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

[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.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I want to thank my colleague for his presentation.

He mentioned problems related to the fact that this bill is not consistent with certain international conventions, particularly United Nations conventions. I would like my colleague to talk about the impact that could have on Canada's image on the world stage.

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

Mr. Speaker, I want to thank my hon. colleague for his question.

Canada has always been perceived by other countries as a welcoming nation, as a very democratic country that gives new arrivals a chance to make their way. If we fail to respect all the laws, charters and advice from the agencies mentioned earlier, I think our reputation as a welcoming nation will be seriously and profoundly tarnished.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, it is a little bit last minute but I will try to put a couple of thoughts together. I do not think I will take too much time but I will try to resume what has been spoken about.

We have been talking about two classes of refugees, basically the type of bill this is, and we are obviously hearing rhetoric from both sides of the House. However, when members listen to what we have to say, it is normal that we are the ones who are right in this area because the Liberal Party brought in the charter and believe in giving people the rights to which they are entitled.

It is astounding what we hear from the Conservative government. I have a piece of paper with the background of what brought all this to light.

In August, 2010, a total of 492 Tamils arrived on a boat. The time before that, in 2009, 76 Tamils arrived here on a boat. In the last couple of years, we have had about a thousand people who have come on a boat claiming refugee status. Now, all of a sudden it requires a new bill. Every person who has ever come in a boat, any person who has come from Sri Lanka, any person of Tamil background is considered a terrorist. Anybody who has ever been an immigrant, anybody who has ever made a refugee request is considered a criminal. Where is the end in all this?

All this does is create controversy and division, which is typical of what the government does, but most of all, it is supposed to be a cost-conscious type of government and this costs money. All this amount of paper for what? Because the government is saying that criminals are in the boats? Those are not the criminals.

The bill does not address the criminals, the smugglers. So, what are we looking at? There are criminals on the boat, criminals arriving on the boat and criminals sending the boat. The criminals who are sending the boat from wherever the place of departure is, are not being addressed. However, all of a sudden, anybody who has ever set foot in a boat now becomes a criminal, according to the other side, and anybody associated with wanting to help those people is considered a criminal.

What does that mean? That means that we will need to pay consultants, lawyers and all kinds of people to ensure those supposed criminals, however many there are, will be put in a detention centre and supervised. They will go be uneducated, not being fully utilized for any of the services, and then again it will cost money.

I have examples in my office, representing a riding in an urban centre rampant with immigrants and refugees, of people who come for help. The majority of the refugees who come to my constituency office, and sometimes do pass by my house, come with some of the best family values we could ever imagine. Their kids go to school. They are not out of line. They get great grades. The parents are working at not one job, but two jobs and sometimes three. They are working around the clock because they have come here to make a better life. The life that they have left behind is not the life they wanted, not only for themselves, but for their families. The people across the chamber should realize that those are the people we are talking about.

Canada brings in 300,000 people every year and 40,000 or 50,000 of those are refugees. Is the bill, by trying to penalize the people on the boats, like we said, creating a separate class, worth the cost?

There would be additional cost involved afterward when we consider the logistics of trying to accommodate these people. We would be putting them in a detention centre for up to a year, and some people are saying up to five years. I am not the expert so I would not be able to say how much that would cost, but we have had numbers up to a couple of billion dollars, which is a thousand million, in case somebody is wondering how much that is.

Hearing the rhetoric from all sides of the House, eventually someone will dispute the bill in a court of law, which will cost money. The Conservative lawyers will get rich and probably pay independent contractors $90,000 a day. Again, this will create controversy and division and for what? We still have not arrested or incarcerated a single smuggler.

There are different ways to address this. I am told that the immigration minister has nothing to do with the bill, but the Parliamentary Secretary to the Minister of Citizenship and Immigration is defending it. The government is tossing the bill around, saying it is a question of security, but the parliamentary secretary is defending the bill. I feel sorry for him because he is a good guy and a good parliamentarian too. It is very difficult to address the validity of the bill.

