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

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Speaker, in answer to the first question, the fact is the government refuses to apply the proper resources to deal with immigration matters and frankly to deal with refugee claims.

Up to a million people are trying to get into this country. The number was about 700,000 several years ago. The government is clearly not interested in helping immigrants get to this country.

In answer to the second question, it is like the government's crime bill. Those who are about to commit an offence do not look at the Criminal Code because they think they might have to spend some time in jail if they commit a crime. People do not think that way.

Similarly, people who are trying to escape life-threatening circumstances do not look at our immigration laws to see how they will be treated when they get here. They will escape to a country that is considered to have a welcoming and inviting reputation, one that presents them with a future for themselves and their children.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, the point is the Supreme Court struck down a security certificate's detention aspect because it was unjust. Here is the government proposing another piece of legislation that does very similar things.

Does the member not believe that would be justification for striking it down?

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Speaker, I absolutely agree with the premise of the question. It is in violation of our Charter of Rights and Freedoms. It is in violation of the Supreme Court decision. It is in violation of the United Nations declaration on the rights of refugees.

I have no doubt that this legislation will be successfully challenged once it is passed by the government.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I rise today to speak to Bill C-4, the Preventing Human Smugglers from Abusing Canada's Immigration System Act. Unfortunately, the title is an unworthy message for the government to convey to the rest of the world.

My riding of Parkdale--High Park is in downtown Toronto. It is a very mixed income community. For many newcomers to Canada it is a first stopping-off point. Over the years, waves of immigrants have put down roots and created institutions in our community.

Earlier today, I spoke about the 100th anniversary of the Knesseth Israel Shul in my riding. It is the oldest original synagogue in Toronto that is still in use today. Many of the original congregants of this shul came to Canada to escape the persecution that the Jewish community was facing in Europe and other parts of the world, while others came for economic reasons. In many cases, they came with little more than the ability to work hard, their ingenuity and their creativity. Although small, this magnificent institution is so beautiful. It adds glimmer to the heart of a community that was formed 100 years ago in our neighbourhood in the Junction. That is typical of many newcomer communities in Canada.

My community is home to many who have fled Soviet bloc countries: Poles, Ukrainians, people from a variety of backgrounds. We have many Vietnamese, Tamils, Latin Americans, and most recently, Tibetans. We now have the largest Tibetan community in Canada. Also, many of the Roma from Hungary are coming to our community. A number of these community members came here as refugees because they feared for their safety and well-being in their countries of origin.

For example, the repression of Tibetans is well known. His Holiness the Dalai Lama is an honorary Canadian citizen and has come to this Parliament. We were all thrilled to meet with him. He so elegantly and generously described the struggle of Tibetans not only in modern day Tibet as it presently exists within China but also in refugee camps in India and Nepal.

Many people around the world are living with instability, war or repression. Refugees are seeking shelter from these conditions.

As part of out citizenry in the international community, Canada has signed international agreements to receive not all refugees, but our share of refugees, and to roll up our sleeves and contribute with the rest of the world to helping those in need.

In fact, I would argue that many other countries do so much more. Some of the poorest countries in the world, countries in Africa for example, have some of the largest numbers of refugees who have fled wars, famine or other kinds of hardships from nearby countries.

Canada's history is one of living up to the international treaties we have signed, as well as living up to our responsibility as a strong member of the international community.

My colleague from the Montreal area spoke earlier about how his family came to Canada as Vietnamese refugees.

We have a large Vietnamese community in Toronto, people who fled with not much more than what they could carry. They have made an enormous contribution to our country.

Again, I look at my own community and the institutions people have built and the tremendous creativity of people, the jobs they have created, the businesses they have opened, the art they have created, and what they offer to our country.

It is a wrong notion that somehow Canadians are paying something when refugees come here. I think we gain a tremendous amount. Canada is built on waves of immigrants, but many refugees as well, and they have made an enormously valuable contribution to our country.

When it comes to this bill, I have to ask myself why we would want to target or demonize refugees. That is what the bill is doing. It is somehow tarnishing refugees and putting all of them under suspicion as potential smugglers and potential abusers of Canada's immigration system.

