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

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, in response to that I would like to quote from the UN Convention Relating to the Status of Refugees:

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 is 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.

There is what an international body, the United Nations, has said should be the case for refugees. This bill is contrary to that sentiment and that law. By that nature, it will cause refugees to take a hard look at Canada when they are looking at where they can go for refuge.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, in my short time in this chamber, I have heard many times the Conservative government, in response to a question about an important issue, make the statement that it has done a little thing, which turns out to be a little band-aid and it usually starts out with, “We thank the Auditor General for her report”, and then continues.

It seems to me that this is another example of that where we take a small part of the overall refugee system, which is under some strain, and then the government proposes to deal with it in a kind of a sledgehammer way, not really thinking about the lack of resources that seems to be the real source of the problem.

I wonder if the member would care to comment about the fact that the number of people arriving in boats where there is a nice opportunity for a photo opportunity is actually a small percentage of the overall number of refugees coming into this country.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am sorry but I cannot give my colleague a precise answer.

However, I do feel that, yes, this problem is a minor problem. We have the laws in place to deal with human smuggling, so that is not the issue.

As I said before, my desire is to understand the government's motivation in putting forward this kind of draconian legislation to deal with a problem that is not of significance to a country as grand and powerful as Canada. It just does not make sense to me and I cannot make sense of it.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I will begin by acknowledging the work of the member for Trinity—Spadina. In fact, when I speak to Bill C-4, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act, I will quote from the speech that the member for Trinity—Spadina gave in response to this legislation.

In her summary she said:

...this bill is not designed to prevent human smuggling because we already have laws that do that. It is designed to distract the public and put the blame for the long wait list that immigrants now have to endure in order to bring their loved ones to Canada on people who are desperately trying to leave a dangerous situation.

I think that sums up very adequately the NDP opposition to the bill. We know that many potential immigrants are currently facing very long delays in having their applications considered.

I will turn to the legislative summary of Bill C-4. I will not read every aspect of the act but there are a couple of pieces I want to touch on. Under the background piece, it states:

Specifically, the bill:

creates the new category of “designated foreign national” for any member of a group which the Minister has designated as an “irregular arrival” to Canada, with the resultant creation of a mandatory detention regime; mandatory conditions on release from detention; restrictions on the issuance of refugee travel documents; and restrictions on certain immigration applications, applicable only to “designated foreign national”;

does not allow “designated foreign nationals” any right to appeal to the Refugee Appeal Division...;

amends the MTSA to increase the penalties for individuals and corporations who contravene existing laws, and creates new penalities to be imposed specifically on vessels involved in contraventions of the MTSA.

For people who are listening, the MTSA is the Marine Transportation Security Act.

I want to touch briefly on the Marine Transportation Security Act and members will see why in a minute. There are increased penalties for contravening ministerial direction. Section 16 of the MTSA provides the Minister of Transport with the discretion to direct any vessel not to enter Canada, to leave Canada or to travel to another area in Canadian waters in accordance with any instructions the minister may give regarding the route or manner of proceeding. Ministerial directions to vessels may be made where there are reasonable grounds to believe the vessel is a threat to the security of any person or thing, including any goods, vessel or marine facility.

Clause 27 of Bill C-4 would amend section 17 of the MTSA which sets out the penalties imposed on operators of vessels that contravene ministerial directions and significantly increases the maximum fines for individuals or corporations and the maximum period of incarceration for individuals. In addition, clause 27 would create a new distinction between a first contravention and subsequent contraventions imposing higher penalties for second or subsequent contraventions of ministerial discretion.

I have a reason for mentioning that particular clause of Bill C-4. On Friday, September 30, a headline in the Nanaimo Daily News read, “Derelict Ship Will Stay in Nanaimo for Six Months”. It goes on to state:

The MV Sun Sea, a derelict ship used to transport ethnic Tamil migrants to Canada, will remain tied up at the Nanaimo Shipyard for at least another six-month term.

...that has been tied up at the shipyard for almost a year, stay in Nanaimo until at least March 2012.

