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.

Bill C-31--Time Allocation Motion

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Speaker, first of all, I hear implicit in that question an acknowledgement from the hon. member, which I appreciate, that time allocation is a legitimate tool in managing legislative business. I think what she is questioning is under what circumstances it is used. She suggested it ought not to be used unilaterally. I would submit that by definition, it is the government that has the responsibility for moving forward a legislative mandate and government orders which must trigger and vote in favour of time allocation when it is used, as was the case under the previous Liberal government and would be the case under any future Liberal government.

On the substance of this, let me clear. In the last Parliament we had dozens of hours of debate on the human smuggling provisions now found in Bill C-31. Canadians were frustrated that the opposition refused to allow those measures to be adopted into law. We had an election. The Conservative Party made legislation to combat human smuggling a key priority in its platform. We had television advertisements on it. The Prime Minister spoke about it across the country. That constituted part of the democratic mandate that we received.

Then we brought in Bill C-4. We had dozens of hours of debate on that bill and faced another opposition filibuster. Now we have included those measures in Bill C-31 and we know perfectly well what will continue if we do not use time allocation.

Just in this Parliament already we have had 18 hours of debate on the human smuggling provisions, 73 speeches and, I would submit, probably more in the previous Parliament. There has been already more than ample debate on these measures. It is time for us as a Parliament to act to combat human smuggling and to keep our commitment to Canadians to do it.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Speaker, quite the contrary. The hon. member is wrong because a number of measures in Bill C-31 were included in Bill C-4, which the current Parliament has debated for dozens of hours.

Indeed, we saw the official opposition's clear intention to filibuster in order to prevent the introduction at second reading of a motion to refer the bill to the standing committee. That was clear. The opposition members have already had dozens of hours to continue their filibuster on the measures to fight criminal networks that organize human smuggling.

We have to focus on the substance of the bill. It is very important for fighting criminal human smuggling networks. Human smuggling is a dangerous trade that kills thousands of innocent people every year. We have introduced reasonable measures to combat human trafficking.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So if I understand correctly, the scope is broad enough to provide for electronic monitoring, giving the Canada Border Services Agency the authority to require people to wear an electronic monitoring bracelet.

I was also wondering if you could give us some insight into the recently introduced Bill C-31. Bill C-4 appears to have been amended slightly and incorporated into Bill C-31. As I understand it, adults coming to Canada as part of an irregular arrival could end up in detention. Children, however, would not be subject to such detention, which could last up to a year, according to Bill C-4, which I studied at the time.

Protecting Canada's Immigration System Act

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Madam Speaker, I will be sharing my time with the hon. member for Laurentides—Labelle.

A policy without justice is an inadequate policy. Bill C-31 completely jeopardizes refugee rights. Never in human history have refugee rights been as threatened as they are under the Conservatives and never has our democracy been as discredited as it is under the Conservative government, which is unable to respect the compromises reached in consensus with the other parties.

The government seems to forget that our ratification of international conventions on refugee rights and human rights requires us to bring our laws and policies into line with the provisions of these international conventions.

Canada is a signatory to the 1951 Geneva Convention on Refugees. Bill C-31, intended to protect Canada's immigration system, respects neither the spirit nor the letter of the Geneva convention. Having read the bill, one wonders whether the Canadian Charter of Rights and Freedoms, adopted by the House in 1982, is still in effect in Canada.

Let us not forget that Bill C-31 is an omnibus bill, which seeks to amend the Immigration Refugee Protection Act by unfortunately incorporating into Bill C-4 the most unreasonable provisions of the former Bill C-11, which received royal assent in June 2010.

The government had three main goals in mind for this bill: revoking the majority of the compromises included in the former Bill C-11, Balanced Refugee Reform Act, which received support from all the parties; reintroducing Bill C-4, the Preventing Human Smugglers from Abusing Canada's Immigration System Act; and finally, introducing the use of biometrics into the temporary resident program.

Bill C-31 raises some serious concerns in addition to the those already raised by Bill C-4, the unconstitutional nature of which we have raised and highlighted in our previous interventions.

In my speech today, I would like to draw the attention of the House to some of the concerns that Bill C-31 raises. In reaction to the introduction of Bill C-31, the Canadian Association of Refugee Lawyers says that like the sorry Bill C-10, Bill C-31 is extremely complicated.

The most draconian measures in Bill C-4 have been integrated into Bill C-31. Let us look at a few examples. Bill C-4 provided for mandatory detention for one year for people fleeing persecution in their country of origin and entering Canada without identity documents in their possession. Also, Bill C-4 eliminated review of detention for refugees who are smuggled into Canada.

