Hon. Jason Kenney (for the Minister of Public Safety)
moved that Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act, be read the second time and referred to a committee.
He said: Madam Speaker, I am proud to open the debate on Bill C-49, An Act to amend the Immigration and Refugee Protection Act, whose purpose is to combat the serious crime of human smuggling.
I am pleased to introduce this bill. Canada is very proud of its long tradition of being a place of migration for people from around the world. We receive more newcomers than any other country in the developed world, 0.8% of our population, every year as new permanent residents.
We are also proud of our long humanitarian tradition of being a place of protection and refuge for victims of persecution and violence, those who need our protection. This goes back long into our history, in fact to the days of the arrival of the United Empire Loyalists, the Black Loyalists, the Underground Railroad, the eastern European refugees before the war, the refugees from Hungary and Soviet and Communist oppression after the war, and, most famously, the over 60,000 Indo Chinese who were welcomed by Canadians in 1979 and 1980. This underscores our long and deep humanitarian tradition as a place of protection.
Canada receives more resettled refugees than any other developed country in the world. This is so important to Canadians that our government announced earlier this year an increase of 20% in the number of resettled refugees who we will receive. That means that, beginning next year, we will welcome some 14,000 refugees in need of our protection each and every year, which is in addition to those who come to Canada making asylum claims that are assessed by our Immigration and Refugee Board and through various appeals and administrative appeals in our legal system.
One of the problems this Parliament recognized was the abuse of that asylum system, which is why Bill C-11, Balanced Refugee Reform Act, was adopted unanimously by this Parliament following all party co-operation in the spring in order to significantly speed up the process of refugee determination, providing protection to bona fide refugees and the removal of those who seek to abuse Canada's generosity.
However, Canadians are deeply concerned with a particularly pernicious crime, a crime that exploits vulnerable people in their dream to come to Canada, the dangerous crime of human smuggling.
In the past year, it is well known that Canada has received two large vessels on our west coast, together carrying nearly 600 illegal migrants to our shores, people who, based on our intelligence, had paid criminal smuggling syndicates some $50,000 each in order to come to Canada in the most dangerous and exploitative way possible.
The remarkable openness of Canada to immigration in general and refugee protection in particular, which makes possible our very generous approach to immigration, is dependent on public confidence in the system. I submit that Canadians demand an immigration system that is characterized by a sense of fair play and a rule of law. What disturbs them deeply about these mass illegal smuggling operations is precisely that they undermine those principles of fundamental fairness and the rule of law.
The position of Canadians and the position of this government is and ought to be that we will be a country of openness, we will be a country that provides protection to those who are in need of it and we will lead the world in the moral obligation of refugee protection, but we will not be treated like a doormat by criminal networks that seek to profit from, frankly, encouraging people to come to this country illegally in a fashion that puts them and others in moral danger. We know that every year hundreds and potentially thousands of people around the world fall victim to the dangerous ruse of smuggling syndicates.
Let me be very specific about the problem we face and then allow me to identify the strong but fair remedies that we propose in Bill C-49 and in certain associative operational actions that are taken by this government and its agencies.
First, I came back last month from a visit to Asia, including to Southeast Asia, where I met with counterparts in various foreign governments. I met with our own Canadian intelligence police, border security and Immigration officials and learned a great deal about the vile trade of human smuggling in that region.
What I learned was the following. There are approximately three or four criminal syndicates operating in that region that have a long history of being involved in the arms smuggling trade. Because there has been an end to hostilities in the Sri Lankan civil war, those syndicates have now decided to smuggle and to traffic a different commodity, which is human beings. They have refocused their logistical ability to selling people the opportunity to be smuggled illegally to Canada.
I have been told by our partners in the region that they believe these syndicates have the capacity to deliver several large steel hulled vessels with the ability to bring in each hundreds of illegal smuggled migrants to Canada each year. Prospectively thousands of people are being smuggled to our country in this dangerous fashion.
