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

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank the hon. member for his question.

In terms of the economic aspect and potential deterrence, I do not think there is an impact at all. Refugees who pay smugglers a fortune to come here are fleeing their homelands because they have very good reasons and they are fighting for their lives. They do not leave because of a mere economic need. In my view, it has to do with survival, not only economic considerations.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, could the hon. member explain how this bill will actually penalize the kingpins of human smuggling networks? I took a close look at every clause of this bill, and I could not find anything guaranteeing that those people would be arrested and punished.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to thank my colleague for his question. As I mentioned in my speech, it is the refugees, the asylum seekers, who are essentially being targeted. This bill has no impact at all on the smugglers, who are the criminals. This bill changes the status of refugees to that of criminals, but the smugglers are not going to be terribly concerned about this new bill.

[Wladyslaw Lizon, Conservative, Mississauga East—Cooksville, ON]

Mr. Speaker, I am shocked that there is an assumption that the bill would somehow affect family reunification. I came to this country by plane, not by boat, and I did not have to use smugglers to be reunited with my family. We have a great system here, a system that works and is legal. I do not know of a single case in which a person who has arrived in Canada and has been granted status has had to use smugglers to be reunited with his or her family.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to thank the member opposite for his question. We are not questioning the refugee status. There are conventions and they must be applied, since they are international. In addition to the fact that a refugee is imprisoned for anywhere from one to five years, he or she is not allowed to apply for permanent residence, thus removing any possibility to submit a request for family reunification.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, it is a privilege to rise today after the passionate speeches of my dear colleagues on this side of the House, especially the members for Scarborough—Rouge River and La Pointe-de-l'Île. I am certain that my fellow Canadians thank them as well.

I am also a member for Scarborough, and I can say that half of my constituents were born somewhere other than Canada. If this kind of legislation had existed in the past, there would be a lot of people missing from my riding, as well as some members missing from the House, for example, the member for York South—Weston. The government is lacking a little common sense in introducing this bill.

I am saddened to see our Conservative colleagues from Scarborough also supporting this legislation that will negatively affect the families of their constituents. We would encourage them to join the rest of Scarborough in opposing this bad bill.

The bill is deeply unfair to refugees. It fails to honour the obligations under both Canadian and international law. It deprives individual cases of the independent review that justice requires. Furthermore, it will create massive costs in unnecessary detention. If it passes, this bill would prove to be unsuccessful in preventing human smuggling. We have seen time and again that more laws do little to prevent crimes like this from happening. We cannot solve a problem merely by addressing the effect and ignoring the cause. This bill ignores the underlying problem that we face a global refugee crisis.

I would like to draw attention to the fact that the title of this bill is gravely misleading, as it would do more to punish refugees than to punish smugglers. It is wildly unfair to label the refugee crisis as a threat to the safety of Canadians. Canadians are being asked to trade the liberties of people seeking refuge in exchange for the protection of Canadian safety from a perceived threat that has no basis.

We must act within our power to stop illegal human smuggling. Yes, profiting from human trafficking of vulnerable refugees is exceptionally immoral and we want to do everything we can to deter that from happening, but let us find ways of targeting those who are committing the crime rather than the victims. Refugees do not pose a threat to Canadian public safety. This is just another example of the Conservatives' scare tactics and fearmongering.

The Conservatives are trying to sell this bill as if accepting and aiding refugees is a threat to Canadians. It's that “with us or against us”, that “us or them” mentality. These tactics are hostile, irresponsible and dangerous. They have no place in the government of Canada, but we know it is how the Harper government works.

Bill C-4 requires mandatory detention of designated persons without independent review--

[The Acting Speaker, Bruce Stanton]

As a reminder, the member may know that the use of the surname or name of other hon. members in the House is to be avoided in the course of our speeches.

The hon. member for Scarborough Southwest.

[Dan Harris, NDP, Scarborough Southwest, ON]

My apologies, Mr. Speaker. I will say the Prime Minister's government.

Bill C-4 would require the mandatory detention of designated persons without independent review. This is arbitrary detention, which is contrary to the charter and international law. Mandatory minimum sentences and harsher penalties will not deter smugglers. As of this time, under the Immigration and Refugee Act, smuggling can already be punishable by life imprisonment. This is just another blow to our independent judiciary and its discretion.

Furthermore, refugees know little or nothing about this country other than its reputation for acceptance and generosity. They are fleeing for their lives and the lives and safety of their families. They know nothing of our laws and we want to punish them for that. Among those detained will be children. It is 2011 and we here in Canada are talking about detaining children. There is something absolutely reprehensible and wrong about that fact.

