Nothing riles up Canadian sensitivities more than someone jumping a line. Jason Kenney knew this when he introduced Bill C-49 in response to the arrival of two boat loads of Tamils on Canadian shores in the last year.

The Conservative minister of immigration tabled the human smuggling bill in October in order to tighten Canada’s anti-smuggling laws and deter what his party calls abuse of the immigration system. Yet critics say the bill is flawed because it treats refugee claimants as criminals and does little to actually stop smugglers.

The premise of the legislation to send would-be refugees to the back of the line is misleading. Calling Tamil asylum seekers “queue jumpers” is “irresponsible and reprehensible,” said Mark Holland, Liberal MP and public safety critic when he spoke in the House of Commons on Oct. 27. There is no queue for asylum seekers who leave their countries out of fear of persecution or are displaced by war or civil conflict. Their right to seek refuge is protected under the 1951 U.N. Refugee Convention, which Canada helped draft but only signed in 1969. Under the convention, asylum seekers are not supposed to be sent back nor or they supposed to be penalized for arriving “illegally.”

Yet, the measures called for in Bill C-49 give the minister of public safety power to designate a group of migrants as being part of a “mass arrival” and would subject them to stiffer rules (loss of rights). Refugee claimants, including women and children, would be kept in mandatory detention for one year until their identity has been confirmed. While in detention they would not have access to full interim health care benefits. Refugees would have to wait five years to apply for permanent residence, and would have no right to travel or sponsor their spouses or children to resettle in Canada. Once released from detention, claimants would be under (unknown) mandatory conditions, denied the right of appeal on decisions. Accepted refugees would be required to report to immigration officers.

“It has reached the point in some countries where there are actually more due process safeguards regulating detention of criminals than of asylum-seekers, the very large majority of whom have committed no crime,” said Erika Feller, assistant high commissioner for protection at the UN refugee agency (UNHCR) at the annual executive committee meeting in Geneva.

Human rights groups, like Amnesty International have taken the Harper government to task for disregarding the Refugee Convention as well as two other international treaties — the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. Bill C-49 is also said to breach equality provisions in the Charter of Rights and Freedoms.

According to a 2009 UN refugee agency report, there are 16 million refugees and asylum seekers worldwide and 80 per cent of the world’s refugees migrate in developing nations. Half of the refugee and asylum seeker population are women and girls. Canada received 34,000 new asylum seekers in 2009, some 0.2 per cent of the world total.

On the international scene, Canada has been considered a leader in shaping global refugee policies that aim to respect humanitarian concerns and protect state interests. Yet, “Canada would lose significant political capital and credibility if it introduced restrictive laws and measures in response to the arrival of a group of less than 500 asylum seekers while encouraging countries like Thailand and Tanzania to respond more generously to much larger groups that they have hosted for much longer periods of time,” says James Milner, a political science professor at Carleton University in Ottawa, Ontario. He was part of a panel discussion on Bill C-49 at York University, on November 12.

“We send back hundreds, if not thousands of people. No one should be under any illusions about that. This legislation is more about politics than it is about dealing with a real problem,” said Liberal MP Bob Rae, who was among various opposition party members to speak out against the bill during its first reading in parliament on Oct. 28th.

The United Nations refugee agency is telling countries around the world that criminalizing the search for asylum is not a solution. Such an approach “has serious protection consequences for refugees and breeds its own secondary problems for states, including racism and xenophobia,” said Erika Feller at a UNHCR meeting in October.

Critics of Bill C-49 point out that creating two classes of refugees is discriminatory and reminiscent of some of Canada’s past discriminatory practices such as the Chinese Head Tax, turning away boats from India and Europe, the internment of various ethnic groups during the second world war — all incidents that have led to public apologies many years later.

And what about the new measures to deter smugglers? The bill would stiffen penalties for ship owners involved in human-smuggling operations, and impose minimum mandatory jail terms of up to 10 years for those convicted of human smuggling. But Canada already has stiff penalties for human smugglers such as life in prison, or million dollar fines. “Why are those terms already in the immigration act not enough to deal with smugglers?” Olivia Chow, MP for the NDP asks Parliament on Oct. 28.

“These are practical and sensible provisions. They address the need to properly identify individuals who come to Canada as part of an irregular arrival,” said Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety in a House of Commons debate on Oct. 28. The new rules “will help to keep Canadians safe by helping to ensure that dangerous criminals and terrorists are not released into Canadian society. They will also help deter human smuggling operations from targeting Canada.”

This get-tough-on-crime approach seems to resonate with some associations of new Canadians who have publicly supported the legislation. But authorities already have the power to keep asylum-seekers in detention for long periods of time, as long as they have a good case. And, “the real problem is that most of the (smuggling) offenders never set foot in Canada and are therefore far beyond the reach of Canadian law,” says Sharryn Aiken, a law professor at Queen’s University in Kingston, Ontario, during a panel discussion on Bill C-49.

Stiffer penalties (mandatory minimum penalties) don’t work, and even countries that have adopted them, like the U.S. and Australia, have moved away from them because they promote racism, says Aiken. “I think they’re a bad idea, and I’m not willing to trade off refugee rights for criminal justice.”

The sentiment that the bill has missed the mark by targeting (and punishing) refugees is echoed by the NDP, Liberals, and the Bloc Quebecois; while the NDP has proposed amendments to the bill, only the Bloc has declared it will vote against the bill full stop.

When the poorest of the poor are also the ones taking in the vast majority of refugees, looking at the root causes of global migration may be the only way to really crack down on human smugglers, not designing flawed policy.


Canadian Council for Refugees

UNHCR (UN Refugee Agency)

Centre for Refugee Studies

Elvira Truglia is a Montreal-based freelance journalist and advocates for communication and human rights. She has worked for various non-governmental organizations, as well as community, public and independent media outlets.

Cathryn Atkinson

Cathryn Atkinson is the former News and Features Editor for Her career spans more than 25 years in Canada and Britain, where she lived from 1988 to 2003. Cathryn has won five awards...