This government, any government and any minister of immigration, as my friend from Toronto knows well, has a profound responsibility to maintain public confidence in the immigration system. What we have seen since the arrival of the last smuggling vessel is a fundamental and very disturbing decline in public support for immigration in general and refugee protection in particular.
According to the most recent polling that I have seen, over 60% of Canadians say that our response to this threat to our sovereignty, our laws and the fairness of our immigration system should be to prohibit these vessels from entering Canadian territorial waters. Fifty-five per cent of Canadians have said that even if these vessels land and some of their passengers subsequently attain refugee protection under our laws, that those people should be returned to their country of origin, notwithstanding a positive legal determination on their asylum claim.
That is the public opinion environment. Imagine how much more vigorous Canadians would feel about this, if we actually had several vessels arriving, which I am informed is within the logistical capability of the criminal organizations involved.
We cannot allow that to happen. The easier path is to do nothing. The easier path is to mouth platitudes. The easier path is to take no difficult decisions. However, the necessary and responsible path is to take firm and meaningful action that does everything we reasonably and legally can to deter and disrupt the smuggling networks, to reduce both the pull and the push factors in this illegal migration so that it stops. To do otherwise is to put at risk the broad public consensus, which has historically existed in Canada in favour of immigration and refugee protection, and I will not allow that to happen on my watch as minister of Immigration.
Some would have us believe that we can successfully deter the smuggling operations simply by focusing on the smugglers. How I wish that were true. How I wish it were true that we did not have to, at the same time, address the demand side of the equation in the smuggling enterprise. However, to pretend that is the case, to pretend that we can avoid disincentivizing the customers of the syndicates from paying $50,000 to come to Canada is naive in the extreme.
Therefore, let me present the general approach of the government and then the legislation in particular.
First, it is evident there are legitimate refugees in need of protection in Southeast Asia. It is also true, according to the United Nations High Commissioner for Refugees, that it is always preferable to find a local or regional protection solution for those who are bona fide refugees and to do everything possible to prevent them from being exploited by trafficking syndicates. That is why we have begun preliminary discussions with our international partners, including Australia, which obviously has a great stake in this issue, and with the United Nations High Commissioner for Refugees to pursue the possibility of some form of regional protection framework in the Southeast Asian region.
In part that would entail encouraging the countries now being used as transit points for smuggling and trafficking to offer at least temporary protection to those deemed by the UN in need of protection and then for countries such as Canada to provide, to some extent, reasonable resettlement opportunities for those deemed to be bona fide refugees, which is something we are pursuing.
However, to be honest, that is a mid to long-term solution. Working on that with the UN and our international partners will not stop the fact that criminal networks in Southeast Asian countries are planning to smuggle their customers to Canada. They are in the process right now. People have already paid their upfront fee and are sitting in waiting positions in parts of Southeast Asia. Vessels have been acquired. Officials have been, shall we say, induced to co-operate with these networks. The operations are not abstract. This is not a possibility. This is not a theory. This is a real and present reality and we must react with real, present and current action to disincentivize the smuggling networks.
It is also true, insofar as we are talking about a flow of illegally smuggled migrants of Tamil origin, that we acknowledge Canadians have a stake in seeing a just and durable peace in Sri Lanka. We acknowledge that the Tamil people have legitimate aspirations and that they deserve to be protected from violence and persecution. That is why, through the Department of Foreign Affairs, our High Commission in Colombo and through multilateral institutions, we continue to strongly encourage the government of Sri Lanka to make every effort to find a just resolution to the legitimate aspirations of its Tamil minority. That is one important issue. A regional protection framework is another important issue.
Perhaps the most important element in combatting the smuggling is to stop the boats from leaving the transit countries in the first place. That is why our government has directed relevant security and intelligence agencies to increase their presence and capability in the transit countries, partly to assist the transit countries in improving their capacity to detect fraudulent documents and smuggling networks and to gather better and actionable intelligence to prevent people from being loaded on to the vessels in the first place.
