Legislative Update

BILL C-49

Preventing Human Smugglers from Abusing Canada’s Immigration System Act

Introduction

Bill C-49, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, is a Bill proposing amendments to the Immigration and Refugee Protection Act (IRPA)[1], the Balanced Refugee Reform Act[2] and the Marine Transportation Security Act[3]. Currently being debated at second reading, the Bill was introduced in the House of Commons on October 21, 2010 by the Minister of Public Safety, The Hon. Vic Toews. The Bill seems to be a response to the arrival in British Columbia of two boats carrying Tamil refugees, the Ocean Lady in October 2009, and the MV Sun Sea in August 2010 [1]. The Bill gives the Minister of Public Safety the power to designate such arrivals as “irregular”, and imposes restrictions and longer periods of detention on refugee claimants who arrive in groups. Critics have expressed concerns that this Bill violates certain provisions of the Charter as well as international treaties Canada has signed [2], that its implementation would be extremely costly to refugee claimants and Canadian taxpayers alike [3], and that it fails to actually deter human smuggling operations.

Effects of Bill C-49

Longer Detention Periods for Refugee Claimants

Critics of Bill C-49 are concerned about the expanded power it puts in the hands of the Minister of Citizenship and Immigration to designate foreign nationals as “irregular arrivals” and to detain them for extended periods of time. The Bill grants the Minister the power to designate a group of persons as an irregular arrival if he is of the opinion that investigations concerning their identity or inadmissibility cannot be conducted in a timely manner, or if he suspects that the group’s arrival is connected in any way with a criminal organization or terrorist group [4]. The broad wording of this provision not only gives the Minister wide discretion in his decision, it also appears to target those arriving from places of political instability, those like the Tamil refugees who arrived on the Ocean Lady and the MV Sun Sea, under the guise of controlling human smuggling operations.

When the Minister labels a group as an irregular arrival, the foreign nationals in the group become “designated” foreign nationals and are subject to the expanded restrictions of the Bill. For instance, whereas the current provision of the IRPA requires that a foreign national’s detention be reviewed within 48 hours, the amendment would extend that period to 12 months for designated foreign nationals [5]. The amendment also bars designated foreign nationals, for a period of 5 years, from applying for permanent residence, bringing their families into the country, and obtaining travel documents.

Two-tiered Refugee System

The proposed amendments in Bill C-49 create a two-tiered refugee system by subjecting refugees of regular and “irregular” arrivals to different treatment. From the numerous mentions of the Ocean Lady and the MV Sun Sea ships in the Bill sponsor’s speech in the House, it is clear that Bill C-49 targets those refugees that arrive in large ships [6]. Such recent events have received major media attention. Some MPs have accused the Conservative government of reacting too strongly to the headlines, pointing to statistics that say that these arrivals represent less than 10% of refugees, and therefore do not warrant such a significant and strict response [7].

Canadian Charter of Rights and Freedoms

            The Bill’s proposed amendments may violate the Charter, specifically sections 7, 9 and 11, if it is passed into law. Despite its stated purpose of punishing only human smugglers, the Bill gives the Minister of Public Safety the power to designate any arrival as “irregular” in order to detain foreign nationals without review. This could arguably breach rights under s. 7 which protects “life, liberty and security of the person,” and under s. 9 which prohibits arbitrary detention or imprisonment. Charter s. 11 protects the presumption that an individual is innocent until proven guilty.  Raymonde Folco, Liberal MP for Laval-Les Iles, criticized the Bill for adding to the stigma already attached to refugee claimants. She emphasized that refugee claimants are not criminals and that detaining foreign nationals amounts to a s.11 violation [8].

International Treaties and Conventions

            In addition to potentially violating the Charter, Bill C-49 may renege on several of Canada’s international treaty obligations, including the Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child [9].

            Article 31 of the Convention relating to the Status of Refugees bans states from imposing penalties on refugees who have arrived in the country through illegal means. The restrictions imposed on foreign nationals in Bill C-49 target “irregular” arrivals and single them out for different treatment in apparent violation of the Convention.  While the treaty allows states to take necessary measures, Bill C-49 subjects designated foreign nationals to stricter treatment than other refugee claimants. This differentiation arguably makes it difficult to defend the amendments as necessary for the proper functioning of Canada’s refugee policy. In addition, the Bill restricts refugee claimants’ access to travel documents, which is a right contained in Article 28 of the Convention [10].

            The rights of children are given special protection in several international treaties, including the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. Article 23 of the International Covenant on Civil and Political Rights states explicitly that the family is entitled to protection by society [11]. Articles 10 and 22 of the Convention on the Rights of the Child state that applications pertaining to the reunification of children with their families should be dealt with in a humane and expeditious manner [12]. Bill C-49 prohibits refugees from applying for permanent residence for a period of 5 years [13], restricting their ability to bring their family members into the country. This endangers not only the children who arrive in Canada seeking protection, but also those who are left behind by parents hoping to bring them to Canada through legal channels.