The provisions pertaining to detention found in Bill C-4, which are being reintroduced in Bill C-31, are a direct violation of our Constitution. Furthermore, the jurisprudence constante of the Supreme Court is categorical in this regard.

Why are the Conservatives attempting to put themselves above the rule of law, which is a key principle of our democracy, even though they are familiar with the precedents of our high court? Why are they attempting to mislead the House by proposing that it pass laws that they know violate not only our Constitution, but also the Canadian charter and human rights conventions that our country has signed? Pacta sunt servanda is a principle of international law. Signed conventions have to be respected.

Furthermore, lawyers specializing in refugee rights have said that they are deeply troubled by the short time frames that Bill C-31 gives refugee claimants to seek Canada's protection. They find that Bill C-31 drastically changes Canada's refugee protection system and makes it unfair. Bill C-31 imposes unrealistic time frames and unattainable deadlines on refugee claimants and uses the claimants' inability to meet those deadlines to exclude them from protection.

In fact, under the terms of Bill C-31, refugee claimants have only 15 days to overcome the trauma of persecution, find a lawyer to help them, gather the documentary evidence to support their allegations, obtain proof of identity from their country, scrape together the money for legal fees, present an articulate and coherent account of their life, and so forth.

Is there a woman who has been raped and traumatized who would be willing to tell her story to a stranger? I am a psychologist and I know that is impossible in the time provided.

Unsuccessful refugee claimants will have 15 days within which to file an appeal under Bill C-31. As everyone can see, the time frames imposed on refugee claimants are not long enough to allow them to make full answer and defence.

Under our justice system, the greater the risk to life, the longer the time frames given to the person being tried to prepare his defence. Bill C-31 does not respect this principle of fundamental justice.

I am also deeply concerned not only about the new term—designated country of origin—that Bill C-31 introduces into our legislation but also about the undemocratic nature of the process for designating the countries in question. Under Bill C-31, the minister alone has the power to designate safe countries of origin, without first defining the designation criteria for these countries.

According to the Canadian Association of Refugee Lawyers, the designated safe country list and the unilateral power granted to the minister dangerously politicize Canada's refugee system.

Refugee claimants who are on a designated safe country list have even less time to submit their written arguments and will not be allowed an appeal.

Bill C-31 also relieves the minister of the obligation of justifying why a country is safe and considering the differential risks that certain minorities face in a country that is safe for others.

If Bill C-31 is passed, refugees will become more vulnerable because their fate will depend on the political whims of the minister and the government. Failed claimants from designated countries of origin can be deported from Canada almost immediately, even if they have requested a judicial review of the decision. In other words, a person can be deported before his case is heard.

This shows us that the government has no understanding at all of the Geneva Convention relating to the Status of Refugees, which was adopted on July 28, 1951. The convention insists that the individual concerns of victims of persecution be taken into account. The Geneva convention does not state anywhere that international protection is granted to the victim of persecution based on the country in which the persecution was experienced.

Persecution of religious minorities does not occur solely in non-democratic countries, nor does discrimination based on sexual orientation occur solely in non-democratic countries. Race-based persecution can happen anywhere in the world. All signatories to the European Convention on Human Rights are democratic countries, but the jurisprudence of the European Court of Human Rights is teeming with rulings that condemn democratic states for abuses of individual rights.

If that is the case, by what objective criteria can the minister deny a person international protection based on the fact that he or she is from a particular country and claims to have been persecuted because of his or her sexual orientation or religion?

The process of designating countries of origin is not carried out by an independent, democratic entity. The government is judge and jury. It has the power to designate countries of origin considered safe, and it has the power to refuse protection provided for in the Geneva convention on refugee status without examining the merits of a given case.

I would also point out that under subclause 19(1) of Bill C-31, the government can, if it chooses, withdraw the international protection due to victims of persecution on the grounds that circumstances have changed in the refugee's country of origin. Under this provision, the government could now decide to send people to whom it granted international protection during the first and second world wars, for example, back to their countries of origin.

Subclause 19(1) also adds new terms to the section concerning loss of permanent resident status. It states that the existing criteria for withdrawing protection from asylum seekers can be grounds for loss of permanent resident status.

I will conclude with one final concern about changes that Bill C-31 makes to claims made on humanitarian grounds. Such claims enable a person to stay in Canada even if he or she is not eligible on other grounds. Unfortunately, under Bill C-31, applicants awaiting a refugee appeal division decision cannot simultaneously apply on humanitarian grounds.