The rusting 193-foot ship was intercepted by federal authorities on Aug. 13, 2010, off B.C.'s coast after three months at sea.

There are a couple of pieces to this.

First, there are smugglers and, as the member for Trinity—Spadina pointed out, there is already adequate legislation in place to deal with the smugglers. Therefore, why are we using Bill C-4 to punish the refugees? These smugglers put refugees at high risk in dangerous transport. We really need a refugee system that is more able to deal with people who are in fairly desperate situations and want to come to our country.

The other piece, as we see with the MV Sun Sea, is that once these vessels arrive in Canada and become derelict, it remains to the community to attempt to deal with them. Although the Nanaimo Shipyard is monitoring the vessel daily to ensure there is no environmental danger to local waters, we now have a derelict vessel sitting in a Nanaimo Shipyard. In fact, the taxpayers are actually footing the bill for this. What we really need is meaningful legislation to deal with derelict vessels, which is a little aside to this. Once again, I call up on the government to support Bill C-231.

When it comes to people arriving by sea, other countries have tried similar laws. I have a note here that states that similar laws in Australia have met with opposition from Amnesty International, which has started a campaign to tackle the same misinformation surrounding refugees who arrive by boat. The rethink refugees campaign highlights the fact that it is legal under international law to arrive by boat and that the vast majority of those who do are in fact legitimate claimants.

We have heard the New Democrats speak in the House about the Canadian experience with the Vietnamese refugees, the boat people. We know that the Vietnamese people were accepted as refugees and became a very important part of many of our communities.

In the time I have left I will talk about a couple of other problems with the bill. In analyzing Bill C-4, one of the problems is designated claimants. The minister would be able to designate a group of refugees as an irregular arrival if he or she believes that an examination cannot be conducted in a timely manner, or if it is suspected that people are being smuggled for profit or a criminal organization or terrorist groups are involved in the smuggling. Designated claimants would then subject to all kinds of special rules. One of the concerns with that particular aspect of the bill is that it would create two classes of refugee claimants.

With regard to detention, designated claimants, including children, would be mandatorily detained on arrival or on designation. There would be no review by the Immigration and Refugee Board on their detention for a year. Release would only be possible if they are found to be a refugee, if the IRB orders their release or he minister decides that there are exceptional circumstances. However, I have a note indicating that the IRB cannot release a person if the government says that the person's identity has not been established. Even then, the IRB cannot intervene.

The concerns are that there are clear violations of the charter. The Supreme Court has already struck down mandatory detention without review on security certificates. It would imply indefinite detention on the basis of identity with no possibility of release until the minister decides that the identity is established. Arbitrary detention is also a violation of a number of international treaties.

There are a number of other clauses but I want to touch on the appeal aspect. Decisions on claims by designated persons could not be appealed to the Refugee Appeal Division. This is a discriminatory practice and risks violating provisions in the refugee convention, similar to the government's attempt to exclude nationals from designated countries from the appeal in previous legislation.

The next concern is the humanitarian compassion applications. Designated persons could not make humanitarian compassion applications or apply for temporary resident permits for five years. The concern with this particular aspect is that this would be an undue barrier for humanitarian and compassionate claims. It may be a violation of the Convention on the Rights of the Child since there would be no opportunity to consider the best interests of the child.

Another concern is the retroactive designations. The minister has been able to make retroactive designations for arrivals in Canada since March 31, 2009. For example, people on the Sun Sea, which I mentioned, could be designated. It makes no sense that someone can go back retroactively and impose that kind of penalty on people.

The New Democrats are not alone in raising concerns around this legislation. A news article in Embassy highlights a group of lawyers and others who have come together to highlight the problems with this legislation. This article in Embassy states:

The group wants to act “as a strong counter balance” to “current policy trends seeking to limit refugee rights in Canada,”... “More than ever, lawyers and academics across Canada must coordinate their efforts to protect human rights, preserve the Charter, and defend asylum seekers,”....

The article goes on to talk about the definitions around human smuggling and the fact that human smuggling has already been covered in other parts of the legislation.

