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.

Business of the House

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I would like to ask the government House leader what the business will be for the remainder of this week and, of course, next week. I also would like him to address, if he could, two specifics in anticipation of next week.

First, what are the allotted days for opposition day motions, particularly opposition day motions broken down by party, based on the agreement that we negotiated with all parties prior to Christmas?

Second, I would like to ask specifically, which will be the second or third time that I have asked the minister in the House and several times privately, when the government plans to bring Bill C-49, which was given first reading on October 21, 2010, some three and a half months ago, to the floor of the House. It is important, because the Prime Minister, the Minister of Citizenship, Immigration and Multiculturalism, the House leader and many ministers in that cabinet spend a lot of time talking to Canadians about what they consider to be the merits of this bill but they simply will not bring it to the floor of the House of Commons. The official opposition is ready to deal with that bill and to have it both in the House and in committee.

Perhaps the minister could explain to the House where Bill C-49 is.

[Alice Wong, Conservative, Richmond, BC]

Thank you, Mr. Chair.

You're talking about the refugees. Right now we have two bills, Bill C-11 and Bill C-49. We want to make sure that the bogus refugees can't stay in Canada forever.

Do you think your Canadian customers will appreciate that they are not subsidizing fake refugees? Because there could be people coming to the pharmacists claiming that.

Immigration

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Mr. Speaker, on December 4, 2000, the General Assembly of the United Nations declared December 18 to be International Migrants Day. The UN also invited “[m]ember States, intergovernmental and non-governmental organizations...to observe International Migrants Day through the dissemination of information on the human rights and fundamental freedoms of migrants”.

Let us hope that this day will be one of reflection for the Conservative government, which always demonstrates a hostile and discriminatory attitude toward those who come to Canada seeking refuge and protection. Bill C-49, which has been tabled in the House, is a striking example. The government is creating two categories of refugees by treating them in a discriminatory manner and presuming that they are acting in bad faith.

The Bloc Québécois will continue to push for a fair and equitable approach that will make it possible to control migration flow without reneging on our international commitment to offer protection to those fleeing persecution.

Opposition Motion--Charter of Rights and Freedoms

[Bob Rae, Liberal, Toronto Centre, ON]

Madam Speaker, whenever I listen to a Conservative talk about going around in circles, I am always reminded that when one has two right wings, it is impossible to go in any other direction.

The member has equated two things that have nothing to do with one another. First, the hard fact about Bill C-49, which the member cannot get around, is that the government has for the first time in Canadian history decided that it is, by itself, going to designate what kind of refugees people are as soon as they land on the shore.

The member opposite has no idea who those people are. The member opposite has no idea whether they are economic refugees, political refugees or any other kinds of refugees, and neither do I. The determination process for that is independent of the government, independent of the minister and independent of me. The government is the one declaring who is an economic refugee and who is not, not me.

The question with respect to what are the rights or not on reserves is an important issue because it touches on the issue of the connection between equality rights and the aboriginal rights that are set out in the charter, which is a completely separate issue.

[Bob Rae, Liberal, Toronto Centre, ON]

Madam Speaker, I appreciate the opportunity to participate in the debate for many reasons, but for one reason in particular. The last time I participated in a debate in the House on the subject of the charter was at the time of its adoption. I think I am right in saying I am the only member currently in the House who had an opportunity to not only participate in that debate, which I did on the question of the resolutions and motions before the House at that time. I also had an opportunity to see the charter adopted as part of our Constitution in 1982. Therefore, it is an interesting time for me to be able to respond to some of the comments made by my colleagues.

Some statements have been made over the last while about the charter and the importance of it and about the important opportunity for us, as Canadians, to reflect on our constitution, on our basic values, on our rights, on our freedoms and on our responsibilities as well. We would not be having this debate if it were not the case that both the Prime Minister and the newly elected member for Vaughan and others have made comments that attempt to cast a shadow on the charter, that challenge the validity of the charter, that put our laws and our understanding of our rights and freedoms into some kind of a political quagmire where they do not belong.

I particularly enjoyed listening to my colleague from Windsor—Tecumseh. He is sitting in the same seat from which I delivered my speech in 1981, if that gives him any comfort. I appreciated his comments today and the very balanced way in which he made a presentation. The only disagreement I have with him is on the question of whether we need this debate. I think Canada does need this debate and this discussion because there has been far too much talk with far too little response about the charter from the members of the Conservative Party. Over the last 15 to 20 years, they have launched a very significant broadside against the charter and against the interpretations of the charter that have gone forward.

Some will say that they are not actually challenging the charter, that they are only challenging the courts. However, for the government of the day to start attacking the courts on a systematic basis is almost as unhealthy as saying that it will not attack the courts, but rather it will simply attack the constitution. It is important for us to understand what this new ideology taking shape and form on the opposite side means and the threat it poses to our sense of balance and to our sense of the importance of the entrenchment of rights and freedoms.

The debate that took place in the late 1970s and early 1980s was not something which happened out of the blue. There was a very long discussion in the country, not only about the patriation of the Constitution, about which we can continue to discuss, but also about the question of whether we in fact needed a charter, why we needed one and what the Canadian experience was that lead us to think we needed a stronger entrenchment.