This bill is unjust and cruel. It is antithetical to Canadian values of compassion for victims of persecution, and it must be defeated.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

You're familiar, obviously, with Bill C-4, which has now been incorporated into Bill C-31, the new immigration bill. Under Bill C-4, one could envisage groups of refugees being in detention, perhaps for as much as a year, as I understand it. Would you see that maybe in those cases where, for example, you have a family that's in detention, short-term electronic monitoring would be a way to keep them out of detention? Do you think the government might go in that direction?

It has been raised in the media that instead of keeping people in detention they could maybe be monitored for a while. Would you be in favour of that? Would you see that as cruel or would you see that as better than being in detention for up to a year?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, there is much in this legislation that is deeply concerning to me and other members of the Green Party across Canada. I know the parliamentary secretary has referred to what happened in previous Parliaments, but I was not in the House at that time. However, I am deeply concerned about the approach that will be taken on refugees who arrive by what is called irregular entry.

Since Bill C-4 was introduced earlier this year, Bill C-31 appears to subsume Bill C-4 and provide it in a different fashion. I note now that we will not be interning children under 16 years of age, but what will happen to refugee families that arrive on our shore? Apparently, parents and anyone over the age of 16 who arrive at our shore will to be interned for a year. What will happen to children under the age of 16?

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Madam Speaker, I would like to say that in the riding I have the pleasure of representing, there are many people with refugee status. There is a lot of confusion, and many people are worried. These people's stories are disturbing, and I am very upset and worried about them.

I have a question for my colleague from Winnipeg North because he is a member of the Standing Committee on Citizenship and Immigration. First there was Bill C-4, which was studied in the House. Now we have Bill C-31, and before that, there was Bill C-11. Is my colleague concerned that all of these changes will make the refugee claim process even more cumbersome?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I do not blame the Minister of Citizenship, Immigration and Multiculturalism for getting a little excited about that particular statement. Here is a response to the government on Bill C-31, a quote that makes reference to Bill C-4:

—[The] proposed mandatory, unreviewable, warrantless, year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms.

This is not coming from the Liberal Party but a third party stakeholder that is trying to give advice to the Minister of Immigration . It is like talking to a brick wall. The minister has his own personal agenda and it is one that I do not think most Canadians would support.

I would like to read some comments made about Bill C-4 in some letters from Faith Academy school:

I urge you to take a tremendous stand against this bill.

Another reads:

You have to understand that the main reason refugees leave their countries is because they seek shelter from abuse, persecution and civil unrest. However, under this bill, refugees—including children—are only subjected to more persecution, fear of authority and denied rights.

If Canada's main concern truly is catching smugglers, why create a bill that only appears to punish refugees? Instead, let us join together in creatively seeking a way to deter smugglers without victimizing legitimate refugees.

That is a profound statement that the minister should really listen to.

I will read some more: “The bill forces refugees to be detained and they have come from their poor quality of life only to enter a similar one. Surely we have more integrity than that. There must be a more efficient way to keep track of them. Also the rule that the family can't come for five years after the refugee is allowed is absolutely absurd.” Another says, “I think let them come but make them wait for a certain time to gain residence, but the time should be reduced. Like what if you had to be put in that situation? Think it's still right?” A further one states, “The protection they wanted for Canada is great, but making other people and even innocent children feel like they are criminals or are committing something wrong is unfair.” Finally, “Bill C-4 is a punishment to refugees and is discriminatory since they will serve a mandatory sentence of one year and they will be denied the right to family reunification for five years.”

These are letters by young adults at Faith Academy school who have actually taken the time to read Bill C-4 and to voice their concerns regarding it.

I could go back to some of those statements by the Canadian Association of Refugee Lawyers. I mention the word “lawyers” and the minister laughs. I would suggest again that the minister would do well to listen. The association states:

Refugee claimants who are put on the designated safe country list are subjected to even shorter deadlines to submit a written claim, and will not have access to an appeal.

The Minister need not justify why he deems a country safe, nor does he have to take account of the differential risk faced by certain minorities in a country that is “safe” for others. Refugees will be vulnerable to the political whims of the Minister and the government.

The last time I had the opportunity speak to the bill, I challenged the government in my question to the minister. It was a very telling picture for me when I saw in a newspaper the minister, along with the Prime Minister, standing on the back of a ship, the Ocean Lady, making a statement.

He did it again today. At the beginning of his speech, he made reference to the fact that illegal immigrants pay to be brought here on two large ships, with a high number of bogus claims. He likes to refer to those queues, which is, I argue, the demonizing of the refugee.

