Bill C-49 is a bill introduced in Parliament by the government on October 21, 2010. If it is approved by Parliament, it will make significant changes to the Immigration and Refugee Protection Act, affecting the way refugee claimants are treated in Canada. The government has said the bill is about stopping smugglers bringing people illegally into Canada. But in fact the bill mostly contains changes that will punish not the smugglers, but instead the people they are smuggling, including refugees who need to get into Canada to save their lives.

How does Bill C-49 punish refugees?

Under Bill C-49, some refugee claimants, including refugee children, will be jailed for a year, without anybody reviewing whether they should be kept in detention or released. Also under Bill C-49, some refugees, even after they have been accepted as refugees by Canada, will be kept with a temporary status for 5 years. During these five years, they will not be able to bring their family (spouse and children) to Canada and they will not be able to travel outside Canada.

Which refugees are punished under Bill C-49?

Under Bill C-49, the Minister can “designate” a group as an irregular arrival. Clearly, the government would like to designate refugee claimants that arrive by boat, such as the Sri Lankan Tamils on the MV Sun Sea that arrived in British Columbia this summer. But the bill does not say that the refugee claimants must have arrived by boat in order to be designated. A group could be designated even if there was no smuggling involved. Once a group is designated, everyone in the group is punished.

Does Bill C-49 respect the Charter?

No. All of Canada’s laws must respect the Canadian Charter of Rights and Freedoms, which guarantees basic rights. Several aspects of Bill C-49 likely do not respect the Charter. For example, Bill C-49 says that designated persons are detained for one year without review. The Supreme Court of Canada has recently clearly stated that detention without review for long periods is contrary to the Charter. If Bill C-49 is approved by Parliament, it could be challenged in the courts, and the courts would probably decide that some parts of the Bill are illegal because they do not respect the Charter. But while the courts are deciding the case, refugees would suffer in detention.

Does Bill C-49 respect international law?

No. Canadian laws must also respect international human rights conventions that Canada has signed, and which make up international law. These include the Convention relating to the Status of Refugees (Refugee Convention) and the Convention on the Rights of the Child. Many parts of Bill C-49 do not respect one or more international conventions. If Bill C-49 is passed, Canada will therefore be failing in some of its international obligations.

How does Bill C-49 violate international law?

The following are only some of the ways in which Bill C-49 violates human rights protected by international law:

Punishing refugees for illegal entry: The Refugee Convention says that governments must not impose penalties on refugees for illegal entry (article 31). But Bill C-49 does exactly this, by punishing “designated” persons in various ways, including by detaining them.

Arbitrary detention: The International Covenant on Civil and Political Rights says that governments must not detain anyone arbitrarily. Arbitrary detention is detention without the proper legal protections – for example, detaining people without giving them the possibility of having a review of their detention by an independent judge. Bill C-49 does exactly this, by saying that designated persons must be detained, without possibility of review for one year.

Separation of families: Various international conventions say that governments must protect the right of families to be united. The Convention on the Rights of the Child says that governments must respond quickly to applications for family reunification (article 10). But Bill C-49 does the opposite, by denying designated refugees the right, for five years, to apply to reunite with their children overseas.

Right to travel: The Refugee Convention says governments must give refugees a travel document in order to allow them to travel outside the country (article 28). But Bill C-49 denies this right to designated refugees, for at least five years after they are accepted as refugees. This would prevent them, for example, from visiting a sick family member in a third country (a country other than Canada or the refugee’s country of origin).

Best interests of the child: The Convention on the Rights of the Childsays that governments must take into consideration the best interests of any child affected by a decision (article 3). But under Bill C-49, some children could be deported from Canada without any consideration of their best interests. This is because the only way to have the best interest of a child considered is through an application on “humanitarian and compassionate grounds”, and the bill denies designated persons, including children, the opportunity for five years to apply for “humanitarian and compassionate grounds”.

Will Bill C-49 discourage people from using smugglers?

No. People turn to smugglers because they are desperate – often because they are persecuted and need to escape. Also people who flee as refugees rarely know about the laws in the country to which they go. Research conducted in the UK has shown that refugees don’t choose their destination based on the policies in place: many did not specifically choose the UK as a destination, and hardly any knew about asylum policies in the UK before they arrived.[1]

Have the policies punishing refugees in Bill C-49 been tried before?

