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.

[Dr. Catherine Dauvergne]

There's no difference at international law between the entitlements that are available for both those categories of refugees. Indeed, the international refugee convention quite explicitly, of course, understood that there was not going to be a way for refugees fleeing persecution to necessarily obtain a visa to travel somewhere. So that international law commits all countries—147 countries around the world—to ensuring that people do not face any penalties for their mode of arrival in a country. Indeed, it's a breach of international law to attempt to charge people with illegal entry or to otherwise punish them.

So the proposals that were in Bill C-4 and that are now reproduced in some part in Bill C-31 are a direct contravention of the international refugee convention on this point.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you to both witnesses for being here.

To you, Dr. Dauvergne, I understand you got your Ph.D. in Australia. As I'm sure you know, part of this study is to look at detention in a security context, particularly mandatory detention, as an issue. This government, through Bill C-4, which was introduced in this Parliament, and its reconfigured form as Bill C-31, proposes to introduce a mandatory detention regime in the context of regular arrivals designated by the minister.

I'm just wondering. I'm aware that Australia has had a mandatory detention scheme in place for some time. Could you comment on whether there are any lessons for us from Australia in that regard?

Opposition Motion—Charter of Rights and Freedoms

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, I will be sharing my time with the member for Bonavista—Gander—Grand Falls—Windsor.

I rise to speak to the Liberal opposition day motion introduced by our leader, calling on the House to recognize the fundamental right of all Canadians to freedom of speech, communication and privacy. The motion is in response to the Conservative government's invasive Bill C-30.

If Canada is to remain a truly democratic society, it must strike the correct balance between security and civil liberties and individual rights and freedoms. As written, Bill C-30 does not ensure a balance among those principles.

At the outset, the Conservatives demonstrated their disregard for Canadian civil liberties and individual rights. Rather than sit down and discuss with Canadians and have an honest debate about the strengths and weaknesses of Bill C-30, the government attempted to irresponsibly frame the debate in rhetoric.

The Minister of Public Safety even went so far as to berate one of my colleagues, who was merely bringing the concerns of countless Canadians into the debate, by telling him that he, “can either stand with us or with the child pornographers”.

Attempts to demonize opponents of Bill C-30, many of whom are in my riding as well, and characterize them as friends of child pornographers is not only reckless, but completely unwarranted. The Minister of Public Safety still has not apologized for offending those Canadians who have difficulty with some of the aspects of Bill C-30.

Understandably, Canadians from coast to coast to coast do not trust the government with their personal information. After all, the Conservatives do not exactly have a glowing track record when it comes to managing the personal information of individual Canadians.

Through creeping individual's Facebook accounts and using personal profile information to restrict Canadians from attending public election rallies, sifting through personal medical records of veterans who asked too many questions or inappropriately using voter identification databases to make robocalls that are all about election fraud, the government has worked hard to earn the mistrust of Canadians.

In its current form, Bill C-30 forces Internet service providers to track, save and hand over Canadians' personal subscriber information, including their email and IP addresses, upon request without a warrant. This means that the Prime Minister's people would now have the legal right to monitor the emails of Canadians and track their movements online without any kind of judicial discretion.

The Conservatives destroyed the critical long from census because they claimed it was too intrusive into the personal lives of Canadians. Yet they now propose legislation that encroaches deep into the lives of Canadians and treats all Internet users as criminals. There are innocent Canadians out there.

The public outcry from Canadians and the Liberal Party, following the introduction of Bill C-30, forced the government to admit its legislation was far from perfect and it took the unusual step of shepherding its own legislation to committee before being debated so it could be fixed. The government has said that it will consider amendments from the opposition, and we welcome that.

Unfortunately, that is the same government that has abused its majority at committees to conduct business behind closed doors, making committee business the most secretive it has ever been and requests to do otherwise continue to fall on deaf ears. If the government forces the committee behind closed doors, it can oppose the reasonable and fair amendments that Liberals will be proposing without any public oversight, and this is a serious concern.

Sending Bill C-30 straight to committee for amendments is an important first step in admitting that Bill C-30 is highly flawed, but actions speak louder than words. The true measure of the Conservative government's commitment will be tested and witnessed during the committee proceedings. If the Conservatives truly believe that Canadians have the right to determine how their personal information is handled, then the Conservatives should be forthcoming and accept Liberal amendments at committee.

