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, Conservative, Bruce Stanton]

There is enough time for a short question and a brief answer.

The hon. member for d'Abitibi—Témiscamingue.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, in her speech, my colleague emphasized the fact that expert reports state that the bill does not comply with the law, for example. I would like to know if there is a reason why the Conservative government, before introducing this bill, did not pay heed to what the experts said?

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Speaker, I thank all my colleagues for their questions, something I did not do before.

This is indeed rather disturbing. However, as I said in my presentation, this government seems to have a tendency to pay little attention to expert opinion. In this case, I quoted at length from the Canadian Bar Association report, because I thought it was important. I do not think the Association can be accused of being biased and its comments should have been taken into account.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, as I listen to the debate in this House on Bill C-4, there are some very obvious themes that are arising. One of the central themes that we keep coming back to is the issue of fundamental human rights and freedoms. I think that the Canadian public and we ourselves in this chamber can reasonably expect some disagreements between members of different parties. Sometimes those disagreements can be profound disagreements.

However, it saddens me that we disagree on these very issues of fundamental human rights and freedoms. It seems to me that we in this chamber should not have to be debating whether or not everything we do, every bill we consider, should be based on, or consistent with, principles that human beings are entitled to fundamental rights and freedoms. One would have thought, or at least hoped, that we were past that.

We have, after all, a Charter of Rights and Freedoms that forms part of the Constitution of this country. It recognizes, as I hope we all do, that certain rights and freedoms are not conferred just by way of Canadian citizenship but are universal. In the words of the charter, they belong to everyone.

Long before our charter, we were signatories to the charter of the United Nations. As that charter says, we became signatories as a result of our determination:

to save succeeding generations from the scourge of war [...], and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom.

What follows, of course, is our signature on a number of United Nations conventions and declarations that are intended to put these beliefs into practice. So profoundly certain are we of the legitimacy of such fundamental human rights and freedoms that we are even prepared from time to time to send Canadian men and women around the world and into war to protect people, not just Canadians but people of all citizenship, who are denied such rights and suffer as a result.

We all know there are many places around the world where people are denied such rights and freedoms, and are subject to discrimination, persecution, violence and even wrongful prosecution. From time to time, people end up on our shores, seeking safe haven or asylum from more persecution, understanding that this is a country known to the world as a place where one can enjoy such rights and freedoms in peace.

One would hope that we respond to such people in a manner consistent with our explicit commitments to respect fundamental rights and freedoms, the most obvious of these commitments being our own charter of course but also, most relevant to Bill C-4, the commitments we have made to the international community about the appropriate treatment of refugees and, indeed, children.

However, Bill C-4 strays from those commitments, some of which have governed or guided us for 60 years. I would like to point today to a few parts of this bill where I think this is the case.

Bill C-4 places into the hands of the minister the power to create a second or, in the terms of the bill, a designated class of refugee claimants. There are very few criteria or parameters made explicit in the bill for making such a designation, leaving very broad discretion to the minister and therefore little accountability for the decision. This is of great importance because of the profound implications of being placed into the designated group. Mandatory detention follows such designation.

Section 7 of our charter says:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Which is to say, if we are going to deprive someone of life, liberty or security, we better have a really good reason for doing so and a really sound process for doing so, a reason and process that enjoys the consensus of all Canadians.

The good reason and the sound process do not exist under Bill C-4. One of the few explicit reasons the minister can invoke the designation is out of suspicion that those claiming refugee status have already been victimized by a smuggler.

Further, the detentions are group detentions, which is to say that the bill does not require an assessment of the threat that any individual refugee claimant may pose. Absent such an assessment, the detention of everybody means, at a minimum, the arbitrary detention of somebody. Such arbitrary detention raises the violation of section 9 of our charter; that is, the right not to be arbitrarily detained or imprisoned.

The fact that there is no review of the detention for at least 12 months raises further issues. Section 10 of the charter requires that everyone arrested or detained has the right to: be informed promptly of the reasons therefore; retain and instruct counsel and to be informed of that right; and to have the validity of the detention determined within 48 hours and to be released if the detention is not lawful.

To return to an earlier point, the detention for in fact seeking asylum, and that we need to keep in mind just what triggers this detention, simply a claim for refugee status, seems also to run afoul of the United Nations Convention on the Status of Refugees, which says:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who...present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 31 of the refugee convention further states:

The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary--

Of course, as previously discussed, the designation process does not provide for an assessment of necessary restrictions of movement for individuals as the movement of everybody in the designated group is restricted simply as a matter of being so designated.

Sadly, the denial of rights and freedoms to those in designated groups extends beyond their recognition as a refugee by this country.

First, Bill C-4 would prevent designated refugees from applying for temporary or permanent resident status for five years and further, prevents them from obtaining refugee travel documents for five years. Again, this would seem to breach the refugee convention to which we are a signatory, which provides that the contracting states shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require.