Yes. Australia has tried these policies and they failed. Australia tried large scale, long-term detention of refugee claimants. They also denied them permanent status even when granted refugee status. The policies resulted in refugees, including many children, being traumatized by their experiences in detention. The Australian Human Rights Commission found that children in Australian immigration detention centres had suffered numerous and repeated violations of their human rights. Far from discouraging people, depriving refugees of their right to family reunification appears to have caused some people to arrive by boat, as later boats brought the wives and children of refugees in Australia unable to bring their families through legal channels.[2] The Australian public was deeply divided, with many previously unengaged citizens joining a grass-roots network to protest at their country’s inhumane treatment of refugees. In the past three years, Australia has moved away from the policies of detention and temporary status for refugees.

Canada has also tried denying refugees permanent residence. In the 1990s, thousands of Somali and Afghan refugees were prevented from becoming permanent residents. Under the Undocumented Convention Refugee in Canada Class, they had to wait 5 years in order to become permanent residents. During that time they could not be reunited with their families, could not travel outside Canada, could not pursue post-secondary education and generally could not get on with their lives. The policy was a disaster for the individuals and the communities affected. The policy was challenged in the courts on the basis that it was discriminatory, and the government eventually agreed to end the policy.

What should be done to Bill C-49?

Members of Parliament should vote against Bill C-49. The government should address the problem of smuggling in ways that do not punish refugees.

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Bill C-49 is deeply unfair to refugees; it fails to honour obligations under Canadian and international law; it deprives individual cases from the independent review that justice requires; it will involve huge costs in unnecessary detention.

Bill C-49 will do nothing to prevent human smuggling. More laws will not catch the smugglers, who are overseas. Mandatory minimum sentences will not deter: under the Immigration and Refugee Protection Act smuggling is already punishable by life imprisonment and mandatory minimums have been shown not to work as deterrents. Refugees know little or nothing about the laws before they arrive in a country of asylum, and even if they know, desperate fear for their lives forces them to do whatever they must to flee persecution. Australia tried punishing refugees to deter them: it didn’t work.

Bill C-49 must be defeated. The government should address the problem of smuggling in ways that do not punish refugees.

Bill C-49 punishes refugees. The bill has been presented as legislation targeting smugglers, but in fact most of the provisions punish not smugglers, but refugees. Under Bill C-49, refugees, including refugee children, will be mandatorily detained for a year, without possibility of independent review, and denied family reunification and the right to travel abroad for over 5 years. Under Bill C-49, refugees will be victimized three times: first by their persecutors, secondly by the smugglers and finally by Canada.

Bill C-49 violates the Charter and Canada’s international human rights obligations. The bill violates numerous rights protected by the Canadian Charter of Rights and Freedoms and by international conventions to which Canada is signatory, including the Convention relating to the Status of Refugees (Refugee Convention) and the Convention on the Rights of the Child.

Bill C-49 is discriminatory. The bill creates two classes of refugees, with one class (those “designated” based on mode of arrival) treated worse than the other. This is discriminatory and contrary to the Charter, which guarantees equality before the law (section 15).

Bill C-49 penalizes refugees based on mode of arrival. The bill imposes a series of penalties on “designated” persons, in violation of the Refugee Convention, which explicitly prohibits States from imposing penalties on refugees for illegal entry (article 31).

Bill C-49 imposes arbitrary detention. The bill requires the mandatory detention of designated persons, without independent review. This is arbitrary detention, which is contrary to the Charter and to international law.

Among those detained will be children. Unless they are accepted as refugees or released on discretionary grounds by the Minister, based on “exceptional circumstances”, designated persons will remain in detention for one year before having access to review of their detention.

The Supreme Court of Canada has recently clearly stated that unreviewed detention for lengthy periods is contrary to the Charter (section 7).[1] Yet this is exactly what Bill C-49 proposes.

Arbitrary detention is also prohibited by international law, notably by the International Covenant on Civil and Political Rights.

The bill also provides for mandatory conditions imposed on release, and for persons to be indefinitely detained, beyond 12 months, without possibility of release, if the Minister is of the opinion that their identity has not been established. Both these additional measures deprive persons of liberty, without the opportunity for an independent tribunal to review whether they are necessary in the individual case, contrary to the Charter and international law.

Bill C-49 denies the right to equal access to justice. The bill denies designated persons the right to appeal a negative refugee decision to the Immigration and Refugee Board’s Refugee Appeal Division. An appeal is a fundamental safeguard in refugee decision-making, where a person’s life and liberty may be at stake. By eliminating the opportunity to correct errors at the first level, the bill puts Canada at risk of violating its most fundamental obligation towards refugees: not to send them back to persecution (Refugee Convention, article 33).