I am a big promoter of sending a bill to committee to try to make it better, but there does not seem to be a willingness to make the bill better because it is a failure from the start. As my leader and our critic have said in previous discussions, the bill is totally against the Charter of Freedoms and Rights. As an accountant, that tells me it will cost dollars, so again the Conservative government does nothing better than to spend money on professionals, contractors and independent people.

My assessment is that the bill is flawed from the outset. I know there was an attempt to amend it. I know the bill fails to achieve its stated principle of cracking down on human smugglers and I am not sure if the government has made any attempts to make that amendment before it goes to committee. It targets legitimate refugee claimants and does not give a chance to the poor people who arrive on a boat to apply for temporary or permanent residency or acquire any benefits. It is a total make-work type of project. It is exploratory to try to see how much we can abuse the people coming here.

I am not sure how we can fix the bill before it is sent to committee, but I would like to stop it in its tracks so it does not go to committee. Again, I am apprehensive as to the costs. In my constituency the number of refugee board judges who have not been named and Conservatives can use that money to appoint more refugee board judges and maybe speed up the process of refugee claimants, so if there are illegal or illegitimate refugees we could process them quite quickly.

We see examples across the world where countries have tried to use a system where they are not open to welcoming refugees. Instead, they will go get their own refugees. We saw that in some of the Nordic countries where it did not worked. Again, I do not see how that will help. Canada has always been a welcoming country. Looking around the chamber, we are people from different backgrounds and different nationalities.

I do not see how the bill will change or better Canada in the future. If we are scared of a couple of people who will come here by boat as opposed to illegal refugees who cannot come by plane, train, or walk through the border, I am not so sure that via the boat is much more of a threat than any other mode of transportation.

[Eve Adams, Conservative, Parliamentary Secretary to the Minister of Veterans Affairs]

Mr. Speaker, Canada has a wonderful reputation internationally for welcoming refugees. My parents are immigrants. In fact, my father was a refugee in 1956 during the revolution when he stood against Soviet tanks.

The hon. members on the opposite side do not want to understand that perhaps smugglers are what we are trying to target, not refugees. We continue to welcome refugees and we continue to have a wonderful international reputation doing so.

Perhaps the hon. member might be aware that the folks who come here with smugglers are working two, three or four jobs in order to pay off their smuggling fees and the only people benefiting or profiting are the smugglers. They are the ones who are demeaning people who are trying to come to our country. They are the ones who are robbing them of their dignity.

I would encourage members opposite to join with us to help folks who are coming to Canada and genuinely seeking refugee status. Does the hon. member have some comments on that?

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, I think the member stated that it was her father who came across. Had he come on a boat, he would not be a refugee, based on the legislation. He would not be able to make a refugee claim, based on the fact that he arrived by boat.

With respect to smuggling, all we are introducing is minimum sentencing and passing a bill to increase the legal sanctions against smuggling immigrants. That is all we need.

Do we need a separate piece of legislation? I am not so sure we need that.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, my hon. colleague was here when Jean Chrétien took the Clarity Act to the Supreme Court to get clarification that it was constitutional. NDP members are saying quite clearly to the government that if it firmly believes that the bill is appropriate and constitutionally valid, it should take the bill to the Supreme Court before the bill comes to committee and get the Supreme Court decision.

I can only assume it does not want to do that because it may not like the answer.

In fairness to the government, this is rather sweeping legislation. I remember quite clearly that just prior to the war we turned away an entire shipload of Jewish people fleeing Nazism because they did not have the proper documents. There was anti-Semitism in the world, and we turned them away.

I am an immigrant myself. I was born in Holland, and my parents were welcomed by the Canadian family. Many people in this House, in this Senate and in this country who work for the government come from other countries, and we want to make sure that people who are legitimate have the opportunity.

I understand the government's concerns, when a ship does arrives, about the costs and the burdens it places on many of the provinces. In Halifax we get a fair number of immigrants smuggling in on the container ships and so forth.

However, my two quick questions are these: does the member support the bill going to the Supreme Court, and why is the government targeting the most innocent in the world of today?