It has not even been proclaimed yet, as one of my colleagues points out.
This is really problematic and a very sad day that we are here to do this.
Bill C-49 is a piece of legislation that is extremely unfair to refugees. We just listened to a speech from a Conservative member that had a completely confused understanding of what it was to be a refugee or a refugee claimant in Canada. The member seemed to believe that all of these people were criminals or potential criminals and talked about them in that way. Nothing could be further from the truth, and even in the situation where a refugee claimant may lose that determination, I would think there are very few, if any, of those people who any Canadian would reasonably define as a criminal. It is very sad that this kind of confusion can exist on the Conservative bench amongst government party members about the intent or the need for this piece of legislation. That is a very serious confusion and misleads Canadians about the situation of refugees and refugee claimants in Canada.
Even if we look at the situations that seem to have given occasion to this particular bill, the arrival of the boats on Canada's west coast with largely Tamil refugees, that is not a fair descriptor yet. Many of the people who have arrived in Canada in boats, recently and in past years, have had successful refugee determination cases. They were not criminals. They were not queue-jumpers. They were in fact refugees, as determined by the established process here in Canada. That characterization of them is false and misleading, and it is very sad that it continues to be promulgated.
Bill C-49 is a deeply flawed bill and deeply unfair to refugees. It does not honour Canada's obligations under our own equality law, under the charter, or under international law. It is a sad departure from Canada being, in 1986, a country that was honoured by the UN High Commissioner for Refugees with the Nansen Medal for its refugee work as one of the outstanding countries in the world in terms of refugee resettlement and support for refugees. This is a far step from that point in our past history.
This bill would deprive refugees of an independent review. Because it moves to the detention system, which we have largely avoided in Canadian refugee determination and Canadian refugee law, it goes to the expensive alternative of detention. Detention is hugely expensive when compared to the value of a refugee claimant living in the community while his or her case is being determined. This is a serious departure.
The reality is that the bill, despite all the bravado about it, would really not do much about human smuggling. More Canadian laws are not going to catch human smugglers, the people who organize the kinds of things that the government is apparently concerned about.
Mandatory minimum sentences are ineffectual in most criminal situations and I cannot imagine how in this circumstance there is even any hope of them being any kind of deterrence. The only reason we would have a mandatory minimum sentence is for the deterrent value. I think they are almost useless. I doubt that any of the criminal organizations that the government says are out there organizing and switching from arms shipments to human shipments are writing memos to the people they work with saying, “Beware. Canada has just introduced a mandatory minimum sentence for human smuggling”. Mandatory minimums are not going to stop any of those people. They are not even an issue. They are not even a consideration in those circumstances. In this case, a mandatory minimum sentence would be completely ineffectual. This is one of the places where it would be least effective anywhere in criminal law.
Overwhelmingly, mandatory minimum sentences are ineffective throughout most aspects of criminal law. It is a government fantasy to think that they would somehow address the human smuggling situation.
Refugees are usually people who are in desperate circumstances. One of the criteria for determining whether people are refugees is if they fear for their life in their country of origin, if they have been persecuted and are seeking safety. It is our duty to receive those people and make a determination about their case.
In Bill C-11, we made decisions about how to expedite that process. It was taking too long in some cases. The Conservatives did not help the speed of the refugee determination process by their actions when they became government, by the fact that they would not reappoint anybody to the immigration and refugee appeal boards. The backlog increased because of their refusal to reappoint anybody that the previous Liberal government had appointed. They were slow making their own appointment. The Conservatives are directly responsible for the backlog that exists in refugee determination in Canada right now.
But we did take some extra measures to make sure that it was a more effective process in Bill C-11. We did take measures to ensure that when someone is determined not to be a refugee that they are removed from Canada. I have always said that a key aspect of our immigration and refugee policy had to be an effective removals policy as well. If we are going to have any respect for our refugee and immigration regime, that has to be an effective part. There has been a real experience that it is one place where we have fallen down in terms of enforcing immigration law in the past.
I want to talk about some of the specific aspects of this legislation.
I really believe that Bill C-49 punishes refugees. My remarks are drawing fairly heavily on the work of the Canadian Council for Refugees, in whom I have incredible confidence. This is an umbrella organization of almost every refugee- and immigrant-serving organization in Canada. It does excellent and detailed work on immigration and refugee policy and speaks loud and clear for the people it serves from coast to coast to coast in Canada. Whenever I speak on immigration and refugee matters, I draw heavily on its work.
Bill C-49 has been presented as legislation that would target smugglers, but in fact most of the legislation would not target smugglers but refugees and changes the circumstance for refugees. I think the previous Liberal member did a count and said there are 12 sections of the bill that deal with refugees and only five sections that deal with smugglers. So it really is an unbalanced piece of legislation in that sense.
Refugees, in this bill, including refugee children, would be mandatorily detained for a year without the possibility of an independent review and denied family reunification and the right to travel for over five years under the terms of this legislation. These are very serious restrictions. Mandatory detention is something that we have not used extensively in Canada and I think it would be a real departure from the success of our refugee legislation.
Many people believe that under Bill C-49 refugees could easily be victimized three times: first, by the people who were persecuting them in their country of origin; second, by smugglers who are often the unscrupulous people they have to use to escape their persecution; and finally, by an unfair process here in Canada. This is totally contrary to what we should be doing. We should be seeking to reduce the victimization of refugees and of people who have been persecuted and who fear for their lives in their countries of origin. The bill would only add to that victimization, unfortunately.