Canadians, including my constituents in Random—Burin—St. George's, are listening with interest and taking note of the debate over Bill C-30. One of my constituents aptly described the bill when he said, “This bill is a total invasion of privacy”.

Another constituent wrote to tell me that he was concerned about the legislation. He said, “This would be a breach of the basic human rights of all Canadians. It almost goes without saying that giving this kind of power to any institution is ripe for potential abuse”. He goes on further to state, “Not only that, we citizens, will have to pay for it out of our taxpayers wallets. There is also the dangerous potential of criminals having another gateway for hacking into people's accounts”.

Another constituent wrote to me to say that he was equally concerned about the legislation, writing “The online spying ("Lawful Access") bills are poorly thought out, and irresponsibly allow a range of authorities to access my personal data without a warrant”.

A different constituent from my riding went further saying, “Unchecked mass surveillance is a breach of my fundamental right to privacy”.

These are just a few examples of the correspondence that I have received. It is what Canadians are saying, and I am sure all members in the House are hearing the same thing from coast to coast to coast. I have yet to receive a letter in support of Bill C-30.

Privacy is a fundamental freedom enshrined in our charter and Canadians have every right to be worried about heightened surveillance of their online activities. Warrantless use of personal information is an inappropriate violation of our Charter of Rights and Freedoms.

Liberals are seriously concerned that the lack of judicial oversight in the bill relating to subscriber data and that forcing ISP and telecomm providers to have the capacity to trace all communications in their system could create a very slippery slope.

For example, Canada's Privacy Commissioner, Jennifer Stoddart, agrees. Her office, the Office of the Privacy Commissioner of Canada, is charged with overseeing compliance with both the Privacy Act and the Personal Information Protection and Electronic Documents Act. Exercising her mission to protect and promote the privacy rights of individuals, last October she wrote the Minister of Public Safety detailing her concerns with the government's lawful access proposal. She said:

I am...concerned about the adoption of lower thresholds for obtaining personal information from commercial enterprises. The new powers envisaged are not limited to specific, serious offences or urgent or exceptional situations. In the case of access to subscriber data, there is not even a requirement for the commission of a crime to justify access to personal information – real names, home address, unlisted numbers, email addresses, IP addresses and much more – without a warrant.

Apart from what we are hearing from Canadians throughout the country, this is coming from the Privacy Commissioner.

The government must ensure the protection of the online privacy rights of law-abiding Canadians. Again, there are innocent Canadians out there. The warrantless tracking of Canadians' online activity would unfairly treat all Canadian online users as criminals.

Through Bill C-30, the omnibus crime Bill C-10, Bill C-4 and others, the government has raised serious questions about whether they respects the Charter of Rights and Freedoms. Liberals will be focused at committee, finding logical solutions that strike the correct balance between public safety and privacy.

[Peter Hill]

I would say that might be a bit of an extension.

We certainly believe—and we've been very much involved in the development of both pieces of legislation, the Balanced Refugee Reform Act and Bill C-4, in partnership with Citizenship and Immigration Canada—the new system will ensure faster decision-making, so that those in need will get the protection more quickly and those who are found not to be in need will be removed more quickly from the country.

That really doesn't negatively impact the potential use for EM. I would still say that the potential use for EM remains very strong, even under the new system, if and as it's implemented as intended.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you, Mr. Chair.

This is a topic that I have a great deal of interest in, as co-founder of an immigrant and refugee centre in my own community some 20 years ago.

Both Mr. Hill and Ms. Kramer made comments about the changes that are being proposed, both in Bill C-4 and the bill was that was introduced today, whatever the number is, and how they might make the new system function more quickly. I'm not going to comment—neither here nor there—on whether that would be more justly: we'll have another time to debate that elsewhere.

But I believe both of you commented that if the system were operating more rapidly, electronic monitoring would become less useful as an alternative to consider. Is that correct? Is that a bit of an extension, maybe...?

[Peter Hill]

Under Bill C-4, for a very specific group of individuals who arrive, could be in detention for up to a year or until their refugee claim is determined by the IRB, whichever is sooner. Under the bill that has been released today, the expectation is that a refugee determination will be made very quickly, within a matter of I think 40 days for designated country of origins. So the new system will work to ensure that people are not in detention unnecessarily.