Many of those arguments have been set out by my colleague from Windsor—Tecumseh, and I do not feel a compelling need to repeat them, except to make two points.

First, the Charter of Rights and Freedoms was not imposed on the House by the prime minister of the day. It was adopted by the House. It was adopted by members of many different parties. It was debated, discussed, reviewed and analysed by every conceivable legal group in the country that looked at what the document meant.

Second, it was not simply an imposition of a set of rights that had never existed before. Rather it was a codification of those rights. It took rights which already existed which, in many cases, had already been applied by the courts. We then said that those rights were so fundamental that they should be entrenched and should have priority over all other legislation.

We all know what happened with the notwithstanding clause and the compromise that was eventually reached, but I want to note that it is of great interest to me, apart from the Province of Quebec, which has its own political issues with respect to the charter, the extent to which other provinces and provincial governments and the federal government have not in fact invoked the notwithstanding clause because of the value that we see in the charter.

So what did the Charter of Rights and Freedoms do? It did not just come out of nowhere. It was the product of the Canadian experience of situations in the past in which we, as a country, did not always recognize the importance of fundamental rights. The House recognizes that there are some very sad examples of people being jailed because of their country of origin and their culture.

My colleague from Peterborough is well aware of what happened to Italians interned in prison camps when war broke out in 1939-40. He knows that the decision violated the fundamental principles of our Constitution. We now know it too.

We all know what happened to the Japanese. Madam Speaker, consider your riding in British Columbia. We all know what happened to the Japanese who were interned in prison camps over there for years for no reason. Their property was seized by the Canadian government and they were denied recognition of what happened. Eventually, Parliament itself was compelled to respond and, after decades of experiences, recognize that injustice.

We have other examples. We have the notorious Alberta press case of the 1930s where the Supreme Court of Canada said that actually a province cannot require newspapers to print stories that are simply favourable to the government in response to criticisms that may have been in a newspaper. The government of the day, which was a Social Credit government in Alberta, tried to impose rules and regulations on the newspapers of Alberta with respect to what they could do. Our Supreme Court said “No, you cannot do that”.

Our Supreme Court over the years in the 1940s and the 1950s began making decisions that said very clearly there are rights and freedoms, there are due processes, there are things that have to be observed. However, we came to the conclusion that it was not strong enough.

That is why we passed the charter, which gave protection to basic freedoms, gave protection to due process, rights of search and seizure as referred to by my colleague, the member for Vancouver Kingsway when he did his recitation and his question to the member for Windsor—Tecumseh. We saw the examples. We cannot simply go into somebody's house. We cannot simply knock on the door and pick someone up without having any cause. There are things that have to be done.

However, these are not invented by the courts, nor in fact were they invented by the charter. There is a problem I have with the comments made by the elected member for Vaughan, who is not yet the member for Vaughan, Julian Fantino, and I know Mr. Fantino very well. I have known him for over 25 years. When he says, for example, “Who has reaped the greatest benefits from the Charter of Rights and Freedoms? I would argue that if it isn't common criminals, then it must be the Hells Angels”. He made those comments in his book, Duty: The Life of a Cop.

I would say to Mr. Fantino, what exactly is it in the charter that he objects to? Is it that there has to be due process? Is it that there have to be rights, that the police have to follow processes in order to carry on their work? Is it the application of law, the due process of law, to what it is that has to be done? What exactly is it in the charter that people object to? What is it in the wording of the charter that people say, this is wrong? The police should not have to follow the law. The police should not have to do this or that. I find that hard to understand. That is why this question now becomes so important.

If we take our rights seriously we entrench them in the Constitution, which is what we did. We then say that once a right is entrenched the only body in our system that can actually interpret that are the courts. We have given this job to the courts. We have said it is part and parcel of the courts' responsibility to deal with this.

Therefore, the suggestion that somehow the courts are acting inappropriately or that the courts are doing something that Parliament did not ask them to do is nonsensical.

We are not alone in this regard. Most other countries are moving to an entrenched bill of rights, to an entrenched charter, a charter that looks at basic freedoms, due process, equality rights, the rights of minorities and multicultural groups, and in the Canadian context aboriginal rights. I want to touch briefly on each of these in my comments.

With respect to equality rights, the courts have done a remarkable job of pointing out that majorities are not always as sensitive to minorities as they should be. Minorities want sincerity, clarity and equality from their fellow citizens. Unfortunately, they have sometimes had to go to court to assert their right to equality. As Canadians, we have to recognize that our majorities have not always responded appropriately. Equality rights are still important to us.

Even today when we come to equality rights, I think of the enormous progress we have made as a country as a result of this dialogue and as a result of the fact that we now have the courts playing a more active role.

I look at the legislation that has just been brought to this House by the Conservative Party, Bill C-49, in which the law states, boldly and bluntly, that there are two kinds of refugees. There is no longer one class of refugees. There are now two classes of refugees. The second class consists of those people who come over somehow in a boat or come over in a group. They are now to be rounded up and thrown into a detention centre for as long as a year, without much of a heretofore, without a review, without anything at all. They are to be abandoned without rights, without recourse, and to be treated completely differently from a separate class of refugees, whom the government has now designated in a different way.