I urge members of the House to vote against this bill and take a serious look at the real problems with our immigration system.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I thank the member for her comments, although I would like to point out that most, if not all, of what she said is inaccurate.

I will point out a couple of examples. She spoke about the Vietnamese boat people as somehow being analogous to smuggled illegal migrants coming to Canada. That is an insult to the Vietnamese boat people, who fled Communist persecution in Vietnam, went to regional processing centres established by the United Nations High Commissioner for Refugees in Southeast Asia, submitted their claims for assessment, were determined to be convention refugees by the UNHCR and were then referred for resettlement by the UNHCR to countries like Canada, which invited them to come here in an orderly fashion.

That is how the international refugee protection system is supposed to work. It does not work by paying smugglers up to $50,000 to bypass the system, in this case often going from Tamil Nadu in India to Thailand or Malaysia and then to Canada, bypassing 24 other countries and multiple regional protection opportunities--and by the way, where is the persecution in Thailand?

She also mentions the charter. All it requires is that an oral hearing on credibility be granted before a decision-maker by the asylum claimant, which in the bill is a right that would be afforded to all, even to smuggled migrants.

Finally, it does nothing to violate the refugee convention because it fully respects our obligations of non-refoulement under the convention. We would not return anyone who has been deemed by our legal system to face danger or persecution.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the reason I raised the issue around the Vietnamese refugees who arrived by boat was in the context of the campaign Amnesty International has started in Australia, where it has a Rethink Refugees campaign that is taking the approach that it is legal by international law to arrive by boat. I understand that the circumstances are different from the MV Sun Sea, but we have had a history in the past of people arriving by boat and becoming productive, contributing, important members of our communities.

The plea here is to take a look at the desperate situation that many refugees are in when they try to come to Canada. We truly are a land of opportunity, and it is a chance for us to provide that opportunity for refugees.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, seeing the Minister of Citizenship, Immigration and Multiculturalism across the floor, I would like to ask the hon. member if she would care to comment about the minister's argument that the purpose of the bill is to influence the economic decisions of people who undertake this very dangerous journey across the ocean and to influence the price point.

I am wondering if she thinks any of the people coming across the ocean on very dangerous voyages are really thinking about price points.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I am not sure I can actually say that it will influence the price point for people who are making that kind of decision. Often people are in desperate situations, and I am not sure they will actually sit down and read Bill C-4 before they make the decision to hand across money. Many of them are fleeing for their lives, as my colleague rightly points out.

I know this is a different circumstance, but we have had people apply for refugee status from Colombia, for example, and given the desperation they are facing in terms of what is happening to some of their family members who are still in Colombia, those potential refugee claimants are not going to read Bill C-4 before they make the decision to flee their country. That argument is just not going to wash.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I am glad to have the opportunity to enter into the debate on Bill C-4, Preventing Human Smugglers from Abusing Canada's Immigration System Act.

Let me begin by saying that immigration and refugee issues are top of mind for the people and the community I represent in the inner city of Winnipeg. We are happy to welcome many newcomers. Some came here voluntarily to better themselves, while some were forced to come here to flee persecution in other countries.

My area is a low-income part of Winnipeg and has the most affordable housing, so most new arrivals to the province of Manitoba actually land in my jurisdiction of Winnipeg Centre. It is both a pleasure and a challenge in that, as is the case with many members here, our MP offices become de facto immigration offices. New arrivals do not seem to be able to find the settlement services they need to integrate seamlessly through the immigration system. More often than not, it seems, they wind up in our offices in some level of crisis. Many need our services, and we are happy to be able to provide them when we can.

By way of prefacing my remarks, I should also recognize and pay tribute to the International Centre in Winnipeg, which offers settlement services to new arrivals, both immigrants and refugees.

On my own staff, Vân Nguyen is a woman of Vietnamese descent who was herself a refugee who arrived in Canada as one of the waves of what we called “boat people” at the time. Vân Nguyen worked for Immigration Canada for many years. I am proud to say she is now on my staff and provides necessary services to a great many new arrivals.