Bill C-49 blocks family reunification. The bill deprives some refugees of the right for five years to apply for permanent residence, and therefore for reunification with their families, including their children. This is a violation of the right to family life, guaranteed by the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Bill C-49 denies refugees the right to travel. The bill denies designated refugees the right, protected by the Refugee Convention, to a refugee travel document (article 28). The bill proposes to legislate away the right by improperly and arbitrarily interpreting the Convention not to apply to designated refugees. This would prevent, for example, a refugee from visiting a sick family member in a third country.

Bill C-49 blocks refugees’ integration. By denying designated refugees the right for five years to apply for permanent residence, the bill significantly delays refugees’ integration into Canadian society and their eventual application for citizenship, contrary to the obligation under the Refugee Convention to facilitate “the assimilation and naturalization of refugees” (article 34). Canada has already had an experience of refugees kept in long-term limbo: this was tried with Somali refugees in the 1990s, when thousands were denied permanent residence for years. The policy was a disaster, causing huge suffering to the individuals affected and the community. The government eventually settled a court challenge by changing the policy.

Bill C49 prevents consideration of the best interests of the child. The bill denies designated persons, including children, the opportunity for five years to make an application on humanitarian and compassionate grounds. This application is the only avenue for consideration of best interests of the child. Under the terms of the bill, children will therefore be deported from Canada without consideration of their best interests, in violation of the Convention on the Rights of the Child.

The deterrence measures in Bill C-49 have been tried by Australia – and they failed. Australia had policies to lock up refugee claimants long term and deny them permanent status even when granted refugee status, in an effort to stop refugees coming by boat. The policies resulted in refugees, including many children, being traumatized by their experiences in detention. The Australian Human Rights Commission, an organization created by Parliament, conducted a National Inquiry into Children in Immigration Detention and found that children in Australian immigration detention centres had suffered numerous and repeated breaches of their human rights. Far from deterring people, depriving refugees of their right to family reunification appears to have caused some people to arrive by boat, as later boats brought the wives and children of refugees in Australia unable to bring their families through legal channels.[2] The Australian public was deeply divided, with many previously unengaged citizens joining a grass-roots network to protest at their country’s inhumane treatment of refugees. In the past three years, Australia has moved away from the policies of detention and temporary status for refugees.

Bill C-49 is not likely to deter refugees. Research in the UK has shown that refugees don’t choose their destination based on the policies in place. Of refugees participating in a recent study, few wanted specifically to go to the UK and many did not have control over where they ended up. “The 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.”[3]

Bill C-49 gives vast new powers to detain non-citizens based on mere suspicion. The bill gives the government the power to arrest and detain any non-citizen, including a permanent resident, based on a mere suspicion of criminality. This provision is not limited to designated persons, nor to refugee claimants: it applies to all non-citizens. This is a dramatic attack on the rights of newcomers – and long-term residents.

DESIGNATED CLAIMANTS
The Minister can designate as irregular the arrival of a group of persons. The minimum number in the group is not defined: presumably 2 or more. Persons designated are then subjected to all kinds of special rules (see below).

Reasons for designating:
(a) examinations (for establishing identity, determining inadmissibility + any investigations) cannot be conducted in a timely manner; or

(b) it is suspected that the people are being smuggled for profit, or a criminal organization or terrorist group is involved in the smuggling.

Concerns: Discriminatory – creates 2 classes of claimants, based on mode of arrival.

Possible violation of Charter equality rights (section 15). Also violation of Refugee Convention (section 31) which prohibits States from imposing penalties on refugees for illegal entry or presence.

Note – in (a) above there is no requirement that there be ANY allegation of smuggling. If the passengers of the SS St Louis arrived, they could be designated.

NEW RULES AFFECTING DESIGNATED CLAIMANTS
Detention
Designated claimants (including children) are mandatorily detained on arrival or on designation. There will be no review by the IRB of their detention for 12 months. Release is only possible in the following situations:

a) Person is found to be a refugee
b) IRB orders their release after 12 months. Even after 12 months, the IRB cannot release the person if the government says that the person’s identity has not been established.
c) Minister decides there are “exceptional circumstances”.

Concerns: Clear violation of Charter (Supreme Court already struck down mandatory detention without review in security certificate case). The measures provide for indefinite detention on the basis of identity, with no possibility of release until the Minister decides that identity is established. Arbitrary detention, in violation of Covenant on International Civil and Political Rights (among others).

Release from detention
Mandatory conditions set out in regulations will be imposed on all designated claimants released from detention.

Concerns: We don’t know what the conditions will be, but on principle mandatory conditions would be unfair, as they don’t take into account the individual case (and could be very burdensome).

Reporting requirements
A designated claimant who has been accepted as a refugee must report to an immigration officer as required by regulations, and answer all questions.

