Bill C-4 (Historical)

Preventing Human Smugglers from Abusing Canada's Immigration System Act

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act

This enactment amends the Immigration and Refugee Protection Act to, among other things,
(a) authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons, the result of which is that some of the foreign nationals in the group become designated foreign nationals;
(b) authorize an officer or the Minister, as the case may be, to refuse to consider an application for permanent residence if the applicant has failed to comply with a condition of release or other requirement imposed on them;
(c) provide that a person may not become a permanent resident as long as an application by the Minister for cessation of that person’s refugee protection is pending;
(d) add, as grounds for the detention of a permanent resident or foreign national, the existence of reasonable grounds to suspect that the person concerned is inadmissible on grounds of serious criminality, criminality or organized criminality;
(e) provide that the Immigration Division must impose any prescribed conditions on the release of certain designated foreign nationals;
(f) provide for detention rules and a review procedure that are specific to the detention of certain designated foreign nationals;
(g) clarify the authority of the Governor in Council to make regulations in respect of conditions of release from detention;
(h) provide that certain designated foreign nationals may not apply to become permanent residents until the expiry of a certain period and that the processing of any pending applications for permanent residence is suspended for a certain period;
(i) require certain designated foreign nationals on whom refugee protection has been conferred to report to an officer;
(j) authorize the Governor in Council to make regulations respecting the reporting requirements imposed on certain designated foreign nationals;
(k) provide that the offence of human smuggling is committed when a person organizes the coming into Canada of another person and knows, or is reckless as to whether, the entry into Canada is or would be in contravention of the Act;
(l) provide for minimum punishments for the offence of human smuggling in certain circumstances;
(m) in respect of the determination of the penalty to be imposed for certain offences, add as an aggravating factor the endangerment of the life or safety of any person as a result of the commission of the offence;
(n) change the definition of “criminal organization” in Part 3 to give it the same meaning as in subsection 467.1(1) of the Criminal Code; and
(o) extend the time for instituting proceedings by way of summary conviction from six months to five years or from six months to 10 years, as the case may be.
The enactment also amends the Balanced Refugee Reform Act to provide that a refugee protection claimant whose claim is rejected is not prevented from applying for protection earlier than 12 months after the day on which the claim is rejected, if it is rejected as a result of a vacation of the initial decision to allow the claim.
The enactment also amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence for vessels that fail to comply with ministerial directions. It also amends the Act to authorize regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.

Preventing Human Smugglers from Abusing Canada's Immigration System Act

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I share many of the concerns of this flawed piece of legislation with the member for Parkdale—High Park.

Earlier in the debate, the member for Toronto Centre suggested that, given the concerns that have been expressed by the Canadian Bar Association, the former chair of the Immigration Refugee Board, and many other legal commentators on this matter, it would be appropriate to have the bill referenced to the Supreme Court of Canada.

I wonder if the member for Parkdale—High Park and her party would support that suggestion from the Liberal Party.

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

Mr. Speaker, in analyzing the bill I look to the expertise of those who work in the field of immigration and refugee law: the Canadian Council for Refugees, Amnesty International, the Canadian Civil Liberties Association, the Canadian Bar Association, and the Centre for Refugee Studies. All of these organizations have said that the bill is draconian, that it could violate the charter, that it could violate our international commitments, and it is legislation that is not needed given the recent adoption of the refugee bill earlier this year.

I think it would be of great value to the House to have opinion from outside experts to analyze whether this bill would likely be a contravention to the laws that govern our land and international treaties that we have signed.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, of the 492 men, women and children who came to Canada on the MV Sun Sea, a significant number were indeed children. Ten of those children came to live in London, Ontario. They are sponsored and supported by the Tamil community there. Last Christmas they put on a concert with singing, music, and a nativity scene. Some of them were as young as two and a half years old.

I come back to the member. Why on earth would we ever support a bill that would allow for the incarceration of children?

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

Mr. Speaker, I would like to know what the Conservatives have against children.

I think it goes down to our essential humanity. If we support families and the value of refugee processes, then we have to understand that these are very draconian measures that could be very harmful to children.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, Bill C-4 has a very clear short title: Preventing Human Smugglers from Abusing Canada's Immigration System Act. That sounds right, pertinent and unequivocal. We expect a well thought-out bill that would help our law enforcement agencies catch criminals who are involved in human trafficking, a very serious crime that is punishable by life in prison.

Except for in this title, there is no other mention of smugglers. They vanish just as quickly as they came. There is not another word about them, and the emphasis shifts immediately to refugees, the very victims of the smugglers mentioned in the title. And how are these refugees treated in this bill? They are described as potential terrorists, fleeing criminals or people abusing Canada's goodwill and the hospitality of its institutions.