We do not think that it is only up to the courts to deal with the Charter of Rights and Freedoms. We think it is up to Parliament to deal with it, and that is why I am very proud that our party has said that we will not support Bill C-49, because we believe that it is fundamentally wrong in the way in which it treats people, and in particular because it does not pass any test with regard to this question of rights and freedoms as set out in the charter.

I would also say that were it not for the charter, were it not for the interpretation of that charter by the courts, the first nations people, the aboriginal people, the Inuit and Métis people of the country, would be far worse off than they are today. We tried, in Charlottetown, to move the political understanding forward that would allow us to recognize rights that had not previously been sufficiently recognized, but I have to say that that political effort was not successful.

What we also know is that the courts have in fact played the role that we would want them to play in any society, in saying to the majority, actually, you have to pay some attention to the treaties that you have signed. You have to recognize that once you say in your charter and your Constitution that you are going to recognize treaty rights and that you are going to recognize existing rights, then the courts have a responsibility to determine what those existing rights are. They have taken that responsibility and taken that role, and they have taken it seriously and well.

I am very happy to express my support for this important motion from the member for Moncton—Riverview—Dieppe. Canadians believe it is important to strengthen one of the basic tenets of our political life. We have a Constitution and a Canadian Charter of Rights and Freedoms. I do not think that this should be a partisan issue. Unfortunately, some people still say they do not accept the entire Constitution, the notion of a Charter of Rights and Freedoms or the courts' responsibility to protect citizens' rights. Protecting citizens' rights also means that the courts must sometimes make difficult decisions, but at the same time, that is one of the reasons we need these protections.

Of course, there are going to be difficult cases. Of course, there are going to be requirements sometimes whereby our institutions of justice and, indeed, even our institutions of law enforcement, have to conduct themselves in a certain way in order to get to a certain result, but these are the protections that we require.

These are not protections for any one group of people. These are protections for all Canadian citizens and they are necessary and fundamental to our sense of what the phrase “the rule of law” means. The rule of law means respect for the law as that law is interpreted by Parliament, the courts and the legislatures, and that is the debate and discussion that we need to have.

What we do not need is the continued fraying of the overall commitment to the importance of rights and freedoms. That is something that strikes at the heart of our national life and the very heart of our situation.

For example, when I hear the Prime Minister say he agrees that there are serious flaws in the Charter of Rights and Freedoms and that there is no review or accountability mechanisms for Supreme Court justices, what exactly is he saying? It is a fundamental principle of our democracy that the courts are independent. There is no review or accountability of the courts because that is what takes place in a dictatorship.

Political review or political accountability of the courts is something that happens in countries that have no respect for the rule of law. The independence of the judiciary is a foundation of the British Constitution. It is a foundation of the common law Constitution. It is a foundation of what we need to believe in and return to our belief in as a country.

Therefore, when people in the position of prime minister say there are serious flaws in the charter, what are they? They should tell us what they are. Is it due process the Prime Minister does not like? Is it the freedom of the press he does not like? Is it the freedom of speech he does not like? Is it recognizing the treaty rights of aboriginals? What is it?

When he talks about a review or accountability mechanism for the courts, what exactly is he talking about? Is he talking about judges who have to kowtow to the wishes of the government because he is not happy with what they do or say? This is what strikes at the heart of our Constitution. This is what strikes at the heart of our freedoms. It is time for this kind of loose rhetoric and talk to come to an end and it is time for all of us to recommit ourselves to the Canadian Constitution, to the Canadian Charter of Rights and Freedoms and to what that means for all of us.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, on April 17, 1982, after years of lengthy debate and strenuous negotiation, our country adopted a charter that would bring transcendent change to Canadian life.

The Charter of Rights and Freedoms enjoys a very high level of support in Canada today. Canadians do not only agree with their charter, they cherish the protections it offers, and for good reasons: they are morally sound, they are necessary and they are a reflection of who we are as a people.

The citizens of every country in the world hold their own constitution in high esteem. They are documents, traditions or customs embedded in history and tradition. Even every good Conservative Republican wraps himself or herself in the American constitution. It allowed William F. Buckley to express himself and for Sarah Palin to defend things like gun control or not.

Only in Canada do we hear politicians criticizing the constitutional documents that have founded a country and made it flourish.

Thirty years ago, we had an uneasy relationship with our constitutional past because Canada was in the process of superseding colonial links and affirming its own identity. It was time, more than ever, to part with some of our past links and bring the Constitution to our own country. We wanted to demonstrate to ourselves and to others that we had grown up and that we were a strong country. We wanted to assert our convictions, our principles, everything that distinguishes us as Canadians, and we wanted to declare those principles to the world.

We Canadians appreciate the charter because of its protections and the rights that it provides but Canadians also cherish the charter because it is a reflection of who we are as a people. The Canadian Charter of Rights and Freedoms embodies the character of the Canadian people. The charter inspires us and appeals to the best of us as Canadians.

