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

[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.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, I agree with the member that the world is not black and white.

Most refugees are innocent, but not all. Would the member agree that we need to know who is who before we let them out on the streets? We all want to give relief to those who endure the atrocious situations that smuggled humans endure, but is it not more compassionate to create legislation that would prevent them from getting into those atrocious situations in the first place?

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I agree with my friend that that is a laudable objective, but the legislation misses the mark.

The legislation, instead of offering a hand of compassion to refugees, says to them, “Welcome to Canada. Now we are going lock you up. We may or may not be back in 12 months.”

That is what this legislation does. It is unconstitutional. It shows a level of compassion that Canadians are not comfortable with. There is no way the legislation can be supported. It targets the victims.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one thing is being overlooked in some respects, although it has been raised in the dialogue, and it is an important issue. More Canadians are going to ask who will pay for this. Where are the economic resources going to come from to lock people up and warehouse them potentially for a year? We saw the situation with the Tamil refugees and it was hundreds of people. That cost is borne by the taxpayer.

Instead of putting our heads in the sand what we should be doing is processing people expeditiously to find out whether or not they can be immigrants to this country. The sooner we do that the sooner they will be contributing to the Canadian economy, paying into the pension system, the tax system, and being successful members of society.

I ask the member to think about those economic consequences.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, it struck me in the course of preparing my remarks that when people come through the door of my constituency office in Charlottetown, they want to talk about jobs. They want to talk about the fact that the economic situation on Prince Edward Island and in Canada is such that they cannot find work. They want to talk about the fact that the EI claims processing centre in Prince Edward Island is closing and we will be the only one without one. They want to talk about economic issues, and yet we have a government that is focused on expending our scarce resources on minimum mandatory sentencing and on locking up people who seek asylum. It is misguided.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I appreciate the fact that the member has read the bill very carefully. We have been assuming in much of this that the bill is only directed to people arriving by ship. That seems to be an assumption. However, it has also been the case that we have heard the minister of immigration suggest that, if he so chooses, he will be able to designate other refugees arriving by other means as an irregular arrival of a group. We do not know what a group is. We do not know if it is a family, a couple, or 10 people. It is very uncertain. However, it does appear to be the case that other modes of arrival can be treated as irregular, at the discretion of the minister.

I wonder if the hon. member has any comments on that aspect of the uncertainty created by the bill.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, the hon. member's reading of the bill is the same as mine. There are provisions within the bill which allow for the arrest of a ship, but irregular entrants to Canada are not defined solely on their mode of arrival. They are defined on the basis of the number. Two people or more could be found to be irregular entrants by any means.

That is another problem with the bill. As I have said, if all one has in one's toolbox is a sledgehammer, everything looks like a rock. It is over-reaching.