In fact, the bill seems to be suggesting to Canadians that the current refugee processing legislation is naive. It needs to be updated and reflect the current focus on international terrorism. We quickly realize that the real short title of this bill is something along the lines of “the arbitrary radicalization of the legal treatment of refugees act”.

We should not think that we do not already have a law that targets smugglers. This phenomenon was not discovered last week. This criminal act is already punishable by a very severe sentence, the most severe sentence in fact: life in prison.

Why does this bill focus on refugees? Why does it want to make them guilty of other people's crimes?

What is a refugee? Must I remind the House? From the outset, we are talking about almost unbearable situations. We are talking about men, women and children who have only one simple hope left. They have just spent several weeks at sea in unsanitary conditions. They are put on unsafe boats with no guarantee of safety. When they finally reach land, they often do not have passports or any money. They have basically been denied their human dignity and who has done this? The smugglers that this bill supposedly wants to bring to justice. However, these smugglers cannot be found. They are still abroad where they continue to engage in illegal practices. In return for large amounts of money, these smugglers lead less fortunate, persecuted people who do not feel safe in their own country to believe that they will have a better life in a developed country. Those people are victims and nothing more. They are in the most vulnerable state possible.

What is the Conservative government proposing we do to lighten the load for these victims whose courage and determination brought them to Canada? The Conservatives are proposing that we persecute them even further by treating them like criminals and looking for terrorists among children. Who will be given the right to do this? A government institution that is well-equipped with experts? The RCMP? No. To our great surprise, it is the Minister of Immigration who would have this right. I would like to ask why.

Why would a minister be granted such power? It is completely unjustified. It would be a backward move, a legal anomaly that would be fundamentally unCanadian. In this country, we do not place such a heavy responsibility on the shoulders of a minister.

From a strictly legal point of view, this could violate the Canadian Charter of Rights and Freedoms. Bill C-4 could be contrary to section 9 of the charter, which pertains to arbitrary detention. By creating two categories of refugees, Bill C-4 could violate section 15 of the Charter, which pertains to equality before the law. The NDP is of the opinion that Canadians do not feel there is any justification for questioning such things. The charter is a building block of our state. If we circumvent the charter, we are circumventing democracy.

If I may, I would like to give an example to show just how weak the government's argument in favour of Bill C-4 is. I hope I have the Conservatives' attention. I repeat, the NDP takes its legislative responsibilities very seriously, especially when it comes to the safety of Canadians. That is our duty. Consider the case of a refugee who has been detained as a designated foreign national under Bill C-4, but decides to exercise his rights and take the government to court over these violations of his basic charter rights. It must be understood that this person was incarcerated without any valid reason whatsoever. Well, there is a provision, in section 1, that allows reasonable limits on Canada's basic rights and freedoms. That said, the burden of proof lies with the government, which must prove that a rule of law that it is adopting can override the charter.

Such exceptions are justifiable only within reasonable and demonstrable limits in the context of a free and democratic society. As proof, in R. v. Oakes in 1986, a judge described very clearly what has since become known as the Oakes test, to determine whether such limitations on basic rights are justifiable in the context of a free and democratic society.

How does the Conservative government plan to prove that 12-month, arbitrary detentions imposed by a ministerial decision will satisfy those criteria? I am referring to the minimal impairment criteria. Will the new legislation the government wants to use to achieve its objective repudiate a charter right in the smallest possible way? Will the limitations on basic rights be proportional to the objective of this new legislation? No. From a legal perspective, that is all untenable. This government cannot justify limiting basic rights like that.

The problem lies in the fact that the smugglers are the real criminals in this matter. And where are they? Are they in the makeshift boats that land on our shores? Do they accompany their victims? No, they are long gone and untouchable. And the Minister of Citizenship, Immigration and Multiculturalism cannot do anything about it, regardless of the powers he gives himself.

The Royal Canadian Mounted Police is the only organization capable of cracking down on human smugglers. The RCMP's expertise is a precious and available resource. Its legal role has already been established and there is no risk of abuse. The NDP believes that our police force should be provided with the resources required to go after these criminals. The NDP does not understand what future immigration ministers would accomplish by incarcerating these refugees.

There is no justification for this bill. It does nothing to improve the security of Canada and its population. It punishes people who need us. And, above all, it does not provide the RCMP with the necessary resources and wastes its expertise. The measures are arbitrary. Yes, the problem does need to be resolved. We must pass legislation against smugglers. Unfortunately, the Conservative government is taking the wrong approach. It is proposing to indiscriminately put all refugees through the wringer. It is trying to kill a fly with sledgehammer. What criteria will be used to determine who is a designated foreign national? Why is the bill not clear in this regard? It is unacceptable to introduce such vague legislation.

