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

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, there were none at that time. That is not something that is encouraged in this country and people know that abroad. That is the result of people trying to steal money from those who are desperate and provide them that opportunity.

As a government and a country, the message we need to send is that is not an acceptable way to come here. What I would hope to hear from the government is that it will commit to more resources.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, Bill C-4 concerns me in a very particular way and I think it should be rejected for many reasons, but mainly for humanitarian and social justice reasons.

I am able to stand before you here today in part because my parents were granted refugee status in 1980, thanks to the Canadian government's openness and its profound understanding of the precarious situation they found themselves in at the time. That extremely positive move allowed thousands of Vietnamese people to escape the miserable conditions in which they lived and to regain their dignity in Canada.

I do not dare even think about the additional consequences my parents would have suffered if Bill C-4 had been in force when they arrived in this country. Through their story, I will explain my position and demonstrate why I think this bill is clearly unfair and, more importantly, misses the target.

In 1979, after the Vietnam war, my parents decided to flee their country because of the horrible living conditions imposed by the new political regime and in the hopes of finding a better quality of life elsewhere. They could no longer endure the restrictions, the violence and the injustices that happened after the war. They jumped at the first opportunity to flee in the middle of the night, in secret, with my two brothers, who were one and three at the time. They made their way to a port and paid the smugglers with the last of their belongings, that is, whatever they could carry, such as clothing and jewellery. They got on a boat, with the direction indicated by a compass, in other words, anywhere, without knowing if the smugglers would take them to a safe harbour, take them somewhere dangerous or simply abandon them along the way. They risked their entire lives and those of their children.

Why did they decide to come by boat? The answer is simple: they had no other choice. Some 400 other people were also on the boat with them.

This bill creates two categories of refugees, including those who are designated because of their method of arrival, namely, by boat. These refugees are at a higher risk of detention than those who arrive by plane. This provision violates the Canadian Charter of Rights and Freedoms, which guarantees equality before the law, as well as the Convention relating to the Status of Refugees, which prohibits States from imposing sanctions on refugees because of their illegal entry. What is meant by illegal entry? This term has not been defined and remains unclear.

In addition, few refugees think to bring proof of identity. Their only concern is to save themselves, to disappear as quickly and quietly as possible. These people who do not have any identification are automatically suspected of not being real refugees. As a result, the minister could deem them to be “designated foreign nationals” and they could be detained. The burden of proof is being reversed here. Refugee claimants arriving in Canada are no longer free while they wait for their claims to be processed. They are detained and considered “designated foreign nationals” until proven otherwise. This arbitrary detention is contrary to the charter and international law.

As my parents can attest, the journey made by refugees is long and difficult. Their ultimate goal is to survive the many dangers and threats they face: a lack of hygiene, food and water, as well as the many attacks by pirates who may rape the women, steal the refugees' belongings or commit gratuitous acts of violence against them just to scare them. That is exactly why most countries in the world, including Canada, signed the Convention relating to the Status of Refugees in 1951.

The convention's preamble states that human beings shall enjoy fundamental rights and freedoms without discrimination. It seems that the members of the Conservative government forgot this principle when they drafted this odious bill.

At the time, my parents were able to choose a host country since they were recognized as refugees on humanitarian grounds. Clearly, they were questioned, photographed and made to take an oath. Canada provided them with identification documents since they did not have any.

Under Bill C-4, my parents and my brothers likely would have been deemed “designated claimants” and would have all been mandatorily detained upon their arrival for a period of one year or possibly more. Since my parents did not have any documents, it was very difficult to establish their identity. Such imprisonment is completely arbitrary and discriminatory, is it not?

Before arriving in Canada, they were already scarred from their painful escape: recurring nightmares, irrational fear of thieves, no trust or great difficulty developing trust in people, and constant suspicion of everyone.

They saw danger everywhere at all times. They have also suffered greatly from being uprooted from their country and their family. They never talk about that experience because it was too atrocious, too harsh and the memories are unbearable. Nonetheless, in order to help put things into context, yesterday my parents agreed to retell their story to me.

It is hard to live in a refugee camp and go through the trials of being on the boat; it is also hard to adapt to the way of life in the new country, to culture shock, to social integration, to the temperature, to social isolation caused mostly by the language barrier and because they were potentially dangerous foreigners. At the time, my parents spoke rudimentary French.

Sending them to prison to boot under the pretext that they represented a potential threat would have been completely ludicrous in their case and in the case of thousands of other Vietnamese refugees.

Why not attack the traffickers more effectively in this case and dig deeper into what they are doing here and abroad instead of attacking the refugees?

