Bill C-4 (Historical)

Preventing Human Smugglers from Abusing Canada's Immigration System Act

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

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

Preventing Human Smugglers from Abusing Canada's Immigration System Act

[Denis Coderre, Liberal, Bourassa, QC]

Mr. Speaker, I would like to give the hon. member for La Pointe-de-l'Île a moment to catch her breath. I can feel her passion. She had a good vacation.

I agree with most of what she is saying but I would like to ask her a question. In a legislative process, we also have to propose amendments and give our opinions on the bill as a whole. How would she define the role of the immigration minister? Does the minister have the right to use flexible tools in some cases or must he simply be subject to a law?

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, this bill gives the minister power without granting those affected by his decisions any right to appeal. They cannot be sure that the minister's decision will be impartial. Under this bill, the minister has all the power and is not subject to any sort of monitoring. The minister can basically do whatever he wants. That is exactly what is being given to the minister.

In a democratic society, a minister should never be given the power to make such important decisions that affect people's lives, safety and stability without the assurance that he will be monitored by someone. As it stands, the minister can do whatever he wants. We know this government's record. The Conservatives have a tendency to put the paperwork into the shredder and then there is no evidence. Right now, the minister can do whatever he wants and no one is able to monitor him.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, it is a pleasure to follow my colleague from La Pointe-de-l'Île who gave, not only a passionate discussion of the issue, but also a very thoughtful one. I congratulate my colleague from Vancouver Quadra for her statements this morning, as well as the member for Laurentides—Labelle and the speech from the member for Scarborough—Rouge River which I had a chance to listen to yesterday.

I have also had a chance to listen to the interventions from the minister who took some exception to some of the statements made in the House and insisted that what Canada was doing was in the finest traditions of Canadian respect for the law. I want to take some time to ask how the minister can actually say that in good conscience.

He said that after the arrival of the boat from Sri Lanka, polls showed that the Canadian public wanted to refuse people all right of entry and that this measure was very modest in comparison to what the public were demanding.

I have the advantage of having been around for quite a while and I was present in the House during the debate on the Charter of Rights and Freedoms. I was present in the House when we voted in favour of the Charter of Rights and Freedoms. I think I am correct in saying that I am the only member here who can point to that. That debate focused on the question of what we should do to protect to minorities even when it is unpopular, because at that moment we were reflecting on our history as a country.

We were reflecting on the fact that if a poll were taken on the decision of the government of the day, which was a Liberal government, supported strongly by the official opposition, the Conservative Party at the time, to intern Japanese Canadians without trial, without right of appeal, simply on the basis of their race and on the basis of the minister having designated someone as a person of Japanese origin and who, therefore, would be incarcerated. If we had taken a poll that would have been very popular.

Is this something where we hold a finger in our mouth and hold up the finger to see which way the wind is blowing? That is not the issue here. This is an issue about the substance of Canadian law, the process that we must follow as a country in order to uphold our obligations to ourselves under the charter and our obligations to other countries. I will go back to the basics. i will use the words of my good friend from Crowfoot, the former chair of the House foreign affairs committee, with whom I had the great pleasure of working for a period of time. He said that everybody was an asylum seeker, that they are not necessarily a refugee. That is correct.

However, this law would give the minister the power, in effect, the obligation, to designate someone in a particular category so that person would be treated differently than another asylum seeker who is also claiming refugee status. The minister uses his power to designate an individual and, as a result of that power, that person is put in detention. That separates out different kinds of refugees depending on the circumstances under which he or she comes to Canada.

Let us be clear: the popularity of the bill is not the issue here. The Conservatives are telling us that they are concerned about the economy, but that is not evident in the debate. They are addressing the issue of refugees and introducing crime bills. The Reform Party is still there; it has not disappeared. The name of the party has changed, but the Conservatives have not changed their stripes. They are not concerned about the economy. They are concerned about something else.

For us, the issue is very clear: is it legal for the government to treat people who are trying to obtain refugee status differently, based on the way in which they arrive in Canada? I do not think that that is in line with the Canadian Charter of Rights and Freedoms. The Charter clearly states that everyone has the same rights and must be treated the same way. People cannot be treated differently based on the way in which they arrived in Canada, because this can be unfair to an individual.

Let us take our responsibility as members seriously. If the government were serious about this, it would refer the legislation to the Supreme Court of Canada. It would say that reasonable people, and that includes about every law professor and a former chair of the Immigration Appeal Board who I spoken to, have said that they do not consider this goes outside the framework of the law.