Unfortunately, the government tends to discredit the Canadian Charter of Rights and Freedoms, but this charter is so Canadian that one has to wonder whether the government is not too fond of Canada. The principles of democracy, equality, freedom and protection of minorities are not very important to the Conservatives. They perhaps want to find ways to avoid complying with this charter. During a trip to northern Canada, the Prime Minister said that he calls the shots, but I think it is time to remind him that he is not the king. The Canadian Charter of Rights and Freedoms had been around for 20 years before this government, and it will still be around 20 years after this government is gone.

In this country, there are rules that apply to everyone, even to those who disagree and even to the government.

When Pierre Elliott Trudeau spoke on the need to celebrate the renewal and repatriation of our Constitution in 1982, we were not witnessing the mere act of another government enacting another law; we were witnessing the birth of a document that was the product of broad political discussion across the country. The product is a reflection of ourselves as a country that we can be proud of. As Pierre Elliott Trudeau said:

I speak of a country where every person is free to fulfill himself or herself to the utmost, unhindered by the arbitrary actions of governments.

The Canadian ideal which we have tried to live, with varying degrees of success and failure for a hundred years, is really an act of defiance against the history of mankind. Had this country been founded upon a less noble vision, or had our forefathers surrendered to the difficulties of building this nation, Canada would have been torn apart long ago.

However, the Conservative Prime Minister has had a very hard time accepting a higher power for himself and sometimes seems to think he is king and not elected by the people of Canada and subject to our law, our Constitution, our founding principles. The Conservatives do not want to live in a world that was the vision of someone like Thomas Jefferson or Nelson Mandela. They want to live in a world without a charter to restrict their power and impose their every will on the public.

The world the government on the other side wants to live in is the world of Robert Bork, which is a world, to quote the late Senator Edward Kennedy:

...in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are at the heart of our democracy.

Senator Kennedy concluded with a comment for President Reagan that applies to this government today as well in that it should not be able to impose its “reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice”.

Let us remember the past, for in remembering the past we might prevent repeating it. In the early 1900s, women were not people in Canada. It took a decision by a court of law to declare that women are people in Canada and that they should have the right to vote. We only need to go back 50 years to the decision in Roncarelli v. Duplessis. We can be glad that Canadian courts had the power to overrule a premier who was using his powers on an arbitrary basis for a personal agenda against the rights of an individual.

Governments are sometimes wrong. Government has to follow a set of rules set out in a constitution and when it does not abide by those rules, modern democracies have given courts the law, the role to decide when the government crosses those lines of unconstitutional behaviour, that they should choose to protect the constitution as well as the citizens from abuse by the government. Every democracy is based on a desire to be, as any founding father or mother would say, a country of laws, not of men.

In our Constitution, we chose to include principles that represent the basis of the Canadian identity. The Canadian Charter of Rights and Freedoms protects the right to equality for all Canadians, the right to freedom, the linguistic duality of this country and the civil rights that protect us against mistreatment by police forces. These protections have enabled us to build schools for minorities across the country, provided services to persons with a disability who needed them, prevented Canadians from being unjustly detained and protected minorities against discrimination. These are the principles that Canadians decided to impose on this government.

Because it is the people's government, they choose the rules that the government should live by. This government, however, has a hard time understanding that the people choose the laws.

This government does not see a problem with the arbitrary detention procedures in Bill C-49, for example. The detaining of an individual by an agent of the government or at the minister's will for 12 months is against the charter. The Supreme Court said so only three years ago. The government does not understand that, but the Canadian people do. They said so in their charter.

The government never saw a reason to protect Omar Khadr from the abuse he suffered abroad, but the Canadian people did because it is in their charter.

The government has cut the budget of groups that have advocated for minority rights, but the Canadian people understand that is wrong. It is in their charter.

This is a government with many members who feel that criminals reap the greatest benefit from the charter. This has to be balanced with the myriad court decisions that say, on the contrary, the Canadian people have a charter.

The immense powers of government over an individual have to be balanced with principles. Where these principles can sometimes impede the effectiveness of police forces, the charter has the override provision in section 1 to provide a reasonable limit to rights and freedoms, but we will not hear the Conservatives talk about the section 1 override provisions of the charter. We will not hear it because they do not want people to know. But the people know that they have a charter. They know that there are protections. It is in the charter.

Tom Flanagan, a well-known Conservative, wrote that courts of law in Canada are often an innovating force ahead of public opinion. Even the Prime Minister has expressed concern that a recent decision of the Supreme Court enforcing the protection of minorities should have been, rather, taken by Parliament.

That is also the view, to bring it full circle, of Robert Bork today. When he was bounced from his nomination from the Supreme Court of the United States, he decided to get some print in Canada. In 2002, he said that courts throughout the world, including Canada, are enacting an agenda.

Robert Bork and the Prime Minister of Canada: very similar.

On the contrary, modern democracies have mechanisms to protect minorities from being abused by the majority. In Canada, this mechanism is the charter, and there is nothing more democratic than a court of law that forces a government to respect a charter of rights and freedoms that was the result of a democratic process.