Speaking of boat people, I think this debate has become too narrow. As I have watched the debate develop and evolve in the House over the last number of days, we seem to be focusing on boat people as if there is some fear that we are going to be overrun by people landing on our shores in rusty boats and setting foot on our soil and therefore, by the same decision, cluttering up our immigration and refugee system with massive numbers of arrivals coming in this fashion.

That is not really true. I think the minister would be able to verify that a lot more arrivals land at Toronto Pearson International Airport and claim refugee status than arrive by washing up on our shores in boats.

I remember when I was the immigration critic for the NDP in a previous Parliament. It was around the time Chinese boat people were arriving on the west coast of British Columbia after being smuggled by snakeheads. It was a problem, granted, as there were hundreds of people at a time, and it cluttered and clogged our system.

The minister at the time, Elinor Caplan, actually took an all-party delegation of us to China, to the very place that these particular groups of economic migrants came from. They were not refugees seeking a better life in Canada, which we cannot fault them for, but by no means did they really meet the definition of refugees.

However, we went on a fact-finding mission to the very ports where these people were coming from. We even met some people who planned on joining the next wave that was on its way to Canada. We did not meet them in a rice paddy or some kind of peasant's hut; we met them in the revolving discotheque on the top of a high-rise in the village of Fuzhou, which turned out to be a city of five million people.

There are many types of people who seek to arrive here by non-conventional means. It is very hard to adjudicate and triage these people to determine who are legitimate refugees and who are economic migrants who were smuggled here by paying $50,000 to some snakehead, so I am sympathetic to the problem.

What I am critical of is the politics of fear that I believe are being employed as a modus operandi and as a theme, not just to deal with this particular issue but as a motif. It is almost a pattern or a hallmark of this government.

Bill C-10 is probably a good example, or analogous at least, in that in spite of overwhelming evidence that crime is actually being reduced in almost every category and is at its lowest level since 1973, the government of the day would have us believe that we are in such danger of being murdered in the night by some junkie that we have to vote for the Conservatives to protect us from the straw man that they have built up and that they are the only ones who can knock this straw man down.

That seems to be the tone of the debate that is developing here as we deal with refugees: that we are under such danger of being overwhelmed by these hordes of people trying to break through our system and jump the queue and by phony refugees claiming to be legitimate refugees that there is some emergency here and that draconian, drastic action is necessary.

Elinor Caplan took us to China to find out the root of the problem there. I use this as an example of a mature way of investigating and dealing with a problem, and that is what it was: it was not an emergency then, it was a problem, and it is not an emergency now. It is a problem that might be straining our immigration system.

On the same trip, we stopped in Sydney, Australia, and met with the minister of immigration of Australia, who had a much different way of dealing with it. The Australians had no 1985 Singh decision to guide them or inform their policies. They would just simply lock people up.

Everybody who arrived on their shores without any documentation would be held in a pen, essentially, until such time as they could determine what to do with them. More often than not, they put them on the first boat back where they came from, without a whole lot of consideration, I might add, as to what might befall those people at the other end.

That was under Johnny Howard in Australia. Immigration was a tough-love policy, and refugees were not treated with anywhere near the sensitivity we have toward our obligations under UN conventions regarding refugees.

I know the Singh decision has posed challenges for Canada. This notion, and the Supreme Court ruling, is that once people set foot on Canadian soil, they are essentially entitled to the due process of the immigration system in its entirety. They are not detained unless there is some justification to do so and are free to move freely through Canadian society until such time as their status can be determined.

I put it to the minister that there is a much bigger problem with undocumented refugees arriving at Pearson airport. They obviously had papers when they got on a plane. How is it that they do not have any papers when they get off the plane? People are not allowed to get on an airplane without documents. Did they tear them up in the washroom and flush them down the toilet, over the ocean on their way here? Because when they land, they do not seem to have any papers. They are undocumented. Then they are in the system, and then we know this takes years.

That is a problem. That is a legitimate problem.

However, that is not an emergency or a crisis either. It would be disingenuous to try to convince the Canadian people that there is some immigration crisis going on here where, as I say, massive waves of refugees are trying to break through and cut their way through the line.