However, the government has chosen not to do that. It has not changed the legislation. It is the same bill it produced the last time the House would not have passed in its formation at that time, because the government did not have a majority. Now that it has a majority, it has said that it will go ahead and push the law forward.

For the members opposite, let me clearly make the position of the Liberal Party. We do not care whether the legislation is popular or not. The question is whether it is legal, constitutional and, therefore, the right thing to do.

I probably have spent as much time as anyone, with very few exceptions, particularly my colleague from Scarborough—Rouge River who has lived with this issue, looking at the situation in Sri Lanka. If the government were to say that it wants to get tough on the people who are smuggling, we would say that smuggling is already illegal, that it is already against the law. It is not as if we have no legal structure in our country to deal with people trafficking in persons. It is not as if we have no laws to deal with this question. It is not as if we do not have the ability, if we can get the proof, to actually arrest people, charge people and have a trial. However, the purpose of the legislation, and the minister said it yesterday, is to ensure that people who might consider trying to come to Canada under these circumstances think long and hard before they do it.

Therefore, contrary to what the Conservative member from Musquodoboit said earlier, this is not about treating people who come by this means more fairly, which was an absurd argument, This is about actually discriminating against people who were coming in this circumstance.

The government may win all kinds of kudos from people who say that this is right on, that we should lock those people up and throw away the key. Frankly, it is important for a political party to say that this is not the issue here. The issue here is the law of Canada, which includes the charter, which is the Constitution of Canada, and that is the weakness of this bill. I can take members hammer and tongs through every piece of sentence in this law and say that, in its most simple form, it creates two classes of refugees. If people come by plane, they are one class. If they come by car, they are in another class. However, if they come in a boat, we do not want to have anything to do with them. That is wrong. Like cases, people who are applying for refugee status, should be treated fairly and squarely, according to the fundamental principles of Canadian justice.

[Chris Alexander, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, I have two very simple questions for the member for Toronto Centre.

First, would the member not agree that by again calling for the House to refer an important matter, a matter that is of urgent importance to Canadians, to the Supreme Court rather than legislating on it here that the Liberal Party is again abdicating its responsibility to address the concerns of Canadians?

The Liberals are all assembled in the House. Are they not abdicating their responsibility as legislators to take the steps to ensure that a legal vacuum does not exist?

Second, would the member for Toronto Centre not agree that Canada has been targeted by human smuggling groups, criminal groups, organizing boatloads of human beings to come to our shores because of the negligence of the Liberal Party over the years to legislate and to ensure that the rules were followed in this area?

Would the member not agree with those two points?

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, I would not agree with a single sentence that the member has spoken.

I am really astounded that somebody of his experience would make that kind of a comment. It is proof that the red Tories are gone. I do not know where they once were, but they certainly are not over on the other side anymore. He has become a Reformer, just like the others.

The member says that there is a legal vacuum. There is no legal vacuum. This is a myth which is perpetrated by the other side. There is no crisis. People are not sitting on the edge of their chairs because of this issue. It is astonishing to me. What the Conservatives are doing is trying to whip something up and are responding in that way.

No, I do not agree with his point of view that we are abdicating responsibility. We are taking our responsibilities as members, and that is exactly what we are going to continue to do.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I thank the hon. member for Toronto Centre for his very thoughtful speech. I also thank him for his very touching words yesterday during the tribute to our leader, whom we miss very much.

There is one thing I find very interesting regarding the creation of classes of refugees, classes of asylum seekers, and it has to do specifically with the issue in Bill C-4, which prevents foreign nationals designated by the Minister of Immigration from appealing a decision of the Refugee Appeal Division.

Yesterday, the Minister of Immigration gave an example: Australia's supreme court invalidated the provisions that prevent these claimants from appealing.

I would like to hear what the member for Toronto Centre has to say about this and about the Supreme Court of Canada.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, the government will obviously not be referring this to the Supreme Court. And if it does not refer it, there will be years of persistent appeals.

I have no doubt that the Supreme Court would clearly state that asylum seekers must be treated fairly and that they cannot be told that they have no right to appeal. That clearly goes against every fundamental trial opportunity in our justice system.

[Justin Trudeau, Liberal, Papineau, QC]

Mr. Speaker, given the experience of the member for Toronto Centre in Sri Lanka and his exposure to the issue, I would like to hear the member respond to the declarations by the Conservative government that this will be a deterrent, that punitive measures on refugees will be enough to keep people from fleeing for their lives and seeking asylum in other countries.