In this respect, I would note that two weeks ago the Royal Thai Police detained some 150 individuals who were in the country illegally, without status. Apparently they were planning to board vessels to be smuggled possibly to Canada. Therefore, that work is being done as well. There is increased and improved police and intelligence co-operation in the region among ourselves, the Australians and the transit countries.
However, should a vessel successfully leave a transit country, and we are talking about these leaky, decommissioned cargo vessels that people are loaded onto like cattle to take the dangerous voyage across the Pacific, and arrive in our territorial waters, Canada, after the adoption of Bill C-49, will continue to fully honour our humanitarian, domestic and international legal obligations to provide refugee protection.
We will not endanger the lives of people, as some would have us do, to prevent them from entering Canadian waters. Nor will we violate our international obligations under the convention for refugees and torture or our domestic obligations under the Charter of Rights and Freedoms to provide protection to those who are deemed by our legal system to be in need of it, to have a well-founded fear of persecution in their country of origin. This is to say that we will not, in the technical term refoulement, send back to the country of origin someone who has arrived even through this dangerous, illegal and irregular form of marine migration.
We do need to send a strong message to the smugglers, which is why Bill C-49 proposes strong mandatory minimum prison sentences for those involved in smuggling operations. Those who are involved in smuggling under 50 people would face a mandatory minimum prison sentence of at least 3 years. If there are one of two aggravating factors involved, they would face a mandatory minimum of five years. If the group is over 50 individuals, they could face a mandatory minimum of 5 years unless there was an aggravating factor, such as having put the life or safety of their customers in danger, in which case a 10 year mandatory minimum. We believe this will help to cause the smugglers and the crews that work for them to think twice before targeting Canada for their sordid trade.
We also propose massive new penalties for the shipowners, those who are at the back end of this business enterprise, this terrible criminal profit-making venture. They ought to know that they stand to lose millions of dollars if they acquire a ship to be used for this illicit purpose.
Also, we have broadened the ability to make it easier to obtain successful prosecutions against people smugglers through amendments to the relevant law. We take other measures targeting the smugglers very clearly.
However, when we are talking about an illicit market, one thing history, common experience and economics all tell us is that as long as there is a sufficient demand and a sufficient price, there will always be someone willing to provide a service or a good. Therefore, we cannot be naive about the imperative of diminishing the demand side of the equation in the smuggling enterprise.
We must ask ourselves this. Why are people coming from third world countries paying $50,000 to come to Canada in this dangerous way?
Some of the people we are talking about are actually coming from democracies like India. Recently CBC News did a report on individuals in Tamil Nadu in Chennai in the great Indian democracy who had paid smugglers to come to Canada. One of them wanted to come to Canada because he or she had heard this country provided free monthly salaries. In part, there is an economic pull factor to Canada.
It is clear to us that the capacity of someone who lands in Canada, for example, a positive refugee protection decision, to immediately then sponsor family members, means that the $50,000 price point used by the syndicates is not just an investment on the principal applicant getting into the country, but on those family members who will then follow. Therefore, $50,000 makes sense on the smuggling market because the price point actually will eventually allow several family members to come to Canada in reasonably short order.
That is one of the reasons why it is important to change the business model of these smuggling syndicates by disincentivizing. This is why we propose that those who have been designated to have arrived in a smuggling event and who get a positive protection decision would have temporary residency in Canada for a period of five years. I would be happy to develop that further on questions.
Mr. Mark Holland (Ajax—Pickering, Lib.):
Madam Speaker, I appreciate the opportunity to rise to speak to this bill.
I am deeply concerned that any time the Conservatives are faced with a choice of considering policy, sitting down and having a rational discussion, or playing politics, they choose to play politics. There does not seem to be a headline the Conservatives are not willing to exploit.
I can remember the pardon issue, four or five years ago, when the then public safety minister said, after a sensational case, that they had fixed the pardon problem. He said they did not involve the rest of Parliament, because it was something they were able to do on their own. They refused to have any hearings. On the back of a napkin, they whipped something up and called it fixed.