Fortunately at the time, Canada opened the door to my parents and all those people in distress who were fleeing their country. My parents were gradually able to integrate into Canadian society. They learned French and worked very hard. When they arrived, they had to cope with underpaid exhausting work, frustration and discrimination. However, they managed to integrate. They went to school, they took care of us and they both became nurses. Today my parents take care of sick people and they do so with the same compassion they were shown by Canadians when they first arrived here in need of refuge.

My parents would have had an entirely different experience if the bill the Conservatives are proposing today had been in effect. They might have been detained with their two young children for a year or more. They would have been denied the right to social integration and dignity. Canadian society as a whole would miss out, because to send refugee claimants to prison is to deny Canada many courageous and intelligent people who want to contribute to the country's growth.

If Canadian authorities had made a mistake and had denied my parents refugee status, they would have been able to appeal. But this bill takes that right away from refugees because rulings on claims by designated persons cannot be appealed to the Refugee Appeal Division. This violates the provisions of the Convention relating to the Status of Refugees.

The Conservatives are saying that this bill will reduce the amount of human trafficking. But in reality, the bill, in its current form, puts too much power in the hands of the Minister of Citizenship, Immigration and Multiculturalism and unjustly penalizes refugees.

I agree that we should punish criminals, traffickers and smugglers directly. However, the bill, as it stands, punishes legitimate refugees and the people trying to help them.

If Canada had not accepted my parents, we would not be who we are today. My brothers, sisters and I inherited this desire to serve our country from our parents and the Canadians who welcomed them. For other stories like this to have a happy ending, we need to recognize the rights of those coming after us.

I am asking the members here to put themselves in the shoes of a refugee. Imagine the desperate conditions these people endure in war-torn countries: fear, hunger, suffering and torture. Would they not try to flee, risking their lives and carrying only the bare essentials? After fleeing the violence and persecution, they would be imprisoned upon their arrival in Canada. Does that make any sense? Detaining a person who is claiming refugee status without providing an independent review is both discriminatory and shocking.

This bill also strips certain refugees of the opportunity to apply for permanent residence. Refugee claimants are not allowed to sponsor their wife or children for five years. That is another clear violation of family rights.

As well, as we said earlier, children are imprisoned, with all of the negative consequences that can have on a child's development.

I would like to conclude by asking the government and this House that this bill be withdrawn and reworked so that it actually tackles the issue of traffickers and smugglers, not the rights and freedoms of refugees.

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

Mr. Speaker, I would like to thank my colleague for sharing this story with us. I would like her to comment on the economic impact of the bill. As I mentioned previously, this bill will lead to the construction of prisons and detention centres. And, as my hon. colleague explained, people will have psychological problems and, if they are accepted as refugees or permanent residents, they will probably have to go to the hospital, which will cost taxpayers even more money. Above all, an individual may not seek permanent residence, work or attend school for five years.

For the benefit of the government, I would like her to speak about the economic impact of this bill.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I would first like to thank my colleague for raising this very relevant aspect of the bill. Economically, there are a lot of negative consequences. This bill is also very repressive with regard to the treatment of human beings. As my colleague said, it would result in a lot of detentions and would be very costly. The individuals detained would suffer considerable harm—especially the children—and they would not even have the means to cover the cost of a psychologist or mental health professional to help them.

As for the children who would be detained, according to a number of studies, their detention is more detrimental before age 5 or 6 and is the most detrimental before age 3 because it is during the first three years of life that children develop their physical, mental and social capabilities.

These children would be detained for close to a year. Other studies show that being removed from the school environment causes setbacks, which leads to a phenomenon of regression in children.

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, the Canadian Council for Refugees, Amnesty International Canada, the Canadian Civil Liberties Association, the Canadian Bar Association and the Centre for Refugee Studies are all opposed to this bill. I would like to ask the hon. member if she thinks that the Conservative government is stubbornly committed to passing this bill for ideological reasons.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I thank the hon. member. I really think that, with this bill, the government wants to show that it is fighting terrorism and crime. This is totally the wrong approach to the matter, because its way of showing people that it is attacking terrorism and crime is really inappropriate. Instead, it is attacking refugees, people who need help, people who urgently need support in order to get back to a normal, healthy life.

I can go on: many decisions are completely vague and arbitrary, contravening a number of charters and conventions. It is totally unjustified; bill C-4absolutely must be withdrawn so that it can be revised and reworked.

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

Mr. Speaker, first, I want to thank the hon. member for her touching, first-hand account of how some refugees who come here by boat can make very positive contributions to this country.