This bill would also provide for mandatory conditions to be imposed on release for persons indefinitely detained beyond 12 months without the possibility of release if the minister is of the opinion that their identities have not been established. Both of those additional measures would deprive persons of liberty without the opportunity for an independent tribunal to review whether they are necessary in the individual case or not, again contrary to the charter and international law.

We heard members speak earlier about Australia, which has had similar policies to lock up refugee claimants in the past at length and to deny them permanent status even when granted refugee status in an effort to stop refugees coming by boat. These policies resulted in refugees, including many children, being traumatized by their experiences in detention. The Australian Human Rights Commission, an organization created by parliament, conducted a national inquiry into children in immigration detention and found that children in Australian immigration detention centres had suffered numerous and repeated breaches of their human rights.

Far from deterring people, depriving refugees of the right to family reunification caused a situation where people arrived by boat and then later their families, spouses and children arrived by more boats. This, in fact, created a market for more human smuggling, and this is the path that the government is taking.

The Australian public was deeply divided, with many previously unengaged citizens joining grassroots networks to protest their country's inhumane treatment of refugees. Luckily, in the past three years Australia has been moving away from the policies of detention and temporary status for refugees. However, here in Canada we apparently like to repeat others' mistakes.

Arbitrary detention is also prohibited by international law, notably by the International Covenant on Civil and Political Rights. Furthermore, this bill would deny designated persons the right to appeal a negative refugee decision to the Immigration and Refugee Board's Refugee Appeal Division. An appeal is a fundamental right and safeguard in refugee decision making, where a person's life and liberty may be at stake. By eliminating the opportunity to correct errors at this first level, the bill would put Canada at risk of violating its most fundamental obligation toward refugees, which is not to send them back to persecution.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I was interested to hear the hon. member mention the term “fearmongering”. I have been listening intently all afternoon to the comments from the opposition side and I have heard nothing, frankly, but fearmongering, allegations of breaches of the Constitution, the charter of rights and international treaties. Every law, of course, is subject to interpretation. It is clear what the interpretation of the opposition is.

On this side of the House, our interpretation is that this law respects in every sense the charter of rights. It is within the democratic society that we know and the democratic society that we know is the very reason so many immigrants want to come to Canada, as our forefathers all did.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I am not sure I heard a question but it brings a question to my mind. We have a great country that has been very accepting of immigrants and refugees over many years. Why is the government seeking to change that?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I found the prior question interesting. The member made reference to the whole idea of fearmongering. I would look to my colleague from the New Democrats to provide a comment.

When the Prime Minister of Canada stands on the back of a boat called Ocean Lady to try to raise the profile and then label refugees as being questionable in terms of arriving in Canada, potentially implying that there are terrorists and others on board that boat, would the member who has spoken to the bill acknowledge that as being a part of fearmongering?

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I would say that makes part of the government's plan with respect to fearmongering.

With that ship and with others, it has affected several constituents in my riding as it is a riding with one of the largest Tamil populations in Canada.

Just des inquiétudes that has been created by the previous incarnation of this bill in that community has led to people being afraid as to whether their families will eventually be able to come here. It has led to a situation where some are now going to the ministry. Tamils from Sri Lanka are being told by the minister and by the minister's office that it is actually safe to go back to Sri Lanka even though we still have no international eyes on the ground. This is just part of a bigger plan to lower immigration to Canada.

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

Mr. Speaker, I think the people in Scarborough Southwest, the people in Ajax—Pickering and the people in many ridings across this country would be surprised and disappointed to know that human smugglers have an advocate in the member for Scarborough Southwest.

There is no question that immigrants to this country, including recent immigrants, want our immigration policy to be based on rules. They want us to legislate for a modern age. We take exception to the member's claim that these issues cannot be resolved, that the situation cannot be improved by legislation. It can.

I would like the member to simply acknowledge a single fact. Will he acknowledge that, under this Prime Minister's government, immigration levels to Canada and the arrival of refugees in Canada have achieved historic highs?

[Dan Harris, NDP, Scarborough Southwest, ON]

What I definitely do not appreciate, Mr. Speaker, is being accused of being a booster for human smuggling.

What I would like to throw back at the government concerns why people in my riding are waiting two and three years right now to be reunified with loved ones when they did arrive legally. Why are they not receiving the immigration and settlement services that they deserve? Why are organizations like the South Asian Women's Rights Organization running immigration settlement services out of an apartment because it cannot get funding from the government?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I am pleased to have the opportunity to speak to the bill today and to participate in this very important and serious debate.

I am new to this chamber, like many of my colleagues, but I am not new to the notion of justice and fairness. I do not see much of that in the bill. The bill is yet another clear indication that the government does not make public policy based on facts and evidence but instead on ideology, an ideology that is regressive in the case of the bill, public policy that is punitive and unnecessarily so.