He went on a boat with the Prime Minister and he talked about profiteers and how the government would get tough on human smugglers. This bill would have more of an impact on refugees. In essence, individuals are leaving their countries and putting their lives in danger by getting on some of these crafts to come to Canada. They leave for a wide variety of reasons. Their lives might be in danger. Who knows? At the end of the day, they are putting their lives at risk in order to land on our shore. The minister said he does not mean just boats. It could be people arriving by plane or car. The minister said the first thing to be done is to put these people in detention.

The last time I spoke on this bill, there was a lot of discussion about how to justify putting a 14-year-old or an 8-year-old in detention. To the minister's credit, and I do not give him very much credit, but in this case I will give him some credit, he said people under 16 years of age will not be detained. I am not 100% clear. I think he attempted to address it in his remarks. How does that apply if it involves a family? I believe he said it is only youth who are 12 or 14 years old and might not have a parent who would not be held in detention.

I was a little more clear going into this debate than I am now, because of the minister's remarks. I would look to him to provide some clarification. In terms of the legislation, the government is still saying one year of detention. That is fairly strong in terms of charters, constitutional rights, et cetera. We believe the government is moving in the wrong direction and there has to be an alternative.

The minister is often quoted as referring to or implying the notion of bogus refugees. I have had the opportunity to speak with refugees. Many people come to Canada with genuine fears. Just because they might not necessarily meet the criteria of refugees does not mean that they come to Canada wanting to commit fraud. When we start to label people by saying bogus, it is to the detriment of the refugee community. The minister needs to seriously consider how he chooses his photo ops when he talks about human smuggling, for example, or when he makes general statements about bogus refugees. His definition might not necessarily be the same definition as the many individuals who come to Canada fleeing persecution.

There was another issue that the critic for the New Democrats raised that I want the minister to comment on. It is incorporated in this particular bill and it is the biometrics.

We have been looking into this issue at the citizenship and immigration committee. Individuals have come before the committee to make presentations. Now the minister has brought this in out of nowhere and put it into the legislation. Some might argue that he undermined the work of the citizenship and immigration committee. There is some very strong merit in that argument.

We had another review to deal with the backlog of immigration. On November 4, halfway through it, the minister announced a freeze so that people could not sponsor their mom and dad from India or the Philippines or any other country for at least two years. He said we were not to worry because the government has this super visa program, which would compensate for the freeze.

The government has abandoned the whole concept of family and the valuable role that plays in the mixture of immigrants to Canada. We oppose this. What amazed me was that the minister announced the 10 year super visa, and then on December 1 he provided the details of the program.

Initially I was quite supportive of the concept of the super visa. However, the details of it probably excluded the parents of over 80% of immigrants because of the financial and health requirements put into place by the government. I would argue it was ultimately a manipulation. Much like with biometrics, this was another attempt by the Minister of Citizenship, Immigration and Multiculturalism to undermine what the citizenship and immigration committee was doing.

I look to the government, and in particular this Minister of Citizenship, Immigration and Multiculturalism, to reassess what it is actually doing within the immigration department. There is a need for change. We recognize that. When asked, for example, about the role biometrics could play, we believe that biometrics can play a role. We were quite willing to discuss this, and to hear what other Canadians and other stakeholders had to say on the issue. That is why we ultimately supported the committee to deal with that issue.

There is strong merit for biometrics. The minister himself has made reference to them, in terms of individuals who were able to come to Canada, put in a claim, leave and re-enter. There is no doubt biometrics would deal with issues such as that. There is no doubt that countries around the world are trying to get a better sense of the role of biometrics in a nation's security and the integrity of our immigration system, not only for refugees but also for temporary visas for visitors, students or possibly workers. We are open to that.

We are surprised that the minister would have taken this time to bring in that legislation when in fact we have a committee that is supposed to be studying the issue. One could ultimately ask why we are looking at that issue if in fact the minister seems to be going in a certain direction.

That brings me right back to some of my opening comments.

We in the Liberal Party believe that there has to be due process. We need to ensure that there is an appeal mechanism that would enable people to be in Canada while that appeal is being heard. That would not happen under Bill C-31.

We would like to see the minister make the change that he previously agreed to. He acknowledged that there was value to it. We would like to see that change.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I will inform the member that it was actually a Liberal government that brought it in, but if the member for St. Catharines wants to try to take the credit for that, I will give him some credit.