Human Smuggling Not Likely Deterred

While the Bill’s purported goal is to punish the perpetrators of human smuggling, the amendment is targeted mainly at the victims of such operations. As mentioned, the main provisions of the Bill involve detaining foreign nationals and restricting their residence applications. The IRPA already prohibits human smuggling and punishes those who attempt to smuggle into Canada more than 10 people, with a sentence of life imprisonment [14]. Bill C-49, in addition to the restrictions it places on refugee claimants, would add mandatory minimum sentences of 3-10 years and large fines for individuals who engaged in human smuggling operations that put lives in danger or are associated with terrorist operations [15]. Some MPs suggest that the measures are insufficient to truly deter smugglers and some have asked whether the cost of the additional restrictions placed on refugees is well spent, criticizing the Bill for its 12 sections aimed at refugee claimants and only 5 targeting human smugglers [16].

There is evidence that the deterrence measures contained in Bill C-49 will fail to curb refugee arrivals. Australia’s refugee policy also curtailed the rights of some refugees to bring their family into the country legally, but this only caused those family members to attempt to enter the country through smuggling operations, exacerbating the problem [17]. Australia has since mostly abandoned such policies. Stricter restrictions are also unlikely to stop individuals from choosing Canada as a destination, since few refugees are aware of the law in the country of destination, and many have no control over where they end up. A recent United Kingdom study revealed that an “overwhelming majority (around nine out of ten of all respondents) said that they did not know anything about asylum policies in the UK before they arrived “ [18].

Conclusion

            Bill C-49 is an extension of the federal government’s desire to stop criminals from exploiting vulnerable people and profiting from lucrative international human smuggling operations. While this appears to be a worthy goal, as it stands the Bill imposes harsh restrictions on refugee claimants, who are already some of the most vulnerable and stigmatized people in Canada. These provisions likely contravene Canada’s Charter and international obligations. Ultimately, the Bill punishes the victims much more than the perpetrators of human smuggling, and it is unlikely that the deterrence measures will work to curb the problem.  In addition to the many groups calling for the defeat of Bill C-49 [19], the NDP, the Bloc Québecois and the Liberal Party have all stated their opposition to the Bill.

References

[1] “Kenney defends smuggling legislation”, The National Post (25 October 2010) online: The National Post <http://www.nationalpost.com/news/canada/Kenney defends smuggling legislation/3720673/story.html>.

[2] Heather Scoffield, “Human smuggling bill violates three treaties, Amnesty International charges”, The Globe and Mail (22 October 2010) online: The Globe and Mail <http://www.theglobeandmail.com/news/politics/human-smuggling-bill-violates-three-treaties-amnesty-international-charges/article1769774/>.

 [3] Canadian Council for Refugees, Media Release, “Huge costs of government bill highlighted” (10 November 2010), online: CCR <http://ccrweb.ca/en/bulletin/10/11/09>.

[4] Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act,  3^rd Sess, 40^th Parl, 2010, cl 20.1(1) (first reading 27 October 2010)

[5] Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act,  3^rd Sess, 40^th Parl, 2010, cl 57.1(1) (first reading 27 October 2010); Immigration and Refugee Protection Act, SC 2001, c 27, s. 57(1)

[6] House of Commons Debates, 40^th Parl, 3^rd Sess (28 October 2010) (Dave Mackenzie).

[7] House of Commons Debates, 40^th Parl, 3^rd Sess (29 November 2010) (Keith Martin).

[8] House of Commons Debates, 40^th Parl, 3^rd Sess (28 October 2010) (Raymonde Folco).

[9] House of Commons Debates, 40^th Parl, 3^rd Sess (28 October 2010) (Mario Laframboise).

[10] Convention relating to the Status of Refugees, 28 July 1951, online: <http://www2.ohchr.org/english/law/refugees.htm>.

[11] International Covenant on Civil and Political Rights, 16 December 1966, online: <http://www2.ohchr.org/english/law/ccpr.htm>.

[12] Convention on the Rights of the Child, 20 November 1989, online: <http://www2.ohchr.org/english/law/crc.htm>.

[13] Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act,  3^rd Sess, 40^th Parl, 2010, cl 3 (first reading 27 October 2010) [14] Immigration and Refugee Protection Act, SC 2001, c 27, s 117.

[15] Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act,  3^rd Sess, 40^th Parl, 2010, cl 17(4) (first reading 27 October 2010)

[16] House of Commons Debates, 40^th Parl, 3^rd Sess (28 October 2010) (Raymonde Folco).

[17]Refugee Council of Australia, “Australia’s Refugee and Special Humanitarian Program: Current Issues and Future Directions” (November 2001), online: <http://www.refugeecouncil.org.au/docs/resources/submissions/2002-03_intakesub.pdf>.

[18] Canadian Council for Refugees, “Bill C-49: Key concerns” (27 October 2010), online: CCR <http://ccrweb.ca/en/c49-key-concerns>.

[19] Canadian Council for Refugees, “Organizations calling for the defeat of Bill C-49”, online: CCR <http://ccrweb.ca/en/organizations-calling-defeat-bill-c-49>.

Document prepared on February 27, 2011