The bill claims it would crack down on human smuggling, but as the bill currently stands, it concentrates too much power in the hands of the Minister of Citizenship, Immigration and Multiculturalism and unfairly penalizes refugees. It sets up different tiers of status for refugees.

Our party would rather deal with criminals, the people who are abusing the system, the people who are indeed trafficking or smuggling. Yes, let us deal with them through our judicial system. However, as it stands, this bill is more likely to hurt legitimate refugees and the people who are trying to help them, people who are seeking safety and solace here in Canada.

As many of my colleagues have described, this process is unclear. It is arbitrary and ultimately very discriminatory. We have to ask ourselves why this bill is even before us when we just approved a refugee law a few months ago. What we need now is full implementation and better enforcement of that law.

The government should be less focused on photo ops and demonizing people who come here seeking legitimate refugee status and more focused on enforcing the laws against human smuggling that we already have and giving the RCMP, who are tasked with this job, the resources they need to get the job done.

Our concern is that the bill is more about politics, very divisive and dangerous politics, and less about ensuring an effective and fair refugee and immigration system.

We are not just saying that. We are backed up by the Canadian Council for Refugees, Amnesty International, the Canadian Civil Liberties Association, the Canadian Bar Association, an expert panel at the Centre for Refugee Studies. Those who are experts in international law, in our charter rights here in Canada and in international covenants share our deep concern about the flaws of the bill and the damage it could do certainly to our country's reputation, but much more importantly to individual lives. We are talking about people who are at their most desperate, who are fleeing for their lives.

We think this is an unnecessary bill, a bad bill, a bill that is going to tarnish Canada's reputation and endanger those who need shelter most.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, I support the emphasis the hon. member for Parkdale—High Park is placing on the importance of refugees here in Canada.

I have had the privilege of working in her area as a law student and had the great opportunity to understand some of the communities that she represents.

In terms of refugees, I am given to understand that Canada receives a higher proportion of refugees than any other country in the world in terms of our population. People around the world put great stock in our refugee policy. In fact, I was just in Iraq and met people who were concerned about coming to Canada. It is only because we can protect the integrity of our refugee system that we can open our doors as we do. I ask the member to respond to that.

Without the abuses that have happened, does she understand that we can therefore protect the life, liberty and pursuit of happiness of true refugees who would come to our shores?

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I do not know what abuses the member is talking about, but I do know that if we look at some of the poorest countries in the world, their number of refugees is far greater than that of Canada. While we may have a smaller population, we certainly have the resources and land mass to be able to accommodate refugees.

I would ask the member, in response to his question, for someone who understands my community and understands the importance of the refugee and immigration system, how can he justify the mandatory detention of children? How can he justify violating international treaties with the bill? These are treaties that we have signed onto and are part of our international commitment.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I share many of the concerns of this flawed piece of legislation with the member for Parkdale—High Park.

Earlier in the debate, the member for Toronto Centre suggested that, given the concerns that have been expressed by the Canadian Bar Association, the former chair of the Immigration Refugee Board, and many other legal commentators on this matter, it would be appropriate to have the bill referenced to the Supreme Court of Canada.

I wonder if the member for Parkdale—High Park and her party would support that suggestion from the Liberal Party.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, in analyzing the bill I look to the expertise of those who work in the field of immigration and refugee law: the Canadian Council for Refugees, Amnesty International, the Canadian Civil Liberties Association, the Canadian Bar Association, and the Centre for Refugee Studies. All of these organizations have said that the bill is draconian, that it could violate the charter, that it could violate our international commitments, and it is legislation that is not needed given the recent adoption of the refugee bill earlier this year.

I think it would be of great value to the House to have opinion from outside experts to analyze whether this bill would likely be a contravention to the laws that govern our land and international treaties that we have signed.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, of the 492 men, women and children who came to Canada on the MV Sun Sea, a significant number were indeed children. Ten of those children came to live in London, Ontario. They are sponsored and supported by the Tamil community there. Last Christmas they put on a concert with singing, music, and a nativity scene. Some of them were as young as two and a half years old.

I come back to the member. Why on earth would we ever support a bill that would allow for the incarceration of children?

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I would like to know what the Conservatives have against children.