The Canadian Charter of Rights and Freedoms is a constitutional document that can only be amended by consent of Parliament and of every province. It could never have been the intention to set inflexible rules and principles in stone, fixed in time, that could only be changed by constitutional amendment. Instead, Canadians created a document that would be adaptable and therefore remain relevant to the needs of a rapidly changing society.

The late Supreme Court Justice Antonio Lamer wrote in 1985, when the charter was new and being decided upon that it was a living tree planted by the Canadian people. Supreme Court Justice Dickson wrote the same thing in the case of R. v. Big M Drug Mart Ltd., worrying that “the living tree”, which is the charter, “will wither if planted in sterilized soil”.

The comments by the Conservative government do not represent the Canada that we know. The comments by Tom Flanagan do not represent the Canada that we know. They defy the values that Canadians chose to define as their own in the Charter of Rights and Freedoms.

As two modern examples of how the charter lives, General Roméo Dallaire and General John de Chastelain were exporting democracy and the values of the charter to the world. Long before this debate here today, General de Chastelain in Ireland and General Dallaire in Rwanda, these military giants, walked among divided combatants, dressed as men of war but sounding like men of the charter. It is to Canada's credit that they did so. They exemplified charter values and gained respect around the world.

Today we are here to remind the government that it does not get to choose the world we live in. This is Canada, and Canadians have created a Charter of Rights and Freedoms that reflects their ideals. This charter binds every government to come with respect to these ideas, whether governments like it or not. The protections in this charter are cherished by Canadians for good reason. They are certainly morally sound, as I said at the beginning. They are a reflection of who we are as a people, and they are necessary.

Exercising the protection of a right for one person does not take away the right of another person. That is a very important comment to make. It seems that every distinction made by the government is that in the application of the charter for the protection of a right, someone else loses something. It is a fundamental principle that the protection of one right that is enshrined for one person does not take away the pile of rights that all of us have.

Every court decision grapples with the issue of the individual right and the collective right. This is never mentioned by the Conservative justice team or the Conservative government, ever, or any of their columnists who write daily on these issues. It is never mentioned that there is a collective right. The collective right is enforced by the fact that government does not invade the secure, the privileged and those in positions of power and comfort who do not need the charter to enforce their rights. That is the protection of the collective right. Within the charter is section 1, which provides for the collective right, the right of override. The protection of the single individual right might be overridden by the collective right for the protection of society.

The second point that is important to remember is that, in common sense terms, we could look at the Charter of Rights and Freedoms as insurance. Insurance is a great comfort to those who do not need to use it. It is illogical to say that we like to have insurance because we use it so often. We want to have insurance and never have to use it. Who wants to have a car accident? Who wants to have a fire? Who wants to lose his or her life or be dismembered and use insurance policies for protection?

Why is that not unlike having the charter as protection for everyone in this House and everyone outside this House who is a Canadian? We can have the Charter of Rights and Freedoms which protects us, but we hope we never have to use it. We hope that we are not one of those litigants who has to go to court to ensure that a right is being protected. Who wants to go to court and use the charter?

The Conservatives, on the other hand, should know that we are a far less litigious society than our neighbours to the south. They should know that the charter is being used by people who have to use it, people who have to apply for the protection of their rights. Of course, the great stopgap in this free and democratic society is that our courts have the discretion to determine whether in fact a right has been abridged.

The concept is very simple. The Charter of Rights and Freedoms is for everyone, not just for the people trying to use the charter to gain benefits that are secured for them. We hope, as individuals, that we never have to use these provisions in the charter, but they are there for our protection.

The other thing that I would like to say about the comments made by various individuals in the public is that it is an attack on Canada when they attack our constitutional documents, and it should not be permitted by a political party, let alone a party that is ruling.

It is one thing to have a political point of view that does not believe that the Constitution, as contemplated, protects these rights. That is one thing. But when they say that the whole baby with the bathwater syndrome should be thrown out because the Conservatives do not like how it is applied, the inference to be drawn is that they do not trust judges. That inference has been veiled in the last few years but was not very covered up in the first few years of the government's regime.

The government does not trust judicial discretion. It does not trust the good common sense of Canadian people who wanted this charter and will see to its enforcement. The government does not trust judges to take a common sense approach on the Canadian Charter of Rights and Freedoms, which Canadians believe in, to interpret rights appropriately.

The Conservative government should be ashamed that it lets elected officials, some of whom serve in this House, and unelected officials, who have undue influence on the Prime Minister's cabal, to make statements that denigrate our Constitution, denigrate the opposition, denigrate the points of view of members of Parliament and denigrate columnists. That is what we believe in. We will defend its right to say whatever it wants to say, but the government should not attack the very root of our community, the very basis of our civilization, which is the Constitution of Canada and the Charter of Rights and Freedoms as it exists today. Shame on the Conservative government.

We call on the government to ask for formal retractions from its spokespersons, because this is egregious. It is an awful day in Canadian history when the governing party says that the hall in which we govern, the land that we govern, partially, is governed by a document that it does not believe in. How close is that to anarchy? It is too close.

We in the opposition call on the government to look into the recesses of its soul and say it is wrong, say that it is sorry and admit that it believes in Canada, that it believes in the Constitution, that it believes in the Charter of Rights and Freedoms.