Second, Bill C-4 would impose on refugees from a designated group a continuing obligation to report to an officer to answer questions and provide information or documents as so requested. This kind of surveillance outside of the criminal justice system is unheard of in Canada. Further, it must be remembered that this kind of surveillance under Bill C-4 flows from the very arbitrary designation in the first place.

The sum total of the foregoing analysis of Bill C-4, albeit cursory and partial as it is, goes to my final point.

Bill C-4, if we are to believe its title, is intended to counter human smuggling. Throughout this entire debate I cannot recall any member of the House making the claim that human smuggling is not a serious offence, that it is not a practice that should be defeated, and that offenders should not be subject to very serious punishment. Human smuggling is after all the exploitation for profit and/or other nefarious advantage of people who are most vulnerable, and in most need of protection.

The perversity of this legislation is that it heaps punishment on those very same people that the human smugglers are exploiting. A further twist to that perversity is that not only does the bill promise harsh treatment for those seeking asylum in this country, a country where they come in the hopes of being able to enjoy the rights and freedoms that they could not access at home, but it proposes to deny these asylum seekers the very rights and freedoms that define this country for ourselves and in the international community, and make us so proud to be citizens of it.

Somebody gave the bill a very fine and aspirational title, and then things went very seriously wrong. If it is the belief of the government that provisions of the Immigration and Refugee Protection Act are insufficient to deal with human smuggling, then I would urge the government to bring back before the House a bill that punishes human smugglers, not those that they exploit.

[Bob Zimmer, Conservative, Prince George—Peace River, BC]

Mr. Speaker, the hon. member continues to misrepresent the purpose of detention. We have heard time and again that detention is for one purpose, and that is to identify who these individuals are if they turn up without documents, as is almost always the case on these vessels. The authorities must have the time to properly identify these people and the bill provides that time.

I wonder why the member seems to be saying that we should let anyone turn up on our shores to roam our streets and communities without first knowing who they are and what kind of threat they may pose to Canada. Could he please answer that question?

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, my colleague seems to understate the limitations that the detention imposes on people. In this country, we take very seriously the right of everyone to liberty, life and security, but the bill would not respect those rights. Holding people, including children, the elderly, the disabled and those who so obviously pose no threat to this country, in detention for a minimum of a year is a breach of fundamental human rights and freedoms and entirely unnecessary.

I would suggest that the government put forward a bill that would find a way to manage and administer large groups of refugee claimants who come to this country in a way that respects rights and freedoms.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I was a little surprised in terms of the Conservative member's question. I was under the understanding, based on what the Minister of Citizenship, Immigration and Multiculturalism said, that the primary reason for this particular bill is to target the profiteers, the smugglers.

Having said that, I ask the member if, in his opinion, he believes that Bill C-4 would have more of an impact on the profiteers and smugglers, or would he agree with the Liberal Party in saying that the real impact would be in making victims of the refugees.

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, as reluctant as I am to agree with the Liberal Party, I think I do in this case and I will have to admit so.

The reasons for the detention are, frankly, quite elusive. They are not there in the bill and they are at the minister's discretion. It seems entirely arbitrary and vague at best.

I think it is most certainly the case that what is happening here under the bill is that we would end up mistreating refugee claimants to this country, presumably, if I am to follow the logic of the title, in an effort to somehow get at the human smugglers. However, I see nothing in the bill that in fact provides a means for dealing with the smuggling itself.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, we are mobilizing our troops to go to Libya, to teach the world about democracy and supposedly to bring in better practices. What will we fight in countries with a dictatorship? We will fight everything that is arbitrary, all the random acts of people who grab power.

Are we not heading down a very slippery slope?

[Matthew Kellway, NDP, Beaches—East York, ON]

Mr. Speaker, in my speech, I tried to point out that this is a country that is, in fact, putting our forces into war zones around the world, presumably for the purpose of protecting the fundamental human rights and freedoms that we are speaking of here today. There is a very profound fundamental inconsistency between that language and those actions that the Conservatives are talking about and their consideration of human rights and freedoms in the bill.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, Bill C-4, An Act to amend the Immigration and Refugee Protection Act, gives new latitude to the Minister of Citizenship, Immigration and Multiculturalism when it comes to refugees and newcomers. The bill gives the minister new discretionary powers over the legal system as it applies to refugees and it limits the rights of newcomers.

According to the bill, the minister has the power to designate as an “irregular arrival” the arrival in Canada of a group of persons, and then to identify some members of that group as “designated foreign nationals”. The bill restricts the rights of these foreign nationals who want to receive permanent resident status in Canada by means of the following measures: first, the right of an officer or the minister to reject an application for permanent residence from a designated foreign national; second, the power to detain a permanent resident or a foreign national because there are reasonable grounds to suspect that the person concerned is inadmissible on grounds of serious criminality or organized criminality; third, detention rules and a review procedure that are specific to the detention of certain designated foreign nationals; fourth, the provision stating that a person cannot become a permanent resident as long as an application by the minister for cessation of that person's refugee protection is pending; fifth, for the purposes of determining the penalty for certain offences, the addition to the list of aggravating factors of the fact that, as a result of the offence committed, the life or safety of any person was endangered; and, lastly, the extension of the time for instituting proceedings by way of summary conviction from six months to five years.