What the government can take credit for is the huge backlog of refugees that has been generated. Remember that it was the Conservatives who did not fill the necessary positions at the refugee board to hear the numbers, and that is what started the backlog in the refugee system. Yes, improvement has been needed but members will find that through the years there has been movement, with a good mixture of immigrants and a progressive immigration policy that includes refugees.

We in the Liberal Party value the contributions that refugees make to our country. We have had refugees who have made it to Governor General of Canada, and to every economic, business, societal, non-profit and for-profit organization. Ninety-five percent plus of refugees who settle here in Canada go on to contribute immensely to our country and nation. We recognize that and are not scared to talk about it. The government and this minister in particular, on the other hand, have a totally different objective, an objective that demonizes the refugees in our great country.

The Liberal Party does not support Bill C-31, and for a good reason. Bill C-31 is in essence Bill C-4 and Bill C-11, with one major compromise in Bill C-11. The compromise took out the idea of an advisory group that would determine and advise the minister on which countries would be on the safe list. That was good enough when the Tories had a minority government but now that they have a majority government, they are going back to the Reform ways in how they are trying to deal with refugees in our country.

The minister wants to say what is a safe country. Think of the consequences of that. The minister wakes up one day and says that country X is no longer a safe country. As result, someone who comes from that country and claims to be a refugee will in all likelihood be gone before any sort of an appeal can be heard. That person will not even be in Canada but will have had to leave the country in order to make any sort of appeal.

The minister also wants to say who is an irregular arrival. That goes back to Bill C-4. There have been arguments about that. I know the minister will often write off the Liberal Party or the New Democrats as just being the opposition speaking. I would like to provide a specific quote about the government's behaviour on that particular line, and this comes from lawyers across our country.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, it is true that the Bloc did play an instrumental role in building Bill C-11 in the previous Parliament. It is only fair to point that out.

It does seem like the government is trying to target refugees. One of the problems with Bill C-4 is that although it is directed punitively at human smugglers, it actually penalizes the refugees. That is what everyone is pointing out.

What happens if a refugee comes here? We will lock them up. We will prevent them from sponsoring their family for five years. We will prevent them from making an appeal application for five years. That is not targeting the smugglers but the refugees.

That is the problem with this bill. This bill also prevents someone from making a humanitarian and compassionate claim for up to one year, and it forces someone who arrives on our shores to make an election within 15 days between whether they make a refugee claim or a humanitarian and compassionate claim. These are people who often cannot speak English and have no access to legal advice. This is another serious structural flaw in the bill.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am pleased to stand and debate this bill and present the position of the official opposition, the New Democratic Party of Canada, on Bill C-31, improperly and inaccurately named “protecting Canada's immigration system act”, because this bill would do damage to Canada's immigration system legally, socially, morally and internationally.

I want to talk about the omnibus nature of this bill which, just from a structural point of view, is something that is a disturbing feature of the Conservative government. Canadians saw already in this Parliament, the government take nine separate pieces of serious and complex crime legislation and put them into one omnibus bill and then put that before parliamentarians to discuss and debate. Now we see the minister take two separate major pieces of legislation, as well as another serious issue, which is that of biometrics, and combine those into one bill.

For Canadians who may be watching this, I want to explain a bit about what those bills are. By introducing this bill, the minister has taken Bill C-11, which was introduced in the last Parliament, debated, went through committee, was amended and passed in this very House, went through all three readings at the Senate committee and passed there, received royal assent and was waiting to be implemented this June, and the minister has stopped that bill from being implemented this June. I will tell members a bit more about what the minister had to say about that bill in a few moments. That bill was geared toward reforming Canada's refugee system.

About that bill, in June 2010 the minister said:

We have, in good faith, agreed to significant amendments that reflect their input, resulting in a stronger piece of legislation that is a monumental achievement for all involved.

These amendments, I am happy to say, create a reform package that is both faster and fairer than the bill as it was originally tabled.

Those were the comments by the Minister of Citizenship, Immigration and Multiculturalism on Tuesday, June 15, 2010. The minister has now taken the original bill that he had tabled in the previous Parliament, before those amendments that made it fairer and faster, and has thrown the amendments in the garbage and reintroduced the original bill, the very bill that he said was inferior to the amendments that were made by all parties of this House. The minister has, not unsurprisingly, neglected to explain that.