Immigration and Refugee Protection Act

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Madam Speaker, I am very pleased to be speaking about Bill C-35, which we are debating today. We have talked a lot about immigration consultants, which are the focus of this bill.

I want to begin by speaking about the bill's title. Those following the debate since speeches started in the House this morning at about 10:20 a.m. would initially have seen it indicated on their screen that we are talking about the “Cracking Down on Crooked Consultants Act”, or the “Loi sévissant contre les consultants véreux” in French.

If they are watching now, they will probably see that we are talking about An Act to amend the Immigration and Refugee Protection Act. This was changed because, likely, at the beginning of the debate the audiovisual team was using the former title of the bill.

In committee, it was decided that the title should be changed to make it more neutral and objective. There are a number of reasons for this decision. Even though we all agree that a bill title has no legal effect and is simply a secondary element in the debate about the substantive clauses and the actual provisions of the bill, the title is still important. On one hand, the title is important from a social point of view because it can affect how people perceive the bill. On the other hand, it is important from a political point of view because it is a tool used by the government to engage in political marketing and even to change the essence and intent of a bill for its own purposes. The government is using this technique more and more.

I will discuss both cases, beginning with the one before us, Bill C-35. It seems to me that the government was using the bill's original title for political purposes. They said they would attack crooked consultants. That sounds like an opinion to me. Opinions have no place in the law. The government should stick to a technical description of what the bill does, which in this case is amend the immigration act to require people who want to practise as immigration consultants and who are not already members of a provincial bar or the Chambre des notaires du Québec to be members of a body to be designated by the Minister of Citizenship, Immigration and Multiculturalism. That is what this bill would do.

In practice, will this actually improve the situation and crack down on crooked consultants? That is a matter of opinion. Every member of the House is entitled to an opinion on the subject. I suppose that if the bill receives unanimous support, as it seems to have, that means people pretty much agree. Of course, the 308 members of the House can make mistakes. In the end, history may confirm that we have not. I do not think there should be anything subjective in the title.

If we want voters and the public to respect us, we should be humble enough to resist using bill titles to promote any messages, claims or opinions whatsoever. We must also take into account the potential social impact of an inappropriate title. In this case, they were calling it the cracking down on crooked consultants act.

Imagine consultants telling their clients to trust them because they have been accredited under the cracking down on crooked consultants act. As if. Picture the certificate hanging behind a consultant's desk, stating that the consultant has been accredited under the cracking down on crooked consultants act. That is not what the bill is about. This bill is about consultants who are not crooked. That is why the title of the bill was changed. Personally, I hope that the government will put an end to this practice, which has been observed in several House committees.

It is a ridiculous practice, one that wastes a great deal of parliamentarians' energy. In many cases, the bills do not even accomplish what is stated in the title, and that skews the democratic debate.

Since there is unanimity in the House on Bill C-35, I would like to provide a few other examples. In fact, most of the disagreement in committee was about the title.

There was Bill C-27, the Electronic Commerce Protection Act. Once again, the title was a claim. There was also the Protecting Victims from Sex Offenders Act. That is a matter of opinion; we may or may not agree that Bill C-34 will actually protect people from sex offenders. Then there is the Justice for Victims of Terrorism Act. I gave examples from different Parliaments, and there are others from the current session. We have bills pertaining to security that are named in memory of a victim whose case has nothing to do with the bill in question.

Getting back to immigration, given that this is the subject of the bill before us today, there is Bill C-49, at second reading. The title, Preventing Human Smugglers from Abusing Canada's Immigration System Act, is an opinion. In fact, most observers, including the opposition members in the House, find that the bill does not in any way deal with smugglers, but rather targets refugees. The title also refers to people who abuse the immigration system. The bill does not refer to the immigration system but to the refugee protection system. The title is completely at odds with the reality and serves as a political marketing tool.

The government has said that people support their bill. It conducted a poll and asked whether people agreed with the law to prevent human smugglers from abusing our immigration system. Everyone is evidently in agreement. The problem is that the bill does not do what the title says.

Clearly, this is a ploy on the government's part. Basically, the government is admitting that it knows very well that it will not be able to sell the contents of its bill to the public. So it is using smoke and mirrors. It is using the title as an intermediary to try and suggest that one of its bills cracks down on crooked consultants and therefore must be a good bill. It has a bill that cracks down on human smugglers, so it is a good bill.

The most pathetic title we have seen in this House was the title of a bill that was something like: an act to stop the trafficking of minors, even though the word “trafficking” was not mentioned once in the entire bill. The bill had a title that referred to the trafficking of minors, even though the bill was not about that.

Clearly, this is a recurring ploy that must stop. I am very pleased that the members of the committee agreed to stop playing the government's game. I hope the government will have the wisdom and good sense to stop playing these ridiculous little games. The parliamentary secretary talked about it and so did my Liberal colleague, the hon. member for Papineau, and I imagine my NDP colleague will also talk about it, since we tend to work very well together on that committee; we respect one another, despite our political differences. If the government wanted to demonstrate its desire to co-operate and its respect for the opposition members, it could start by giving its bills legitimate titles, instead of making these inane attempts to manipulate public opinion.