I think it goes down to our essential humanity. If we support families and the value of refugee processes, then we have to understand that these are very draconian measures that could be very harmful to children.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, Bill C-4 has a very clear short title: Preventing Human Smugglers from Abusing Canada's Immigration System Act. That sounds right, pertinent and unequivocal. We expect a well thought-out bill that would help our law enforcement agencies catch criminals who are involved in human trafficking, a very serious crime that is punishable by life in prison.

Except for in this title, there is no other mention of smugglers. They vanish just as quickly as they came. There is not another word about them, and the emphasis shifts immediately to refugees, the very victims of the smugglers mentioned in the title. And how are these refugees treated in this bill? They are described as potential terrorists, fleeing criminals or people abusing Canada's goodwill and the hospitality of its institutions.

In fact, the bill seems to be suggesting to Canadians that the current refugee processing legislation is naive. It needs to be updated and reflect the current focus on international terrorism. We quickly realize that the real short title of this bill is something along the lines of “the arbitrary radicalization of the legal treatment of refugees act”.

We should not think that we do not already have a law that targets smugglers. This phenomenon was not discovered last week. This criminal act is already punishable by a very severe sentence, the most severe sentence in fact: life in prison.

Why does this bill focus on refugees? Why does it want to make them guilty of other people's crimes?

What is a refugee? Must I remind the House? From the outset, we are talking about almost unbearable situations. We are talking about men, women and children who have only one simple hope left. They have just spent several weeks at sea in unsanitary conditions. They are put on unsafe boats with no guarantee of safety. When they finally reach land, they often do not have passports or any money. They have basically been denied their human dignity and who has done this? The smugglers that this bill supposedly wants to bring to justice. However, these smugglers cannot be found. They are still abroad where they continue to engage in illegal practices. In return for large amounts of money, these smugglers lead less fortunate, persecuted people who do not feel safe in their own country to believe that they will have a better life in a developed country. Those people are victims and nothing more. They are in the most vulnerable state possible.

What is the Conservative government proposing we do to lighten the load for these victims whose courage and determination brought them to Canada? The Conservatives are proposing that we persecute them even further by treating them like criminals and looking for terrorists among children. Who will be given the right to do this? A government institution that is well-equipped with experts? The RCMP? No. To our great surprise, it is the Minister of Immigration who would have this right. I would like to ask why.

Why would a minister be granted such power? It is completely unjustified. It would be a backward move, a legal anomaly that would be fundamentally unCanadian. In this country, we do not place such a heavy responsibility on the shoulders of a minister.

From a strictly legal point of view, this could violate the Canadian Charter of Rights and Freedoms. Bill C-4 could be contrary to section 9 of the charter, which pertains to arbitrary detention. By creating two categories of refugees, Bill C-4 could violate section 15 of the Charter, which pertains to equality before the law. The NDP is of the opinion that Canadians do not feel there is any justification for questioning such things. The charter is a building block of our state. If we circumvent the charter, we are circumventing democracy.

If I may, I would like to give an example to show just how weak the government's argument in favour of Bill C-4 is. I hope I have the Conservatives' attention. I repeat, the NDP takes its legislative responsibilities very seriously, especially when it comes to the safety of Canadians. That is our duty. Consider the case of a refugee who has been detained as a designated foreign national under Bill C-4, but decides to exercise his rights and take the government to court over these violations of his basic charter rights. It must be understood that this person was incarcerated without any valid reason whatsoever. Well, there is a provision, in section 1, that allows reasonable limits on Canada's basic rights and freedoms. That said, the burden of proof lies with the government, which must prove that a rule of law that it is adopting can override the charter.

Such exceptions are justifiable only within reasonable and demonstrable limits in the context of a free and democratic society. As proof, in R. v. Oakes in 1986, a judge described very clearly what has since become known as the Oakes test, to determine whether such limitations on basic rights are justifiable in the context of a free and democratic society.

How does the Conservative government plan to prove that 12-month, arbitrary detentions imposed by a ministerial decision will satisfy those criteria? I am referring to the minimal impairment criteria. Will the new legislation the government wants to use to achieve its objective repudiate a charter right in the smallest possible way? Will the limitations on basic rights be proportional to the objective of this new legislation? No. From a legal perspective, that is all untenable. This government cannot justify limiting basic rights like that.