We only have about, and the minister can correct me, 11,000 or so refugees a year. Or was it 25,000? I cannot remember. I would be happy to have this clarified.

Not enough of them come from refugee camps is what I am getting at. A majority of the refugees who come to Canada do not come to us through conventional channels of waiting in a UN-sponsored refugee camp until their turn comes up and then coming here as per the process. Most refugees do arrive in some unconventional means; they find their own way here. They flee the situation they are in and they arrive in Canada, and we have to deal with them.

However, it is disingenuous and it is, again, that politics of fear that would have us believe we are in some crisis situation that calls for and justifies legislation that has been called draconian.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I always know when I am winning a debate and that is when my opponents completely mischaracterize my arguments as the member for Winnipeg Centre has just done.

Neither I nor any spokesman of the government have ever said that Canada is being flooded by massive waves of ships and unfounded refugee claimants. That is a complete mischaracterization of what we have said.

What we have said is that it is critical that we maintain the fairness and integrity of our immigration system and that large-scale human smuggling does represent a threat to the integrity and fairness of our system. It is a commercial transaction where people pay criminal gangs, that is what the smuggling syndicates are, large sums of money, committing in this case up to $50,000, to come to Canada ahead of the normal immigration queue.

Friends in the opposition say that there is no immigration queue. That is not true. The member just pointed out the fact that millions of people are waiting patiently for resettlement opportunities, who are designated convention refugees that at UNHCR camps around the world, some 12,000 of whom we accept.

The member has said that we are getting 11,000 refugee claimants per year. That is not so. Last year we got about 29,000 asylum claimants. Two years ago it was 38,000 asylum claimants. We are always in the top three industrialized countries in terms of the number of asylum claims filed, about 62% of which are determined to be unfounded.

I am just bringing some facts to the debate.

Does the member not agree that we should take reasonable measures that respect the charter and respect the UN convention on refugees that disincentivize people from paying smugglers to come here in this dangerous and illegal way?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I thank the minister for clarifying the numbers of refugees. I think the minister is aware, as members should be, that sometimes as many as 500 people in a single day get off airplanes at Pearson Airport and claim refugee status. If there is a problem anywhere, it is the undocumented refugees who arrive by air, one at a time. It is not those group sailings that seem to be the focus of the minister's efforts to date. He said that it is a potential problem, but it is not a daily issue that a boatful of people is smuggled into Canada.

The government is overreacting with this legislation because in fact legislation already exists. There can be a sentence of life imprison for human smuggling already. The government is introducing mandatory minimum sentences again. It is introducing measures that experts in the field find abhorrent and unnecessary. It is going over the top.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the member for Winnipeg Centre has a way to express how he really feels on issues.

I feel fairly passionate, as I am sure he does, as many members do about Bill C-4 and how we have the refugees being the victims. We are talking about victims twice over.

In fact, the on the ship on which the minister and the Prime Minister were standing, I believe there were 75, 76 individuals who were seeking asylum. I believe they have all been granted that asylum. That image—

[Jason Kenney, Conservative, Calgary Southeast, AB]

No, none have.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

The minister says that none have. We will have to wait and see.

Does the member believe that the proposed desired impact of the minister is to get at the profiteers? Does he believe that this legislation will do what the minister wants it to do, and that is to get at the profiteers, or will it cause our refugees to be victims twice?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I thank my colleague from Winnipeg North who I know deals with at least as many immigration cases on a daily basis as my overworked office does.

First, I do not understand the government's priorities, that in the first session of the 41st Parliament one of the most top-of-mind paramount issues is cracking down on a problem that by the minister's own admission is only an occasional issue.

There are far more immigration problems associated with, for instance, crooked immigration consultants domestically, charging $3,000 to get a form that is available free of charge at the post office or charging $500 to some poor person, saying that they can get them into the MP and get a letter. That kind of crooked behaviour is rampant through the immigration consultants in our country.

Honestly, our energies would be better used addressing some of those domestic problems.