In addition to arbitrarily and inadequately amending the Immigration and Refugee Protection Act, this bill also amends the Marine Transportation Security Act by imposing more severe sentences on people who fail to provide the required information before a vessel enters Canadian waters, people who fail to comply with ministerial orders, and people who provide erroneous or misleading information. The bill also creates a new offence related to vessels that fail to comply with ministerial orders. It also amends the existing act by authorizing the enforcement of rules governing the disclosure of certain information in order to ensure the safety or security of Canada and Canadians.

I would like to express my concern about the concepts of “regular arrival” and “designated foreign nationals”. The minister can deem the arrival of a group of refugees to be an “irregular arrival” if he believes that examinations cannot be done in a timely manner, if he suspects that the people were smuggled in exchange for money, or if he suspects that a criminal organization or terrorist group is involved in the smuggling. The people in the group that the minster deems to be “designated foreign nationals” will be subject to a legally questionable system of justice. First, we must consider whether this concept violates section 15 of the Canadian Charter of Rights and Freedoms, which pertains to equal rights, or article 31 of the UN convention relating to the status of refugees, which prohibits states from imposing penalties on refugees for their illegal entry or presence in the country.

Article 31(1) states: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

Bill C-4 may also be contrary to section 9 of the Canadian Charter of Rights and Freedoms, which pertains to arbitrary detention.

This section states, “Everyone has the right not to be arbitrarily detained or imprisoned.” In contrast, the bill allows for the arbitrary detention of designated foreign nationals for a period of 12 months. Furthermore, in terms of procedure, decisions related to claims made by designated foreign nationals cannot be appealed to the refugee appeal division. This provision is discriminatory and may even contravene the UN convention relating to the status of refugees.

Lastly, it is worth noting that the minister can retroactively confer the legal status of designated foreign national on anyone who has arrived in Canada since March 31, 2009, which means that the Ocean Lady and Sun Sea passengers could be subject to this precarious legal status.

This bill, which is supposed to punish individuals who engage in human trafficking, is completely inappropriate in that we already have legislation that imposes a life sentence for people convicted of such activities. This bill creates a second class of refugees who are denied permanent residence, temporary residence permits, the right to apply for permanent residence based on humanitarian and compassionate grounds, and, finally, refugee travel documents. It creates inequality before the law, simply because the minister has identified these people as designated foreign nationals based solely on the mode of transportation they used to enter Canada.

Bill C-4 to amend the Immigration and Refugee Protection Act, which was introduced not by the Minister of Citizenship, Immigration and Multiculturalism but by the Minister of Public Safety, shows the government's willingness to pursue an ideological security policy that is detrimental to refugees and newcomers.

Under the guise of working to combat human smuggling, this bill penalizes refugees who are already in difficult situations and who have chosen to come to Canada simply to improve their living conditions. NDP members rejected this bill when it was introduced in the previous Parliament as Bill C-49 and they will do so again in this Parliament because the bill is inadequate, it violates international law and the Canadian Charter of Rights and Freedoms, and it tarnishes Canada's international image as a welcoming country.

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

Mr. Speaker, I have been listening to the debate on this bill and there are some facts that should be addressed.

First, Canada has a very generous immigration and refugee system. The majority of the people arriving in this country arrive as accepted applicants for permanent residency. There are a lot of refugees from different parts of the world who come under a UN program.

This legislation is aimed at people who use smugglers and at smugglers whose business is bringing people to this country illegally. There is a lot of discussion around the rights of people.

I have question for the hon. member. Do the citizens of this country have a right to protection? Does the government and Parliament not have an obligation to protect the country's borders and to protect our citizens?

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I would like to thank the hon. member for his question. Canada has the right to be protected from smugglers, from the real criminals. Canada has the right to invest in the RCMP to give police the means to conduct investigations and arrest smugglers. However, Canadians also have the right to hear from the Canadian Council for Refugees, Amnesty International, the Canadian Civil Liberties Association, the Centre for Refugee Studies and the Canadian Bar Association, so that the laws and regulations respect the rights of Canadians.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, many organizations have said that the bill contravenes the charter. Our party leader has suggested that we seek the opinion of the Supreme Court of Canada as to the constitutionality of this bill.

Does the member agree with this idea?

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Mr. Speaker, I thank my colleague for the question.

In response to what I have heard from the other side of the House, all scenarios are on the table. It is important that the government listen to the opposition and especially to organizations such as the Canadian Council for Refugees, Amnesty International, the Canadian Bar Association, the Centre for Refugee Studies, and the Canadian Civil Liberties Association, which give advice on how to improve laws and regulations. It is very important that the proposed bill be improved.