I would like to ask the hon. member the following question. In her speech, she made a distinction between traffickers, smugglers and those who help refugees. Perhaps she could tell us more about this distinction so that we can fully grasp what happens to those people.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I thank the hon. member.

Traffickers are those who bring migrants, refugees and so on to the country in order to make a profit. Smugglers are just those who do so without necessarily profiting from it. There are also those who welcome people once they are here. For example, the Red Cross provided my parents with very specific help when they fled from their country.

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

Mr. Speaker, first, it seems like the Conservative members are extremely confused about the difference between immigrants and refugees. This morning, we heard the hon. member for Burlington refer to his Italian in-laws. By no means do I wish to say anything negative about in-laws—I have wonderful in-laws, one of whom is from the Philippines and also immigrated here—but I am convinced that, in their home country, the member for Burlington's in-laws were not subject to persecution, violation of their human rights, danger of torture or risk to their lives. There is a big difference.

We are talking here about refugees who face grave danger and flee their country to escape these threats to their safety and their integrity. I also heard the government side say that we are facing an invasion of refugees and that we must put a stop to it immediately. The Conservatives are referring to a particular case that occurred in 2010, where Sri Lankan refugees, who had indeed done business with traffickers and smugglers, were arriving by boat and requesting asylum. However, it is important to realize that there were approximately 500 people on that boat requesting asylum. Were these requests to be processed, they would represent 2% of all cases processed by the Immigration and Refugee Board.

In response to another Conservative member who stated that we do not want them to conduct any investigations at all, I would like to say that we simply want all refugee claimants, whoever they may be, to have access to the same system, which would not be the case if Bill C-10 were to be passed.

Bill C-10 also shows the government's contempt for the international conventions and treaties that Canada has signed, for example, the 1951 Convention relating to the Status of Refugees, the 1966 International Covenant on Civil and Political Rights, and the 1989 International Convention on the Rights of the Child, not to mention the Canadian Charter of Rights and Freedoms, which I will come back to later.

Bill C-4 has four problems and should therefore be defeated or at least heavily revised. The first problem has been mentioned several times. The bill separates refugees into two separate categories: refugees whose claims are processed in the regular manner and refugee claimants who could be deemed to be designated foreign nationals. If one person arrives by plane or by boat, he or she is considered a refugee claimant who can request the regular process. If a group of people arrives by boat, under the bill, they must be deemed to be designated foreign nationals.

There are two separate processes for two separate classes, which was a completely arbitrary decision on the immigration minister's part. This particular provision contravenes article 31 of the Convention relating to the Status of Refugees, which specifically says that the Contracting States shall not impose penalties on account of their illegal entry or presence in Canada. But that is exactly what the government wants to do. It wants to be able to detain them for a year. That is a violation of the Convention relating to the Status of Refugees. And it is definitely a violation of section 15 of the Canadian Charter of Rights and Freedoms, which deals with the rights of every individual, whether Canadian or a refugee, to equality before and under the law. But we are going to have two separate classes that will be subject to two separate processes.

The second problem is the mandatory detention of designated foreign nationals for 12 months. For one thing, that is a violation of the Canadian Charter of Rights and Freedoms, under which every individual has a right to legal counsel and the guarantee of habeas corpus. So it is also a violation of article 9 of the International Covenant on Civil and Political Rights, which requires the same thing.

The third problem is that refugee claimants cannot apply for permanent residence for at least five years. That is specifically a violation of article 9 of the Convention on the Rights of the Child because the best interests of the child are not looked after in that decision. It seems the government is looking more after the best interests, the political ones in particular, of the Minister of Immigration. This also poses a problem when it comes to a very current issue, family reunification. After all the nice things the Conservatives had to say about it, now that the time has come to put something on paper to make the reunification process easier, they are putting up barriers blocking it.

That is the case with Bill C-4.

The fourth problem, and I mentioned it a number of times this morning, is the fact that the government is preventing refugees from appealing to the Refugee Appeal Division. For refugees who arrive via airplane, their case will be examined by the Immigration and Refugee Board of Canada. These people have the right to appeal a decision that they deem to be unfair. For refugees who arrive via boat and who are declared “designated foreign nationals,” they do not have that opportunity. That clearly violates article 16 of the Convention relating to the Status of Refugees. Article 16 specifically states that a refugee shall have free access to the courts of law on the territory of all contracting states. In addition, it states that a refugee shall enjoy in the contracting state in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi.

It is clear that this bill creates two classes of asylum seekers, which completely goes against the principle of equality that should guide the legislators in this House.