In addition, one of the first bills the Conservatives introduced in this Parliament was Bill C-4, again inaccurately and unconscionably titled a bill concerning human smuggling. It has been going through debate in this place but the minister has taken that bill and put it into this current Bill C-31. There is no explanation as to why he would take a bill, which has already been introduced and is moving through the system, slow it down and put it back into this legislative process, basically putting us behind where we would have been. I have a theory as to why that may be the case. Bill C-4 has been roundly condemned by virtually every group and stakeholder involved in the immigration system in this country, from lawyers, refugee groups, churches and immigrant settlement services across the board. I cannot name any group that has sent any message that it supports Bill C-4.

As well, the government has taken another issue, biometrics, and put that into the bill. What is puzzling about that is that approximately 30 days ago we commenced a study in the Standing Committee on Immigration and Citizenship on biometrics. We have had a handful of meetings and are in the middle of our study of biometrics and the government introduces legislative steps on the very thing we are supposed to be studying. I wonder what that says about the government's view of the work of standing committees and the experts and witnesses who appear before our committee when it actually comes to a conclusion before we have heard all the evidence.

I want to talk about the substance of Bill C-4. Bill C-4 was hastily drafted by the government when Canadians witnessed the spectre of two boats coming to the shores of British Columbia carrying some of the most damaged and wounded people on earth, people fleeing, as the minister has rightly pointed out, one of the worst civil wars in the world in Sri Lanka.

Some 550 people were on those boats. And, never ones to pass up a good photo op, the Minister of Immigration and the Minister of Public Safety were there doing news conferences outside accusing the people on those boats of being bogus and of harbouring terrorists. They said that publicly. They also accused them of queue jumping.

What anyone going through the immigration system knows up to now is that there is no queue jumping. It is a normal part of our refugee system for people to make their way to a country by regular means and make a refugee claim, and the Minister of Immigration knows that. No queue is being jumped. The Minister of Immigration actually went into immigrant communities where they were suffering long delays in their applications for permanent residency to sponsor their parents and preyed on their frustrations at his government's inability to deal with that backlog and wait time and tried to foster resentment from those immigrants toward these refugees.

We always want to be careful with our analogies but we need to consider the Jews when they were fleeing Nazi Germany during World War II. When they made their way into a neighbouring country through the dark of night, they did not arrive with a visa. They did not come through any UNHCR process because there was none at the time. They just made their way to safety. Those people were not bogus. They were not jumping any queue. They were escaping for their lives. That is what people do and that is what those people were doing on those boats.

To make the claim that those people were terrorists before there was an adjudication is as incendiary and as inflammatory as it is wrong. To this day, of 540 people, none have been deemed to be terrorists. Also, if anyone has any kind of question about their origin, there are less than a handful.

What would Bill C-4 do? It would allow the minister to concentrate his power. The Minister of Immigration wants the power to designate people as irregular arrivals. Under the bill, it just says a group. It does not define how many. We presume it is two or more. What happens to those people? Those people could be detained for up to a year without review.

I will talk about the legality of that. The identical provision has gone to the Supreme Court of Canada in the security certificate cases and it has been deemed unconstitutional, yet the government puts it right back into this bill. Moreover, the minister says that they can come out if they are deemed to be refugees. That is true but that assumes that we have a refugee determination system that would make that determination in under a year. If it does not, people could be stuck in detention for up to a year. Even if those people are deemed to be bona fide refugees, this part of the bill would still prevent those people from being able to make a permanent residency application for five years or sponsor their family for five years. I will say right now that that is a violation of the UN convention on refugees and a violation of the UN Convention on the Rights of the Child.

I will explain for the minister why that is the case. I put the question to him and he avoided answering the question. It is because the UN convention on refugees says that signatories, which Canada is, are not to put penalties on people who arrive at our shores by irregular means. If people who are deemed to be refugees are then prevented from sponsoring their families for five years or prohibited from making a permanent residency application for five years, they are absolutely being penalized because of their irregular entry.

The minister said that if they make a successful refugee claim they would be let out within the year. That is true but what about the five year bans? The minister refuses to answer that. That is the differential treatment of someone who comes through in the other process and it is a violation of the UN convention on refugees.

In terms of the rights of the child, the Ocean Lady and the Sun Sea, the two boats came to Canada's shores, included children who were travelling unaccompanied. The UN Convention on the Rights of the Child obligates signatories, of which Canada is one, to put the best interests of the child first and foremost in our determination, and that includes in the immigration system. If we have a 14-year-old or a 12-year-old child who comes to our country and is deemed by the minister to be an irregular arrival, he or she would be prohibited from sponsoring his or her parents for five years. That is not in the best interests of that child. I say that there is a violation there.

