The Canadian Civil Liberties Association objects to Bill C-49 whose official purpose is to stop human smugglers, but whose real effect is to cause significant and unjustified harms not to the smugglers, but to people seeking safety in Canada.
- A Second Class of Refugees
- Automatic Detention of the Group
- “Paroles” and “Moles”
- International Law, Canadian Law and the Canadian Charter of Rights and Freedoms
The position expressed here does not provide a full and comprehensive review of Bill C-49, but serves to highlight some of CCLA’s concerns.
At the heart of Bill C-49 is the creation of a new class of “designated foreign nationals.” This class is defined extremely broadly so as to potentially apply to most people fleeing persecution, torture or death in their countries of origin. In effect, the bill creates a two-tier system, with numerous restrictions and negative consequences for those who fall into the designated class.
The class would be designated as such by the Minister, in relation to any group (of undefined number) of non-citizens or non-permanent residents arriving in Canada, where the Minister believes that they cannot be examined and dealt with “in a timely manner,” or any group whose arrival into Canada has been facilitated by a person in violation of the immigration laws when that person earned some profit for their assistance. Under the terms of the Bill, such a “smuggler” could include a person who supplies false documents; or a person who helped someone get passage on a boat even if they did not know for certain that the person’s visa was not valid.
Upon their arrival in Canada, if a group is designated into this class, they must all be taken into detention, according to the proposed Bill. The only people who could be released would be individuals who applied to the Minister, and the Minister decided that in his or her opinion, exceptional circumstances exist. It is unknown what would qualify as exceptional circumstances in the opinion of the present (and future) Ministers: being a child? an elderly or sick person? a pregnant woman? a traumatized individual from a war-torn country? or someone who can demonstrate that they have done no harm?
Outside of this exception, persons whose refugee claims have not yet been settled (and this is generally an involved process) will not be released and will not have their detention reviewed for a minimum of 12 months, according to the Bill, and then a minimum of every 6 months after that.
Keeping someone in detention without the opportunity to be heard for 12 months is highly irregular in a liberal democracy, and a significant departure from the current law, which requires a review of the detention after 48 hours, then after a week, and then every month. In addition, while the Bill requires as mandatory the detention of a group of people, the current law provides for detention of an individual if there are reasonable grounds to believe that this person is a danger to the public or would not appear for their proceedings.
With regard to children, the requirement by the Bill that everyone in the designated group must be automatically detained is a considerable move away from the principle enunciated in the current law – that a minor child should only be detained as a last resort.
Other provisions in Bill C-49 would impede a child’s right to be with their parents and family, and generally to have their best interests considered when their admissibility to Canada is in question.
Even if Canada has decided that a person is a refugee, the Bill would compel individuals from the designated class to report to an officer as set out in the regulations, answer all questions put to them truthfully, and provide any information or documents the officer requires. Outside of the negative symbolism and potential humiliation created by such a requirement, this provision could also serve to coerce refugees into spying and informing on friends, neighbours, employers, and anyone else the officer requires – even if the individual refugee is themselves not suspected of any wrongdoing.
Under the Bill, anyone in the designated class who was found to be inadmissible, would be unable for five years to seek status in Canada for humanitarian and compassionate reasons. This could, for example, affect the ability of a parent to remain in Canada with a Canadian-born child during the 5 year waiting period.
As for a person in the designated class who is admitted as a refugee – they would be unable to seek temporary or permanent resident status for five years. Without the latter status, they could not apply to become citizens of Canada, or to sponsor family members they may not have seen for years. Nor would they , for five years, be entitled to obtain refugee travel documents, and thus may not be able to travel to a safe third country to be reunited with family even for a visit.
It is hard to understand what useful purpose is served by creating these hardships, and by prolonging the period of limbo, and making it more difficult for a person to whom Canada has granted refugee status to settle and integrate into their new home.
If the idea is to stop smugglers, this Bill does little to deter them, as most live and function far away from Canada’s borders. International cooperation and efforts may be far more effective. If the idea is to attempt to deter people from using the services of “smugglers” (including paper forgers and ticket sellers, as described above), recent history in Australia demonstrates what common sense would dictate: people fleeing for their lives do not have the luxury of considering what will happen to them once they reach a safe haven. In Australia, which instituted similar policies, these were proven ineffective, and ultimately changed.
Furthermore, in recognition of the desperate plight of refugees that leads them to obtain false papers, or to trust their fate to rusty boats, international law has long required that refugees not be made to suffer penalties for their illegal entry into a country.
The Bill appears to contravene numerous of Canada’s obligations under the Convention relating to the Status of Refugees, such as the prohibition against punishing refugees for gaining illegal entry. The Convention, which Canada has been signed onto since 1969, also requires states parties to grant refugees travel documents, unless “compelling reasons of national security or public order” otherwise require. Bill C-49 would deny them this right. Finally, the Bill’s creation of a second class of refugees in itself may violate their right to be free from discrimination under the Convention, and under the International Covenant on Civil and Political Rights (ICCPR).
The provisions of the Bill – in particular those requiring mandatory and automatic detention of all people in the designated group – violate both international and Canadian constitutional standards by denying these individuals their right to liberty, to be free from arbitrary detention, and their due process rights – as set out in the Canadian Charter of Rights and Freedoms as well as the International Covenant on Civil and Political Rights. Furthermore, insofar as children would be affected by this Bill, it contravenes important provisions of the international Convention on the Rights of the Child.
Finally, Bill C-49 which seeks to amend the Canadian Immigration and Refugee Protection Act, is inconsistent with the aims of this very statute. These aims include, among others: to fulfill Canada’s international legal obligations, to offer safe haven, to facilitate family reunification, and to grant fair consideration to refugees as a fundamental expression of Canada’s humanitarian ideals,
It is hard to reconcile such humanitarian ideals with a Bill that, in violation of both international and Canadian standards, takes a group of people – regardless of age, infirmity or circumstance – and treats them like convicted criminals. It is also difficult to understand how the measures outlined above – which are demonstrably both punitive and unnecessary – could promote the successful settlement of these individuals in their new home.