And then we had Graham James. All of sudden, they feigned indignation and said they had to do something fast, forgetting that they themselves claimed to have fixed the problem some four years before.
However, this did not stop them from trying to play games with the problem again. They ratchet up the rhetoric and, on the back of a napkin, whip up a policy, instead of sitting down with Parliament and having a mature debate.
When the Sun Sea and the Ocean Lady arrived on Canadian shores, the Minister of Public Safety was eager to say this was a boatload of terrorists. He talked about intercepting boats in international waters, even though this would violate international conventions. Anywhere else this has been tried, it has been a disaster, raising fears that people would be thrown overboard to hide the evidence, that human beings would be tossed like luggage off the side of the ship to hide the fact that they were being smuggled.
So, for roughly 2% of the claimants Canada would get in a year, the Conservative government went nuclear, not because it wanted to fix something, but because it wanted to play politics and saw a great opportunity to drive a wedge.
The people the Conservatives called terrorists turned out to be mostly women and children. But that is an aside. Apparently, it did not matter much to them.
So after much floundering, including talk about going out into international waters, after throwing around a lot of rhetoric, we get this bill.
I have a lot of problems with the bill. Let me start with the fact that it is tough in all the wrong ways. It is extremely tough on claimants. It is easy on the scum that preys upon the weak and smuggles others into this country. Because of this misplaced focus, I have serious doubts about how it could be effective.
In addition, we have to realize that the government is masking the fact that the real solution rests in engaging international partners. If there is one thing the government has not been able to do, it is work with other countries.
If we want to go after the people who prey on the weak, on those who are vulnerable, then we have to work with foreign jurisdictions and ensure that we go after this scum where they are operating. Instead of being hard on the women and children who are trying to escape war-torn regions, we have to go after the people who are preying on them, trying to suck money out of them, taking advantage of their unfortunate situation, sticking them on dangerous ships and sending them across oceans to Canada. We have to stop the problem long before they walk onto that boat and begin their journey across the seas.
In this regard, and in many others, this is a placebo policy. And I wish it was only that. However, the government also plays on the public's misunderstanding of the distinction between the words “refugee”, “immigrant”, and “claimant”, trying to mix them all up together, trying to confuse people, trying to make them think that there is some queue and that these claimants are jumping ahead of other people. The government knows this is false. That is what makes the assertions absolutely irresponsible and reprehensible.
The government's job is to inform public debate, to inform it with facts. The government is supposed to encourage honest discussion about the differences between political parties. Instead, the government capitalizes on misunderstandings, plays tricks with, let us be straight here, fake emails that go around with misinformation, and generally tries to engage in grand political games. I think this is shameful.
It is not just me who is saying these things or having problems with these bills. I will read a couple of things that some experts in these areas have been saying. Their words are worth hearing because they make the case so clearly.
There is a piece written for the Globe and Mail by Lorne Waldman and Audrey Macklin entitled, “Why we can’t turn away the Tamil ships”, and I will quote several excerpts from it:
|| Asylum seekers on boats is not a new phenomenon. In 1939, the St. Louis, filled with hundreds of refugees fleeing the Nazis, was turned away from Canada. At the time, the government tried to discredit the passengers as frauds and economic opportunists, and warned that, if the St. Louis were permitted to dock, more Jews in Europe might follow. The “line must be drawn somewhere,” and it was drawn at zero. Many of the people on board subsequently perished in the death camps.
|| In 1969, Canada signed the Refugee Convention and undertook not to return refugees if they had a valid fear of persecution. This obligation is part of our law. Once asylum seekers reach our territorial waters and are in Canada, they cannot be sent back to another country unless their claims for protection have been denied.
|| From the St. Louis onward, every new boat is accompanied by denunciation of the passengers as frauds and dire warnings of future “waves.” Yet, two boats – one filled with Tamils and the other with Sikhs – arrived in the 1980s followed by four boats with Chinese in the 1990s, and the sky did not fall in. All were given due process without creating havoc. Some were found to be refugees, some not. Other countries, including Australia and the United States, receive far more sea-borne migrants than Canada, and far more irregular migrants in general.