I realize that was a long digression, but I had to do it. All that being said, I will now talk about the substance of the bill.

Those who want to immigrate to Quebec and Canada, whether we are talking about refugees, economic immigrants, immigrants in the family reunification category, or people who come on humanitarian or other grounds, are often overwhelmed and not sure what to do next. They are unfamiliar with our laws and are a bit distressed by the red tape. We can relate because we cannot keep up with all the bureaucracy, requirements and regulations either. It is hard for us to keep track of our rights. Imagine what it is like for an immigrant.

There is a real and legitimate concern and many of these people seek advice on the immigration application process. The advice they are given is extremely important because it can have a significant impact on the ruling to be made and on the rest of their lives. During this process, many decide to deal with lawyers or notaries. That is what I always recommend when people knock on the door of my riding office.

However, others seek advice and representation from an immigration consultant. The problem is that, unlike notaries or lawyers, immigration consultants are not really regulated. The regulatory body for these consultants, the Canadian Society of Immigration Consultants, does not work at all; it is a colossal failure. This agency has serious governance problems and is run by people who commit flagrant abuses. They take liberties and do not administer the agency in the interest of its members or the general public. In my opinion, the Canadian Society of Immigration Consultants has to be abolished. It is beyond repair because it is fundamentally tainted by personal interests to the detriment of its members and the general public. I hope the minister will see it that way when he designates an agency.

A new organization must therefore be created that will better regulate the occupation. Let us hope that, with the new act, this organization will not encounter the same type of internal management problems and that it will have a much broader sphere of activity. Rather than controlling the relationship between the consultant and the government only from the day the application is filed to the day the application is ultimately accepted or rejected, the new act will cover the entire relationship between the consultant and the client or in other words, from the moment a client contacts a consultant or a consultant offers a potential client his or her services. This is a real improvement. However, the organization designated by the minister must do its work correctly and separate the wheat from the chaff.

We have to admit that there are some good immigration consultants; however, there are others who do not do their work properly at all. When touring the country, we were told that some consultants were abusing their ethnic proximity a little or even a lot. Someone immigrates to a new country where they do not know the system and do not know whom to trust, and then they meet someone from the same ethnic group who has successfully immigrated to Canada. Human nature being what it is, they might have a tendency to trust that person more than someone else.

Many crooked consultants—that is how the minister referred to them at the beginning—will abuse this trust. Sometimes these people do not know French or English, nor do they know the laws. People may pay a consultant thousands of dollars and that consultant will not even bother to submit their applications. They wonder why they have not heard anything, so they call the constituency office or the department only to be told that their application was never received and no one has ever heard of it. It can take years before they figure this out. There was a similar story on the news yesterday morning: a lady paid thousands of dollars but her application was likely never submitted.

We have taken a step forward. The House can pass laws, but it does not create the regulations. It is not the House that ultimately does the selection. The minister's role in that regard is very important. He must make wise choices and not usurp the will of Parliament, as has happened in the past, particularly in terms of immigration. He must comply with legislation and ensure that there is finally a real regulator that lives up to that title. Competent people are needed in order to ensure that the immigration consultants in Quebec and Canada are competent.

I have one last aside. Throughout this process, I have insisted that we must ensure that immigration consultants in Quebec are familiar with the requirements of the Quebec immigration system, which has its particularities. There is an agreement between Canada and Quebec. This must be recognized. If there are two categories of immigration consultants in Quebec, people who are submitting an application will not know whether their consultant is able to advise them on all of the possible options or just those that fall under either federal or Quebec jurisdiction. I maintain that, in dealing with immigration issues, we must always remember that the situation in Quebec is different and requires special treatment.

I would like to repeat that there is a good deal of collaboration in this committee. If there are interesting bills, we will study them. I do want to share a little frustration that is not the fault of the committee members or our chair, but it is a result of parliamentary procedure, which seriously limits us with respect to amendment possibilities. We could have developed a better bill if we had had more latitude, as parliamentarians, to make amendments that would change the bill's scope and give it a better direction. That is a problem for all parliamentarians. I hope that we will be able to have a look at this issue in the near future.

In the meantime, overall, I think that the bill before us deserves the support of Parliament.

[The Chair, Conservative, David Tilson]

On Bill C-49, I read in the papers, Mr. Minister, that you may not have support. Not that I think this committee should act as a mediator, but is there room, from the government's perspective, to save this bill?

[Jason Kenney, Conservative, Calgary Southeast, AB]

No, I have not seen a lot in that respect. I think Ms. Chow had some proposals.

Essentially what I hear from the opponents of Bill C-49 is what I would regard, personally, as a kind of ideological or political opposition without grappling with the really hard practical question of how do we create a disincentive to people from paying enormous amounts of money to smugglers to come here in the worst and most dangerous way possible?

I don't think there's been a really close study by the opponents of this bill of the phenomena—the practical, real, concrete phenomena—of the specific smuggling syndicates targeting Canada. What's motivating their clients? How are they operating? How are they bringing people through the transit countries? Where are people sourcing from, where are they coming from originally? Is it India, to some extent, for example, a democracy that respects the rights of Tamils, inter alia?