I would like to raise one last point regarding the issue of appeals. Yesterday, the Minister of Citizenship, Immigration and Multiculturalism held Australia as an example to follow.

The immigration minister failed to mention that in November 2010, the Australian supreme court issued a ruling in the case of a Sri Lankan refugee, in which it was deemed unconstitutional, under the Australian Constitution, that he did not have access to the appeal courts. Thus, the Australian supreme court invalidated these provisions. The same thing will happen in Canada, for the same reasons.

I think it is clear that the government has no respect for its international obligations—obligations that Canada agreed to and signed off on. It is clear that the government is trying to politicize the issue of refugees for its own purposes by using sheer populism to attack victims of persecution who are trying to seek asylum in Canada. By refusing equal treatment to all asylum seekers, it is clear that the government has no respect for the Canadian Charter of Rights and Freedoms.

For all of these reasons, I am unable to support Bill C-4, a bill that I believe is unfair, that punishes people who are already victims and that will certainly have very few consequences for human traffickers.

I would remind the House that under current Canadian legislation, human traffickers, or smugglers, already face the maximum sentence they can be subjected to, that is, life imprisonment. This bill includes a few additional factors that would have absolutely no deterrent effect.

This bill's intention is clear. Taking a closer look, we can see that nearly half of the bill simply discriminates more and creates different classes of asylum seekers. Thus, the bill is misnamed. This bill does not address human trafficking. This bill does not tackle the main problem, that is, smugglers who abuse the situation and take advantage of the desperation of people facing persecution, human rights violations, or even torture or death. The bill simply aims to discriminate against various groups of asylum seekers and allow the Canadian government to treat people differently in a very serious situation. This will reflect poorly on us internationally.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, when the minister introduced Bill C-4, he said the primary purpose of it was to target the profiteers and to go after the smugglers. It is interesting that the member talked about punishing the victims. That is a point we really need to pick up on.

In the bill the government is zeroing in on the profiteers, and the number of profiteers who are going to be penalized by this bill is zero. On the other hand, I want to pick up on the point of who is actually being punished. Individuals are landing on our shores, whether by plane or boat, and for the most part are seeking asylum because if they stay in the countries they originate from, their lives could be shortened. There are threats of torture and all sorts of other horrendous acts.

Would he not concur with me that they are already victims, and now they will be victims a second time because of the government's action? Would he concur with that?

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

Mr. Speaker, I thank the hon. member for Winnipeg North for his very pertinent question.

Indeed, that would be the case. Clearly, this bill does nothing more to address the issue of smugglers. The current Criminal Code already sets out a maximum sentence. As for the other aspect of the bill, concerning asylum seekers, they are persecuted and the victims of human rights violations. They often have to risk their lives and flee their country in order to ask for protection. This bill would have them treated like second-class asylum seekers, compared to today's asylum seekers. This bill completely flies in the face of the Canadian spirit that led to the signing of international conventions to protect the rights of refugees. With this bill, the Conservative government seems to be making a mockery of those rights.

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

Mr. Speaker, I thank my colleague for his speech. He made several references to our international obligations with respect to this problem. I would like my colleague to speak more about the measures that the House could adopt to deal with the problem of trafficking while meeting our international commitments.

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

Mr. Speaker, my colleague's question is very pertinent, and the answer quite simple. We must provide the people responsible for law enforcement—the coast guard, the police, the courts—with the means to do their job, together with our international partners, in order to get rid of smugglers, the vultures who take advantage of people's despair to turn a profit.

A bill such as this one will not solve the problem. With regard to the other part of the bill, which deals with handling asylum seekers, the solution is simple. The necessary resources must be allocated to the existing body, the Immigration and Refugee Board. This body takes into account many elements when deciding whether or not to grant refugee status, and the process should be available to all asylum seekers, whether they arrive by boat or other means.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, again today we have misinformation being given by both parties on the other side. Yesterday, one of the members indicated that 99% of the refugee claimants, asylum seekers from the Ocean Lady and the Sun Sea, had been processed. Nothing could be further from the truth.

Again today members opposite are implying that on this side of the House there is a lack of compassion. We have increased the number of refugees who can access Canada by 2,500 a year.

Is it not reasonable that our border and security officials have access to know whom they are dealing with and to determine whether these people are simply fleeing persecution or could, in some cases, be fleeing prosecution?

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

Mr. Speaker, the Conservative member does not seem to have heard my presentation. The Immigration and Refugee Board already has a process for investigating smugglers and examining claims for asylum. We are asking that all refugees, no matter how they arrive here, have access to the same process, not that the government create two separate processes because that is how it has decided to score political points.