[Bob Rae, Liberal, Toronto Centre, ON]

Mr. Speaker, I wish we had more time to discuss that.

The question of the member for Papineau is a sign of the health of our caucus that these questions and answers are quite unrehearsed.

If we look at the pattern around the world, what creates a demand for refugee asylum are desperate circumstances in the countries in question. We can see a pattern in many parts of the world of profound hardship and deep problems, political oppression and other challenges.

The number of people who will claim asylum and get there in the most desperate of circumstances will grow all the time. That is what makes it important for us as a country to be clear on what we are about. As a country, we are about treating people fairly. The whole refugee structure is all about that.

[François Pilon, NDP, Laval—Les Îles, QC]

Mr. Speaker, I am speaking today because Bill C-4, An Act to amend the Immigration and Refugee Protection Act contains a number of elements that truly bother me.

One of those elements is the clause allowing for the detention of a permanent resident or foreign national simply on the basis of reasonable grounds to suspect—and I would like to emphasize the word “suspect”—that the person is inadmissible because of their involvement in serious or organized crime. That could lead to major problems and to various abuses of the system.

First, any refugees arriving here without having been granted status from Citizenship and Immigration Canada—and goodness knows there are plenty of delays—will mandatorily be detained when they arrive. That flies in the face of numerous international conventions signed by Canada, including the UN Convention relating to the Status of Refugees, which states the following in subsection 31(1):

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Bill C-4 directly contravenes this article of the convention signed by Canada.

Second, these changes to the Immigration and Refugee Protection Act will give too much discretionary power to the Minister of Citizenship, Immigration and Multiculturalism. These changes will allow the minister to proceed with arbitrary detentions. As I mentioned earlier, the government will be able to detain refugees on the simple pretext that they are suspected, but not accused, of criminal activities. There is an important distinction between the two. The government could detain, without valid proof, any refugee who looks suspicious to the Minister of Citizenship, Immigration and Multiculturalism. This could obviously lead to serious abuses.

Arbitrary detention also runs counter to the Canadian Charter of Rights and Freedoms, according to the Supreme Court of Canada which struck down arbitrary mandatory detention without review of security certificates. Once again, this amendment directly contravenes many international treaties signed by Canada.

The government says that this bill will reduce human trafficking. That is a noble cause and no one opposes the principle. However, the NDP opposes Bill C-4 because these changes concentrate far too much power in the hands of the Minister of Citizenship, Immigration and Multiculturalism. Furthermore, the bill penalizes all refugees who arrive in Canada, but takes no action against the traffickers.

What the NDP would like to do is directly punish the criminals, the traffickers, also called human smugglers. Bill C-4, as currently worded, punishes legitimate refugees and the people who try to help them. The process set out in this bill is vague, arbitrary and clearly discriminatory.

In closing, the current government is actively destroying Canada's fine international reputation, which includes being a country that welcomes immigrants. This must stop.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, the Conservative government has talked a lot about the fact that boatloads of refugees come to Canada, and it describes this as a problem that needs to be solved right away. What the Conservative government has failed to mention, however, is that in 2010, when the boat carrying Sri Lankan refugees arrived in the port of Vancouver, the number of claimants from that boat amounted to only 2% of all asylum seekers in Canada.

Does this proportion of refugee boat people really justify a bill that strikes such a blow to refugees who are leaving their country because they are victims of persecution or human rights violations?

[François Pilon, NDP, Laval—Les Îles, QC]

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

Whether it is the number of refugees or anything else, nothing justifies such a bill. All it does is punish refugees, people who are already suffering. This bill does nothing constructive. It should target the smugglers, not the refugees.

[Denis Blanchette, NDP, Louis-Hébert, QC]

Mr. Speaker, today we are considering a bill that amends other legislation. At this point, one of the questions we have to ask ourselves is: do we really need this new legislation, and how does it improve things as compared to the existing law? We have to start by looking at the problem from that standpoint.

If we believe the title of the bill, its purpose is to prevent human smugglers from abusing the immigration system. However, when we look at the clauses of the bill and peel back its layers, we realize that there are a lot more clauses dealing with a new designation, a new category, referred to as “designated foreign national”, which comes with conditions and penalties that may be very harsh for the people concerned, than there are clauses dealing with human smugglers. So we may wonder what the real objective of the bill is.

