Anti-Smuggling Law Misses the Mark

Proposed Bill Would Punish Refugees and Smugglers Alike: Crépeau

Mandatory detention is highly punitive, said Jaggi Singh. Photo Justin Giovannetti

The Conservative government’s new proposed law on human smuggling is causing concern among refugee advocates.

The bill announced on Oct. 21 by Public Safety Minister Vic Toews and Citizenship and Immigration Minister Jason Kenney is supposed to stop smugglers from engaging in what they say is an abuse of “Canada’s generous immigration system” by giving mandatory sentences to convicted smugglers of up to 10 years.

Lawyers and migrant solidarity groups say the law will only make journeys more hazardous for those seeking asylum in Canada.

“Fighting smuggling is one thing. Fighting the smuggled person is another,” said François Crépeau, professor of public and international law at McGill. “Refugees have the right to be heard and recognized as refugees despite the fact that they’ve entered the country illegally.

“Preventing them from accessing the country is not going to help them. It is going to endanger them further because they will be taking more dangerous routes in order to get into Canada, so this is totally counterproductive in terms of refugee protection.”

Many of the bill’s provisions target those seeking asylum in an effort to deter “irregular” arrivals, such as the 492 Tamil migrants who arrived in August aboard the Sun Sea. If the bill passes in the House of Commons, people arriving illegally at the Canadian border will face mandatory detention for up to one year and will not be allowed to leave the country, apply for Permanent Residence or a sponsor family for five years.

Crépeau claims these measures are arbitrarily and unnecessarily punitive and violate the 1951 Geneva Convention on Refugees, which says states must provide refugees with travel documents.

“What purpose does it serve?” asked Crépeau. “Apart from being maybe a deterrent measure, which will not deter anyone because if people need to leave their country and come to Canada, they will do it whether they have to wait five years or not.

“This is sheer discrimination,” he added.

Much of the concern being raised about the bill has to do with the power it gives the minister of Public Safety to designate instances of migration as “human smuggling events” and determine limits of detainment.

“Mandatory detention by the discretion of the minister is highly punitive,” said Jaggi Singh of Montreal migrant justice groups No One Is Illegal and Solidarity Across Borders. “We’re talking about detaining people that have not committed a crime.”

Crépeau agreed. “This means that we will be detaining women, children, babies mandatorily without being able to release them unless the minister decides so,” he said.

The bill also precludes those designated as illegitimate by the minister from the right to appeal.
It also has the power to apply retroactively to those who arrived on the last two Tamil boats, which Crépeau says is blatantly undemocratic.

“This is against the rule of law. The rule of law is protected by the Charter, and I don’t see how this could survive a constitutional challenge,” he said.

Legislation against human smuggling already exists in Canada. Those caught smuggling groups of 10 or more across the border can get sentences of life in prison—the equivalent of a crime against humanity.

There is nothing within the law to distinguish between smugglers who help people cross the border for humanitarian reasons and those who do so for criminal reasons.

Both Crépeau and Singh argue that the announcement of the new bill simply panders to xenophobic members of the population in an attempt to appear “tough on crime.”

Despite such criticisms, Kenney is defending the proposed legislation. He says opposition from the “immigration industry” indicates that the government is “on the right track.”

The additional arrest of 114 more Sri Lankans in Thailand on Saturday who were allegedly “planning to be smuggled to Canada” has further strengthened Kenney’s resolve that the law is necessary.
The bill is currently in its first stage of parliamentary reading.

This article originally appeared in Volume 31, Issue 12, published November 2, 2010.