I read the bill line by line, section by section. It comprises 37 sections, 23 of which are directed at persons seeking asylum and the limitation of their rights. How can it fairly be said that this is about human smugglers? The bill is not so much about seeking to punish human smugglers, but rather it is about denying rights to refugee claimants and treating them, not as criminals, but as worse than criminals, which I will expand upon later in my remarks.

How did we arrive at the point where the government is putting through such an ill-considered law? In August 2010, as we have heard, a cargo ship landed on our shores with close to 500 Tamils. It was a shocking situation to many of us. Were they safe? Were they hungry? Did they suffer ill effects from the journey and the conditions in which they were travelling? These people were seeking a better life. I believe they thought Canada was a place of peace, a place of hope, a place where they could make a better life and a place where they could escape whatever injustice and persecution they had encountered earlier in their life. They had the hope that Canada would be a place of refuge.

I agree with those who say that we should be very vigilant about our security. None of us want a system where people who pose a threat are seeking an opportunity to do harm to Canada. I think we all agree on that. With respect to refugee claimants, we all know that there are some who come here who are not legitimate. However, the government seems incapable of acknowledging that there is a rigorous process, that those who do not meet the standards that are required under the law are sent back.

I would also suggest that, like any law, we need to periodically review and assess current legislation to see if it still works and to make improvements where necessary. That is our job as parliamentarians.

However, one would think, by listening to the Conservatives, that the country is being overrun by illegals. In the case of the Tamil refugees two summers ago, it seems that the Conservatives could hardly wait to gain some political advantage from the situation. It was a human tragedy made into political theatre, a race to the bottom.

I reject the idea that because we hold a different opinion on the bill it automatically means that we are soft on crime or we somehow do not care about public security. That is nonsense. As was so aptly stated in this chamber on an earlier occasion, when the only implement we have in our toolbox is a sledgehammer, everything starts to look like a rock.

There was no nuance, no compromise, no dialogue, no amendments, no costing and no acknowledgement that the issue was complex, nothing. Solutions are easy and simple. For the Conservatives it is all or nothing, the world is in black and white. That is not the reality. That is not the world in which we live.

The vast majority of refugee claims are legitimate. Men, women and children come here hoping for a life that is better than the one they had, so much so that they are prepared to risk all, and yes, even to pay smugglers for the opportunity for a better life. Why? For many people around the world, Canada is a place of hope and peace, but that will change under the Conservative government.

Smugglers should be confronted with the full force of the law, and we on this side are prepared to support legislation that does that. Again, the first nine and one-half pages of this bill only speak to denial of the rights of refugees. It only speaks to denial of the rights of victims. This bill is not so much about smugglers; at its core it is about punishing individuals who seek refugee status.

International law is clear: it is not a crime to seek asylum. It seems the Conservatives wish to send the message that even if an individual has a legitimate claim, he or she cannot expect to be treated with the human dignity that should be afforded to all people but instead are treated as a criminal first, in fact worse than a criminal.

In this country suspected criminals have a right to appeal. Suspected criminals have a right to be protected from arbitrary detention. Suspected criminals are assessed on the basis of reasonable and probable grounds based on belief. The lower threshold that is being applied to asylum seekers in this bill is reasonable and probable grounds based on suspicion. The refugees are treated as less than suspected criminals.

It also gives rise as to whether this bill is constitutional, which is what I will focus on. I do not believe, nor does anyone on this side believe, that this bill will withstand a charter challenge. Certainly the Canadian Bar Association does not believe it. Certainly the former chair of the Immigration and Refugee Board does not believe it. I believe that the Supreme Court of Canada, as soon as it gets the chance, will strike this bill down.

This bill calls for mandatory detention for a year. In 2007 the Supreme Court of Canada struck down a law that called for mandatory detention of 120 days under a security certificate. This is three times worse than a law that has already been found to be unconstitutional by the Supreme Court of Canada and yet the Conservatives plow on.

Canadians should know that the Conservative government has already decided that amendments will not be considered. Let us think about that. Let us consider the obvious problems this punitive measure has when judged against the charter. Does this proposal from the Conservatives in any way sound like the Canada we know? Is there not anyone over there on the Conservative benches who can see the clear violation of sections 9 and 10 of the charter?

Let me close by saying that I have no doubt the government will get its way and that this bill will be rammed through the House. That does not make it right. That is regrettable.

We who believe in the charter, we who believe that people should be treated fairly cannot support this legislation. It fails the test of the charter. It fails the test of fairness. It fails the test of justice. It fails Canadians. We will not support this bill.