As I mentioned earlier, this legislation seems to violate Canada's commitments under international law and the Canadian Charter of Rights and Freedoms. The Convention on the Rights of the Child is another one that is in play here and is of great concern. The Convention Relating to the Status of Refugees, the refugee convention, is another important international commitment that Canada has made. I think under all of those international agreements and also under the charter there will be challenges to this legislation, because in one way or another it is problematic. When we look at the Convention on the Rights of the Child, for instance, a delay in family reunification is an incredible violation of the rights of a refugee child. If a parent is here in Canada making a refugee claim, if the possibility of reunification for that child is delayed by five years, it is a very serious problem for that child and I think a very serious violation of that child's rights.
The most serious aspect of Bill C-49 is that it would create in our refugee legislation two classes of refugees: one class that is designated by the minister based on their mode of arrival, who would have different treatment compared to other refugees who land on our shores in Canada, who arrive in Canada by some other means. I think this is a clearly discriminatory provision.
In fact, it goes back on the commitments that we thought we had received from the government when the negotiation happened around Bill C-11, the Balanced Refugee Reform Act. In that legislation, there was also an attempt to establish two classes of refugees and to have a designation system. It was based on the country of origin, on what were considered safe countries that could produce refugees and countries that were not considered safe, and we know that it is almost an impossible designation to make.
So in negotiations with the government we got that changed and we did away with that classification of refugees that was a key part of the previous bill, Bill C-11.
Now the government, in this bill, is trying to reintroduce that kind of designation system. This time, it is not based on the country of origin of the refugee but on how that refugee got to Canada, on his or her mode of arrival. I think that is just trying to get it back in when we thought we had dealt with that issue very clearly in the previous negotiations, in the previous legislation.
I think, too, the discretion that is afforded the Minister of Citizenship and Immigration in making these designations would be way off the scale. It would be too much. It would go way too far in allowing an individual minister the ability to make these decisions about who would be this designated refugee who loses some of the rights established under Canadian law for refugee determination. I think if there is any reason to have serious questions about this legislation, it is because of the establishment of these two classes of refugees and because of the incredible amount of discretion that it would afford the minister.
There are places for discretion for ministers of citizenship and immigration around humanitarian and compassionate considerations, for instance, because refugee and immigration cases are often reflections of people's very complex lives and that is a place where there needs to be some discretion for a minister, especially in this portfolio. However, I do not believe that allowing a minister to designate who is a first-class refugee and who is a second-class refugee or a no-class refugee is an appropriate addition to our immigration and refugee law in Canada. It is a very serious problem.
This bill, as we has mentioned, talks about mandatory detention of people who are designated by the minister as second-class refugees. There is mandatory detention without independent review. This kind of arbitrary detention is likely contrary to the charter and international law. Children will also be detained under this proposal. Unless they are accepted as refugees or released on discretionary grounds by the minister based upon exceptional circumstances, designated persons will remain in detention for a minimum of one year before having access to a review of their decisions. There are examples in Canadian law where that kind of process has been shown to be in contradiction of the charter.
The bill also talks about mandatory conditions being imposed upon release and for persons to be indefinitely detained beyond 12 months without the possibility of release if the minister is of the opinion that their identities have not been established. These measures seriously deprive people of liberty, without the opportunity for an independent tribunal to review whether they are necessary to their particular situations or to their particular cases.
The bill also denies refugee claimants in the designated class the right to appeal a negative refugee decision to the Immigration and Refugee Board's Refugee Appeal Division. It is frustrating to no end to have to be debating the need for a Refugee Appeal Division yet again in the House of Commons. The Refugee Appeal Division, an appeal of the decision of the Immigration and Refugee Appeal Board on a specific refugee case, was part of the new Immigration and Refugee Protection Act that came into effect in 2001. In fact, with the Liberal government of the day, the establishment of the Refugee Appeal Division was a compromise, worked out with all the parties in the House, that garnered support for that legislation.
Sadly, even though we won the Refugee Appeal Division in an important appeal in the refugee process, the Liberal government of the day and subsequent Conservative governments never put it in place. It was passed and was part of the law but was never implemented. This was a serious problem. We even had private members' legislation, committee reports and other motions that called upon the government to actually implement the established law of the land but to no avail.
Recently, in the debate on Bill C-11, again we thought we had won a victory where finally the Refugee Appeal Division, this important appeal of a negative refugee decision, would be implemented. However, now we see that the government is proposing, in Bill C-49, to remove that again. We think we have it but we do not implement it. We think we have it again and now we are going to limit it.
Every organization has said that this is an important aspect of refugee law and that it needs to be here in Canada. International organizations have commented that Canada needed to have this level of appeal, that Canada needed to uphold its existing refugee act, and that this was a crucial piece of what we should be about in our refugee laws. I am really disappointed that the government has again moved to limit the Refugee Appeal Division.
Family reunification is an issue. I mentioned the issue of blocking families from being reunited for five years and the issue of refugee integration into the community. This slows that process down, and that has been one of the successes of Canadian immigration law. We have moved new immigrants and refugees into positions of participation in society, of feeling that they belong in Canada, that they are valued members of the community, better than any other country, and yet here again in this legislation we are putting forward barriers to doing that, and we do that at our peril. We are turning our backs on what we have proven works and what other countries agree have worked.