I think there's been an absence of close and hard analysis on this. The general critique I hear, to be fair, is that we should “crack down and focus on the smugglers”. That's what Bill C-49 does with mandatory minimums of up to 10 years for those involved in facilitating smuggling operations. But let's be honest, that's not sufficient. It's necessary, but not sufficient.

As long as there are people willing to pay $50,000, or money in that range, to come to Canada, there will be people in the black market willing to provide the service. We're not talking about some kind of philanthropic service to bring people who are facing immediate risk to Canada. We're talking about former arms runners who, in the absence of a civil war, are now looking for a new commodity, and they've just determined that's people.

We can't reach the arm of Canadian law into foreign jurisdictions where most of these people are operating, so we need to create disincentives to people on the demand side. The bill is balanced, in my view, by addressing both the supply and the demand side.

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

Oh, great.

Look, we certainly work here in Ottawa...[Technical difficulty--Editor]...in a minority, but it is a democracy...[Technical difficulty--Editor]...at this committee proven that you can move bills forward, move legislation forward--Bill C-11 and Bill C-35, which is up for third reading debate tomorrow--and that we can find compromise and still maintain the integrity of a piece of legislation that is important to Canadians, to the running of our government, and to the fairness within the system you've just spoken of.

One of the options the opposition obviously has...and it is certainly within their realm and within their right to oppose legislation the government moves. But based on their input and their response to that, it's also important that we attempt to move legislation forward.

I'm asking you whether or not you have had any proposals put forward either from parties in this House, in terms of options that would see Bill C-49 move forward, or whether we've seen suggestions and comments from those who are opposed to the legislation, from organizations within this country that have said, look, we don't necessarily agree with the bill, but here are some options you could put forward, and perhaps we could move this bill forward.

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

Thank you.

Minister, one issue I want to return to is around the questions that Mr. Uppal asked on the whole aspect of the transfer of legal aid and the opposition that we're seeing to Bill C-49.

I wondered if you could further clarify the cost that taxpayers face each and every time a ship does enter Canadian waters and ends up docked at our ports.

[Jason Kenney, Conservative, Calgary Southeast, AB]

First of all, I've met with a number of members of the Canadian Tamil community broadly, in different organizations, to discuss Bill C-49, and a number of different organizations have endorsed the bill. I'd be happy to furnish you with a copy of those organizations.

In discussions I had at round tables with members of the Tamil community, in Toronto in particular, they probed me on the issue of a regional protection framework. We have raised this publicly, and in our discussions with Australia, as a potential long-term solution to some of the irregular migration pressures in Southeast Asia.

I did say that we had given a green light to Australia to begin pursuing with the International Organization for Migration, and other regional partners in the Bali Process, the prospect of something like possible resettlement at the back end of a regional processing framework.

I said this was very early in the process and we're not making any commitments. I said nothing to them privately that I haven't said publicly.

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

That's because it doesn't really exist. When I looked up the phone number and I got this other place, I went to see the office and I took a picture. It's a guy's little business. I can only find one member of the group, but they've endorsed Bill C-49. They're the only group of that ilk that has supported your legislation.

They tell me they were actually negotiating with the government for future favours to support the legislation.

Do you have any comment on that?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Oliphant, I would contend that family sponsorship is a privilege and not a right. There's no international legal instrument, no charter provision that says people have an a priori fundamental right to sponsor family members.

Now, we do recognize that refugees who are in need of a permanent resettlement solution should in due course be able to sponsor family members, and Bill C-49 respects that, but we say they'd have to wait five years.

Why? You have to look at the rationale. This is not, in our judgment, punitive. It is practical. Why are people paying $50,000 to smugglers? It's clear if you talk to the experts and the people who operate in the transit countries that the $50,000 price point is calibrated not for one person's prospective entry into Canada, but for that person plus the family members the person plans to sponsor. What we are trying to do in this provision of the bill is reduce the price point, so the smugglers can no longer afford to target Canada.

In Australia, between 2002 and 2008, when they went to a temporary protection visa for those determined to be bona fide refugees, it worked. Since they went back to a permanent residency visa and the right of family sponsorship for irregular marine arrivals who are later determined to be bona fide refugees, over 10,000 people have arrived in this way.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I think there may be some confusion here. The enhanced detention provisions for those arriving in designated smuggling operations would apply prior to the refugee determination, not following it. So 500 people arrive in a vessel and we need to determine who they are. They are currently put into detention. I think we're at month five for most of the Sun Sea arrivees.

The difference is that we have to go back constantly, sending lawyers and CBSA personnel into a revolving door at the IRB every 30 days for detention renewal just to say, look, we still don't know who they are. We need a period of time to be able to establish who these individuals are, especially when they come in large numbers and the system is really strained.

Under what we propose in Bill C-49, we would simply say we can detain people for up to a year without having to constantly go back for these renewals. This would allow us to focus our resources on the actual work of identification. And if during that year they get a positive determination as a refugee, they are automatically released.

By the way, under Bill C-11, which comes into effect next year, the bona fide refugees would be released from detention in two or three months. I don't think that's a firing squad. I think that's eminently reasonable.