Oct 28 2010, Toronto Star

Last week the Conservative government introduced its legislation to “crack down” on human smugglers. Given the balanced approach in the recently passed refugee reform bill, we had reason to hope that the government would present a fair package. Unfortunately, the Prevent Human Smugglers from Abusing Canada’s Immigration System Act misses the mark. Instead of focusing on the real problem — the human smugglers who exploit people for a profit — it directs the reprisals at their victims — the refugees fleeing persecution.

The only aspect of the legislation that actually deals directly with human smugglers is the provision that introduces mandatory minimum sentences. While this might appear to be a tough response, studies have shown that mandatory minimums are not effective in deterring criminal activity.

This is true in the case of human smuggling because the perpetrators use proxies and never set foot in Canada. The bill makes it easier to convict people of human smuggling but in so doing it exposes people who innocently assist refugees to prosecution for human smuggling if they were “reckless” when they provided help.

Although the government has stated that this bill is a response to the two boatloads of Tamil refugee claimants, its language is broad enough to capture any group of two or more claimants who arrive together, be it by land, sea or air. Any such group can be designated by the minister as an “irregular arrival.” Given the ambiguity in this provision, the vast majority of refugees who come to Canada can be designated and subject to all of the sanctions.

Claimants who are designated as part of an irregular arrival are subject to immediate and mandatory detention without any possibility of review for 12 months. No exceptions are made for women or children, although the minister has the discretion to allow release in “exceptional circumstances.”

Such lengthy detention of refugees is unprecedented in Canadian law and may be considered arbitrary detention in breach of our Charter of Rights and Freedoms. Moreover, given the desperate choices most refugees face, such measures are unlikely to deter smuggling but instead will merely punish the refugees.

Designated claimants will lose many of the rights available to them under the UN refugee convention. The convention requires that once a country grants refugee status, it must provide the refugee with a travel document.

This new bill eliminates the right of designated refugees to get travel documents for five years. Although the measure was introduced to prevent refugees from returning home, it also denies them the right to travel anywhere, even for a legitimate reason. This provision is a violation of our obligations under the UN convention.

Designated claimants cannot apply for permanent residence for five years. This will impose immense hardship because it prevents refugees from settling by forcing them to continue to live in fear of being uprooted. Worse still, the measure denies them the right to apply to be reunited with their families during the five-year period and for years after.

Hidden in the legislation that is supposed to deal with smugglers are measures that will affect all non-citizens, not only those brought to Canada by human smugglers. The bill greatly expands the power of the government to detain non-citizens.

It requires that a person be detained while the minister investigates a suspicion that they might have committed a criminal offence outside of Canada. The scope of this provision is dangerous as it can even be applied against permanent residents who have lived in Canada for years.

The bill eliminates the right of appeal against some adverse decisions made by the Immigration and Refugee Board, a right that was afforded to refugees as part of the refugee reform package passed this summer.

This measure is being applied in all cases, even those where the person is not part of an irregular arrival. In so doing, the government is undermining the carefully crafted compromise that was reached with the opposition just months ago.

There is no doubt that people smuggling is a dangerous enterprise that puts the lives of refugees at risk. The best solutions are always those that deal with the root causes.

Canada has lost many opportunities to work with other Western countries to pressure the Sri Lankan government to find a real solution to the problems that have plagued that country for so many years.

And while most people would support legislation that is truly directed at human smuggling, this bill, which attacks the most vulnerable, the refugees, must be stopped.

Lorne Waldman is a Toronto lawyer specializing in immigration and refugee law.