It goes on to talk about the bill:
|| Moreover, such a regime would run afoul of our Charter. Our Supreme Court has held that Canada cannot be directly or indirectly complicit in torture or other human-rights violations. By turning away boats without fairly determining whether those on board would be at risk, we would be violating refugees’ right to life and security of the person.
The article concludes by saying:
|| Canada receives about 30,000 claimants each year. Five hundred Tamils represent only 2 per cent of the annual intake. The rest arrive by plane or overland, so don’t elicit the same moral panic as people on boats. Although the system has experienced delays in recent times, it has managed to provide a reasonably fair determination. Failed claimants are being deported each year in record numbers. All this to say, that with a just and efficient determination system, we will be able to deal with asylum seekers arriving by boat or otherwise. And the best way – indeed, the only way – to stop any future boats from Sri Lanka is by solving the problems in Sri Lanka.
Amnesty International is also speaking with deep concern about this bill saying that the proposal violates three treaties: the 1951 Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. Amnesty says that the bill shows no respect for the equality provisions in the Charter of Rights and Freedoms. Gloria Nafziger of Amnesty International said:
|| It’s just a flagrant violation of so many rights, it just goes beyond the pale. Those treaties are the international treaties we signed on to and we have obligations to uphold and respect [them].
The Canadian Council for Refugees is saying that despite the government's claim that it is targeting smugglers, the people who will suffer in this bill are the people fleeing persecution, including women and children. It asserts that measures keeping some refugees longer in detention, denying them family reunification, and restricting their freedom of movement, are likely in violation of our charter.
Professor Peter Showler, the former head of the IRB and a refugee expert, noted that there are two different targets under this bill: the human smugglers and the refugee claimants themselves. Even if a person is accepted as a refugee, which means the person fears persecution for five years, the person cannot bring his or her family members. This is not just any family member, we are talking about husbands, wives, and children who are trapped in conflict zones. Mr. Showler has characterized many of the provisions in the bill as outrageous.
What I would like to do is talk about some of the specific provisions that the bill does undertake. One of the much heralded things the bill does is it creates mandatory minimums. It defines aggravating factors where those mandatory minimums would be triggered. There are two aggravating factors. Factor one is where somebody is engaged in the activity for profit, whether or not the person is with a criminal organization. Factor two is whether or not it endangers the life of a person who is being smuggled. It gets into a formula where if there are less than 50 people and there is one aggravating factor, it is a three year mandatory minimum. If there are both aggravating factors and it is under 50 people, it is a five year mandatory minimum. If it is more than 50 people, it is a mandatory minimum of five years if it is one aggravating factor. It is 10 years if it is two aggravating factors and more than 50 people.
Here is the problem. The current penalty can be up to life imprisonment and a $1 million fine for anybody smuggling more than 10 people. The government already has at its disposal extremely serious measures that are on the books to go after the smugglers.
These mandatory minimums are a placebo. They are held in the window to feign action, to pretend they are being tough, as the Conservatives like to say, when in reality they are little more than window dressing. In fact, the actual tools they need to go after the smugglers are already in place. The problem is they are not going after them where they need to, overseas in other countries, working with other jurisdictions.
There are some provisions in the bill that I think we could support. Looking at increasing penalties under the Marine Transportation Security Act for someone who is providing misleading information, or a failure to comply with a ministerial order and therefore be refused entry.
One of the things that is very concerning because its wording is so ambiguous first was introduced by the minister when he talked of a “human smuggling event” and all of a sudden this human smuggling event would trigger all sorts of extraordinary powers. We are not given any details of what those powers would be or how they would be exercised, but eagerly, obviously, we looked at the bill and tried to determine what those powers were.