I wonder about something else when it comes to how the bill is presented. It gives an impression—and impressions given to the public are important—of a presumption of guilt when people arrive by boat. It is as if all these people are presumed at the outset to be guilty, or presumed to have engaged in some criminal activity or other. Honestly, I am uncomfortable with this impression of matters.

Something else that bothers me a bit is that the minister is given a power that might be described as arbitrary, the power to decide whether a person is a designated foreign national. On what basis will that be done? What guarantee do we have of the integrity of the process, and that it is not just a matter of whim? There does have to be something to base this kind of decision on. If we examine the consequences that flow from this designation, it is a very important decision. We have to have assurances that a minister will be relying on very reasonable grounds to be in a position to apply this. We do not see this kind of guarantee in the bill. Similarly, the minister has no accountability for his decisions. The whole purpose of this House is precisely to hold the government accountable. I see nothing in this bill where the minister can be held accountable for this kind of decision, which has major consequences for people. It is important to remember this. We are not talking about inanimate objects; we are talking about human beings.

I am also concerned about the consequences of designation. Many other people will be speaking more eloquently than I about suspended rights, potential detention, the fact that children are going to be detained in some cases, temporary exclusions and all sorts of things. What strikes me is that people are being labelled, as if they were being indelibly tattooed. For years afterwards, their lives will be affected by decisions like this. I have a problem with this. I think we already have everything we need right now to deal with these cases.

Another thing that worries me a lot is retroactive designation. I do not understand the purpose of retroactive designation. Where are we going with this? Why have retroactive designation? I have not heard anyone on the government side explain the reason for this retroactive designation. Are they simply wanting another kick at the can for a bill that failed earlier, a few years ago?

I hope not. That being said, that is something that has no place here.

Are all these refugees fundamentally dishonest? Think about that for a minute. Do all these people want to slip through the cracks in the system and cut to the front of the line? I am not so sure about that.

People here in Canada have a hard time keeping their own laws straight, so just imagine what people from the other side of the world know about our immigration laws. They can be taken for a ride. I agree that we have to look at trafficking and address the traffickers, but I have a hard time with the trafficking victims being attacked. It is rather ironic to see that the victims are not being protected in this bill.

When it comes to victim protection, I would like to see something in the legislation that gives the authorities—our officials, our police, the coast guard—the means to enforce the law. It seems like there are fewer and fewer means to enforce the law and more and more constraints on the authorities who have deal with a larger volume of cases.

As far as I can tell in my riding, from talking to my constituents, processing times are increasing. So if other procedures are added again and resources are not provided to process those files, all we are going to accomplish is that more people will stay in detention, not necessarily because they deserve it, but because we do not have the means to process the files. But the government is not tackling that issue.

I have talked about a lot of things so far, but not much about smugglers. Why? Well, there is little about them in the bill. Basically, there are only two things: the scope of the definition of a smuggler is slightly broader so as to include those who incite people to use smugglers or traffickers; and there are additional penalties for aggravating circumstances. How many smugglers are going to be intercepted with this bill? How many traffickers are going to be stopped under this bill? I have a feeling that the number is close to zero because the real problem is not being addressed.

I feel that the issue has been blown out of proportion; an immigration issue that has to do with lack of resources when people arrive in large numbers has become a public safety issue, although it is not one at all. We must avoid anything arbitrary or decisions that appear arbitrary. It is important for the reputation of our country that our minister does not give the impression of making arbitrary decisions. It is important for our parliamentary system.

We have an immigration act. Why not give the department the means to enforce it properly, even when there are extra costs on occasion?

To conclude, the bill should definitely be split in order to tackle the issue of smugglers on its own. I believe that the government would then have the support of this side of the House.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Mr. Speaker, I listened quite carefully to what the member was saying and I am concerned. It seems to me the member is advocating that people who claim refugee status in this country should not need to have proper documentation so that we can verify who they are, where they are from, and that they are bona fide refugees. The Immigration and Refugee Protection Act requires that an applicant establish his or her identity and the Canadian courts have upheld this.

Is the member really saying that anyone who arrives in Canada should simply be released to walk around freely when we do not know who the person is or what the person has done in his or her country of origin, or whether the person has committed crimes in other lands? How would this ensure the safety and security of Canadian families?

[Denis Blanchette, NDP, Louis-Hébert, QC]

Mr. Speaker, what I said during my speech is very simple. I said that we currently have an Immigration Act that I believe does the job and does not require amendments, such as the ones proposed in this bill. Simply put, we should enforce the existing legislation and give departmental officials the means and the resources to do so. We do not need to go further than that.