Appeal
Decisions on claims by designated persons cannot be appealed to the Refugee Appeal Division.

Concerns: Discriminatory, and risks violating non-refoulement provision in Refugee Convention.

In C-11, the government tried unfairly to exclude nationals from designated countries from the appeal. Now they are trying again, this time with some people excluded from the appeal based on mode of arrival. There is not even any logic to denying such people an appeal.

5 year suspension of permanent residence
A designated claimant cannot apply for permanent residence for 5 years. The 5 years start on the date of their refugee or PRRA decision. If they didn’t make a refugee claim or PRRA application, the 5 years start on the date of designation. If the person fails to comply with the conditions or reporting requirements, the 5 years suspension can be extended to 6 years.

Concerns: This rule applies both to those accepted as refugees and to those refused (or who never make a claim).

For accepted refugees the worst consequence is that this rule delays reunification with spouse and children overseas for 5 years. This is a violation of the Convention on the Rights of the Child.

Non-refugees cannot, for example, be sponsored by a spouse, leading to violation of family unity rights.

Refugee travel document
Article 28 of the Convention, which says States must issue travel documents, does not apply to designated persons, until they become a permanent resident (or are issued a temporary resident permit). This means that designated refugees cannot travel outside Canada for at least 5 years after they have been accepted as a refugee.

Concerns: Violation of Refugee Convention. An offensive attempt to legislate away rights established by international treaty.

Bar on H&C applications for 5 years
Designated persons cannot make an H&C application (or apply for a temporary resident permit) for 5 years. As above, the 5 years can be extended to 6 years for non-compliance.

Concerns: This is simply a variation on the bar on H&C for claimants that the government tried to introduce through C-11. Violation of Convention on the Rights of the Child, since there will be no opportunity to consider the best interests of the child.

Retroactive designation
The Minister can make retroactive designations for arrivals in Canada since March 31, 2009 (i.e. the passengers of Ocean Lady and Sun Sea could be designated).

OTHER CHANGES TO THE REFUGEE SYSTEM

Appeal
No appeal is allowed from a cessation or vacation decision.

Concerns: C-11 was passed just a few months ago, and is not even yet in force. This is not the time to be re-opening matters so recently decided by Parliament.

SMUGGLING
Breadth of definition of smuggling
The offence of human smuggling has been broadened. The new definition no longer requires proof that the accused knew that it was or might be against the law for the people being assisted to enter Canada.

Concerns: This expanded definition seems aimed at including people who have no objective intent to break the law, and potentially are acting from humanitarian motives to help refugees.

The current definition needs to be narrowed, not broadened, in order to clearly exclude people motivated only by a desire to help refugees find asylum. In 2007, smuggling charges were laid against a refugee worker from the US, Janet Hinshaw-Thomas. Although the charges were subsequently dropped, the law as it currently stands, and according to Bill C-49, makes it possible for people acting purely for humanitarian motives to be prosecuted.

The real problem in prosecuting exploitative smugglers is not something that can be fixed by changing the law. The persons who mastermind and profit from smuggling operations rarely, if ever, accompany the persons smuggled into Canada. The new measures do little to actually deter the ringleaders while making it very likely that the costs of doing business will rise – resulting in higher prices for genuine refugees and greater risks to their lives.

Mandatory minimum sentences
The bill will impose mandatory sentences for some categories of smugglers.

Concern: IRPA already contains the most serious penalties for convicted smugglers: life imprisonment and up to a $1 million dollar fine. If the prospect of tough penalties could deter human smuggling, it already would have. Indeed, there is no persuasive evidence that mandatory minimum sentences deter others.

Mandatory minimum sentencing has been criticized for well over fifty years by the Canadian Sentencing Commission, several other national organizations as well as social scientists. The literature notes the following: (i) mandatory minimum sentences cannot deter people from committing crimes because most people do not even know the existence of minimum sentences; (ii) potential offenders are deterred not by mandatory minimum sentences, but rather by the probability of detection; (iii) putting people in prison for longer periods of time may make them more likely to re-offend when they get out of prison as compared to punishing them some other way in the community; (iv) negative impacts of mandatory minimum penalties include unfairness and deepening systemic inequalities, including racism; (v) states such as Michigan and the Northern Territories of Australia are retreating from mandatory minimum sentencing as a result of their negative experience with its consequences; (vi) incarceration is costly – money spent keeping an inmate unnecessarily in prison means money that cannot be spent on more effective crime control strategies.

Judges are best positioned to tailor a sentence to fit the offender’s motive and individual circumstances.

Conclusion
Bill C-49 should be defeated at second reading. The government should address the problem of smuggling in ways that do not punish refugees.