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

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, the impact or effect on refugees is very clear. As I outlined in my speech, with one class of refugees, the bill, as sponsored by the Government of Canada, would be made victims of the very people that Canada has traditionally welcomed as a safe haven.

It is kind of guided on the possibility that we would be going after human smugglers. That is not necessarily so. The human smugglers may be getting off the hook, but the people who have been encouraged either to get on a boat or whatever by these human smugglers and abused in that way, in terms of their financial and human resources, are themselves, rather than us helping them as a country, going to be made the victims. That is the bottom line. That is the long and the short of it.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, in his presentation, the member mentioned that some of the people on these ships are fleeing prosecution.

Is Canada the destination and is Canada a country that should providing safe haven for those people fleeing prosecution in their country? Is that the kind of immigration we want to establish?

The member said that people on these ships are fleeing prosecution. Is Canada, in his mind, supposed to be the kind of country that is providing a safe haven for criminals and criminal organizations trying to escape justice in their own countries?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I would think that Hansard would have that word correct. It is really “persecution”. However, with my Island accent, it might have sounded different for the member for Yukon, who is so far away up there in the chamber.

Certainly we want to help people who are fleeing persecution or wars in other countries. That has been our tradition. We have always been an open haven and a welcoming country and operated on good laws. This, as I said in my remarks, would move us back to a different time, to a less open haven as a country—

[The Acting Speaker, Bruce Stanton]

Order, please. Resuming debate, the hon. member for Laurier—Sainte-Marie.

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

Mr. Speaker, we have before us a bill that is rather questionable in several respects. It is also a bill that, unfortunately, demonstrates some very worrying trends we see in this government.

This bill was criticized in its previous, but similar, incarnation by a number of experts and organizations for a variety of reasons. One of the reasons that often came up was the fact that this bill does not respect our international obligations. Amnesty International is now saying that Bill C-4 does not respect Canada's obligations in terms of human rights and refugee protection, and that it would lead to serious violations of the rights of refugees and migrants.

This illustrates some trends. It is very clear that this government is not always strong when it comes to respecting its international obligations and commitments. Take, for example, the Kyoto protocol or the treatment of Omar Khadr, to name just two. Then we wonder why Canada's reputation is suffering in the world. These issues play a big part in that.

In this particular case, both the Convention on the Rights of the Child and the Convention Relating to the Status of Refugees are being violated. And we are not the only ones saying that. Experts such as the Canadian Bar Association agree. I would like to read a quote from a Canadian Bar Association report about Bill C-49 that also applies to Bill C-4:

The denial of detention reviews breaches the section 9 and section 10 Charter protections against arbitrary detention and right to prompt review of detention. The provisions for mandatory unreviewable detention and for denial of access to permanent resident status or travel documents conflict with Canada’s obligations [and I would like to emphasize “Canada's obligations”] under the Convention Relating to the Status of Refugees and the International Covenant on Civil and Political Rights.

The Association goes even further, and I quote:

The Bill C-49 mandatory detention provisions (and other punitive measures) would also violate Article 31 of the Convention Relating to the Status of Refugees. The Convention, ratified by Canada and more than 180 countries, sets out obligations for the treatment of refugees seeking protection within their borders. Article 31 prohibits the imposition of penalties against refugees on account of their illegal entry or presence without authorization.

Yet that is exactly what this bill would do.

We know that this government does not always have the utmost respect for experts, but I think it is important to continue quoting the experts from the Canadian Bar Association. They also point out that this bill violates Article 28 of the UN Convention Relating to the Status of Refugees concerning the right to a travel document.

Finally, and to finish quoting this report, the bill also violates the obligation under Article 34 of the United Nations convention relating to the status of refugees, which states, “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings”, and the duration of such proceedings.

What is more, in this bill we see the government's very typical tendency to arbitrariness. The minister gives himself power, as my hon. colleague was saying earlier, that is arbitrary and lacks transparency. The proposed detentions are essentially arbitrary detentions.

The third tendency we see in this bill is the refusal to listen to expert opinion. I believe there are 80 different agencies that had something to say about the previous bill, which was identical to this one. Every one of them, in one way or another, indicated their dissatisfaction, their problems and their serious concerns with the bill, but the government is not taking that into consideration.

One last problem with this bill is the fact that it claims to be about punishing smugglers. It does not punish smugglers; it punishes refugees. It creates two categories of refugees because a refugee arriving by plane is not the same as a refugee arriving by boat.

We know that people who fish have developed nets with which they can catch tuna and let dolphins go free. In this bill, we get the impression that if the smugglers are the dolphins and the refugees are the tuna in this analogy, then the government is casting a large net to catch refugees and let the smugglers go free.

From the simple standpoint of respecting international conventions—let alone the other problems with this bill—this legislative measure is a disaster. Canada's image has suffered greatly over the past few years and this is certainly not going to help. Far from it.

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

Mr. Speaker, I certainly understand that under parliamentary procedure and the fact that we have three parties in the House of Commons we will not to see eye to eye on every issue, but when members speak to an issue, it should be from the perspective of clarity. I am hearing continuously both from the member and those who have spoken before her this image they want to portray that there are two streams of refugees. She is making assumptions that are completely unjustified.

The fact is that individuals who come on those ships are not refugees. They do not land and immediately have refugee status. They must go through a process like every other individual who lands in this country and claims refugee status has to go through.

People who have been declared refugees by the United Nations, who are not in this country but are waiting in other countries, deserve and have earned the right for a new life. We offer that in Canada. Those are the people who come here to live and lead a better life.

Why do the member and her party continue to try to misinterpret what the bill means? Please clarify for me why she misinterprets what the bill means?

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

Mr. Speaker, it is very interesting to note that the answers given by my colleague across the floor all presume that these are not legitimate refugees, but rather bogus refugees. The organization Rethink Refugees reminds us that under international law, arriving by boat is completely legal. Individuals cannot be charged simply because they arrived by boat. It also reminds us that the vast majority of passengers are legitimate asylum seekers. But instead of giving them the benefit of the doubt and treating them like people who are suffering, which is what they are, the government is reversing the burden of proof.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Speaker, this is clearly a public safety measure. Invoking Omar Khadr as a method of trying to communicate on this issue is questionable judgment at best. I have a question for the hon. member opposite.

What does the hon. member have to say to Canadians who want to keep their families, their streets and their communities safe?

A simple question.

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

Mr. Speaker, what I would like to tell Canadians, including myself, people I know and my family who want to keep our streets safe, is that the source of crime in Canada is not boatloads of refugees armed to the teeth who are coming here to attack us. That is just not the reality. I find it rather odd that some people automatically think it is a criminal matter when refugees come to seek assistance from Canada.

I would also point out that Canada is but one country in the world. Its security comes from global security. Helping refugees and showing compassion for other countries will only benefit Canada's security in the long run.

[The Acting Speaker, 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.