Lawyers across the country from the Canadian Bar Association to the Canadian Association of Refugee Lawyers have all said that the detention without review process will be attacked as a violation of the charter in three different ways. The act will go to the Supreme Court of Canada, mark my words.

Let us talk about the Bill C-11 component. All parties in the House in the last Parliament worked in good faith to reform Canada's refugee system. I will grant the minister that there was need for reform. The minister is correct when he says that the old system is not working. People make a refugee claim, they are denied, they appeal. Then they make a H and C application and they are denied the appeal. Then they make a pre-removal assessment application and they are denied the appeal. It can take too long to remove people who do not have valid claims.

That is why the parties rolled up our sleeves last Parliament and worked on a streamlined quick process to make those determinations. The New Democrats proposed, as we have for a long time, through our hard work, that the government actually put in place a Refugee Appeal Division, which I will give the minister credit for doing. The Liberals never did do it and the current minister did. However, it was pushed by the New Democrats all the way.

The problem with the bill is that the minister then wanted to deny access to the appeal division of people that he determined to come from so-called safe countries. The minister wanted the sole power to determine what was a safe country. Again, that is too much power concentrated in the hands of one person. The opposition asked why he did not have an independent panel of experts to guide him with firm criteria and the minister accepted that change. In fact, he praised it. He said that it made the process of designation more transparent. Those are not my words, they are the minister's words in the last Parliament. Now today, the minister has thrown that panel out and he wants to go back to the original proposals so that he alone determines what is a safe country.

As well, the minister wanted to deny access to the appeal division to people who came from what he deemed to be safe countries. In the last Parliament, we persuaded the minister and we said that everyone had a right to appeal. We cannot have a justice system where some people have a right to appeal and some do not. Imagine how Canadians would feel if we said that if they went to court, their neighbour could appeal the decision, but they could not, depending on where they came from. We were successful in saying that everyone had a right to appeal no matter where they came from.

While I am on this subject, a fundamental difference between the Conservatives and the New Democrats is that New Democrats believe that every country in this world is capable of producing a refugee. There are cases where some countries or more or less likely, but every country is capable of that. In particular, on the LGBT community, 100 countries have some form of legal discrimination against the LGBT community. Governments change.

The minister said that there were EU countries that had refugees and they had to be safe. Right now the far-right government of Hungary is currently passing laws before its parliament to have the power to pass laws in 24 hours, with 6 minutes of debate accorded to the opposition parties. It is amending the constitution. There is the situation of the Roma in Europe. Everyone knows in World War II that Jews were rounded up because of their faith and ethnicity. Roma were rounded up because of their ethnicity as were disabled and communists. These were historically discriminated against, including Roma. There is a long history of established discrimination against Roma, and those people come from Hungary. They come from the Czech Republic, from Romania, from countries that are members of the EU in some cases and those people have a right to make their claim.

The minister has thrown out the panel of experts to advise him. I ask why? If the minister is so confident that he can choose which countries are safe countries, why would he not want the benefit of advice from experts in human rights, the very idea he praised and thought was a good idea 18 months ago?

The Minister of Citizenship, Immigration and Multiculturalism may have great faith in his own judgment, but to have one person make such important determinations as to what country is safe or not, which country is or is not capable of producing refugees and who is an irregular arrival who will be subject to detention for up to a year without review and penalties that might keep their families apart for a decade. That is too much power for one person. We should build in checks and balances and that would be the case no matter who would be the minister of immigration, including a New Democrat. I do not know who would make the argument that the system is not better served by having that kind of check and balance.

In terms of the biometrics, biometrics is a system whereby this legislation would have people who apply for a visa to come to this country provide their fingerprints and pictures. That is a model we should be looking at, but there are significant privacy considerations and the Standing Committee on Immigration is looking at those very considerations right now.

The privacy commissioner has already testified and she says that providing a fingerprint for the purposes of identification to ensure that people presenting at our borders are who they say they are is fine. However, taking that fingerprint and comparing it to a wide database for other purposes or sharing that information with other countries or other bodies raises serious privacy concerns. We are in the middle of looking at those and those are issues that the government would be well advised to pay attention to before we proceed down that path.

I want to talk about a few other things that the bill would do.

The bill would prevent someone who has been convicted of a jail sentence of more than 10 years from making a refugee claim. I have raised this issue as well. Nelson Mandela was convicted of a crime for which he received a sentence of more than 10 years. Under the legislation, were that to happen today, Nelson Mandela could not make a refugee claim in Canada. He might be able to make a humanitarian and compassionate claim but no refugee claim. I have not heard the government explain that.