Canada was not built by giving such absolute discretion to a minister. We realistically expect that laws be rational and predictable. That is not at all the case with Bill C-4, and I am disappointed.

In closing, who are the biggest abusers of the immigration system? It is the Conservatives. Taking their cue from a vague feeling of xenophobia, they are claiming to deal with a scourge, yet they are doing nothing more than playing politics, and rather shamelessly at that. They are trying to appropriate abusive powers, nothing less. They are trying to tarnish Canada's good name. That is unwarranted. Our country is a symbol of justice throughout the world. For millions of people living precariously, Canada is a symbol of hope and humanity.

Does the Conservative government, which incessantly proclaims its patriotism, truly want to diminish our greatest achievement just for a shameful power grab? There are not many countries like Canada, and it is our duty to maintain its generosity, which is legendary and the reason why Canada is held in high regard throughout the world. More powerful nations would give anything for such an illustrious reputation.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Speaker, I listened very intently to my colleague across the way. We do take our duty as legislators very seriously. As a matter of fact, during the last campaign we let Canadians know exactly what our intentions were with regard to this type of legislation.

Not only that, but the response I have received is that we want to maintain Canada's great reputation as a country that takes in more refugees than any other developed country and provides for them every opportunity.

I have heard from members opposite that the asylum seekers are detained for 12 months before receiving a trial, but I would like to point out that those who are detained have access to legal counsel throughout the process, something that does not occur in every country in the world. As soon as these asylum seekers are determined to be refugees, they are released. If the minister thinks there is a humanitarian concern; for example, people with children or an illness, he has the discretion to make exceptions.

Therefore, can the member opposite explain why the opposition is consistently ignoring these facts when talking about the minister and the level of his discretion within the bill?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, I would like to thank my colleague for his question.

When refugees arrive in Canada without papers or anything else because they have fled a war-torn country or an absolutely horrific situation, we cannot then put them in preventive detention and tell them that they have the right to legal counsel. Imagine. These people are completely impoverished and have no way of defending themselves against this type of illegal action.

The government likes to brag about welcoming refugees, so why is it that the Canadian Council for Refugees is opposed to this bill? Why are Amnesty International and the Canadian Bar Association both saying the same thing: that this makes no sense?

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I, too, listened to a number of presentations this morning. I have a question for the member as well.

I will quickly set the question up in terms of content. In the 40th Parliament, we introduced this bill, almost identical to the way the bill is today. The opposition parties were very clear that they would not support this at second reading and would not allow it to go to committee so we could have had the exact discussions that the member spoke about where some recommendations from them could have been brought forward.

We have reintroduced pretty much the same bill. I am listening to all these speeches. I am hearing opposition members complain about what the government is trying to do, even though most Canadians support what we are trying to accomplish. I hear nothing in the way of recommendations or suggestions as to how they would make the bill stronger. I would ask them to please give me one or two suggestions.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, I said in my speech that it is important to try and do something about human trafficking. The bill, as it stands, only serves to punish refugees who arrive here under the worst possible conditions. If the bill at least contained something about human trafficking and smuggling, of course we could get on board and see what was there. But right now I see absolutely nothing worthwhile in this bill.

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

Mr. Speaker, I would like to thank my colleague for her very relevant comments. Why does she think that the government has decided to go after refugees instead of focusing on criminals?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Mr. Speaker, in the current context, it is clearly simpler and easier to pretend to crack down on human trafficking by targeting the most vulnerable people, who have very little means to defend themselves and assert their rights.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am pleased to speak to Bill C-4. However, I wish it were a bill that would enhance our place and our policies as a forward-looking country. Instead, the bill is the direct opposite. It would move our policies and our place in the world backward, showing a kind of intolerance that we might have seen half a century ago.

The bill is a policy that is built on fear, intolerance, ideology and an avoidance of the serious facts. Laws should be improved, in my view, based on facts and on knowledge of what works.

Bill C-4 is a bill that almost gives the minister dictatorial powers. I will name three particular areas. I am especially concerned about that particular minister.

The bill would authorize the minister 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. It would authorize an officer or the minister to refuse to consider an application for permanent residence. It would 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.

I outline those points just to show how the bill would basically give the minister almost dictatorial powers. He or she would have a lot of say and a lot of authority over the lives of people who perhaps are thinking of moving to the promised land.

It is a bill that almost certainly, I believe, will be found to violate our Charter of Rights and Freedoms.

My colleague, the member for Lac-Saint-Louis, summed it up best. I will restate for the record his comments because they cut to the heart of the serious issues in the bill. The member for Lac-Saint-Louis stated:

It [the bill] creates two classes of refugees. One class would be the regular refugee stream. The second class would be denoted by the minister as designated arrivals, which, upon being designated accordingly, would be treated differently. They could be held in detention for up to 12 months.