[Peter Hill]

No.

No, what I'm trying to say is that there are two criteria that trigger mandatory detention under Bill C-4: the arrival of numbers that overwhelm CBSA's capacity to conduct the necessary examinations to determine identity or to determine admissibility, or the arrival being associated with the suspicion that there's a link to smuggling, organized crime, or terrorism.

If either of those conditions are present, then the Minister of Public Safety may designate—

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

Excuse me. I don't mean to interrupt, but I have limited time.

Bill C-4, which is the bill that we've debated already at second reading, was a response to the arrival of the Sun Sea and so on.

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

No. We're talking about Bill C-4. It hasn't passed yet, but we're talking about Bill C-4. They will be designated foreign arrivals and the government will have the right to keep them in detention for a very long time, really, if they come more than two together, or whatever it is....

Citizenship and Immigration

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, the situation at the immigration detention centre in Laval is cause for concern. The verification of refugee identities takes far too long. Due to the excessive workload, it can take months for officials to process claims.

This leads to health problems and depression among the refugee claimants.

What is more serious is that passing Bill C-4 will make things worse by increasing the time frame from a few months to several years.

Why treat these newcomers like criminals?

Why is the government doing nothing to deal with this situation that is intolerable for the officials and newcomers?

Foreign Affairs

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, Canadians know that this government takes human smuggling very seriously. Every year, thousands of people die in human smuggling operations around the world, which is why it is important that this Parliament act to deter smugglers from targeting Canada and from exploiting people. That is why we brought forward Bill C-4. It is disappointing that the Liberal Party has opposed every effort to combat human smuggling.

In terms of co-operation with the UNHCR, I do know that the United Nations High Commissioner for Refugees and the International Organization for Migration are assisting Tamil migrants around the world to relocate back to Sri Lanka in the post-conflict environment.

Citizenship and Immigration

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

Mr. Speaker, I have two petitions to present. One is signed by 63 people and the other by 100 people from the region of Waterloo. They are calling on the government to withdraw Bill C-4, the preventing human smugglers from abusing Canada's immigration system act.

Criminal Code

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, I am pleased to rise in the House today to speak to Bill C-310, which would amend the Criminal Code to address the cruel and serious problem of human trafficking in Canada.

I congratulate the member who sponsored this bill for introducing a bill that will have the support of all parties in this House. This is the first time I have supported a government initiative and I congratulate her on it. I hope that in the future the opposition parties and the Conservative government will have many opportunities to work together.

This bill proposes two very important amendments to the Criminal Code that will make it easier to prosecute perpetrators of human trafficking. This heinous crime has destructive effects on the victims, which reminds us that in a not-too-distant past, slaves were treated similarly by Canadians and by our neighbours to the south. Unfortunately, at a time when human rights and individual freedoms should prevail and at a time when we would have thought our attitudes had evolved enough to eliminate this abominable crime, there are still people in this country who can deny their own humanity and sell people who are just as deserving of freedom as any other person.

Therefore, I believe that the House has the duty and the power to hold these individuals accountable by proposing and adopting a legal framework to eliminate this form of slavery and severely punish the perpetrators, so that we can set an example for the rest of the world.

This bill targets the real criminals—the traffickers. This bill would extend Canada's jurisdiction beyond our borders, which means we could go after traffickers with Canadian citizenship or residency regardless of where they are in the world. I would once again like to congratulate my colleague opposite for developing a bill that targets the real criminals and not the victims.

However, since there is a distinction made between human trafficking and human smuggling, I have to wonder about Bill C-4, which targets the migrants instead of the smugglers in cases of human smuggling in Canada. Migrants are the victims in this fraudulent scheme, and the real criminals are those who deceive these people by promising them a better future. I would have liked to see the government use Bill C-310 as an inspiration and to withdraw Bill C-4 from the Order Paper.

The first section of the bill amends the Criminal Code in order to apply Canadian extraterritorial jurisdiction to the offence of human trafficking. This will give the Canadian government the legal means to prosecute a Canadian or a permanent resident of Canada involved in human trafficking, regardless of where he or she works, lives or operates. Introducing extraterritorial jurisdiction using the nationality principle in international law is compatible with our international obligations under the United Nations Convention Against Transnational Organized Crime, the Palermo convention. Given the international nature of human trafficking, extraterritorial jurisdiction is crucial. We simply cannot allow Canadian traffickers to live a comfortable life without any fear of being held responsible for their crimes just because they can hide behind international borders.