The bill would also, for the first time, give the minister the power to refer to the IRB the case of a refugee who had now become a permanent resident. The minister would have the power to strip that refugee of his or her permanent resident status if it were determined that circumstances had changed in the country from which the refugee escaped. That is unacceptable. People come to this country seeking safety and yet they find themselves, under this legislation, perhaps looking at being stripped of that status.

I would like to move the following amendment. I move:

That the motion be amended by deleting all of the words after the word “That” and substituting the following:

this House declines to give second reading to Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act, because it:

(a) places an unacceptable level of arbitrary power in the hands of the minister;

(b) allows for the indiscriminate designation and subsequent imprisonment of bona fide refugees for up to one year without review;

(c) places the status of thousands of refugees and permanent residents in jeopardy;

(d) punishes bona fide refugees, including children, by imposing penalties based on mode of entry to Canada;

(e) creates a two-tiered refugee system that denies many applicants access to an appeals mechanism; and

(f) violates the Canadian Charter of Rights and Freedoms and two international conventions to which Canada is signatory.

[Dr. Catherine Dauvergne]

The best and most detailed study is by the Australian Human Rights Commission, which has demonstrated that there are devastating effects on children held long term in migration detention. One of the changes between Bill C-4 and Bill C-31 is that the new legislation does not call for mandatory detention of children. But it does not address the question of what will happen to children whose parents are mandatorily detained.

Currently, much detention of children is considered to be optional or is detention that is chosen by their parents. I think this is an issue that really needs to be tackled head-on. It's simply unreasonable to say that we're only going to allow people to be detained when their parents make that choice for them. We know that detention is very detrimental to children, and we also know that parents who have arrived in a foreign country and who have no family, no resources, and no connections are not going to choose to have their children separated from them.

So this is an inevitable consequence of that legislation, on which we've made some progress, but not enough.

[Dr. Catherine Dauvergne]

I think the clearest example here is probably what happens in Australia. In Australia there are quite a lot of irregular arrivals, and in much greater numbers than in Canada because of the structure of the Australian immigration system. There are two primary devices used, even in the context of the Australian system, to ensure that people are detained for the minimal amount of time required.

The first of those devices is that there is a massive system for legal support and representation for people who are detained, and there are extensive government contracts for lawyers to work in Australian migration detention centres—that's a little-known feature of the Australian mandatory detention system.

There's also a priority, for anybody who is detained, for those people to be processed first, before anybody else. One of the problems encountered by the refugee bar in British Columbia, where a number of these boat arrivals have occurred—the most recent boat arrivals have all been out here—is that the refugee bar just doesn't have the resources to give people the proper legal representation to allow these things to move quickly.

So thinking about how to resource that will really ensure that detention is at a minimum, as will also looking at some other alternatives to detention, such as the kinds of conditions on which individuals get bailed into the community in the United States. There's also a significant detention scheme there that's not as blanket as Australia's and involves alternatives to detention, such as having people regularly report into an immigration office, having some monitoring, and accommodating people in designated areas at state expense. Often in a mass arrival situation, people don't have anywhere to live, and they don't know where to live. One way to keep tabs on them is to provide them with a place to live, for example.

So there are a few ideas that will address the same kind of issue that the government is chasing in Bill C-4.

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

Thank you, Mr. Chair, and through you, thank you to our witnesses for appearing here today.

Dr. Dauvergne, you had discussed very briefly the issue of mass arrivals. I found your point interesting, that there tends to be no difference in security outcomes or incidence of security concerns in those arrivals. The issue seems to come down to an administrative issue. The government, certainly in the context of Bill C-4, has talked about and justified the detention of so-called irregular arrivals on administrative grounds.

I'm wondering if you have any recommendations, and can perhaps point to other examples around the world, with regard to how other countries handle mass arrivals administratively so that people don't have to be put into detention.

[Dr. Catherine Dauvergne]

I think the most important concern for parliamentarians here, at this juncture, is that it's really important to incorporate human rights considerations into up-front planning of security regulation. The main reason for this is that by incorporating human rights concerns at the front end of designing security directive legislation, that will leave Parliament in control of those provisions.

If Parliament passes legislation that isn't attuned to what its human rights obligations possibly are, then there will almost certainly be legal challenges. Those matters will go to the courts, and then the courts will be in a position of deciding what the law is going to look like. So in issues such as the detention provisions in Bill C-4 and now Bill C-31, by taking the initiative and making human rights-attuned adjustments at this stage, Parliament has a better chance of being in control of what the outcome is.