Gone was the term “human smuggling event” and now came the term “irregular arrival”. Irregular arrival has no real specificity and could just be two people, not a large group or a throng of people or hordes of people coming into Canada, but just two people. If the minister, for whatever arbitrary reason he or she decides, invokes this provision, there are suddenly two classes of refugees, those that are subject to one set of rules and those that are subject to another. It could be for no other reason than the minister does not happen to like those particular refugees, or happens to think one particular group coming from one particular region is more disliked by the public and therefore maybe the government should play games with them and play it for wedge politics.
The problem is that for that separate class, some very different rules are invoked. One of them is to invoke mandatory detention so that when someone was defined in this class he or she would be detained for a minimum of one year. This mandatory detention would not be reviewed again for another six months. Imagine women or children being in a detention centre where they are only given the opportunity once every six months after the first year to appeal that detention. While they are detained, it stops their ability to appeal to the Refugee Appeal Division. It stops their ability from making any claim on humanitarian or compassionate grounds for their situation for five years.
One of the things worth pointing out is the impact of detentions on mental health for a woman or a child who is in a mandatory detention centre because the minister arbitrarily decided to put the woman or child in that class. We can refer here to a multidisciplinary team of university researchers. The team members included: Dr. Rousseau of the Department of Psychiatry at McGill University; Professor François Crépeau, Hans and Tamar Oppenheimer Professor, Public International Law at McGill University; and the list goes on and on.
They concluded a three-year study, funded by the Canadian Institutes of Health Research on the impact of detention in Canada on adult asylum seekers. Based on their expertise in this area, they predict that the mandatory long-term detention as proposed in the bill will have a severe negative impact on refugee claimants' mental health, especially on the most vulnerable: children, pregnant women, and survivors of rape and torture.
Their preliminary results based on a sample of 54 refugee claimants detained in the Laval and Toronto immigration holding centres showed that even a short period of detention is associated with high levels of anxiety and depression. After only 16 days of detention, 30% of refugee claimants met the criteria for depression, 22% for anxiety. Studies have consistently shown that detainees' mental health problems tend to worsen over time and they are more likely to persist, even after release, when detention is prolonged.
I hear some members heckling on the other side about that. I am talking about people who might have been raped or tortured, pregnant women, children. Let us remember who we are talking about. Let us remember the people who could potentially be impacted by this detention.
Another thing we need to look at in the bill is the fact that it imposes a duty of inquiry on people who provide assistance. That may seem relatively innocuous at first, but if a church group makes a determination that it wants to help a claimant because the group thinks the situation the claimant is coming out of is desperate and dangerous, no longer will the burden be on the state to prove that there was not a violation of the Immigration and Refugee Protection Act, but rather that burden of proof would literally fall upon the church or independent organization that sought to assist that refugee, placing all that burden of proof on that individual instead of placing it on the state.
The bill would also seek, and this is quite remarkable and something we need to debate as we move forward, that even if a person is successful in claiming refugee status, even if the person finds a way to convince the government that being sent back would mean the person's certain death, torture or some other horrible outcome, the government reserves the right after five years, after the person has spent five years in Canada and has naturalized here and has established roots, to say it has changed its mind and the person is out of here. The person can spend five years here as a legitimate refugee and then after those five years, the government says, “See you later”, and the person is back out. For those five years the person obviously will be living under a constant threat of being tossed out. How will the person be able to establish himself or herself? How will he or she be able to make a meaningful contribution to Canadian society?
During that five year ban, and again we are talking about legitimate refugees, the person is also barred from applying for permanent residence. He or she is barred from travelling outside the country for five years. He or she cannot sponsor family members. Let us remember who these family members are. They are the wife or the husband, or the person's children.
We need to proceed very carefully, because when we change legislation, it has profound implications. There is no question we need to get tough with those who would smuggle the most desperate and the most weak out there, but the bill, full of its flaws, appears to me to be infinitely more about playing politics than it is about finding solutions.
People who hoped as they read headlines that the bill would be the thing that would save us from future situations such as we saw, will be sorely disappointed when they look beneath the veneer, because like so much of what the Conservative Party puts forward, it is about the talking points and it is not about the substance.