transport has the authority to direct any vessel to not enter Canadian coastal waters or to travel to another area in Canadian waters when and if there are reasonable grounds to believe the vessel in question may pose a security threat.

It is an offence under the Marine Transportation Security Act to knowingly make a false or misleading statement or to provide false or misleading information. Currently there are fines and a maximum one-year prison term for failure to comply with the ministerial direction or for making false or misleading statements and a maximum six-month prison term for not filing the requisite pre-arrival information report.

Bill C-49 also proposes significantly stiffer fines as a further deterrent to those considering mounting marine human smuggling ventures into Canada. Indeed, the amendments the government is proposing will mean that the operator of any vessel who fails to comply with a ministerial directive to leave Canadian waters or one who provides false or misleading information to officials will be hit much harder in the pocketbook and will face a longer prison term.

The proposed penalties for failing to comply with certain requirements of the Marine Transportation Security Act will be raised from $10,000 to $200,000 in the case of an individual on conviction on indictment. In case of a corporation, on conviction on indictment the penalties will be raised from $200,000 to $500,000.

The penalties will be even higher in the event of subsequent offences. Again, in the case of individuals, maximum potential prison terms will be raised from six months to a maximum of one year for those who fail to file the pre-arrival information report.

Stiffer consequences, stiffer fines and stiffer sentences will all send a signal to human smugglers that Canada will not tolerate their illegal and highly dangerous activities. Canada will not sit still while human smugglers calmly sail into our waters, travel across our borders or even land at our airports.

We will take action. We will work with our international partners to deter, detect and prevent these illegal activities. If they do get to Canada, we will take every step possible to hold these persons accountable.

In addition, Bill C-49 will ensure that border officials and police have the time to properly identify and investigate the organizers of human smuggling operations, as well as smuggled individuals who may pose a threat to our safety and to our security.

In particular, the bill that the government has put forward will provide for the mandatory detention of persons who arrive in Canada as part of a designated arrival until such time as they have been determined to be refugees by the Immigration and Refugee Board or 12 months have passed since they were initially detained, with exceptions for cases that involve exceptional circumstances.

This measure will prevent potentially dangerous or inadmissible persons from being released into Canada before their identity and the level of risk they present to Canadians can firmly be established. As the minister has mentioned, these amendments proposed are tough but they are also fair. They will help to make Canada a much less attractive target for human smugglers. They will help to make sure that the organizers of human smuggling operations are better held to account for this reprehensible crime.

I therefore urge all hon. members to support this legislation before us today and to work with the government to ensure its speedy passage.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Speaker, the legislation is so broadly drafted that it does not differentiate between those who would smuggle humans for humanitarian reasons and those who would do it for profit.

Also, it does not differentiate between those who smuggle people and land them in Canada and the individuals smuggled are determined to have been genuine refugees and those who are strictly economic migrants.

Would the member not agree that there should be a different approach for these various categories of people, and would the government be amenable to see amendments to the legislation that would differentiate between those who are involved with human smuggling of genuine refugees and those who are strictly just economic migrants?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I do not agree, Mr. Speaker.

Recently there have been high-profile cases of human smuggling, and Canadians are rightly outraged by these incidents and are demanding action.

The legislation is aimed at the smugglers. If individuals are legitimate refugees and are determined to be such by the Immigration and Refugee Board, they will be dealt with according to law, but this legislation is aimed directly at the smugglers. We know that too often it is a profitable enterprise to smuggle people into Canada.

With these measures and the increased fines and the added mandatory aspect of jail time, individuals will have to calculate that in their business plans before they decide that this is an appropriate venture to smuggle people into Canada.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Mr. Speaker, I notice in clause 4, proposed subsection 117(3.2) says:

A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is...liable to a minimum punishment of imprisonment for a term of

(b) 10 years, if both

(i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and

(ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

I wonder if the member would agree with me that obviously the bill seeks to protect the individuals who are preyed upon by individuals for profit, as such simply to earn some money and take advantage of these people. Would the member agree with me that this sends a very big message to anybody who would do something like this, that if they come to Canada they are going to be treated very severely. Finally the Government of Canada is taking steps to go after these people who would profit on the backs of these poor individuals who are trying to come to this country.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I would like to thank the hon. member for all the good work that he does on this file and others.

Certainly I would agree with his supposition. Similar to my response to the last question, this legislation is aimed directly at the human smugglers, those who are involved in this enterprise, individuals who own the boats that are used to operate these types of enterprises.

There are many victims and it is conceivable that the people who are actually being smuggled in under certain circumstances are victims. This legislation allows the department to assess who are legitimate refugees and who are part of either criminal enterprises or perhaps individuals who are trying to masquerade under the pretense of refugees to try to gain entry into Canada.

In any event, the hon. member is correct. This legislation will make it easier to prosecute human smugglers and will impose mandatory prison sentences for those convicted of human smuggling. That is the target of the bill and I think it is very much needed and timely legislation.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I find the discussion interesting. There is some concern about the time it takes to process persons.

The member will know that people coming on boats would not expose themselves to that kind of situation unless they were, and believed that they were, legitimate refugee claimants in dire straits.

I am concerned that the timeframe seems to be inordinate. Children could be in detention in excess of a year and then every six months thereafter.

The member is well aware that in a number of countries from which people have come, documents either do not exist or are refused. We are not changing this law simply because of the Tamil situation. It would apply to all countries.

Is the member at all concerned that children might be the victims of some unintended consequences?