The problem lies in the fact that the smugglers are the real criminals in this matter. And where are they? Are they in the makeshift boats that land on our shores? Do they accompany their victims? No, they are long gone and untouchable. And the Minister of Citizenship, Immigration and Multiculturalism cannot do anything about it, regardless of the powers he gives himself.

The Royal Canadian Mounted Police is the only organization capable of cracking down on human smugglers. The RCMP's expertise is a precious and available resource. Its legal role has already been established and there is no risk of abuse. The NDP believes that our police force should be provided with the resources required to go after these criminals. The NDP does not understand what future immigration ministers would accomplish by incarcerating these refugees.

There is no justification for this bill. It does nothing to improve the security of Canada and its population. It punishes people who need us. And, above all, it does not provide the RCMP with the necessary resources and wastes its expertise. The measures are arbitrary. Yes, the problem does need to be resolved. We must pass legislation against smugglers. Unfortunately, the Conservative government is taking the wrong approach. It is proposing to indiscriminately put all refugees through the wringer. It is trying to kill a fly with sledgehammer. What criteria will be used to determine who is a designated foreign national? Why is the bill not clear in this regard? It is unacceptable to introduce such vague legislation.

Canada was not built by giving such absolute discretion to a minister. We realistically expect that laws be rational and predictable. That is not at all the case with Bill C-4, and I am disappointed.

In closing, who are the biggest abusers of the immigration system? It is the Conservatives. Taking their cue from a vague feeling of xenophobia, they are claiming to deal with a scourge, yet they are doing nothing more than playing politics, and rather shamelessly at that. They are trying to appropriate abusive powers, nothing less. They are trying to tarnish Canada's good name. That is unwarranted. Our country is a symbol of justice throughout the world. For millions of people living precariously, Canada is a symbol of hope and humanity.

Does the Conservative government, which incessantly proclaims its patriotism, truly want to diminish our greatest achievement just for a shameful power grab? There are not many countries like Canada, and it is our duty to maintain its generosity, which is legendary and the reason why Canada is held in high regard throughout the world. More powerful nations would give anything for such an illustrious reputation.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I listened very intently to my colleague across the way. We do take our duty as legislators very seriously. As a matter of fact, during the last campaign we let Canadians know exactly what our intentions were with regard to this type of legislation.

Not only that, but the response I have received is that we want to maintain Canada's great reputation as a country that takes in more refugees than any other developed country and provides for them every opportunity.

I have heard from members opposite that the asylum seekers are detained for 12 months before receiving a trial, but I would like to point out that those who are detained have access to legal counsel throughout the process, something that does not occur in every country in the world. As soon as these asylum seekers are determined to be refugees, they are released. If the minister thinks there is a humanitarian concern; for example, people with children or an illness, he has the discretion to make exceptions.

Therefore, can the member opposite explain why the opposition is consistently ignoring these facts when talking about the minister and the level of his discretion within the bill?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, I would like to thank my colleague for his question.

When refugees arrive in Canada without papers or anything else because they have fled a war-torn country or an absolutely horrific situation, we cannot then put them in preventive detention and tell them that they have the right to legal counsel. Imagine. These people are completely impoverished and have no way of defending themselves against this type of illegal action.

The government likes to brag about welcoming refugees, so why is it that the Canadian Council for Refugees is opposed to this bill? Why are Amnesty International and the Canadian Bar Association both saying the same thing: that this makes no sense?

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I, too, listened to a number of presentations this morning. I have a question for the member as well.

I will quickly set the question up in terms of content. In the 40th Parliament, we introduced this bill, almost identical to the way the bill is today. The opposition parties were very clear that they would not support this at second reading and would not allow it to go to committee so we could have had the exact discussions that the member spoke about where some recommendations from them could have been brought forward.

We have reintroduced pretty much the same bill. I am listening to all these speeches. I am hearing opposition members complain about what the government is trying to do, even though most Canadians support what we are trying to accomplish. I hear nothing in the way of recommendations or suggestions as to how they would make the bill stronger. I would ask them to please give me one or two suggestions.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, I said in my speech that it is important to try and do something about human trafficking. The bill, as it stands, only serves to punish refugees who arrive here under the worst possible conditions. If the bill at least contained something about human trafficking and smuggling, of course we could get on board and see what was there. But right now I see absolutely nothing worthwhile in this bill.