Thus, I am convinced that our government has a responsibility to ensure that our legal system can prosecute those responsible for such crimes to the full extent of the law through this extraterritorial jurisdiction. We have the right to hold our citizens to a certain standard of behaviour, even those who are outside our borders.

In her introductory speech, the sponsor of the bill said that it would ensure justice in cases where the offence was committed in a country without strong anti-human trafficking laws. I agree with her completely, but I find it unfortunate that this government did not live up to this standard during the previous Parliament with regard to Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries. Once again, I hope the government will learn something from this private member's bill.

Coming back to Bill C-310, before 2005 the only legal action that could be taken against human traffickers was based on charges of kidnapping, threats or extortion. Section 118 of the Immigration and Refugee Protection Act prohibits anyone from bringing someone into Canada by means of abduction or fraud. In other words, human trafficking was not considered a criminal offence per se until 2005. Since then, only five people have been prosecuted on the basis of this new offence.

Crown prosecutors and experts blame the lack of prosecutions on the current definition of exploitation, which requires proof of a threat to safety. This proof is difficult to obtain, which results in traffickers being found not guilty.

This leads me to the second amendment to the Criminal Code proposed in this bill. The member sponsoring this bill has every reason to propose expanding the current legal definition of the word “exploitation”, which defines the conditions for a person to be considered a victim of human trafficking. The current legal definition of this word in the Criminal Code does not contain any precise examples of exploitation. Therefore, this second amendment would add evidentiary foundations to enable courts to give clear examples of exploitation, such as threats or use of violence, coercion and fraudulent manipulation. This would update the legal terminology and would give courts the legal tools they need to successfully prosecute these criminals.

Once again, I congratulate the member on her wise and well thought out bill.

I will conclude by talking about human trafficking in Canada. In Canada it is tragic to see that aboriginal women and girls are disproportionately more likely to be victims of human trafficking. This tragedy is the result of a number of factors, and to address this, our government will have to combat it from all sides. We absolutely must recognize that poverty, lack of housing and very difficult living conditions for aboriginal women and girls are factors that explain why they are disproportionately more likely to be victims of human trafficking.

I would like to point out a coincidence. Today, the Standing Committee on Status of Women will present its report on violence against aboriginal women. This report is the product of two years of study on a very serious issue and an unfortunate tragedy in our country. Over the course of this study, the committee heard from about a hundred aboriginal women and people working with victims and their families. I had the opportunity to listen to some of this testimony when I sat on this committee. It is clear that to fight violence against aboriginal women and girls, including human trafficking, we must acknowledge the poverty and economic marginalization they experience.

I truly hope that this report will lead to concrete recommendations for improving the economic conditions of these women and decreasing their vulnerability to violence and human trafficking. I strongly encourage all of my colleagues in the House and the general public to listen to the presentation of this report today. Once again, I thank my colleague for this wise and necessary bill.

Senate Reform Act

[Sean Casey, Liberal, Charlottetown, PE]

Madam Speaker, the Liberal Party certainly shares some of the concerns with respect to the constitutionality of this legislation. I found it very interesting that the member laid it out as a bit of ruse in saying that the Conservatives probably expect this legislation will never see the light of day once it is put through the constitutional scrutiny that it must undergo.

It strikes me that there is a troubling pattern in terms of passing legislation through this House that is likely to be found unconstitutional. We have seen recent examples in Bill C-4 and Bill C-10 .

For the benefit of those in the House and those watching, I would invite the member to expand a bit on the constitutional arguments that would likely be upheld once the bill is subject to the scrutiny of the Supreme Court of Canada.

Citizenship and Immigration

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I rise today to present two petitions to the House, the first of which pertains to Bill C-4.

Hundreds of petitioners in my riding of Parkdale--High Park wish to call the House's attention to Bill C-4, the preventing human smugglers from abusing Canada's immigration system act. The petitioners argue that the bill is in violation of the Charter of Rights and Freedoms as well as numerous international conventions and covenants to which Canada is a party. They therefore call upon the House to withdraw the bill.