What is really happening is that the government is categorizing refugees. It is creating classes of refugees for different treatment based on, if we really look at it and read between the lines, the mode of transport the refugee claimants have used to get here. Refugees who come by plane typically would not come in big groups and would not receive the ministerial designation of designated foreign nationals and would not receive the different treatment that is being reserved for designated foreign nationals in this bill.

He concluded by saying:

Refugees who come in groups who will be designated as designated foreign nationals under the act typically will come by ship in squalid conditions. If they come by plane, they are not considered to be designated foreign nationals under the law.

I think that sums up one of the greatest concerns in the bill.

The long and short of the bill is that, in many cases, Bill C-4 would make victims of the very people that Canada traditionally and historically has tried to help. I find it amazing that the government, which is always talking about the protection of victims, is, in this instance, using ministerial authority and attacking the very victims themselves through Bill C-4. It goes against the kind of traditions and history we have as a country. We are losing our respect around the world by the actions of the bill and the government almost on a daily basis.

For a government that often goes to great lengths to talk about victims, then Bill C-4 exploits victims who are so often victims as a result of human smugglers themselves.

The people who get on these ships get fed a line in their home country. They may be fleeing persecution or war. They are, as I said, fed a line, told a story. They sometimes very innocently get involved and believe they are going to a welcoming country because Canada traditionally was a welcoming country until some of the activities of the current government.

We are a country that is historically seen as a country with the balance of law, protection of rights and freedoms, not a country that makes victims of people who are fleeing persecution or war, or being abused in other ways, but that is what the bill could possibly do. The bill could in fact leave those who come here further exploited by a law and actions perpetuated by the government itself.

Canada has a long deserved reputation as a safe haven for those so deserving of a haven in the world. We are a country of immigrants and a country, to a certain extent, of refugees. The ancestors of many of us in the House came from foreign lands. Mine came from England and Scotland. They came to this country and built a great country that was open to all.

In attempting to deal with a small criminal element, the federal government should be extremely careful and must take the necessary time to ensure that legislation, such as Bill C-4, accomplishes what it intends while respecting both our international obligations and domestic laws. I believe the bill seriously fails to do that.

As the parliamentary secretary said a moment ago, the bill was introduced in the last Parliament. It was opposed in the last Parliament by the opposition and opposed strenuously. We would think that a reasonable government would have taken that as a message that there were some problems with the bill, would have taken it back and met with other groups across the country and tried to change it and recognize some of the concerns. We cannot throw out everything the opposition says. We have some reasoned opinion too, and the government should have listened to that, been concerned about it and changed the bill accordingly.

In response to the bill, the Liberal Party has raised a number of concerns that we believe need to be addressed. My colleague, the member for Lac-Saint-Louis, outlined those concerns and they are on the record. We are committed as a party to finding pragmatic and evidence-based solutions to human smuggling. We reject this draconian and backward piece of legislation that targets legitimate refugee claimants and not the real criminals, the human smugglers themselves.

As I said earlier, the bill is really nothing more than crass fearmongering and we cannot support the bill as currently constituted.

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I want to correct the record. I appreciate the fact that the member is making his presentation and speech on how he feels about Bill C-4 but he does need to ensure he is delivering what is factually in the bill.

He indicated that it would create two streams of refugees. In fact, that is not the case. The individuals who are on these ships are not refugees. They are not refugees until they have actually gone through the process and have either qualified or not qualified through the process. Therefore, in no way, shape or form are there two sets of refugees based on the bill. It is a very factual bill and the member needs to ensure he is correct on it.

I do want to ask him one question. He indicated that the government was not prepared to listen in the 40th Parliament with respect to the bill. I would say to him that if he looks at Bill C-11, the Balanced Refugee Reform Act, and looks at Bill C-35, the crooked consultant act, he will find that we listened to all the parties on the opposite side of the House and came back to the House with both those bills passed unanimously.

Why will he not try to help us get the bill passed at second reading and get it into committee so we can talk about it?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, the parliamentary secretary can try to allege in the detail certain things, but the fact is the net result at the end of the day, because of the actions in the bill, is there will be two classes of refugees.

As I have said in my remarks, the Liberal Party believes very seriously that there has to be a serious discussion on the bill. The bill is based on fearmongering, mainly, and the reaction to what happened in one ship and needs to be more seriously thought out before it becomes law.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Mr. Speaker, I have a question regarding his comments about the fact that the bill would create two classes of refugees.

What does the member believe the effect would be on refugees and also on Canada's image around the world?