In today's National Post, MLI Senior Fellow Benjamin Perrin analyzes Bill C-4, the Preventing Human Smugglers from Abusing Canada's Immigration System Act. The op-ed (copied below) is based on the recently released paper, Migrant Smuggling: Canada's Response to a Global Criminal Enterprise by Perrin. Click here to read the media release.
Benjamin Perrin: A better plan to stop migrant smuggling
National Post, November 14, 2011
Migrant smuggling, which is distinct from human trafficking, is a dangerous, sometimes deadly, criminal activity that cannot be rationalized, justified or excused. Failing to respond effectively to migrant smuggling and to deter it risks emboldening those who engage in this illicit enterprise. Proceeds from these illegal activities benefit organized crime and criminal networks; fund terrorism and facilitate clandestine terrorist travel; endanger the lives and safety of smuggled migrants; undermine border security with consequences for the Canada-U.S. border; and undermine the integrity and fairness of Canada's immigration system.
Re-introduced in Parliament in June 2011, the Preventing Human Smugglers from Abusing Canada's Immigration System Act (Bill C-4) includes amendments to the Immigration and Refugee Protection Act (IRPA) that continue to generate controversy.
On a global basis, thousands of people have perished at sea during migrant smuggling operations. Migrant smuggling cannot be a viable option even for legitimate refugees to come to Canada. An unclassified report by the RCMP Criminal Intelligence Directorate reveals that smuggled migrants entering Canada include a mix of improperly documented migrants, economic migrants, criminals and terrorists. Bill C-4 adds minimum jail terms based on the number of people smuggled, whether the alleged smuggler harmed the migrants, and whether the offence was in any way associated with a criminal organization or terrorist group. But Bill C-4 does not criminalize the migrants themselves, instead it provides disincentives, like delaying their ability to sponsor family members to come to Canada.
However, Bill C-4 contains a maligned provision that would automatically detain migrants who are part of a group arrival designated by the Minister for a year without access to review, unless they are released by the Minister or they are granted refugee status earlier. While the general detention review timelines in the IRPA are unworkable in the context of a large smuggling event (requiring hearings for every individual within 48 hours, 7 days, then every month thereafter), Bill C-4 goes too in the opposite direction.
In 2007, the Supreme Court of Canada used the Charter to strike down a provision in the IRPA that required detention for 120 days without review of foreign nationals believed to be terrorists. The court required an initial review within 48 hours, with further detention reviews every 6 months. Given this precedent, it is inconceivable that the Court would permit the automatic detention of smuggled migrants without review for a year.
Bill C-4 should accordingly be modified as follows:
- Smuggled migrants should receive an initial review within 48 hours, with further reviews every three or six months thereafter; and,
- Minors should be exempted from the new regulations, and handled under the current rules that related to their age group.
Bill C-4, so modified, would help address migrant smuggling. But more is needed. There is a great need for ongoing international co-operation, aimed at both detecting and deterring migrant smuggling, and ensuring failed refugee claimants are promptly returned to their countries of origin. The international community must also work to alleviate the plight of refugees so that they will not feel it necessary to take the enormous risk (both legally and to their safety) of putting their fates in the hands of migrant smugglers as they seek a new life abroad.
Benjamin Perrin is law professor at UBC and a senior fellow of the Macdonald-Laurier Institute, which just released a study of migrant smuggling and a detailed evaluation of Bill C-4.
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