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 find it amazing that a Conservative member of Parliament would stand, read a statement and then sit down and it is supposed to be a question. It is the Conservative line. The Conservatives know what it is they want to say. They know what it is they want to tell Canadians in terms of the props. I would suggest what they are really doing is promoting prejudiced attitudes to the detriment of our society as a whole especially going forward.

There is nothing wrong with refugees. The message the government is trying to give to a selected percentage of the population is that Canadians should have this fear factor about refugees. If this bill had been in place three or four years ago, would it have made a difference? This legislation would not have made one ounce of difference. What it does is it plays upon people's fear.

The member spoke so well with regard to Bill C-4. Would he agree that the legislation fuels prejudice more than it attacks the profiteers and human smugglers?

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I want to thank the hon. member for his very astute comments and his question. Unfortunately, all this bill does is attack the wrong people. Obviously there are problems, as hon. members have already mentioned. In addition to being exploited by smugglers, the refugees are already victims in their own countries, where they suffer persecution. As a result of this legislation, when they arrive in Canada they will suffer again because of the mistreatment and categorization by the Conservative government. That is very bad.

Refugees need to be seen as victims and they need to be helped. We have to stop seeing them as criminals, which they are not. They are victims. Many agencies and groups agree with the NDP that this bill makes no sense. Allow me to name a few: the Canadian Council for Refugees, Amnesty International Canada, the Canadian Civil Liberties Association, the Canadian Bar Association. I find it hard to believe that all those people do not know what they are talking about.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, in standing to speak to the bill, once again I come up against a problem that we have in Parliament. I find it difficult to understand the motivation of the government moving forward with legislation. The parroted answers government members give to questions and their very carefully controlled speeches do not provide us with much of their motivation. In many cases we end up trying to find the motivation of the government in this endeavour.

We have good legislation that could be applied to human smugglers. We know how to deal with them. What is it that the government is trying to accomplish with Bill C-4?

I have a list of 80 organizations that deal with immigrants in Canada and they are all opposed to the bill. I have not seen the government come up with a list of organizations that support it in its efforts. Why not?

[Scott Armstrong]

Every poll supports it.

[Dennis Bevington, NDP, Western Arctic, NT]

They say that millions of Canadians are supporting them. Millions of Canadians do not understand the Conservatives' motivation either, and the people who attempt to understand their motivation tend to understand that the bill is not a good idea and it should not be supported. Why is that?

Canada has a great reputation with regard to immigration. We bring in lots of people, but we have a point system that very clearly sets certain standards for people who come into this country. We have decided that we want the best the world has to offer in terms of the people who come to this country.

Lately we have not received many refugees. Refugees do not come under the point system in the same sense that immigrants do. We have a system which in the past has allowed quite a number of refugees into Canada. Canada has been a haven for refugees from around the world. This is good, but what will happen with this legislation that has been put forward by the Conservatives?

When the world's population understands what this new legislation that governs how refugees are treated in Canada, what will that do for the perception of individuals in a war-torn country who have to make a choice about where they should apply for refugee status? What will that do? It will send a message to those refugees that they had better watch out if they come to Canada, because if they do anything wrong to get here, anything we can interpret as illegal, they will be under severe distress. There will be no recourse. They will be in trouble.

I am the son of a refugee. My mother was brought to Canada by my grandmother from Russia, after the Russian revolution. All the family my grandmother had in Russia was wiped out. She escaped. After her death I found a birth certificate. We think it was forged. She used a forged birth certificate to come to Canada because she had no alternative. She had to get through what was a very difficult time in this world.

If that had happened today and my mother was a child of that refugee who came to Canada with papers that were forged, under illegal circumstances, they would be put into detention.

What did happen under the old system is that they settled in western Canada and became great members of our society, pillars of the community, good people with a grandson in Parliament who is able to speak up for that type of person, who is able to stand here and talk about that kind of person.

What are we doing here? We are going to limit refugees coming to our country by their understanding of our laws passed here in Bill C-4. This is going to change the way refugees view Canada in a serious way. We will turn our backs on many people in the years to come.

We will continue to bring in the immigrants we want, the ones who meet our classification, the ones who are the cream of the crop, the ones we think will do well for our economy and our society, and that is great. That is wonderful.

However, for those who are escaping from war-torn countries and have to do whatever it is they have to do to get into another country are going to be under some duress. If they are poor and if they have to rely on others to assist them in doing this, if they have to get on a boat with 50 other people, they will be putting themselves in distress by Canadian law. That is a pity.

It is shocking that Canada is going to turn in this direction under the Conservative government. Eighty groups say not to do this. Where is the support of learned Canadian society for what the Conservatives are doing here? It does not exist because Canadians by and large are compassionate and understanding. The learned ones are that way, too. We have a situation where the learned are not on side. The Conservatives say that Canadians are on side but there is no evidence of this at all, none at all; it is simply made up.

Operating by emotion alone, the Conservatives are making decisions about the future of this country and how we deal with issues. That is the wrong way to govern. We have seen this two or three times already since Parliament reassembled with the new majority. We do not have the ability that we did in the last Parliament to stop some of this stuff. We will have to rely on public opinion to change it.

[An hon. member]

Public opinion is on side with exactly what we are doing.

[An hon. member]

The poll was on May 2.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, the Conservatives say that we are going to lose this one. No, we will not. The Conservatives will lose one four years from now because of the things they are doing. The things they are doing now will come home to roost in four years. It will all add up and Canadians will understand what is going on here with this type of government action.

I do not have much more to say about this bill. My colleagues have laid out the conditions of this bill in good fashion. The Conservatives should think hard about what they are doing to the nature of this country, the country in which my grandmother and mother found refuge. Unfortunately, that refuge will not be as available for others.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, in this speech from the NDP opposition again we heard the innuendo that somehow Canada is losing its place of respect on the international stage in how it deals with refugees.

The member asked what message we are sending and what is going to happen now. I remind the member and indeed all Canadians that the Balanced Refugee Reform Act, which a previous colleague of his implied has not come into law, came into law in June. It received royal assent on June 29 at 5 p.m. That act actually increases the number of refugees Canada receives each year by 2,500.

This is the kind of message the international scene is receiving. This government is standing up for refugees. We want refugees to be welcomed into this country, but we want to be sure that the refugees, the asylum seekers we are accepting are actually refugees.

What is so wrong with having public safety officials determine that the people who are seeking refugee here are in fact legitimate refugees?

[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.